Canaan v. Abdelnour

Decision Date30 December 1985
Citation710 P.2d 268,40 Cal.3d 703,221 Cal.Rptr. 468
CourtCalifornia Supreme Court
Parties, 710 P.2d 268, 69 A.L.R.4th 915, 54 USLW 2371 Jack CANAAN et al., Petitioners, v. Charles ABDELNOUR, as City Clerk, etc., et al., Respondents. L.A. 32013.

Michael Schaefer, for petitioners.

Gregory Marshall, San Bruno, as amicus curiae on behalf of petitioners.

John W. Witt, City Atty., Ronald L. Johnson, S. Chief Deputy City Atty., Eugene P. Gordon, Chief Deputy City Atty., and Kenneth So, Deputy City Atty., Lloyd M. Harmon, Jr., County Counsel, Howard P. Brody, Chief Deputy County Counsel, and Susan J. Boyle, Deputy County Counsel, San Diego, for respondents.

BIRD, Chief Justice.

Does the City of San Diego's prohibition on write-in voting in municipal elections violate the state or federal Constitutions?

I.

The California Elections Code provides procedures for write-in voting in all federal, state and local elections. (Elec.Code, §§ 7300-7313, 17100-17102.) 1 However, the California Constitution authorizes charter cities to adopt municipal election regulations irrespective of general laws on the same subject. (Cal. Const., art. XI, § 5, subd. (b)(3).) Pursuant to this constitutional authorization, the charter City of San Diego has enacted regulations governing the conduct of municipal elections. At the time this action was brought, section 27.2205 of the San Diego Municipal Code prohibited write-in voting in all primary and general municipal elections. 2 On June 17, 1985, after oral argument in this case, the San Diego City Council amended section 27.2205 to allow write-in candidates and write-in voting in municipal primary and special primary elections. Write-ins are still prohibited in general municipal, special general and recall elections. 3 This court may take judicial notice of the amendment of the ordinance. (Evid.Code, § 452, subd. (b).)

Under San Diego's new scheme, a candidate may qualify for placement on the primary ballot by filing a nominating petition not later than 60 days before the primary election. 4 Write-in candidates may file nominating papers after the filing deadline, up to 14 days before the primary election. (San Diego Mun.Code, § 27.3209.) A candidate who receives a majority in the primary is elected. (San Diego Charter, § 10.) If no candidate receives a majority, the two candidates receiving the highest number of votes are placed on the ballot for the general elections. (Ibid.; San Diego Mun.Code, § 27.3210.) The only candidates for whom the electorate may cast valid ballots in the general election are those whose names appear on the ballot.

This case arose out of the San Diego mayoral election of 1984. Nine candidates qualified for the primary ballot, including the incumbent mayor.

After the filing deadline for the primary election had passed, but before the primary, a civil suit was filed by the San Diego District Attorney against the mayor, alleging certain irregularities in campaign contributions. In response to this development, petitioner William Brotherton sought to become a write-in candidate for mayor at the June primary. Petitioner Jack Canaan sought the opportunity to cast a write-in vote for Brotherton.

Petitioners filed an original petition for writ of mandate in this court in May of 1984. Named as respondents were the City of San Diego; Charles G. Abdelnour, the city clerk in charge of administering municipal elections; Raymond Ortiz, the San Diego County Registrar of Voters; and all the mayoral and city attorney candidates who had qualified for placement on the primary ballot. Petitioners sought to compel respondent Abdelnour to accept petitions for write-in candidates and to give effect to any write-in votes to be cast in the election. They also requested a stay of the mailing of sample ballots which contained a statement that write-in voting was prohibited. Petitioners argued that the prohibition on write-in voting was unconstitutional. They sought a resolution of the question in time for the June primary. (See Code Civ.Proc., § 44; Thompson v. Mellon (1973) 9 Cal.3d 96, 98, 107 Cal.Rptr. 20, 507 P.2d 628.) This court transferred the case to the Court of Appeal, which did not render a decision in time for the primary election.

The incumbent mayor was one of the two candidates who qualified in the primary election for placement on the ballot in the general election. After the primary election, the mayor was indicted for numerous alleged felonies. Petitioner Brotherton continued to seek the opportunity to become a write-in mayoral candidate, this time in the general election. Petitioner Canaan continued to seek the opportunity to cast his vote for a write-in candidate.

The Court of Appeal rendered its decision in September of 1984, upholding San Diego's ban on write-in voting. Petitioners then sought hearing in this court. Given the imminency of the general election, resolution of the issue in time to affect that election was not possible.

As a preliminary matter, it is clear that although the election is over the matter is not moot. "On numerous occasions in recent years, [this court] ha[s] decided such recurrent election issues although the particular election initially in question had long been completed." (Gould v. Grubb (1975) 14 Cal.3d 661, 666, fn. 5, 122 Cal.Rptr 377, 536 P.2d 1337.) 5 However, it is unnecessary to consider the repealed prohibition on write-in voting in primary elections. (See ante, fn. 2.) "[T]he version of the ordinance in force at present is the relevant legislation for purposes of this appeal." (Kash Enterprises, Inc. v. City of Los Angeles (1977) 19 Cal.3d 294, 306, fn. 6, 138 Cal.Rptr. 53, 562 P.2d 1302; see also 9 Witkin, Cal. Procedure (3d ed. 1985), § 254, p. 260.) Nor is the constitutionality of San Diego's new write-in scheme in primary elections at issue, since the validity of the new ordinance has not been briefed or argued by either party. This opinion will address only the constitutionality of San Diego's current prohibition on write-in voting at the general election. (See ante, fn. 3.)

II.

Petitioners argue that San Diego's ban on write-in candidates and write-in voting violates the equal protection clauses of the state and federal Constitutions. Respondents argue that the ban is permissible because the regulation of muncipal elections in charter cities is a strictly municipal affair. (See Cal.Const., art. XI, § 5, subd. (b)(3); Socialist Party v. Uhl (1909) 155 Cal. 776, 788, 103 P. 181.)

Although the city's power to regulate municipal elections is broad, that fact is not relevant to a constitutional challenge. This court addressed a similar argument in Gould v. Grubb, supra, 14 Cal.3d at pages 668-669, 122 Cal.Rptr. 377, 536 P.2d 1337. "The city emphasizes that the state and charter cities have traditionally exercised broad authority in regulating the mechanics of election procedures.... [p ] ... [L]egislative bodies retain considerable discretion in formulating election procedures and devising regulations for the form and content of ballots. [Citation.] As in all other areas of governmental action, however, the exercise of such discretion remains subject to constitutional limitations." 6

Although San Diego may regulate the conduct of its municipal elections, it may not do so in a manner which violates the guarantees of the state or federal Constitutions. It is, therefore, necessary to examine the constitutionality of San Diego's prohibition on write-in candidates and write-in voting.

Petitioners challenge the ban on equal protection grounds. They contend that strict judicial scrutiny is required because the ban infringes on the fundamental rights to vote and to run for public office. (See Gould v. Grubb, supra, 14 Cal.3d at p. 670, 122 Cal.Rptr. 377, 536 P.2d 1337.) Respondents argue that they must demonstrate only that the prohibition bears a rational relationship to a legitimate governmental interest. They assert that petitioners have defined no "suspect class" affected by the prohibition and that no fundamental right is implicated. Initially, it is necessary to consider whether an equal protection analysis or a more direct First Amendment analysis provides the proper constitutional framework in this case.

In analyzing constitutional challenges to election laws, this court has followed closely the analysis of the United States Supreme Court. (See, e.g., Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 798-805, 187 Cal.Rptr. 398, 654 P.2d 168; Gould v. Grubb, supra, 14 Cal.3d at pp. 669-675, 122 Cal.Rptr. 377, 536 P.2d 1337; Castro v. State of California (1970) 2 Cal.3d 223, 228-242, 85 Cal.Rptr. 20, 466 P.2d 244.) The high court has generally addressed the validity of election regulations under the equal protection clause. However, the basis for the court's selection of that approach and the precise nature of the equal protection tests employed has not always been easily discernable. And, as is true for equal protection doctrine in general, the standard of review utilized in voting and election cases has been in a state of flux. (See Johnson v. Hamilton (1975) 15 Cal.3d 461, 466-468, 125 Cal.Rptr. 129, 541 P.2d 881; citing Gunther, The Supreme Court, 1971 Term--Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection (1972) 86 Harv.L.Rev. 1, 10-15.)

For example, in Storer v. Brown (1974) 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714, the Supreme Court upheld a California Elections Code provision which denied placement on the ballot to independent party candidates who had been affiliated with a qualified party within one year prior to the primary election. In American Party of Texas v. White (1974) 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744, the court upheld a state election scheme which, inter alia, required independent candidates to demonstrate a certain minimum level of support before qualifying for placement on the...

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