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C!Tnurt nf Appeal

of the

&tatt nf Qtaltfnrnta

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Court of Appeal Case No.: _c_o_73_7_6_3 _____ _
Court of Appeal Case No.: _c_o_73_7_6_3
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  • 0 There are no interested entities or parties to list in this Certificate per California Rules of Court,

Rule 8.208

  • D Interested entities or parties are listed below:

Name of Interested Entity or Person

I.

2.

3.

4.

5.

6.

7.

8.

9.

Nature of Interest

C!Tnurt nf Appeal of the &tatt nf Qtaltfnrnta CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Court of

Signature of Attorney/Party Submitting Form Nathaniel Oleson

Printed Name UNITED STATES JUSTICE FOUNDATJON 932 ''D" Street, Suite 3 Ramona, California 92065

Address

Party Represented:

Dummett; Houston; LaKamp; Johnson; and Ott

State Bar No.:

 

_

TABLE OF CONTENTS

TABLE OF AUTHORITIES

iii

I.

INTRODUCTION ......................................................................

1

  • A. Nature of Action

1

  • B. Order Appealed

2

  • C. Relief Requested

2

  • D. Statement of Apealability

3

II. STATEMENT OF THE CASE

3

 
  • A. Procedural History

3

  • B. Statement of Facts

5

III.

STANDARD OF REVIEW

9

IV.

ARGUMENT

10

  • A. Appellants did state facts sufficient to constitute

a cause of action for issuance of a writ of mandate

under CCP § 1085

10

  • B. The Secretary of State's reliance on California Elections Code § 6901 is misplaced because § 6901 unconstitutionally prevents the Secretary of State from fulfilling her duties as the Chief Elections

Officer of California

13

i

  • C. Keyes v. Bowen Does Not Apply To This Case Since It Did Not Resolve Any Constitutional Challenge to § 6901 And Incorrectly Held That the Secretary of State Has No Duty To Verify the Constitutional

 

Eligibility of Presidential Candidates

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V.

CONCLUSION

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CERTIFICATE OF COMPLIANCE

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DECLARATION OF SERVICE

ii

TABLE OF AUTHORITIES

FEDERAL CONSTITUTION

United States Constitution Article II

8, 14, 21

United States Constitution Article II, § 1

19, 23, 24

United States Constitution Article II, § 1, Clause 5

6

United States Constitution Article VI, Clause 2

21

FEDERAL CASES

Cleaver v. Jordan, 393 U.S. 810, 89 S.Ct. 43 (1968)

18

Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008)

13

STATE CONSTITUTION

California Constitution, Article I, § 3

23

California Constitution, Article III, § 1

11, 21

STATE STATUTES

California Code of Civil Procedure § 904.1(a)(1)

3

California Code of Civil Procedure § 1085

2, 10, 11

California Election Code § 10

14

California Election Code § 6901

passim

California Election Code § 13314(a)(1)

12

California Government Code § 12172

14

California Government Code § 12172.5

14

iii

STATE CASES

Aubry v. Tri-City Hospital Dist.,

2 Cal.4th 962 (1992)

10

Banks v. Housing Authority of City and County of San Francisco,

  • 120 Cal.App.2d 1, 260 P.2d 668 (App. 1 Dist. 1953),

cert. denied 74 S.Ct. 784, 347 U.S. 974

12

City of Dinuba v. County of Tulare, 41 Cal.4th 859 (2007)

10

Corbell v. Superior Court,

  • 125 Cal.Rptr.2d 46 (App. 1 Dist. 2002),

review denied, 101 Cal.App.4th 649

12

Farm Raised Salmon Cases, 42 Cal.4th 1077 (2008)

9

Keyes v. Bowen, 189 Cal.App.4th 647

21, 22, 24, 25

Pollack v. Lytle, 120 Cal. App. 3d 931 (1981) disapproved on other grounds in Beck v. Wecht,

28 Cal. 4th 289 (2002)

9

Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26

9

San Joaquin County Dept. Of Child Support Services v. Winn

  • 163 Cal. App.4th 296, 77 Cal.Rptr.3d 470

(App. 3 Dist. 2008)

3

iv

I.

INTRODUCTION

  • A. Nature of Action This opening brief is filed on behalf of Appellant JOHN

ALBERT DUMMETT, JR. (“DUMMETT”), GIL HOUSTON

(“HOUSTON”), LARRY LAKAMP (“LAKAMP”), MILO L.

JOHNSON (“JOHNSON”) and JOE OTT (“OTT”) (collectively

“APPELLANTS”). This appeal is brought as a result of the lower

Court’s judgment of dismissal of the PETITION FOR WRIT OF

MANDATE COMPELLING RESPONDENTS TO REQUIRE

PROOF OF ELIGIBILITY PRIOR TO APPROVING

PRESIDENTIAL CANDIDATE NAMES FOR BALLOT

PLACEMENT, AND TO DECLARE UNCONSTITUTIONAL

CALIFORNIA ELECTION CODE SECTION 6901 (“WRIT”), filed

by Writ Petitioners DUMMETT, HUSTON, LAKAMP, JOHNSON,

OTT, MARKHAM ROBINSON, 1 and THE CONSTITUTION

PARTY, 2 which resulted from the lower Court’s erroneous sustaining

of the demurrer filed therein by Respondent CALIFORNIA

  • 1 Markham Robinson is not a party to this appeal.

  • 2 The Constitution Party is not a party to this appeal.

1

SECRETARY OF STATE DEBRA BOWEN (“BOWEN”) in her

official capacity.

The Court’s sustaining of BOWEN’S demurrers was in error

because, contrary to the lower Court’s ruling, APPELLANTS did

state facts sufficient to constitute a cause of action for issuance of a

writ of mandate under California Code of Civil Procedure (“CCP”) §

1085, did state facts sufficient to show California Election Code

(“EC”) § 6901 to be unconstitutional, as well as to support other

ancillary relief.

  • B. Order Appealed APPELLANTS appeal the lower Court’s Entry of Judgment of

Dismissal, entered on April 19, 2013 [Clerk’s Transcript (“CT”) 164],

after it sustained BOWEN’S demurrer on March 22, 2013 (CT 168).

  • C. Relief Requested APPELLANTS respectfully request that this Court reverse the

lower Court’s Judgment of Dismissal following its order sustaining

BOWEN’S demurrer and remand the case to the lower Court with

instructions for the lower Court to order BOWEN to answer WRIT or,

in the alternative, with instructions for the lower Court to allow

APPELLANTS leave to amend.

2

  • D. Statement of Appealability CCP section 904.1(a)(1), provides that an appeal may be taken

“from a judgment” other than an “interlocutory judgment.” Here,

APPELLANTS appeal the lower Court’s March 22, 2013, Judgment

of Dismissal, after sustaining BOWEN’S demurrer (CT 168). Because

the dismissal leaves no further matters for the lower Court to decide

regarding WRIT, the judgment is an appealable final judgment.

“A judgment is ‘final’ for purposes of appeal when it terminates

the litigation between the parties on the merits of the case and leaves

nothing to be done but to enforce by execution what has been

determined.” San Joaquin County Dept. of Child Support Services v.

Winn (App. 3 Dist. 2008) 163 Cal.App.4th 296, 77 Cal.Rptr.3d 470.

This matter was timely appealed on April 29, 2013 (CT 174).

II.

STATEMENT OF THE CASE

  • A. Procedural History This appeal is brought as a result of the lower Court’s judgment

of dismissal of APPELLANTS’ WRIT following the lower Court’s

sustaining of BOWEN’S demurrer.

3

On February 23, 2012, APPELLANTS filed a PETITION FOR

WRIT OF MANDATE COMPELLING RESPONDENTS TO

REQUIRE PROOF OF ELIGIBILITY PRIOR TO APPROVING

PRESIDENTIAL CANDIDATE NAMES FOR BALLOT

PLACEMENT, AND TO DECLARE UNCONSTITUTIONAL

CALIFORNIA ELECTION CODE SECTION 6901, naming

BOWEN as respondent.

On March 26, 2012, a Notice of Related Cases was filed by the

respondents in the Sacramento Superior Court case captioned Noonan,

et al., v. Bowen, et al., Case No. 34-2012-80001048. On April 9,

2012, a RULING ON NOTICE OF RELATED CASES AND

ORDER TRANSFERRING CASE was issued by the lower Court, and

the case was reassigned to Honorable Michael P. Kenny.

On May 4, 2012, respondent BOWEN filed a demurrer to

WRIT, and a hearing on the demurrers was scheduled for October 26,

2012. (CT 35).

On May 21, 2012, APPELLANTS filed PETITIONERS’ EX

PARTE MOTION TO VACATE ORDER. (CT 56). The grounds for

the motion were that APPELLANTS received no notice of the Notice

of Related Cases until Friday, April 6, 2012, when BOWEN served on

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APPELLANTS her support for the Notice of Related Cases, which

afforded APPELLANTS no opportunity to respond. (CT 57).

The hearing was held on the ex-parte motion on May 25, 2012.

On May 26, 2012, the lower Court vacated its prior Ruling on Notice

of Related Cases and Order Transferring Cases filed on April 9, 2012.

(CT 83). On June 15, 2012, the lo wer Court issued a new RULING

ON NOTICE OF RELATED CASES AND ORDER

TRANSFERRING CASE, and held that the cases were related and

ordered the underlying case again be reassigned to Honorable Michael

P. Kenny. (CT 89).

The hearing on BOWEN’S demurrer took place on October 26,

2012, and, after oral arguments, the lower Court affirmed its tentative

ruling, sustaining BOWEN’S demurrer without leave to amend. (CT

138). On March 29, 2013, the lower Court entered its Order

Sustaining Demurrers to WRIT without leave to amend, and it entered

a judgment dismissing WRIT in its entirety. (CT 149) This appeal

followed.

  • B. Statement of Facts Appellant DUMMETT, a citizen of the State of California, was

a write-in candidate for President of the United States in the 2012

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California Republican primary election (Federal Election Commission

registration # P20002499). (CT 02). As a Presidential candidate,

DUMMETT has an interest in having a lawful and fair Presidential

election contest. (CT 02). This interest could be analogized to the

interest of a town’s Babe Ruth baseball team, where one of the

children trying out for that team is ineligible because he lives in a

different town. There, all of the children who actually live in the town

are harmed if the rules are violated , since they are being forced to

compete against children who do not live in that town and not eligible

to be on that team. If BOWEN was not required to verify the

eligibility of all candidates who apply to be named on the California

Presidential primary ballot under U.S. Constitution Article II, Section

1, Clause 5, and candidates enter this race without having met said

constitutional eligibility requirements, then DUMMETT was

compelled to campaign against ineligible candidates on the California

Republican Presidential primary ballot, and on the California

Presidential general election ballot, and he suffered irreparable harm

due to having been denied a fair competition in the Presidential

primary, and in the Presidential general election. (CT 03).

6

The other Appellants are natural persons who were (i) all

residents of California, (ii) all registered and eligible to vote for

President of the United States in the 2012 election cycle, and (iii) all

eligible California electors. (CT 03-04). As eligible California

electors, APPELLANTS have an interest in all Presidential candidates

being verified as having met the minimum requirements of eligibility

prior to the placement of the candidates’ names on the ballot for the

Primary Election. (CT 03-04).

BOWEN is the California Secretary of State, and, by virtue of

her position, is the Chief Elections Officer for the State of California.

She was responsible for enforcing California election law, including

verifying eligibility for office, and printing the ballots for the 2012

primary election. (CT 04).

APPELLANTS filed a WRIT seeking a determination by the

lower Court whether BOWEN had verified that all candidates for the

2012 California Presidential primary election had provided proof that

they possessed the minimum qualifications for the Office of President

of the United States, and, if not, APPELLANTS requested that the

lower Court enjoin BOWEN from placing the names of such

unverified candidates on the California Presidential primary election

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ballot, unless and until such time as BOWEN could show that each of

said candidates had so verified their eligibility for the office. (CT 02).

APPELLANTS sought this relief because an unprecedented and

looming constitutional crisis would occur if BOWEN did not require

that all Presidential candidates provide proof that they meet the U.S.

Constitution’s Article 2 eligibility requirement for the office of

President prior to candidate names being placed on the ballot, since

the voters would reasonably rely on the assumption that all names on

the ballot had been verified as eligible for the office, and that the only

remaining task for the voters would be to select a candidate for whom

to vote. (CT 02).

Finally, in their WRIT, APPELLANTS requested that the lower

Court find California Elections Code § 6901, which governs the duties

of the Secretary of State in relation to the ballot for the General

Election, to be unconstitutional and unenforceable. (CT 11-12).

BOWEN filed a demurrer to WRIT arguing that WRIT failed to

state facts sufficient to constitute a cause of action that could support

the relief requested in WRIT. The lower Court agreed with BOWEN,

subsequently sustained the demurrer without leave to amend, and

dismissed the case in its entirety.

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III.

STANDARD OF REVIEW

On appeal from a judgment of dismissal after a demurrer is

sustained without leave to amend, the reviewing Court applies an

independent review standard, giving the Petition a reasonable

interpretation, and treating the demurrer as admitting all material facts

properly pleaded. Farm Raised Salmon Cases, 42 Cal. 4th 1077, 1089

n. 10 (2008). A demurrer tests only the legal sufficiency of the

pleadings; it does not test the truth of the Petition’s allegations or their

accuracy, but admits the truth of all material factual allegations, and

the Petitioners’ ability to prove them. Quelimane Co. v. Stewart Title

Guar. Co., 19 Cal. 4th 26, 47 (1998).

The issue on this appeal, then, is whether APPELLANTS

stated, or could state, a cause of action under any possible legal

theory. For such purposes, all material facts pleaded in the complaint,

and those that arise by reasonable implication, must be considered

true. Pollack v. Lytle, 120 Cal. App. 3d 931, 936, fn. 2 (1981)

(disapproved on other grounds in Beck v. Wecht, 28 Cal. 4th 289, 298

(2002)).

9

The judgment must be reversed if the Petitioners stated a cause

of action under any possible legal theory, regardless of the label

attached to the cause of action. Aubry v. Tri-City Hospital Dist., 2 Cal.

4th 962, 966-967 (1992). It is also reversible error to sustain a

Demurrer without leave to amend, if the Petitioners show, either in the

trial Court or on appeal, that there is a reasonable possibility that any

defect identified by the Respondent can be cured by an amendment.

City of Dinuba v. County of Tulare, 41 Cal. 4th 859, 865 (2007).

IV.

ARGUMENT

  • A. Appellants did state facts sufficient to constitute a cause of action for issuance of a writ of mandate under CCP § 1085 In its order sustaining BOWEN’S demurrers, the lower Court

stated that WRIT fails to state facts sufficient to constitute a cause of

action. The Court’s ruling was in error. Under CCP § 1085, “[a] writ

of mandate may be issued by any court to any inferior tribunal,

corporation, board, or person, to compel the performance of an act

which the law specially enjoins, as a duty resulting from an office,

trust, or station, or to compel th e admission of a party to the use and

enjoyment of a right or office to which the party is entitled, and from

10

which the party is unlawfully precluded by such inferior tribunal,

corporation, board, or person.”

The California Secret ary of State is responsible for enforcing

California Election law, including Federal Election law incorporated

via the California Constitution. (California Constitution, Article III, §

1.) BOWEN is also responsible for placing names of presidential

candidates on the ballot. California Secretaries of State have

traditionally removed from the ballot, or refused to place on the ballot,

names of presidential candidates who did not meet the requirements

for eligibility for the office of President of the United States. Adhering

to her office’s traditional duty, BOWEN refused to place a non-

eligible third party candidate on the ballot for the 2012 California

primary election. BOWEN did not, however, check the eligibility of

presidential candidates nominated by national political parties

pursuant to California Election Code Section 6901, which prevents

BOWEN from exercising her duty to ensure compliance with

California and Federal election laws. As the result of BOWEN’s

action, names were placed on the California Ballot without

verification as to their eligibility for the office, BOWEN’s duty was

circumvented and WRIT Petitioners, among others, were injured.

11

Although courts often deny relief for a writ of mandamus, a

writ of mandate should not be denied when the issues presented are of

great public importance and must be resolved promptly. Corbell v.

Superior Court, 125 Cal.Rptr.2d 46, 101 (App. 1 Dist. 2002), review

denied, 101 Cal.App.4th 649. Furthermore, a court is not bound by

precedent in determining facts and circumstances compelling the

issuance of a writ of mandamus, and a writ will issue against a city or

other public body or officer wherever law and justice so require.

Banks v. Housing Authority of City and County of San Francisco, 120

Cal.App.2d 1, 260 P.2d 668 (App. 1 Dist. 1953), cert. denied, 74 S.Ct.

784, 347 U.S. 974.

As argued before the lower Court, California State law provides

that any voter in California may seek a writ of mandate for errors in

the placing of a name on the ballot. The Elections Code states that

“[a]n elector may seek a writ of mandate alleging that an error or

omission has occurred, or is about to occur, in the placing of a name

on, or in the printing of, a ballot, sample ballot, voter pamphlet, or

other official matter, or that any neglect of duty has occurred, or is

about to occur.” (EC § 13314(a)(1)).

12

Additionally, a U.S. District Court has held, “a candidate or his

political party has standing to challenge the inclusion of an allegedly

ineligible rival on the ballot, on the theory that doing so hurts the

candidate’s or party’s own chances of prevailing in the election.”

Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008).

As such, DUMMETT, as a candidate for President in the 2012

election cycle, and as a California voter who was concerned that one

or more unverified candidates for President of the United States would

be included on the California primary ballot, had a legitimate interest

in ensuring that all candidates for the office of President are eligible to

run for and serve as President. Because of the foregoing, DUMMETT

had both standing and legitimate grounds to Petition the lower Court

for a Writ of Mandate. Therefore, BOWEN’S demurrer should have

been overruled.

  • B. The Secretary of State's reliance on California Elections Code § 6901 is misplaced because § 6901 unconstitutionally prevents the Secretary of State from fulfilling her duties as the Chief Elections Officer of California In its order sustaining BOWEN’S demurrer, the lower Court

relied upon California Elections Code § 6901 to excuse the Secretary

of State from any legal duty to determine the eligibility of candidates

13

for President of the United States before their names may be placed on

the ballot. (CT 138). Section 6901 states the following:

Whenever a political party, in accordance with Section 7100, 7300, 7578, or 7843, submits to the Secretary of State its certified list of nominees for electors of President and Vice President of the United States, the Secretary of State shall notify each candidate for elector of his or her nomination by the party. The Secretary of State shall cause the names of the candidates for President and Vice President of the several political parties to be placed upon the ballot for the ensuing general election. [EC Code § 6901.]

The lower Court’s reliance on § 6901 is misplaced because it is

wholly inconsistent with Article II of the United States Constitution,

as well as with the duties and requirements of the Secretary of State

provided by the California Government Code (“GC”), including the

duty to determine candidates’ eligibility for holding various offices.

Pursuant to California Election Code § 10, BOWEN is the

Chief Elections Officer of the State of California, and in that position,

she has the powers and duties specified in section 12172.5 of the

California Government Code. The Secretary of State’s website

(http://www.sos.ca.gov/admin/about-the-agency.htm) itemizes the

statutory duties of the office of the Secretary of State, including duties

as the Chief Elections Officer for California, to ensure that

California’s election laws are followed (GC § 12172), to investigate

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election fraud (id.), and to advise candidates and local elections

officials on the qualifications and requirements for running for office

(id.).

In order to fulfill the duty to advise candidates, the Secretary of

State provides to the public several documents containing information

concerning the qualifications and requirements for each elected

position. Documents that list the qualifications and requirements for

each elected position are provided for all state and Federal offices,

including the offices of Governor and Lieutenant Governor; Secretary

of State, Controller, and Treasurer; Attorney General; Insurance

Commissioner; Member of the Stat e Board of Equalization; State

Senator and Member of the Assembly; United States Senator; United

States Representative in Congress; and President of the United States.

The lower Court’s reliance on California Elections Code § 6901

results in a troubling situation because § 6901 requires the Secretary

of State to verify that every candidate for the above-listed positions is

eligible for the sought position, except for those candidates that have

been selected for the office of President and Vice President of the

United States by a national political party. Such national party-

15

selected candidates are not required to present to the Secretary of

State any documentation proving their eligibility.

The Court's reliance on California Elections Code § 6901

produces absurd results. For example, if the Republican Party were to

nominate former Governor Arnold Schwarzenegger for President,

California Elections Code § 6901 would require the Secretary of State

to place him on the ballot for the election, despite the fact that Arnold

Schwarzenegger is well known as not being a natural born citizen of

the United States. Further, if the Libertarian Party were to nominate

Ayn Rand as candidate for President, the Secretary of State would

have no option other than to put her on the ballot, even though Ms.

Rand died in 1982. Again, if the Democratic Party were to nominate

David Cameron, the Prime Minister of the United Kingdom of Great

Britain and Northern Ireland, then the Secretary of State would be

forced to put Mr. Brown on the ballot, despite the fact that he is a

citizen of Great Britain.

The foregoing examples illustrate the inconsistencies between

California Elections Code § 6901 and the eligibility requirements for

President established by the United States Constitution. Each

individual in the examples referenced above is ineligible to hold office

16

as President of the United States and, therefore, must by law be

excluded from the ballot. Yet, under California Elections Code §

6901, the Secretary of State has no discretion or authority to exclude

those obviously ineligible candidates from the ballot. In fact,

California Elections Code § 6901 directs the Secretary of State to

disregard the U.S. Constitution as well as her duties as Chief Elections

Official in the State of California with regard to the most important

elected office in the United States. Without oversight and meaningful

remedial action from the Secretary of State, absurd results are a real

possibility. Political parties are not government agencies, and should

not be trusted with ensuring that federal and state constitutions and

laws are complied with, as their primary mission is to elect their

candidates to office which could diminish their enthusiasm to see a

particular law be followed.

Perhaps because § 6901 leads to absurd and unconstitutional

results, it has been selectively disregarded in the past. Indeed, it would

be fair to say it has been discriminately and arbitrarily applied.

Throughout California’s past, California’s Secretaries of State have

exercised their due diligence by reviewing necessary background

documents, verifying that the various candidates that were submitted

17

by the respective political parties as eligible for the ballot were,

indeed, eligible.

For example, in 1968, the Peace and Freedom Party certified

Eldridge Cleaver as a qualified candidate for President of the United

States. The California Secretary of State at the time, Frank Jordan,

found that, according to Mr. Cleaver’s birth certificate, Mr. Cleaver

would be only 34 years old at the time of the general election, which

was one year shy of the Constitutional requirement of a candidate

being at least 35 years of age in order to be on the ballot as a

candidate for President. Using his administrative powers, Mr. Jordan

removed Mr. Cleaver from the ballot despite the plain language of §

6901. Mr. Cleaver challenged Mr. Jordan’s decision to the Supreme

Court of the State of California, a nd later to the Supreme Court of the

United States, which affirmed the actions of the Secretary of State by

denying review of the decision dismissing Mr. Cleaver’s challenge to

his removal from the ballot. Cleaver v. Jordan, 393 U.S. 810, 89 S.Ct.

43 (1968).

Similarly, in 1984, the Peace and Freedom Party certified Larry

Holmes as an eligible candidate in the Presidential primary. When

California’s Secretary of State at the time, Daniel M. Burns, checked

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Mr. Holmes' eligibility for office, it was found that Mr. Holmes was

not eligible, and his name was removed from the ballot, despite the

plain language of § 6901.

The removal of ineligible candidates is not a relic of history.

Respondent BOWEN has herself recently exercised her power to

remove ineligible candidates from the ballot. As recently as 2012, Ms.

Peta Lindsay was certified by the Peace and Freedom Party to be its

Presidential candidate on the ballot for the 2012 California Primary

Election. BOWEN, however, rejected the Peace and Freedom Party’s

candidate and refused to place her name on the ballot because she was

only 27 years old, which did not satisfy the U.S. Constitution’s Article

II, Section 1 requirement that candidates for President of the United

States be at least 35 years of age.

Despite the fact that California’s Secretaries of State, including

BOWEN herself, have historically asserted the discretionary right to

fulfill their duties under the U.S. Constitution, the Government Code,

and the Elections Code, by requiring that candidates meet the various

eligibility requirements before appearing on the ballot, and thereby

disregard § 6901, the lower Court’s ruling in this case implies that

Secretaries of State are free to disregard the statute when they choose,

19

or enforce the statute when they choose to. Such unfettered discretion

is illegal and unconstitutional in that it gives the Secretary of State the

arbitrary power to decide whether to require proof of a particular

candidate’s eligibility before placing the candidate on the ballot.

Thus, as California Elections Code § 6901 conflicts with the

requirements of the U.S. Constitution and is inconsistent with the

duties of the Secretary of State provided by the California Elections

Code and the California Government Code, California Elections Code

§ 6901 is unconstitutional and unenforceable. Furthermore, the pattern

of inconsistent application is arbitrary and capricious, giving the

Secretary of State the power to discriminate based on personal

preferences as to against whom to require proof of eligibility. Clearly,

the lower Court erred in ignoring § 6901’s unconstitutionality and in

sustaining BOWEN’S demurrer.

  • C. Keyes v. Bowen Does Not Apply To This Case Since It Did Not Resolve Any Constitutional Challenge to § 6901 And Incorrectly Held That the Secretary of State Has No Duty To Verify the Constitutional Eligibility of Presidential Candidates. APPELLANTS argued in the WRIT that the language of

California Elections Code § 6901, compelling the Secretary of State to

place any candidate nominated by a national political party on the

20

ballot without verifying that the candidate is eligible for the office, is

in direct conflict with the requirements for Presidential eligibility in

Article II of the United States Constitution. (CT 10).

This is no trivial matter, as the California Constitution provides:

“The State of California is an inseparable part of the United States of

America, and the United States Constitution is the supreme law of the

land.” (California Constitution, Article III, § 1).

Since the United States Constitution is the supreme law of the

land, under both the United States and the California Constitutions

(U.S. Constitution, Article VI, Clause 2; California Constitution,

Article III, § 1), any statute which conflicts with the United States

Constitution is therefore void and unenforceable.

The Court in the case of Keyes v. Bowen, 189 Cal.App.4th 647

(2010) cited California Elections Code § 6901 as an example of a non-

discretionary duty of the California Secretary of State to place names

of candidates nominated by national political parties on the ballot for

the California General Election. Keyes v. Bowen, 189 Cal.App.4th

647, 659 (2010). The Court ultimately held that the California

Secretary of State owed no duty to verify eligibility of presidential

candidates. Keyes v. Bowen, 189 Cal.App.4th 647, 661 (2010).

21

Keyes v. Bowen does not apply here. Petitioners in raised this

issue of whether California Elections Code § 6901 was

unconstitutional. Keyes v. Bowen, 189 Cal.App.4th 647, 659 (2010).

However, the Court refused to consider whether the statute was

unconstitutional, holding: “The contention is forfeited because it was

raised for the first time in their reply brief without a showing of good

cause.” Keyes v. Bowen, 189 Cal.App.4th 647, 659 (2010).

Accordingly, Keyes v. Bowen did not rule against the type of

constitutional challenge brought here.

As to the narrow ruling of the court in Keyes v. Bowen, it

wholly disregarded the significance of prior inconsistent application

of the statute. As discussed in section B, supra, the California

Secretaries of State have historically exercised their due diligence by

reviewing necessary background documents, verifying that the

candidates that were submitted by the respective political parties as

eligible for the ballot were, indeed, eligible. Again, as discussed

above, the removal of ineligible candidates is not a relic of historical

actions by California Secretaries of State, as BOWEN, too, exercises

this power to remove ineligible candidates from the ballot. It bears

mention that since BOWEN has demonstrated by her actions that she

22

can, and does, remove ineligible presidential candidates from the

ballot, there is no question that she looks to the Article 2, § 1

minimum requirements for eligibility as an absolute guideline as to

whom she should permit to be named on the ballot. Given this

enforcement of Article 2, § 1 by the California Secretaries of State,

both now and in the past, it is inconsistent and unconstitutional under

California Constitution Article 1, § 3 for there to be a two-tiered

application of the law as applied to Presidential candidates. No court

could sanction a system whereby BOWEN exercises her statutory

duty to permit some candidates to be exempt from proving their

eligibility for office to solely by showing they have been approved by

a national political party as here. A rule that can be applied or waived

at will is no rule of law. It is the very definition of arbitrary

government. It is the rule of man, not of law. BOWEN should be

required to make such verification of eligibility for all presidential

candidates, and not just verify the eligibility of candidates from

smaller political parties.

As discussed above, BOWEN is required by California statute

to oversee California elections, and to enforce California election law.

This requirement cannot be satisfied by attempting to transfer the duty

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to enforce election law to any other entity, such as to political parties,

or even to the California electorate.

Petitioners HOUSTON, LAKAMP, JOHNSON, and OTT, as

California electors, neither have the responsibility, nor are they in a

position to be able, to require Presidential candidates to provide

sufficient proof that said candidates are eligible for the office. The

only responsibility for a California elector is to vote for the candidate

that the elector believes to be best able to govern the country. The

elector acts in the belief that any Presidential candidate approved by

BOWEN for name placement on the primary ballot has been properly

verified by BOWEN, as possessing the minimum requirements of

eligibility for the office. If BOWEN is not required to verify the

eligibility of Presidential candidates, then that responsibility will

improperly be transferred to the el ectorate, which cannot, despite the

possibility of a majority vote for a particular candidate, overcome the

Article II, Section 1, requirements.

For the reasons stated above, Keyes v. Bowen did not resolve

the constitutional challenge brought here. To the extent it is relevant,

it was wrongly decided and should be reversed, and the Secretary of

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State should be required to verify the eligibility of all candidates for

the offices that they seek, without any exception.

v.

CONCLUSION

Based on the foregoing, APPELLANTS respectfully request

that this Court reverse the lower Court's Judgment of Dismissal after

Sustaining BOWEN'S Demurrer and remand the case to the lower

Court with instructions for the lower Court to order BOWEN to

answer WRIT or, in the alternative, with instructions for the lower

Court to provide APPELLANTS leave to amend.

DATED: December 18, 2013

Respectfully submitted,

~~

NATHANIEL J. OLESON Attorney for Appellants

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CERTIFICATE OF COMPLIANCE CRC 8.204(c)(l)

  • I hereby certify that this Opening Brief consists of 4, 784 words per California Rules of Court Rule 8.204(c)(l). The number of words

was confirmed by reference to counting by the Microsoft Word

computer program used to typeset this brief.

  • I declare under penalty of perjury that the foregoing is true and

correct to the best of my knowledge. Executed this 18th day of

December 18, 2013.

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