1
2
James W. Houston, State Bar No. 269689
1105 K Street
Sacramento, CA 95814
(916) 396-9760
3
4
Superior Court of California,
County of Sacramento
5
6
Daniel Frederick,
7
Plaintiff,
8
vs.
9
Debra Bowen, Secretary of State
10
Defendant
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Case No.:
Motion for Temporary Restraining
Order, Petition for Writ of Mandate
and Order to Show Cause
EXPIDITED REVIEW REQUESTED
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15
Dated this January 31, 2011
16
____________________________
1105 K Street
Sacramento, CA 95814
James W. Houston
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Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 1
1
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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
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There are no interested entities or person to list in this certificate.
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Dated:______________
_____________________
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Counsel
8
TABLE OF CONTENTS
9
Page
10
TABLE OF AUTHORITIES ........................................................................................................4
11
PETITION FOR WRIT OF MANDATE .....................................................................................5
12
13
INTRODUCTION ........................................................................................................................5
14
Authenticity of Exhibits .............................................................................................................6
15
Beneficial Interest of Petitioner .................................................................................................7
16
Chronology of Pertinent Events .................................................................................................7
17
Basis for Relief ..........................................................................................................................9
18
Absence of Other Remedies.......................................................................................................9
19
PRAYER .......................................................................................................................................9
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21
22
23
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VERIFICATION.........................................................................................................................10
MEMORANDUM ......................................................................................................................10
I. WRIT RELIEF IS ESSENTIAL TO RESOLVE THE CURRENT
AMBIGUITY IN THE LAW SO AS TO PROTECT PLAINTIFF’S RIGHT
TO BE ON THE BALLOT AND PREVENT STATEWIDE
DISENFRANCHISEMENT OF ALL MINORITY PARTY MEMBERS. ................10
25
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 2
1
2
3
4
5
6
A. Proposition 14 creates an ambiguity because it preserved California
Elections Code § 8106(a)(6), but fails to explain how it fits into the
new primary election scheme. .....................................................................................10
1. Proposition 14 and SB 6 were not intended to eliminate §
8106(a)(6) because such an action would be inapposite to the
findings that precede the text of the proposition and because they
did strike other sections of the code, but left this intact. .....................................12
2. The cannons of statutory construction compel the court to
give effect to the statute because it was left intact................................................13
7
8
3. If § 8106(a)(6) is rendered superfluous, the law will be
unconstitutional because it will eviscerate a minority party’s
ability to participate in the electoral process. .......................................................14
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10
11
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16
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4. Interpreting the statute so that § 8106(a)(6) is included leads to
the more reasonable result. ...................................................................................15
B. Expedited review is necessary as Mr. Frederick and qualified voters
wishing to vote for him would be irreparably harmed if his name
does not appear on the certified list of candidates scheduled to be
published January 31, 2011..........................................................................................16
1. Mr. Frederick will suffer irreparable harm if the certified list of
candidates is published without his name and there is no
alternative remedy available. .................................................................................16
2. It is in the public’s interest to have minority party access to the
ballot and to have this ambiguity resolved. ..........................................................16
3. Mr. Frederick will likely succeed on the merits of his claim
because the current electoral process impermissibly denies him
and other minority party candidates’ access to the ballot. .................................17
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21
22
23
24
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CONCLUSION .........................................................................................................................17
APPENDIX ................................................................................................................................18
Declaration of Mr. Daniel Frederick ........................................................................................ A
Proposed Orders ........................................................................................................................ B
Certificate of Service.................................................................................................................. C
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 3
1
2
3
TABLE OF AUTHORITIES
Page
4
5
Cases
6
U.S. Supreme Court
7
Lubin v. Panish (1974) 415 U.S. 709.................................................................................. passim
8
Reynolds v. Sims (1964) 377 U.S. 533 ..................................................................................13, 17
9
Williams v. Rhodes (1968) 393 U.S. 23 ......................................................................................14
10
11
California Supreme Court
12
People v. Shabazz (2006) 38 Cal.4th 55 .....................................................................................15
13
California Courts of Appeal
14
Bill v. Williams (1977) 70 Cal. App.3d 351 ..........................................................................15, 17
15
Mabry v. Superior Court (2010) 185 Cal. App.4th 208........................................................12, 13
16
Santa Clara Valley Transp. Authority v. Public Utilities Com. State of California (2004) 124
17
Cal.App.4th 346 ....................................................................................................................12, 13
18
Statutes
19
20
California Constitution Article II ..................................................................................................7
21
California Election Code § 8106(a) ...........................................................................................11
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California Election Code § 8106(a)(6) .............................................................................. passim
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California Civil Code § 526 .......................................................................................................16
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California Civil Code § 526(a)(2) ..............................................................................................16
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Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 4
IN THE SUPERIOR COURT OF
1
2
CALIFORNIA, COUNTY OF
3
SACRAMENTO
4
5
Daniel E. Frederick,
6
Plaintiff,
7
vs.
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Debra Bowen, Secretary of State
9
Defendant,
10
11
PETITION FOR WRIT OF MANDATE
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13
14
INTRODUCTION
15
16
This case presents an issue of urgent importance that will permanently affect Daniel
17
Frederick’s ability to appear on the ballot for the March 8, 2011 special election being held to
18
fill the Fourth Assembly District vacancy. Daniel Frederick is a member of the Peace and
19
Freedom party. The Secretary of State is set to issue her Certified List of Candidates for the
20
Fourth Assembly District on January 31, 2011. If Mr. Frederick is not allowed to be on the
21
Certified List of Candidates, then the Sacramento County Registrar will not be able to place his
22
name on the ballot.
23
24
25
The issue in this case is whether California Elections Code §8106(a)(6), which allowed
minority party candidates to submit fewer signatures to gain ballot access, should be given
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 5
1
meaning even if it does not fit neatly within the statutory scheme created by Proposition 14, the
2
“Top-Two” Primary Act of 2010,.
3
Proposition 14, adopted by voters on June 8, 2010, created a “top-two” primary
4
5
election in which all potential candidates appear on the same ballot and the two candidates
6
receiving the most votes then move on to the general election. Prior to the adoption of this
7
proposition, each party conducted its own primary and the candidate receiving the most votes
8
would then proceed to represent their party on the general election. For smaller parties,
9
California Election Code § 8106(a)(6) allowed the submission of 150 signatures or ten percent
10
of the registered party members in the district, whichever is less. The Secretary of State has
11
refused to allow those who have satisfied this requirement access to the ballot. The effect of
12
this decision is to require all candidates, including smaller party candidates to collect 1500
13
signatures to meet the filing requirements – a ten-fold increase over § 8106(a)(6).
14
15
While the immediate need is to decide whether the law allows Daniel Frederick a place
16
on the March 8, 2011 ballot, this issue will continue to percolate in all elections held under the
17
auspices of Proposition 14. Moreover, this problem is especially acute in special primary
18
situations in which candidates have a reduced timeframe to collect signatures.
19
20
Thus, this litigation presents a compelling case for immediate writ review to resolve an
21
issue of statewide importance and protect the right of voters to select a candidate of their
22
choice.
23
24
Authenticity of Exhibits
25
A true and correct copy of the Declaration of Daniel Frederick is attached to this petition.
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 6
1
Plaintiff believes that the Secretary of State has a true and correct copy of the 225 signatures
2
submitted by Mr. Frederick.
3
4
Beneficial Interest of Petitioner
5
As indicated in the Frederick Declaration, the plaintiff is interested in the true and correct
6
interpretation and application of the statutes at issue.
7
8
Chronology of Pertinent Events
9
10
1.
On February 20, 2009, Governor Arnold Schwarzenegger signed SB 6 (Maldonado) which
11
amended various provisions of the California Elections Code in order to facilitate the
12
implementation of a “top-two” primary system if the voters approved SCA 4. SCA 4
13
became Proposition 14 when it was placed on the June 8, 2010 ballot.
14
2.
15
On June 8, 2010 California Voters approved Proposition 14, the Top Two Primaries Act
which amended Article II, sections 5 and 6 of the California Constitution. This
16
proposition stated, “A voter-nomination primary election shall be conducted to select the
17
candidates for congressional and state elective offices in California.”
18
19
3.
On January 5, 2011, a vacancy was created in the Fourth Assembly District when Ted
20
Gaines was elected to the first State Senate district following a special election held
21
January 4, 2011.
22
4.
23
24
On January 11, 2011, Governor Jerry Brown issued a proclamation declaring a special
election on May 3, 2011 to fill the vacancy in the Fourth Assembly district.
5.
The primary was then set, per California Elections Code § 10704, for March 8, 2011, eight
25
weeks prior to the general election.
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 7
1
6.
The Secretary of State then required each candidate wishing to submit an in-lieu petition
2
to gather 1500 signatures by January 13, 2011. January 13 was two days after the
3
Governor’s proclamation and eight days after the vacancy was created.
4
7.
5
On January13, 2011, Daniel Frederick, a member of the Peace and Freedom party
submitted 225 signatures to the Secretary of State and was denied certification because he
6
did not submit 1500 signatures.
7
8.
On January 20, 2011, Mr. Frederick attempted to file my Declaration of Candidacy with
8
the Sacramento Registrar of Voters and was told by staff that he could not file unless he
9
submitted a check for $952.91
10
11
12
13
14
15
9.
The Peace and Freedom party is a Qualified Political Party according to the Secretary of
State. (http://www.sos.ca.gov/elections/ror/ror-pages/15day-gen-10/qual-pol-parties.pdf).
10. At the time of the November 2010 election, The Peace and Freedom party had a statewide
membership of 57,776 persons, representing 0.33% of all registered voters in California.
(http://www.sos.ca.gov/elections/ror/ror-pages/15day-gen-10/county.pdf).
16
11. At the time of the November 2010 election, The Peace and Freedom party had 713
17
18
19
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registered voters in the Fourth Assembly District.
(http://www.sos.ca.gov/elections/ror/ror-pages/15day-gen-10/assembly.pdf).
12. Under Cal. Elec. Code §8106(a)(6) a member of the Peace and Freedom party would have
21
to submit 72 signatures to gain access to the ballot, as ten percent of the registered voters
22
of the Peace and Freedom Party in the Fourth Assembly District is less than 150.
23
24
25
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Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 8
1
Basis for Relief
2
3
13. The issue presented is whether the Secretary of State’s refusal to accept Daniel Frederick’s
4
in lieu petition, complying with California Elections Code §8106(a)(6) is inconsistent with
5
the intent of the Legislature and fails to provide for a reasonable alternative to the filing
6
fee.
7
Absence of Other Remedies
8
9
14. Delay of review until after January 31, 2011, will irreparably harm Mr. Frederick’s ability
10
to appear on the March 8, 2011 special primary election ballot for the Fourth Assembly
11
District. If he fails to appear on that ballot, qualified voters of the Peace and Freedom
12
Party, and other qualified voters who may wish to cast their vote for Mr. Frederick will be
13
denied the opportunity to exercise their right to choose the candidate of their choice.
14
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PRAYER
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Plaintiff prays that this court:
1. Issue a Temporary Restraining Order prohibiting the Secretary of State from issuing the
certified list of candidates on January 31, 2011, unless Mr. Frederick’s name appears on
21
22
23
that list.
2. Issue an alternative writ directing defendant, Secretary of State Debra Bowen, to interpret
24
California Election Code § 8106(a)(6) in a manner that is consistent with the intent of the
25
Legislature and Constitutional jurisprudence .
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Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 9
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3. Issue an alternative writ ordering defendant, Secretary of State Debra Bowen, to show
2
cause why California Elections Code section 8106(a)(6) should not be interpreted to
3
provide for small party in-lieu petitions in all elections.
4
5
6
4. Grant such relief as may be just and proper.
Dated: January 31, 2011
Respectfully submitted,
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By:____________________________
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ATTORNEY FOR_________________
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VERIFICATION
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I, Daniel D. Frederick, declare as follows: the petition is true and correct to the best of my
knowledge.
12
13
_______________________
Name
___________________
Date
14
15
MEMORANDUM
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I.
17
18
WRIT RELIEF IS ESSENTIAL TO RESOLVE THE CURRENT AMBIGUITY IN THE
19
LAW SO AS TO PROTECT PLAINTIFF’S RIGHT TO BE ON THE BALLOT AND
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PREVENT STATEWIDE DISENFRANCHISEMENT OF ALL MINORITY PARTY
21
MEMBERS.
22
23
24
25
26
A. Proposition 14 creates an ambiguity because it preserved California Elections Code
§8106(a)(6), but failed to explain how it fits into the new primary election scheme.
In Lubin v. Panish, (1974) 415 U.S. 709, the United States Supreme Court held that the
state’s legitimate interest in keeping ballots manageable and clear, “must be achieved by a
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 10
1
means that does not unfairly or unnecessarily burden either a minority party’s or an individual
2
candidate’s equally important interest in the continued availability of political opportunity.”
3
415 U.S. at 716. Commensurate with that rule, the California Elections Code has provided two
4
methods of achieving ballot access in lieu of filing fees: one for majority parties and one for
5
minority parties. Prior to 2011, majority party candidates had to submit 1500 “in-lieu”
6
signatures while minority party candidates - those representing less than five percent of
7
registered voters - could submit 150 signatures or ten percent of the registered voters of that
8
party within the district, whichever is less. (Cal. Elec. Code §§ 8106(a), 8106(a)(6)). This
9
bifurcation represents an acknowledgment that political opportunity should not be
10
11
proportionate to the size and wealth of a person or party.
This code section was drafted prior to the adoption of Proposition 14 and Senate Bill (SB)
12
6 (stats. 2009, ch. 1) which eliminated the party primary system. Before 2011, parties
13
nominated their candidates during the primary and their names then appeared on the General
14
election ballot. Thus, the language of Cal. Elec. Code § 8106(a)(6) refers to, “a candidate
15
seeking the nomination of a qualified party with whom he or she is registered.” This
16
seemingly creates an anomaly because primary election contest no longer involves party
17
nominations. When Daniel Frederick attempted to comply with §8106(a)(6) by submitting
18
225 signatures on January 13, the Secretary of State refused to put his name on the Certified
19
List of Candidates because he did not submit 1500 signatures or pay the filing fee of $952.91.
20
This court is left with two interpretations, either the drafters of Proposition 14 intended to
21
eliminate, or render superfluous, this code section or, they simply made a mistake in drafting
22
and the provisions of § 8106(a)(6) should be interpreted to apply to minority party candidates
23
seeking access to the primary ballot.
24
25
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 11
1.
1
Proposition 14 and SB 6 were not intended to eliminate § 8106(a)(6) because
2
such an action would be inapposite to the findings that precede the text of the
3
proposition and because the author did strike other sections of the code, but
4
left this intact.
5
As a general rule, words in statute should be given their ordinary and plain meaning and
6
should be construed in their statutory context. (Mabry v. Superior Court, (2010) 185
7
Cal.App.4th 208, 219). The purpose of statutory construction is to ascertain the intent of the
8
Legislature and effectuate the purpose of the law. (Santa Clara Valley Transp. Authority v.
9
Public Utilities Com. State of Cal., (2004) 124 Cal.App.4th 346, 359) (hereafter SCVTA).
10
Also, the canons of statutory construction generally preclude judicial construction that renders
11
part of the statute meaningless or inoperative. (Mabry, supra, 185 Cal.App.4th at 219.).
12
Proposition 14 began as Senate Constitutional Amendment (SCA) 4 (Maldonado) during
13
the 2008-2009 Legislative session. While it effectuated Constitutional changes, its companion
14
measure, SB 6 (Maldonado) implemented statutory changes that were only to go into effect if
15
Proposition 14 was adopted. (stats. 2009, ch. 1). Thus, it is helpful to think of them as a single
16
entity.
17
SB 6 was extremely comprehensive, it amended 55 different sections of the Elections Code
18
and repealed three. (stats. 2009, ch. 2). One of the repealed sections, and many of the
19
amended sections are within the same chapter as §8106(a)(6). Courts should assume that the
20
Legislature was aware of existing statutes and intended to maintain a consistent body of statute.
21
(SCVTA, supra, 124 Cal.App.4th at 360.) If they had intended to amend it or repeal it, they
22
could have. It is more likely, then, that they intended to leave it intact so as to provide a means
23
for minority party access to the ballot and simply failed to see the ambiguity it would create.
24
Such a conclusion is bolstered by the findings and declarations placed in Proposition 14 by
25
the same author of SB 6. The very first declaration states that the purpose of the law is to,
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 12
1
“protect and preserve the right of every Californian to vote for the candidate of his or her
2
choice.” (stats. 2009, ch.2). The second declaration states that, “All registered voters otherwise
3
qualified to vote shall be guaranteed the unrestricted right to vote for the candidate of their
4
choice.” (Id.) The phrase, “candidate of their choice” was not placed there by accident; it has
5
historical meaning in the judicial lexicon. Since Reynolds v. Sims, this right has represented
6
fulcrum upon which our electoral processes rests. (Reynolds v. Sims (1964) 377 U.S. 533, 555
7
(“any restrictions on that right strike at the heart of representative government.”)). The use of
8
this language in such a prominent place and with such strong language clearly indicates the
9
author’s desire to preserve access for minority party candidates.
10
11
2. The cannons of statutory construction compel the court to give effect to the
statute because it was left intact.
12
13
One cannon of statutory construction generally precludes judicial construction that renders
14
part of the statute meaningless or inoperative. (Mabry, supra, 185 Cal.App.4th at 219). Where
15
there are two potentially overlapping schemes, as there are here, the court must try to construe
16
them so as to give effect to all provisions. (SCVTA, supra, 124 Cal.App.4th at 360). The fact
17
remains that the Legislature kept the language in the statute, and its inclusion would appear to
18
comport with their intended electoral scheme than its exclusion.
19
20
Furthermore, there is a reasonable interpretation available to the court that gives meaning
21
to the words in the statute and allows for a consistent statutory scheme. By allowing
22
§8106(a)(6) to apply to minority party candidates seeking access to the Primary Election ballot,
23
the state will still be allowed to conduct a “top-two” primary, their interest in preventing
24
frivolous candidates will not be impinged, and there will be a reasonable alternative to the
25
filing fee.
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 13
3.
1
If § 8106(a)(6) is rendered superfluous, the law will be unconstitutional
2
because it will eviscerate a minority party’s ability to participate in the
3
electoral process.
4
5
6
7
The United States Supreme Court has recognized the legitimate state interest in
maintaining ballot clarity and minimizing fragmentation of voter choice. (Lubin, supra, 415
U.S. at 715). However, achievement of this interest must not unfairly or unnecessarily burden
a minority party’s ability to meaningfully participate in the political process. (Id. at 716).
8
Without minority party participation, the rights to vote and associate are heavily burdened.
9
10
11
(Williams v. Rhodes (1968) 393 U.S. 23, 31).
One means that many states have employed to winnow the field of candidates has been to
12
charge filing fees. This procedure was at the heart of Lubin. The Court found that California’s
13
failure to provide a reasonable alternative to the filing fee operated to exclude potentially
14
serious candidates from the ballot. (Id. at 718). The court suggested that States may impose on
15
minor political parties the requirement to demonstrate some “quantum of voter support” by
16
gathering signatures representing some percentage of voters who voted in the prior election.
17
18
19
20
(Id). It is fair to conclude that § 8106(a)(6) was an attempt to implement this suggestion by the
court.
If this court were to conclude that §8106(a)(6) is null, then California would find itself in
21
the same place it was before Lubin. The electoral scheme would be like that rejected in
22
Williams, whereby the two old, established parties would have a decided advantage and
23
24
minority parties would face substantial burdens on the rights to vote and associate. (Williams,
supra, 393 U.S. at 31). A minority party candidate wishing to get on the ballot must either pay
25
the filing fee of nearly one-thousand dollars, or collect 1500 signatures, which is ten times the
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 14
1
2
3
amount previously required. During special elections, the time frames are often condensed, as
they were in this case.
The question for the court, then, is whether this is a reasonable alternative to the filing fee.
4
A test for measuring the reasonableness of the alternative was laid out in Bill v. Williams,
5
(1977) 70 Cal.App.3d 531. The question is whether a reasonably diligent candidate could be
6
expected to meet the requirement. (Id. at 536.) A ten-fold increase in the burden placed on
7
minority candidates in a normal election is a high hurdle, indeed. Expecting them to
8
accomplish this during a condensed special election cycle is asking the impossible. It seems
9
10
patently obvious that requiring minority party candidates to gather 1500 signatures in eight
11
days is not something a reasonably diligent candidate could accomplish. Also, given term
12
limits, the frequency of special elections has grown exponentially. In the past 22 months, there
13
have been 12 special elections held to fill vacancies in the Assembly, State Senate and
14
Congress. (http://www.sos.ca.gov/elections/elections_specials.htm). This frequency shows no
15
signs of abating, so this problem will continue to be exacerbated in the months and years to
16
come.
17
18
19
4. Interpreting the statute so that § 8106(a)(6) is included leads to the more
reasonable result.
20
Another cannon of statutory construction holds that, “If a statute is amenable to two
21
alternative interpretations, the one that leads to the more reasonable result will be followed.”
22
(People v. Shabazz, (2006) 38. Cal.4th 55, 67-68. The court faces two possible alternative
23
24
interpretations. One would render § 8106(a)(6) void, creating a system wherein every
candidate must pay the filing fee or gather 1500 signatures regardless of means or available
25
time. The other interpretation leaves the statute intact and applies it to minority party
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 15
1
candidates wishing to participate in the “top-two” primary. Under this interpretation, minority
2
party candidates wishing to have their name placed on ballot can do so by satisfying the
3
reduced threshold of § 8106(a)(6). Given this choice, the latter interpretation seems to the
4
more reasonable and fair option.
5
6
B. Expedited review is necessary as Mr. Frederick and qualified voters wishing to vote
7
for him would be irreparably harmed if his name does not appear on the certified list
8
of candidates scheduled to be published January 31, 2011.
9
10
11
12
1. Mr. Frederick will suffer irreparable harm if the certified list of candidates
is published without his name and there is no alternative remedy available.
California Civil Code § 526 lays out several scenarios in which an injunction is
13
appropriate, for instance, “when it appears by the complaint…that the commission or
14
continuance of some act during litigation would produce waste, or great or irreparable injury,
15
to a party to the action. (Cal. Civ. Code § 526(a)(2)). The Secretary of State is set to publish the
16
certified list of candidates on January 31, 2011 at 5 P.M. and if she commits that act without
17
18
19
20
21
22
23
24
including Mr. Frederick, this will cause him and the public to be irreparably harmed. Once the
list is published it will be very difficult, if not impossible, to place his name on the March 8,
2011 ballot and will require additional litigation to accomplish.
2. It is in the public’s interest to have minority party access to the ballot and
to have this ambiguity resolved.
It is certainly within the public’s interest to have an electoral system that meets
constitutional muster. Disenfranchising thousands of voters who choose not to affiliate with
25
one of the major parties is not consistent with the Constitution as interpreted by the Supreme
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 16
1
Court. ( Lubin, supra, 415 U.S. at 716; Reynolds, supra, 377 U.S. at 555). Allowing the
2
current electoral scheme to proceed without the inclusion of Cal. Elec. Code §8106(a)(6)
3
would have such an effect and would adversely affect the public interest.
4
Additionally, it is within the public’s interest to have this ambiguity resolved before the
5
election takes place so that it, and all future elections, will be consistent in their execution. The
6
failure to either eliminate or include § 8106(a)(6) clearly creates an ambiguity in the law and
7
this ambiguity must be resolved.
8
3. Mr. Frederick will likely succeed on the merits of his claim because the
9
current electoral process impermissibly denies him and other minority
10
party candidates’ access to the ballot.
11
12
The current ambiguity in the law creates a constitutional problem and this must be
13
resolved. Based on the available jurisprudence put forth by the Supreme Court, a state must
14
provide reasonable alternatives to a filing fee. (Lubin, supra, 415 U.S. at 718). The current
15
requirement of 1500 signatures is not something a reasonable diligent minority party can be
16
expected to achieve. (Bill, supra, 70 Cal.App.3d at 536). If § 8106(a)(6) is not allowed to
17
18
19
stand, then there will be no reasonable alternative so California will be jettisoned back to the
pre-Lubin era.
20
CONCLUSION
21
The implementation of Proposition 14 created an ambiguity with respect to § 8106(a)(6)
22
23
24
and its protection of minority party rights. The Secretary of State’s refusal to enforce its
requirements threatens to deny Mr. Frederick access to the ballot and would deny qualified
voters in the district the ability to vote for a candidate of their choice.
25
26
Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 17
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Based on the language of the proposition and its companion measure, SB 6, it is reasonable
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to conclude that the Legislature intended to preserve this alternative as an option for minority
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party candidates. Furthermore, the rules of statutory construction favor giving this section
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meaning because the words are still in the statute, and including them is the more reasonable
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and constitutionally consistent interpretation.
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Given the fact that the Certified list of Candidates is set to be published on January 31,
2011 without Mr. Frederick’s name presents an urgent situation that threatens to permanently
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impair his rights without court intervention. Thus, a Temporary Restraining Order is
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appropriate because; there is the presence of irreparable harm, with no satisfactory alternative
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remedy, the public has a strong interest in seeing this ambiguity resolved, and Mr. Frederick is
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likely to succeed in his argument that § 8106(a)(6) should be given meaning.
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All of these factors compel this court to issue a Temporary Restraining Order prohibiting
the Secretary of State from issuing the Certified List of Candidates without Mr. Frederick’s
name and to issue a writ of mandate compelling the Secretary of State to interpret the law so as
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to preserve the intent of the legislature and the words of the statute.
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Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 18
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APPENDIX
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Frederick v. Bowen,
Plaintiff’s Writ of Mandate - 19