LUBIN v. PANISH

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Argument of Marguerite M. Buckley

Chief Justice Warren E. Burger: We’ll hear arguments next in number 71-6852, Lubin against Panish.

Ms. Buckley, you may proceed whenever you’re ready.

Ms Marguerite M. Buckley: Thank you. Mr. Chief Justice, and may it please the Court.

I am the counsel for Donald Lubin, the petitioner in this case spoke individually and on behalf of the members of his class.

This case first begin a year ago in February, at which time approximately 22 people who were desirers of becoming candidate and the forthcoming elections came to me and we all proceeded to the office of the registrar, the Recorder Registrar in the County of Los Angeles.

Included among these 22 people were men and women, Black and White, most strictly some Freedom Party members but also two members of the Democratic Party, a member of the Republican Party and a member of the American-Independent Party.

They had two things in common, they wanted to be candidates because they had something to say to the electors and they could not afford to pay the filing fees.

Now, there was one other distinction also and that was that most of the people who wanted to become candidates, who are running for a primary position at political office which required them to be a member of the party.

But in county and city elections in California, most of the offices are nonpartisan and therefore, Donald Lubin who wished to run for the office of board of supervisor was running in a general election, not a primary election.

He was not a member of a party for purposes of ballot status.

We filed a writ of mandamus asking the -- both the Recorder Registrar of the County of Los Angeles and the Secretary of State of California to issue nomination papers to these people without the necessity of paying fees.

We were granted a temporary injunction by Judge Cole of the Los Angeles Superior Court and an ultimate writ was set for hearing on March 6.

At that time, Judge Rehnquist sitting in the Los Angeles County Superior Court held that as a matter of law, Bullock applying that as a matter of law, California fees were reasonable and the fact that there was no alternative did not matter under Bullock.

Thereafter, I filed another writ of mandate in the Appellate Court in California, procedure which is an alternate to an appeal.

Justice William H. Rehnquist: Ms. Buckley, would Judge Weinkie's ruling have been appealable itself to the District Court of Appeal had you chosen to go that route?

Ms Marguerite M. Buckley: Yes, but it would have been meaningless in terms of relief for our clients because we could never have gotten any kind of hearing before the elections would be held.

The only reasonable choice we had was filled by way of writ of mandate to the Appellate Court.

To give them the best opportunity to rule reasonably, we attached a copy of the transcript to the hearing in the lower court.

We were denied with that hearing and we promptly filed a writ of mandate in the Supreme Court.

And again, the transcript of the hearings including Judge Weinkie's statement at page three, to the effect that it appears to the Court that the fees are reasonable as a matter of law was before the Supreme Court and they denied the mandate without a hearing.

Justice William H. Rehnquist: Under California law, is that necessarily a determination on the merits, their denial without hearing of a petition over extraordinary writ?

Ms Marguerite M. Buckley: In as much as they had the complete proceedings of the lower court, I know of no case Your Honor.

Justice William H. Rehnquist: This was not certiorari.

Though I mean, where you are trying to get before, this is a pledge for original writ of mandate, wasn’t it?

Ms Marguerite M. Buckley: But if it presented to the Court, all of the material, which was before the lower court Your Honor.

Justice William H. Rehnquist: And then, their denial without having you sit in is necessarily the decision on the merits, they don’t in their practice occasionally simply deny this disgression.

Ms Marguerite M. Buckley: I have no knowledge of that Your Honor.

And so, we are now here --

Justice Thurgood Marshall: On the writ of mandate in California is an extraordinary writ as somewhat --

Ms Marguerite M. Buckley: Yes, Your Honor.

Justice Thurgood Marshall: Well, isn’t that the answer?

The extraordinary writ the opposite of an appeal isn’t it?

Ms Marguerite M. Buckley: Yes, Your Honor.

But the particular route that we took is recognized in California law.

Justice Harry A. Blackmun: Ms. Buckley, while your interrupted let me ask, has the California law with respect to write-ins have been changed since this case developed?

Ms Marguerite M. Buckley: Justice Blackmun, it has not been changed and even if it were, I submit to this Court that write-ins are not a suitable alternative.

Justice Harry A. Blackmun: You would feel that your case is no weaker if write-ins were permitted.

Ms Marguerite M. Buckley: That is correct.

Justice Harry A. Blackmun: Without payment of fee.

Ms Marguerite M. Buckley: That is correct.

And, at a later point, I will discuss the differences between the write-in and the position on the Ballot, because it makes a difference --

Unknown Speaker: Were these write-ins identified?

Ms Marguerite M. Buckley: No, Your Honor.

Since you have raised the question now, I’ll answer it now.

In a write-in situation and in the first place, Donald Lubin had a territory that covered 600,000 people.

As a write-in candidate, he would be required to make his name known to those people not only well enough so that they recognize it on the ballot, but so that they could remember it to write it down.

Now, I cited in my reply brief an instance in California where we had a case of fraud.

A man by the name of Vicenzia was placed on the ballot to take votes away from a man by the name of Valencia and the circumstances around that particular filing made it obvious that there was only one reason for that filing to be done and that was that the voters could even make a mistake between Vicenzia and Valencia and not be able to vote for the man that they wanted to.

How much more difficult would it be for them to remember the man’s name to write it down as the write-in candidate.

Secondly, as a candidate on the ballot, you were entitled to all sorts of things.

Number one, you are entitled the equal time on radio and TV.

Number two, every major newspaper has a practice, in Los Angeles County for instance, of writing articles on the ballot candidates at least once and possibly twice during the campaign.

Justice William H. Rehnquist: Is the write-in candidate not an established -- write-in candidate not entitled the equal time on television?

Ms Marguerite M. Buckley: I do not believe so, Your Honor, because until he has in some way established himself as a write-in candidate, he is just running around and telling the people, vote for me.

But, until he complies with the provisions of the code including paying the fee, he is not entitled even to have his vote camp.

Justice William H. Rehnquist: Well, but is this the Federal Communications Commission ruling that you are relying and/or just kind of your own judgment of what the law to be.

Ms Marguerite M. Buckley: I am relying on the fact that as a candidate, I am aware of how difficult it was for even established candidate to get equal time from the stations.

As a practical matter, not all candidates, particularly poll candidates who would be the only people who are write in -- who were being write-in candidates would have even less resources at that command to force, the stations spend to give them equal time and that brings up another point.

If what you offer as an alternative is write-in campaign, you are placing a much greater burden on those people who cannot afford even in many cases the beginning of filing fee and what you are requiring them to do is additional kinds of work that will require more resources than the normal candidate.

You are putting them in an unfair position and the different kind of position than those people who can afford to pay the fee.

Justice Thurgood Marshall: How unkind is it, a man has not enough money to put up his filing fee and you say, therefore, he put on to additional burden and not been able to go out and get people to know him.

Ms Marguerite M. Buckley: Well --

Justice Thurgood Marshall: Well, if I understand you, he could not get there anyhow.

Ms Marguerite M. Buckley: That’s not true Your Honor and I cited an example from our last election where a democratic candidate who -- because of the Storer versus Brown and the filing of this suit was able to get a place on the ballot.

And as a result, he spent -- he would have spent $450.00 in order to be a candidate for Congress.

He did not have that kind of money.

He spent $138.00 of his own money and $40.00 from supporters and he gained 33% of the vote or 17,000 voter.

Now, the alternative here --

Justice Thurgood Marshall: Well, I know of a candidate who did not have to go by the proper route but he paid less than $100.00 and elected a senator.

Ms Marguerite M. Buckley: But, Your Honor, in our state, he would have had to pay for the privilege agreement candidate.

Justice Thurgood Marshall: No, my whole point is -- that is actually correct.

If the man is broke and hasn’t got any nickel, is there any way under the sun he is ever going to be known to anybody?

Ms Marguerite M. Buckley: Yes, Your Honor.

In fact, one of the important things of allowing --

Justice Thurgood Marshall: (Inaudible)

Ms Marguerite M. Buckley: Well --

Justice Thurgood Marshall: The state of course, did somebody give one.

Ms Marguerite M. Buckley: Justice Marshall?

Justice Thurgood Marshall: Am I right?

Ms Marguerite M. Buckley: No, you are not and may I say with all due respect, because what will happen is the same thing that happened to our democratic candidate who went around and knocked on doors, and thereby brought more meaning from this.

Justice Thurgood Marshall: How many doors did he knockdown?

Ms Marguerite M. Buckley: Well, he got 16,000 votes.

Justice Thurgood Marshall: You mean that he went to 16,000 doors to knock on?

Ms Marguerite M. Buckley: Yes.

Justice Thurgood Marshall: Oh, okay.

Ms Marguerite M. Buckley: Now, with that Your Honor, but we presently have a potential candidate for democratic governor who fortunately does not have to file the form of corpus but he doesn’t have very much money and he is walking the entire state of California thereby getting free publicity both from TV and radio and newspapers.

So it is possible and it is not necessarily going to be the result that somebody who is able to avoid paying a very large fee of $850.00 or $1,000.00 is going to win the election.

But the important thing is that person is not be barred from the political process and I think this is what we are talking about.

Justice Thurgood Marshall: But that is entirely different argument from all of these things by that he can get on TV or whatever.

Is your argument that he cannot be discriminated solely because he does not have $850.00?

Ms Marguerite M. Buckley: Yes, Your Honor.

Justice Thurgood Marshall: That and no more -- is that your argument?

Ms Marguerite M. Buckley: Yes, Your Honor, but I have been getting questions about the practical result and I agree that the practical results are not an issue here.

What is an issue is whether we can deny people who cannot afford to pay for the privilege of running and opportunity to participate meaningfully in the political process.

And I think that when we look at the facts that the United States which is one of the greatest democracies has a lower voting turnout than many of the other democracies according to the New York Times, then we have to begin to ask why.

And part of why is because in this country, approximately 25% of the people are on a poverty standard of living.

According to the United States, director of a poverty neighborhood legal services and I remember our guidelines very well, $3,500.00 for a family of four and yet the Bureau of Labor Standards says that you need $7,000.00 for a family of four.

Well, if you do not have enough money to feed your family, how are you going to be able to take part in the political process and if it need addition, people who want to represent you and who come from your own class and do not have money either can’t even get on the ballot, then you do not want to vote.

Now, I think so that this Court has made it quite clear that the rights of voters are intertwined with the rights of candidates but I think that it is time for the Court to make the decision that there is a right to be a candidate, to take a forthright position and say that you cannot have elections without candidates.

Chief Justice Warren E. Burger: You have mentioned the fact that a very large percentage of the voters do not vote in this country.

Ms Marguerite M. Buckley: Yes, Your Honor.

Chief Justice Warren E. Burger: Are you familiar with some of the studies, which have to come to the conclusion for whatever the conclusion maybe would, but one of the reasons is for the lower board of chain out, of the reasons is it is excessively large number of people on the ballots, the long and confusing ballots they must deal with either on the voting machine or on a paper ballot.

Ms Marguerite M. Buckley: Yes, Your Honor, I understand and that is very --

Chief Justice Warren E. Burger: Would your approach tend to increase the number of candidates running for the public office?

Ms Marguerite M. Buckley: Your Honor, I believe that there is an alternative and did not -- in my brief, we have discussed the fact that you do need to, -- in some ways make sure that your ballot contains a reasonable number of people and people who are reasonably serious but that can be taken care of by the requirement of petitions and signatures.

New York which is a rival to California in every way handles this matter very well with petitions and they don’t worry about an unwieldy ballot because the very active requiring signatures also means that the candidate has to get out in advance and make himself or herself known to the people and the community.

Chief Justice Warren E. Burger: Well, because there is another good way or perhaps even another better way, does that looked to a constitutional issue?

Ms Marguerite M. Buckley: Well, but Your Honor, we are dealing with the very basis of our society.

We are dealing with the political system.

I would like to point out that not only to articles one and two require elected legislature and executives, but that Article 4 Section 4 provides that the United States shall guarantee to every state a republican form of government and the republican form of government means citizens who are entitled to vote.

Justice William H. Rehnquist: Are you familiar with the Pacific Telephone case Ms. Buckley?

Ms Marguerite M. Buckley: No, Your Honor, I am not.

Justice William H. Rehnquist: Well then, that is the case where this Court held that the republican form of government clause was not justiciable and was not enforceable by the Courts.

Ms Marguerite M. Buckley: Well, Your Honor, I think that this Court has already.

In fact, in San Antonio v. Rodriguez in which they were dealing with an educational problem but you took many takers of decision to deal with the fact that the electoral process is one of the most important processes to our form or government.

And, I only mentioned the constitution as a basis and I am not unaware of the fact that this Court has time after time after time stress the importance of voting that it is in fact one of the explicit rights guaranteed in the constitution and therefore has to be protected in the highest way.

I am merely --

Justice Potter Stewart: Where and when did the Court ever say that?

Ms Marguerite M. Buckley: Well, Your Honor --

Justice Potter Stewart: The right to vote is one of the explicit rights guaranteed in the constitution?

Ms Marguerite M. Buckley: Well, in Rodriguez, you made the distinction between implicit and explicit and you said that an item such as education and very many other important kinds of rights, maybe very important but were not protected by the constitution because they are not explicit.

And then, you went in and I assumed that you were -- I may have misread your opinion although I did read it several times.

Justice Potter Stewart: Yes.

Ms Marguerite M. Buckley: You then went into the importance of the electoral process to our system.

Justice Potter Stewart: I would agree that that is important process but of course --

Ms Marguerite M. Buckley: And, not only that, but you did what I thought was, from my purposes and my proprieties for this, Your Honor, you did layout very carefully the line of cases in which you dealt with the importance of this right.

Justice Potter Stewart: Yes.

Ms Marguerite M. Buckley: And my only -- I am attempting here to point out that the right to be a candidate may one day in the future, in the year 2000, if we use our bookman’s to folders notion of having all of the people come in and vote via two-way television, we may be able to do a way with the necessity of the candidates and representatives, but right now that is our system.

Justice Potter Stewart: Yes, is there any question about, expect your client is a proper I gather, that is not reading page 10 of the appendix says, his average monthly income during the year 1972 has been the sum of no dollars.

Ms Marguerite M. Buckley: Right.

Justice Potter Stewart: And that says it want to, was it?

Ms Marguerite M. Buckley: Yes, it was.

Justice Potter Stewart: Under the penalty of perjury that the foregoing is true and correct?

Ms Marguerite M. Buckley: Yes.

Justice Potter Stewart: That’s never been questioned.

Ms Marguerite M. Buckley: No.

Justice Potter Stewart: The bonifide of his poverty, is it?

Ms Marguerite M. Buckley: No, Your Honor.

He is a --

Justice Potter Stewart: Absolute inability to pay this fee of $702.00.

Ms Marguerite M. Buckley: That is true, Your Honor.

Justice Potter Stewart: I do not think -- do you need to divest the proposition that there is an explicit issue to use your word --

Ms Marguerite M. Buckley: No.

Justice Potter Stewart: -- constitutional right to be a candidate for the office in order to make an equal protection claim?

Ms Marguerite M. Buckley: No, Your Honor, but --

Justice Potter Stewart: And suppose, there is not an explicit right to run an unregulated laundry and yet Walter says you can’t regulate some people and not regulate others in an evil eye and an uneven hand.

Ms Marguerite M. Buckley: But in Turner versus Fouche Your Honor, I think the Court pointed out very well that once you open a position to some people, then you cannot discriminate based on those kinds of factors which are protected by the Fourteenth --

Justice Potter Stewart: Precisely, whether or not their right to their position is a constitutional right.

Is that your argument?

Ms Marguerite M. Buckley: That is my --

Justice Potter Stewart: And at least part of it?

Ms Marguerite M. Buckley: Yes, Your Honor.

The reason I suggested the second part, the question had to do with the question which the members of this Court presented to me that is whether it made a difference whether it was the individuals poverty or that of his group.

And, I took that question to me and I should address myself to the rights of the candidates versus the rights of the supporters or the voters.

Justice William J. Brennan: Ms. Buckley, you referred to the alternative of nominating petitions?

Ms Marguerite M. Buckley: Yes, Your Honor.

Justice William J. Brennan: Have you given any thought to what percentage of the people who voted in the last election for example might be inappropriate to United States to determine the number of signatures required?

Ms Marguerite M. Buckley: Well, Your Honor, if you’re talking about a primary election, I would think that it would not be a percentage of the total who voted, but the total who voted in that particular party because in California, we have four parties, two of which are minor parties.

To demand that they have the same percentage of the vote as those who belong to the majority party would work a great hardship.

They might not even have that many people in their party.

For instance, if you ask for 2% of the population, the American Independent may not even have that many people in that party right now and would require 100% of their membership.

So, I think that you have to schedule it and I think it should be a minimum amount, something say between a thousand and 5000 signatures in a fairly large district and something scaled down in a smaller district.

Justice William J. Brennan: Assuming you had a requirement for 5,000 petitions in the Los Angeles District other than --

Ms Marguerite M. Buckley: That would be a statewide Your Honor.

Justice William J. Brennan: Well, what would you assume for Los Angeles?

Ms Marguerite M. Buckley: Well, I believe that there were, for instance, the piece in Freedom Party, they have 30,000 members registered and Los Angeles County of course covers 400 miles.

I covered them all so I am aware of them.

I think that in that case, you might want 1% of 30,000 where I get 3.000 signatures.

Justice William J. Brennan: What do you think it would cost to obtaining 3,000 signatures?

Ms Marguerite M. Buckley: Well, I think Your Honor that poor people have learned to walk and I think that they learned to get out and knock on doors.

They may not be able to contribute money and I have documented fairly well the fact that although we now have the opportunity to mark off on our income tax forms, the right to give a dollar to the party of our choice if we belong to a major party.

Only 3% of the people nationwide bothered to check off to give money to their major parties, so for people who may not even be able to file the income tax returns, they cannot give money.

But, they will be go out and knock on doors, they will go out and collect signatures.

Justice William J. Brennan: Do you require to have a notary public witness the signatures on nominating petitions?

Ms Marguerite M. Buckley: We require in California that the person who is collecting the signature gets certified that he has in fact obtained those signatures from the people that he says they were.

Justice William J. Brennan: Is that person have to be a notary public?

Ms Marguerite M. Buckley: On some, Your Honor, they do, but California provides for certification rather than necessity of having a notary public.

Justice William J. Brennan: Most notaries’ charge fees by doing that.

Ms Marguerite M. Buckley: Well, except that there is also a provision in the California law that says that notaries may not charge fees for political type of documents.

But again -- so that would be.

I will --

Chief Justice Warren E. Burger: Mr. Gaylord.

Argument of Edward H. Gaylord

Mr. Edward H. Gaylord: Mr. Chief Justice, and may it please the Court.

There were certain preliminary questions asked.

As I understand this election, this was a true primary.

In California, you have a primary votes for partisan and nonpartisan officers.

As to partisan officers, only those persons registered with the party can vote in that particular primary.

But, the local officers and judicial officers are all nonpartisan and every qualified voter who is registered in the district can vote for one of those offices.

Ever since 1926, if a nonpartisan office, a person gets the majority, he is then and they are elected and then for him, it becomes a general election.

But otherwise, it remains a primary and the one who gets the most votes and the one who gets the second most votes, then is the -- are the two nominated candidates who are -- then go before the voters and the general election in November.

And, if I am correct that this was the Fourth District, that happened then, there were two candidates that got the most and next to the most voters neither one getting majority and one of them was elected in the general election.

The question was asked, what is the status of a denial without opinion by the Supreme Court of a writ of mandate?

There are three Supreme Court cases that definitely hold that the denial by minute order of an application for a writ of mandate is simply a refusal by the state’s Supreme Court to exercise its original jurisdiction and is not an adjudication on the merits.

I merely bring that up because the question was asked.

I am not objecting to the jurisdiction of this Court.

Your Honor, do you want me to -- these citations or shall I get them to the clerk or --

Chief Justice Warren E. Burger: You may hand that to the clerk if you wish.

Mr. Edward H. Gaylord: I will hand that to the clerk then I -- wait for a moment.

Chief Justice Warren E. Burger: And I take it, Ms. Buckley has copies of her own --

Mr. Edward H. Gaylord: I will see that she has a copy.

There was one case before this Court in 1951 where there was a denial by the Court of Appeals without opinion and the Court of Appeals certified that they did deny it on a federal ground and the Court said it had jurisdiction, but in this discretion nevertheless dismissed the case.

Justice Potter Stewart: Your brief proceeds upon the premise that the Court decided the constitutional merit to this case.

Mr. Edward H. Gaylord: I say I am not objecting the jurisdiction of this Court.

When I originally put back my response petition for writ of certiorari and asked this Court to take jurisdictions frankly I did point have not occurred to me, later I hardly saw that I was in the position to raise the question and I would not raised it but I am merely answering questions over the Court.

On the write-in votes, I would like to stress once more that the requirement for a fee in order to have a write-in vote counted was not put in until 1968, therefore say in 1967, there was a reasonable alternative to having your name on the ballot.

The law was valid then and under the decisions of both this Court and the Supreme Court of California which are cited in our brief, if the fee requirement to write-in votes makes this system unconstitutional, I am not conceding but even if it does, it is the 68th Amendment which is unconstitutional and not the original law which has been in effect since 1913.

Justice Thurgood Marshall: What is in California law on write-in that is not exactly correct with the -- started and fees growth?

Mr. Edward H. Gaylord: No, it is not that fee.

The difficulty with the write-in law in California in 1968, they put in a law that both will not be counted for a write-in unless the candidate files a notice at least five days ahead of time that he is a write-in candidate and pays a fee he would have paid to get his name on the ballot.

Justice Thurgood Marshall: I understand that, but there are some states where the name, if you leave out the initial, it is no good.

Is that true in California?

Mr. Edward H. Gaylord: No, I think the rule in California is that if you can definitely ascertain that the name written in is for this particular individual, the vote will be counted for that individual.

I might concede that write-in may be difficult but it has been done.

Mr. Ellis Patterson for example in 1936 lost his bid to be nominated by the Republican Party as the member of the assembly that is the lower house of California.

He distributed pencils having printed thereon, write-in Ellis E. Patterson.

And, the party had the exact name, the exact spelling and he did win the elections.

I also cited that it is very unusual case where a candidate for a judge was defeated in the primary and under the law at that time prior to 1926, the name of the winner was the only one on the ballot and then this defeated judge defeated the winner in the final election by ranking so it can be done.

Justice Potter Stewart: Suppose the Board of Supervisors of Los Angeles County, how large is board present?

Mr. Edward H. Gaylord: It’s five-member board.

Justice Potter Stewart: All five elected at the (Voice Overlap).

Mr. Edward H. Gaylord: All five elected of those supervisorial districts of about 1,400,000 people in each district.

Justice Potter Stewart: Each on to the separate districts or --

Mr. Edward H. Gaylord: Each on to the separate districts and --

Justice Potter Stewart: They do not run at large throughout the county?

Mr. Edward H. Gaylord: That is correct

Justice Potter Stewart: Each runs separate.

Mr. Edward H. Gaylord: So there would be the voters in a district with a population of 1,400,000.

Incidentally, I take it what Mr. Lubin was running for was to be a supervisor with a salary of over $35,000.00 a year representing almost three times as these many people as a congressman represents.

And, he offers that in Court, if he had any substantial support or whatever, he is sure would have no difficulty in getting the $701.00 for a filing fee.

As the New Mexico Court said which I quoted to the brief, that case now is before this Court I understand.

It does not measure the candidate’s pocket but the amount of his support.

Unknown Speaker: Mr. Gaylord, in the 68th Amendment, there is a provision reciting the intention of the legislature that the filing fee shall be used to support the state commission on voting machines or vote tabulating devices.

Has there ever any appropriations that made presumed for that declaration of intent?

Mr. Edward H. Gaylord: I do not think so.

I do not know.

Unknown Speaker: We don’t have any legal significance in this case?

Mr. Edward H. Gaylord: No, we are not contending that this fee is necessary to support the election process.

We are contending that it is a test of good faith candidacy.

Unknown Speaker: What about the first to who has $701.00 or $7,000.00, there is much money, does anybody wanted to try that?

You think judge with the $701.00 that runs at his office is reasonable measure?

Mr. Edward H. Gaylord: I think it does help.

Unknown Speaker: (Inaudible)

Mr. Edward H. Gaylord: It’s not.

I concede it’s not perfect.

It could be that a very well to do man or a rich man would run frivolously because $701.00 means nothing to him but it’s less likely.

It does to keep out to great many frivolous candidates.

Incidentally, a man like that would be less likely to run just as lark besides and that candidate who can do that is --

Unknown Speaker: For instance, I ask that is it our county that you get to find the one without with the $701.00 or the one without?

Mr. Edward H. Gaylord: That is true but I would say that a man without the $700.00, it is not necessarily barged from putting his name on the ballot if he really has any substantial support.

Now, Ms. Buckley seems to illustrate a man --

Unknown Speaker: But the other group know that this man -- you can conceive that with $701.00 putting himself on the ballot would they do support or not.

It does not make some sense of that.

Mr. Edward H. Gaylord: I agree with that.

I agree that this is not a perfect method but I think the legislatures thinks it is a --

Unknown Speaker: The right of equal protection?

Mr. Edward H. Gaylord: No.

Unknown Speaker: If you think it survived the equal protection.

Mr. Edward H. Gaylord: Yes, I do.

Unknown Speaker: Even by this strict scrutiny test?

Mr. Edward H. Gaylord: Yes, I would think so.

It is a reasonable way and what is the alternate?

Unknown Speaker: And reasonably necessary one?

Mr. Edward H. Gaylord: Yes, the only alternate as if I see it is to require a large number of names like 1% or 2% which would be enormous in the --

Justice Thurgood Marshall: Mr. Gaylord, is there anything else that you do other than to put up the money?

Mr. Edward H. Gaylord: Yes, he does have to collect the few signatures, 35 to 40, something like that.

Justice Thurgood Marshall: That is all?

I mean, what is it that you find that he is a responsible person other than money?

Mr. Edward H. Gaylord: Well, the qualifications of a supervisor are merely that he would be a resident of the district.

The charger says for one year before election --

Justice Thurgood Marshall: And?

Mr. Edward H. Gaylord: Some of the states --

Justice Thurgood Marshall: What else?

Anything else?

Mr. Edward H. Gaylord: That is the only requirement to be (Voice Overlap).

Justice Thurgood Marshall: I know, the $701.00.

Mr. Edward H. Gaylord: And to go on the ballot, he must put up.

Justice Thurgood Marshall: So, there is nothing higher than the money that determines that he is a responsible person, nothing else.

Mr. Edward H. Gaylord: That is correct.

There is -- I cannot think of any political office like that, I can’t think of any type of civil service examination.

I think that man would be practical.

Justice Thurgood Marshall: Would the man with $1,500.00 be more responsible than the man with $750.00?

Mr. Edward H. Gaylord: He might be a little more responsible but --

Justice Thurgood Marshall: And so, the more he had, the more responsible it would be?

Mr. Edward H. Gaylord: That’s correct.

And there is a question of drawing lines, the man who is --

Justice Thurgood Marshall: I hope that is not everybody’s theory.

Mr. Edward H. Gaylord: Well, I mean, a man who is 18 on the day of election can vote and yet you cannot say that he is much more learned than the man who is two days younger, but you do have to draw the lines somewhere.

As this Court itself said in Bullock versus Carter, that fee was too high but not all fees are invalid and there becomes a time when the fee becomes too high.

Now, where you draw the line is a difficult question.

Unknown Speaker: If we go back to my inquiry about the access so that means the legislate of the corporation of these fees.

How do you answer the suggestion that these fees are nothing more than a revenue raising device?

Mr. Edward H. Gaylord: Well, I would say this, whether there is a specific appropriation or not if the money spent on the election is probably stable -- far greater than the fees collected.

And, if that is true, does it make too much difference that there is a specific appropriation that this particular fund he used for this particular person.

Ms. Buckley mentions in our brief that very few people took advantage of give a dollar to the party of your choice.

Well, it is very easy to see that great many people may not be particularly concerned with a particular political party as a whole, but maybe very much concerned with the particular candidate especially a non-partisan candidate where a person carrying nothing at all about parties would be very interested.

So I do not know think that that is a good illustration.

She also raises in her brief although she hadn’t said it early that there is a provision that you have to get at least 1% of the vote to get a nomination.

That may work some hardship in the case of some very small political parties but in a case of a non-partisan, it is almost inconceivable that somebody would get less 1% of the vote and yet be the second person.

Although all of those voted for, you have to have at least 52 candidates and the very unusual situation to have that so it would be practically impossible for a person to get second in amount of votes in a non-partisan office and not have at least 1%.

And, even if that should happen, it would be practically impossible to the person that got that few votes in the primary would then receive the majority in the general election.

A great deal that Ms. Buckley has said I think is within her brief and has been answered in our brief unless the Court has further questions, that is all I have.

Chief Justice Warren E. Burger: Thank you Mr. Gaylord.

Ms. Buckley, you have about six minutes left if you want to use them.

Rebuttal of Marguerite M. Buckley

Ms Marguerite M. Buckley: In respect to the question of whether the Supreme Court of the state of California had considered the matter prior to denying it, I would like to draw to your attention the fact that in my experience, the Supreme Court of the state of California generally when presented with the writ of mandate for the first time which it does not believe it has sufficient information to deal with kicks it back to the Appellate Court for decision.

And, that same thing happened in the case of Zapata versus Davidson to 24 California Appellate decisions third 823.

On this very question of the filing fees in the elections that we were talking about, that case were sent to the Appellate Court in April, one month after the Supreme Court had denied us summarily.

And, when presented with a writ of mandate on the exact same question, they sent it to Zapata versus Davidson.

And the Appellate Court determined that the filing fees were in fact unconstitutional based on the Bullock.

So I would like at this time to draw your attention to a case which has not been cited in my brief and that is a Zapata versus Davidson, 24 C A third 283 and that is a 1972 decision.

Now secondly, I would like to discuss very briefly the question of the reasonableness of the California fees.

When counsel leads you to believe that Texas was so different in California, I believe he misstates the question because the Texas fees in some case on state levels were less than those charged in California.

As I read the Texas statute, the real high fees, the $6,000.00 and $8,000.00 were primarily on county levels, but that the state positions ran from $150.00 to $850.00 or $1,000.00 and that is exactly where California is at.

Furthermore, the case of Socialist Party versus all was cited as having legitimized California filing fees but that is a 1909 case.

And, at that time, California had filing fees ranging from $10.00 to $50.00.

It had no relationship to the emoluments of office and --

Justice Potter Stewart: Though I had that person were a pauper, it would not make any difference of the filing fee were $5.00 or $500.00 or they did not have anything.

Ms Marguerite M. Buckley: That is true, Your Honor.

But --

Justice Potter Stewart: In that case, was the plaintiff a pauper?

Ms Marguerite M. Buckley: No, I do not believe so, Your Honor.

But the question that was raised was not a US constitutional question, that was a California constitutional question.

Justice Potter Stewart: I will ask somebody about that case.

Ms Marguerite M. Buckley: But, in that case, the dicta was to the effect that while these fees were reasonable ranging from $10.00 to $50.00, that if the fee structure had been based on the emoluments of office as the present system is that they would have struck it down because such a fee would have no relationship to what it cost to run on election.

It would have no relationship to what it cost to file the papers.

Justice Potter Stewart: But, that case was designed as a matter of California law was it or --

Ms Marguerite M. Buckley: Yes, it was, in 1909 and it is the case which my opponent relies upon and which I believe Judge Rehnquist relied upon in saying that California fees were reasonable.

Chief Justice Warren E. Burger: I have the impression from your earlier argument Ms. Buckley that if a fee with $100.00, you would still be here, is that right or not?

Ms Marguerite M. Buckley: Yes, Your Honor.

Chief Justice Warren E. Burger: $10.00?

Ms Marguerite M. Buckley: Well, Your Honor, I really object to the --

Chief Justice Warren E. Burger: You really object to any fee, don’t you?

Ms Marguerite M. Buckley: Well, if it cost $10.00 to print up the forms for nominating fees, then I think perhaps that could be reasonably explained.

Unknown Speaker: Well, I understood your tradition, that you cannot put a price tag, any candidacy for the purpose of discouraging candidacy.

Ms Marguerite M. Buckley: You are right, you are right, Your Honor.

Unknown Speaker: Well, so $10.00 would be.

Justice Potter Stewart: And then, there is I thought that your case dependent upon the fact that your client was a pauper.

Ms Marguerite M. Buckley: It does, he is a pauper.

He cannot afford to pay the fees.

Justice Potter Stewart: And your argument is not so broad as indicated by my brother Brennan’s questions.

Ms Marguerite M. Buckley: Well, what I was suggesting, Your Honor, was that -- the case has two basis really and I am suggesting to the Court that we are going to go beyond just the Fourteenth Amendment and beyond the idea that paupers should have the fees removed but we should be looking to the fact that all people have a right to participate in the political process.

Because my client, Mr. Lubin is a pauper, but he is also something else, he has in common with me and with all of you that he is a citizen of the United States and as such has the right to participate.

And, I think that placing any kind of a fee which has no relationship to the actual cost of filing the papers is interfering with the rights of all citizens.

Chief Justice Warren E. Burger: Do you think the state has no interest in preventing if they can having 250 people running for this particular office?

Ms Marguerite M. Buckley: Not by using fees, Your Honor.

Not by using a monetary standards.

Chief Justice Warren E. Burger: Well, you conceived they have an interest in doing it in some way.

Ms Marguerite M. Buckley: Yes, and I suggest that there is an alternative.

Chief Justice Warren E. Burger: By the petitioning process.

Ms Marguerite M. Buckley: Yes, Your Honor.

Justice William H. Rehnquist: Your broader argument that there is not an equal protection argument is it?

Ms Marguerite M. Buckley: No, I am suggesting to this Court that I am giving you the opportunity if you wish to take it to broaden the scope of what we have done here forward.

Justice William H. Rehnquist: Well, what clause of the constitution would you suggest we use to broaden?

Ms Marguerite M. Buckley: Well, I think, Your Honor, that when we are talking about the right of people to participate in the political system, we are talking about the -- I cannot give you the exact part of the constitution but it seems to me --

Justice William H. Rehnquist: Could you just refer to a number or a section?

Ms Marguerite M. Buckley: Well, what I am suggesting, Your Honor, is that the constitution as a whole protects the political process.

It was designed to assure that we would continue to have a republican form of government that all of the people would be able to participate by voting.

Now, the very provisions that you use to sustain --

Justice Thurgood Marshall: How in the world did you say that the constitution was adapted, there was a lot of Blacker people in this country that couldn’t vote.

Ms Marguerite M. Buckley: You are right, Your Honor, but we may have --

Justice Thurgood Marshall: Well, how could they have been set up to do that if it did not allow it?

Ms Marguerite M. Buckley: Well, at that point, the problem with our system was that it did not recognized those people as people and that is to the shame of our country.

Justice Thurgood Marshall: Yes, but are you going to stand that now to give everybody the right to vote?

Ms Marguerite M. Buckley: Well, I believe that for instance, well, we have already given everybody the right to vote via the decisions, which this Court has made, but it did --

Justice Thurgood Marshall: They only said in this Court mainly shall not discriminate, so I want you to show me the one that said the right to pull off.

Ms Marguerite M. Buckley: Well --

Justice Thurgood Marshall: And then, we have got to give that when the right to run (inaudible)

Ms Marguerite M. Buckley: Well, I am --

Justice Thurgood Marshall: (Inaudible) to find another one.

Ms Marguerite M. Buckley: Well, I am remembering several cases if I may --

Justice Thurgood Marshall: Do not read in our brief we are going to fall asleep --

Ms Marguerite M. Buckley: Yes, your Honor, I understand that involves too.

Well, in Oregon versus Mitchell, your brothers Harlan and Brennan both discussed the fact that under --

Justice Thurgood Marshall: We are not talking about discussion, I‘m saying, where they said that there was a right to vote or a right to run for the office.

Ms Marguerite M. Buckley: Well, both Brennan and Harlan in Oregon versus Mitchell said that the right to be a candidate was inherent in the right to vote and that it was left out of the Fifteenth Amendment because they assumed it was already there.

Chief Justice Warren E. Burger: Well, I think your time is consumed now Ms. Buckley.

Ms Marguerite M. Buckley: Thank you, your Honor.

Chief Justice Warren E. Burger: Thank you Mr. Gaylord.

The case is submitted.