BROWN v. CHOTE

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Argument of Henry G. Ullerich

Chief Justice Warren E. Burger: -- in 71-1583, Brown against Chote.

Mr. Ullerich, you may proceed whenever you are ready.

Mr. Henry G. Ullerich: Mr. Chief Justice and may it please the Court.

The constitutionality of the California candidate filing fee system is the subject of this direct appeal on the judgment of a three-judge Federal District Court, granting a preliminary injunction against the California Secretary of State and the various county clerks in the State of California.

The injunction in affect mandated the California Secretary of State to accept declarations of candidacy in the last primary election without payment of the statutory candidate filing fee of 1% of the annual salary of the office sought.

At least as to those members of the class of the plaintiff below who were willing to file an affidavit with the county clerk that they had insufficient money or property to personally pay the candidate filing fee.

The issues presented by this appeal from the judgment granting a preliminary injunction is, does California Elections Code, Section 6552, which imposes the statutory filing fee violate the Equal Protection Clause of the United States Constitution.

Subsidiary issue is what is the appropriate standard of review when this statute is challenged in the judicial proceeding.

An additional issue is whether this case is controlled by the decision last term in Bullock versus Carter, 405 U.S. 134 and the final issue is if a less stringent standard of review is applicable herein, other than the standard imposed in the Bullock case, does the California candidate filing fee have a rational basis which would be sustained under the traditional rational basis test under the Equal Protection Clause?

Factually, California requires a party primary election in even numbered years preceding the general election.

For the name of a candidate to appear on the primary ballot in June of even numbered years, the candidate must obtain declaration of candidacy forms from the county clerk and at that time, he is required to pay a candidate filing fee.

There is no method for a candidate’s name to appear on the primary ballot without paying the candidate filing fee.

Basically for state or federal office, that fee is either 1% or 2% of the annual salary of the office.

Justice Harry A. Blackmun: In that respect, why is it the percentage, why isn’t a flat fee?

Isn’t it cost the state as much to process something for the dog catchers, it does for United State Senate?

Mr. Henry G. Ullerich: The answer to that I believe, Your Honor, is that the -- a particular flat fee over the years with the inflation that we have would tend to be perhaps minimal at one period of time and then become rather excessive in other periods of inflation or depression periods.

I think the annual salary, I mean, the basis the annual salary is pegged in more to the actual benefits at the end of a rainbow, if you will, and as the salary changes, the fee also changes somewhat.

I think also, there is a consideration of rather than being pegged at a very minimal fee of say, as was suggested in one case of $10.00 or $15.00 to handle the actual cost of handling the papers would not achieve the state objective that these candidate filing fees are designed achieve, that is to avoid overcrowding of the ballots fragmentation of votes or discouraging frivolous candidates.

The fee must be something more than a merely nominal fee to accomplish that purpose.

Justice Harry A. Blackmun: But you are charging candidate A more than candidate B, if they are not running for the same office?

Mr. Henry G. Ullerich: That is true, Your Honor.

As you’ll see from our statutes that are reported in our brief that these would vary from no fee at all, if there is really no compensation for the office to 1% or 2%, and the distinction for the 1% or 2% that seems to be apparent in the statute is that let's say statewide office, for instance the United State Senate or a Governor or Lieutenant Governor and so forth, there would be some activity on the part of 58 county clerks or county registrars or voters in regard to that particular candidate whereas if you’re running from a particular district such a member of Congress or State assembly or State Senator, there is usually only one particular county or a limited district that would be involved in processing those papers.

Justice Potter Stewart: But then also as I understand your argument, you first quote the language in Bullock, recognizing that the state has a legitimate interest in regulating the number of candidates on the ballot and preventing clogging of its election machinery by frivolous candidates.

And your argument is that a $10.00 or $15.00 fee wouldn’t keep a candidate for Senator or Governor for a wholly frivolous, a non-serious one off the ballot.

You need a higher figure to accomplish the state purpose whereas a $10.00 or $15.00 fee probably would keep off frivolous candidate for dog catcher, isn’t right?

Mr. Henry G. Ullerich: That would be true, Your Honor.

I think we have -- we are not riding on our clean slate anymore following that language in Bullock.

As we pointed out in our brief down in New Mexico, a Federal District Court invalidated the 6% of the annual salary filing fee for candidates for the United State Senate.

Following that Federal District Court ruling, there were 40 candidates who filed for the United State Senate and appeared on that ballot.

Only four of which paid the candidate filing fee.

We haven't had a real experience in California because the decision below was rendered on March 9, 1972.

March 10th was the cutoff date for candidates to get their declarations of candidacy and their sponsor certificates into the county clerk.

So with the limited publicity and the limited time, we haven't had the full experience.

But if we can extrapolate a little bit from New Mexico to take, say the city of Los Angeles, if one candidate for every 50,000 people would appear on the ballot, we would have like 50 candidates running for Mayor of the city of the Los Angeles, and certainly there has to be something, some gauge to make sure that candidates have a modicum of support and a sufficient backing to really be termed a serious candidate.

Justice Thurgood Marshall: Why?

Mr. Henry G. Ullerich: And one --

Justice Thurgood Marshall: Why?

Why can’t an individual citizen of this state that had no more support than himself have a right to run for any office?

Mr. Henry G. Ullerich: Well, I think the reasons we have to give for that is really by history of a candidate filing fee, Your Honor is that, the part of it, the -- these candidate filing fees came into avoid this overcrowding.

Really the theory was to give people a more rational choice by limiting their choice somewhat. If you have too many candidates, you really couldn’t understand all of the issues in the candidate.

you couldn’t really make a rational decision and secondly, we have certain limitations like in California --

Justice Thurgood Marshall: Then, they would -- you could have a selected one and only have two.

Then you could understand them real well.

Mr. Henry G. Ullerich: Yes.

Well, what I’m saying also was in 58 counties in California --

Justice Thurgood Marshall: But why do you have it on the -- is this gross or half of the income tax?

Mr. Henry G. Ullerich: Well, this is on the gross.

Justice Thurgood Marshall: Gross, yes.

Mr. Henry G. Ullerich: For instance, for a member of Congress which is 42,500, the fee would be $425.00, and --

Justice Thurgood Marshall: And you think that no man would -- who doesn’t have $400 has a right to run?

Mr. Henry G. Ullerich: Well, I’m saying really that the personal well for lack of wealth of the individual candidate is really not the critical issue is that, we all know campaigns cost a lot of money that Mayor may not be a good thing but campaign’s cost a lot of money.

I think at the last election, the newspapers were talking about $400 Million from contributions to candidate.

And what I’m saying is if it takes candidates say spend $50,000 or a $100,000.00 to run to be a member in Congress, if you have sufficient support in your community or your interest group to be a serious candidate for that position and there’s nothing in the law that say that the $425.00 can’t come from contributions of your supporters.

Is that really that that is a fee that just substantial enough to really make sure that you’re going to make a serious run for this office.

Justice Thurgood Marshall: Then you say both candidates, use your language in this day and age, just have no chance to run?

Mr. Henry G. Ullerich: No, I’m saying that a poor man has a good chance of running.

If he goes out -- we have something different --

Justice Thurgood Marshall: Well, the poor man without a rich friend to run?

Mr. Henry G. Ullerich: Poor man without a rich friend?

He would have --

Justice Thurgood Marshall: If he had budget?

Mr. Henry G. Ullerich: He would have to -- if he wants to run -- run in the spring of 1974 for instance he knows what our statutory fee is and has been for good many years.

He knows a long way in advance as to how much money he is going to have to gather from contributions, from friends, relatives and supporters to really conduct a serious campaign.

And one facet of that, that he is going to have to consider is he at least going to have to raise the filing fee before his name is going to appear in the ballot.

Chief Justice Warren E. Burger: Was it your brief or an amicus brief that made the point that if a man is a serious candidate he should have no trouble finding 425 people who can contribute a dollar an each.

Is that your --

Mr. Henry G. Ullerich: We, that as an example, yes Your Honor.

We’re saying that -- it was part of our point that the personal wealth or the lack of property of the individual should really not be that significant.

If he’s meeting in his locality, if he’s gearing up to run for the office, he really can go around and collect the dollar or two from his supporters and if he’s really a serious candidate, that should not be an insurmountable burden to keep him off the ballot.

Justice William H. Rehnquist: Well, I take it if you can’t raise $425.00 and plans to run for Congress, his candidacy is pretty well fore doomed, regardless of whether there is a filing fee or not.

If he can’t raise some money to conduct a campaign, he isn't a serious candidate even though there were no filing fee.

Mr. Henry G. Ullerich: Yes Your Honor, we agree with that, is that this is merely a threshold requirement really to test his seriousness as to whether he has a sufficient backing in the community to take a place on the ballot and we have to consider also, on with the various types of machines.

We don’t have one standard type of machine in California.

Some counties have voting machines, some counties have Automatic-type no books that open up and I think the number of candidates and issues appear on the ballot is a serious consideration nowadays.

You may have seen the one we have the primary in California in 1972, due to the length of time, it was taking people to vote in San Francisco the polls there remained open an additional three hours to allow people to vote.

I think that this --

Justice Thurgood Marshall: Because of the length of the ballot?

Mr. Henry G. Ullerich: That was one of considerations, yes.

The length of --

Justice Thurgood Marshall: So, you didn’t cut it down, did you?

Mr. Henry G. Ullerich: Well as I said, the decision in the case was on March 9, 1972 and there was only a period of 24 hours for people to learn about the decision.

The members of the class represent by appellee and go out and obtain the papers from the county clerk, go out and get the required number of signatures from their supporters and get back into the county clerks.

So, we really haven't had a real live experience of it.

Justice Thurgood Marshall: But on your question of if the man can’t get enough support, I might very well be willing to vote for you for office and yet not be willing to give you a single nickel, right?

Mr. Henry G. Ullerich: That’s true Your Honor.

Justice Thurgood Marshall: Am I thinking you are the greatest man in the world, but I mean not -- I don’t have the money to hand around.

What you really mean is the man has to show that he has financial support, not political support, am I right?

Mr. Henry G. Ullerich: That would be inclined to agree with that and I also would add that the way that our election system has been operating for a substantial period of time, you really can’t separate the two to determine a serious candidate.

Perhaps, if we had some other method or campaign financing we wouldn’t have that problem, but they way that was setup at the present time, money and serious candidacy appear to go hand-in-hand.

Justice Harry A. Blackmun: (Inaudible) go in California?

Mr. Henry G. Ullerich: In California, there is a division between the Counties and the State for what we term state or federal offices that is the Governor, the Lieutenant Governor or the State Assembly, the State Senate, members in Congress.

These fees are actually collected by the county clerks, who were the ones who pass out the papers to the aspiring candidate.

Those fees are then transmitted to the California Secretary of State and they go into the State Treasury basically.

For local candidates, candidates within a particular county, the county supervisors, the District Attorney, the Superior Court Judges --

Justice Harry A. Blackmun: They go into the general revenue?

Mr. Henry G. Ullerich: They would go into the general county revenues and both the state and county to carry that through would have some substantial election expense.

Probably, the counties have more than the states because they hire the election officers out of the precincts and print --

Justice Harry A. Blackmun: There’s an intimation in the ACLU amicus brief that never has there been an appropriation of the fees made for the Election Commission, is this correct or not?

Mr. Henry G. Ullerich: This is hard to be specific, Your Honor.

They’re pointing to a particular state budget for this reason.

As the funds collected by the Secretary of State for candidate filing fees are delivered from his office into the general fund.

This commission has referred as comprised of the Secretary of State who is really a state election official, the Attorney General and one other officer and each of these three departments are funded by appropriation from the general fund.

So, you can’t earmark a particular follow the candidate filing fee system into the general treasury and out of the general treasury.

But in a sense, they go into the general fund and funds come out of the general fund to finance the operations of these particular departments.

So, we can’t say X number of dollars have been appropriated for that commission, no, Your Honor.

Justice Byron R. White: Would you take the same position in the District Court as you did here, as you are arguing here?

Mr. Henry G. Ullerich: In the District Court, Your Honor, the matter moved very rapidly.

The case or the final date for filing the declaration of candidacy was March 10, 1972.

The complaint below was filed on March 3rd, one week before, where they return to the order to show cause on March 8th.

Our office filed in effect a legal argument that the contention -- that the claim failed to state a claim upon which really can be granted and we cited legal authority and also pointed out the matter of the budget of the Secretary of State, but it was basically a legal --

Justice Byron R. White: So, the District Court was quite right when it said since no showing has been made by the state concerning either the necessity, the purpose or the reasonableness of the filing fee statutes in question we conclude that they’re invalid?

Mr. Henry G. Ullerich: Well, I can't agree to what showing would be necessary.

I think this argument which we --

Justice Byron R. White: I’m just interested --

Mr. Henry G. Ullerich: Right.

Justice Byron R. White: You didn’t even make the argument or the showing that you are now presenting here in this Court?

Mr. Henry G. Ullerich: No, we made that argument.

We filed in the original records you will see, we have superior court cases in the state in the state --

Justice Byron R. White: So, you made -- you made the argument that this was necessary to keep a non-serious candidates off the ballot?

Mr. Henry G. Ullerich: That is correct Your Honor, and we cited various cases around the country that --

Justice Byron R. White: And what that -- what’s the source of this statement then that you made no showing, is it that there wasn’t evidence introduced --

Mr. Henry G. Ullerich: That’s the only thing that I can think.

There were no evidentiary testimony taken in the brief District Court proceeding as to perhaps experience, only I can think of would be experience that we have had in cases where we didn’t have the candidate filing fees or statements of politicians as to what it takes to be a serious candidate.

There was no such evidence presented but there was basically the same legal argument presented that we are making here.

Justice Potter Stewart: General Ullerich, something rather fundamentally in this case causes me concern.

It’s argued as I understand it on both the briefs and basically in your oral argument here as though the whole filing fee scheme had bee struck down as violate of the Equal Protection Clause and yet I understand that all that the court held was that an indigent, an indigent or at least a functional indigent, a person who could not afford personally to pay this fees could not be required to pay them.

Isn’t that the extent of the holding of the court?

Mr. Henry G. Ullerich: That was the extent of the injunction, yes.

Justice Potter Stewart: Well, that’s all then we’re dealing with, isn’t it?

Mr. Henry G. Ullerich: But, that --

Justice Potter Stewart: We’re not in other words, analogizing it to Griffin against Illinois.

It’s not a case where the whole filing fee requirement of a transcript for it to be paid for is struck down.

But just that it cannot be constitutionally applied to a person who is absolutely indigent or at least, so absolutely that he can't afford to pay these rather small fees, isn’t that all in this Court?

Mr. Henry G. Ullerich: That was the precise wording of --

Justice Potter Stewart: Well then that’s all we’re dealing with, isn’t it?

Mr. Henry G. Ullerich: Well, I’m not so sure we’re limited to that because it seems to me if the statute is unconstitutional as the Court predicated its decision, there was a good argument that it should be unconstitutional as to all --

Justice Potter Stewart: Well, maybe there might be a good argument at some other case, but in this case, isn’t that all that this Court held?

It’s like Boddie against Connecticut, didn’t strike down filing fees for people who want to get divorces, but it just said they could not be assessed against somebody who is absolutely unable to pay them.

Mr. Henry G. Ullerich: That’s what --

Justice Potter Stewart: And file an affidavit to that effect?

Mr. Henry G. Ullerich: That was the precise holding of the court below.

Justice Potter Stewart: But, it’s argued here as though the holding was something quite different, I think.

Mr. Henry G. Ullerich: But no, that was that the precise holding, but what we’re arguing and part of the reason why we perhaps broadened it is that, we are concerned with this distinction really that the Court is making between an indigent gaining a place on the ballot through this means devised by the Court as opposed to a hard-working employed man who perhaps really has political ambitions and skill and ability, but because he’s put aside a minimal amount of money to send his children to college or to care for the necessities of life, and he wants to run for office, he is going to have to pay this $425.00 filling fee.

Justice Potter Stewart: And all that concern goes through all of the American society, hospitalization and everything else, but am I wrong and thinking that the precise holding of this Court in this case was not that the filing fees violate the Equal Protection Clause, but simply that it would violate the Equal Protection Clause to require an indigent to pay them, am I mistaken about that?

Mr. Henry G. Ullerich: I guess I the terminologies the court would use if they would declare the statute unconstitutional as applied to the --

Justice Potter Stewart: To somebody who filed an affidavit that he could not pay them?

Mr. Henry G. Ullerich: That he did not have personally the money or property to pay the candidate filing fees.

Justice Potter Stewart: Right.

Chief Justice Warren E. Burger: But even as so limited, that doesn’t meet the problem that you raise that there might be 66 candidates for Congress on the ballot that doesn’t meet that problem, doesn’t it?

Mr. Henry G. Ullerich: It certainly does not and let me give another example as to where the decision below leads us.

Shortly after that decision hit the newspaper, we had a letter from a Government teacher in high school, who was really upset that all of his 18-year-old students could not file for county supervisor because they were glad to file the pauper’s affidavit that they did not have sufficient money or property and thought it would be a good experience for them to run for that office.

So, this merely illustrates as just too where this decision leads us as far as crowding the ballots or frivolous candidacy is concerned.

The --

Justice Lewis F. Powell: Mr. Attorney General, does California use for any office the system that’s prevalent in many states of requiring petitions signed by specified percentage of the vote in the last election?

Mr. Henry G. Ullerich: California does not at this time have such a system.

The -- some of the lower or the Federal District Court decisions have intimated that such an alternative would be desirable.

I question as to whether that is a sure fire alternative means to the problems that we express.

It may involve money to get a lengthy nominating petition either to go out and hire somebody to gather the signatures, we have this problem quite frequently in California with our statewide initiatives.

You may have to get someone to go out and stand in the shopping center to collect the signatures and they might want some nominal money to do that, assuming you have a lengthy nomination.

There maybe some charge by the county clerks who will then have to check those signatures to see if they are qualified signatures.

For instance, registered voters to determine just who were signing these petitions.

There is some case law for instance in New Mexico, the New Mexico Supreme Court pointed out that they have tried this and it really wasn’t very effective because people have an inclination to sign anything whether they really know the person and know whether is a bona fide candidate or not.

That also again, I think is an element of discrimination against the person who for instance is employed and doesn’t have the time to go out and gather the signatures that the unemployed or the indigent person might have.

And of course, it will again open up the argument that requiring a lengthy nominating petition of say 3,000 signatures might be a more onerous requirement than somebody who is more affluent would be able to simply right out a check.

So, I’m not sure that that’s a final solution.

I think its something certainly more legislatures including the State of California could seriously consider, but I don’t feel it’s a matter of constitutional mandate that every alternative has to be tried in cases such as this.

We didn’t -- well, on this point, too much on the brief, but the Bullock case decided last term concluded in that case that because of the Texas candidate filing fee system which basically was a fee which prospective candidates couldn’t know in advance, it was a fee determined by the county political committee as an assessed cost of the total cost of the primary elections.

There was some suggestion in that case that the strict standard of review may not apply in those jurisdictions which have a more reasonable candidate filing fee.

I would merely like to point out at this time that I think this problem that we have about -- if a case involves an actual deprivation of voting, such as the durational residency of those cases where the state has the burden of justifying the statutes by a compelling public interest, as opposed to the old traditional rational basis test.

It may not be an either or.

We really have a case here that perhaps because there is some association of voters involved.

There is obviously elections and some voting rights are tangently involved that perhaps, there’s really as a test somewhere in between where there is neither a presumption of constitutionality nor such an overwhelming burden on the state to justify the statutes and I think we’re saying here that either of these three tests, we think we have a sufficient quantum of state interest to justify these laws where we feel quite confident that this case really doesn’t fall in the same category as those cases which involve that actual deprivation of voting rights so that terribly stringent standard would be applicable.

Justice Potter Stewart: You think there maybe as many as three tests, do you?

Mr. Henry G. Ullerich: That’s what I’m really suggesting that the --

Justice Potter Stewart: How about the -- do you think there might be more than that?

Mr. Henry G. Ullerich: A standard --

Justice Potter Stewart: There could be an infinite number of tests, I suppose couldn't there?

Mr. Henry G. Ullerich: That’s true.

Justice Potter Stewart: Depending upon which test -- if the majority of the Court was -- and decided to invalidate a state law, they would annunciate the test that was required to do so.

Mr. Henry G. Ullerich: Very -- Just one quick point.

The amicus brief that was filed by the American Civil Liberties Union as cited an intermediate Court of Appeal decision in California, the Zapata case which was decided last spring, I’d really want to point out here that the California Supreme Court granted a hearing in that matter, and the case was argued before the California Supreme Court on September 5, 1972 and that Court has not issued a decision.

Under California law, when the California Supreme Court grants a hearing, the intermediate Court of Appeal opinion is as dead as anything can be and I can only guess that perhaps our State Supreme Court is aware of this case and is deferring a final judgment in the Zapata case.

So, that case is no authority.

Justice Thurgood Marshall: God didn’t wait for us on capital punishment?

Mr. Henry G. Ullerich: I really don’t mean the second guess that Court.

In conclusion, I really want to say that I think a substantial but a reasonable candidate filing fee is necessary to further the state interest that have been adverted to in many judicial decisions.

There maybe other means to accomplish those same goals, but we have practical history in California for over 60 years and many other states have fees that are in somewhat the same range, they vary and it where from 1% up to 5% or 6%, but I believe, there’s other means and matters for legislative consideration.

We think that totality of a state interest that we describe do justify our candidate filing fees under the Equal Protection Clause.

Thank you.

Chief Justice Warren E. Burger: Mr. Elman?

Argument of Phillip Elman

Mr. Phillip Elman: Mr. Chief Justice, may it please the Court.

The essence of this case as we see it, is that the State of California bars a citizen from running for Congress or for almost every other elective public office unless he first pays to the State, a substantial sum of money described, perhaps euphemistically, as a filing fee and Chief Justice’s opinion for the Court last term in Bullock, footnote 29, he indicates that the term “filing fee” is perhaps a misnomer.

Since the amount of the fee, there is no relation whatsoever to the cost of filing or processing the application.

It’s fixed rather on the basis of a percentage, in case of California, 1% or 2% of the first year’s salary for the office sought.

Mr. Ullerich --

Chief Justice Warren E. Burger: Mr. Elman, I’m sure you’ve read the Bullock case more recently than I have in connection with this argument, but wasn’t the vice in the Bullock case that Texas was making the candidates in a primary bear the entire cost of the election as distinguished from any filing process?

Wasn’t that the essence of the Bullock case?

Mr. Phillip Elman: Well, Your Honor, --

Chief Justice Warren E. Burger: And it was delegated to political parties and not to state officials?

Mr. Phillip Elman: I wouldn’t presume to tell the Court what the essence of the case so recently decided was, even though I have read it in the last few days --

Chief Justice Warren E. Burger: Aren’t those the facts?

Mr. Phillip Elman: It was certainly a -- the Bullock case, the Bullock case like this case embodies a number of facts highly favorable to the candidate in attacking the constitutionality of the filing fee system.

In Bullock perhaps, the case was even stronger in that fees were extraordinary large, particularly in relation to the local offices.

Chief Justice Warren E. Burger: $8000 or 9,000 for some offices?

Mr. Phillip Elman: County judge, county judge, the fee could be fixed as high as $8,900.00 and the two offices that were particularly involved in the Bullock case, County Commissioner fee was $1,400.00 and the county judge, another office and another county was $6,300.00.

Now, the Court as Your Honor points out, emphasized that the full burden of the costs of conducting that primary election in Texas were imposed on the candidates, and that had the necessary consequence of making the size of the fees very large and that was a factor, one of the factors that was stressed in the Bullock opinion.

The Bullock opinion went beyond that and as we read it, the Bullock case stands for the proposition that where a filing fee is imposed by the state and where it has the effect of excluding candidates from access to the ballot and thereby necessarily disenfranchising their supporters if a candidate is not on the ballot, his supporters have no opportunity to vote for him and in the very real sense, their right to vote in relation to them is not a meaningful effective right.

So that the court in Bullock was dealing, although the context factually was one of candidate filing fees, with an impairment of the right to vote and it applied to that classification based as it was upon wealth or the lack of it, influent, affluence, poverty, money, a classification which the court has held is highly suspect one.

A classification which had as it necessary result, the impingement of the fundamental constitutional rights of voting and political association.

The court applied the compelling interest test, held that the state had not borne the heavy, if not impossible burden of justification that arises in such a case and held it unconstitutional.

Now in this case, the fees imposed by the State of California are not as large.

The candidates are not required as --

Justice Potter Stewart: In that case Mr. Elman, am I not --

Mr. Phillip Elman: I beg pardon sir?

Justice Potter Stewart: Am I correct in recalling that in the Bullock case, the Court invalidated the whole system of so-called filing fees.

And by contrast in this case, your brother has confirmed by understanding that in this case, all that was held was it indigents could not be compelled to pay them.

So, isn’t this in more Bullock like case, isn’t this more a Boddie like case, Boddie against Connecticut?

Mr. Phillip Elman: I’m not sure that the Bullock case can be distinguished on that ground Your Honor.

Justice Potter Stewart: But what is the holding in the Bullock case?

Mr. Phillip Elman: As I recall it --

Justice Potter Stewart: What was the ultimate holding in the Bullock case?

Mr. Phillip Elman: The ultimate holding in the Bullock case was it was a --

Justice Potter Stewart: That scheme was invalid, wouldn’t it?

Mr. Phillip Elman: -- was a declaration by this Court that the scheme was invalid.

Justice Potter Stewart: Here, there’s not such holding?

It's just a holding that indigents can’t be compel to pay the fees?

Mr. Phillip Elman: The District Court dealt with this case on the basis of an application for preliminary injunction and the state is here appealing --

Justice Potter Stewart: Right.

Mr. Phillip Elman: -- from the preliminary injunction.

So, we have not yet had a declaration of unconstitutionality by the District Court.

Justice Potter Stewart: And the injunction --

Mr. Phillip Elman: And --

Justice Potter Stewart: Is matter only to those who file affidavits of -- they actually pay, isn’t it?

Mr. Phillip Elman: But the injunction was also so limited in the Bullock case.

Justice Potter Stewart: Was it?

Mr. Phillip Elman: Yes sir, as I recall.

I’m I --

Justice Potter Stewart: I didn’t know --

Mr. Phillip Elman: -- unless my memory fails me very badly, but the difference in the posture of the case is, this that here we are -- here the Court has before an appeal by the state from a preliminary injunction.

Bullock had an appeal from -- by the state from a District Court declaring the system unconstitutional.

Thus, permit the Court, if it so chooses to treat this case very narrowly and to deal only with the question of whether the California system has applied to indigents.

And its exclusion of indigent candidates from the ballot is unconstitutional leaving wholly open, the question of the validity of the scheme as applied to someone who is able to pay, who is willing to pay and so on.

That of course is --

Justice Potter Stewart: Well, may be I quite misunderstood the terms of that preliminary injunction, but I had understood that the way I indicated it, that would -- if I’m correct in that, then it would be equally applicable if the favor just $1.00 a candidate across the board.

If a person files an affidavit, then, I’m sorry, I haven’t got a dollar, I’m an indigent, I can’t pay it.

Even though that were the fee, then under a reasoning of Boddie, if it’s applicable to this situation then, he could not be required to pay it.

Mr. Phillip Elman: Mr. Justice Stewart, let me hasten to say that you’re right in your reading of the preliminary injunction in this case.

It is limited to application --

Justice Potter Stewart: And why do I --

Mr. Phillip Elman: By indigent candidate, and I agree with you.

You do not have to go and I'm somewhat reluctant to tell Your Honors how far you can go or should go or required to go.

Justice William H. Rehnquist: Mr. Elman, could we treat it even more narrowly than Justice Stewart has indicated and say simply that simply this was a preliminary injunction that Bullock afforded a reasonable argument for the trial court to grant preliminary relief and not even pass on the constitutionality in the final sense of the California system, even as applied to indigents here?

Mr. Phillip Elman: I can’t disagree with you Your Honor.

If the Court chooses, chooses to treat this case so narrowly as raising only the question of whether the District Court was justified on the basis of the preliminary showing made by the plaintiffs and the response of the State to grant a preliminary injunction, the state did come up here on a direct appeal.

The state is argued the case as if did squarely present the constitutionality of the California system.

It’s true that there are cases right behind this one that are coming along that do raise the constitutionality of these candidate filing fee systems.

The language of the Bullock case stressing as it did and quite properly, the factual elements of that case, including the element that the entire cost of the primary was borne by the candidates unlike the other states.

Chief Justice Warren E. Burger: And that the political committee, not a public official fixed the amount of the fee?

Mr. Phillip Elman: Yes, that’s right sir.

Plus the fact that the Court did note probable jurisdiction.

It did not affirm summarily as led me, as counsel for appellee to suggest to the Court that while affirmance is clearly required, there are several roots by which you can reach that from our standpoint desirable conclusion.

And one of the roots, one of the roots is clearly marked out by as Mr. Justice Stewart has suggested by cases in this area.

The principal one being Harper against Virginia Board of Elections, involving a fee of $1.50, where the Supreme Court held that the payment of any fee, in any amount --

Unknown Speaker: By anybody.

Mr. Phillip Elman: -- by anybody, thank you, was a violation of Equal Protection Clause of the Fourteenth Amendment.

So whether it’s $425.00 in the case of man running for Congress or $850.00 for a candidate for the Senate or $982.00 for in case of candidate for Governor, if the fee cannot be justified by a legitimate state interest regardless the amount, it is unconstitutional, and that if the Court --

Justice Potter Stewart: If a fee can be justified as against those who can afford to pay the fee, it’s nonetheless might violate equal protection to charge it against somebody who could not possibly comply with the law because he is absolutely indigent, wouldn’t it?

Even though court fees are presumably justified and we held in Boddie that they couldn’t be assessed against somebody who absolutely was unable to pay them?

Mr. Phillip Elman: That’s right.

Justice Potter Stewart: But it doesn’t mean that court fees are not wholly justified?

Mr. Phillip Elman: Well, it depends on the basis upon which the filing -- basis on which the filing fee requirement is struck down.

In Boddie as in all -- even in Griffin, the defendants in criminal cases who can afford to pay for transcripts of the record where required to do so.

In Boddie and in Griffin and in cases of that category, in the (Inaudible) case which was up here early this term, you’re dealing, you’re dealing with, you’re dealing with requirements made by the State which are valid as applied to non-indigents.

But when you’re dealing with a fee on the act of voting as in Harper, then the -- as I read the cases, the holding that the fee is unconstitutional applies not only to those who are too poor to pay the fee, but to those who have no difficulty paying them.

Chief Justice Warren E. Burger: Mr. Elman, you I think in your brief have made a point of the lack of any alternative on the part of the indigent person who wants to be a candidate.

Would you think for example, that if in the California statute, they provided that an indigent who could not pay or possibly that as an alternative for any person paying $425.00, you have petition signed by 425 registered voters in the jurisdiction before a notary public or requiring or requesting that he be placed on the ballot.

Would you think that would be a reasonable alternative, constitutes for?

Mr. Phillip Elman: Your Honor, I would say that any requirement imposed upon any candidate in order to test his seriousness should be imposed on all candidates regardless of how much money they do or do not have.

Chief Justice Warren E. Burger: You’re saying that as matter of policy or Constitution --

Mr. Phillip Elman: I’m asserting that as a matter of constitutional law.

As a matter of constitutional principle, you can’t classify, you cannot -- excuse me Your Honor -- if I may finish the sentence.

As a matter of constitutional principle, when you’re dealing with the right of franchise.

You cannot separate voters on the basis of money.

That’s the proposition I put the Court as simply and as boldly as I can.

And if you -- if an indigent candidate for Congress, is subjected to the burden of going around collecting signatures and a rich candidate is not subjected to that burden, I would submit to Your Honors that that is a denial of the equal protection of the laws.

Chief Justice Warren E. Burger: But you would have no problem, constitutional problem with the statute that required every candidate to file 1% of the voters of the last preceding election for the same office for example?

Mr. Phillip Elman: Not at all.

Not only do I have no objection to that, I suggest that the case of Janise against Fordson in 403 U.S. where Georgia had a requirement that 5% of the eligible voters of the last election be required to sign petitions in order to get the candidate on the ballot, was a valid one upheld by the Court.

Now, that requirement didn’t -- wasn’t made on the basis of money or race or color or some other classification which this Court has rejected as intolerable in relation to fundamental constitutional rights like voting and political association and free speech.

Chief Justice Warren E. Burger: Mr. Elman I’m sure, you have enough experience in these matters to agree that probably if there were such a requirement, the courts would soon be confronted with the claim, that for an indigent person, the requirement of getting 1%, 2% or 5% of the signatures on a petition is costly and burdensome and therefore, it should be waived with respect to indigents.

Mr. Phillip Elman: That’s one question I would leave to the future, I say we wouldn’t decide that one --

Chief Justice Warren E. Burger: I think we'll leave it there are too, but you'd agree that that’s inherent in this kind of problem, wouldn’t you?

Mr. Phillip Elman: If I think it may very well arise as to -- but I think that if as we urge a state candidate filing fee system which excludes candidates from very political process which lies at the heart of our constitutional system which closed the door at the threshold simply on the basis of money.

If such systems are struck down, the participation of poor candidates and poor voters in the political processes which may result as a consequence of that action would, I would hope minimize the kinds of cases which are increasingly coming before the Court now --

Justice William H. Rehnquist: Yet if you --

Mr. Phillip Elman: -- in which indigency is being asserted as a basis for unconstitutional classification.

Justice William H. Rehnquist: Mr. Elman, if you regard the answer of the Chief Justice’s question as an open one, that is that perhaps ultimately it would follow that not only money filing fee would be struck down, but the petition signature collecting requirement would be struck down then in effect, the state could do nothing constitutionally to prevent every high school civic students from running for supervisor --

Mr. Phillip Elman: I wasn’t suggesting that the question raised by the Chief Justice should be answered one way or the other.

I was suggesting only that question seemed to me so remote that it should not be dealt with here and I was hoping that a clear cut decision by this Court affirming not on the narrow ground as been suggested, but on the broad ground that any filing fee, no matter how reasonable or valid in relation to non-indigents is unconstitutional because it isn’t supported by any legitimate state interest, whether it is a compelling state interest or otherwise.

The notion, the notion that the seriousness of a candidate is to be measured by the size of his purse, that you equate seriousness of purpose politically with how much money you have is absolutely contrary everything this Court has ever said.

Justice William H. Rehnquist: Would you concede for the purpose of your argument here that the State does have a legitimate interest in somehow minimizing the choice the electors have to make from among the potential candidates for an office that you wouldn’t want 60 candidates for county supervisor on a primary ballot?

Mr. Phillip Elman: Yes, Your Honor.

The Court has stated in Janise and Fordson, and it has restated it in the Bullock case that the state certainly has a legitimate interest in protecting the integrity of the ballot, in weeding out, frivolous, fraudulent candidates and preventing the ballot from becoming so overcrowded that voters are confused, etcetera, etcetera.

That certainly is the legitimate interest of the state.

My point is that the way to weed out the frivolous, fraudulent candidate isn’t to subject him to a financial means test.

Justice Potter Stewart: What else it would do?

Mr. Phillip Elman: Beg pardon?

Justice Potter Stewart: What would a way of doing it be?

Mr. Phillip Elman: Well, you suggested that Your Honor in your opinion --

Justice Potter Stewart: In Janise.

Mr. Phillip Elman: In Janise.

Justice Potter Stewart: Well --

Mr. Phillip Elman: If you want --

Justice Potter Stewart: What you just suggested and I just said it was a pretty good valid suggestion.

Mr. Phillip Elman: Well, I think your statement of it from my point of view carries more weight.

The -- if the test is, is he a serious candidate?

Does he have a significant modicum of voter support?If that’s the test, you don’t apply it on the basis of a money yard stick.

Now a money yard stick, while it may keep out the poor candidate who isn't a serious candidate in a sense that he may not win the election, does not keep out the non-serious fraudulent, fictitious candidate --

Justice Potter Stewart: If a man just wanted to advertise his automobile business for example may have plenty of money, is that your point?

Mr. Phillip Elman: That’s one kind of fraudulent candidate.

You may have a fraudulent candidate --

Justice Potter Stewart: He may not be a fraudulent candidate, but his purpose in getting on a ballot and running is to advertise his used car business?

Mr. Phillip Elman: There’s no limit to meretricious motives that a candidate maybe -- the candidate maybe on the ballot simply because he has the same or very closely similar name as somebody else.

Now if he has enough money, California will put him on the ballot.

If he doesn’t have the money, even though he is a serious candidate like Mr. Chote, he is off the ballot.

Now, in regard to somebody’s abstract questions, may I state the facts concerning Mr. Chote which are a matter of public record.

He is unemployed.

He has no -- he’s proceeded in this Court and the court below in the form of papyrus.

He filed the necessary affidavit in a District Court that he -- although he is a serious, that although he is a qualified candidate for Congress, he had no funds.

Chief Justice Warren E. Burger: What election is he a qualified candidate for now?

Mr. Phillip Elman: Well --

Chief Justice Warren E. Burger: Was he put on the ballot in the last election?

Mr. Phillip Elman: He was put on the ballot by order of the District Court, that the decree of the District Court which is state is here appealing --

Chief Justice Warren E. Burger: Last summer?

Mr. Phillip Elman: He ran in the 17th Congressional District in California, the district that’s represented by Congressman McClaskey.

He ran in the democratic primary.

He go on the ballot because a three-judge Federal District Court order the state to put him on, and that’s how he got on there.

His campaign expenditures were zero.

He reported to the clerk of the House of Representatives and as a matter of public record that he spent not one cent.

He had no campaign headquarters.

He didn’t advertise.

He had no campaign mailings, yet no staff.

His campaign consist of himself.

Justice William H. Rehnquist: How many votes did he get?

Mr. Phillip Elman: He got 3,741 votes out of a total of 70,000 votes that were cast.

There were five candidates.

He finished fourth out of the five.

He -- the wining candidate got 27,000 votes.

Mr. Chote’s campaign and slogan was “if you vote for me, you’re going to be voting for somebody who is not beholden to any special interest.”

Now -- [Laughter]

Justice Potter Stewart: Did anybody know what his slogan was?

Mr. Phillip Elman: 3,741 people --

Justice Potter Stewart: People voted for him?

Mr. Phillip Elman: Voted for him.

Now, that doesn’t make -- if that doesn’t make him a serious candidate I don't what does.

Justice Potter Stewart: I don’t know how he publicize that slogan, how anybody knew about it?

Mr. Phillip Elman: He went from door to door.

He rang, he rang doorbells.

Justice Potter Stewart: That would cost him money from an economist's point of view?

Mr. Phillip Elman: It was an expenditure of sort which I think the Constitution in the First Amendment were intent to encourage.

And to preclude people like Mr. Chote from access to the ballot from participating in the political processes, to uphold the position of the state in this case would mean that at the Constitution tolerates disenfranchisement of the poor.

That it permits, it sanctions, keeping the poor who we know are the most apathetic group of the electorate from having a stake in the process from participating in it further.

Now, there’s been – there have been several arguments made by the state and the course of -- of course the brief, I don’t know whether its -- I should burden Your Honors then any further argument, there is a suggestion.

Well, if any candidate who has a serious candidate for Congress, can certainly raise $425.00, if he doesn’t have the money himself.

If he’s got any serous support, wasn’t go around and push doorbells and get a dollar from each voter.

Now, consider the implications of that.

The state is telling this Court that in order for voters to get their candidate on the ballot, they can exercise their right to vote for him, they maybe required to pay $1.00 in a way of a fee or a tax.

Now, if that isn’t -- that’s Harper against Virginia Board of Elections with a vengeance, where there at least, the State had uphold tax that everybody had to pay.

But the state of California would be requiring these 425 people in order to vote for their candidate to pay a poll tax would be selective and discriminatory, and while I haven’t suggested it in the brief, I think it would clearly also violate the Twenty-fourth Amendment, which makes it clear that candidates for -- which it makes it clear that with respect to voting in federal elections, neither the United States nor the State can impose any poll tax or any other tax and I don’t think calling this a filing fee precludes or concludes the constitutional question of whether it constitutes a tax on the privilege of voting.

Justice Potter Stewart: Wouldn’t you or would you concede Mr. Elman that the statute of California like any statute of any state comes to this Court or to any court with a presumption that it is constitutional valid?

Mr. Phillip Elman: Yes, indeed.

I would also state what doesn’t have to be stated Your Honors that ever since that famous footnote in Caroline products, when you’re dealing with the fundamental constitutional rights like freedom of speech and the rights of voting, there’s been an awful lot of law as to the burden that rests upon the state.

And as recently as Mr. Justice Blackmun’s opinion for the court in Roe against Wade, it was stated that when fundamental rights are concerned, any regulation -- fundamental constitutional rights are concerned, any regulation of the state --

Justice Potter Stewart: Is presumptively invalid?

Mr. Phillip Elman: No, not at all.

But a heavy burden of justification rests upon with state --

Justice Potter Stewart: Well, once you say that --

Mr. Phillip Elman: I did --

Justice Potter Stewart: Do you know of any opinion which uses the phrase “heavy burden of justification” or “close judicial scrutiny” or “compelling state interest.”

Any of those three phrases, any opinion of this Court in which a state court, in which the decision is other than to hold the statute invalid?

Mr. Phillip Elman: Well, for example, I think Mr. Justice Marshall’s opinion for the Court last year in either Dunn and Blumstein or Chicago Police against Mosley in talking about the burden on the State it says that regardless of how you phrase the standard --

Justice Potter Stewart: That the burden is been stated.

Mr. Phillip Elman: It puts a burden on this -- of justification on the state where the classification impinges upon First Amendment or voting rights.

Justice Potter Stewart: Where’s the First Amendment right here?

Mr. Phillip Elman: Oh, the First Amendment Right in this case is the right of political association, the supporters, the supporters of the candidate who associate for the purpose of supporting him.

You certainly have right to voting with the right --

Justice Potter Stewart: Right to vote?

Mr. Phillip Elman: You have the right to vote which comes from Article I, Section 2.

Justice Potter Stewart: Well no, but if you ever had Minor against Happersett, it did hold if there is no constitutional right to vote and if that hadn’t been true, there would have been no need to have a Nineteenth Amendment to the Constitution giving woman the right to vote, you’d agree with that, wouldn’t you?

Mr. Phillip Elman: I’ve read as recently as Harper against Virginia Board of Elections citing a classic case that the right to vote in federal elections comes from Article I, Section 2 of the Constitution of United States.

Justice Potter Stewart: You familiar of Mr. Justice Frankfurter's, one of his favorite law review articles, other than those which he himself been the author.[Laughter Attempt]

Was a famous one in the Harvard Law Review that he once told me had required all his -- first to read when it first came, wasn’t by Singer in the Harvard Law Review?

Mr. Phillip Elman: Yes sir.

Justice Potter Stewart: Having to do with the presumption of validity of any state --

Mr. Phillip Elman: I’ve read it all last night Your Honor.

Justice Potter Stewart: Can you give me a citation off hand?

It was writing for then --

Mr. Phillip Elman: I think you’ll find it one of the early advice I think of that citation.

Justice William O. Douglas: I think its 37 --

Mr. Phillip Elman: 37, I was about to say that, but I was afraid that I’d be wrong.

Justice Potter Stewart: It's about 37?

Mr. Phillip Elman: It’s around 37.

Justice Potter Stewart: Thank you.

Mr. Phillip Elman: Thank you very much.

Chief Justice Warren E. Burger: Do you have anything further? You have just a couple of minutes.

Rebuttal of Henry G. Ullerich

Mr. Henry G. Ullerich: Only on the question of Boddie versus Connecticut which came up and as I recall, that was the case where the fundamental relationship of divorce, certain people would not have to pay the court filing fees in order to get access to the court.

It seems to me that the state interest in that case was merely the loss of a very nominal amount of revenue to process the actual papers.

I think the state interests are substantially different in this case because of the ballot control, fragmentation of vote and so forth.

It's really not just a matter of the State as only loosing the $425.00 fee, it’s the matter of the effective control of the ballot.

Justice Potter Stewart: Also that case was decided under a different provision of the constitution, other than one that's here.

Mr. Henry G. Ullerich: That’s right Your Honor.

I have nothing further.

Justice Byron R. White: But, it maybe that the -- maybe that you can say the State has a legitimate interest in doing what it is doing, for a legitimate interest in limiting the ballot, but don’t you also have to demonstrate that what you are doing contributes to that end, substantially contributes to that end.

Your opponent argues that it does contribute anything to that end really because of anybody with money can get on whether he is serious or not and the people who can’t afford it may be kept off even if they are quite serious.

Mr. Henry G. Ullerich: Well, I think that would be true if you talk about the $10.00 or $15.00 fee, Your Honor.

But I think if you’re talking about or what we term or been judicially declared --

Justice Byron R. White: Well, that was so easy, if it's so easy, the state interest isn’t served anyway?

Mr. Henry G. Ullerich: Well, what I was saying is if we are going to talking about four or $500.00, I think the strip teaser or the car salesman for instance, are going to think twice before they use that as a mode of advertisement or public relationship, even if they have the money to pay.

It has to be large enough to discourage that type of candidacy.

I think four or $500.00 is.

Chief Justice Warren E. Burger: Thank you gentlemen.

Mr. Elman, you came here at our request and by our appointment and on behalf of the Court, I want to thank you for your assistance to the client in the case and your assistance to the Court.

Rebuttal of Phillip Elman

Mr. Phillip Elman: Thank you very much.