motion to affirm — Graham v. Fong Eu

Su. ' me Co

PILES

‘

v

: DEC 26 1975

—

MICHAEL RODAK, JR., CLERK

Supreme Court of the Uniied States

Octoser Term, 1975

No. 75-740

James 8. GraHaM,

Appellant,

Vs.

Marcu Fone Ev, Secretary of State,

and Repusiican State CenTRAL COMMITTEE

oF CALIFORNIA,

Appellees.

On Appeal from the United States District Court

for the Northern District of California

Motion to Affirm

Paut R. Harrie

2 Embarcadero Center

San Francisco, California 94111

James D’A. WELCH Attorney for Appellee

THELEN, Marrin, JOHNSON Republican State Central

& Bripces Committee of California

2 Embarcadero Center

San Francisco, California 94111

of Counsel

—

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

TABLE OF CONTENTS

Page

Ay TEI cessssciesitsalbiniaiinnidaiiitibicciteialaasideamicitaltibeiiaaaaesiuiaiag 1

Argument ........... ssnihabeehaetapiaesiaiviahlteielsheiehttesaiatpaa loans sini 2

I. California’s Winner-Take-All Republican Pres-

idential Primary Election Does Not Violate the

Equal Protection Clause ................--.-ccesscsseceseeees 2

“ IL. This Court Has Increasingly Recognized the

Impropriety of Further Judicial Intrusions Into

I MII -cieinsieabishiatirhiseisaesneeiidemtbiaicesiniastin 11

Ill. The Winner-Take-All Primary Election Ration-

ally Advances Legitimate State Interests ........ 17

rr « CN ae 21

Appendix: Assembly Bill No. 427

TABLE OF AUTHORITIES

CASES Pages

Abate v. Mundt, 403 U.S. 182 (1971) .......................0- 3

American Party of Texas v. White, 415 U.S. 767

SIE ssciiuisensbcsusienieliel caer dahl cathedrals 20

Avery v. Midland County, 390 U.S. 474 (1968) -........... 3

Baker v. Carr, 369 U.S. 186 (1962) ..................-cccceccceeees 3,4

Bode vy. National Democratic Party, 452 F.2d 1302

(D.C. Cir. 1971), cert. denied, 404 U.S. 1019 (1972). 16

Bullock v. Carter, 405 U.S. 134 (1972) ...........2........... 3, 17, 20

Burns v. Richardson, 384 U.S. 73 (1966) -....................... 5

Chapman v. Meier, 420 U.S. 1 (1975) ~.......0000222... 5, 6,8

Cousins v. Wigoda, 419 U.S. 477 (1975) -................. 11, 13, 16

Doty v. Montana State Central Committee, 337

fo ES: BO Fe 4

Dunn vy. Blumstein, 405 U.S. 330 (1972) ...00000002..- 19

Forston v. Dorsey, 379 U.S. 433 (1965) —..020.... 5)

Georgia v. National Democratic Party, 447 F.2d 1271

(D.C. Cir. 1971), cert. denied, 404 U.S. 858 (1972) .. 16

Gray v. Sanders, 372 U.S. 368 (1968) 000 10

Iladley v. Junior College District, 397 U.S. 50 (1970).. 3

Hill v. Stone, 421 U.S. 289 (1975) .............c..ccccccccccersecceees 17

Irish v. Democratic-Farmer-Labor Party of Minne-

sota, 399 F.2d 119 (8th Cir. 1968) ......................ccccceecees 3, 16

Jenness v. Fortson, 403 U.S. 431 (1971) —...0022... 20

Keane vy. National Democratic Party, 409 U.S. 1

IE STUIED \cscrssssnsecibsaieettiiaetetaeinsipsbaaeadeabainiaeniiditaidishiaieaniatnaibiiabaiadieaiidd 13, 14

Kirkpatric v. Preisler, 394 U.S. 526 (1969)... 3

Kilgarlin v. Hill, 386 U.S. 120 (1967) —0 )

Kusper v. Pontikes, 414 U.S. 51 (1973) -0 0. 17, 19

TABLE OF AUTHORITIES iil

‘ Lynch v. Torquato, 343 F.2d 370 (3d. Cir. 1965) ........ 16

Mahan v. Howell, 410 U.S. 315 (1973) oo 3

Maxey v. Washington State Central Committee, 319

F.Supp., 673 (W.D. Wash. 1970) 00.0.2... eeeeeeeeeee ee 4

McDonald vy. Board of Election Commissioners of

Chicago, 394 U.S. 802 (1969) 2. 17, 18, 21

Moore v. Ogilvie, 394 U.S. 814 (1969) oo. 3

Newberry v. United States, 256 U.S. 232 (1921) ........ 3

Nixon v. Condon, 286 U.S. 73 (1932) ooocccececeeeceeeeeeeee 3

Nixon v. Herndon, 273 U.S. 536 (1927) .0.......2....c.ce0-e-- 3

O’Brien v. Brown, 409 U.S. 1 (1972) occ 13, 14, 16

Redfern v. Delaware Republican State Committee, 362

Sn TO I I eames 4

Reynolds v, Sims, 377 U.S. 533 (1964) 20. 3

Ripon Society v. National Republican Party, ...., F.2d.

...y 44 U.S.L.W. 2161 (D.C. Cir. 1975) 20. 15, 16

Rosario v. Rockefeller, 410 U.S. 752 (1973) -0020..

Seergy v. Kings County Republican County Commit-

tee, 459 F.2d 308 (2d Cir. 1972) ooo. ccc ee 4

Smith v. Allwright, 321 U.S. 649 (1944) ooo. 3, 16

Smith v. State Exec. Comm. of Dem. Party of Ga., 288

fo BB 8k ee ee 3

Storer v. Brown, 415 U.S. 724 (1974) 0. 17, 19, 20

Terry v. Adams, 345 U.S. 461 (1953) 3

United States v. Classic, 313 U.S. 299 (1941) oo. 3

Wesberry v. Sanders, 376 U.S. 1 (1964) oo. 3

Whitcomb v. Chavis, 403 U.S. 124 (1971) 0c. 2.5

White v. Regester, 412 U.S. 755 (1973) oo. d, 7

iv TABLE OF AUTHORITIES

Williams v. Rhodes, 393 U.S. 23 (1968) ....................8, 19, 20

Williams v. Virginia State Board of Elections, 288

F.Supp. 622 (.D. Va., 1968), aff’d per curiam, 393

ef ee Eee 2,8, 9, 10

STATUTES

ee eee rs OE _sauadniecienniassnenianeaeonenesns

to

Law Reviews

Note, One Man, One Vote and the Selection of Dele-

gates to National Nominating Conventions, 37 U.

NGI: SUID CUED ss asaihsnesisiianiiineabenamnncienrseientioes 16

Note: One Person, One Vote: The Presidential Prim-

aries and Other National Convention Delegate Selec-

tion Processes, 24 Hastings L. Rev. 257, 274 (1973)..

bo

bo

.

IN THE

Supreme Court of the United States

Octoser Term, 1975

No. 75-740

James §S. GraHaM,

Appellant,

Vs.

Marcu Fone Ev, Secretary of State,

and Repusiican State CenTRAL COMMITTEE

oF CALIFORNIA,

Appellees.

On Appeal from the United States District Court

for the Northern District of California

Motion to Affirm

Appellee, Republican State Central Committee of Cali-

fornia (hereinafter referred to as “RSCCC”), moves, pur-

suant to Supreme Court Rule 16, to affirm the judgment of

the District Court on the ground that it is manifest that the

questions on which the decision of the cause depends are

so unsubstantial as not to need further argument.

OPINION BELOW

After the presentation of evidence and hearing argu-

ments on the merits, the District Court held that the Repub-

lican Partv’s winner-take-all presidential primary election

2

system as established by California statute did not violate

appellant’s rights under the Equal Protection Clause of the

Fourteenth Amendment or the First Amendment. The Dis-

trict Court relied principally on this Court’s decisions in

Whitcomb v. Chavis, 403 U.S. 124 (1971), and Williams v.

Virginia State Board of Elections, 288 F. Supp. 622 (E.D.

Va. 1968), aff’d mem 393 U.S. 320 (1969), which upheld the

constitutionality of the winner-take-all rule within, respec-

tively, the contexts of legislative apportionment schemes

and the Electoral College.

Relying upon the standards set forth in Whitcomb, the

District Court found that appellant had failed to prove

that any identifiable group “had less opportunity than did

other[s] ... to participate in the political process and to

elect [delegates to the National Convention] of their

choice.” Whitcomb v. Chavis, supra at 149.

ARGUMENT

1. California's Winner-Take-All Republican Presidential Primary

Election Does Not Violate the Equal Protection Clause.

In this action appellant seeks to declare Cal. Elec. Code

$ 6201 unconstitutional on the grounds that California’s

“winner-take-all” Republican presidential primary election

violates the Equal Protection Clause of the Fourteenth

Amendment.’ His theory is that the winner-take-all primary

1. Citations to the California Election Code are to sections

which were in effect at the time of trial. On September 24, 1975

the provisions of former Chapter 1, commencing with Section

6000, of Division 5 of the California Elections Code was repealed

and superseded by Assembly Bill No, 427. The new law modifies

the procedure for presidential primary elections of the Republi-

can Party in California, but retains the winner-take-all rule of the

former statute. Sections 6056, 6071(¢), Cal. Elee. Code. Assembly

Bill No. 427 is set forth in the Appendix.

NN ——————————eeEeeeEeEeEeEeEeEeEeEeEeEeEeEeEeEeeeEeeeeEeEeEeEeEeEeEeEeeEeaaE=SeeeeEEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeaeaeaeoeaeEeEeaeaeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEeEOeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

3

violates the Equal Protection Clause because it does not

afford proportionate representation at the National Con-

vention of the various political factions within the Party.

To date the only decisions by this Court applying equal

protection principles to the electoral process have involved

the first tier of the electoral process, i.e., the method by

which representatives are chosen. At no time has this Court

ruled that various political factions are entitled to propor-

tionate representation. It has merely ruled that eligible

voters must have equal access to the political process, that

all votes be weighed equally, and that the election procedure

may not contain a built-in bias which dilutes or cancels the

voting strength of identifiable racial or political groups.?

2. For example, the White Primary Cases collectively held that

the Equal Protection Clause was violated by systems which pre-

vented blacks from participating in primary elections or in state

nominating conventions held in lieu of primary elections. Terry

v. Adams, 345 U.S. 461 (1953); Smith v. Allwright, 321 U.S. 649

(1944) ; United States v. Classic, 313 U.S. 299 (1941); Nixon v.

Condon, 286 U.S. 73 (19382); Nixon v. Herndon, 273 U.S. 536

(1927); Newberry v. United States, 256 U.S. 232 (1921).

The Reapportionment Cases similarly imposed the one man—

one vote standard on elections of legislative representatives and

other governmental officials. Baker v. Carr, 369 U.S. 186 (1962) ;

Mahan v. Howell, 410 U.S. 315 (1973); Kirkpatrick v. Preisler,

394 U.S. 526 (1969); Reynolds v. Sims, 377 U.S. 533 (1964) ;

Wesberry v. Sanders, 376 U.S. 1 (1964); Abate v. Mundt, 403

U.S. 182 (1971); Hadley v. Junior College District, 397 U.S. 50

(1970) ; Avery v. Midland County, 390 U.S. 474 (1968).

The’ Ballot Access Cases were only concerned with the ability

of candidates for public office to be placed on the ballot. Williams

v. Rhodes, 393 U.S. 23 (1968); Moore v. Ogilvie, 394 U.S. 814

(1969) ; Bullock v. Carter, 405 U.S. 134 (1972).

On the other hand Irish v. Democratic-Farmer-Labor Party of

Minnesota, 399 F.2d 119 (8th Cir. 1968), rejected the contention

that the State convention which selected delegates to the national

convention must be apportioned on the basis of one man, one vote.

It held that the requirements of the Equal Protection Clause were

satisfied sinee all party members were entitled to participate

equally at the precinet caucuses. Accord, Smith v. State E-rec.

Comm. of Dem. Party of Ga., 288 F. Supp. 371 (N.D. Ga. 1968).

It has also been held that where delegates to the national con-

vention are chosen at state conventions (rather than by primary

elections) the delegates to the state conventions must be appor-

4

RSCCC contends that the principles of the Equal Pro-

tection Clause are not offended by the winner-take-all rule

in presidential primary elections, and that it is manifestly

inappropriate to extend those principles into the intra-party

process of selecting a political party’s Presidential and Vice

Presidential candidates.

Appellant does not contend that the principle of one

man-one vote established by Baker v. Carr, 369 U.S. 186

(1962), is violated by the winner-take-all rule. Indeed, no

such contention is possible, because the election is conducted

on a statewide basis, each eligible Republican voter being

entitled to an equally weighted vote. Rather, appellant con-

tends that the winner-take-all rule contains a built-in bias

which dilutes and cancels the voting strength of discernible

voting elements.

The thrust of appellant’s argument is that the winner-

take-all rule is inherently unfair because voters for non-

plurality candidates are not represented at the Republican

National Convention, particularly at the time when Presi-

dential and Vice Presidential candidates are nominated. He

contends that the Equal Protection Clause requires that

non-plurality factions must have the possibility of obtaining

delegate representation, and suggests that this can be best

accomplished by the election of delegates from districts

within the State.

tioned among geographie units within the state. Seergy v. Kings

County Republican County Committee, 459 F. 2d 308 (2d Cir.

1972); Redfern v. Delaware Republican State Committee, 362 F.

Supp. 65 (D. Del. 1973); Doty v. Montana State Central Com-

mittec, 337 F. Supp. 49 (D. Mont. 1971); Mazey v. Washington

State Central Committee, 319 F. Supp. 673 (W.D. Wash. 1970).

The common denominator among these cases is that the courts

required proportionate representation at the state convention—

i.c., the first tier at which state delegates to the national conven-

tion were seleeted. None of those decisions required that delegates

to the national convention represent the various and diverse in-

terest present at the state convention.

5

The substance of appellant’s arguments is not novel. He

helabors at length the real or alleged shortcomings of the

winner-take-all rule which have been carefully considered

by this Court on several recent occasions in a series of

decisions regarding multi-member legislative districts. Al-

though this Court has expressed a judicial preference for

single-member districts in court ordered reapportionment

plans on the basis of its supervisory powers, Chapman v.

Meier, 420 U.S. 1 (1975), it has consistently held that the

winner-take-all rule is not per se unconstitutional. Rather,

the challenger bears the burden of establishing that the

scheme “was designed to or would operate to minimize or

cancel out the voting strength of racial or political elements

of the voting population.” Burns v. Richardson, 384 U.S.

73, 89 (1966). Accord, Chapman v. Meier, 420 U.S. 1, 17

(1975); White v. Regester, 412 U.S. 755, 765 (1973) ; Whit-

comb v. Chavis, 403 U.S. 124, 144 (1971); Kilgarlin v. ITill,

386 U.S. 120 (1967); Forston v. Dorsey, 379 U.S. 433, 439

(1965).

The District Court found that “plaintiff has failed to

demonstrate factually that any identifiable group has been

denied, because of racial or political differences, an oppor-

tunity to participate in the Republican primary and to elect

delegates of its choice”. Appellant contends that the Dis-

trict Court’s decision was contrary to this Court’s teachings

in Whitcomb v. Chavis, 403 U.S. 124 (1971). Nevertheless,

in his arguments before the District Court, and again in

his Jurisdictional Statement, appellant has failed, and is

apparently unable, to fulfill the two criteria which are

necessary for a successful attack. First, he has completely

failed to specify the characteristics which serve to identify

the “discernible voting elements” which are allegedly dis-

criminated against. Nor does he assert that he is a member

of any identifiable minority, or that he has anything in

6

common with any recognizable group of voters. Indeed, in

his declaration submitted to the District Court, appellant

stated that “in light of the fact that in California delegates

were awarded only to the candidate winning the primary

campaign, I chose not to cast my ballot and did not vote in

the [1972] primary election at all.” Nor is there any evi-

dence that appellant voted, or was eligible to vote, in any

other primary elections.

Secondly, appellant has failed to show that the winner-

take-all rule was “conceived or operated as [a] purposeful

device to further racial or econom:. discrimination.” Whit-

comb v. Chavis, supra, at 149. In Whitcomb this Court re-

jected the motion “that any group with distinctive interests

must be represented in [the final decision-making forum]

if it is numerous enough to command at least one seat”. 403

U.S. at 156. In response to arguments strikingly similar

to those of appellant, this Court stated,

The failure of the ghetto to have legislative seats in

proportion to its population emerges more as a fune-

tion of losing elections than of built-in bias against

poor Negroes. The voting power of the ghetto resi-

dents may have been cancelled out as the District Court

held, but this is a mere euphemism for political defeat

at the polls .. .[WJ]e have not yet deemed it a denial

of equal protection to deny legislative seats to losing

candidates, even in those so-called ‘safe’ districts where

the same party wins year after year. /d. at 153.*

These principles were recently reaffirmed in Chapman v.

Meier, 420 U.S. 1 (1975), where this Court said “there must

be more evidence than a simple disproportionality between

the voting potential and the legislative seats won by a racial

or political group. There must be evidence that the group

has been denied access to the political process equal to the

access of other groups.” Id. at 17.

*Emphasis supplied throughout, unless otherwise noted.

7

By way of contrast, White v. Regester, 412 U.S. 755

(1973), affirmed the decision of the District Court which

held under the facts in that case that a legislative reappor-

tionment scheme which provided for multi-member districts

in two counties invidiously discriminated against cognizable

racial or ethnic groups, and therefore violated the Equal

Protection Clause. However, this Court reiterated that,

It is not enough that the racial group allegedly dis-

criminated against has not had legislative seats in

proportion to its voting potential, The plaintiff’s bur-

den is to produce evidence to support findings that the

political processes leading to nomination and election

were not equally open to participation by the group

in question—that its members had less opportunity

than did other residents in the district to participate

in the political processes and to elect legislators of

their choice. Jd. at 765-66.

The District Court reviewed the history of racial discrim-

ination in Texas, its relationship with the effects of

multi-member districting and concluded that “‘the black

community has been effectively excluded from partici-

pation in the Democratic primary selection process,’ and

was therefore generally not permitted to enter the political

process in a reliable and meaningful manner.” Jd. at 767.

The District Court also found that “the multi-member dis-

trict, as designed and operated in Bexar County, invidiously

excluded Mexican-American from effective participation in

political life, specifically in the election of representatives

to the Texas House of Representatives.” Jd. at 769.

The factors supporting the decision in White v. Register

are totally lacking in the instant case, There is no claim of

racial discrimination, nor discrimination against any other

cognizable group. Furthermore, there is no evidence that

the winner-take-all rule contains any built-in biases or was

conceived or operated to perpetuate any discrimination.

8

Although appellant stresses that the primary election in

California is state-wide and that a victory in that election

may increase a candidate’s power at the National Conven-

tion, this Court, nevertheless, has made it clear that the

elements of proof remain the same regardless of the size of

the constituency. Chapman v. Meier, supra at 17.

From the foregoing, it is clear that minority elements of

an electorate must be given an equal opportunity to par-

ticipate in the election of their representatives. But the

Equal Protection Clause does not require that “distinctive

substantive-law interests” of such minority groups be pro-

portionately represented in legislatures, much less that all

of the various, divergent and fluid political factions which

form within the Republican Party during primary election

campaigns be proportionately represented at its National

Convention.

Appellant’s contentions to the contrary notwithstanding,

the similarity between multi-member districting and the

winner-take-all primary is quite striking. At the voter level,

the first tier of the process, all voters have an equal oppor-

tunity to vote, their votes are weighed equally in determin-

ing the outcome of the election, and the winning candidates

are vested with all of the allocated political power of the

constituency. At the second level, whether the legislature or

a national convention, the elected representatives have the

right to cast their votes consistent with the wishes of the

electorate which chose them for office. The fact that certain

minority factions may be unrepresented at the second level

is not because of a violation of the Equal Protection Clause,

but because of political defeat at the polls.

Tn addition to the reapportionment cases just discussed,

this Court has had occasion to consider the constitutionality

of the winner-take-all rule in the context of the Electoral

College. In Williams rv. Virginia State Board of Elections,

9

288 F. Supp. 622 (E.D. Va. 1968) aff’d mem., 393 U.S. 320

(1969), the plaintiffs attacked the constitutionality of Vir-

ginia’s winner-take-all rule in Presidential elections which

provided for a state-wide election and for the successful

Presidential candidate to be entitled to all of the State's

electors. As in the present case, plaintiffs complained that

Virginia’s state-wide winner-take-all rule was unfair be-

cause it did not afford minority representation among the

electors. The District Court rejected the plaintiffs’ claims

and upheld the constitutionality of the statute.

In facts in Williams are strikingly parallel to those of

the present case. At the first voting tier all eligible voters

cast votes of equal weight, the successful candidate was en-

titled to all of the state’s electors, and those electors were

committed to a given candidate. It was not until the second

voting tier, i.e., the Electoral College, that the minority

voters were unrepresented.

Although appellant would have this Court read Williams

as resting solely on a construction of Article IT, Section 1,

and the Twelfth Amendment to the Constitution, such is not

the case. On the contrary, the District Court stated: “the

authorization of each State by Article IT to ‘appoint, in

such manner as the Legislature thereof may direct’ is ‘sub-

ject to possible constitutional limitations.’ ” 288 F. Supp. at

626. Thereafter, it analyzed the case on the basis of the

Equal Protection Clause and the one person-one vote rule

and stated:

In the selection of electors the [winner-take-all] rule

does not in any way denigrate the power of one citizen’s

ballot and heighten the influence of another’s vote. Ad-

mittedly, once the electoral slate is chosen, it speaks

only for the element with the largest number of votes.

This in a sense is discrimination against the minority

voters, but in a democratic society the majority must

rule, unless the discrimination is invidious. No such

10

evil has been made manifest here. Every citizen is

offered equal suffrage and no deprivation of the suffr-

age is suffered by anyone. 288 F.Supp. at 627.

If the District Court, or this Court, had concluded that the

winner-take-all rule was contrary to the Equal Protection

Clause, nothing in Article II, Section 1, would have pre-

vented the imposition of the districting remedy, The Dis-

trict Court considered arguments of vote dilution and can-

cellation that were virtually identical with those made in

this case and held that the winner-take-all method of election

was consistent with the dictates of the Equal Protection

Clause.

Appellant places great reliance upon the decision in Gray

v. Sanders, 372 U.S. 368 (1972), in which this Court heid

unconstitutional Georgia’s county unit system of counting

votes in state-wide primary elections for United States

Senator and state-wide offices because that system resulted

in weighing the rural vote more heavily than the urban

vote and weighed some rural counties heavier than other

larger rural counties. This Court stated: “once the geo-

graphic unit for which a representative is to be chosen is

designated, all who participate in the election are to have

an equal vote...” Jd. at 379. Thus, the evil struck down in

that case was the disproportionate weighing of votes as a

result of geographic factors, an issue not presented in the

present case. It should also be noted that in Gray this Court

specifically left open the question of whether the Equal Pro-

tection Clause governs conventions used for nominating

candidates in lieu of the primary election system. /d. at 378,

n. 10. This Court did observe, however, “the only weighing

of votes sanctioned by the Constitution concerns matters of

representation, such as the allocation of Senators irrespec-

tive of population and the use of the Electoral College in

the choice of a President.” Jd. at 380.

11

From the foregoing discussion, the principle clearly

emerges that nothing in the Constitution requires that all

minority interests be proportionately represented at all

government levels. Just as electors to the Electoral College

and legislators may be elected on a winner-take-all basis, so

also may the Republican voters of California choose their

delegates to the National Convention. Since appellant has

failed to demonstrate that the winner-take-all rule contains

a built-in bias which discriminates against any identifiable

groups, this motion should be granted and the decision of

the District Court affirmed.

ll. This Court Has Increasingly Recognized the Impropriety

of Further Judicial Intrusions into Intra-Party Affairs.

By this action appellant seeks to induce this Court to

extend the one man-one vote principles of the Equal Protee-

tion Clause beyond the elective stage and into the represen-

tative stage of the essentially political and deliberative

process of selecting a political party’s Presidential and Vice

Presidential candidates.

Shortly stated, appellant invites this Court to inject it-

self into internal affairs of the Republican Party—namely

the manner in which the political power of the State of Cali-

fornia must be exercised at the Republican National Con-

vention. On the other hand, appellee RSCCC contends that

this case is singularly appropriate for exercise of judicial

restraint following the example set in several recent de-

cisions of this Court and lower federal courts. As will be

developed below, judicial restraint has been manifested in

related cases by the refusal of the courts to attempt to su-

perimpose the principles of the Equal Protection Clause

on the inner workings of political parties.

The most recent such example is Cousins v. Wigoda, 419

U.S. 477 (1975), which involved the competing claims of

two delegations from Chicago to be seated at the 1972 Dem-

12

ocra National Convention. The Wigoda delegates had

been elected at the March 1972 Illinois primary election con-

sistent with applicable state law; the Cousins delegates had

been chosen at private caucuses held in Chicago after having

been previously defeated at the primary. At the convention,

the Cousins delegates successfully challenged the seating of

the Wigoda delegates on the ground, among others, that the

slate-making procedures under which the Wigoda delegates

were selected violated the Democratic Party rules. There-

after, the Cousins delegates were seated and fully partici-

pated in the Convention.

This Court was confronted with a conflict between the

Tllinois election laws and the Democratic Party’s rules, and

held that the Party’s rules prevailed over contrary state

law. Thus, it held that the Cousins delegates, which had

been selected at private caucuses rather than by popular

election, had heen properly seated. This ruling was an exer-

cise of judicial restraint on several levels. First, it estab-

lished that national party rules regarding the qualifications

of delegates are not subject to being overturned by incon-

sistent state laws. Second, it ratified the decisions of the

convention which seated the Cousins delegates, thereby

avoiding questions as to the validity of the convention de-

cisions in which the Cousins delegates participated. Third,

and of particular significance to this case, it held that the

cor..ention acted properly in rejecting the delegates who

had been pepularly elected and by seating those who had

been chosen at private caucuses.

Although this Court expressly disclaimed any view on the

issue of “whether national political parties are subject to

the principles of the reapportionment decisions, or other

constitutional restraints in their methods of delegate selec-

tion, and allocation”, Id. at 484, n. 4(2), that decision cer-

tainly bears on such questions inasmuch as this Court

&

13

approved the action of the convention in seating the

Cousins delegates. This Court’s ruling virtually rejected

any notion that national convention delegates must be

chosen on the basis of one man-one vote, much less that

the delegates must proportionately represent the various

political factions of their constituencies. Indeed, the effect

of this Court’s holding is to the contrary—convention dele-

gates may be selected without a popular vote if chosen

consistent with the Party’s rules.

Thus, in Cousins, this Court held that the First

Amendment’s guarantee of freedom of political association

elevated the Democratic Party’: rules regarding the quali-

fications of delegates to a stature superior to that of

inconsistent state law. A fortiori, when state law is con-

sistent with a national party’s rules, the validity of the

state law should receive the same protection. In the present

ease, California’s winner-take-all rule is vonsistent with

the Republican Party’s rules and both should thus partake

of First Amendment protection.

Cousins v. Wigoda was the sequel to this Court’s earlier

decision in O’Brien v. Brown, 409 U.S. 1 (1972), which

involved the same basic dispute, and in which this Court

stressed the desirability of judicial restraint. In O’Brien,

and the companion case of Keane v. National Democratic

Party, convention delegates from California and Illinois

challenged the actions of the 1972 Democratic Convention’s

Credentials Committee which had recommended that plain-

tiffs be unseated. The District Court dismissed the com-

plaints, but the Court of Appeals reversed, granting relief

to the California delegates and denying relief to the Illinois

delegates, 469 F.2d 563 (D.C, Cir. 1972). On review, this

Court granted stays of the judgments of the Court of

Appeals principally on the ground that the case was not

appropriate for judicial intervention. This Court noted:

14

No case is cited to us in which any federal court has

undertaken to interject itself into the deliberative

processes of a national political convention; no holding

of this Court up to now gives support for judicial

intervention in the circumstances presented here, in-

volving as they do relationships of great delicacy that

are essentially political in nature. Judicial intervention

in this area traditionally has been approached with

great caution and restraint. See Irish v. Democratic-

Farmer-Labor Party of Minnesota, 399 F.2d 119 (8th

Cir. 1968); Lynch v. Torquato, 343 F.2d 370 (3d Cir.

1965); Smith v. State Exec. Comm. of Dem. Party of

Ga. 288 F.Supp. 371 (N.D. Ga. 1968). It has been

understood since our national political parties first

came into being as voluntary associations of individuals

that the convention i..elf is the proper forum for deter-

mining intra-party disputes as to which delegates

shall be seated. Thus, these cases involve claims of the

power of the federal judiciary to review actions hereto-

fore thought to lie in the control of political parties.

409 U.S. at 4.

It should not be overlooked that the challenge to the

California delegation in O’Brien was based on California’s

winner-take-all primary election law applicable to the Demo-

cratic Party (since altered), the challengers arguing that

the winner-take-all rule violated that party’s rules. Neither

the Court of Appeals nor this Court addressed the constitu-

tional issue involved, although it appears that the chal-

lengers argued that a state’s delegation should be distributed

in proportion to the votes received by the candidates they

represent. Nevertheless, the effect of this Court’s action

was to leave the decision to the convention.*

3. O’Brien was finally dismissed a moot, 409 U.S. 816 (1972),

and its companion case, Keane v. National Democratic Party, was

remanded to the Court of Appeals, 409 U.S. 816 (1972), where it

was dismissed. 475 F.2d 1287 (1973).

15

The most recent example of judicial restraint is found

in the decision of Ripon Society v. National Republican

Party, .... F.2d ..., 44 U.S.L.W. 2161 (D.C. Cir. 1975). The

plaintiffs attacked the constitutionality of the Republican

Party’s method of allocating delegates among the States,

alleging that the formula violated the one man-vote standard

of the Equal Protection Clause because it did not allocate

delegates in proportion to the States’ populations. The

Court of Appeals rejected the notion that the Equal Protec-

tion Clause is applicable to such internal affairs of the

Republican Party, stating that:

“Tnjational conventions have never been conceived as

having the function of providing a strict one person-

one vote representation to a definable national con-

stituency .... Moreover, the interests advanced by

adopting representation schemes of the party’s own

choosing seen to be of great importance and of clearly

constitutional stature.” Jd. at 2162.

The primary basis upon which the Court of Appeals rest-

ed its decision was the First Amendment’s guarantee of free

political association. In this regard, the court stated:

What is important is that a party’s choice of the one

way of governing itself that seems best calculated to

strengthen the party and advance its interests deserves

the protection of the constitution as much, if not more,

than its condemnation. The constitutional rights of

speech and assembly are of slight value if they do not

carry with them a comitant (sic) right of political

association ... there must be a right not only to form

political associations but to organize and direct them

in the way that will make them most effective.

... Therefore, the Equal Protection Clause, assum-

ing it is applicable, does not require a representation in

presidential nominating conventions of some defined

constituency on a one person-one vote basis. Jd. at

2162.

16

It is evident from a review of this decision that the

central issue concerned the manner in which the political

power of the Repubiican Party may be allocated and exer-

cised. Although the Court of Appeals for the District of

Columbia had earlier demonstrated no reluctance to become

involved in such matters (e.g., O’Brien v. Brown, 469 F.2d

563 (D.C. Cir. 1972), stay granted, 409 U.S. 1 (1972), Georgia

v. National Democratic Party, 447 F.2d 1271 (D.C. Cir.

1971), cert. denied, 404 U.S. 858 (1972) and Bode v. National

Democratic Party, 452 F.2d 1302 (D.C. Cir. 1971), cert.

denied, 404 U.S. 1019 (1972)), its decision in Ripon appar-

ently signaled its acknowledgment and understanding of

this Court’s contrary inclinations as exhibited in O’Brien

and Cousins. As the Court of Appeals stated in Ripon, “it

is the essence of the First Amendment rights that the

parties exercise that they make their own contrary (and

rational) judgments without interference from the courts.”

Id. at 2162-63.

The perception of the Court of Appeals in Ripon is surely

correct. The approval of the Smith, Irish and Lynch cases

in this Court’s opinion. in O’Brien and the later decision

in Cousins clearly demonstrate this Court’s conviction that

judicial intrusions into intra-party affairs should not go

beyond assuring both equal voter participation and full

voter protection at the grass roots level of the delegate

selection process. The reason for such restraint is clear:

judicial intervention may have a significant impact on the

delicate balance of power between competing party factions

and could produce substantial and unanticipated changes

in the operation of the political system itself. Considering

these potential effects, the courts lack judicially manageable

standards for dealing with such questions. See, e.g., Note:

One Man, One Vote and the Selection of Delegates to Na-

tional Nominating Conventions, 37 U, Chi. L. Rev. 536, 547

(1970).

17

ill. The Winner-Take-All Primary Election Rationally Advances

Legitimate State Interests.

Appellant contends that the District Court erred by

failing to test the winner-take-all rule by a standard of

strict review. The District Court reached this conclusion

on the basis that appellant had not demonstrated that the

winner-take-all rule operates to discriminate against any

identifiable political group (fn. 30). In his Jurisdictional

Statement, appellant contends that proof of such discrimina-

tion is not a necessary predicate to employing the strict

standard of judicial review, relying on this Court’s decisions

in Bullock v. Carter, 405 U.S. 134 (1972) ; Hill v. Stone, 421

U.S. 289 (1975); Kusper v. Pontikes, 414 U.S. 51 (1973) ;

and Storer v. Brown, 415 U.S. 724 (1974) Although it is

true that the challengers in those cases were not required

to identify specific political groups in order to sustain their

challenges, each of those cases involved various restrictions

on the exercise of the right of suffrage, matters which are

not in issue in this case, Hill and Kusper, respectively,

involved rules which disenfranchised those who did not own

real property and those who desired to change their party

affiliations. Storer and Bullock involved restrictions which

prevented candidates from being placed on the ballot. These

cases are inapposite simply because the present case does

not involve any infringements on the exercise of the right

to vote. The issues, as presented by appellant, involve solely

the results of elections.

Considering that appellant has failed to demonstrate

that the winner-take-all rule infringes upon the protections

of the Equal Protection Clause, it is evident that the statute

in question must be judged by the so-called “rational rela-

tionship” test rather than the “compelling state interest”

test.

The applicable standard of judicial scrutiny is found

in the decision of McDonald v. Board of Election Commis-

18

stoners of Chicago, 394 U.S. 802 (1969), where this Court

held that an Illinois statute which denied unsentenced

prisoners the right to vote by absentee ballot did not violate

the Equal Protection Clause in the absence of evidence that

they were absolutely prohibited from voting. Clearly the

statute in question severely hampered the unsentenced

prisoners in the exercise of their right to vote. Nevertheless,

this Court rejected the applicability of the “compelling

state interest” test, saying that

Such an exacting approach is not necessary here, how-

ever, for two readily apparent reasons. First, the dis-

tinctions made by Illinois’ absentee provisions are not

drawn on the basis of wealth or race. Secondly, there

is nothing in the record to indicate that the Illinois

statutory scheme had an impact on appelants’ ability

to exercise the fundamental right to vote. It is thus

not the right to vote that is at stake here but a claimed

right to receive absentee ballots, 394 U.S. at 807.

The rationale of McDonald is applicable to the present

ease. Appellant does not contend that the winner-take-all

primary discriminates on the basis of wealth, race, geo-

graphy or other “invidiously discriminatory” factors, Rath-

er, his complaint is that it prevents proportionate represen-

tation of divergent philosophies at the national convention.

It follows from McDonald that in a case such as the present

where the challenged statute does not create “constitution-

ally suspect” classifications, and does not even hamper the

citizen’s exercise of the right to vote as did the Illinois law,

the “rational relationship” test is the appropriate standard,

and appellant must establish by competent evidence that

the statute in question is totally unrelated to the pursuit

of a legitimate state end.

In McDonald the “rational relationship” was defined as

follows:

i3

... [The] statute must bear some rational relationship

to a legitimate state end and will be set aside as viola-

tive of the Equal Protection Clause only if based on

reasons totally unrelated to the pursuit of that goal.

Legislatures are presumed to have acted constitution-

ally even if source materials normally resorted to for

ascertaining their grounds for action are otherwise

silent, and their statutory classifications will be set

aside only if no grounds can be conceived of to justify

them. 394 U.S. at 809.

In evaluating the constitutionality of the winner-take-all

primary election rule, the court must “consider all the facts

and circumstances behind the law, the interest which the

state claims to be protecting, and the interest of those who

are disadvantaged by the classification.” Williams v.

Rhodes, 393 U.S. 23, 30 (1968). Accord, Dunn v. Blumstein,

405 U.S. 330, 385 (1972); Storer v. Brown, 415 U.S. 724,

730 (1973).

In a series of recent decisions, this Court has approved

the legitimacy of the following state interests as a basis for

regulating elections. The state has a “substantial State

interest in encouraging compromise and political stability,

in attempting to ensure that the election winner will rep-

resent a majority of the community and in providing the

electorate with an understandable ballot... ”. Storer v.

Brown, supra at 729; Williams v. Rhodes, 393 U.S. 23, 32

(1968). The state has a compelling interest in maintaining

the stability of its political system which is intimately de-

pendent upon preserving the integrity of its political

parties. See Storer v. Brown, supra at 736. Accord, Rosario

v. Rockefeller, 410 U.S. 752 (1973) ; Kusper v. Pontikes, 414

U.S, 51 (1973).

In Storer this Court agreed with the State of California’s

concern that “splintered parties and unrestrained factional-

ism may do significant damage to the fabric of government.”

20

415 U.S. at 736. It has further recognized that a state has

a “legitimate interest in regulating the number of candi-

dates on the ballot” and may properly seek “to prevent the

clogging of its election machinery, avoid voter confusion,

and assure that the winner is the choice of a majority, or

at least a substantial plurality, of those voting ...”. More-

over, a state has an interest if not a duty, to protect the

integrity of its political processes from frivolous or fraudu-

lent candidates. Bullock v. Carter, 405 U.S. 134, 145 (1972).

Accord, Storer v. Brown, supra at 732; Williams v. Rhodes,

supra, at 32; Jenness v. Fortson, 403 U.S, 481, 442 (1971).

Subsequently, in American Party of Texas v. White, 415

U.S. 767 (1974), this Court deemed the state’s interest in

preserving the integrity of the electoral process and regu-

lating the number of candidates on the ballot to avoid voter

confusion a compelling state interest. Jd. at 782, n. 14. Fin-

ally, it has held that the state has a legitimate interest in

preserving the integrity of the nominating process of party

primary election. American Party of Texas v. White, supra

at 786.

It is clear that the statute in question in the instant case

advances the foregoing state interests and is rationally re-

lated to the pursuit of those goals. The winner-take-all pri-

mary is designed to-assure that California’s delegation to

the Republican National Convention represents the views

of the majority, or at least a substantial plurality, of those

voting. By permitting a unified delegation, California fos-

ters unity in the state’s Republican Party. Voting as a bloe,

the California Republican delegation may more successfully

influence the national convention to nominate a Presidential

candidate and adopt programs as part of the Party’s cam-

paign platform that will meet with the approval not only

of California Republicans, but California voters generally.

In short, the winner-take-all rule advances several signi-

ficant and compelling state interests and is rationally re-

21

lated to the achievement of a legitimate state end. Cer-

tainly it cannot be said that the statute in question is “based

on reasons totally unrelated to the pursuit of that goal” or

that the statutory scheme should be set aside because “no

grounds can be conceived to justify them.” McDonald v.

Board of Election Commissioners of Chicago, supra at 809.

IV. Conclusion.

From the foregoing it is clear that the one man-one vote

principle of the Equal Protection Clause and the First

Amendment’s guarantee of freedom of political association

do not require that state delegates to national political con-

ventions must be apportioned among the various Presi-

dential candidates participating in the primary election. In

complete conformance with the theories underlying our rep-

resentative form of government, national convention dele-

gates are representatives of the state’s political party at the

convention, and there is no Constitutional mandate that the

various philosophical factions of given constituencies be

afforded proportionate representation. The Constitution

simply demands that all eligible voters be equally entitled

to participate in the process whereby representatives are

chosen, Thus, just as a state’s representatives in the Elec-

toral College or the members of a multi-member legislative

district may be elected on a winner-take-all basis, so also

may a state’s delegates to a national political convention

be chosen.

A rule to the contrary, imposing the one man-one vote

principle, w ald have serious ramifications far beyond the

instant case. If a state’s allocated number of convention

delegates must be apportioned among all contenders in the

primary election, the obvious and necessary result is a Con-

stitutional mandate that every state hold a Presidential

22

primary election for each political party. According to ap-

pellant’s own law review article, only twenty-three jurisdic-

tions held Presidential primaries in 1972, and among them

there were at least four general types of systems. Note:

One Persem-One Vote: The Presidential Primaries and

Other National Convention Delegate Selection Processes,

24 Hlastings L. Rev. 257, 274 (1973). If convention dele-

gates must be apportioned among the Presidential candi-

dates on the basis of election results not only must each of

these twenty-four jurisdictions conform their election sys-

tems, but the remaining jurisdictions must also hold Presi-

dential primary elections. Clearly a rule of such constitu-

tional magnitude cannot apply to the State of California

alone.

The impaci on the states as well as Presidential candi-

dates would be enormous. At least one major factor perti-

nent to a state’s decision not to hold a Presidential primary

is the substantial cost involved. From the candidate’s view-

point, he has neither the time nor the funds to actively

compete in primary elections in each jurisdiction. What

could be more discouraging to potential candidates that the

necessity of spending the time and investing the resources

necessary to compete in primary elections throughout the

nation? Indeed, only those few candidates with overwhelm-

ing resources could ever participate in, much less survive,

the primary process demanded by appellant. Surely the

Constitution does not impose such unreasonable demands.

23

For the foregoing reasons, appellee RSCCC urges that

its motion to affirm be granted and the decision of the Dis-

trict Court affirmed.

Dated: December 19, 1975

Respectfully submitted,

Paut R. Harrie

Attorney for Appellee Republican

State Central Committee of

California

James p’A. WELCH

THELEN, Marrin, JOHNSON

& Brinvces

of Counsel

(Appendix Follows)

SS EES Oe oe

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ee ee a Ls -LdhUhmlmmmmttt—C“Ctst‘CSOSNSSCSCSNSNNNNNC#§

Appendix

Assembly Bill No. 427

CHAPTER 1048

An act to repeal and add Chapter 1 (commencing with

Section 6000) of Division 5 of the Elections Code, relating

to the presidential primary.

| Approved by Governor September 24, 1975. Filed with

Secretary of State September 24, 1975. ]

The people of the State of California do enact as follows:

SECTION 1. Chapter 1 (commencing with Section 6000)

of Division 5 of the Elections Code is repealed.

SEC. 2. Chapter 1 (commencing with Section 6000) is

added to Division 5 of the Elections Code, to read:

CHAPTER 1. PRESIDENTIAL PRIMARY

Article 1. General Provisions

6000. The provisions of this chapter shall be applicable

only to the presidential primary ballot of the Republican

Party, and qualified parties for which no other provisions

apply.

6001. The provisions of this code relating to the direct

primary apply to the presidential primary insofar as the

former do not conflict with the latter.

Article 2. Number and Certification of Delegates

6005. The chairman of the state central committee shall

notify the Secretary of State on or before the first day of

February immediately preceding the presidential primary

as to the number of delegates to represent the state in the

next national convention of his party.

2 Appendix

6006. The notification of the number of delegates shall

be in substantially the following form:

STATEMENT OF NUMBER OF DELEGATES TO THE

REPUBLICAN PARTY NATIONAL CONVENTION

To the Secretary of State

Sacramento, California

You are hereby notified that the number of delegates to

represent the State of California in the next national con-

vention of the Republican Party is ~................

SE TINE isstnsesnnsesnaisinion Bt Se itceeernvintens ~ one

Chairman of the State Central Committee

of the Republican Party.

6007. If the chairman of the state central committee fails

to file a notice as to the number of delegates, the Secretary

of State shall ascertain the number from the call for the

national convention issued by the national committee of

the party.

6008. The Secretary of State shall, on or before the 10th

day of February of the year of the presidential primary,

certify to the county clerk of each evunty the number of

delegates to be elected by the Republican Party.

6009. The certification to the county clerk of the number

of delegates shall be in substantially the following form:

CERTIFICATE OF SECRETARY OF STATE AS TO NUMBER OF

DELEGATES TO THE REPUBLICAN PARTY NATIONAL CONVENTION

To the County Clerk of -................... County:

T hereby certify to vou that the Republican Party is quali-

fied to participate in the presidential primary to be held

in this state on the 0000000000... SUNT saddcdiddanaaiiievads eae , and

“aK

Appendiz 3

the number of delegates to be elected by the Republican

Party to represent the State of California in its next na-

tional convention is ................--.-.

Dated at Sacramento, California, this .................... day of

February, 19.........

Secretary of State

(SEAL)

Article 3. Selection of Candidates by the Secretary of

State

6010. The Secretary of State shall place the name of a

candidate upon the Republican presidential primary ballot

when the Secretary of State shall have determined that such

a candidate is generally recognized throughout the United

States or California as a candidate for the nomination of

the Republican Party for President of the United States.

On or before February 1 immediately preceding a presi-

dential primary election the Secretary of State shall public-

ly announce and distribute to the news media for publication

a list of the candidates he intends to place on the ballot at

the following presidential primary election. Following this

announcement he may add candidates to his selection, but

he may not delete any candidate whose name appears on the

announced list.

6011. When the Secretary of State decides to place the

name of a candidate on the ballot pursuant to Section 6010,

he shall notify the candidate that his name will appear on

the ballot of this state in the presidential primary election.

The secretary shall also notify the candidate that he may

withdraw his name from the ballot by filing with the Secre-

tary of State an affidavit pursuant to Section 6012 no later

than the 64th day before the election.

+ Appendiz

6012. Ifa selected candidate or a nonselected candidate

files with the Secretary of State, no later than the 64th day

before the presidential primary, an affidavit stating with-

out qualification that he is not now a candiate for the office

of President of the United States at the forthcoming presi-

dential primary election, his name shall be omitted from the

list of names certified by the Secretary of State to the

county clerks for the ballot and his name shall not appear

on the presidential primary ballot.

6013. Any unselected candidate desiring to have his name

placed on the presidential primary ballot shall have nomina-

tion papers circulated in his behalf, In order to qualify his

name for placement on the presidential primary ballot, the

candidate’s nomination papers shall be signed by voters

registered as affiliated with the Republican Party equal in

number to not less than 1 percent of the number of persons

registered as members of the Republican Party, as reflected

in the report of registration issued by the Secretary of State

in January of the vear of the presidential primary election.

Article 4. Nomination Papers

6021. Nomination papers properly prepared, circulated

signed and verified shall be left, for examination, with the

county clerk of the county in which they are circulated, at

least 74 days prior to the presidential primary.

6024. Each signer of a nomination paper may sign only

one paper. He shall declare his intention to support the

candidate for nomination, add his place of residence, and

give his street and number if any. His election precinct shall

also appear on the paper just preceding his name, and he

shall write the date of his signature at the end of the line

just after his residence.

6025. Any nomination paper may he presented in sec-

tions. Each section shall contain the names of the candidate.

Appendiz 5

Each section shall bear the name of the county in which it

is circulated. Only voters of the county registered as intend-

ing to affiliate with the political party by which the nomina-

tions are to be made are competent to sign.

6026. Each section shall be prepared with the lines for

signatures numbered, and shall have attached the affidavit

of the verification deputy who obtained signatures to it,

stating that all the signatures to the attached section were

made in his presence, and that to the best of his knowledge

and belief each signature to the section is the genuine sig-

nature of the person whose name it purports to be. No other

affidavit is required. The affidavit of any verification deputy

shall be verified free of charge by any officer authorized to

administer oaths.

6027. A verified nomination paper is prima facie evi-

dence that the signatures are genuine and that the persons

signing it are voters, until it is otherwise proved by com-

parison of the signatures with the affidavits of registration

in the office of the county clerk.

6028. The nomination paper for a candidate shall be in

substantially the following form:

SECTION OF NOMINATION PAPER SIGNED BY VOTER ON BEHALF

OF CANDIDATE

CN OE eckictdimees Nomination paper for .................... as

presidential nominee of the Republican Party.

State of California ™

ES OF sccemicrstimtmnnisn '

Signer’s Statement

I, the undersigned, am a voter of the County of ................ .

State of California, and am registered as intending to affi-

€ dAppendiz

liate with the Republican Party. I have not signed the nom-

ination paper of any other candidates for the same office,

and further declare that I intend to support the nomination

of the candidate named herein at the Republican Party

presidential primary to be held on the 2.0... day of

nemenniienia ~ See

Number Precinct Signature Residence Date

Sh sctesiinuinsieseeerniiessidemieasiiesimesiaieenindandtanmnnnianieuesnnindiannnasnaniapneneniiten

I sascieasceniuaitaeeinndanihieieieanataneeceentaetndeiedeinbeneiieateiatistiniiatagiensianiaditaitiunesiiiaiiiiie

Or saoticapeseiteedaaocne cect ae ia ED

GUID enseccetscaeconhiniicheiceipicpiiieiaabacerstninpatainttiniaateabinaeiadansnaniieilidaaiiins

Verification Deputy’s Affidavit :

a , solemnly swear (or affirm) that

I have been appointed as a verification deputy to secure

EEE Th Gr I I easisescrccncdtncincsicrccetncsntetmntnincs to the

nomination paper of the candidate named in the signer’s

statement above as candidate for nomination by the Repub-

lican Party at its presidential primary election; that all

the signatures on this section of the nomination paper

numbered from 1 to ......................------00++ , inclusive, were made

in my presence, and that to the best of my knowledge and

belief each signature is the genuine signature of the person

whose name it purports to be.

EEE eee er ere

Verification Deputy

Subscribed and sworn to before me this -................. day of

FEE EEE EEE EEE EEE EEE EEE EERE EERE ee te te te te te

Notary Publie (or other official)

Appendiz 7

Article 5. Verificacion Deputies

6030. The candidate or his designee may arrange for the

appointment of verification deputies to serve within the

county in which the deputies reside in securing signatures

to the nomination paper of the candidate. The verification

deputies thus appointed are the duly authorized verification

deputies to secure signatures to the nomination paper of

the candidate in that county. The form on which the verifica-

tion deputies are appointed shall be filed with the county

clerk of the county in which the verification deputies reside,

at or before the time the nomination paper of the candidate

is left with the county clerk for examination. Additional

verification deputies may be appointed in the same manner

as the original verification deputies were appointed.

6031. The verification deputies may be appointed by the

candidate or his designee on a form which shall be substan-

tially as follows:

APPOINTMENT OF VERIFICATION DEPUTIES BY

CANDIDATE OR HIS DESIGNEE

I, the undersigned candidate or designee, do hereby

appoint the following voters of the County of -..............

as verification deputies to obtain signatures, in that county,

to nomination papers for -...........-...-.......--.---- as a candidate

in the Republican Party presidential primary, to be held

a I GIT enninsincsinsintarnnitaiin’ >

Verification Deputies

Name Residence

ee eee eee eee

ee ee eee eee

ee ee eee eee

a Appendiz

Candidate or His Designee

Name Residence

Filed in the office of the County Clerk of -.........-.......-.

County, this ............ gD >

6032. Verification deputies may obtain signatures to the

nomination paper of a candidate for whom they were

appointed, at any time not more than 104 nor less than 74

days prior to the presidential primary.

6033. The verification of signatures to nomination

papers shall not be made by a county clerk, a deputy county

clerk, or within 100 feet of any election booth, polling place,

or any place where registration of electors is being con-

ducted.

Article 6. Arrangement and Examination of

Nomination Papers

6040. Each section of a nomination paper, after being

verified, shall be returned by the verification deputy who

circulated it to the candidate or his designee by whom the

verification deputy was appointed. All the sections cireu-

lated in any county he shall be collected by the candidate or

his designee and he shall arrange and leave the sections

with the county clerk for examination.

6041. Prior to filing, the sections of a nomination paper

for a candidate shall be numbered in order.

6042. Nomination papers, properly assembled, may be

consolidated and fastened together by counties, but nomina-

tion papers signed by voters in different counties shall not

be thus fastened together.

Appendiz 9

6043. The county clerk shall examine all nomination

papers left with him for examination and shall disregard

and mark “not sufficient” the name of any voter of his

county which does not appear in the same handwriting on

an affidavit of registration in the office of the county clerk.

He shall also disregard and mark “not sufficient” the name

of any voter of his county who has not stated his intention

to affiliate with the Republican Party.

6044. Within five days after any nomination papers are

left with him for examination, the county clerk shall:

(a) Examine and affix to them a certificate reciting that

he ha. examined them and stating the number of names

which have not been marked “not sufficient.”

(b) Transmit the papers with the certificate of examina-

tion to the Secretary of State, who shall file the papers.

6045. The county clerk’s certificate to nomination papers

of a candidate shall be in substantially the following form:

COUNTY CLERK’S CERTIFICATE TO NOMINATION

PAPERS OF A CANDIDATE

To the Secretary of State:

I, County Clerk of the County of ~.....0.0022....... , hereby

certify that I have examined the nomination papers, to

which this certificate is attached, of the candidate for the

ensuing presidential primary, and that the number of names

which I have not marked “not sufficient” is ~.........22..........---

The candidate named in the nomination papers is............

10 Appendiz

6046. No filing fee is required from any person to be

voted for at a presidential primary.

Article 7. Certified List of Candidates, Notice of Elee-

tion

6050. At least 59 days before a presidential primary,

the Secretary of State shall transmit to each county clerk

a certified list containing the names and addresses of the

candidates for whom nomination papers have been filed

and who are entitled to be voted for at the presidential

primary.

The certified list shall be in substantially the following

form:

CERTIFIED LIST OF CANDIDATES

SECRETARY OF STATE

Te the Commty Coacit 0 cacssscccssishidiastithiecsenndiabenaaaa County:

is sesisnnecdelbniemneiibiaaaanel , Secretary of State, do hereby certify

that the following list contains the name and post office

address of each person for whom nomination papers have

been filed in my office and who is entitled to be voted for

at the presidential primary to be held on the ............ day of

seccideshibddiiiaiamiaai , 19...., as nominee of the Republican Party.

List of Candidates

Republican Party

Name Address

| .ncseesesersssnsrsesresnneheeniisenmnssinnee _sausnsnsnssunnnn una

ye

©] <ccevseveseersensnvsncestsncneisavecuenamaccnass "asain

ete. ete.

Dated at Sacramento, California, this ...... Ne

eonvansnibdeinati ~ oe

(SEAL)

Secretary of State

Appendiz 11

6051. Immediately after the county clerk receives the

certified list of candidates from the Secretary of State, he

shall publish it in a presidential primary notice, under the

party designation. The notice shall also contain:

(a) The date of the election.

(b) The hours during which the polls will be open.

6052. The publication of the presidential primary notice

shall be made in the county pursuant to Section 6061 of the

Government Code, and by causing a copy thereof to be

posted at the courthouse door and at such other places in

the county as are designated by ordinance for the posting

of public notices.

The cities or town of residence of the candidates shall

be included in the presidential primary notice.

6053. The notice of the list of candidates published by

the county clerk shall be in substantially the following form:

NOTICE BY COUNTY CLERK OF TIME AND PLACE OF PRESIDENTIAL

PRIMARY ELECTION, POLITICAL PARTIES ENTITLED TO PARTICI-

PATE THEREIN, AND NAMES AND ADDRESSES OF CANDIDATES

Notice is hereby given that a Republican presidential pri-

mary election is to be held in the County of .................... on

SUED cinigenisninsnonn fe , 19........, and that there is

stated the name and address of each person for whom nom-

ination papers have been filed in the office of the Secretary

of State and who is entitled to be voted for, at the election,

as nominee of that party for President.

List of Candidates

Republican Party

Name Address

12 Appendiz

Notice is also hereby given that at the presidential pri-

mary the polls will be open from the hour of 7 o’clock a.m. to

the hour of 8 o'clock p.m. on the day thereof.

— EE sticcconeecenions _ ee

Article 8. Canvas of Returns. Certificate of Election

6055. The Secretary of State shall, not later than the

24th day after the election, compile and file in his office a

statement of the canvassed returns filed with him by the

county clerks.

The compiled statement shall show for each candidate the

total of the votes received and the votes received in each

county.

6056. The Secretary of State shall, not later than the

24th day after the election, issue a certificate of election to

the candidate who received the largest vote cast of that

party, such person thereby being the party’s presidential

nominee candidate from California.

6057. The Secretary of State shall, not later than the

24th day after the election, issue a certification to delegate

to each person selected as a delegate.

Article 9. Write-In Candidates

6060. Notwithstanding any other provisions of law, a

space shall be provided on the presidential primary ballot

for an elector to write in the name of a candidate for Presi-

dent of the United States.

6061. Any person who believes his name may be used as

a write-in candidate for President of the United States shall,

not later than 21 davs before the primary election, file his

endorsement of his write-in candidacy with the Secretary

of State, or no votes shall be counted for him.

Appendiz 13

6062. Any person who receives, by write-in vote, a plu-

rality of the votes cast for President of the United States

shall, within 10 days after the primary election, file a list

of delegates to the national convention of his political party

with the Secretary of State in the manner prescribed in

Section 6071.

6063. If the candidate fails to file a list of delegates, the

state central committee of the party in whose primary the

candidate receive the plurality vote shall, within 10 days

of the end of the 10-day period required in Section 6062, file

a list of delegates with the Secretary of State. The delega-

tion shall go to the convention unpledged to any candidate.

Article 10. Selection of Delegates

6070. Every candidate whether selected pursuant to Sec-

tion 6010, or unselected as defined in Section 6013, who

wishes to have a delegation of electors pledged to his can-

dlidaey in accordance with the result of the presidential pref-

erence primary or who wishes to have an official California

delegation at the Republican National Convention shall

form a delegation in compliance with Section 6071 of this

code.

6071. (a) The delegation of each candidate shall be com-

posed as follows:

(1) Seventy-eight percent of the delegation, or the near-

est whole number thereto which provides for a total num-

ber of district delegates equal to at least three times the

number of congressional districts within the state, shall be

composed of three delegates selected for each congressional

district.

(2) The remainder of the delegation shall be composed of

delegates selected at large from throughout the state.

14 Appendix

The names of the persons chosen as delegates shall be

submitted to the Secertary of State, by the candidate or his

designee, no later than 30 days before the presidential pri-

mary election for certification.

(b) There shall be no more than one alternate per dele-

gate. Alternates shall be appointed by the candidate or his

designee and shall be appointed by congressional districts,

the number per congressional district to be no less than

three. Such alternates shall be submitted to the Secretary

of State within thirty (30) days after the primary for cer-

tification.

(c) Each delegate to the Republican National Convention

shall use his best efforts at the convention for the party’s

presidential nominee candidate from California to whom

the delegate has pledged support until such person is nom.

inated for the office of President of the United States by

such convention, receives less than 10 percent of the votes

for nomination by such convention, releases the delegate

from his obligation, or until two convention nominating

ballots have been taken. Thereafter, each delegate shall be

free to vote as he chooses, and no rule may be adopted by a

delegation requiring the delegation to vote as a body or

causing the vote of any delegate to go uncounted or un-

reported.

Article 11. Republican Presidential Primary Ballot

6080. The format of the presidential portion of the Re-

publican primary ballot shall be governed by the provisions

of Chapter 2 (commencing with Section 10200) of Division

7, with the following exceptions:

(a) Instructions to voters shall exclude any reference to

groups of candidates preferring a person whose name ap-

pears on the ballot or references to any group of candidates

not expressing a preference for a particular candidate.

Appendiz 15

(b) In place of the heading: “ror DELEGATES TO NATIONAL

CONVENTION. Vote for One Group Only.” shall appear the

heading: “PRESIDENTIAL PREFERENCE. Vote for One.”

(c) Candidates for President shall be listed on the ballot

in the same order provided for in Chapter 2 (commencing

with Section 10200) of Division 7 for statewide candidates.

(d) Only the names of selected and unselected presiden-

tial candidates shall appear on the ballot in the spaces pro-

vided. No reference shall be made to their being preferred

by candidates for delegates to the national convention.