Appeal from the United States District Court for the Northern District of California. D.C. No. CV-90-01750-TEH. Thelton E. Henderson, District Judge, Presiding.
Before: Cynthia Holcomb Hall and Charles Wiggins, Circuit Judges and James M. Burns, District Judge.*fn* Opinion by Judge Hall; Concurrence by Judge Burns.
The Libertarian Party of California ("the Party"), its Chairman Gail Lightfoot, and several of its members sought an injunction ordering Secretary of State March Fong Eu to place Pat McHargue, George O'Brien, Ronald Rubidoux, and Eric Garris on the ballot for the November 1990 California general election as the Libertarian candidates for various state and federal offices. They also sought a declaratory judgment that California Elections Code sections 6653 and 6661(a) are unconstitutional under the First and Fourteenth Amendments to the United States Constitution. The district court denied the Party's motion for summary judgment and granted the State's motion to dismiss or, in the alternative, for summary judgment.
The Party appeals the district court's order. It argues that section 6653, which requires political parties to nominate candidates by direct primary, and section 6661(a), which requires candidates to demonstrate a modicum of support among the electorate before they may appear on the general ballot, violate the Party's freedom of association. The 1990 election having receded into history, we obviously cannot enjoin the state from denying the Libertarian candidates a place on the 1990 ballot. The only issue before us, therefore, is whether the district court properly denied the Party's request for declaratory relief.
California Elections Code section 6610 provides: "The person who receives the highest number of votes at a primary election as the candidate of a political party for nomination to an office is the nominee of that party at the ensuing general election." Cal. Elec. Code § 6610 (West 1977). A candidate is eligible to run in the primary if he or she complies with certain formalities. See id. §§ 6490 et seq. A candidate who does not comply with these formalities, but whose name has been written in on the primary ballot and who receives more votes than any other candidate for the party's nomination, will be eligible to represent the party on the general ballot if he or she satisfies one of three prerequisites. The first of these is a requirement that the number of votes the candidate receives in the primary is "equal in number to 1 percent of all votes cast for the office at the last preceding general election at which the office was filled." Cal. Elec. Code § 6661(a) (West Supp. 1992).
In February 1980, the Libertarian Party, apparently unhappy with this rule, chose to adopt its own requirements for nominating a write-in to represent it on the general ballot. Libertarian Party Bylaw 15 permits the Party to nominate a write-in if: a) he or she receives more votes than anyone else for the party's nomination for that office; and b) the number of votes he or she receives in the primary is "equal to the number of signatures that he or she would have needed in order to have qualified to appear on the Party's primary ballot per California Elections Code section 6495."*fn1 Bylaw 15 purports to "supersede California Election Code section 6661(a)."
If a party fails to nominate a candidate through the primary process, it may not fill the resulting vacancy on the general ballot by other means, such as a nominating convention. California Elections Code § 6653 provides: "No vacancy on the ballot for a general election may be filled except if the candidate dies and that fact has been ascertained by the officer charged with the duty of printing the ballots at least 68 days before the next ensuing general election." Id. § 6653. Just as the Party adopted its own nominating qualifications for write-ins, the Party adopted its own process for nominating candidates, also in contravention of State law. Libertarian Party Bylaw 17 states that party nominations may be made either by primary election or by party convention.
In June 1990, California held a primary election. Apparently no one competed in the Libertarian primary for the offices of United States Congressman for the 10th Congressional District, State Treasurer, and State Assemblyman for the 18th Assembly District. Consequently, there were vacancies for these positions on the general ballot, which the Party sought to fill via a post-primary nominating convention. The Party nominated Pat McHargue, George O'Brien, and Ronald Rubidoux as its respective candidates for those offices, pursuant to Bylaw 17. Because this procedure violated section 6653, Secretary Eu refused to place the candidates on the general election ballot.
Eric Garris ran in the Republican primary and was nominated as the Republican candidate for the 21st Assembly district. He appeared on the general election ballot as the Republican candidate for that office. Garris also wished to be the Libertarian candidate for the office, but under California Election Code § 6401, he was not permitted to run in both primaries. See id . § 6401. Therefore, his only opportunity to be listed as the Libertarian party candidate on the general ballot was to qualify as a write-in. Unfortunately for the Party, though Garris polled more votes in the Libertarian primary than any other candidate, he failed to meet the 1% threshold and consequently Secretary Eu refused to identify him on the general ballot as the Libertarian Party candidate.
The Party sought injunctions to place McHargue, O'Brien, Rubidoux, and Garris on the ballot and declaratory judgments that sections 6661(a) and 6653 violate the Party's First Amendment right to freedom of association. The district court dismissed the ...