Legal Library


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.

REPLY 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


INTRODUCTION

I. PLAINTIFFS HAVE STANDING BECAUSE THE HIGH COSTS OF JUDGE ELECTIONS EXCLUDE PLAINTIFFS FROM PARTICIPATING IN THE POLITICAL PROCESS.

II. THE SUPREME COURT'S OPINION IN M.L.B v. S.L.J. SUPPORTS PLAINTIFFS' CLAIM THAT THE WEALTH PRIMARY VIOLATES THEIR FUNDAMENTAL RIGHT TO VOTE.

A. The Wealth Primary Subjects Voters to Severe Restrictions on Their Fundamental Right to Vote and Is Subject to Heightened Scrutiny.

B. Los Angeles County's Fiscal Interests Are Not Sufficiently Compelling to Burden Fundamental Voting Rights.

C. The Voter Pamphlet's In Forma Pauperis Provision is Too Narrow to Protect the Voters' Rights.

III. THE COURTS HAVE AUTHORITY TO ORDER ALTERNATIVE PUBLIC FINANCING OF PUBLIC ELECTIONS.

IV. THIS CASE DOES NOT PRESENT A "POLITICAL" QUESTION.

CONCLUSION

FOOTNOTES

TABLE OF AUTHORITIES


PLAINTIFFS-APPELLANTS' REPLY BRIEF


The voters challenge the wealth-based campaign finance system which excludes them from participating in the political processes surrounding judicial campaigns in Los Angeles County. The defendants' responses fail to acknowledge the serious threat to voters' confidence in the judiciary that arises when judge elections are affordable only to candidates who have vast personal wealth or who raise large sums of money from lawyers who may appear in their courts.{1}

Frank Berry, an NAACP official who regularly attends court hearings in Los Angeles, explains in the Amended Complaint the corrosive role of this exclusionary system in judge elections:

Because judges are predominantly drawn from a pool of lawyers with access to wealth, Mr. Berry consistently witnesses the lack of sensitivity and/or understanding of the poor by the judiciary in its unsuccessful attempt to administer justice in a fair and unbiased manner. He is also concerned that this major discrepancy in our system of justice, via the courts, will become a permanent flaw that yields the legal benefits to the wealthy side of our society. C3 at 20.

The district court characterized the disparity in voters' and candidates' ability to raise large sums as a "fact of life."{2} In Texas, the exclusionary white primaries were a fact of life until Terry v. Adams, 345 U.S. 461 (1953). Across the South, the poll tax was a fact of life until Harper v. Virginia Board of Elections, 383 U.S. 663 (1966). This court's duty to enforce the Equal Protection Clause includes determining whether commonly accepted election inequities violate the Constitution's promise that all citizens, both rich and poor, can fully exercise their right to vote.

Under the Constitution, this court has a duty to hear the voters' claims that their "basic right to participate in political processes as voters and candidates cannot be limited to those who can pay. . . ." M.L.B. v. S.L.J., ___U.S. ___, 117 S.Ct. 555,568 (1996).


I. PLAINTIFFS HAVE STANDING BECAUSE THE HIGH COSTS OF JUDGE ELECTIONS EXCLUDE PLAINTIFFS FROM PARTICIPATING IN THE POLITICAL PROCESS.

The high costs of judge elections injure voters and candidates, including members of the plaintiff organizations, by excluding them from effective participation in critical parts of the political process. Their exclusion from the "wealth primary", that discrete part of the elections process which requires the raising of vast sums of money for a viable campaign, removes them as meaningful players in campaigns. They cannot choose a qualified lawyer and sponsor him or her in a viable campaign. They cannot participate equally in other campaign activities which require money, nor can they reap the benefits of supporting a winning candidate. The primary injury is that these exclusionary devices limit the voters' choices of candidates to those with wealth or access to wealth. Each of these injuries flows directly from the challenged "wealth primary" system.

These injuries are not speculative nor hypothetical as the County defendants argue. County brief at 12-13. Wealthy candidates and their supporters can participate fully in campaigns. Thus, only nonwealthy voters suffer these injuries. The district court's holding that the injury was not particularized is due to be reversed. CR16 at 8.

The injuries are analogous to the injury found sufficient in Northeastern Florida Contractors v. City of Jacksonville, 508 U.S.656 (1993). There the Court held that the Contractors Association had alleged sufficient injury by showing that the city's contract awards process made it more difficult for the Association's members to compete equally in the bidding process. Id. at 2303. Just as the injury to the contractors was that it was "more difficult for members of one group to obtain a benefit than it is for members of another group," the voters here suffer injury because without wealth their candidates cannot compete equally in the wealth primary. Id., at 2303.

Florida Contractors is based on voting rights decisions where the Court found standing to hear equal protection challenges to barriers to voter participation. In Turner v. Fouche, 396 U.S. 346 (1970), the Court held that a plaintiff who did not own property had standing to challenge Georgia's law limiting school-board membership to property owners. Florida Contractors explained that it was not necessary for the Turner plaintiff to show he would have been appointed "but for the property requirement." For standing he merely had to allege he wished to be considered. Florida Contractors, 113 S.Ct. at 2302. Florida Contractors also relied upon another voting rights equal protection decision, Clements v. Fashing, 457 U.S. 957 (1982); the Court again "emphasized that the plaintiffs' injury was the 'obstacle to [their] candidacy'." Florida Contractors, 113 S.Ct. at 2302, quoting Clements at 457 U.S. 957,962 (1982). Both Florida Contractors and Turner v. Fouche, squarely reject the County defendants' argument that Charles Lindner must show "but for" the lack of a candidate statement he would have won. County brief at 16.

Under Florida Contractors the voters do not have to show that the wealth primary kept their preferred candidates off the ballot. It is sufficient that plaintiffs claim "denial of equal treatment resulting from the imposition of the barrier [the wealth primary], not the ultimate inability to obtain the benefit." 113 S. Ct. at 2303.

Courts have repeatedly found specific injury to voters from devices which alter the elections process, diminish choices of candidates available to voters, and dilute the weight of a vote. The voters' specific injury of unequal treatment in Los Angeles County's electoral process is the same type injury alleged by the voters in Baker v. Carr, 369 U.S. 186, 206 (1962). In Baker v. Carr the injury was "unjustifiable inequality vis-a-vis voters irrationally favored" by the reapportionment schemes.

This court followed Baker's expansive granting of voter standing in Erum v. Cayetano, 881 F.2d 689 (9th Cir. 1989). In Erum, a voter had standing to challenge ballot access requirements because the requirements implicated the rights of voters. Id. at 691, citing Lubin v, Panish, 415 U.S. 709, 716 (1974).

In addition, the organizations themselves suffer injury. The complaint and the district court's findings demonstrate that each organization meets the standing requirements. The injuries members suffer go to the heart of the organizations' missions.

The Southern California Americans for Democratic Action (SCADA) suffers injury to its rights to associate under well established First Amendment standing cases. The organization screens and endorses judicial candidates to identify those with whose views it agrees on contemporary issues. When SCADA's chosen candidates lack the wealth to finance a viable campaign, SCADA has not been able to provide funds to fill the gap. Thus, SCADA members suffer harm to their associational right when the candidate SCADA endorses cannot compete in the absence of great wealth. San Francisco Co. Democratic Party Central Comm. v. Eu, 826 F.2d 814, 825 (9th Cir. 1987), aff'd, 489 U.S. 214 (1989) (Political Party Committees have standing to assert their rights to freedom of speech and to associate by endorsing candidates in party primaries); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 229 (1986) (Associational rights of political party and party members were injured by state law requiring voters in primary to be members of that party); NAACP v. Button, 371 U.S. 415, 428 (1962) (NAACP may assert associational rights on its own behalf and on behalf of its members). Furthermore, when the candidates SCADA endorses cannot afford $48,775 to appear in the voter pamphlet, the organization is harmed because its endorsement is not published to all voters.

The standing question is not an inquiry about whether plaintiffs will prevail. The plaintiff voters, candidates, and members of the organizations suffer sufficient legal injury to have their day in court.


II. THE SUPREME COURT'S OPINION IN M.L.B. v. S.L.J. SUPPORTS PLAINTIFFS' CLAIM THAT THE WEALTH PRIMARY VIOLATES THEIR FUNDAMENTAL RIGHT TO VOTE.

This term the Supreme Court in M.L.B. v. S.L.J., addressed the heightened protection the Equal Protection Clause confers on voters' fundamental rights to participate in the political process without regard to their wealth. 117 S.Ct. 555, 568. The M.L.B. Court affirmed the vitality of the seminal cases which first enunciated that principle: Harper v. Virginia Board of Elections and Bullock v. Carter.{3} Neither defendants nor amici raise arguments sufficient to overcome the primacy of protection the Court affords voting rights under the Equal Protection Clause.

In M.L.B. the Court held that Mississippi could not terminate a mother's parental rights when she was unable to pay $2352 for a transcript and record to appeal the lower court's termination decision. The M.L.B. Court described the two principal exceptions to the general rule that a state's interest in offsetting costs is usually subject to a rational relationship test. The first exception is that "[t]he basic right to participate in political processes as voters and candidates cannot be limited to those who can pay for a license." Id. at 568. The second exception is the one at issue in M.L.B.: access to judicial processes cannot turn on ability to pay. Id. at 568.

The M.L.B. Court expressly reaffirmed its equal protection holdings that participating in the political process as a voter or as a candidate cannot "hinge on ability to pay." Id. , n. 14.

[V]oting cannot hinge on ability to pay, the Court explained, for it is a "'fundamental political right...preservative of all rights.'" Id. at 667, 86 S.Ct., at 1082 (quoting Yick Wo. v. Hopkins, 118 U.S. 356, 370, 6 S.Ct. 1064, 1071...(1886)). Bullock rejected as justifications for excluding impecunious persons, the StateÕs concern about unwieldy ballots and its interest in financing elections. 405 U.S., at 144-149, 92 S.Ct. at 856-859. Lubin reaffirmed that a State may not require from an indigent candidate "fees he cannot pay.Ó 415 U.S. at 718, 94 S.Ct. at 1321.

A. The Wealth Primary Subjects Voters to Severe Restrictions on Their Fundamental Right to Vote and Is Subject to Heightened Scrutiny.

The County defendants' agree that voting is a fundamental right, but misapply the M.L.B. Court's language. Brief at 18-19. It is not only the narrow right to register and vote that is fundamental and cannot be subject to a fee. It is the broader right to participate in political processes as voters and candidates which is a fundamental right guaranteed to voters regardless of their wealth or poverty. Id. at 568.

Plaintiffs base their equal protection claim on the same analysis the M.L.B. Court applied. First, the Court inspected "the character and intensity of the individual interest at stake" and weighed that against the State's justification for the fees. 117 S.Ct. at 566. The voters' legal claim here is even stronger than M.L.B.'s. Their right to participate equally in the political process is part of the Constitution's protection of the state conferred right to vote--the "fundamental political right. . preservative of all rights." Id. at 568, n. 14, quoting Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). In contrast, the "Constitution guarantees no right to appellate review. . . ." 117 Sup. Ct. at 560, quoting Griffin v. Illinois, 351 U.S. 12, 18 (1956).

In M.L.B. v. S.L.J., the Supreme Court refused to apply the rational basis test to account for Mississippi's need for revenue to offset costs because of the fundamental right involved. 117 S.Ct. at 567. Moreover, the Court distinguished the cases where the Court has allowed states to deny benefits even when violations of fundamental rights were alleged. The Supreme Court distinguished Mississippi's exaction of a fee for a transcript to defend against the State's destruction of fundamental parental rights from the cases where plaintiffs were seeking state welfare and economic aid. 117 S.Ct. at 568. Lyng v. Automobile Workers, 485 U.S. 360 (1988) (no equal protection claim in denial of food stamps because household member was on strike); Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983) (no equal protection claim to receive tax deductible contributions); Harris v. McRae, 448 U.S. 297 (1980) (no equal protection right to receive Medicaid funding for medically necessary abortion).

The County and amici urge this court to apply these same economic aid and welfare cases here. See, County defendants' brief at 19; Washington Legal Foundation at 10. Their reasoning is faulty under the same distinctions the Court applied in M.L.B.

The M.L.B. Court applied heightened scrutiny for M.L.B.'s equal protection claims, and that same scrutiny is required when deciding rights to participate in political processes. Thus, the district court applied the wrong standard when it held that plaintiffs had failed to state a claim based on the rational basis test found in Kaplan v. County of Los Angeles, 894 F.2d 1076 (9th Cir. 1990), cert. denied, 496 U.S. 907 (1990).

This court in 1995 applied close scrutiny where voting restrictions discriminated on the basis of wealth and were unreasonable on their face. Hussey v. City of Portland, 64 F.3d 1260, 1265 (9th Cir. 1995), cert. denied, ____U.S. _____, 116 S.Ct. 911 (1996), quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992). In Hussey this court struck down the City of Portland's ordinance requiring non-residents to consent to annexation as a condition to receiving a reduction in sewer hook-up costs for mandated sewer connections. {4}

This court held that the Portland ordinance "severely and unreasonably interferes with the right to vote. Like the poll tax in Harper which was 'closely scrutinized' . . .the subsidy here disproportionately affects the poor." Hussey, 64 F.3d at 1265-66. Employing the Hussey analysis compels the conclusion that the wealth primary's restrictions are not minor. The restrictions are also more like the poll tax struck down in Harper. {5}

Plaintiffs' claim is not about winning some proportion of elections; thus, amici's use of City of Mobile v. Bolden, 446 U.S. 55 (1980) is irrelevant. Amici brief at 9. Plaintiffs have rights to political participation which differ from the rights to win elections. The Court in Davis v. Bandemer emphasized that "the power to influence the political process is not limited to winning elections." 478 U.S. 109,132 (1986). Under Davis v. Bandemer, plaintiffs state an equal protection claim that "the electoral system substantially disadvantages. . .[nonwealthy] voters in their opportunity to influence the political process effectively." Id. at 132-133.

B. Los Angeles County's Fiscal Interests Are Not Sufficiently Compelling to Burden Fundamental Voting Rights.

Since this appeal is from a motion to dismiss for failure to state a claim, it is premature for this court to consider the question of whether the defendants' have stated a compelling interest. However, since the defendants have raised their fiscal interests, plaintiffs will briefly respond.

Just as Mississippi may not "bolt the door to equal justice" in parental termination cases because the state is concerned about the fiscal impact of transcript costs, Los Angeles County and the State of California cannot bolt the door to voters' full campaign participation based on concerns about costs. The Court in M.L.B. repeated its rejection in Bullock of Texas's "concern about...its interest in financing elections," as a justification for the high candidate filing fees. 117 S.Ct. at 568.

M.L.B. and the cases on which the Court primarily relied held that the states' concern about costs does not constitute a compelling state interest to justify denying free transcripts for those who cannot pay. See discussion of Mayer v. Chicago and Griffin v. Illinois, 117 S.Ct at 566.

The M.L.B. Court incorporates the Mayer Court's response to Chicago's concern about the costs of the transcripts where the accused is subject to a fine and not a jail term. "The State's pocketbook interest in advance payment for a transcript, we concluded, was unimpressive when measured against the stakes for defendant." 117 S.Ct. at 566.

The Mayer Court refused to weigh the accused's interest against the State's fiscal interest.

[T]he city suggests that his [the accused's] interest in a transcript is outweighed by the State's fiscal and other interests in not burdening the appellate process. This argument misconceives the principle of Griffin . . . . Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed. The State's fiscal interest is, therefore, irrelevant. 404 U.S. 189, 196 (1971).

Likewise in Bullock v. Carter, the Court found the State's interest in financing the costs of the primaries unpersuasive because voters were being denied an opportunity to vote for the candidates of their choice. 405 U.S. at 148-149. The Court opined that it was appropriate for all taxpayers to carry the burden of financing the primary costs:

It seems appropriate that a primary system designed to give the voters some influence at the nominating stage should spread the costs among all of the voters in an attempt to distribute the influence without regard to wealth. Viewing the myriad governmental functions supported from general revenues, it is difficult to single out any of a higher order than the conduct of elections at all levels to bring forth those persons desired by their fellow citizens to govern. Without making light of the State's interest in husbanding its revenues, we fail to see such an element of necessity in the State's present means of financing primaries as to justify the resulting incursion on the prerogatives of the voters. Id.

This court should order the district court to reconsider the defendants' arguments under the heightened scrutiny standard.

C. The Voter Pamphlet's In Forma Pauperis Provision is Too Narrow to Protect the Voters' Rights.

The facts of this case demonstrate why the present in forma pauperis provision for funding the voter pamphlet is inadequate to ensure the plaintiff voters and candidate equal participation in the elections process. Charles Lindner is not indigent, but neither could he afford $48,775 for the voter pamphlet statement. CR3 at 29. The statute provides voters, as the intended beneficiaries of the pamphlet, no opportunity to activate the in forma pauperis provision to receive the statements of all candidates. {6}

Proof of indigency is not required in the Supreme Court's cases striking down wealth barriers to full voter participation. The Court in Harper v. Virginia Board of Elections held that the State violated equal protection "whenever it makes the affluence of the voter or payment of any fee an electoral standard." 383 U.S. at 666. The lower court described the plaintiffs as "financially unable to pay the tax." Harper v. Virginia Board of Elections, 240 F.Supp. 270 (E.D. Va. 1964). But the Supreme Court emphasized that fees for voting, per se, were unconstitutional. "We say the same whether the citizen, otherwise qualified to vote, has $1.50 in his pocket or nothing at all, pays the fee or fails to pay it." 383 U.S. at 668. In Bullock v. Carter, the Court also described the candidate as unable to pay. 405 U.S. at 135. These cases illustrate common sense approaches to the high costs of participating in elections. A serious candidate whom voters want to support may not be indigent yet neither she nor her supporters may have sufficient funds to pay the costs of a viable campaign. {7}

Nor have recent circuit court decisions insuring equal voter participation regardless of wealth required proof of indigency for relief. The Eleventh Circuit's finding of an equal protection violation in Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992), did not require that Ms. Fulani show indigency in her challenge to the county's refusal to waive ballot signature verification charges. The Republican Party did not have to show indigency to prove a constitutional violation when Arkansas required the party both to conduct and pay for primary elections to gain access to the general election ballot. Republican Party of Arkansas v. Faulkner County, Ark., 49 F.3d 1289 (8th Cir. 1995).

The Court's opinion in M.L.B. v. S.L.J. supports the voters' claim that they have stated a cause of action. The district court's holding that the voters failed to state an equal protection claim is due to be reversed.

III. THE COURTS HAVE AUTHORITY TO ORDER ALTERNATIVE PUBLIC FINANCING OF PUBLIC ELECTIONS.

This Court's duty at this juncture is to determine whether plaintiffs' claims will be heard. Defendants and amici mistakenly conflate the issue of whether plaintiffs have stated a claim with the issue of a remedy.

Plaintiffs' requested relief is totally consistent with the relief granted in voting rights cases. When government excludes voters from participating in an integral part of the elections process, courts have repeatedly exercised their duty to strike down those barriers. The first step has been to declare the law or practice unconstitutional. San Francisco Co. Democratic Central Comm. v. Eu, 826 F.2d at 824; Service Employees Int'l Union v. Fair Political Practices Coms'n, 955 F. 2d 1312 (9th Cir. 1992).

After the court declares the current financing system unconstitutional, defendants will obviously have the duty and reasonable time to construct a constitutional system. Alternative public funding here means that the defendants would make public funds available to voters and candidates without wealth so that they can participate meaningfully in the campaign process. {8} This would include having their voices heard through the voter pamphlet. Plaintiffs' proposed injunction to require alternative public funding is consistent with the remedy in similar voting rights cases. In Harper v. Virginia Bd. Of Elections, and in Bullock v. Carter, the Court required the state to finance the integral parts of the elections process.

Plaintiffs' exclusion from the wealth primary challenges the defendants to construct an open and more level playing field for campaigns. Alternative public funding for candidates and voters without vast wealth or wealthy supporters is a constitutional method to remove the exclusionary barriers now in the political process. Amici attempt to sidetrack this court by asserting that public funding of campaigns inexorably leads to limits on campaign expenditures. That is simply untrue, for in Buckley v. Valeo, the Court upheld the partial public funding of presidential campaigns while permitting candidates and others to spend their own funds without limits. 424 U.S. 1, 57 (1976). That public funding may not create absolute equality in the money available for campaigns does not mean that public funding is an inappropriate remedy.

IV. THIS CASE DOES NOT PRESENT A "POLITICAL" QUESTION.

Although the legislature and the Board of Supervisors have the power to remedy the plaintiffs' harms, that power does not diminish this court's duty to address plaintiffs' constitutional claims. The defendants' argument that plaintiffs present a political question is very similar to the resistance states mounted when state legislatures across the country refused to perform their constitutional duties of reapportionment. When voting rights are at stake, courts provide protection. In Reynolds v. Sims, Alabama warned the Court about the dangers of the "political" nature of the apportionment issue. The Supreme Court upheld the district court's declaratory judgment that protected voters' rights under the Equal Protection Clause:

We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us. 377 U.S. 533 at 566 (1964).

CONCLUSION

Plaintiffs have demonstrated that the district court's decision is due to be reversed because it conflicts with applicable law. Since plaintiffs filed this suit, the national spotlight has begun to focus intensely on the corrupting influence of money in politics. This case shines a light on the state's campaign finance system which excludes voters without wealth from participating in the judge campaign process. The integrity of the judge elections process and of justice in Los Angeles County cannot escape being tarnished under the present system where those who win judgeships are almost always those who spend the most money.

Respectfully submitted,

Abigail Turner
John C. Bonifaz
National Voting Rights Institute
401 Commonwealth Avenue, Third Floor
Boston, Massachusetts 02215
617-867-0740

Joseph H. Duff, State Bar No. 50431
1551 High Point Street
Los Angeles, California 90035-3907
213-932-8172

Roy M. Ulrich, State Bar No. 46087
Law Offices of Roy M. Ulrich
185 Pier Avenue
Santa Monica, California 90405

Of Counsel:
Dennis C. Hayes
Willie Abrams
National Association for the
Advancement of Colored People
4805 Mt. Hope Drive
Baltimore, Maryland 21215-3297
410-486-9180

FOOTNOTES

{1} The Supreme Court in Chisom v. Roemer, 501 U.S. 380, 400 (1991), highlights the "fundamental tension between the ideal character of the judicial office and the real world of electoral politics. . ." The Court quotes Justice Stevens about judge candidates financing a campaign: "Financing a campaign, soliciting votes, and attempting to establish charisma or name identification are, at the very least, unseemly for judicial candidates" because "it is the business of judges to be indifferent to popularity." The Office of an Office, Chicago Bar Rec. 276, 280, 281 (1974).

{2}"Your argument is that lower income judicial-qualified judicial candidates can't raise necessary funds, but that's a fact of life." See transcript of hearing on motions to dismiss in Excerpts of Record, tab 6 at 8. RT at 8.

{3} "The pathmarking voting and ballot access decisions are Harper v. Virginia Bd. of Elections, 383 U.S. 663, 664, 666, 86 S.Ct. 1079, 1080, 1081 (1966) (invalidating, as a denial of equal protection, an annual $1.50 poll tax imposed by Virginia on all residents over 21); Bullock v. Carter, 405 U.S. 134, 135, 145, 149, 92 S.Ct. 849, 852, 856-857, 858-859 (1972)(invalidating Texas scheme under which candidates for local office had to pay fees as high as $8,900 to get on the ballot); Lubin v. Panish, 415 U.S. 709, 710, 718, 94 S.Ct. 1315, 1317, 1320-1321 (1974) (invalidating California statute requiring payment of a ballot-access fee fixed at a percentage of the salary for the office sought)."

{4} Hussey distinguished between the "even-handed restrictions that protect the integrity and reliability of the electoral process itself," Anderson v. Celebreeze, 460 U.S. 780, 788 n.9 (1983) and restrictions struck down as unconstitutional. Hussey contrasted the ordinance's burden on the right to vote with the restriction on write-in votes found minor in Burdick, 504 U.S. at 441, and the brief residency requirement found minor in Marston v. Lewis, 410 U.S. 679, 680-8l (1973).

{5} Amici's suggestion that Washington v. Davis, 426 U.S. 229 (1976) requires plaintiffs to show intentional discrimination is also governed by M.L.B. v. S.L.J. When Mississippi made that same argument in M.L.B., the Court held that Washington v. Davis did not extend to proving unconstitutional discrimination where money determines whether persons can avail themselves of a state provided fundamental right. The Court held that Washington v. Davis does not apply when the impact is total exclusion of those who cannot pay and not merely a disproportionate exclusion. M.L.B., 117 S.Ct. at 569.

{6} The California Supreme Court has significantly diluted the usefulness of the provision by permitting counties to bill an indigent candidate and execute on the debt after the election. East Bay Municipal Utility Dt.v. Superior Court of Alameda County, 23 Cal.3d 839 (1979).

{7} California's recently passed Proposition 208 provides no relief for plaintiffs. Although its contribution limits apply to superior court judge campaigns, the contribution limits do nothing to provide funds for nonwealthy candidates and voters to finance a viable campaign.

{8} J. Raskin & J. Bonifaz, "Equal Protection and The Wealth Primary," Yale Law & Policy Review 1001 (1993); J. Raskin & J. Bonifaz, "The Constitutional Imperative and Practical Superiority of Democratically Financed Elections," 94 Columbia L.R.(1994).

TABLE OF AUTHORITIES

Cases

Anderson v. Celebreeze, 460 U.S. 780 (1983)
Baker v. Carr, 369 U.S. 186 (1962)
Buckley v. Valeo, 424 U.S. 1 (1976)
Bullock v. Carter, 405 U.S. 134 (1972)
Burdick v. Takushi, 504 U.S. 428 (1992)
Chisom v. Roemer, 501 U.S. 380 (1991)
City of Mobile v. Bolden, 446 U.S. 55 (1980)
Clements v. Fashing, 457 U.S. 957 (1982)
Davis v. Bandemer, 478 U.S. 109 (1986)
East Bay Municipal Utility Dt.v. Superior Court of Alameda County, 23 Cal.3d 839 (1979)
Erum v. Cayetano, 881 F.2d 689 (9th Cir. 1989)
Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992)
Griffin v. Illinois, 351 U.S. 12 (1956)
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)
Harris v. McRae, 448 U.S. 297 (1980)
Hussey v. City of Portland, 64 F.3d 1260, 1265 (9th Cir. 1995), cert. denied, ____U.S. _____, 116 S.Ct. 911 (1996)
Kaplan v. County of Los Angeles, 894 F.2d 1076 (9th Cir. 1990),
cert. denied, 496 U.S. 907, 110 S.Ct. 2590 (1990)
Lubin v. Panish, 415 U.S. 709 (1974)
Lyng v. Automobile Workers, 485 U.S. 36 (1988)
M.L.B. v. S.L.J., ___U.S. ___, 117 S.Ct. 555 (1996)
Marston v. Lewis, 410 U.S. 679 (1973)
Mayer v. Chicago, 404 U.S. 189 (1971)
NAACP v. Button, 371 U.S. 415 (1962)
Northeastern Florida Contractors v. City of Jacksonville, 508 U.S.656 (1993)
Regan v. Taxation with Representation of Washington, 461 U.S. 540 (1983)
Republican Party of Arkansas v. Faulkner County, Ark., 49 F.3d 1289 (8th Cir. 1995)
Reynolds v. Sims, 377 U.S. 533 (1964)
San Francisco Co. Democratic Party Central Comm. v. Eu, 826 F.2d 814 (9th Cir. 1987), aff'd, 489 U.S.214 (1989)
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986)
Terry v. Adams, 345 U.S. 461 (1953)
Turner v. Fouche, 396 U.S. 346 (1970)
Washington v. Davis, 426 U.S. 229 (1976)
Yick Wo. v. Hopkins, 118 U.S. 356 (1886)

Other Authorities

The Office of an Office, Chicago Bar Rec. 276 (1974)
J. Raskin & Bonifaz, "Equal Protection and The Wealth Primary," Yale Law & Policy Review 1001 (1993)
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