Patterson v. Padilla ( 2019 )

IN THE SUPREME COURT OF
CALIFORNIA
JESSICA MILLAN PATTERSON et al.,
Petitioners,
v.
ALEX PADILLA,
as Secretary of State, etc.,
Respondent.
S257302
November 21, 2019
Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger
and Groban concurred.
Justice Cuéllar filed a concurring opinion.
PATTERSON v. PADILLA
S257302
Opinion of the Court by Cantil-Sakauye, C. J.
We must decide in this case whether portions of the
recently enacted Presidential Tax Transparency and
Accountability Act (Elec. Code, § 6880 et seq.) (the Act) conflict
with article II, section 5, subdivision (c) of the California
Constitution (article II, section 5(c)) and are therefore invalid.
At issue are the Act’s provisions that prohibit the Secretary of
State from printing on a primary election ballot the name of a
candidate for President of the United States who has not filed
with the Secretary of State the candidate’s federal income tax
returns for the five most recent taxable years. Because of the
important and time-sensitive nature of this controversy, we
have exercised our original jurisdiction to entertain an
emergency petition for a writ of mandate that would forbid the
Secretary of State from enforcing the pertinent sections of the
Act. Upon issuing an order to show cause, we directed the
parties to submit briefing on an expedited basis to ensure the
matter would be decided ahead of the November 26, 2019
statutory deadline for candidates to disclose their tax returns to
appear on the March 3, 2020 primary ballot.1
1
Several lawsuits pending in federal court assert that the
provisions of the Act that are at issue here also violate federal
law. Last month, the United States District Court for the
Eastern District of California issued an order granting the
federal plaintiffs’ request for a preliminary injunction that
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Opinion of the Court by Cantil-Sakauye, C. J.
The dispute before us turns on the interpretation of
article II, section 5(c), which states: “The Legislature shall
provide for partisan elections for presidential candidates, and
political party and party central committees, including an open
presidential primary whereby the candidates on the ballot are
those found by the Secretary of State to be recognized candidates
throughout the nation or throughout California for the office of
President of the United States, and those whose names are
placed on the ballot by petition, but excluding any candidate
who has withdrawn by filing an affidavit of noncandidacy.”
(Italics added.)
In requesting a writ of mandate, petitioners Jessica Millan
Patterson and the California Republican Party (petitioners)
assert that article II, section 5(c) requires a presidential primary
prohibits the Secretary of State from enforcing these provisions.
(Griffin v. Padilla (E.D.Cal., Oct. 2, 2019, No. 2:19-cv-01477-
MCE-DB, No. 2:19-cv-01501-MCE-DB, No. 2:19-cv-01506-MCE-
DB, No. 2:19-cv-01507-MCE-DB, No. 2:19-cv-01659-MCE-DB)
__ F.Supp.3d __, __ [2019 WL 4863447, p. *1].) In so ruling, the
federal court determined that the federal plaintiffs were likely
to demonstrate that the challenged sections of the Elections
Code violate the qualifications clause of the United States
Constitution (U.S. Const., art. II, § 1, cl. 5), the First
Amendment to the United States Constitution, and the equal
protection clause of the Fourteenth Amendment to the United
States Constitution; and that the provisions of the Act are
preempted by the Ethics in Government Act of 1978 (5 U.S.C.A.
Appen. 4, § 101 et seq). (Griffin, at p. __ [2019 WL 4863447,
pp. *8, *10, *11, *12].) The Secretary of State has appealed this
ruling to the United States Court of Appeals for the Ninth
Circuit.
No federal claims are raised in the present case;
petitioners’ sole argument is that the Act conflicts with article
II, section 5(c).
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in which the names of all “recognized candidates throughout the
nation or throughout California for the office of President of the
United States” appear on the ballot. Petitioners cast the Act as
unconstitutional because it imposes an additional disclosure
requirement for appearing on a presidential primary ballot. In
petitioners’ view, this additional prerequisite undermines the
primary process contemplated by article II, section 5(c), and
cannot lawfully be enforced.
Secretary of State Alex Padilla, named as respondent,
counters that article II, section 5(c) does not prevent the
Legislature from prescribing disclosure prerequisites that even
“recognized candidates throughout the nation or throughout
California for the office of President of the United States” must
satisfy if they are to appear on a presidential primary ballot. In
respondent’s view, by stating that “[t]he Legislature shall
provide for . . . an open presidential primary,” article II, section
5(c) confirms that branch’s long-recognized, expansive authority
to devise reasonable rules for primary elections, including
presidential primaries. And subsumed within this power,
respondent argues, is the authority to enact neutral disclosure
laws that provide relevant information to voters and thus enable
the electorate to make a more informed choice among
presidential candidates.
Upon careful consideration of the parties’ briefing and
arguments, as well as the submission by amicus curiae, we
conclude that petitioners are entitled to a writ of mandate. We
direct the Secretary of State to refrain from enforcing Elections
Code sections 6883 and 6884, the relevant provisions of the Act,
insofar as enforcement of these sections would keep the name of
a “recognized candidate[] throughout the nation or throughout
California for the office of President of the United States” from
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being printed on the ballot of a political party that has qualified
to participate in the primary election.
As we shall explain, article II, section 5(c) is properly read
as including a requirement that all persons found to be
“recognized candidates” in the relevant sense must appear on
the appropriate primary ballot, except when an affidavit of
noncandidacy has been filed. This interpretation reflects the
most natural reading of article II, section 5(c), and it vindicates
the intent behind this provision. The language within article II,
section 5(c) providing for the inclusion of “recognized”
candidates on the primary ballot was added to the state
Constitution through a June 1972 ballot measure, Proposition
4. As the history of Proposition 4 makes clear, its purpose was
to ensure that the voters at future California presidential
primary elections would have the opportunity, within each
qualifying political party, to choose among a complete array of
candidates found to be “recognized candidates throughout the
nation or throughout California for the office of President of the
United States,” who had not filed affidavits of noncandidacy to
remove themselves from the ballot.
Elections Code sections 6883 and 6884 purport to make
the appearance of a “recognized” candidate for president on a
primary ballot contingent on whether the candidate has made
the disclosures specified by the Act. This additional
requirement, however, is in conflict with the Constitution’s
specification of an inclusive open presidential primary ballot.
The Legislature may well be correct that a presidential
candidate’s income tax returns could provide California voters
with important information. But article II, section 5(c) embeds
in the state Constitution the principle that, ultimately, it is the
voters who must decide whether the refusal of a “recognized
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candidate[] throughout the nation or throughout California for
the office of President of the United States” to make such
information available to the public will have consequences at the
ballot box.
We therefore issue the writ of mandate.
I. BACKGROUND
We begin by describing the Act, and then review analyses
of the measure that were prepared while it was still under
consideration by the Legislature. We then discuss
contemporaneous legislation that was enacted earlier this year
as Senate Bill No. 505 (2019-2020 Reg. Sess.) (Senate Bill
No. 505). The latter statute is not directly at issue, but it is
nevertheless relevant to the dispute before the court. The last
portion of this background section will relate the brief history of
this writ proceeding.
A. The Presidential Tax Transparency and
Accountability Act
1. Senate Bill No. 27
The Assembly and the Senate passed the Act in July 2019
as Senate Bill No. 27 (2019-2020 Reg. Sess.) (Senate Bill No. 27),
and the Governor signed the measure into law. As an urgency
statute, the Act went into effect immediately “[i]n order to
ensure that the protections” it affords “are in place for the 2020
primary election.” (Stats. 2019, ch. 121, § 3.)2
The Act directs the Secretary of State not to print on a
primary ballot the names of candidates for President of the
2
The Act was not the Legislature’s first attempt to enact an
income tax return disclosure requirement for presidential
candidates. Senate Bill No. 149 (2017-2018 Reg. Sess.),
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United States or for Governor of California who have not filed
their federal income tax returns with the Secretary of State.
(Elec. Code, §§ 6883-6884, 8902-8903.) Because article II,
section 5(c) relates only to the presidential primary ballot, only
the provisions of the Act relating to candidates for president are
implicated in this proceeding.
Regarding candidates for president, the Act provides,
“Notwithstanding any other law, the Secretary of State shall not
print the name of a candidate for President of the United States
on a primary election ballot, unless the candidate, no less than
98 days before the presidential primary election, files with the
Secretary of State copies of every income tax return the
candidate filed with the Internal Revenue Service in the five
most recent taxable years . . . .” (Elec. Code, § 6883, subd. (a).)3
The candidate must file with the Secretary of State both
unredacted and redacted versions of these returns, removing
introduced in 2017, also would have required candidates for
president to release their tax returns in order to be included on
the primary ballot. (Id., as enrolled Sept. 20, 2017, § 1.) Both
houses of the Legislature passed this measure, but as discussed
post, the bill was vetoed by then-Governor Jerry Brown.
3
The statute addresses the possibility that a candidate may
not have filed federal income tax returns for all five of the most
recent taxable years. It provides, “If the candidate has not filed
the candidate’s income tax return with the Internal Revenue
Service for the tax year immediately preceding the primary
election, the candidate shall submit a copy of the income tax
return to the Secretary of State within five days of filing the
return with the Internal Revenue Service” (Elec. Code, § 6883,
subd. (b)), and, “The [disclosure] requirement . . . does not apply
to any year in which the candidate was not required to file the
candidate’s income tax return with the Internal Revenue
Service” (id., subd. (c)).
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certain personal information such as social security numbers,
home addresses, and medical information from the latter
version. (Id., § 6884, subd. (a)(1).) The candidate also must file
with the Secretary of State a signed written consent form that
grants the Secretary of State permission to make a redacted
version of the tax returns publicly available. (Id., subd. (a)(2).)
Upon receiving the income tax returns, the Secretary of
State is to review them to confirm that only the information
identified by statute as subject to redaction has been removed.
(Elec. Code, § 6884, subd. (b).) If additional redactions have
been made to a tax return, “the Secretary of State shall prepare
a new version of the tax return with only the redactions
permitted by” statute. (Ibid.) Within five days of receiving a
candidate’s tax returns, the Secretary of State shall make
appropriately redacted versions of the returns available to the
public on the Secretary’s website. (Id., subd. (c)(1), (2).) These
versions “shall be continuously posted until the official canvass
for the presidential primary election is completed.” (Id., subd.
(c)(3); see also id., subd. (c)(4).)
The Act includes the following findings and declarations
regarding the income tax return disclosure requirement for
presidential candidates: “The . . . State of California has a
strong interest in ensuring that its voters make informed,
educated choices in the voting booth. To this end, the state has
mandated that extensive amounts of information be provided to
voters, including county and state voter information guides.
The Legislature also finds and declares that a Presidential
candidate’s income tax returns provide voters with essential
information regarding the candidate’s potential conflicts of
interest, business dealings, financial status, and charitable
donations. The information in tax returns therefore helps voters
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to make a more informed decision. The Legislature further finds
and declares that as one of the largest centers of economic
activity in the world, the State of California has a special
interest in the President refraining from corrupt or self-
enriching behaviors while in office. The people of California can
better estimate the risks of any given Presidential candidate
engaging in corruption or the appearance of corruption if they
have access to candidates’ tax returns. Finally, the State of
California has an interest in ensuring that any violations of the
Foreign Emoluments Clause of the United States Constitution
or statutory prohibitions on behavior such as insider trading are
detected and punished. Mandated disclosure of Presidential
candidates’ tax returns will enable enforcement of the laws
against whichever candidate is elected President. The
Legislature finds and declares that compliance costs with this
requirement will be trivial.” (Elec. Code, § 6881.)
2. Legislative History
The analyses prepared in connection with the
Legislature’s consideration of Senate Bill No. 27 detailed the
reasoning behind the measure. A Senate floor analysis
explained, “In 1973, the Providence Journal-Bulletin obtained
and published data showing that President Richard Nixon had
paid an astonishingly low amount in taxes in 1969 given his
income for that year. After initially resisting calls for him to do
so, Nixon eventually released his taxes and underwent an IRS
audit. It turned out he had improperly claimed an exemption of
$500,000 for papers he donated to the National Archives. [¶]
Ever since this incident, it has been customary — though never
required by law — for U.S. Presidential candidates to release
their tax returns. Prior to 2016, only one candidate, President
Gerald Ford in 1976, did not do so. Ford released a summary of
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his return instead. [¶] During the 2016 campaign for U.S.
President, Donald Trump broke with this longstanding tradition
and refused to release his tax returns. Though prompted by
Trump’s break with the customary practice, this bill is not
retroactive and would only apply to future presidential
candidates.” (Sen. Rules Com., Off. of Sen. Floor Analysis,
Unfinished Business Analysis of Sen. Bill No. 27 (2019-2020
Reg. Sess.) as amended June 27, 2019, pp. 4-5.)4
Several of these analyses also considered constitutional
issues that might be implicated by the tax return disclosure
requirement.5 However, these assessments concentrated on
4
Other analyses of Senate Bill No. 27 prepared while the
bill was under consideration by the Legislature included similar
background discussions. (Sen. 3d reading analysis of Sen. Bill
No. 27 (2019-2020 Reg. Sess.) as amended June 27, 2019, p. 2;
Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis
of Sen. Bill No. 27 (2019-2020 Reg. Sess.) as amended Apr. 10,
2019, pp. 4-7; Assem. Com. on Appropriations, Analysis of Sen.
Bill No. 27 (2019-2020 Reg. Sess.) as amended May 29, 2019,
p. 2; Assem. Com. on Elections and Redistricting, Analysis of
Sen. Bill No. 27 (2019-2020 Reg. Sess.) as amended May 29,
2019, p. 4; Sen. Judiciary Com., Analysis of Sen. Bill No. 27
(2019-2020 Reg. Sess.) as amended Mar. 11, 2019, pp. 4-5; Sen.
Com. on Elections and Const. Amends., Analysis of Sen. Bill
No. 27 (2019-2020 Reg. Sess.) as amended Mar. 11, 2019, p. 3.)
5
These analyses commonly expressed some uncertainty
regarding whether courts would find the measure consistent
with the United States Constitution. (E.g., Assem. Com. on
Elections and Redistricting, Analysis of Sen. Bill No. 27 (2019-
2020 Reg. Sess.) as amended May 29, 2019, pp. 4-6; Sen.
Judiciary Com., Analysis of Sen. Bill No. 27 (2019-2020 Reg.
Sess.) as amended Mar. 11, 2019, pp. 5-14; Sen. Com. on
Elections and Const. Amends., Analysis of Sen. Bill No. 27
(2019-2020 Reg. Sess.) as amended Mar. 11, 2019, pp. 3-4.)
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whether the disclosure requirement comported with the federal
Constitution. The only analysis of Senate Bill No. 27 that
mentioned the California Constitution was prepared for the
Senate Judiciary Committee, and this evaluation discussed only
the right to privacy conferred by the state charter (Cal. Const.,
art. I, § 1) — not article II, section 5(c). (Sen. Judiciary Com.,
Analysis of Sen. Bill No. 27, supra, p. 12, fn. 15.)6
The analysis prepared for the Senate Judiciary Committee
recognized that Senate Bill No. 149 (2017-2018 Reg. Sess.), a
similar proposal that also would have conditioned access to the
presidential primary ballot on a candidate’s disclosure of federal
income tax returns, had been vetoed in 2017 by then-Governor
Jerry Brown. The analysis recited a series of rhetorical
questions Brown had posed in his veto message: “ ‘Today we
require tax returns, but what would be next? Five years of
health records? A certified birth certificate? High school report
cards? And will these requirements vary depending on which
political party is in power? A qualified candidate’s ability to
appear on the ballot is fundamental to our democratic system.
For that reason, I hesitate to start down a road that well might
6
A Senate Judiciary Committee analysis of the earlier
Senate Bill No. 149 (2017-2018 Reg. Sess.) discussed how that
measure had been amended while under consideration by the
Legislature to avoid a potential conflict with article II, section 5,
subdivision (d) of the state Constitution, which concerns the
inclusion of candidates on the general election ballot. (Sen.
Judiciary Com., Analysis of Sen. Bill No. 149 (2017-2018 Reg.
Sess.) as amended Mar. 20, 2017, p. 11 [concluding the
amendment “appears to eliminate the state constitutional
concern”].) But that analysis did not recognize, much less
address, the separate state constitutional issue presented by
article II, section 5(c).
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lead to an ever escalating set of differing state requirements for
presidential candidates.’ ” (Sen. Judiciary Com., Analysis of
Sen. Bill No. 27, supra, at p. 14.) The committee analysis
acknowledged that “[t]here is, in fact, some precedent for this
[that is, conditioning ballot access upon some disclosure by a
presidential candidate]. In 2011, for example, the Arizona
legislature passed a bill that would have required presidential
candidates to submit a birth certificate in order to appear on the
state’s election ballot. The bill was vetoed by Governor Jan
Brewer. According to a senior fellow with the National
Conference of State Legislatures, 14 other states considered
similar legislation.” (Ibid.) But, the analysis continued, “In
response to this line of concern, the authors assert their belief
that democratically elected legislatures are equipped to make
reasoned assessments about what information is sufficiently
important to their constituents to warrant a disclosure
requirement and what information is not. If legislators go too
far in demanding disclosures of presidential candidates, their
fully informed constituents can always elect other
representatives who will retract the requirement.” (Id., at
p. 15.)
B. Senate Bill No. 505
The Governor signed a separate measure, Senate Bill
No. 505, into law on the same day he signed the Act. Senate Bill
No. 505 codified several criteria to be applied by the Secretary
of State in determining who is to be placed on the appropriate
presidential primary ballot as (i) a “recognized candidate[]
throughout the nation or throughout California for the office of
President of the United States” under article II, section 5(c), or
(ii) a “generally advocated for or recognized” candidate for that
office, in the phrasing of statutes that prescribe rules for the
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presidential primaries of specific political parties. (Elec. Code,
§§ 6041, 6340, subd. (a), 6520, subd. (a), 6720, 6851.)
Prior to the enactment of Senate Bill No. 505, the only
elaboration within the Elections Code of what it means to be a
“recognized” candidate for president appeared in the
aforementioned statutes, each specifically tailored to an
individual party that has qualified to participate in the state
primary election. (See Elec. Code, § 5100 [setting forth the
criteria for party qualification for the primary election].) The
earliest precursors of the current laws to this effect were enacted
in the 1970s, shortly after Proposition 4 was approved by the
voters. (See Elec. Code, former § 6010, added by Stats. 1975,
ch. 1048, § 2, p. 2468; Elec. Code, former § 6210, added by Stats.
1975, ch. 1056, § 3, p. 2509; Elec. Code, former § 6110, added by
Stats. 1975, ch. 1060, § 3, p. 2569; Elec. Code, former § 6310,
added by Stats. 1974, ch. 1184, § 2, p. 2537.)
The terms of the current statutes vary somewhat from
party to party. They presently provide that a candidate for
president is to be placed on the appropriate presidential primary
ballot when the Secretary of State finds the person to be, with
regard to the Democratic Party, “generally advocated for or
recognized throughout the United States or California as
actively seeking the nomination of the Democratic Party for
President of the United States,” with the Secretary of State to
“include as criteria for selecting [such] candidates the fact of
qualifying for funding under the Federal Elections Campaign
Act of 1974, as amended” (Elec. Code, § 6041); with regard to the
Republican Party, “generally advocated for or recognized
throughout the United States or California as a candidate for
the nomination of the Republican Party for President of the
United States” (id., § 6340, subd. (a)); with regard to the
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American Independent Party, “generally advocated for or
recognized in the news media throughout the United States or
California as actively seeking the nomination of the American
Independent Party for President of the United States” (id.,
§ 6520, subd. (a)); with regard to the Peace and Freedom Party,
“generally advocated for or recognized throughout the United
States or California as actively seeking the presidential
nomination of the Peace and Freedom Party or the national
party with which the Peace and Freedom Party is affiliated” (id.,
§ 6720); and, with regard to the Green Party, “generally
advocated for or recognized throughout the United States or
California as actively seeking the presidential nomination of the
Green Party or the national political party with which the Green
Party is affiliated” (id., § 6851).
The available historical materials indicate that prior to
the approval of Senate Bill No. 505, the Secretary of State relied
on various criteria or factors in identifying “recognized” or
“generally advocated for or recognized” candidates for president.
In 1976, then-Secretary of State March Fong Eu explained that
in developing an initial list of “active presidential candidates for
California,” she had “taken into consideration a number of
factors, including the fact that the persons are announced
candidates, appear to be actively campaigning, have qualified
for matching federal funds under the 1974 amendments to the
Federal Elections Campaign Act, and are slated to appear on
other states’ primary ballots.” (Sect. of State, News Release,
Secretary of State Eu Selects Presidential Candidates (Jan. 30,
1976) p. 1 (hereafter Secretary of State 1976 Presidential
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Candidate Announcement).) Similar criteria have been
articulated by Eu’s successors as Secretary of State.7
Senate Bill No. 505 added sections 6000.1 and 6000.2 to
the Elections Code. Section 6000.1 sets forth criteria for being
identified as a “generally advocated for or recognized” or
“recognized” candidate for president. These criteria overlap to
some extent with the factors applied by former Secretary of
State Eu. (Elec. Code, § 6000.1, subds. (a)-(e).) Section 6000.2
further provides that on or before the 98th day prior to the
presidential primary election, a candidate for president is to file
a form with the Secretary of State, together with any supporting
documentation, establishing that the candidate is a “generally
advocated for or recognized” candidate under the standard set
forth in section 6000.1. (Id., § 6000.2, subds. (a), (b).)
With this action, petitioners challenge only the income tax
return disclosure requirement for presidential candidates that
was adopted through Senate Bill No. 27. Our analysis here
7
For the 2008 California presidential primary, for example,
then-Secretary of State Debra Bowen stated that the
determination of whether a person would appear on the primary
ballot as a candidate for president “is based on a number of
factors, including whether a candidate: [¶] . . . [p]articipates in
candidate debates; . . . [a]ctively campaigns in California; . . .
[a]ppears in public opinion polls; and/or [¶] . . . [q]ualifies for
federal campaign matching funds. [¶] Additionally, Secretary
Bowen asked each of the six California political parties to
submit a list of candidates whom they recognize as seeking their
party’s nomination.” (Sect. of State, News Release, Secretary of
State Releases List of Presidential Candidates for February
2008 Presidential Primary (Oct. 5, 2007) p. 1 (hereafter
Secretary of State 2008 Presidential Candidate
Announcement).)
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therefore need not, and does not, address the constitutionality
of Elections Code sections 6000.1 and 6000.2.
C. Procedural History
On August 6, 2019, petitioners filed an emergency petition
for writ of mandate or other extraordinary or immediate relief
with this court. The petition identifies Patterson as “an
individual California voter, a registered Republican, and
current Chairperson of the Petitioner California Republican
Party.” She alleges that she “desires to participate as a voter
and to lead her state political party by supporting the inclusion
of all qualified Republican Presidential candidates in the open
Presidential primary.” The petition for writ of mandate also
alleges that Patterson “fears that a large number of Republican
voters will be suppressed and discouraged from voting at the
primary election as a result of the Secretary of State’s
implementation of [Senate Bill No. 27], if qualified Republican
candidates are excluded from the Republican Party’s
Presidential primary ballot.” The California Republican Party
is identified as “the ballot-qualified statewide political party
representing more than 4.7 million registered Republican
voters,” and the petition states that the party and “its adherents
participate in the partisan Presidential primary,” among other
electoral contests.
Petitioners assert that the Act’s income tax return
disclosure requirement “plainly conflicts with the constitutional
provision of [a]rticle II, section 5(c) guaranteeing an open
Presidential primary.” They request a writ of mandate that
would prohibit respondent “from enforcing Elections Code
sections 6883 and 6884 . . . as fundamentally inconsistent and
in conflict with [a]rticle II, section 5(c).” Petitioners seek this
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relief on an emergency basis because the Act’s deadline for
submission of tax returns to the Secretary of State is November
26, 2019 (98 days before the March 3, 2020 primary election; see
Elec. Code, § 6883, subd. (a)), and “the sitting President of the
United States who has announced that he is a Presidential
candidate for the 2020 election has in the past declined to
release his federal tax returns.”
After requesting and receiving preliminary opposition
from respondent, we ordered him to show cause why a writ of
mandate should not issue. To ensure the timely disposition of
the cause, we directed expedited briefing in which the parties
would address, among other subjects, the history of Proposition
4 and related legislation, and any guidelines, including internal
measures and protocols, that the Secretary of State has used to
determine who are “recognized candidates throughout the
nation or throughout California for the office of President of the
United States.”
II. DISCUSSION
Petitioners and respondent advance divergent
constructions of article II, section 5(c), which carry different
implications for the constitutionality of Elections Code sections
6883 and 6884.
As has been explained, petitioners regard article II,
section 5(c) as specifying a rule of inclusivity for presidential
primary contests that cannot be infringed through legislation
such as the Act. According to petitioners, article II, section 5(c)
requires all individuals who are found to be “recognized
candidates throughout the nation or throughout California for
the office of President of the United States” to be named on the
appropriate primary ballot, unless an affidavit of noncandidacy
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is filed. And, their argument continues, even if one assumes
that the Legislature may play a role in defining what it means
to be “recognized . . . throughout the nation or throughout
California” as a candidate “for the office of President of the
United States,” noncompliance with the Act’s disclosure
provisions cannot provide a basis for excluding a candidate from
the ballot because a candidate’s failure to file income tax returns
with the Secretary of State is not a reasonable measure of
whether a candidate is so recognized.
Respondent interprets article II, section 5(c) differently.
He emphasizes the Legislature’s expansive authority to adopt
legislation concerning primary elections — as recognized both
before and after the approval of Proposition 4 (e.g., Libertarian
Party v. Eu (1980) 28 Cal. 3d 535, 540; Communist Party v. Peek
(1942) 20 Cal. 2d 536, 544) — and argues that in amending the
state Constitution to add the relevant text now found in article
II, section 5(c), voters “did not vitiate the Legislature’s ability to
regulate [primary] elections and pass laws that, for instance,
limit candidates to those within recognized parties, require
forms to be filed, or require information to be disclosed to better
educate California’s voters.” Respondent thus reads article II,
section 5(c) as recognizing, rather than constraining, the
Legislature’s power to prescribe rules governing presidential
primary elections. Pursuant to this authority, the Legislature
may, in respondent’s words, “enact laws regulating the process
by which particular candidates appear on a party’s primary
ballot, even if they are nationally recognized.” (Italics added.)
From this perspective, the Act’s income tax return disclosure
requirement for presidential candidates, including its directive
to the Secretary of State not to place the names of noncompliant
17
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
candidates on the primary ballot, represents an appropriate
exercise of the Legislature’s authority.
To summarize the analysis that follows, we agree with
petitioners that whatever authority the Legislature may have in
defining how presidential primaries are to occur in this state,
the challenged sections of the Act exceed such authority and are
unenforceable. These provisions purport to exclude from the
California presidential primary ballot any candidate who does
not comply with the income tax return disclosure requirement
— even someone who is incontestably “recognized . . .
throughout the nation or throughout California” as a candidate
“for the office of President of the United States” under any
reasonable construction of that phrasing. But as explained
below, article II, section 5(c) is most naturally read as conveying
a rule of inclusivity for presidential primary elections that the
Legislature cannot contravene. This reading is strongly
supported by the history of the constitutional text that now
appears in article II, section 5(c). This history establishes
beyond fair dispute that this language was adopted to ensure
that the ballots for parties participating in the presidential
primary election would include all persons within said parties
deemed to be “recognized candidates throughout the nation or
throughout California for the office of President of the United
States,” except for those candidates who filed affidavits of
noncandidacy, so that voters in the primary election would have
a direct opportunity to vote for or against these candidates.
Because the relevant provisions of the Act condition a
presidential candidate’s placement on the primary ballot on
compliance with an additional requirement that is concededly
not a reasonable measure of whether the candidate is
“recognized” as such throughout the nation or California, it
18
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
conflicts with the rule specified by article II, section 5(c), and is
for that reason invalid. (People v. Navarro (1972) 7 Cal. 3d 248,
260 [when a statute conflicts with the Constitution, “the latter
must prevail”].)8
A. Article II, Section 5(c)
Our interpretive task begins with the language of article
II, section 5(c). (See Kennedy Wholesale, Inc. v. State Bd. of
Equalization (1991) 53 Cal. 3d 245, 249-250; cf. Santos v. Brown
(2015) 238 Cal. App. 4th 398, 409.) To reiterate, this provision
states as follows: “The Legislature shall provide for partisan
elections for presidential candidates, and political party and
party central committees, including an open presidential
primary whereby the candidates on the ballot are those found
by the Secretary of State to be recognized candidates throughout
the nation or throughout California for the office of President of
the United States, and those whose names are placed on the
ballot by petition, but excluding any candidate who has
withdrawn by filing an affidavit of noncandidacy.”
Respondent has not sought to justify the Act’s income tax
disclosure requirement on the ground that it represents a
reasonable measure of whether someone is “recognized . . .
throughout the nation or throughout California” as a candidate
“for the office of President of the United States.” At oral
argument, counsel for respondent conceded that whether a
8
Because the issue is not before us, we need not decide here
whether the tax return disclosure requirement can properly be
applied to candidates for president who would qualify for the
primary election ballot through the petition process articulated
in article II, section 5(c).
19
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
candidate for president has filed recent tax returns with the
Secretary of State is not indicative of whether the candidate is
so “recognized.”9
9
Even apart from this concession, under any reasonable
interpretation of the “recognized” language within article II,
section 5(c), a candidate’s failure to disclose tax returns to the
Secretary of State would not establish that the candidate is not
“recognized . . . throughout the nation or throughout California”
as a candidate “for the office of President of the United States.”
The word “recognized” is susceptible to somewhat
different meanings. (Compare, e.g., Black’s Law Dict. (4th ed.
1968) p. 1436, col. 2 [defining “recognized” as “[a]ctual and
publicly known”] with Random House Dict. of the English
Language (1973) p. 1199, col. 3 [defining “recognize” as, among
other things, “to acknowledge or treat as valid”].) The repeated
use of the word “throughout” within article II, section 5(c)
suggests that the “recognized” language is concerned (although
perhaps not exclusively) with a candidacy’s prominence or
pervasiveness. (See Webster’s 3d New Internat. Dict. (1971) p.
2385, col. 1 [defining “throughout” as “in . . . every part of”].) If
this meaning applies, it seems plain that whether a candidate
has disclosed tax returns to the Secretary of State cannot, by
itself, be determinative of whether the candidate is “recognized.”
Such disclosure has, at most, a highly attenuated relationship
to public awareness of a candidacy throughout the nation or
California — or, for that matter, to whether someone is an
“[a]ctual” candidate for the presidency. (Black’s Law Dict., at
p. 1436, col. 2.)
The disjunctive “throughout the nation or throughout
California” language in article II, section 5(c) also suggests that
nondisclosure of tax returns under the Act could not supply a
basis for keeping a presidential candidate off the primary ballot
even if the “recognized” phrasing were to be construed as being
to some extent concerned with a candidacy’s validity. For even
in that case, a failure to comply with the Act’s tax return
disclosure requirement would establish only that someone is not
“recognized,” i.e., not regarded as valid, as a presidential
20
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
Instead, as noted, respondent posits that the legislative
authority envisioned by article II, section 5(c)’s directive that
“[t]he Legislature shall provide for . . . an open presidential
primary” includes the power to adopt additional prerequisites
for appearing on the primary ballot that even a “recognized”
candidate for president must satisfy.10
candidate in or by California. It would not mean that the
candidate is not “recognized . . . throughout the nation,” because
a failure to satisfy this requirement would not make a candidacy
invalid throughout the nation.
10
Respondent’s interpretation emphasizes language within
article II, section 5(c) that acknowledges the Legislature’s broad
authority to provide for primary elections, a power that was
already well-established at the time of the 1972 primary election
at which Proposition 4 passed.
When the electorate approved Proposition 4, the state
Constitution specifically described the Legislature’s authority
over primary elections as follows: “The Legislature shall have
the power to enact laws relative to the election of delegates to
conventions of political parties; and the Legislature shall enact
laws providing for the direct nomination of candidates for public
office, by electors, political parties, or organizations of electors
without conventions, at elections to be known and designated as
primary elections; also to determine the tests and conditions
upon which electors, political parties, or organizations of
electors may participate in any such primary election. . . .” (Cal.
Const., art. II, former § 2.5.)
“The purpose of this [provision] was to give the Legislature
a free hand in dealing with the evils which had formerly been
prevalent in primary elections, even to the extent of excluding
parties and individuals from participation therein.”
(Communist Party v. Peek, supra, 20 Cal.2d at p. 544.) This
authority included the power to “determine the tests and
conditions upon which participation in a primary election may
be had either by electors as voters thereat or by electors as
candidates thereunder.” (Socialist Party v. Uhl (1909) 155 Cal.
21PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
But article II, section 5(c) is more readily construed as
both recognizing the Legislature’s authority to provide for
primary elections and imposing a specific constraint on this
power. This provision begins, “The Legislature shall provide for
partisan elections for presidential candidates, and political
party and party central committees” — language that, as
respondent emphasizes, conveys the Legislature’s responsibility
to develop a primary election scheme. Immediately thereafter,
however, the provision continues, “including an open
presidential primary whereby the candidates on the ballot are
those found by the Secretary of State to be recognized
candidates throughout the nation or throughout California for
the office of President of the United States . . . .” (Italics added.)
This language appears to convey an absolute requirement of a
presidential primary ballot for each qualifying party that
includes all persons seeking the party’s presidential nomination
who have been found to be “recognized candidates throughout
the nation or throughout California for the office of President of
the United States.” In other words, the presidential primary
that the Legislature must “provide for” is one in which all
persons deemed to be “recognized candidates throughout the
nation or throughout California for the office of President of the
776, 792.) In an early decision by this court construing article
II, section 2½ of the Constitution (later renumbered section 2.5),
we observed that “[t]he right is thus conferred to prescribe any
reasonable test and it is the duty of the [L]egislature to prescribe
one.” (Socialist Party, at p. 792.)
Article II, section 2.5 of the California Constitution was
repealed upon the approval of Proposition 7 by the electorate at
the November 1972 general election. Today, the various
subdivisions of article II, section 5 of the Constitution address
how primary elections are to occur.
22
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
United States” are to appear on the appropriate primary ballot
(along with presidential candidates who qualify for the ballot
through the petition process), except for those candidates who
file affidavits of noncandidacy pursuant to the final clause of
article II, section 5(c). Under this interpretation, the
Constitution prohibits the Legislature from adopting disclosure
requirements that a presidential candidate identified as so
recognized also must satisfy to appear on the primary ballot.
The text of article II, section 5(c), therefore, does not
support respondent’s view that the Legislature may adopt an
income tax return disclosure requirement that could exclude
“recognized candidates throughout the nation or throughout
California for the office of President of the United States” from
a presidential primary ballot. We now turn to the history of this
provision, which removes any doubt regarding the intent behind
article II, section 5(c).
B. Historical Background
As approved by the electorate in 1972, Proposition 4
changed how candidates for the office of President of the United
States qualify to be named on a primary ballot in this state.
Before this measure came into effect, candidates for president
had to take affirmative steps to enter the California primary.
Advocates for ballot reform perceived that this system
frustrated voters’ ability to choose among a comprehensive
array of candidates at presidential primary elections and
diminished the state’s influence in the national presidential
nomination process. Proposition 4 responded to these concerns
by requiring that all nationally or California-recognized
candidates be included on the ballot, unless a person deemed to
be such a candidate submits an affidavit of noncandidacy.
23
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
Because of this change to the presidential primary ballot,
California voters now have the ability to express their
preferences among candidates for their parties’ presidential
nominations more directly and meaningfully than had
previously been the case.
1. The Prior “Opt-in” Approach to the Primary Ballot
The statutory scheme for primary elections that was in
place in this state prior to Proposition 4 did not guarantee that
even the most prominent presidential candidates would appear
on a primary ballot. To appear on the ballot, a person had to
submit to the Secretary of State written permission for delegate
candidates to pledge themselves to that person. (Elec. Code,
former § 6055.) The candidate for president would appear on
the primary ballot if these candidates for delegates received
enough signatures on nomination papers. (Id., former §§ 6057,
6058, 6080-6088, 6804, 10261; see also Review of Selected 1975
California Legislation (1976) 7 Pacific L.J. 237, 439 [“Prior to
1974, presidential primary ballots for the major political parties
in California listed only those candidates who petitioned to
appear on the election ballot”].)
Under this regime, some noteworthy candidates for
president avoided the California primary. In 1960, John F.
Kennedy, who was elected president that November, was not
among the candidates listed on the ballot for the Democratic
Party primary contest. Instead, the only persons named on that
ballot were then-Governor Pat Brown and activist George
McLain. (Rarick, California Rising: The Life and Times of Pat
Brown (2005) p. 182 (Rarick).) Similarly, in 1968 the eventual
Republican Party nominee, Richard Nixon, did not appear on his
party’s California primary ballot. The only name printed on
24
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
that ballot was that of Ronald Reagan, the governor at that time.
(Owens et al., California Politics and Parties (1970) p. 88
(Owens).) Hubert Humphrey, Nixon’s rival as the Democratic
Party nominee that autumn, did not directly participate in the
1968 California presidential primary, either. The Democratic
Party primary ballot that year named only Senators Eugene
McCarthy and Robert Kennedy, and then-Attorney General
Thomas Lynch. (Id., at p. 84; Ross & Stone, California’s Political
Processes (1973) p. 37 (Ross & Stone).)
The candidacies of Brown in 1960 and Reagan in 1968
involved “favorite son” campaigns for president. “As a favorite
son, a governor or senator entered his state’s primary . . . even
though he had no real hope of becoming president. Assuming
that he won, the state’s delegates would go to the convention
pledged to him. On the convention floor favorite sons had two
alternative strategies, which often overlapped. Sometimes they
dreamed of snatching the nomination if none of the serious
candidates could find a majority and the convention deadlocked.
If not — and this was the more common outcome — they used
their delegations as bargaining chips in dealing with potential
nominees. Once the favorite son withdrew, the delegates were
not legally obligated to follow his lead in voting for another
candidate, but often, through a combination of intimidation or
affection, a favorite son could lead his followers to one camp or
another.” (Rarick, supra, at p. 182; see also Davis, Presidential
Primaries (2d ed. 1980) pp. 189-194 (Davis).)
Although the presence of a “favorite son” in a California
presidential primary did not create a legal impediment to other
candidates entering the fray, the presence of such a candidate
could discourage national politicians from contesting the race.
(Owens, supra, at pp. 87-88.) As one commentator observed in
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PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
1970, “Recent experience suggests that despite all the reasons
for entering the California [primary] race, some active
presidential aspirants decline to enter.” (Id., at p. 87.) With a
favorite son in the mix, “National candidates, out of courtesy,
refrain[ed] from creating delegations in their own names.” (Ross
& Stone, supra, at p. 37.) An out-of-state candidate wading into
a primary already populated by a favorite son not only invited
an embarrassing loss to a more locally well-known contestant;
he or she also risked “alienating party leadership in the state or
damaging party unity, perhaps beyond repair, just prior to a
general election campaign.” (Owens, at p. 88). Meanwhile, the
fact that a favorite son candidate was unlikely to secure a
party’s nomination for president “mean[t] that the voter voting
for a favorite son in reality [did] not know what national
candidate [would] be supported” by the delegates, who were
initially pledged to the local candidate but became free to vote
for other candidates once the favorite son withdrew from the
race. (Ross & Stone, at p. 37; see Rarick, supra, at p. 182.)
Although favorite son candidacies were a longtime feature
of the presidential primary landscape (see Davis, supra, at
p. 90), as the 1960s progressed criticisms of these candidacies
mounted in California. Critics attacked favorite son candidacies
as hindering the ability of California voters to effectively express
their preferences at the ballot box, and as limiting this state’s
relevance in the national presidential primary process. In an
editorial following the failed Reagan candidacy in 1968, the Los
Angeles Times newspaper opined, “Governor Reagan froze out
all other Republican contenders by heading up a ‘favorite son’
delegation . . . [¶] The favorite son device is not new, here or
elsewhere. It has been used in the past by both Democrats and
Republicans. Yet the temper of the times is such that it should
26
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
now be discarded in favor of giving the voters a more direct and
meaningful voice in the selection of their nominees.” (Toward
Better Elections, L.A. Times (Aug. 28, 1968) p. A4; see also
Governor’s Veto of Primary Bill, S.F. Chronicle (Sept. 3, 1968)
p. 38 [editorial]; Open Primary More Vital Than Ever, San Jose
Mercury News (Feb. 27, 1969) p. 2 [editorial].) Communicating
a similar view among the electorate, one poll conducted in 1968
reported that 77 percent of those surveyed would have preferred
a choice among candidates in the 1968 Republican Party
primary, instead of only a delegate slate pledged to Governor
Reagan. (Field Research Corp., The Field Poll, California Poll
68-03 (May 15-18, 1968).)
2. Earlier Attempts To Enact Responsive Statutes
The constitutional amendment adopted through
Proposition 4 was approved by the voters in 1972 after repeated
failures to enact statutes that would have made similar changes
to the presidential primary ballot.
In 1965, 1967, 1968, 1969, and 1971, bills were introduced
in the Legislature that, had they become law, would have
replaced the existing “opt-in” scheme for presidential primary
candidates with a more inclusive approach.11 These proposals
drew from an Oregon law (1961 Or. Laws, ch. 170, § 1, p. 181)
that had made such a change to the presidential primary system
in that state. (See Assem. Com. on Elections and
Reapportionment, Analysis of Sen. Bill No. 145 (1968 Reg. Sess.)
p. 1 [“Senate Bill 145 is an act to create for California a
11
The bill introduced in 1965 applied only to the presidential
primary of a party for which there were fewer than 3.5 million
registered voters in the state. (Assem. Bill No. 1414 (1965 Reg.
Sess.), supra, § 2 [proposed Elec. Code, § 6300].)
27
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
Presidential Primary system similar to the system now used in
Oregon”].)
Each of the ballot reform measures introduced in the
Legislature provided that the Secretary of State “shall place the
name” of a candidate for president upon the presidential
primary ballot when that state officer “shall have determined in
his sole discretion that such a candidate” (or, in some versions
of the proposed legislation, “such candidate’s candidacy”) “is
generally advocated for or recognized in” the “news media
throughout the United States.”12 (Sen. Bill. No. 3 (1971 Reg.
Sess.) as introduced Jan. 4, 1971, § 2 [proposed Elec. Code,
§ 6052]; Sen. Bill. No. 3 (1969 Reg. Sess.) as introduced Jan. 7,
1969, § 2 [proposed Elec. Code, § 6052]; Sen. Bill No. 145 (1968
Reg. Sess.) as introduced Jan. 30, 1968, § 2 [proposed Elec. Code,
§ 6052]; Sen. Bill No. 586 (1967 Reg. Sess.) as introduced Mar.
14, 1967, § 2 [proposed Elec. Code, § 6051]; Assem. Bill No. 1414
(1965 Reg. Sess.) as introduced February 24, 1965, § 2 [proposed
Elec. Code, § 6351].)13 All of these bills would have allowed a
candidate to avoid being placed on the ballot by executing an
12
The proposed legislation introduced in 1971 would have
added “or California” after “United States.” (Sen. Bill. No. 3
(1971 Reg. Sess.), supra, § 2 [proposed Elec. Code, § 6052].)
13
Each of these measures also made provision for the
inclusion of additional candidates on the primary ballot when
petitions on behalf of their candidacy had collected a sufficient
number of signatures. (Sen. Bill No. 3 (1971 Reg. Sess.), supra,
§ 2 [proposed Elec. Code, §§ 6053-6059]; Sen. Bill No. 3 (1969
Reg. Sess.), supra, § 2 [proposed Elec. Code, §§ 6053-6059]; Sen.
Bill No. 145 (1968 Reg. Sess.), supra, § 2 [proposed Elec. Code,
§§ 6053-6056]; Sen. Bill No. 586 (1967 Reg. Sess.), supra, § 2
[proposed Elec. Code, § 6051]; Assem. Bill No. 1414 (1965 Reg.
Sess.), supra, § 2 [proposed Elec. Code, § 6351].)
28
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
affidavit stating that the person was not, and did not intend to
become, a candidate for president in the forthcoming election.14
The bills that were introduced in 1965 and 1967 died
without a floor vote in either chamber of the Legislature. (Cal.
Legis., Final Calendar of Legislative Business (1965 Reg. Sess.)
p. 458; Sen. Final Hist. (1967 Reg. Sess.) p. 171.) The Assembly
and the Senate passed the 1968, 1969, and 1971 bills,15 but in
each instance the legislation was vetoed by then-Governor
Reagan. In his veto message rejecting Senate Bill No. 145 (1968
Reg. Sess.), Reagan wrote that this measure “adds nothing to
14
As with the other proposed statutory reforms to the
primary ballot discussed in the text, the bills would have
incorporated this requirement into the Elections Code. (Sen.
Bill No. 3 (1971 Reg. Sess.) § 2 [proposed Elec. Code, § 6061];
Sen. Bill No. 3 (1969 Reg. Sess.) § 2 [proposed Elec. Code,
§ 6061]; Sen. Bill No. 145 (1968 Reg. Sess.) § 2 [proposed Elec.
Code, § 6058]; Sen. Bill No. 586 (1967 Reg. Sess.) § 2 [proposed
Elec. Code, §§ 6051, 6052]; Assem. Bill No. 1414 (1965 Reg.
Sess.) § 2 [proposed Elec. Code, §§ 6351, 6352].)
15
The Assembly and Senate passed versions of the 1968,
1969, and 1971 bills that had been amended in the legislative
process. These amendments are generally immaterial to the
issues before the court, with the possible exception of one change
made to the 1971 measure, Senate Bill No. 3 (1971 Reg. Sess.).
That bill was amended in the Assembly to add the italicized
language that appears below: “The Secretary of State shall
place the name of a candidate upon the presidential primary
ballot when the Secretary of State shall have determined in his
sole discretion that such a candidate is generally advocated for
or recognized in the news media throughout the United States
or California as actively seeking his party’s nomination for
President of the United States and that such a candidate has
formed a delegation in conformity with the applicable provisions
of this division.” (Sen. Bill. No. 3 (1971 Reg. Sess.) as amended
Nov. 24, 1971, § 1, italics added [proposed Elec. Code, § 6066].)
29
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
the democratic process. It is, in fact, an infringement on the
rights of certain individuals. It limits the people’s responsibility
by placing the responsibility for putting names on the California
presidential ballot on the shoulders of one man. This is
considerably less desirable than California’s open primary
method which requires a significant number of persons to show
an interest in a man’s candidacy before his name can be placed
on the ballot.” (Governor’s Veto Message to Sen. on Sen. Bill
No. 145 (Aug. 22, 1968) 1969 Sen. J. (1968 Reg. Sess.) p. 4959.)
Reagan issued similar veto messages in rejecting Senate Bill No.
3 (1969 Reg. Sess.), the ballot reform measure approved by the
Legislature in its 1969 Regular Session (Governor’s Veto
Message to Sen. on Sen. Bill No. 3 (Sept. 4, 1969) 1969 Sen. J.
(1969 Reg. Sess.) p. 5695 (hereafter 1969 Veto Message)), and
the Senate Bill No. 3 that was approved by the Legislature in its
1971 Regular Session (Governor’s Veto Message to Sen. on Sen.
Bill No. 3 (Dec. 30, 1971) 1972 Sen. J. (1972 Reg. Sess.) p. 9939).
In vetoing the 1969 measure, Reagan added, “If a candidate is,
indeed, ‘generally recognized’ as a serious presidential
contender, his supporters should have no difficulty in gathering
sufficient signatures to place his name on the California ballot.”
(1969 Veto Message, supra, at p. 5696.)
3. The Electorate’s Approval of Proposition 4 as a
Constitutional Amendment, Creating an “Open
Presidential Primary”
In 1970, after several attempts at making changes to the
presidential primary election by statute had failed, a
constitutional amendment with a similar goal (Sen. Const.
Amend. No. 3 (1970 Reg. Sess.)) was introduced in the
Legislature. This proposal would have added section 7 to article
II of the state Constitution, with the text, “The Legislature shall
30
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
provide for an open presidential primary whereby the
candidates on the ballot are those found by the Secretary of
State to be recognized candidates throughout the nation or
throughout California for the office of President of the United
States, and those whose names are placed on the ballot by
petition, but excluding any candidate who has withdrawn by
filing an affidavit that he is not a candidate.” (Sen. Const.
Amend. No. 3 (1970 Reg. Sess.).) The Senate approved this
proposed amendment, but it was tabled in the Assembly and
never came before the electorate for approval. (Cal. Legis., Final
Calendar of Legislative Business (1970 Reg. Sess.) p. 362.)
The next year, both chambers of the Legislature approved
a similar proposal, Senate Constitutional Amendment No. 3
(1971 Reg. Sess.). (Sen. Final Hist. (1971 Reg. Sess.) p. 501.)
This measure represented an alternative method of
accomplishing the goals of the aforementioned Senate Bill No. 3
(1971 Reg. Sess.), in the event Governor Reagan vetoed the bill.
(See letter from Sen. Alfred E. Alquist to Governor Ronald
Reagan (Dec. 8, 1971) p. 1 [explaining that, should the Governor
approve Sen. Bill No. 3 (1971 Reg. Sess.), the bill’s sponsor
would “utilize the appropriate legislative provisions for the
removal of [the proposed constitutional amendment] from the
June, 1972, ballot”].) After Governor Reagan vetoed Senate Bill
No. 3 (1971 Reg. Sess.), Senate Constitutional Amendment No.
3 appeared on the ballot as Proposition 4 at the June 1972
primary election, at which time it was approved by the voters.
Proposition 4 added article II, section 8 to the state
Constitution, providing, “The Legislature shall provide for an
open presidential primary whereby the candidates on the ballot
are those found by the Secretary of State to be recognized
candidates throughout the nation or throughout California for
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PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
the office of President of the United States, and those whose
names are placed on the ballot by petition, but excluding any
candidate who has withdrawn by filing an affidavit that he is
not a candidate.” Subsequent amendments to the state
Constitution have altered this phrasing somewhat and moved
the pertinent text to article II, section 5(c), but have not made
any changes fundamental to the issue before the court.16
The analysis and arguments regarding Proposition 4 that
appeared within the ballot materials before the voters at the
1972 primary election provide substantial insight into the intent
behind this measure. (See People v. Gonzales (2017) 2 Cal.5th
858, 881 [describing ballot materials as “a useful source of
ascertaining voter intent”]; Silicon Valley Taxpayers’ Assn., Inc.
v. Santa Clara County Open Space Authority (2008) 44 Cal. 4th
431, 445.) These materials situate the amendment in the
historical context summarized above (see Robert L. v. Superior
Court (2003) 30 Cal. 4th 894, 904; Hi-Voltage Wire Works, Inc. v.
City of San Jose (2000) 24 Cal. 4th 537, 542, 560) and manifest
an intent, through the measure, to require all “recognized”
candidates for president to be placed on the appropriate party’s
primary ballot, in order to avoid the candidate participation
problems associated with the then-existing primary process.
16
Most recently, Proposition 14, which the electorate
adopted in 2010 to create a new “top-two candidates open
primary election” procedure for state and congressional primary
elections, redesignated the presidential primary provision as
subdivision (c) of section 5, article II, and slightly revised the
opening passage of that subdivision to indicate that partisan
elections are to be retained for presidential candidates and
political party and party central committees.
32
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
Within the relevant ballot materials, the Legislative
Counsel’s general analysis of the measure explained, “A ‘Yes’
vote on this measure is a vote to require the placement on the
presidential primary ballot of the names of all recognized
candidates for president and all candidates qualified by virtue
of nominating petitions, unless such a candidate withdraws. [¶]
A ‘No’ vote is a vote to reject this requirement.” (Ballot Pamp.,
Primary Elec. (June 6, 1972) general analysis of Prop. 4 by
Legis. Counsel, p. 9, italics added (hereafter June 1972 Ballot
Pamphlet).) The Legislative Counsel’s detailed analysis added,
in relevant part, “This measure would add Section 8 to article II
of the California Constitution and direct the Legislature to
provide for an open presidential primary. It would require the
Secretary of State to place upon the presidential primary ballot
of the appropriate political party as its candidates for the office
of President of the United States, the names of those persons
who he determined to be either (a) recognized as candidates
throughout the nation or (b) recognized as candidates
throughout California.” (Id., detailed analysis of Prop 4. by
Legis. Counsel, p. 10, italics added.)
The arguments in favor of Proposition 4 within the official
ballot pamphlet also described how the measure would function,
and explained why it was being proposed. Proponents stated, in
pertinent part, “This Constitutional Amendment is designed to
give voters a meaningful voice in choosing their party’s
presidential nominee. It requires the Legislature to provide for
an open presidential primary in which the Secretary of State
places on the ballot the names of recognized candidates for the
office of President of the United States.” (June 1972 Ballot
Pamp., supra, argument in favor of Prop. 4, p. 10.) The
argument in favor of Proposition 4 later continued, “The present
33
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
system of selecting presidential candidates often leaves the
voter without a direct voice in the decision. The ‘favorite son’
device has been used by Governors from both parties to prevent
a contested primary, depriving the voters of a chance to vote for
the candidate of his choice. [¶] In the last presidential primary
election, California voters were denied the opportunity of voting
for or against either of the men who eventually became the
presidential nominees. [¶] Opponents claim an open primary
would impair ‘party unity’ and would require costly election
campaigns. But who wants ‘party unity’ at the expense of party
members? And why shouldn’t the candidates campaign in
California as well as in New Hampshire, Indiana, and Oregon?
[¶] The open primary plan would make California the key state
every presidential election. As the most populous state in the
union, it should be. It is time the voters have a say in
nominating their party’s candidate for the highest office in the
land.” (Ibid.) Later, in rebutting the arguments advanced
against Proposition 4, its advocates stated, “By placing the
names of all recognized candidates on the ballot the Secretary of
State can help ensure that Californians have a chance to choose
which candidate they wish to represent their party. California
is the most populous state in the Union and serves as a cross
section of the entire nation. It is only fitting that our
presidential primary should be important in the selection of
presidential nominees. [¶] The open presidential primary will
free the voters of California to choose their own candidates for
President of the United States and take the decision out of the
smoke-filled rooms.” (June 1972 Ballot Pamp., supra, rebuttal
to argument against Prop. 4, p. 11, italics added.)
The opponents of Proposition 4, meanwhile, argued in
their statements to voters within the ballot materials that the
34
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
existing regime did not meaningfully impede the ability of
leading candidates for president to appear on the primary ballot.
They explained that “[t]o appear on the ballot, a candidate and
his supporters need only gather a reasonable number of
signatures of registered voters who wish to have the candidate’s
name placed on the ballot.” (June 1972 Ballot Pamp., supra,
argument against Prop. 4, p. 11.) Thus, with regard to Richard
Nixon and Hubert Humphrey, the Republican and Democratic
Party nominees in 1968 who had not participated in that
spring’s California primary, “if one or both of those men had
desired to place their name before their own party members in
California in June 1968, they could have done so. There is
absolutely nothing in present law which prevented them from
entering the primary. For their own reasons, they chose not to
do so.” (Id., rebuttal to argument in favor of Proposition 4,
p. 10.)
The opponents of Proposition 4 characterized the measure
as objectionable because it would deny future presidential
candidates the right to similarly choose whether to participate
in the state primary. They asserted, “Proposition 4 forces a
candidate to enter the California primary. This means that he
must commit an immense amount of time and money to a
campaign here, even though he may feel that his chances for the
nomination might better be served by using that time and
money elsewhere.” (June 1972 Ballot Pamp., supra, argument
against Prop. 4, at p. 11.) The opponents maintained that “each
presidential candidate should be free to decide which primaries
he will enter, and Proposition 4 will deny such candidates their
35
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
freedom of decision.” (Id., rebuttal to argument in favor of
Prop. 4, p. 10.)17
The consistent characterizations of Proposition 4 within
the ballot materials provided to voters at the June 1972 primary
election illuminate the intent behind this measure. They
establish that this legislative constitutional amendment
responded to concerns that voters in previous California
presidential primary elections had not consistently been
provided with an adequate choice among candidates for
president. To address this problem, the proposition upended the
preexisting system, in which all candidates had to take
affirmative steps to appear on the primary election ballot, and
17
Analyses of Senate Constitutional Amendment No. 3
(1971 Reg. Sess.) that were prepared before Proposition 4 came
before the electorate for approval reflect a similar
understanding of the ballot measure. An analysis by the
Assembly Committee on Elections and Reapportionment stated
that the measure “would place on the . . . ballot the question
whether California should have an ‘open’ Presidential primary.
Under the measure the Secretary of State would be required to
place all publicly recognized candidates for President on the
primary ballot. Other candidates could qualify by petition.
A candidate could withdraw by filing an affidavit that he is not
a candidate.” (Assem. Com. on Elections and Reapportionment,
Analysis of Sen. Const. Amend. No. 3 (1971 Reg. Sess.) p. 1,
italics added.) A summary by the Legislature’s Constitutional
Amendments Committee similarly explained that the measure
“[r]equires [the] Secretary of State to place all publicly recognized
candidates for President on the primary ballot. Other
candidates could qualify by petition. Any candidate could
withdraw his name by filing an affidavit with the Secretary of
State stating that he is not a candidate.” (Const. Amends. Com.,
Final Summary of Selected Legislation Relating to Amending
the Cal. Const. (1971 Reg. Sess.) p. 7, italics added.)
36
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
had sometimes declined to do so. That paradigm was replaced
by one in which the Secretary of State must place on the ballot
all persons found to be “recognized . . . throughout the nation or
throughout California” as candidates for president within
parties that qualify for the primary election (along with
candidates who qualify through the petition process), except for
candidates who file affidavits of noncandidacy.18
C. Subsequent Developments
The foregoing establishes that when Proposition 4 was
approved by voters, it was understood to require that all persons
identified as “recognized candidates throughout the nation or
throughout California for the office of President of the United
States” be included on the appropriate primary ballot, absent an
affidavit of noncandidacy. The subsequent affirmation and
implementation of the ballot reform effected by Proposition 4
manifest a similar understanding.
First, at the November 1972 general election, voters
approved Proposition 7. This proposition adopted several
recommendations of the Constitutional Revision Commission
18
These ballot materials also clarify that the affidavit of
noncandidacy that would remove a “recognized” candidate for
president from the ballot must do more than merely disavow
participation in the California primary. The argument in favor
of Proposition 4 stated, “Persons placed on the ballot and
wishing to be removed may withdraw simply by filing an
affidavit that they are not a candidate for President.” (June 1972
Ballot Pamp., supra, argument in favor of Prop. 4, p. 10, italics
added.) The arguments made by the measure’s opponents in the
ballot materials, such as their assertion that it would deny
presidential candidates their “freedom of decision” regarding
“which primaries [to] enter” (id., rebuttal to argument in favor
of Prop. 4, p. 10), carry similar connotations.
37
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
regarding article II of the state Constitution, relating to
elections. Among its provisions, Proposition 7 renumbered
article II, section 8 of the state Constitution as article II, section
4, and revised the introductory language of this section to
provide (the italicized language being added through the
proposition), “[t]he Legislature shall provide for primary
elections for partisan offices, including an open presidential
primary whereby the candidates on the ballot are those found
by the Secretary of State to be recognized candidates throughout
the nation or throughout California for the office of President of
the United States, and those whose names are placed on the
ballot by petition, but excluding any candidate who has
withdrawn by filing an affidavit that he is not a candidate.”
(Ballot Pamp., Gen. Elec. (Nov. 7, 1972) text of Prop. 7, appen.
p. 9, italics added (hereafter November 1972 Ballot
Pamphlet).)19
Concerning this provision, opponents of Proposition 7
revived an argument that had been made against Proposition 4
at the preceding June 1972 primary election, asserting that the
electorate should vote against the later measure because voters
should not allow “the Secretary of State in his judgment and his
judgment alone [to] pass[] on the candidate’s ‘recognition,’ and
thus decid[e] as a practical matter which candidates will be
voted on by the people. This is too important a matter to be left
to the judgment of any one person.” (Nov. 1972 Ballot Pamp.,
19
A subsequent amendment to the Constitution, approved
by the voters as Proposition 14 in June 1976, shifted this text
(with its language regarding the affidavit of noncandidacy
having been made gender-neutral through the intervening
passage of Prop. 11 in November 1974) to article II, section 5 of
the Constitution.
38
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
supra, argument against Prop. 7, p. 20.) The proponents of
Proposition 7 cast the issue as already settled by Proposition 4,
explaining, “The open presidential primary was added to the
Constitution by the people in June 1972. A ‘Yes’ vote merely
renumbers that provision to conform to other language in Article
II.” (Nov. 1972 Ballot Pamp., supra, rebuttal to argument
against Prop. 7, p. 20.) Nothing associated with this back-and-
forth, which implicitly equated a candidate’s “ ‘recognition’ ”
(id., argument against Prop. 7, p. 20) with that candidate’s
appearance on the primary ballot, suggests a view that under
the Constitution as amended earlier that year through
Proposition 4, the Legislature retained the authority to adopt
disclosure requirements for presidential candidates that could
function to exclude from the ballot even “recognized candidates
throughout the nation or throughout California for the office of
President of the United States.”
Actions taken to implement Proposition 4 shortly after its
approval also offer no indication of such an understanding. Two
years after Proposition 4 passed, the Legislature enacted the
Alquist Open Presidential Primary Act (Stats. 1974, ch. 1184).
This statute revamped the procedures applicable to the
Democratic Party presidential primary. As enacted, the sole
requirement within this statute for inclusion on a presidential
primary ballot was that a candidate be deemed “generally
advocated for or recognized in the news media throughout the
United States or California as actively seeking the nomination
of the Democratic Party for President of the United States.” (See
Stats. 1974, ch. 1184, § 2, p. 2537 [Elec. Code, former § 6310].)
Substantively similar language was included in other
presidential primary laws, applicable to other political parties,
passed by the Legislature shortly thereafter. (See Elec. Code,
39
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
former § 6010, added by Stats. 1975, ch. 1048, § 2, p. 2468; Elec.
Code, former § 6210, added by Stats. 1975, ch. 1056, § 3, p. 2509;
Elec. Code, former § 6110, added by Stats. 1975, ch. 1060, § 3,
p. 2569.)
By contemplating that a presidential candidate would
appear on the appropriate primary ballot when found to be
“generally advocated for or recognized” in the specified manner,
these statutes and their present-day counterparts (Elec. Code,
§§ 6041, 6340, subd. (a), 6520, subd. (a), 6720, 6851) convey a
conception of article II, section 5(c) that is consistent with the
one we adopt. As with the approval of Proposition 7 by the
electorate, nothing within these laws implies a view that the
Legislature can adopt disclosure requirements for presidential
candidates that, if not complied with, would keep persons
determined to be “recognized candidates throughout the nation
or throughout California for the office of President of the United
States” from appearing on a primary ballot.
Similarly, there is no indication that the Secretary of State
has traditionally construed article II, section 5(c) or its
predecessor provisions as contemplating additional
requirements for appearing on a presidential primary ballot,
unrelated to whether someone is a “recognized candidate[]
throughout the nation or throughout California for the office of
President of the United States.” As discussed ante, when
Secretaries of State have disclosed the factors they took into
account in deciding whether a person qualified to appear as a
candidate on a presidential primary ballot, these considerations
all have had a reasonable relationship to whether a candidate
was known throughout the nation or California, or was actively
participating in the presidential race. (E.g., Sect. of State 2008
Presidential Candidate Announcement, supra, at p. 1; Sect. of
40
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
State 1976 Presidential Candidate Announcement, supra, at
p. 1.)
Last, although as has been explained there was no
discussion of article II, section 5(c) in connection with legislative
deliberations over Senate Bill No. 27 (2019-2020 Reg. Sess.),
such a conversation did occur when the Legislature debated
Senate Bill No. 505, which was enrolled and signed by the
Governor on the same days as Senate Bill No. 27. Committee
analyses of Senate Bill No. 505 reflect a common understanding
that under article II, section 5(c), all presidential candidates
found to be “recognized . . . throughout the nation or throughout
California” must appear on the appropriate qualifying party’s
ballot unless an affidavit of noncandidacy is filed. Two of these
analyses state that Proposition 4 “placed on the 1972 primary
ballot the question whether California should have a
Presidential primary that required the SOS [Secretary of State]
to place all publicly recognized candidates for President on the
primary ballot.” (Sen. Com. on Elections and Const. Amends.,
Analysis of Sen. Bill No. 505 (2019-2020 Reg. Sess.) as amended
March 25, 2019, p. 5; Sen. Rules Com., Office of Floor Analyses,
Analysis of Sen. Bill No. 505 (2019-2020 Reg. Sess.) as amended
May 30, 2019, at p. 6.)
In short, by all available indications, for more than four
decades after Proposition 4’s approval in 1972, the electorate,
the executive, and the Legislature all interpreted the
constitutional text now found at article II, section 5(c) similarly
to how we construe it, i.e., as requiring an open presidential
primary in which all persons within qualifying parties found to
be “recognized candidates throughout the nation or throughout
California for the office of President of the United States” are to
be included on the appropriate presidential primary ballot.
41
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
D. The Act’s Income Tax Return Disclosure
Requirement Conflicts with Article II, Section
5(c) and Cannot Be Enforced
It follows from the discussion above that insofar as
sections 6883 and 6884 of the Elections Code make a
presidential candidate’s disclosure of income tax returns an
absolute prerequisite for having the Secretary of State print the
candidate’s name on a primary ballot, this requirement conflicts
with the more inclusive presidential primary that the electorate
endorsed when it approved Proposition 4.20
20
In his preliminary opposition, respondent argued that
petitioners lack standing to pursue a writ of mandate, and that
section 13314 of the Elections Code makes the Superior Court
for the County of Sacramento the exclusive venue for this action.
(Elec. Code, § 13314, subds. (a)(1), (b).) His response to our
order to show cause stated that it incorporated by reference the
arguments made in the preliminary opposition, but respondent
did not otherwise renew these arguments in responding to our
order to show cause — even as he advanced other reasons why
no writ should issue.
Assuming these arguments remain before us, they lack
merit. We perceive no standing issue that keeps us from
deciding the important issues presented in the petition. (See
Code Civ. Proc., § 1086; Elec. Code, § 13314, subd. (a)(1); Save
the Plastic Bag Coalition v. City of Manhattan Beach (2011)
52 Cal. 4th 155, 166, 170, fn. 5; Weatherford v. City of San Rafael
(2017) 2 Cal.5th 1241, 1247-1248.) Meanwhile, article VI,
section 10 of the California Constitution vests this court with
“original jurisdiction in proceedings for extraordinary relief in
the nature of mandamus.” Although Elections Code section
13314, subdivision (b) states that “[v]enue for a proceeding
under this section shall be exclusively in Sacramento County
[when]: [¶] (1) The Secretary of State is named as a real party
in interest or as a respondent,” we do not read this provision as
depriving this court of its original jurisdiction to entertain
42
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
As has been explained, Proposition 4 was approved by the
electorate after voters had been denied the opportunity in
previous California primary elections to vote for or against
leading candidates for president, with several prominent
candidates for that office having declined to take the steps
necessary to qualify for the primary ballot. To avoid a
recurrence in future primaries, Proposition 4 instituted a
system whereby all persons within qualifying parties who are
found to be “recognized candidates throughout the nation or
throughout California for the office of President of the United
States” must be included on the appropriate presidential
primary ballot, unless they file an affidavit of noncandidacy,
along with candidates who qualify for the ballot through the
petition process. This reform advanced the interest of California
voters in more consistently having direct and substantial
influence in the primary process.
Allowing the income tax return disclosure requirement
before us to stand could effectively revoke article II, section
5(c)’s guarantee to voters of a choice among all “recognized”
candidates for president who do not file affidavits of
noncandidacy. The statutory prerequisite, if not complied with,
would exclude from the ballot even someone who is actively
seeking the presidential nomination of a political party that
participates in the primary election, and is widely regarded as
a leading contender for that nomination — precisely the sort of
presidential candidate that article II, section 5(c) specifies must
petitions such as the one at bar. (See Vandermost v. Bowen
(2012) 53 Cal. 4th 421, 451; California Redevelopment Assn. v.
Matosantos (2011) 53 Cal. 4th 231, 252-253.)
43
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
appear on the ballot, absent the filing of an affidavit of
noncandidacy.
In arguing that the Legislature may properly condition a
presidential candidate’s access to the primary ballot on
compliance with the Act’s disclosure requirement, respondent
emphasizes the Legislature’s broad authority to provide for a
system of primary elections, including presidential primaries.
(E.g., Libertarian Party v. Eu, supra, 28 Cal.3d at p. 540.) Prior
to the adoption of Proposition 4, we recognized that this
authority includes the ability to enact reasonable rules that may
operate to exclude some candidates from the primary ballot.
(E.g., Communist Party v. Peek, supra, 20 Cal.2d at pp. 542-
545.) But as discussed ante, the language and history of article
II, section 5(c) establish that this general authority does not
include the more specific power to exclude persons found to be
“recognized candidates throughout the nation or throughout
California for the office of President of the United States” from
appearing on the ballot of a party that participates in the
primary election. Whatever the Legislature’s authority may be
to define ground rules for presidential primary elections, article
II, section 5(c) also includes a requirement of an inclusive ballot
that such legislation must respect and embrace.
Respondent further asserts that the Legislature’s general
power to provide for primary elections makes it both inevitable
and appropriate that it will have some role in defining, directly
or indirectly, who will appear on the primary ballot as a
candidate for president. Making this point, respondent states
in his briefing that “[t]he Legislature has already permissibly
acted to define who may be a ‘recognized candidate’ through
laws that only allow candidates identified with qualified parties
to appear on ballots.”
44
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
It is true that under current law, individuals who compete
for the presidential nominations of parties that have not
qualified to participate in the state primary election (see Elec.
Code, § 5100) will not have their names printed on the primary
election ballot, because with these candidates, there is no party
ballot to appear on. This is true regardless of whether such a
candidate might meet generic criteria for being “recognized . . .
throughout the nation or throughout California” as a candidate
“for the office of President of the United States.” We have no
need here, however, to decide whether the presidential primary
laws of this state relating to subjects such as the necessary
qualifications of participating political parties also may
implicate article II, section 5(c).21 Respondent’s observation
regarding the exclusion of candidates from nonparticipating
parties is adequately addressed by observing that whatever
questions may exist about the intent behind Proposition 4, this
measure manifestly sought to provide California voters eligible
to vote for a political party that participates in the primary
election with the opportunity to choose among all “recognized”
candidates seeking the presidential nomination of that party —
except, again, for those candidates who have filed affidavits of
noncandidacy. Insofar as the Act would make such a candidate’s
disclosure of income tax returns a requirement for inclusion on
a qualifying party’s primary ballot, its provisions conflict with
this intent, and are therefore unconstitutional.
21
Nor, given the limited ambit of article II, section 5(c), do
we have occasion to opine on conditions for appearing on the
primary ballot that may be placed on candidates for political
offices other than President of the United States.
45
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
Finally, respondent observes that Proposition 4 omitted
language found in the earlier proposed legislation relating to the
presidential primary ballot, discussed ante, that was introduced
between 1965 and 1971 but failed to become law. These
unsuccessful measures all had provided that the Secretary of
State would determine “in his sole discretion” whether a
candidate was sufficiently “recognized” to be included on the
primary ballot. (Sen. Bill. No. 3 (1971 Reg. Sess.) as introduced
Jan. 4, 1971, § 2; Sen. Bill. No. 3 (1969 Reg. Sess.) as introduced
Jan. 7, 1969, § 2; Sen. Bill No. 145 (1968 Reg. Sess.) as
introduced Jan. 30, 1968, § 2; Sen. Bill No. 586 (1967 Reg. Sess.)
as introduced Mar. 14, 1967, § 2; Assem. Bill No. 1414 (1965
Reg. Sess.) § 2.)
Respondent would have us infer from the absence of this
“sole discretion” language in Proposition 4 that voters, in
approving this measure, intended for the Legislature to have the
authority to exclude even “recognized” candidates for president
from the primary ballot. This argument reads far too much into
this shift in phrasing. In light of the text and history of article
II, section 5(c), the most that can be said is that the Legislature
might properly claim some role in defining when someone is
“recognized . . . throughout the nation or throughout California”
as a candidate “for the office of President of the United States,”
with the precise parameters of any such authority to be defined
another day, in another case. Yet article II, section 5(c) also
clearly prohibits the Legislature from imposing prerequisites
such as the income tax return disclosure requirement before us
46
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
that a presidential candidate who is so recognized also must
satisfy in order to appear on a primary ballot.22
E. Petitioners Are Entitled to a Writ of Mandate
Respondent argues that no writ of mandate should issue
because the Secretary of State has some discretion in
determining who is “recognized . . . throughout the nation or
throughout California” as a candidate “for the office of President
of the United States,” and therefore, according to respondent,
“there is no purely ministerial duty that can be mandated by
this Court.” But “a writ of mandate is available, in the absence
of a ‘plain, speedy, and adequate remedy, in the ordinary course
of law’ (Code Civ. Proc., § 1086), against the implementation of
an invalid statute.” (Hotel Employees & Restaurant Employees
Internat. Union v. Davis (1999) 21 Cal. 4th 585, 590.) We have
in the past issued writs of mandate directing state officers not
to enforce statutes we found unconstitutional. (Hardie v. Eu
(1976) 18 Cal. 3d 371, 380; Sail’er Inn, Inc. v. Kirby (1971)
22
Moreover, it is debatable at best whether this difference in
phrasing between the unsuccessful earlier measures and
Proposition 4 is even material to the interpretative question
before the court. This distinction was not brought before the
electorate in the ballot materials associated with this
proposition. In fact, voters were told by the opponents of
Proposition 4 that, in this respect, the amendment would
function similarly to the scheme envisioned by the earlier
measures. (June 1972 Ballot Pamp., supra, argument against
Prop. 4, p. 11 [asserting that the proposition would “give[] just
one man, the California Secretary of State, the right to
determine which names will be placed on the ballot for the
highest office in this country”].)
47
PATTERSON v. PADILLA
Opinion of the Court by Cantil-Sakauye, C. J.
5 Cal. 3d 1, 22; see also Planned Parenthood Affiliates v. Van de
Kamp (1986) 181 Cal. App. 3d 245, 263 [“[p]rohibitory mandate
has also been used to restrain state officials from enforcing
ministerial statutory provisions found to be unconstitutional”].)
This case is similar, and we perceive no limitation on the writ
that would prevent it from being issued here.
III. DISPOSITION
We hold that Elections Code sections 6883 and 6884 are
invalid under article II, section 5(c) of the California
Constitution insofar as they purport to require someone who is
“recognized . . . throughout the nation or throughout California”
as a candidate for the office of President of the United States to
file with the Secretary of State federal income tax returns as a
necessary condition for appearing on the primary election ballot
of a political party that has qualified to participate in that
election. In accordance with this holding, let a peremptory writ
of mandate issue that directs the Secretary of State to refrain
from enforcing Elections Code sections 6883 and 6884 as to such
candidates. Our judgment is final forthwith. (See Vandermost
v. Bowen, supra, 53 Cal.4th at p. 486; California Redevelopment
Assn. v. Matosantos, supra, 53 Cal.4th at p. 276.)
CANTIL-SAKAUYE, C. J.
We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
48
PATTERSON v. PADILLA
S257302
Concurring Opinion by Justice Cuéllar
Our holding in this case is narrow. The Legislature cannot
bar from the presidential primary election ballot a candidate
“found by the Secretary of State to be recognized . . . throughout
the nation or throughout California” (Cal. Const., art. II, § 5,
subd. (c)), even if that candidate fails to disclose five years’ worth
of federal tax returns as required by Elections Code section
6883. The limited scope of this holding leaves intact key
portions of the Presidential Tax Transparency and
Accountability Act. (Stats. 2019, ch. 121.)
Nothing in the court’s decision, for example, prohibits the
Legislature from finding that “as one of the largest centers of
economic activity in the world, the State of California has a
special interest in the President refraining from corrupt or self-
enriching behavior while in office.” (Elec. Code, § 6881.) And no
party to this case disputed the fact that voters “can better
estimate the risks of any given Presidential candidate engaging
in corruption or the appearance of corruption if they have access
to candidates’ tax returns,” given how a “Presidential
candidate’s income tax returns provide voters with essential
information regarding the candidate’s potential conflicts of
interest, business dealings, financial status, and charitable
donations.” (Ibid.)
Nor does our holding prohibit the Legislature from
encouraging or seeking such information from a presidential
1
PATTERSON v. PADILLA
Cuéllar, J., concurring
candidate, so long as provision of that information is not a
condition for the recognized candidate’s name to appear on
California’s primary election ballot. But it’s worth noting, too,
that an interest in the financial transparency of those seeking
to become the Chief Executive of the United States is not one of
those attributes distinctive to California. Indeed, it’s quite easy
to find the tax returns disclosed by our nation’s Presidents, with
only a few exceptions, dating back to 1932 on various news and
stand-alone websites, as well as the tax returns disclosed by
many of the unsuccessful candidates over the past 40 years. The
general availability of this information reflects an ongoing
public and historical interest in the financial honesty and
competence of those seeking the highest office in the land.
That the public, through moral suasion or a legal
requirement crafted by its elected representatives, has so often
succeeded in forcing disclosure of essential financial information
about political candidates would not have come as a surprise to
our nation’s founders. As Thomas Jefferson cautioned in the
first years after independence, “[t]he time to guard against
corruption and tyranny is before they shall have gotten their
hold on us. It is better to keep the wolf out of the fold, than to
trust to drawing his teeth and talons after he shall have
entered.” (Jefferson, The Jefferson Cyclopedia: A
Comprehensive Collection of the Views of Thomas Jefferson
(Foley ed. 1900) p. 210.) The force of that warning remains
undiluted by today’s decision.
CUÉLLAR, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Patterson v. Padilla
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding XXXX
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S257302
Date Filed: November 21, 2019
__________________________________________________________________________________
Court:
County:
Judge:
__________________________________________________________________________________
Counsel:
Bell, McAndrews & Hiltachk, Charles H. Bell, Thomas W. Hiltachk and Terry J. Martin for Petitioners.
Xavier Becerra, Attorney General, Thomas S. Patterson, Assistant Attorney General, Anthony R. Hakl, Jay
C. Russell and Chad A. Stegeman, Deputy Attorneys General, for Respondent.
Boies Schiller Flexner, David Boies, Maxwell V. Pritt and Alexander J. Holtzman for Dean Erwin
Chemerinsky as Amicus Curiae on behalf of Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Thomas W. Hiltachk
Bell, McAndrews & Hiltachk
455 Capitol Mall, Suite 600
Sacramento, CA 95814
(916) 442-7757
Jay C. Russell
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 510-3617