Legal Library
No. _____
_______________________________________________________________
IN THE
Supreme Court of the United States
October Term, 1997
___________________
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,
Petitioners,
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,
Respondents.
_____________________
On Petition for a Writ of Certiorari to The
United States Court of Appeals for The Ninth Circuit
_____________________
PETITION FOR WRIT OF CERTIORARI
______________________
QUESTIONS PRESENTED
1. Whether the lower court rulings, upholding a $50,000 voter pamphlet fee which effectively operates as a ballot access restriction, conflict with this Court’s rulings in Bullock v. Carter, 405 U.S. 134 (1972) and Lubin v. Panish, 415 U.S. 709 (1974), invalidating candidate filing fee barriers as violative of the Equal Protection Clause.
2. Whether a $50,000 voter pamphlet fee, which excludes voters and candidates from an integral part of Los Angeles County’s judicial election process, violates the Equal Protection Clause.
3. Whether a $50,000 voter pamphlet fee, which prevents voters from receiving information on the qualifications of judicial candidates unable to pay the fee, violates the First Amendment.
TABLE OF CONTENTS
Questions Presented
Table Of Contents
Table Of Authorities
Opinions Below
Statement Of Jurisdiction
Constitutional Provisions And Statutes Involved
Statement Of The Case
A. Statement Of Facts
B. The Lower Court Decisions
1. The District Court Ruling
2. The Ninth Circuit Ruling
Reasons For Granting The Writ
I. The Ruling Below Conflicts With This Court’s Rulings In Bullock v. Carter And Lubin v. Panish
II. By Excluding Candidates And Voters From A "Part Of The Machinery For Choosing Officials," Los Angeles County’s Voter Pamphlet Fee Violates The Equal Protection Clause
III. Los Angeles County’s Voter Pamphlet Fee Violates Voters’ First Amendment Rights To Hear Campaign Speech
Conclusion
TABLE OF AUTHORITIES
Cases Cited:
Anderson v. Celebrezze, 460 U.S. 780(1983)
Bullock v. Carter, 405 U.S. 134 (1972)
Burson v. Freeman, 504 U.S. 191 (1992)
Dixon v. Maryland State Administrative Board of Election Laws, 878 F.2d 776 (4th Cir. 1989)
Erum v. Cayetano, 881 F.2d 689 (9th Cir. 1989)
Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989)
Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966)
Kaplan v. County of Los Angeles, 894 F.2d 1076 (9th Cir. 1990), cert. denied 496 U.S. 907 (1990)
Kleindienst v. Mandel, 408 U.S. 753 (1972)
Lubin v. Panish, 415 U.S. 709 (1974)
M.L.B. v. S.L.J., 519 U.S. 102 (1996)
Martin v. City of Struthers, 319 U.S. 141 (1943)
Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)
Morse v. Republican Party of Virginia, 517 U.S. 186 (1996)
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983)
Scheuer v. Rhodes, 416 U.S. 232 (1974)
Smith v. Allwright, 321 U.S. 649 (1944)
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986)
Terry v. Adams, 345 U.S. 461 (1953)
United States v. Classic, 313 U.S. 299 (1941)
United States v. Sheffield Bd. Of Comm'rs, 435 U.S. 110 (1978)
Virginia State Board of Pharmacy et al. v. Virginia Citizens Consumer Council, Inc. et al., 425 U.S. 748 (1975)
Williams v. Rhodes, 393 U.S. 23 (1968)
Constitutions:
U.S. CONST. amend. I
U.S. CONST. amend. XIV
Statutes:
28 U.S.C. ( 1254(1)
California Elections Code §§13300
California Elections Code §§13307
California Elections Code §§13309
Other Authorities:
L. Tribe, American Constitutional Law (2d ed. 1988)
OPINIONS BELOW
The opinion of the United States Court of Appeals for the Ninth Circuit is reported at 131 F.3d 1317 (9th Cir. 1997), and is reprinted in the Appendix to this petition at App. 1-17. The opinion of the District Court for the Central District of California is unpublished and is reprinted at App. 18-35.
STATEMENT OF JURISDICTION
The United States Court of Appeals for the Ninth Circuit entered judgment on December 16, 1997 and denied Plaintiffs-Appellants’ Petition for Rehearing and Suggestion for Rehearing En Banc on February 13, 1998. App. 36-37. This Court has jurisdiction pursuant to 28 U.S.C. ¤ 1254(1).
CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
The First Amendment to the United States Constitution provides in pertinent part:
Congress shall make no law...abridging the freedom of speech...
The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides in pertinent part:
No State shall...deny to any person within its jurisdiction the equal protection of the laws.
Relevant provisions of the California Elections Code ¤ ¤ 13300, 13307-13313 are included in the Appendix at App. 38-45.
STATEMENT OF THE CASE
A coalition of civil rights organizations, individual voters, and a judicial candidate brought this action in May 1996 to challenge a $50,000 fee charged to judicial candidates for the inclusion of a 200-word statement in a voter pamphlet published and distributed by Los Angeles County to every registered voter in the county. The lead Petitioners include the Los Angeles Branch of the NAACP and the Southern Christian Leadership Conference of Greater Los Angeles, whose members regularly exercise their right to vote for judges in Los Angeles County. The Petitioners allege that the voter pamphlet fee violates their constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and under the First Amendment to the Constitution. The Respondents are the Secretary of State of California, the Registrar of Voters for Los Angeles County, and the Board of Supervisors of Los Angeles County. The Petitioners seek declaratory relief invalidating as unconstitutional the section of the California Elections Code under which Los Angeles County imposes this prohibitively high voter pamphlet fee and a court order enjoining the Respondents from charging this fee to judicial candidates for inclusion in the voter pamphlet.
A. Statement of Facts
The California Elections Code ¤ ¤ 13300, 13307-13313 requires the Registrar of Voters of each county in the state to print and distribute an Official Sample Ballot and Voter Information Pamphlet to every registered voter of the respective county. App. 38-45. The statute further requires that the sample ballots "be identical to the official ballots, except as otherwise provided by law." California Elections Code §§13300, App. 38. The statute allows counties to charge candidates fees for the costs of including their 200-word statements in the voter pamphlet. California Elections Code §§13307(c), App. 40. It also allows counties to require advance payment by the candidates. Id. Candidates who are indigent are not required to pay the costs of such statements in advance but may be billed their pro rata share after the election. California Elections Code §§13309, App. 42. Thus, the law provides no exemption or reduction for indigent candidates.
Respondent Los Angeles County Board of Supervisors chooses to charge judicial candidates the cost of including their statement in the voter pamphlet, resulting in a fee of approximately $50,000. Petitioners’ Amended Complaint, R.No.3 at 33 ("Am. Compl.") Voters in Los Angeles County rely on the statements in the voter pamphlet to learn about the qualifications of judicial candidates. Id. at 10, 16, 18-19, 21, 23, 26, 32, 35. Thus, candidates with statements in the voter pamphlet enjoy enhanced, county-sponsored exposure to voters before they cast the official ballot on election day. The $50,000 fee prevents candidates unable to pay the fee from informing voters of their qualifications through this county-sponsored election document. Candidates who cannot afford to pay for a statement in the voter pamphlet lose 90 percent of the time. Id. at 34.
At oral argument before the Ninth Circuit panel, the Court asked counsel for the Los Angeles County respondents what an indigent candidate was to do upon receiving a $50,000 bill from the County following an election. Counsel responded that such a candidate would be free to declare bankruptcy.
Petitioners include voters and organizations which represent voters who are low income and who cannot afford to help the judicial candidate of their choice pay the $50,000 voter pamphlet fee. Am. Compl., R.No.3 at 2-6, 8-29, 32-37.
Petitioners further include a judicial candidate, Charles L. Lindner, an attorney who has practiced for 25 years and who ran for a superior court seat in Los Angeles County in 1996. Id. at 7, 29-30. Petitioner Lindner is not indigent, but he could also not afford to pay the $50,000 fee for the inclusion of a 200-word statement in the voter pamphlet. Id. at 29. Petitioner Lindner’s statement, therefore, did not appear in the voter pamphlet. Petitioner Lindner’s opponent could afford the fee and Los Angeles County printed his statement in the pamphlet, which it distributed to every registered voter in the county. Id. at 30. The Los Angeles County Bar Association rated Petitioner Lindner as "qualified" and rated his opponent as "unqualified." Id. at 29. Petitioner Lindner lost the election.
One third of the superior court and one third of the municipal court seats in Los Angeles County are up for election every two years. Id. at 35. Candidates and their families provide nearly half of all campaign money -- the largest single source of funds -- in superior court contests, with more than eighty percent of such contributions coming in amounts of $50,000 or more. Id. at 31-32. Lawyers and law firms serve as the second largest source of funds for judicial candidates. Id. at 32. Some successful candidates end their campaigns in substantial debt and are forced to continue to raise money as sitting judges, including raising money from practicing lawyers. Id. In 1994, successful candidates in superior court run-offs reported campaign debts ranging from $47,000 to $121,000. Id.
The $50,000 voter pamphlet fee serves as a significant contribution to the campaign debts of judicial candidates in Los Angeles County.
B. The Lower Court Decisions
(1) The District Court Ruling
Respondents filed motions to dismiss the Petitioners’ complaint on the grounds of standing and failure to state a claim upon which relief may be granted. On August 12, 1996, the District Court granted the Respondents’ motions to dismiss and on August 13, 1996, the District Court entered a judgment to that effect.
The District Court found that the Petitioners did not suffer an injury in fact as a result of the voter pamphlet fee and it, therefore, ruled that they did not have standing to challenge the fee system. The District Court also found that Petitioners did not have a cause of action, relying on Kaplan v. County of Los Angeles, 894 F.2d 1076 (9th Cir. 1990), cert. denied 496 U.S. 907 (1990)(upholding voter pamphlet fee system in constitutional challenge brought by sitting judge and judicial candidate who could afford to pay the fee).
(2) The Ninth Circuit Ruling
The Petitioners appealed the District Court’s ruling to the United States Court of Appeals for the Ninth Circuit. On December 16, 1997, the Ninth Circuit issued an opinion affirming the District Court’s ruling. The Ninth Circuit assumed the Petitioners had standing but found that the Petitioners failed to state a claim upon which relief could be granted.
Relying on Kaplan, the Ninth Circuit ruled that the voter pamphlet fee did not violate the Petitioners’ equal protection and First Amendment rights. It stated that the fee "does not affect a candidate’s right to appear on the ballot, participate in an election, or disseminate information to the public." App. 16. It further ruled that Kaplan, which involved a challenge brought by a judicial candidate who could afford the fee, controlled the Petitioners-voters’ constitutional claims.
REASONS FOR GRANTING THE WRIT
Los Angeles County publishes and distributes an Official Sample Ballot and Voter Information Pamphlet to all registered voters in the county prior to their exposure to the official ballot on election day. The voter pamphlet serves as a crucial and often the only means by which voters are able to learn about the qualifications of judicial candidates running for municipal and superior court seats in the county. Am. Compl., R.No.3 at 10, 16, 18-19, 21, 23, 26, 32, 35. Candidates and their voter-supporters who are unable to purchase a statement in the voter pamphlet face an almost insurmountable disadvantage, losing 90 percent of the time. Id. at 34. The voter pamphlet fee presents a serious barrier to candidates and voters who are unable to pay the fee. The fee system also undermines the integrity of Los Angeles County’s court system by making a candidate’s personal wealth or access to wealth a determinant factor in whether he or she becomes a judge.
The facts alleged here, taken as true for the purpose of deciding Respondents’ motions to dismiss, demonstrate that the $50,000 voter pamphlet fee in Los Angeles County effectively operates as a ballot access restriction, in conflict with this Court’s rulings in Bullock v. Carter, 405 U.S. 134 (1972) and Lubin v. Panish, 415 U.S. 709 (1974)(striking down candidate filing fee barriers as unconstitutional on equal protection grounds). Further, the fee requirement excludes voters and candidates who are unable to pay the fee from "an integral part" of the judicial election process, in violation of their equal protection rights. And, the fee requirement prevents voters from receiving information on the qualifications of judicial candidates unable to pay the fee, in violation of voters’ First Amendment rights.
The lower court rulings upholding this $50,000 fee barrier to voter and candidate participation in Los Angeles County’s judicial election process should not stand unreviewed by this Court.
- THE RULING BELOW CONFLICTS WITH THIS COURT’S RULINGS IN BULLOCK V. CARTER AND LUBIN V. PANISH
- BY EXCLUDING CANDIDATES AND VOTERS FROM A "PART OF THE MACHINERY FOR CHOOSING OFFICIALS," LOS ANGELES COUNTY’S VOTER PAMPHLET FEE VIOLATES THE EQUAL PROTECTION CLAUSE
- LOS ANGELES COUNTY’S VOTER PAMPHLET FEE VIOLATES VOTERS’ FIRST AMENDMENT RIGHTS TO HEAR CAMPAIGN SPEECH
In Bullock, this Court invalidated, on equal protection grounds, a series of filing fees that the state of Texas required primary candidates to pay to their political parties in order to get on the primary ballot. The fees ranged from $150 to $8900. This Court found that "the very size of the fees imposed under the Texas system [gave] it a patently exclusionary character." Bullock, 405 U.S. at 143. This Court further ruled that "[t]he effect of this exclusionary mechanism on voters is neither incidental nor remote." Id. at 144. "We would ignore reality," this Court wrote, "were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status." Id. See also Lubin (striking down California’s $701.60 filing fee for county supervisor election, ruling that filing fees do not "test the genuineness of a candidacy or the extent of the voter support of an aspirant for public office": "[O]ur tradition has been one of hospitality toward all candidates without regard to their economic status." Lubin, 415 U.S. at 717-718); Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) (striking down a $1.50 poll tax in Virginia state elections).
In M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555 (1996), this Court recently reaffirmed its landmark holdings in Bullock, Lubin, and Harper. "The basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license." M.L.B., 117 S.Ct. at 568 (citing Bullock, Lubin, and Harper).
The lower court rulings in this case conflict with this Court’s holdings in Bullock and Lubin. The Ninth Circuit’s finding that the $50,000 voter pamphlet fee "does not affect a candidate’s right to appear on the ballot, participate in an election, or disseminate information to the public," App. 16, directly contradicts the facts alleged by Petitioners and assumed as true at this stage of the proceedings. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
Los Angeles County distributes an Official Sample Ballot and Voter Information Pamphlet to all 3.6 million registered voters in the county prior to their exposure to the ballot on election day. The California Elections Code requires that the sample ballots "be identical to the official ballots, except as otherwise provided by law." California Elections Code §§ 13300, App. 38. Candidates who can afford the county’s $50,000 voter pamphlet fee appear on the sample ballot with a statement about their qualifications. Candidates who are unable to pay the fee appear on the sample ballot without any statement. Thus, candidates with statements in the voter pamphlet enjoy enhanced, county-sponsored exposure to voters before they cast the official ballot on election day.
The voter pamphlet fee in Los Angeles County effectively operates as a ballot access restriction. As with Petitioner Lindner, ninety percent of all judicial candidates who are unable to pay the $50,000 fee and whose statements are thereby excluded from the voter pamphlet lose the election.
Further, the Ninth Circuit’s finding that the voter pamphlet fee does not violate voters’ constitutional rights is in conflict with this Court’s holdings in Bullock and Lubin. The voters in this case cannot afford to help a judicial candidate of their choice pay the $50,000 fee. Am. Compl., R.No.3 at 2-6, 8-29, 32-37. In addition, the voters in this case rely on the county’s pamphlet as a crucial and often the only means of information about the qualifications of judicial candidates. Id. at 10, 16, 18-19, 21, 23, 26, 32, 35. The voter pamphlet fee effectively prevents the Petitioners-voters from learning about the qualifications of all judicial candidates. The fee requirement "falls with unequal weight on voters, as well as candidates, according to their economic status." Bullock, 405 U.S. at 144.
The fee requirement is even more egregious in its application to indigent candidates. Under the California Elections Code, candidates who are indigent have no method through which they can effectively bypass this requirement. They may be included in the voter pamphlet without advance payment, but the county may still charge them the $50,000 fee after the election. California Elections Code §§13309, App. 42. Such candidates, as Respondent acknowledges, would be required to declare personal bankruptcy to escape paying the charge. See supra, n.3.
Indigent candidates for judicial seats in Los Angeles County should not have to declare bankruptcy in order to be included in an official voter pamphlet distributed by the county to all registered voters. By allowing counties to charge indigent candidates the $50,000 fee after the election, the voter pamphlet statute effectively erases any real exemption to the fee requirement. This provision of the statute violates the equal protection rights of indigent candidates and their voter supporters, like Petitioners here. See Bullock and Lubin.
Under this Court’s precedents, Petitioners’ allegations clearly state a claim that Los Angeles County’s $50,000 voter pamphlet fee violates Petitioners’ equal protection rights. The rulings below are in direct conflict with this Court’s rulings in Bullock and Lubin and should be reviewed by this Court.
In Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), this Court reaffirmed that its holding in Terry v. Adams, 345 U.S. 461 (1953) that "any ‘part of the machinery for choosing officials’ becomes subject to the Constitution’s restraints." Morse at 218, quoting Terry at 481 (1953) and Smith v. Allwright, 321 U.S. 649, 664 (1944). In Morse, this Court found state action in the Virginia Republican Party’s $45 filing fee for delegates to its party nominating convention. The Court held that Section 5 of the Voting Rights Act of 1965, "‘like the constitutional provisions it is designed to implement, applies to entities having any power over any aspect of the electoral process…’" Morse at 220, quoting United States v. Sheffield Bd. Of Comm’rs, 435 U.S. 110, 118 (1978)(emphasis added). Exclusion from "an ‘integral part’" of the election process, the Morse Court reiterated, "does not merely curtail [plaintiffs’] voting power, but abridges their right to vote itself." Id. at 207, quoting United States v. Classic, 313 U.S. 299, 318 (1941).
Los Angeles County’s voter pamphlet is "an integral part" of the county’s judicial election process. As stated earlier, Los Angeles County publishes and distributes the voter pamphlet with a sample ballot to all registered voters in the county prior to their exposure to the official ballot on election day. The pamphlet serves as a crucial and often the only means by which voters are able to learn about the qualifications of judicial candidates running for municipal and superior court seats in the county. Am. Compl., R.No.3 at 10, 16, 18-19, 21, 23, 26, 32, 35. Candidates and their voter-supporters who are unable to purchase a statement in the voter pamphlet lose 90 percent of the time. Id. at 34.
The state has created a step in the election process which, for all practical purposes, prevents the election of excluded candidates. Those candidates unable to pay and their voter supporters are excluded from any meaningful participation in the election, just as surely as the voters in Terry and the convention participants in Morse were effectively excluded from a meaningful vote. Indeed, unlike in Morse and the white primary cases, the presence of state action is not even in question. In this case, a governmental entity, not a private political party, is directly excluding candidates and their voter-supporters from "an integral part" of the election process. As in Morse, this exclusion "does not merely curtail [Petitioners’] voting power, but abridges their right to vote itself." Morse at 207.
The $50,000 fee requirement excludes Petitioners from "a part of the machinery for choosing" judges in Los Angeles County, in violation of Petitioners’ equal protection rights. The rulings below failed to address this separate equal protection challenge to the voter pamphlet fee. Los Angeles County’s exclusion of the Petitioners from the voter pamphlet is a serious infringement on their right to vote. The Ninth Circuit’s ruling that this exclusion states no cause of action under the Fourteenth Amendment should be reviewed by this Court.
In Los Angeles County’s judicial elections, open and robust discussion on the qualifications of candidates depends heavily on the official voter pamphlet printed and distributed by the county to every registered voter. Am. Compl., R.No.3 at 10, 16, 18-19, 21, 23, 26, 32, 35. Candidates who cannot afford to pay for a statement in the voter pamphlet lose 90 percent of the time. Id. at 34. These facts, which were not presented in Kaplan, demonstrate that a judicial candidate’s exclusion from the voter pamphlet has a severe impact on the rights of voters to hear campaign speech.
The First Amendment affords its fullest protection to Petitioners’ rights to open and robust discussion of issues in election campaigns. Burson v. Freeman, 504 U.S. 191 (1992); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 223 (1989) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 271 (1971)). Such protection is critical to the state’s interest "in fostering an informed electorate." Eu, 489 U.S. at 228, citing Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 220 (1986); Anderson v. Celebrezze, 460 U.S. 780, 796 (1983). In Eu, this Court held that a ban on party endorsements of candidates in primaries directly affects First Amendment
protected speech. This Court stated that "debate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution." Eu, 489 U.S. at 223. This Court thus found that the ban "hamstrings voters seeking to inform themselves about the candidates and the campaign issues." Id.
This Court has further held that the First Amendment’s protection of the right to free speech covers both the speaker and the listener. "Freedom of speech presupposes a willing speaker. But where a speaker exists, as is the case here, the protection afforded is to the communication, to its source and to its recipients both. This is clear from the decided cases." Virginia State Board of Pharmacy et al. v. Virginia Citizens Consumer Council, Inc. et al., 425 U.S. 748, 756 (1975)(citations omitted). See also Kleindienst v. Mandel, 408 U.S. 753, 762-763 (1972)(referring to a First Amendment right to "receive information and ideas" and stating that freedom of speech "‘necessarily protects the right to receive,’" quoting Martin v. City of Struthers, 319 U.S. 141, 143 (1943)).
The voter pamphlet fee denies the Petitioners-voters their First Amendment "right to receive" information on the qualifications of judicial candidates who are unable to pay the fee. The Ninth Circuit ruling states that "voter plaintiffs have no right to receive all of the information they would like in the Sample Ballot." App. 12. Yet, if voters are able to receive information -- through a state and county-sponsored election document -- on the qualifications of candidates who can afford to pay the $50,000 fee, voters must also be able to receive such information in that same document from those who cannot afford to pay the fee. This is especially true when voters are the intended primary beneficiaries of the election document, the very purpose of which is to facilitate the state and county’s interest in "fostering an informed electorate." Where the state and the county establish a crucial and often the only effective means of communication by candidates to the electorate, it must ensure that such means of communication be open to all, regardless of economic status.
The Ninth Circuit ruling cites its earlier opinion in Kaplan on the point that "content neutral restrictions [in a limited public forum] must be shown to…‘leave open ample alternative channels of communication.’" App. 11, citing Kaplan, 894 F.2d at 1080 (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983)). The operative word here is "ample." Los Angeles County distributes the voter pamphlet to all 3.6 million registered voters in the county. Judicial candidates who can afford to purchase a statement in the voter pamphlet are able, therefore, through a state and county-sponsored document, to communicate information about their qualifications to every registered voter in their judicial district, as a municipal court candidate, or in the entire county, as a superior court candidate. Los Angeles County does not leave open any "ample alternative" for candidates who are unable to pay the $50,000 fee. There is no "ample alternative" to a candidate statement which appears with the county’s sample ballot -- printed in a way which is identical to the official ballot -- and which the county distributes to every registered voter. This lack of an ample alternative is further highlighted by the fact that candidates who cannot afford to purchase a statement in the voter pamphlet lose 90 percent of the time.
The lower court ruling also fails to address the impact of the voter pamphlet fee on the Petitioners’ First Amendment right "to cast their votes effectively." Williams v. Rhodes, 393 U.S. 23, 31 (1968). Laws which deny groups "the fruits of their association -- the political impact -- run afoul of the First Amendment no less than ones which preclude association itself." L. Tribe, American Constitutional Law at 1103. Petitioners have alleged that they cannot afford to pay the $50,000 voter pamphlet fee for candidates of their choice. In excluding Petitioners from "an integral part" of the judicial election process, Morse at 207, quoting Classic at 318, this fee requirement denies Petitioners their right "to cast their votes effectively." See also Anderson v. Celebrezze, 460 U.S. at 787-788 (rights of voters to cast their votes effectively); Erum v. Cayetano, 881 F.2d 689, 692 (9th Cir. 1989) ("rights of qualified voters to cast their votes effectively"); Dixon v. Maryland State Administrative Board of Election Laws, 878 F.2d 776 (4th Cir. 1989) (Maryland’s $150 write-in fee to include write-in candidates on the list of official candidates and to publish the votes received violated voters’ rights to cast their votes effectively.)
The voter pamphlet fee is a direct infringement on Petitioners’ First Amendment rights as voters. This Court should review the lower court rulings upholding that infringement.
CONCLUSION
For the foregoing reasons, the petition for a writ of certiorari should be granted.
DATED: May 13, 1998
Respectfully submitted,
John C. Bonifaz
Counsel of Record
Brenda Wright
National Voting Rights Institute
294 Washington Street, Suite 713
Boston, Massachusetts 02108
(617) 368-9100
(617) 368-9101 FAX
Joseph H. Duff
1551 High Point Street
Los Angeles, California 90035-3907
(213) 932-8172
Roy M. Ulrich
Law Offices of Roy M. Ulrich
185 Pier Avenue
Santa Monica, California 90405
(310) 396-9927
Attorneys for Petitioners
Of Counsel: Dennis C. Hayes
Willie Abrams
NAACP
4805 Mt. Hope Drive
Baltimore, Maryland 21215-3297
(410) 358-8900