Lubin v. Panish 8212 6852

Decision Date26 March 1974
Docket NumberNo. 71,71
Citation39 L.Ed.2d 702,415 U.S. 709,94 S.Ct. 1315
PartiesDonald Paul LUBIN, etc., Petitioner, v. Leonard PANISH, Registrar-Recorder, County of Los Angeles. —6852
CourtU.S. Supreme Court

Petitioner, an indigent, was denied nomination papers to file as a candidate for the position of County Supervisor in California because, although otherwise qualified, he was unable to pay the filing fee required of all candidates by a California statute. He brought this class action in California Superior Court for a writ of mandate against the Secretary of State and the County Registrar-Recorder, claiming that the statute, by requiring the filing fee but providing no other way of securing access to the ballot, deprived him and others similarly situated of the equal protection guaranteed by the Fourteenth Amendment and rights of expression and association guaranteed by the First and Fourteenth Amendments. The Superior Court denied the writ of mandate; the Court of Appeal and the California Supreme Court also denied writs. Held: Absent reasonable alternative means of ballot access, a State may not, consistent with constitutional standards, require from an indigent candidate filing fees that he cannot pay; denying a person the right to file as a candidate solely because of an inability to pay a fixed fee, without providing any alternative means, is not reasonably necessary to the accomplishment of the State's legitimate interest of maintaining the integrity of elections. Pp. 712—719.

Reversed and remanded.

Marguerite M. Buckley, Venice, Cal., for petitioner.

Edward H. Gaylord for respondent.

Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to consider petitioner's claim that the California statute requiring payment of a filing fee of $701.60 in order to be placed on the ballot in the primary election for nomination to the position of County Supervisor, while providing no alternative means of access to the ballot, deprived him, as an indigent person unable to pay the fee, and others similarly situated, of the equal protection guaranteed by the Fourteenth Amendment and rights of expression and association guaranteed by the First Amendment.

The California Elections Code provides that forms required for nomination and election to congressional, state, and county offices are to be issued to candidates only upon prepayment of a nonrefundable filing fee. (Cal.Elections Code § 6551. Generally, the required fees are fixed at a percentage of the salary for the office sought. The fee for candidates for United States Senator, Governor, and other state offices and some county offices, is 2% of the annual salary. Candidates for Representative to Congress, State Senator or Assemblyman, or for judicial office or district attorney, must pay 1%. No filing fee is required of candidates in the presidential primary, or for offices which pay either no fixed salary or not more than $600 annually. §§ 6551, 6552, and 6554.

Under the California statutes in effect at the time this suit was commenced, the required candidate filing fees ranged from $192 for State Assembly, $425 for Congress, $701.60 for Los Angeles County Board of Supervisors, $850 for United States Senator, to $982 for Governor.

The California statute provides for the counting of write-in votes subject to certain conditions. § 18600 et seq. (Supp.1974.) Write-in votes are not counted, however, unless the person desiring to be a write-in candidate files a statement to that effect with the Registrar-Recorder at least eight days prior to the election, § 18602, and pays the requisite filing fee, § 18603. The latter section provides that '(n)o name written upon a ballot in any state, county, city, city and county, or district election shall be counted for an office or nomination unless . . . (t)he fee required by Section 6555 is paid when the declaration of write-in candidacy is filed . . ..' Thus, the contested filing fees must be satisfied even under the write-in nomination procedures.

Petitioner commenced this class action on February 17, 1972, by petitioning the Los Angeles Superior Court for a writ of mandate against the Secretary of State and the Los Angeles County Registrar-Recorder. The suit was filed on behalf of petitioner and all those similarly situated persons who were unable to pay the filing fees and who desired to be nominated for public office. In his complaint, petitioner maintained that he was a citizen and a voter and that he had sought nomination as a candidate for membership on the Board of Supervisors of Los Angeles County.1 Petitioner asserted that on February 15, 1972, he had appeared at the office of James S. Allison, then Registrar-Recorder of the County of Los Angeles, to apply for and secure all necessary nomination papers requisite to his proposed candidacy. Petitioner was denied the requested nomination papers orally and in writing solely because he was unable to pay the $701.60 filing fee required of all would-be candidates for the office of Board of Supervisors.

The Los Angeles Superior Court denied the requested writ of mandate on March 6, 1972. Petitioner alleged that he was a serious candidate, that he was indigent, and that he was unable to pay the $701.60 filing fee; no evidence was taken during the hearing. The Superior Court found the fees to be 'reasonable, as a matter of law.' Accordingly, the court made no attempt to determine whether the fees charged were necessary to the State's purpose, or whether the fees, in addition to deterring some frivolous candidates, also prohibited serious but indigent candidates from entering their names on the ballot. The Superior Court also rejected the argument that the State was required by Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), to provide an alternative means of access to the ballot which did not discriminate on the basis of economic factors.

On March 9, 1972, a second petition for writ of mandate was denied by the Court of Appeal, Second District, and on March 22, 1972, after the deadline for filing nomination, papers had passed, the California Supreme Court denied petitioner's third application for a writ of mandate.

Historically, since the Progressive movement of the early 20th century, there has been a steady trend toward limiting the size of the ballot in order to 'concentrate the attention of the electorate on the selection of a much smaller number of officials and so afford to the voters the opportunity of exercising more discrimination in their use of the franchise.'2 This desire to limit the size of the ballot has been variously phrased as a desire to minimize voter confusion, Thomas v. Mims, 317 F.Supp. 179, 181 (S.D.Ala.1970), to limit the number of runoff elections, Spillers v. Slaughter, 325 F.Supp. 550, 553 (M.D- .Fla.1971), to curb 'ballot flooding,' Jenness v. Little, 306 F.Supp. 925, 927 (N.D.Ga.1969), appeal dismissed sub nom. Matthews v. Little, 397 U.S. 94, 90 S.Ct. 820, 25 L.Ed.2d 81 (1970), and to prevent the overwhelming of voting machines—the modern counterpart of ballot flooding, Wetherington v. Adams, 309 F.Supp. 318, 321 (NDFla.1970). A majority of States have long required the payment of some form of filing fee,3 in part to limit the ballot and in part to have candidates pay some of the administrative costs.

In sharp contrast to this fear of an unduly lengthy ballot is an increasing pressure for broader access to the ballot. Thus, while progressive thought in the first half of the century was concerned with restricting the ballot to achieve voting rationality, recent decades brought an enlarged demand for an expansion of political opportunity. The Twenty-fifth Amendment, the Twenty-sixth Amendment, and the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. § 1973 et seq., reflect this shift in emphasis. There has also been a gradual enlargement of the Fourteenth Amendment's equal protection provision in the area of voting rights:

'It has been established in recent years that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population. See, e.g., Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Kramer v. Union School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 999, 31 L.Ed.2d 274.' San Antonio School District v Rodriguez, 411 U.S. 1, 59 n. 2, 93 S.Ct. 1278, 1310, 36 L.Ed.2d 16 (1973) (Stewart, J., concurring).

This principle flows naturally from our recognition that

'(l)egislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.' Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1382 (1964) (Warren, C.J.).

The present case draws these two means of achieving an effective, representative political system into apparent conflict and presents the question of how to accommodate the desire for increased ballot access with the imperative of protecting the integrity of the electoral system from the recognized dangers of ballots listing so many candidates as to undermine the process of giving expression to the will of the majority. The petitioner stated on oath that he is without assets or income and cannot pay the $701.60 filing fee although he is otherwise legally eligible to be a candidate on the primary ballot. Since his affidavit of indigency states that he has no resources and earned no income whatever in 1972, it would appear that he would make the same claim whether the filing fee had been fixed at $1, $100, or $700. The State accepts...

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