Chote v. Brown, 72380.

• Decision Date: 09 March 1972
• Docket Number: No. 72380.,72380.
• Citation: 342 F. Supp. 1353
• Parties: Raymond G. CHOTE, Plaintiff, v. Edmund G. BROWN, Jr., Secretary of State of California, Defendant.
• Court: U.S. District Court — Northern District of California

342 F. Supp. 1353

Raymond G. CHOTE, Plaintiff, v. Edmund G. BROWN, Jr., Secretary of State of California, Defendant.

No. 72380.

United States District Court, N. D. California.

March 9, 1972.

Raymond G. Chote, in pro. per.

Evelle J. Younger, Atty. Gen. of the State of California and J. M. Sanderson, Deputy Atty. Gen., Sacramento, Cal., for defendant.

Before HAMLIN,^* Circuit Judge, and WOLLENBERG and SWEIGERT, District Judges.

MEMORANDUM OF DECISION

PER CURIAM.

Plaintiff alleges in effect that he has been advised by the Registrar of Voters of Santa Clara County that a fee of $425 must be paid in advance to entitle plaintiff to a place on the ballot for the June 6th primary election for the office of Representative to Congress from the 17th District; that plaintiff is financially unable to pay that fee and that March 10th is the closing date for filing.

California Elections Code, Section 6552 provides that the fee payable to the Secretary of State for filing a declaration of candidacy for the office of Representative in Congress shall be one percent (1%) of the first year's salary for that office, i. e., $425.

Section 6553 provides that the filing fee required to be paid to the Secretary of State shall be paid to the County Clerk at the time the forms for nomination are obtained; that the County Clerk shall not accept any papers unless the fees are paid at the time; that the County Clerk shall transmit the fees to the Secretary of State at the time he delivers the declaration of filing.

Plaintiff, contending that these statutes are unconstitutional and in violation of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States, asks for a declaratory judgment and a preliminary injunction.

The suit is brought under the Civil Rights Act, Title 42 U.S.C. Section 1983. The Court accepts jurisdiction under 28 U.S.C. Section 1343(3) and, sitting as a court of three judges as required by 28 U.S.C. Section 2281, has heard plaintiff's application for preliminary injunction and the State's opposition thereto.

It has already been held in this district that a provision of the Charter of the City and County of San Francisco, requiring prepayment of a $175 filing fee as a condition for placement of a candidate's name on the ballot for the office of Supervisor, is a discrimination against those who are unable to pay the fee and a violation of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States. Kim Wong v. Mihaly, 332 F. Supp. 165 (N.D.Calif.1971).

That decision, after consideration of conflicting decisions among other districts, cited and relied upon a series of cases holding in effect that a law prohibiting candidates from getting their names on the ballot solely because they cannot post a certain amount of money is unconstitutional as a deprival of equal protection of law; that such a statute can stand only when there is some alternative method whereby a candidate who is unable to pay the filing fee, can get on the ballot either by nominating petition, primary election or pauper's affidavit. Georgia Socialist Workers Party v. Fortson, 315 F.Supp. 1035 (N.D.Ga. 1970); Jenness v. Little, 306 F.Supp. 925 (N.D.Ga.1969)¹ and, specifically, upon Carter v. Dies, 321 F.Supp. 1358 (N.D.Tex.1970), which has been recently affirmed by the Supreme Court of the United States in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).

Our pending case is the first to arise since the Supreme Court has spoken and, of course, that decision is controlling here.

In Bullock, the Supreme Court considered a Texas primary election statute which set up a system of filing fees for various offices.² The Court (p. 149, 92 S.Ct. p. 859) although recognizing the validity of "reasonable candidate filing fees or licensing fees in other contexts," concludes that by requiring a candidate to shoulder the costs of conducting primary elections through filing fees and by providing no reasonable alternative means of access to the ballot is to erect a system which utilizes the criterion of ability to pay as a condition to getting on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the opportunity to vote for candidates of their choice.

The Supreme Court, although recognizing (p. 147, 92 S.Ct. p. 858) that the state has a legitimate interest in using filing fees to relieve the state treasury of the cost of conducting primary elections, concludes that "there must be a showing of necessity."

In the present case no showing has been made by the state that covering the costs of elections is even the purpose of the statutory filing fee here in question. On the contrary, the statute ties the filing fee, not to election costs or costs of the filing process, but arbitrarily to the salary of the office sought. Further, even if such were the state purpose, the Supreme Court (p. 148, 92 S.Ct. p. 858) indicates that, when it is speaking of "reasonable" candidate filing fees, it has in mind merely filing fees sufficient "to cover the cost of filing, that is, the cost of placing a particular document on the public record." No showing has been made that such is either the purpose or extent of the filing fee here in question.

The Supreme Court, although recognizing the state has a legitimate interest in regulating the number of candidates on the ballot to prevent the overcrowding of the ballot, the clogging of its election machinery and voter confusion, concludes (p. 145, 92 S.Ct. p. 857) that "a State cannot achieve its objectives by totally arbitrary means" and that if the state's purpose is to weed out spurious candidates, "other means to protect those valid interests are available."

Further, the Supreme Court, pointed out (p. 137, 92 S.Ct. p. 852) that under the Texas primary election law "There is no alternative...