Legal Library

NAACP v. Jones in California


In The United States Court of Appeals For the Ninth Circuit
No. 96-56455



NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, LOS ANGELES BRANCH; MULTICULTURAL COLLABORATIVE; SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE OF GREATER LOS ANGELES; CALIFORNIA PUBLIC INTEREST RESEARCH GROUP; SOUTHERN CALIFORNIA AMERICANS FOR DEMOCRATIC ACTION; DAVID E. ALLEN; FRANK L. BERRY; HESTER M. WATKINS; TALT COLDIRON; DOLORES C. STEPHENS; ISAAC R. ELNECAVE; DENISE M.M. ROBB; MICHAEL A. FEINSTEIN; JAMES E. STURM; ALLEN RUBINSTEIN; ARNOLD ARBISO; CHARLES L. LINDNER,

Plaintiffs-Appellants,

v.

BILL JONES, SECRETARY OF STATE; CONNY B. MCCORMICK, REGISTRAR OF VOTERS FOR LOS ANGELES COUNTY; MICHAEL D. ANTONOVICH; YVONNE BRAITHWAITE BURKE; DEANE DANA; GLORIA MOLINA; ZEV YAROSLAVSKY, MEMBERS OF THE BOARD OF SUPERVISORS OF LOS ANGELES COUNTY; BOARD OF SUPERVISORS OF THE COUNTY OF LOS ANGELES,

Defendants-Appellees.

BRIEF FOR PLAINTIFFS-APPELLANTS

ABIGAIL TURNER
JOHN C. BONIFAZ
Attorneys for Plaintiffs-Appellants
National Voting Rights Institute, 401 Commonwealth Avenue, Boston, Massachusetts 02215 (617) 867-0740

JOSEPH H. DUFF, State Bar 50431
Attorney for Plaintiffs-Appellants
1551 Hi Point Street, Los Angeles, California 90035-3907 (213) 932-8172

ROY M. ULRICH, State Bar No. 46087
Attorney for Plaintiffs-Appellants
Law Offices of Roy M. Ulrich, 185 Pier Avenue, Santa Monica, California 90405 (310) 396-9927

DENNIS C. HAYES, WILLIE ABRAMS
Of Counsel
National Association for the Advancement of Colored People, 4805 Mt. Hope Drive, Baltimore, Maryland 21215-3297 (410) 486-9180



TABLE OF CONTENTS


STATEMENT OF JURISDICTION

ATTORNEYS' FEES

ISSUES PRESENTED FOR REVIEW

STANDARD OF REVIEW

STATEMENT OF THE CASE

Nature of the Case

Course of the Proceedings and Disposition

Statement of the Facts

SUMMARY OF ARGUMENT

I. PLAINTIFFS HAVE AN EQUAL PROTECTION CLAIM BECAUSE THE
STATE MAINTAINED CAMPAIGN FINANCESYSTEM BURDENS VOTERS'
RIGHTS TO PARTICIPATE IN THE ELECTORAL PROCESS

A. The Financing of Judge Elections Has Become an Integral Part of the Election Machinery And Is State Action

B. The State and County's Practices Support the Wealth Primary and Discriminate Against Nonwealthy Voters, Violating Equal Protection Guarantees

1. Discrimination Against Voters on the Basis of Wealth State an Equal Protection Violation

2. The Equal Protection Clause Guarantees Voters' Rights Beyond Those Relied on in Kaplan

C. The Voter Pamphlet Fee Limits Voters' Choices and Violates the Equal Protection Clause

II. PLAINTIFFS HAVE STATED A CAUSE OF ACTION UNDER THE FIRST AMENDMENT

A. The Defendants' Maintenance of the Wealth Primary Burdens Plaintiffs' Freedom of Speech

B. The Defendants' Laws and Practices Violate Plaintiffs' Right to Freedom of Association

III. PLAINTIFFS STATED A FIRST AMENDMENT CLAIM ABOUT THE
EXCLUSION OF CANDIDATE QUALIFICATIONS FROM THE SAMPLE
BALLOT WHEN THE CANDIDATE CANNOT PAY THE $48,775 COSTS

A. Voters Have a Right to Receive County Sponsored Candidate Qualifications in the Sample Ballot

B. The Ballot Pamphlet Fee Operates to Regulate Which Viewpoints Voters Can Receive

C. The Presence of Voter Plaintiffs Requires Consideration of the State's Interest in Educating the Electorate

D. Plaintiffs Have Stated Claim About the Reasonableness of the $48,775 Fee for the Candidate's Statement

IV. INDIVIDUAL VOTERS OF MODEST MEANS OR INTERESTED
ORGANIZATIONS HAVE STANDING TO PROTECT THE PARTICIPATORY
INTERESTS INJURED BY THE WEALTH PRIMARY

A. Plaintiffs Suffer Injury in Fact

B. Plaintiffs Allege a Causal Connection Between the Wealth Primary and Their Voting Rights Injuries

C. The Relief Requested is Likely to Redress or Prevent the Voters' Injury

D. Charles Lindner Has Standing as a Candidate and Voter

CONCLUSION

Statement of Related Cases

FOOTNOTES

TABLE OF AUTHORITIES



STATEMENT OF JURISDICTION

The district court had subject matter jurisdiction under 28 U.S.C. §1331 to remedy plaintiffs' claims of violations of the Equal Protection Clause and the First Amendment of the United States Constitution.

Plaintiffs appeal from two orders of the United States District Court for the Central District of California, dated August 12, 1996, granting the defendants' Motions to Dismiss under Rule 12(b)(6), Federal Rules of Civil Procedure. CR16,19. Plaintiffs filed a timely Notice of Appeal on September 10, 1996 pursuant to Rule 4, Federal Rules of Appellate Procedure. CR19. This court has jurisdiction under 28 U.S.C. §1291.

ATTORNEYS' FEES

Plaintiffs will seek attorneys' fees under the Civil Rights Attorneys Fees Award Act, 42 U.S.C. §1988.

ISSUES PRESENTED FOR REVIEW

1. When the County and State maintain an electoral system in which it costs $100,000 to conduct a viable judicial campaign in Los Angeles County, do voters and candidates have a cause of action under the Equal Protection Clause? CR3 at 36-37; CR16 at 9.

2. Is the County and State's system for electing judges so costly that voters and candidates cannot effectively participate, violating the voters' and candidates' First Amendment rights? CR3 at 37; CR 16 at 9.

3. Do voters have a First Amendment right to receive judicial candidates' qualifications in the Los Angeles County Official Sample Ballot Pamphlet even when the candidates cannot pay the $48,775 costs? CR3 at 37, CR16 at 9.

4. Do voters suffer concrete injury for standing when their choices of candidates are limited because of the high costs of judge campaigns in Los Angeles County? CR8; CR16 at 8-9.

STANDARD OF REVIEW

Each of these issues is subject to de novo review by the court. Oscar v. University Students Co-operative Assoc., 965 F.2d 783, 785 (9th Cir. 1992), cert. denied, 506 U.S. 1020 (1992). The court must assume that the factual allegations in the complaint are true, and must construe the complaint in a light most favorable to the plaintiff.

STATEMENT OF THE CASE

Nature of the Case

Individual voters, a judicial candidate and civil rights organizations in Los Angeles County brought this civil rights action to challenge the financing of judge elections as an unconstitutional barrier to their equal participation in judicial elections. The $100,000 cost of a viable judge campaign has become so high that it excludes many voters and qualified potential candidates from equal and meaningful participation in the electoral process.

Course of Proceedings and Disposition

On May 15, 1996, plaintiffs filed their complaint because the escalating costs to mount viable municipal and superior court judge campaigns act as a barrier to their meaningful participation in the elections process. CR1. Because the county and state created and maintained the exclusionary system for financing judge elections, it has become state action, and violates plaintiffs equal protection rights.

Plaintiffs also claimed that Los Angeles County's charge of $48,000 or more for a candidate's qualifications to appear in the Official Sample Ballot and Voter Information Pamphlet, which the County mails to every registered voter, violated their First Amendment rights to hear campaign speech.

Plaintiffs filed an Amended Complaint on June 19, 1996. CR3. The Los Angeles County Defendants, the Registrar of Voters and the Los Angeles County Commission, filed a Motion to Dismiss. CR8. Defendant Bill Jones, the Secretary of State, also filed a Motion to Dismiss. CR9.

The Honorable Dickran Tevrizian heard oral argument on the motions on August 12, 1996 and granted both motions that day. The district court characterized plaintiffs' claims as challenging the same "cost recovery system" which it and this court had addressed in Kaplan v. County of Los Angeles, 894 F.2d 1076 (9th Cir. 1990), cert. denied, 496 U.S. 907 (1990). The district court held that "Plaintiffs lack standing to challenge the complained of cost recovery system," reasoning that Kaplan also precluded finding any injury in fact to the voter plaintiffs. CR16 at 8-9.

On the basis of Kaplan, the court held that the voters had failed to state a claim. "[T]he cost recovery system associated with publication of election statements in pamphlets put out by local government agencies. . .do not violate Plaintiffs' First or Fourteenth Amendment rights." CR16 at 9. With respect to the County defendants' motion, the court's additional holding was that wealth, without more, is not a suspect classification. Id.

In dismissing the voter's claims against the Secretary of State, the district court stated that plaintiffs did not allege that the Secretary of State had specific involvement in charging for the pamphlet and that "the challenged actions are those of the remaining defendants." The court rejected plaintiffs' contention that Secretary Jones has any role in creating and maintaining the system of financing judge elections, for which he could be liable under the analysis the Supreme Court used in Bullock v. Carter, 405 U.S. 134, 149 (1972) and Morse v. Republican Party of Virginia, ____U.S.___, 116 S.Ct. 1186 (1996). CR17 at 7-8.

Plaintiffs filed this appeal on September 10, 1996.

Statement of the Facts

A voter's choice of candidates in nonpartisan judicial elections in Los Angeles County is significantly determined by the voters' and candidates' ability to contribute large sums to campaigns. Voters who want to launch a viable campaign for a judicial candidate they support must raise $100,000 if that candidate lacks personal wealth. It is now common for superior court winning campaigns to cost $100,000 or more. Closely contested municipal court races are also sky-rocketing in costs. Almost invariably, the candidate who raises the most money is the winner of the judge seat. In more than 70% of superior court contests from 1988 to 1994, winners have outspent losers. Similarly, in more than 70% of the municipal court races from 1988 to 1994, winners have outspent losers. CR3 at 31. {1}

Wealth Primary. The necessity to raise large sums to finance a viable superior or municipal court race makes wealth or access to wealth a determining factor in voters' full participation in identifying and supporting a candidate in a judge campaign. The "wealth primary," the process of amassing vast sums of campaign money in judge elections, has become institutionalized in Los Angeles County's judge campaigns. The largest sources of funds in judge elections comes from the candidate or his family. CR3 at 31. The second largest source of funds is contributions from lawyers and law firms. Some successful superior and municipal court candidates end their campaigns in substantial debt and are forced to continue to raise money while in office. CR3 at 32. These practices threaten the integrity and the appearance of integrity of the courts. Supporters of nonwealthy candidates are harmed because candidates whose policy preferences and economic background are close to their own experience, for whom they would vote, cannot afford viable campaigns.

A major financial barrier a superior court candidate's supporters face at the beginning of the campaign is the County's $48,000 or more charge for their candidate's qualifications to appear in the Official Sample Ballot and Voter Information pamphlet which the County mails to every registered voter. CR3 at 33.

For the individual voter plaintiffs, the wealth primary means that no matter how hard they work their candidate's campaign, in the absence of an amassing money, is likely to flounder. Plaintiffs Talt Coldiron and Delores Stephens worked hard to support their candidate, an experienced public defender, in the municipal judge race in the Southeast Judicial District in 1994. Each is retired from an hourly wage union job, and each lives on a fixed income. Neither had income adequate to contribute money to the campaign. Neither could participate effectively in the campaign because of their lack of wealth. CR3 at 21-24.

Each of the civil rights organizational plaintiffs-- the NAACP, the Multi-Cultural Collaborative, and the SCLC, -- has worked for years to improve fairness in the court system. Each organization has also struggled for decades to remove racial and wealth barriers to its members' effective participation in the political process. CR3 at 8-17.

From its inception, the NAACP in Los Angeles, has advocated to end racism and economic exploitation in voting and in the justice system. CR3 at 8-10. The SCLC's programs to resolve civil disputes and to assist women who are the victims of rape or domestic violence are necessitated by the failings of the courts in Los Angeles County. The NAACP's and the SCLC's programs directly link their members' ability to participate as effective voters and the members' ability to elect judges of their choice in Los Angeles County. CR3 at 12-14.

The California Public Interest Research Group (CALPIRG) speaks out to break the connection between campaign contributions and who gets elected -- the corrupting influence of money in politics. CALPIRG as an organization "disagrees with a system which allows wealth to corrupt the political process." CR3 at 14-15.

The Southern California Association for Democratic Action screens and endorses judge candidates in each campaign. Their ability even to locate and then to express support for candidates with whose views they agree is limited by the significant role of money in judge elections. CR3 at 15-17.

The members of each organization have a narrower group of candidates from which to choose because of the necessity for candidates and their supporters to raise large sums of money to deliver their campaign messages. The large sums have effectively barred the organizations' members from participating in the election process on an equal basis. Further, the organizations' messages of fairness in the courts and effective voter participation are rarely if ever heard in judge campaigns. CR3 at 9-17.

The necessity for candidates to contribute large sums of money to their own campaigns has virtually blocked a modest income candidate like plaintiff Charles Lindner from conducting a meaningful campaign. Mr. Lindner was unable to contribute large sums of his own or family money. CR3 at 29. Recently over 80% of personal or family contributions in judge elections were $50,000 or greater. CR3 at 32. Charles Lindner's inability to contribute these large sums meant that he could not effectively educate voters about his views which differed from his opponents' views. CR3 at 29.

California's Election Code requires the County to assemble, publish and distribute a voter information pamphlet along with the official sample ballot to each registered voter prior to the election. Los Angeles County permits judge candidates to purchase a statement of up to 200 words describing their qualifications to be published in the mandated pamphlet. Elections Code §§13309(a)(1) and (b). Since Charles Lindner was unable to afford the $48,775 statement for his qualifications to appear in the Sample Ballot, voters could not hear his message, which contrasted to Ronald Sohigian's, Lindner's opponent, whose could afford the fee and appeared in the Sample Ballot. CR3 at 29. The voters' right to vote for a candidate of their choice was abridged because they could not receive the qualifications of candidates without funds to pay the $48,775.

California's Constitution and Election Code created and extensively regulate the entire electoral process. The Secretary of State is California's chief elections officer and is charged with overseeing and enforcing the state's elections process. Cal. Const. Art.6, § 16(a). Los Angeles County laws and practices implement the state statutes. The Board of Supervisors and the County Registrar defendants are the officials who supervise judge campaigns and elections in Los Angeles County. CR3 at 7.

Plaintiffs seek a declaratory judgment that the exclusionary campaign finance system for judge elections is unconstitutional. Plaintiffs seek an injunction prohibiting the defendants from continuing the wealth primary in judge elections without providing alternative public funding to enable nonwealthy voters and candidates to participate equally in the judge election process.

SUMMARY OF ARGUMENT

Large amounts of money fuel the campaign finance system for electing judges in Los Angeles County to such an extent that the plaintiff voters and a candidate, who are without wealth, cannot enjoy the benefits of their constitutional rights to participate fully in the political process. Along with California's Constitution and nonpartisan election statutes and the County's implementation of those laws, the campaign financing system dominates judge elections. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620 (1991). The State and County are endorsing, adopting and enforcing this discriminatory system. The seemingly private financing system has become state action. Smith v. Allwright, 321 U.S. 649, 664(1953).

When a potential judge candidate lacks the large amounts of money critical throughout the campaign, voters' choices of candidates to support in a campaign and for whom to vote are limited. These limited choices and the limits on other participation mean that plaintiffs raise claims different from the equal protection claims in Kaplan v County of Los Angeles. Voters' equal protection rights to participate fully in the elections process are not narrowly constrained to registration and actual voting as Kaplan limited the wealthy candidate in that case.

As voters and a candidate, plaintiffs have First Amendment rights to participate in robust debate during judge elections; to associate for political objectives during campaigns; and to cast their votes effectively. The district court's failure to address these First Amendment claims is error.

Plaintiffs state fresh First Amendment claims concerning the County's $48,775 fee which excludes many superior court judge candidates' qualifications from the Sample Ballot pamphlet. The First Amendment protects voters' rights to receive County published campaign speech, even from candidates who cannot pay $48,775. Moreover, the Sample Ballot fee is so high that it operates to censor from voters' consideration the viewpoints of candidates without money to pay the fee. The district court's failure to weigh plaintiffs' interest in receiving campaign speech against the County's interest in saving costs is due to be reversed.

That voters' choice of candidates are liminted by the high costs of the campaigns is sufficient legal injury for standing. Both the individual voters and the organization plaintiffs allege sufficient harm to their rights to participate fully in the process of electing judges in Los Angeles County to meet standing requirements.


I. PLAINTIFFS HAVE AN EQUAL PROTECTION CLAIM BECAUSE THE STATE MAINTAINED CAMPAIGN FINANCE SYSTEM BURDENS VOTERS' RIGHTS TO PARTICIPATE IN THE ELECTORAL PROCESS.

The district court's holding that the plaintiffs had not stated a cause of action narrowly focused on the claims about the voters' pamphlet. Constitutionally important facts distinguish plaintiffs' broader challenge to the system of the financing of judge elections from Kaplan v. County of Los Angeles, 894 F.2d 1076 (9th Cir. 1990), cert. denied, 496 U.S. 907 (1990). Kaplan did not address the superior constitutional rights of voters, since there were no voter plaintiffs. Mr. Kaplan complained as a candidate about the costs to him for a statement in the voter pamphlet. None of the plaintiffs here is able to finance the normal costs of a judge campaign in contrast to Judge Kaplan who had access to vast wealth. He personally contributed $167,000 to his campaign and spent more than $211,000. CR10.

A. The Financing of Judge Elections Has Become an Integral Part of the Election Machinery and Is State Action.

Plaintiffs address how the financing of judicial elections has become state action subject to constitutional scrutiny although the district court only briefly mentioned the question. {2}

The constitutional standard for determining state action in voting cases is whether seemingly private action has become "an integral part of the election process." Smith v. Allwright, 321 U.S. 649 (1944). {3} In a series of Texas cases known as the "White Primary Cases," the Supreme Court broadened this constitutional standard to encompass seemingly private decisions which prohibited African Americans from voting in the Democratic primaries. After the Supreme Court struck down the Texas statute which flatly prohibited African Americans from participating in the Democratic primary, Nixon v. Herndon, 273 U.S. 536 (1927), Texas authorized the party executive committee to "in its own way determine who shall be qualified to vote or otherwise participate in such political party." When the Committee excluded African Americans, the Court struck down that rule, finding state action. Nixon v. Condon, 286 U.S. 73, 89 (1932).

The Democratic Party Executive Committee, without statutory authority, then adopted the same rule that only "white persons" could participate in the primary. Texas again argued that the practices were private action. The Supreme Court struck down that party rule in Smith v. Allwright, 321 U.S. 649 (1944). {4} The constitutional question was whether the state primary system had become "an integral part of the election process." Since under Texas law the party determined who could participate in a primary, the Court held that the party was a state actor. Id. at 663.

Even when a private association instituted the exclusionary practices, the Supreme Court, in Terry v. Adams, held that the private candidate selection process was an integral part of the state's election process. 345 U.S. 461 (1953). The Court concluded that the private Jaybird Democratic Association, which held a private pre-primary vote and determined who would appear as the Democratic candidate on the ballot, was an integral part of the process. {5}

California's nonpartisan judge elections are also exclusionary in a manner similar to the party conventions and closed primaries in the White Primary cases. Calif. Const. Art.2, §6. No large group of voters, except the wealthy, is able to choose who will be on the "primary" ballot. The California non-partisan "primary" is similar to the Jaybird primary. If a candidate gets more than 50% of the vote s/he wins the judge seat. Elections Code §8140.

The Supreme Court continues to use Terry's state action principle, particularly in public function cases. Relying on the state action principles in Terry, the Court held in Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991), that a private defendants' use of peremptory challenges in a civil case is state action and subject to constitutional restraints. 500 U.S. at 625-626. The Supreme Court used Terry in a Voting Rights Act case to determine that a $35 registration fee to participate in the Republican Party's convention to select its candidate for United States Senator was action by the State of Virginia. Morse v. Republican Party of Virginia, __ U.S. __, 116 S.Ct. 1186 (1996).

Terry means that what may appear to be private action becomes state action when it has a role in determining which voters and candidates can participate in the full panoply of the election process. California's system for funding judge elections meets the requirements for state action as set forth in Edmonson. It is California's Constitution which prescribes that judges shall be elected. Voters' and candidates' rights to participate in the judge elections process exist because of the state's election structure. {6} Edmonson, 500 U.S. at 618-619. California's Constitution, Art. 6, §16(b). The Constitution requires superior court judge candidates to run countywide and drives up their supporters' costs to reach Los Angeles County's 3.6 million voters. Id. Money so dominates judge elections that voters without money are effectively denied the equal protection of the laws governing their right to vote as grossly as malapportioned districts denied those rights in Baker v. Carr, 369 U.S. 186 (1962).

The election process is so controlled by California's statutes and Los Angeles County's regulations that the practices surrounding the financing of judicial campaigns are governmental in character. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. at 620. The public election process "is an exclusively public function.Ó Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978).

It is the state created campaign process in which the voters suffer injury. Id. {7} Los Angeles County's political processes leading to nomination and election are not equally open to participation by nonwealthy voters. Plaintiffs offer new evidence that because of their lack of wealth they have less opportunity "to participate in the political process and to elect . . .[judges] of their choice." See, Garza v. County of Los Angeles, 918 F.2d 763,771 (9th Cir. 1990) cert. denied, 498 U.S. 1028 (1991), quoting, White v. Regester, 412 U.S. 755,766 (1973). This is an equal protection injury recognized in Garza. Id.

California's and the County's laws and practices which regulate the elections process are so inextricably intertwined with the wealth primary that the state and county defendants are actively sanctioning the wealth primary. Voters' choices are immediately limited when the high costs of campaigns discourage nonwealthy candidates from running. Supporters of a candidate must amass big money before the official campaign begins because the County requires the $48,000 fee for the pamphlet when a candidate files nomination papers. CR3 at 29.

In Los Angeles County, it is wealthy candidates and their backers who wield "the power to choose a quintessential governmental body. . ." Georgia v. McCollum, 505 U.S.at 54. The previously described financing system in Los Angeles County operates as did the Jaybird Association in Terry, as "an integral part of the election process" and thus becomes state action.

B. The State and County's Practices Support the Wealth Primary and Discriminate Against Nonwealthy Voters, Violating Equal Protection Guarantees.

1. Discrimination Against Voters on the Basis of Wealth States is an Equal Protection Violation.

The costs that the plaintiffs face as voters and a candidate dwarf the fees which the Supreme Court has found violated equal protection voting rights in prior cases. In 1966 the Court ruled that a $1.50 poll tax in Virginia state elections violated equal protection. Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966). The Court held that a state violates equal protection "whenever it makes the affluence of the voter or payment of any fee an electoral standard." Id. at 666.

When political parties in Texas set qualifying fees which ranged from $150 to $8900, the Court struck them down because they were so high as to exclude serious candidates. Bullock v. Carter, 405 U.S. 134 (1972). The high fees gave the Texas electoral system "a patently exclusionary character." Id. at 143. California's $701 filing fee violated equal protection because the effect was both to exclude serious candidates and to limit voters' choices. Lubin v. Panish, 415 U.S.709 (1974).

The much larger cost of a viable judge campaign has the same type of exclusionary effect. The injury falls more heavily "on less affluent voters." Candidates without wealth "are in every practical sense precluded from seeking . . .[office], no matter how qualified they might be, and no matter how broad or enthusiastic their popular support." Bullock, 405 U.S. at 143. Like the exclusionary fees in Texas, the reality in Los Angeles County is that the financing system "falls with unequal weight on voters, as well as candidates, according to their economic status." Id. at 144.

Plaintiffs have shown the system of financing judge elections gives the affluent the power to determine who will run and who will win. Plaintiffs have demonstrated that the campaign finance system for judge elections is permeated by state statutes and practices which carry out state statutes.

The court's specific holding that plaintiffs had not implicated the Secretary of State, who is charged with enforcing the elections laws, is due to be reversed.

2. The Equal Protection Clause Guarantees Voters' Rights Beyond Those Relied on in Kaplan.

The right to vote goes beyond a citizen's right to register and to select a candidate in the voting booth. The Constitution protects voting at all stages of the process even if the particular activity "invariably, sometimes, or never determines the ultimate choice of the representative." United States v. Classic, 313 U.S. 299, 318 (1941). Kaplan's narrow construction of the equal protection clause should be reconsidered. Plentiful case law holds that the equal protection clause applies to a much broader spectrum of election and campaign activities.

Kaplan did not address the superior constitutional rights of voters. Because "voters can assert their preferences only through candidates or parties or both," the Court has removed barriers to voters' having meaningful choices on the ballot. Anderson v. Celebrezze, 460 U.S. 780, 786-787 (1983); Lubin v. Panish, 415 U.S. 709,716(1974). Lubin protected voters' right to have actual choices between candidates, and forbade qualifications which limit those choices on the basis of dollars. Id. Terry dealt with voters' rights to participate in choosing who would represent the party on the primary ballot. 345 U.S. at 469.

The voters' claim that their votes are worth less than those of affluent voters in the judge campaign finance system are very similar to the equal protection claims in the malapportionment cases. In Baker v. Carr, the Supreme Court held that voters whose votes had been diluted by the legislature's reapportionment had an equal protection claim. 369 U.S. 186 (1962). "The right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U.S. 533, 555(1964).

The Court has repeatedly struck down devices such as multi-member districts and gerrymandering which dilute the weight of one person's vote. See, White v Regester, 412 U.S. at 766 (multi-member districts canceled out or minimized the voting strength of racial groups); Davis v. Bandemer, 478 U.S. 109,124,132(1986) (equal protection forbids arranging the electoral system to "consistently degrade. . .a group of voters' influence on the political process as a whole").

Recent circuit court decisions have also applied the Equal Protection Clause to insure voting rights beyond ballot access and casting one's vote. The Second Circuit in Schulz v. Williams, 44 F.3d 48,60 (2d Cir. 1994), found an equal protection violation where New York's law required local boards of elections to supply voter lists free of charge only to established political parties. Because independent or minority parties were not accorded the same opportunity, their rights were abridged. The Sixth Circuit found an equal protection violation in Ohio's statute prohibiting nonparty candidates from having the designation "Independent" placed on the ballot. The statute placed "unequal burdens on independent and third-party candidates." Rosen v. Brown, 970 F.2d 169,177-78(6th Cir. 1992). {8}

These cases demonstrate that the equal protection clause protects more than just the simple right to cast a vote or the candidate's right to get on the ballot. Kaplan's narrow equal protection analysis is inconsistent with this broad case law.

C. The Voter Pamphlet Fee Limits Voters' Choices and Violates the Equal Protection Clause.

The district court's decision that Kaplan's equal protection analysis precludes the voters' and a nonwealthy candidate's equal protection claim concerning the voter pamphlet is due to be reversed. Unlike Judge Kaplan, the plaintiffs charge that when modest income candidates, like Charles Lindner, cannot afford the pamphlet fee, the County limits voters' opportunity to vote for a candidate of their choice. Kaplan, at 1082. The high voter pamphlet fee is well known in the legal community, the source of judge candidates. CR3 at 35. That high cost discourages qualified candidates and foreshortens the choice of candidates on the ballot like the filing fees in Lubin and Bullock. 415 U.S. at 716.

When Los Angeles County assembles, publishes and distributes the Official Ballot pamphlet, it appears to approve the statements of qualifications. Geary v. Renne, 914 F.2d 1249, 1252 (9th Cir. 1990), cert. denied sub nom Corwin v. Mark, 115 S. Ct. 53 (1994). In the March 1996 judge elections, the qualifications of only two of ten superior court candidates appeared in the pamphlet. CR3 at 34. This County document constrained voters' choices based on the ability of the candidate to pay the $48,775. Los Angeles County's omission of the qualifications of most candidates in the voters' pamphlet, which is designed to educate voters, instead grossly misleads them.

In addition, the voters' pamphlet statute creates major financial barriers for nonwealthy voters to get their candidate's message before the County's registered voters. Los Angeles County requires that the full fee for the candidate's statement be paid at the time a candidate files nomination papers. Elections Code §§13307(a)(1). Nonwealthy voters who wish to support a candidate face this up front cost before serious campaigning and, thus, fundraising have begun. CR3 at 33.

Whether a candidate's qualifications appear in the Official Ballot pamphlet is a significant determinant of that candidate's likely success. Each candidate who purchased a statement in the March 1996 election won. CR3 at 34. In superior court races from 1976 through 1994, where at least one candidate purchased a statement, 69% of those who purchased a statement won. Only 11% of those who did not purchase a statement won.

Plaintiffs are not arguing that equal protection guarantees voters that their chosen candidate will win. But here the appearance of a candidate's qualifications in the pamphlet is a major determinant of the outcome of the election. Thus, the County has diluted the weight of the vote of those who support a nonwealthy candidate by closing a determinant of electoral success to all but candidates with access to great wealth.

Each part of the "machinery for choosing officials becomes subject to the Constitution's restraints." Smith v. Allwright, 321 U.S. at 664 (J. Clark concurring.) In summary, the district court's adoption of Kaplan's holding that the equal protection clause protects only the narrow actions of a candidate's getting on the ballot should be reversed .

II. PLAINTIFFS HAVE STATED A CAUSE OF ACTION UNDER THE FIRST AMENDMENT.

A. The Defendants' Maintenance of the Wealth Primary Burdens Plaintiffs' Freedom of Speech.

The First Amendment affords its fullest protection to plaintiffs' rights to robust and open discussion of issues in election campaigns. Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 1850 (1992); Eu v. San Francisco County Democratic Cent. Committee, 489 U.S. 214, 223(1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 271 (1971).

In the county wide judge campaigns, robust discussion depends heavily on monetary expenditures. Funds in judge campaigns cover costs of various forms of speech: printing and disseminating the flyers, brochures, yard signs, slate mailers, and candidate statements. The wealth primary creates an imbalance in voters' and candidates' ability to speak in elections. This imbalance results in an electorate deprived of opposing viewpoints about issues and candidate qualifications. This high cost to our system of democracy conflicts with the state's interest in an informed electorate. Anderson v. Celebrezze, 460 U.S. 780, 798 (1983).

B. The Defendants' Laws and Practices Violate Plaintiffs' Rights to Freedom of Association.

The voters' right to associate with others who share their views on issues in judge elections encompasses the right to select a "standard bearer who best represents [their] ideologies and preferences." Eu v. San Francisco Co. Democratic Cent. Comm., 489 U.S. at 224. Plaintiffs complaint describes the barriers the wealth primary erects to their associating, identifying a candidate and mounting an effective campaign on his or her behalf. CR3 at 17-29.

Plaintiff voters who share common ideologies cannot promote their candidate "at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community." Eu at 224, quoting, Tashijan v. Republican Party of Connecticut, 479 U.S. 208, 216 (1986).

The wealth primary heavily burdens low and modest income plaintiffs' associational rights to place any candidate on the ballot. The district court was required to appraise the fairness of such practices when their effect is to discriminate against groups of voters "whose members share a particular . . .economic status." Anderson v. Celebrezze, 460 U.S. at 792-793, n.15.

In Williams v. Rhodes, 393 U.S. 23, the Court identified an additional distinct First Amendment right: "the right of qualified voters, regardless of their political persuasion, to cast their votes effectively." That is, laws which deny groups "the fruits of their associationÐthe political impactÐrun afoul of the First Amendment no less than ones which preclude association itself." L. Tribe, American Constitutional Law at 1103.

Numerous subsequent cases have articulated this distinct right. Anderson v. Celebrezze, 460 U.S. at 787-88 (rights of voters to cast their votes effectively); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)(voters' rights "to cast their ballots effectively."); Erum v. Cayetano, 881 F.2d 689, 693 (9th Cir. 1989)("rights of qualified voters to cast their votes effectively."); Davies v. Grossmont Union High School Dist. 930 F2d 1390, 1397 (9th Cir. 1991), cert. denied, Grossmont Union High School Dist. v. Davies, 501 U.S. 1252 (1991)(right of people to elect representatives of their own choosing); Dixon v. Maryland State Administrative Bd. of Election Laws 878 F2d 776 (4th Cir 1989) (Maryland's $1.50 fee to include write-in candidates on the list of official candidates and to publish the votes received violated voters' rights to cast an effective vote.)

The district court's rejection of plaintiffs' First Amendment claims is due to be reversed.

III. PLAINTIFFS STATED A FIRST AMENDMENT CLAIM ABOUT THE EXCLUSION OF CANDIDATE QUALIFICATIONS FROM THE SAMPLE BALLOT WHEN THE CANDIDATE CANNOT PAY THE $48,775 COSTS.

The district court's ruling that Kaplan v. County of Los Angeles, precludes the voters' First Amendment claim about financing candidate statements in the Sample Ballot failed to consider the voters' right to hear campaign speech.

A. Voters Have a Right to Receive County Sponsored Candidate Qualifications in the Sample Ballot.

Kaplan implied that candidates were the principle, if not the sole, users of the pamphlet as a public forum. {9} The voters show that they are at least equal, if not the principle, intended beneficiaries of the pamphlet. A decision on the voters' First Amendment claim requires weighing the rights of voters to receive campaign speech.
Robust debate about candidate qualifications depends not only on a constitutional right to speak without government interference. The corollary right is the right to receive information during the public debate. That voters have a significant interest in hearing election speech seems clear. Supreme Court opinions afford special protection to such speech because having an educated electorate is essential to both the purposes of the First Amendment and to the idea of American democracy.

The Supreme Court articulated this right in Eu v. San Francisco Co. Democratic Comm., 489 U.S at 222-23. The Eu Court held that a ban on party endorsements of candidates in primaries directly affects First Amendment protected speech. Id. The Court noted that "debate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution." Id. at 223. The Court thus found that the ban "hamstrings voters seeking to inform themselves about the candidates and the campaign issues." Id. The Ninth Circuit in Eu found the ban "patently infringe[d]. . .the right of party members to an unrestricted flow of political information. San Francisco County Democratic Central Comm. v. Eu, 826 F.2d 835 (9th Cir. 1987).

The Court, in First National Bank v. Bellotti, 435 U.S. 765 (1978), also relied upon the voters' right to hear speech when the Court held that corporations had a right to present their opposition to a referendum. The Court stated that the "First Amendment protects interests broader than those of a party seeking their vindication" and includes the interests of society in learning the position of the bank on the issue. Id. at 776. See also, Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir 1995), Daily Herald Co. v. Munro, 838 F.2d 380, 389 (9th Cir. 1988), (J. Reinhardt, concurring)(voters' rights to hear campaign speech).

The district court's failure to hold that voters' have a right to hear the County published election speech and that the cost of appearing in the pamphlet infringes that right require a reversal of the court's First Amendment ruling.

B. The Ballot Pamphlet Fee Operates to Regulate Which Viewpoints Voters Can Receive.

Unlike Judge Kaplan, plaintiffs claim that the voter pamphlet fee regulates which viewpoints voters can receive. The district court failed to closely examine whether the local fee operates to regulate content or viewpoints of political speech in public forums. McIntyre v. Ohio Elections Com'n, 115 S.Ct. 1511, 1519 (1995); City of Ladue v. Gilleo, __U.S.__, 114 S. Ct. 2038 (1994)Ladue v. Gilleo, 512 U.S.43, 114 S.Ct. 2038 (1994); Forsyth County, Ga. v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395, 2402-2403(1992), Crawford v. Lungren, 96 F.3rd 380, 384 (9th Cir. 1996).

The Forsyth County Court examined how the parade permit ordinance was applied and concluded that the county administrator's broad discretion in setting the fee meant that the decisions were arbitrary. Id. at 2402. The danger even of possible censorship in assessing the fee was critical to the Court's analysis. Id. at 2403. The Court found that the fee would depend on the administrator's estimate of the likely amount of hostility to the demonstrators. Thus, the operation of the fee was not content neutral and violated the First Amendment.

The voter pamphlet fee also results in viewpoint discrimination. The viewpoints heard by voters are effectively censored by the $48,775 cost to the candidate. Voters hear the qualifications and viewpoints of wealthy candidates. A voter in search of a candidate with whom s/he agreed could not receive Mr. Lindner's message because he could not afford the $48,775 fee. CR3 at 132.

The voter pamphlet fee operates as viewpoint discrimination and is subject to exacting scrutiny. McIntyre v. Ohio Elections Com'n, 115 S.Ct. at 1518.

C. The Presence Of Voter Plaintiffs Requires Consideration Of The State's Interests in Educating the Electorate.

Articulating the state's interest is the first step in applying the compelling or significant state interest standard. It is the foundation to which the court applies the question of whether the device abridging speech is narrowly tailored. The district court's importing from Kaplan the County's interest in publishing at low cost without addressing the voters' rights is error. {10}

The interest in Kaplan conflicts with the state's interest articulated in Geary v. Renne, a subsequent First Amendment case about the voter pamphlet. The Geary court described the state's interest in the pamphlet differently:

The state has a proper interest in ensuring the integrity of the election process. The state wants to provide accurate and sensible information to its voters, enabling them to make the most informed use of their franchise. These are significant government interests recognized by the Supreme Court.

914 F.2d at 1253.

It is the Geary interest that is supported by precedent. Geary acknowledged the importance of voters' receiving campaign information to exercise their right to vote. "In creating the voters' pamphlet the government. . .intended to provide clear and basic statements able to assist the voter in the exercise of her franchise." Id. The Supreme Court has made it clear that states have a compelling interest "in fostering an informed electorate." Eu v. San Francisco County Democratic Cent. Committee, 489 U.S. at 228 citing Tashjian v. Republican Party of Connecticut, 479 U.S. at 220; Anderson v. Celebrezze, 460 U.S. at 796. See also McIntyre v. Ohio Elections Com'n, 115 S.Ct. at 1518, 1519 (1995)(Ohio's interest in informing the electorate).

The County defendants imported wholesale the state interest analysis and the ten year old facts from Kaplan. The defendants have offered no proof that the dominant purpose is keeping the costs low. The court totally failed to weigh whether the County's concern about scare resources unlawfully burdened the voters' First Amendment rights. Rosenberger v. Rector & Visitors of the University of Virginia, ___U.S. ___, 115 S.Ct. 2510, 2519 (1995) ("government cannot justify viewpoint discrimination among private speakers on the economic fact of scarcity"). The fact that several other counties include judicial candidate statements without charge, including San Francisco County, which also has a large voter population, calls into further question this articulation of the state's interest. {11}

The court below failed to conduct the correct constitutional inquiry: to weigh the state's interests against the burdens to plaintiffs' First Amendment rights; to ask separately whether the fee structure itself is a reasonable burden on those interests; and to determine if the burden is narrowly tailored.

D. Plaintiffs Have Stated a Claim About the Reasonableness of the $48,775 Fee for the Candidate's Statement.

The district court's reliance on Kaplan led to two errors on the issue of reasonableness. First, the court erred by collapsing the inquiry of whether plaintiffs had stated a cause of action about the reasonableness of the fee with the factual determination of reasonableness. Second, the court committed error in assuming, without proof, that the Kaplan facts of ten years ago apply now.

1. Plaintiffs have stated a claim about the reasonableness of the fee under the Supreme Court's decision in Forsyth County v. Nationalist Movement.

The 1992 Supreme Court decision in Forsyth County v. Nationalist Movement, 112 S.Ct. 2395, demonstrates that plaintiffs have stated a First Amendment cause of action. In Forsyth County, the Supreme Court accepted certiorari on the question of whether a Georgia county could charge more than a nominal fee for a private group to demonstrate on the courthouse steps. The Court, however, decided that the County's permit ordinance was not content neutral, and did not reach the fee question. Id. at 2404-2405.

The dissenting judges in the Eleventh Circuit had relied in part on Kaplan for the principle that the County could charge the actual costs of the administration of the ordinance, including police protection. Nationalist Movement v. City of Cumming, 913 F.2d 885 (11th Cir. 1990), Nationalist Movement v. City of Cumming, 913 F.2d 885, 896 (11th Cir. 1990); and, 934 F.2d 1482, 1493 (11th Cir. en banc, 1991). Although the Kaplan position was before the Supreme Court in the parties' briefs, the Court did not adopt that view. 112 S.Ct. at 2405-2408. See 1992 WL 525738 at 14, 36; 525740 at 35-36.

Plaintiffs' First Amendment claim, here, is stronger and more compelling than the claims in Forsyth County, because plaintiffs are low and modest income voters whose right to receive candidate qualifications is burdened by the pamphlet's fee. Plaintiffs' claim, here, is similar to the position of the Eleventh Circuit. 913 F2d. at 891 and 934 F2d. 1482 en banc. On its face, the large fee for the candidate's statement is exclusionary.

Courts have repeatedly found a First Amendment claim stated where the fee's the magnitude does not even come close to the more than $48,000 at issue here. See, Murdock v. Com. of Pennsylvania, 319 U.S. 105 (1943)($1.50 per day); and, Cox v. New Hampshire, 312 U.S. 569 (1941)($300). In Baldwin v. Redwood City, 540 F2d 1360, 1372 (9th Cir. 1976), cert. denied sub nom Leipzig v. Baldwin, 431 U.S. 913 (1977), the Ninth Circuit struck down a one dollar inspection fee and a five dollar removal deposit required to post political signs.

2. The Defendants Made No Factual Showing of Reasonableness.

The County made no showing that current fees cover only administrative costs or that less restrictive alternatives were unavailable. CR8. Apparently both the County and the court relied on the now 10 year old evidence from Kaplan. There was no consideration of alternatives -- such as San Francisco's system to waive pamphlet fees if the requisite signatures are gathered. See Geary v. Renne, 914 F.2d at 1251. Nor did the County consider a sliding fee scale according to the candidate's ability to pay. See, for example, Nationalist Movement v. City of Cumming, 934 F.2d at 1493, (Tjoflat, J. dissenting)(consideration of ability to pay).

The fee statute's "exemption" of indigents from paying the fee in advance is not a workable alternative which can increase voters' meaningful choices. The County's statutory right to bring a collection action for the fee only postpones collecting the fee until after the election. Elections Code §13309(a) and (f). This substantially diminishes any positive incentives for using the exemption. East Bay Municipal Utility District v. Superior Court of Alameda Co., 23 Cal. 3rd 839 (Cal. 1979). For modest income candidates like Charles Lindner, who will not qualify for the indigent "exemption," this alternative is of no assistance.

In summary, Kaplan never decided and left open the question of the constitutionality of fees for low income voters to exercise their First Amendment rights. 894 F.2d. at 1081. The circuits are split about whether a fee can be more than "nominal." The significant differences in plaintiffs' claims, compared to those in Kaplan, mean that plaintiffs have stated a fresh and unsettled claim.

IV. INDIVIDUAL VOTERS OF MODEST MEANS OR INTERESTED
ORGANIZATIONS HAVE STANDING TO PROTECT THE PARTICIPATORY
INTERESTS INJURED BY THE WEALTH PRIMARY.

In holding that the voters' lack injury for standing, the district court referenced this court's opinion in Kaplan v. County of Los Angeles. CR16 at 8. Kaplan had no discussion of the legal interests of voters. The district court's reasoning that the plaintiffs' claims centered on the voter pamphlet and were neither "particularized nor offensive to obtaining a voluntary statement of qualifications in a voter pamphlet," was error.

The district court erred in adopting the County defendants' narrow view that plaintiffs' claims could not be individuated from those of the general voting public, with respect to their interests in the information in the voters' pamphlet. NAACP v. City of Richmond, 743 F.2d 1346 (9th Cir., 1984). The Court did not view plaintiffs' allegations in their entirety or as a whole. The voter pamphlet claim is but one part of plaintiffs' Complaint. CR16 at 9.

To the contrary, the Complaint deals with the elimination of the "wealth primary" in all its aspects. It specifically describes distinct and palpable voting rights injury to the interests of several groups, and especially to individual voters of the ilk of the representative plaintiffs. The injuries alleged are not merely abstract, conjectural or hypothetical. See, Allen v. Wright, 468 U.S. 737, 751-752 (1984)

Plaintiffs, as individual voters of modest means and as organizations directly interested in promoting the effective exercise of voting rights for those same persons, are appropriate persons to protect the participatory interests injured by the wealth primary practices--requiring big money for effective participation. Plaintiffs oppose practices which not only restrict a candidate's ballot access, but also impair voters' rights to be fully informed about judicial candidates. Additionally, the high campaign costs impair voters' right effectively to elect candidates of their own choosing and ilk. The costs also discourage their participation in the process of electing or confirming judges. CR3, at 2-4, 8-28, and 34-36.

The voter plaintiffs who vigorously advocate for justice in the courts for low income and minority litigants describe in the Amended Complaint how their inability to make large campaign contributions to fund the campaigns of lawyers with whose views they agree dilutes the weight of their vote. CR3 at 17-21.

Judged by the three constitutional standing standards, plaintiffs' allegations of injury should have easily withstood the motion to dismiss. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th Cir.1987) .

A. Plaintiffs Suffer Injury in Fact.

For generations now, federal courts have recognized voters' interests in protecting their own voting rights, especially those addressed to exclusion, equitable participation, dilution, and the burdening, intimidation and/or chilling of the exercise of those rights. These long-standing legal interests have been brought to court under both protective statutes and the Civil War constitutional amendments.

The constitutional interests of non-wealthy voters were articulated in the case striking down Virginia's poll tax. When the Court held in Harper v. Virginia Board of Elections, 383 U.S. 663,668(1966), that "[w]ealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process", it recognized the same legal injury plaintiffs assert here. Just as the poll tax was viewed as an instrument to exclude participation by non-wealthy voters, plaintiffs' complaint describes similar obstacles based on wealth.

That state limits on the right to participate in a broad range of campaign activities is legal injury was underscored, most recently in Virginia, in Morse v. Republican Party of Virginia, 116 S.Ct. at 1216. Although the Court did not review the voters' constitutional claims in Morse, it ultimately granted statutory protection under the Voting Rights Act because of the close, clear and historic overlap of the statutory and constitutional purposes. Id. 1211-1212. Redress for the injuries described in Morse must also be available to voters and organizations made up of voters or serving their direct civil rights interests. Id. at 1216.

B. Plaintiffs Allege a Causal Connection between the Wealth Primary and Their Voting Rights Injuries.

The complaint also makes a clearly traceable causal connection between the alleged injury and the defendant's challenged conduct. Defendants' statutory oversight of the wealth-based system is not the result of the independent action of some absent third party. Significant wealth requirements of the elections are largely attributable to county wide elections and the abiding necessity to inform and motivate such large constituencies. The specific, early-campaign costs required for participation in the voter pamphlet, are not required by the state law, but are voluntarily imposed by the Los Angeles County's Board of Supervisors, without regard to its effect of the voting rights of less affluent voters and candidates.

The Morse Court's finding of a nexus between the convention fee and the harm to voters is the same the plaintiffs claim here. Morse exemplified the nexus between the election officials' exclusionary convention fee and the harm to the voters' rights:

By limiting the opportunity for voters to participate in the Party's convention, the fee undercuts their influence on the field of candidates whose names will appear on the ballot, and thus weakens the 'effectiveness' of their votes cast in the general election itself. Id. at 1199.

C. The Relief Requested Is Likely to Redress or Prevent the Voters' Injury.

The relief being sought has a reasonable likelihood of redressing the injury. Voters represented by associational plaintiffs will exercise their right to vote in the same way as the other voters in Los Angeles County after the wealth primary is dismantled. Campaign costs will come down and means will be created for more voter inclusion. This is not merely speculative. More than the required significant possibility, it is a highly probable consequence.

Because of the foregoing, the associational plaintiffs have standing to bring their claims against named defendants.

D. Charles Lindner Has Standing as a Candidate and Voter.

The candidate Charles Lindner could not meet the financial requirements imposed upon him by the wealth primary; he could not raise the ten of thousands of dollars. Mr. Lindner's campaign suffered injury, since he could not pay the fee to have his qualifications appear in the Sample Ballot. The wealth primary denied Charles Lindner the opportunity to compete meaningfully with his much better financed opponent. Mr. Lindner has a personal stake as an active participant in the campaign to meet the standing requirements. Buckley v. Valeo, 424 U.S. 1, 11-12 (1976).

CONCLUSION

Plaintiffs have demonstrated that their Amended Complaint is more than sufficient to state causes of action under the Equal Protection Clause and under the First Amendment to the United States Constitution. They have shown that as voters, a candidate and civil rights organizations they suffer sufficient injury to challenge the judge campaign financing system. The district court's decision is due to be reversed.

Statement of Related Cases

Plaintiffs counsel know of no pending case related to this case.

Respectfully submitted,

Of Counsel:

Abigail Turner, John C. Bonifaz, National Voting Rights Institute
Dennis C. Hayes, Willie Abrams, NAACP
Joseph Duff
Roy Ulrich

Attorneys for Plaintiffs

Assisted By:
Stacie L. Fatka
Jeffrey Klein
Harvard University Law School

FOOTNOTES

{1} The high costs of judge campaigns in Los Angeles County are well documented in a 1995 report of the non-partisan California Commission on Campaign Financing, The Price of Justice, A Los Angeles Area Case Study in Judicial Campaign Financing. CR3 at 30.

{2} In the Order granting the State Defendant's Motion to Dismiss, the court stated that plaintiffs' "generalizations" about state action from principles in Bullock and Morse were not applicable to the present case. CR 17 at 7-8.

{3} This standard first appeared in U.S. v. Classic, 313 U.S. 299,318 (1941). See detailed description of history of standard in Morse v. Republican Party of Virginia, 116 S.Ct.1186, 1201-1202 (1996).

{4} The first time the Supreme Court heard a challenge to this rule it did not find state action. Grovey v. Townsend, 295 U.S. 45 (1935). Texas was successful in its argument that since the state Democratic convention determined the party's membership rules, it was not state action.

{5} "The Jaybird nominee did not receive any form of automatic ballot access. He filed individually as a candidate in the Democratic primary, paid the filing fee, and complied with all requirements to which other candidates were subject." Terry at 486-487(Minton, J. dissenting).

{6} California also directly regulates campaign finance by enforcing strict disclosure of all contributors and expenditures in a campaign statement to be filed periodically by each judicial candidate. Cal. Gov't . Code § 84200 (West 1997).

{7} See also, Georgia v. McCollum, 505 U.S. ___, 53 (1992) ("[T]he courtroom setting in which the peremptory challenge is exercised intensifies the harmful effects of the private litigant's discriminatory act and contributes to its characterization as state action.")

{8} The Second Circuit's decision in Albanese v. Federal Elections Commission, 78 F.3d 66 (2d Cir. 1996), cert. denied, __ U.S. __, 117 S. Ct. 66 (1996), was incorrectly decided because it narrowly limited the scope of the equal protection clause to whether a person could vote in an election.

{9} "These costs are proportionally allocated among those utilizing that public forum." 894 F.2d at 1081.

{10} The Fourth Circuit, ruling on the constitutionality of Maryland's $150 fee to include write-in candidates' names in newspapers and other places before the election, stated that voters' rights, in addition to candidates', must be considered. Dixon v. Maryland State Administrative Bd. of Election Laws, 878 F.2d 776 (4th Cir. 1989).

{11} Other states which provide voter pamphlets charge nothing or very little for judicial candidates' statements. Superior Court judge candidates pay $150 in Alaska for space in the pamphlet. Alaska. Stat. §15.58.060. Oregon judge candidates pay $300, Or. Rev. Stat. §251.6195. In Washington candidates for county judge races pay no fees for inclusion in the voter pamphlet. Wash. Rev. Code §29.81A-070.

TABLE OF AUTHORITIES

Cases

Albanese v. Federal Elections Commission, 78 F.3d 66 (2d Cir. 1996), cert. denied, __ U.S. __, 117 S. Ct. 66 (1996) 20
Allen v. Wright, 468 U.S. 737, 751-752 (1984) 35
Anderson v. Celebrezze, 460 U.S. 780, 786-787 (1983) passim
Baker v. Carr, 369 U.S. 186 (1962) 15
Baker v. Carr,369 U.S. 186 (1962) 19
Baldwin v. Redwood City, 540 F2d 1360, 1372 (9th Cir. 1976), cert. denied sub nom Leipzig v. Baldwin, 431 U.S. 913 (1977) 32
Buckley v. Valeo, 424 U.S. 1,11-12 (1976) 38
Bullock v. Carter, 405 U.S. 134, 149 (1972) passim
Burson v. Freeman, 504 U.S. 191, 112 S.Ct. 1846, 1850 (1992) 23
Daily Herald Co. v. Munro, 838 F.2d 380, 389 (9th Cir. 1988) 27
Davies v. Grossmont Union High School Dist. 930 F2d 1390, 1397 (9th Cir. 1991), cert. denied, Grossmont Union High School Dist. v. Davies, 501 U.S. 1252 (1991) 25
Davis v. Bandemer, 478 U.S. 109,124,132(1986) 19
Dixon v. Maryland State Administrative Bd. of Election Laws 878 F2d 776 (4th Cir 1989) 25, 29
East Bay Municipal Utility District v. Superior Court of Alameda Co., 23 Cal. 3rd 839 (Cal. 1979) 33
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 620 (1991) 10, 14, 15
Erum v. Cayetano, 881 F.2d 689, 693 (9th Cir. 1989) 25
Eu v. San Francisco County Democratic Cent. Committee, 489 U.S. 214, 223(1989) 23, 24, 26, 30
Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978) 15
Forsyth County v. Nationalist Movement, 112 S.Ct. 2395 (1992) 28, 31, 32
Garza v. County of Los Angeles, 918 F.2d 763,771 (9th Cir. 1990) cert. denied, 498 U.S. 1028 (1991) 16
Geary v. Renne, 914 F.2d 1249, 1252 (9th Cir. 1990), cert. denied sub nom Corwin v. Mark, 115 S. Ct. 53 (1994) 21, 29, 33
Georgia v. McCollum, 505 U.S.at 54 16
Grovey v. Townsend, 295 U.S. 45 (1935) 13
Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) 17, 36
Hong Kong Supermarket v. Kizer, 830 F.2d 1078, 1081 (9th Cir.1987) 36
Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979) 25
Kaplan v. County of Los Angeles, 894 F.2d 1076 (9th Cir. 1990), cert. denied, 496 U.S. 907 (1990) passim
Lubin v. Panish, 415 U.S.709 (1974) 17, 19, 21
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) 36
McIntyre v. Ohio Elections Com'n, 115 S.Ct. at 1518 28, 30
Monitor Patriot Co. v. Roy, 401 U.S. 265, 271 (1971) 23
Morse v. Republican Party of Virginia, ____U.S.___, 116 S.Ct. 1186 (1996) passim
NAACP v. City of Richmond, 743 F.2d 1346 (9th Cir., 1984) 34
Nationalist Movement v. City of Cumming, 934 F.2d at 1493 33
Nixon v. Condon, 286 U.S. 73, 89 (1932) 13
Nixon v. Herndon, 273 U.S. 536 (1927) 12
Oscar v. University Students Co-operative Assoc., 965 F.2d 783, 785 (9th Cir. 1992), cert. denied, 506 U.S. 1020 (1992) 2
Reynolds v. Sims, 377 U.S. 533, 555(1964) 19
Rosen v. Brown, 970 F.2d 169,177-78(6th Cir. 1992) 20
Rosenberger v. Rector & Visitors of the University of Virginia, ___U.S. ___, 115 S.Ct. 2510, 2519 (1995) 30
San Francisco County Democratic Central Comm. v. Eu, 826 F.2d 835 (9th Cir. 1987) 27
Schulz v. Williams, 44 F.3d 48,60 (2d Cir. 1994) 20
Smith v. Allwright, 321 U.S. 649, 664(1953) 10, 12, 13, 22
Tashijan v. Republican Party of Connecticut, 479 U.S. 208, 216 (1986) 24, 30
Terry v. Adams 345 U.S. 461 (1953) 13
United States v. Classic, 313 U.S. 299, 318 (1941) 18
White v. Regester, 412 U.S. 755,766 (1973) 16, 19
Williams v. Rhodes, 393 U.S. 23 24

Statutes

28 U.S.C. §1291 1
28 U.S.C. §1331 1
Alaska. Stat. §15.58.060 30
Cal. Gov't . Code § 84200 (West 1997) 15
Civil Rights Attorneys Fees Award Act, 42 U.S.C. §1988 1
CA Elections Code §§13307(a)(1) 22
CA Elections Code §§13309(a)(1) and (b) 8
CA Elections Code §13309(a) and (f). 33
CA Elections Code §8140. 14
Or. Rev. Stat. §251.6195 30
Wash. Rev. Code §29.81A-070 30

Other Authorities

California Commission on Campaign Financing, The Price of Justice, A Los Angeles Area Case Study in Judicial Campaign Financing (1995) 5

Constitutional Provisions

Cal. Const. Art. 6, § 16(a). 9
Cal. Const. Art. 2, §6 14
Cal. Const. Art. 6, §16(b) 15