Boydston v. Padilla

Filed 4/11/23: Certified for Publication 4/12/23 (order attached)
Reposting 4/12/23 publication order to include the 4/11/23 modification order.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JIM BOYDSTON et al., D080921
Plaintiffs and Appellants,
v. (Super. Ct. No. CIVDS1921480)
ALEX PADILLA, as Secretary of State, ORDER MODIFYING OPINION
et al., AND DENYING REHEARING
Defendants and Respondents. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on March 21, 2023, be
modified as follows:
The first sentence of the opinion (beginning with “In this case . . .”) is
deleted and replaced with the following:
In this case, we reject the plaintiffs’ assertion of a novel and
peculiar constitutional right to vote in California’s
presidential primary for the candidate of a political party
they have chosen not to join—without having their votes
count for anything other than their expressive value.
Immediately after the first full sentence on page 19 (beginning with
“Not only is Plaintiffs’ desire . . .”), the following footnote is inserted, which
will necessitate the renumbering of subsequent footnotes:
Plaintiffs also contend that their claims are not foreclosed
by Supreme Court precedent because, unlike in Jones,
(1) plaintiffs’ complaint focuses on the rights of individual
voters rather than political parties, and (2) plaintiffs allege
that California’s primary system is a “state-sponsored
straw poll,” as the political parties are not bound by the
results in nominating a candidate. We reject this argument
for the same reasons we have just explained. First, even if
we were to accept that Jones is distinguishable, plaintiffs
fail to sufficiently distinguish their case from Clingman.
Clingman also involved the rights of individual voters and
a semi-closed primary system that, like California’s, leaves
each political party “free to . . . nominate the candidate of
its choice.” (Clingman, supra, 544 U.S. at p. 587.)
Plaintiffs repeatedly emphasize language from the
Clingman opinion referencing the Libertarian Party of
Oklahoma’s primary—presumably to contrast with what
they refer to as California’s “state-funded presidential-
primary process”—but fail to explain how California’s
presidential primary process is materially different from
the system in Oklahoma upheld as constitutional by the
Supreme Court. Second, as we have explained, plaintiffs’
desire to express themselves via the presidential primary
process without actually assisting in the selection of a
party’s nominee does not implicate any constitutional right.
There is no change in judgment.
The petition for rehearing is denied.
IRION, Acting P. J.
Copies to: All parties
2
Filed 3/21/23 (unmodified opinion)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JIM BOYDSTON et al., D080921
Plaintiffs and Appellants,
v. (Super. Ct. No. CIVDS1921480)
ALEX PADILLA, as Secretary of State,
etc., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Bernadino
County, Wilfred J. Schneider, Jr., Judge. Affirmed.
Briggs Law Corporation, Cory J. Briggs, Janna M. Ferraro; Peace &
Shea and S. Chad Peace for Plaintiffs and Appellants.
Rob Bonta, Attorney General, Thomas S. Patterson, Assistant Attorney
General, Anya M. Binsacca, Nelson R. Richards and Megan Anne Richards,
Deputy Attorneys General, for Defendants and Respondents.
In this case, we reject the plaintiffs’ assertion of a novel and peculiar
constitutional right to vote in the presidential primary of a political party
they have chosen not to join—without having their votes count for anything
other than their expressive value.
The question presented here is whether California may lawfully require
anyone who seeks to vote in a presidential primary for a candidate of a
particular political party to associate with that party as a condition of
receiving a ballot with that candidate’s name on it. Plaintiffs contend that
the answer is no. They argue that Elections Code section 13102, the statute
that establishes California’s semi-closed presidential primary system, is
therefore unconstitutional.
Defendants California Secretary of State and the State of California
dispute this conclusion, asserting that the United States Supreme Court has
answered this question in the affirmative on multiple occasions. In
California Democratic Party v. Jones (2000) 530 U.S. 567 (Jones), the Court
held that states may not force political parties to allow non-members to
participate in their candidate-selection process and found that any
“associational ‘interest’ in selecting the candidate of a group to which one
does not belong . . . falls far short of a constitutional right, if indeed it can
even fairly be characterized as an interest.” (Id., at pp. 573, fn. 5, 586.) In
Clingman v. Beaver (2005) 544 U.S. 581 (Clingman), the Court held that
requiring voters to register with a political party before participating in its
primary only minimally burdens voters’ associational rights; any such
restriction is constitutional so long as it is reasonable and nondiscriminatory.
(Id. at pp. 592–593.)
Attempting to avoid the conclusion compelled by these holdings,
plaintiffs assert that although they must be permitted to vote in the
presidential primary election without affiliating themselves with any political
party, they do not seek to require the political parties to count their votes in
determining the winner. Rather, plaintiffs merely desire to express their
political preferences, and they believe they are constitutionally entitled to do
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so by casting votes for a party’s presidential candidate without registering
with that party, and having “their preferences tallied and reported by the
State” but not used to determine the outcome. In other words, they want
their votes to be counted, but they do not want their votes to count.
As defendants point out, however, when plaintiffs discuss a “right” to
cast an expressive ballot simply for the sake of doing so, rather than to affect
the outcome of an election, they have ceased talking about voting. Indeed,
the Supreme Court has rejected the notion that elections have some
“generalized expressive function.” (Burdick v. Takushi (1992) 504 U.S. 428,
438 (Burdick).) Plaintiffs’ inventive theories therefore do not supply a
constitutional basis for evading binding legal precedent that forecloses their
arguments. Accordingly, we affirm the trial court’s ruling sustaining the
defendants’ demurrer without leave to amend.
FACTUAL AND PROCEDURAL BACKGROUND
A. Original Complaint and Motion for Preliminary Injunction
Plaintiffs are registered voters and California taxpayers who filed their
initial complaint in July 2019 against then-Secretary of State Alex Padilla,
named in his official capacity, and the State of California.1 They alleged
that, in 2016, California’s Secretary of State administered a semi-closed
presidential primary that resulted in widespread voter confusion and the
disenfranchisement of millions of voters. This included voters who had not
registered as preferring a qualified political party, referred to as “no party
1 The Secretary points out that, despite two rulings by the trial court
that the State of California is not a proper party to this lawsuit, plaintiffs
continue to improperly refer to the State as a defendant. Defendants contend
that plaintiffs have waived any argument that the trial court erred in ruling
that the State is not a proper party. We agree, and we will refer to the
defendants together as “the Secretary” throughout this opinion.
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preference” (NPP) voters, and therefore were only allowed to vote for the
candidate of a party that had chosen to allow NPP voters to participate in
their primary election. According to plaintiffs, California’s presidential
primary system is unconstitutional on its face and as applied under both the
state and federal constitutions.
The complaint further alleged that three of the plaintiffs were
registered as NPP voters but wanted to vote for presidential primary
candidates of their choice in 2020 without registering with a political party.
Two plaintiffs were registered with a political party but wanted to vote for
presidential primary candidates from other parties in 2020. One plaintiff
preferred to register as NPP but had remained registered as a Democrat to
vote for her preferred candidate in 2020. The individual plaintiffs alleged
that none of them were able to vote for the candidate of their choice in the
2016 presidential primary election “unencumbered by a condition of party
preference.”
The complaint asserted six causes of action: (1) California’s semi-closed
presidential primary election system does not comply with the California
Constitution’s section requiring an open presidential primary (Cal. Const.,
art. II, § 5, subd. (c)); (2) the semi-closed primary violates plaintiffs’
substantive due process rights afforded to them by the California
Constitution (Cal. Const., art. I, § 7); (3) the semi-closed primary denies
plaintiffs equal protection of the law in violation of the California
Constitution (Cal. Const., art. I, § 7); (4) the semi-closed primary
appropriates public funds for a private purpose in violation of the California
Constitution (Cal. Const., art. XVI, § 3); (5) the semi-closed primary violates
plaintiffs’ substantive due process rights under the United States
Constitution (42 U.S.C. § 1983); and (6) the semi-closed primary violates
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plaintiffs’ right of non-association under the United States Constitution (42
U.S.C. § 1983). The complaint requested a declaration that California’s
presidential primary system is “illegal in some manner.” It also sought an
injunction prohibiting the Secretary from “administering a presidential-
primary election that does not comply with all applicable laws” and a writ
directing the Secretary to “bring the[ ] administration of the presidential
primary election into compliance with all applicable laws.”
Shortly after filing the complaint, plaintiffs filed a motion for a
preliminary injunction requiring the Secretary to allow all registered voters
to cast a ballot for their candidate of choice in the 2020 presidential primary
election without having to associate with a political party. The Secretary
opposed, arguing that plaintiffs were unlikely to succeed on the merits
because the United States Supreme Court had upheld a presidential primary
system nearly identical to California’s system and plaintiffs’ claims therefore
failed as a matter of law.
The trial court held a hearing and thereafter denied the motion,
concluding that plaintiffs had failed to establish a likelihood of prevailing.
The court first found that, “to the extent the heart of the Plaintiffs’ complaint
is that they are being denied the right to vote in the presidential primary
election unless they associate with a party, the U.S. Supreme Court has
found that the political parties’ freedom to associate means they get to dictate
who is permitted to participate in the primaries that will assist in
determining” their presidential nominee. Additionally, the court explained,
NPP voters can vote in presidential primary elections when permitted by a
political party merely by requesting a crossover ballot—they are not required
to register with the party.
B. First Amended Complaint and Motion for Judgment on the Pleadings
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The parties stipulated to a first amended complaint to add another
plaintiff, which plaintiffs filed in December 2019. Plaintiffs did not otherwise
modify or add to their allegations. By stipulation, the Secretary’s answer to
the original complaint was deemed the answer to the first amended
complaint.
The Secretary then moved for judgment on the pleadings, making many
of the same arguments it had asserted in opposition to the preliminary
injunction, including that plaintiffs’ claims had already been rejected by the
United States Supreme Court in cases addressing similar constitutional
challenges. After briefing and a hearing, the trial court granted the motion
but gave plaintiffs leave to amend their complaint.
C. Second Amended Complaint and Demurrer
In response to the court’s ruling, plaintiffs filed their second amended
complaint in October 2020. The second amended complaint repeated most of
the allegations of the first two complaints but slightly revised the allegations
regarding the individual plaintiffs. It alleged that plaintiffs Daniel Howle
and Steven Fraker each seek to vote for a presidential candidate of his choice
without being required to associate with a political party. Plaintiff Jim
Boydston seeks to vote for a presidential candidate running for the
Democratic Party nomination in the next presidential primary election
without being required to associate with the Democratic Party. Plaintiff Jeff
Marston, a registered Republican, seeks to vote in the primary election for a
presidential candidate other than a Republican without being required to
change his party preference. Plaintiff Josephine Piarulli, a registered
Democrat, would prefer to be registered as a NPP voter but remains affiliated
with the Democratic Party to ensure she can vote for a presidential candidate
in the next presidential primary election.
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The second amended complaint also added several paragraphs alleging
that the Secretary imposes additional burdens on NPP voters who want to
vote in the presidential primary. NPP voters seeking to vote in the
presidential primary election are required to “respond to an innocuous
postcard to request a crossover ballot,” bring their NPP ballot to their polling
place to surrender it and request a crossover ballot there, or re-register with
a party at their polling place and vote using that party’s primary ballot.
Plaintiffs allege that this process is onerous and the Secretary fails to inform
NPP of their options. Plaintiffs also allege that many counties set arbitrary
deadlines for NPP voters to request a crossover ballot, which leads some NPP
voters to mistakenly believe that if they do not request a crossover ballot by
mail, they have lost their ability to vote in the presidential primary.
The Secretary demurred to the second amended complaint on the
grounds that it failed to state facts sufficient to constitute a cause of action,
arguing that the new allegations in the second amended complaint did not
salvage plaintiffs’ claims. The demurrer was similar to defendants’ prior
attacks on the complaint and made three main arguments. First, plaintiffs
misconstrued the meaning of the term “open primary” in the California
Constitution (Cal. Const., art. II, § 5, subd. (c)), which requires only that the
State open the ballot to nationally recognized presidential candidates without
requiring them to submit a certain number of qualified signatures, not that
all voters be allowed to vote for any candidate regardless of stated party
preference. Second, plaintiffs could not get around the United States
Supreme Court opinions in Clingman, which upheld a substantially similar
statutory scheme against a similar constitutional challenge, and Jones,
where the Court found unconstitutional the same open primary system
plaintiffs here argue is required under the California Constitution. Third,
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the California Constitution requires that the Legislature provide for “free
elections” (Cal. Const., art. II, § 3), and courts have consistently upheld laws
that provide for primary elections at the public expense while rejecting efforts
to redistribute those costs to candidates or parties.
Plaintiffs opposed the demurrer, arguing in response to the Secretary’s
first argument that the logical extension of the California Constitution’s
requirement that nationally recognized presidential candidates be included
on the primary ballot is that all voters, including NPP voters, should have
the right to vote for any candidate meeting the requirements. Plaintiffs next
argued that California’s presidential primary system violates their right to
freedom of association, equal protection, and substantive due process. They
asserted that their case is distinguishable from Clingman and Jones, both
because those cases involved the rights of political parties, rather than
voters, and because plaintiffs here are not seeking to require political parties
to count their presidential primary votes, only to require the Secretary to
allow them to participate in the presidential primary voting process. Finally,
plaintiffs asserted that they had sufficiently pleaded unconstitutional
misappropriation of public funds because the California presidential primary
election serves a substantially different purpose than a general election in
that it is merely advisory and exclusively serves the interests of political
parties; it therefore cannot serve a legitimate public purpose.
D. Ruling on Demurrer to Second Amended Complaint
After a hearing in January 2021, the trial court issued a ruling
sustaining the Secretary’s demurrer without leave to amend. The court
concluded that plaintiffs’ new allegations did not materially change the
nature of their legal theory, which the court had previously rejected, and
found that the law is clear that California’s semi-closed primary system is
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constitutional. Specifically, the court determined that plaintiffs still failed to
allege state action that deprived them of a cognizable right, because NPP
voters “do not have a constitutional right to vote in a presidential primary for
a political party’s candidate.”
The trial court also found that plaintiffs’ right to freedom of association
is not violated by the system because the system does not mandate that they
associate with any political party. The court noted that the United States
Supreme Court has already held that political parties are permitted to
restrict who can participate in their primaries. Moreover, the court found,
Jones and Clingman establish that the Secretary’s differing treatment of
NPP voters and political party members is justified, and plaintiffs failed to
allege facts demonstrating any arbitrary state action such that plaintiffs’
constitutional rights were violated.
Regarding plaintiffs’ misappropriation claim, the court concluded that
the claim failed as a matter of law because using public funds to conduct
primary elections does not violate the California Constitution, and plaintiffs
cited no authority to support their argument to the contrary.
The court declined to grant leave to amend based on its conclusion that
the facts were not in dispute, no liability exists as a matter of law, and
plaintiffs had failed to effectively amend their complaint after they had
already been given the opportunity to do so. The court directed counsel for
defendants to prepare and submit the order of judgment. They did so, but
the trial court did not execute the judgment at that time.
When plaintiffs filed their notice of appeal on March 29, 2021, they
submitted only a copy of the January 29, 2021 order sustaining the demurrer.
This court notified plaintiffs that an order sustaining a demurrer without
leave to amend is not appealable and directed them to file a judgment with
9
this court or have their appeal dismissed. Plaintiffs then obtained and filed
with this court a judgment from the trial court dated April 28, 2021. We
construe the notice of appeal as being taken from the judgment.
DISCUSSION
I
We review a judgment of dismissal based on a sustained demurrer de
novo to determine whether the complaint alleges facts sufficient to state a
cause of action. (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th
145, 162.) The California standard of review for an order sustaining a
demurrer requires us to accept as true all properly pleaded material factual
allegations of the complaint, together with facts that may be properly
judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Where the
trial court sustains a demurrer without leave to amend, we consider whether
there is a reasonable possibility plaintiffs could cure the defect by an
amendment and must reverse for abuse of discretion if that possibility exists.
(Ibid.) Plaintiffs bear the burden of proving that an amendment would cure
the defect. (Ibid.)
Because certain of plaintiffs’ claims are pleaded under section 1983 of
title 42 of the United States Code, however, we apply the federal standard for
review of the grant of a motion to dismiss to those claims. (Rubin v. Padilla
(2015) 233 Cal.App.4th 1128, 1144.) Under that standard, dismissal is
proper only where it appears certain that plaintiffs can prove no set of facts
in support of their claims that would entitle them to relief. (Arce v. Childrens
Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1471.) In line with both
California and federal practice, we accept the allegations in the complaint as
true and construe them in the light most favorable to plaintiffs. (Ibid.)
II
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Plaintiffs’ first argument on appeal is that California’s semi-closed
presidential primary system is unconstitutional because it violates (1) their
First Amendment right to freedom of association under the United States
Constitution, (2) the equal protection clause of the California Constitution
and United States Constitution, and (3) their substantive due process rights
under the United States Constitution. We conclude that these constitutional
challenges are without merit.
A. Legal Background
California currently uses a semi-closed primary for presidential
elections. (Elec. Code, § 13102.)2 Voting in primary elections is limited to
voters who have registered disclosing a preference for one of the political
parties participating in the election unless the political party has authorized
a voter who has not registered a party preference to vote the ballot of that
party. Under this system, NPP voters may vote in presidential primaries of
qualified political parties in one of two ways: (1) they may register for the
party in whose presidential primary election they wish to vote; or (2) they
may request the partisan ballot of a political party that has authorized NPP
voters to participate in the party’s primary election. (§ 13102, subds. (a), (b).)
All voters may change their voter registration to reflect a different party
preference at any point up to two weeks prior to the election. (§ 2119, subd.
(a).) Voters who miss that deadline may conditionally register up to and on
election day and cast a provisional ballot, which will be processed and
2 All subsequent statutory references are to the Elections Code unless
otherwise noted.
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counted once the county elections office verifies the information supplied by
the voter. (§ 2170.)
Before adopting a semi-closed presidential primary election, California
used a “closed” primary to determine the nominees of qualified political
parties for many years. (Jones, supra, 530 U.S. at p. 570.) Under the closed
system, voters who did not identify a political party affiliation when
registering to vote were not allowed to vote for candidates running for a
partisan office in primary elections. Each voter thus received a ballot limited
to candidates of their own party. (Ibid.)
In 1996, California voters adopted by initiative Proposition 198, which
changed California’s partisan primary from a closed primary to an “open” or
“blanket” primary. (Jones, supra, 530 U.S. at p. 570.) Proposition 198
allowed all voters, including those not affiliated with any political party, to
vote for any candidate regardless of the candidate’s political affiliation.
(Ibid., citing former § 2001.) After the new law’s enactment, each voter’s
primary ballot listed “every candidate regardless of party affiliation and
allow[ed] the voter to choose freely among them.” (Ibid.)
In 2000, the United States Supreme Court invalidated California’s
partisan blanket primary. The Court found that it violated political parties’
First Amendment right to freedom of association because it required political
parties to affiliate with voters who had chosen not to become party members
by forcing the parties to allow non-members to participate in their candidate-
selection process. (Jones, supra, 530 U.S. 567.) While the Court recognized
“that States have a major role to play in structuring and monitoring the
election process, including primaries,” it emphasized that the processes by
which political parties select their nominees are not “wholly public affairs
that States may regulate freely.” (Id. at pp. 572–573.) The Court concluded
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that California’s blanket primary forced political parties to associate with
“those who, at best, have refused to affiliate with the party, and, at worst,
have expressly affiliated with a rival.” (Id. at p. 577.) Such forced affiliation,
the Court found, had the likely effect of negatively impacting the political
parties’ candidate-selection process and overall message—a severe burden on
the parties’ right of association. (Id. at pp. 581–582.) The Court determined
that the proffered state interests were not compelling, nor was Proposition
198 narrowly tailored such that it could withstand strict scrutiny, and it
therefore held the law unconstitutional. (Id. at pp. 582–586.)
After Jones, the California legislature reinstated the previous closed
primary system, but it modified the law. (Stats. 2000, ch. 898, § 8.) Voters
registered as preferring a qualified political party receive a ballot containing
that party’s partisan candidates as well as all candidates for nonpartisan
offices, voter-nominated offices, and measures. (§ 13102, subds. (a), (b).) By
default, NPP voters receive only a nonpartisan ballot containing all
candidates for nonpartisan offices, voter-nominated offices, and measures.
(Id., subd. (b).) An NPP voter may, however, request the partisan ballot of a
political party if that party has authorized NPP voters to participate in the
party’s primary election. (Ibid.) A party that wants to allow NPP voters to
vote in its primary must notify the Secretary of State no later than the 135th
day before the partisan primary election. (Id., subd. (c).) This semi-closed
system for partisan primary elections remains in place today. (§ 13102.)
B. Analysis
1. Applicable Legal Standard
There is no dispute that the right to vote is fundamental. (See Burdick,
supra, 504 U.S. at p. 433.) “It does not follow, however, that the right to vote
in any manner and the right to associate for political purposes through the
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ballot are absolute.” (Ibid.) As a practical matter and under constitutional
law, government must play an active role in, and substantially regulate,
elections to ensure they are fair. (Ibid.; Storer v. Brown (1974) 415 U.S. 724,
730 (Storer).) And though electoral regulations “will invariably impose some
burden upon individual voters,” not all burdens are unconstitutional, nor do
all regulations compel strict scrutiny. (Burdick, at p. 433.)
A court considering a constitutional challenge to an election law under
the First and Fourteenth Amendments must apply the analysis and
balancing test set forth by the United States Supreme Court in Anderson v.
Celebrezze (1983) 460 U.S. 780 (Anderson) and developed more fully in
Burdick. (Kunde v. Seiler (2011) 197 Cal.App.4th 518, 538–539; see also
Norman v. Reed (1992) 502 U.S. 279, 288, fn. 8 [“As in Anderson . . . ‘we base
our conclusions directly on the First and Fourteenth Amendments and do not
engage in a separate Equal Protection Clause analysis.’ ”].)3 Under the
Anderson/Burdick test, the standard applied to the challenged election law
depends upon the burden it places upon voters. (Burdick, supra, 504 U.S. at
p. 434.) Where the law imposes severe restrictions on voters’ First and
Fourteenth Amendment rights, it must be narrowly tailored and advance a
compelling state interest. (Ibid.) If the law imposes only “reasonable,
nondiscriminatory restrictions,” on the other hand, “the state’s important
regulatory interests are generally sufficient to justify” the restrictions.
(Anderson, at p. 788.)
Before turning to the application of this framework, we first address
plaintiffs’ threshold argument that conducting the Anderson/Burdick analysis
3 The equal protection clauses of the California Constitution and United
States Constitution “are substantially equivalent” and courts “analyze them
in a similar fashion.” (People v. K.P. (2018) 30 Cal.App.5th 331, 341.)
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is beyond the scope of a demurrer, and the trial court therefore erred in
applying the test.4 Plaintiffs assert that because various United States
Supreme Court election law challenges were decided after some form of
evidentiary hearing where the lower court had weighed voter burdens and
countervailing state interests, implicit in those holdings is the conclusion
that such cases can never be decided on the pleadings. Plaintiffs cite no
authority in support of this proposition. In fact, they concede on reply that
the California Supreme Court and the Ninth Circuit have both resolved
election law challenges at the pleading stage. (See, e.g., Edelstein v. City and
County of San Francisco (2002) 29 Cal.4th 164 (Edelstein) [concluding that
the trial court had properly granted defendant’s motion for judgment on the
pleadings]; Rubin v. City of Santa Monica (9th Cir. 2002) 308 F.3d 1008[affirming grant of defendant’s motion to dismiss for failure to state a claim].)
At least one appellate court has also affirmed dismissal of a
constitutional challenge to a state election law at the pleading stage. (See
Rubin v. Padilla, supra, 233 Cal.App.4th at pp. 1135, 1137 [affirming
judgment after trial court sustained demurrer without leave to amend].) The
plaintiffs in Rubin v. Padilla argued that the trial court improperly resolved
their claims on demurrer because it was “required to permit them ‘to
investigate the historical record, analyze statistical data, and develop expert
testimony’ before it could evaluate the nature of the burden imposed on their
4 Plaintiffs also contend it was error for the trial court to sustain the
demurrer because the second amended complaint seeks declaratory relief,
and plaintiffs are entitled to a declaration of rights even if it is against their
interests. Because plaintiffs raise this argument for the first time in their
reply brief without a showing of good cause, it has been forfeited. (Hurley v.
Dept. of Parks & Recreation (2018) 20 Cal.App.5th 634, 648, fn. 10.)
15
constitutional rights and weigh that burden against the state’s asserted
interests.” (Id. at p. 1154.) The court rejected the argument, as do we.
We therefore turn to application of the Anderson/Burdick framework to
plaintiffs’ claims.
2. Any Constitutional Burden Is Minimal and Reasonable
Step one of the Anderson/Burdick balancing test is to determine “ ‘the
character and magnitude of the asserted injury to the rights protected by the
First and Fourteenth Amendments that the plaintiff seeks to vindicate.’ ”
(Burdick, supra, 504 U.S. at p. 434.) In other words, we must first decide
whether the challenged law severely burdens the right to vote. Plaintiffs
contend that section 13102 places a steep burden on NPP voters because it
forces them to affiliate with a political party as a prerequisite to primary
voting and requires NPP voters who have not affiliated with a party but wish
to vote in a primary election to request a crossover ballot, which is a
confusing and onerous process. According to Plaintiffs, the imposition of
these burdens leads to the disenfranchisement of NPP voters. The Secretary
argues that California NPP voters experience materially similar burdens as
those already recognized as minimal in Clingman, and plaintiffs’ arguments
are foreclosed by the United States Supreme Court decisions in Clingman
and Jones. We agree with the Secretary.
Plaintiffs first contend that California’s presidential primary system
imposes an impermissible burden on their First Amendment freedom to
associate because it requires them to associate with a political party to vote
in the primary. They assert that “California’s understanding of party
affiliation as a minimal burden . . . cannot be squared with the ever-
increasing number of voters who do not want to associate with any of the
political parties or participate in their private nomination process[ ].” As the
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Secretary points out, however, characterizing party affiliation as a minimal
burden does not merely reflect California’s “understanding” of the
prerequisite to partisan voting—it reflects a binding statement of law made
by the United States Supreme Court. (Clingman, supra, 544 U.S. at p. 592.)
In Clingman, the Court considered a constitutional challenge to
Oklahoma’s semi-closed primary system. (Clingman, supra, 544 U.S. at
p. 584.) Like California’s current system, Oklahoma’s law allowed political
parties to choose whether to allow independent voters to participate in their
partisan primary elections, but the law did not allow parties to open their
primary elections to other parties’ members. (Ibid.) The Libertarian Party of
Oklahoma and voters registered as Republicans and Democrats argued that
Oklahoma’s semi-closed primary system violated their First Amendment
right to freedom of political association. (Ibid.) The Court disagreed, finding
that “requiring voters to register with a party prior to participating in the
party’s primary minimally burdens voters’ associational rights.” (Id. at
p. 592, italics added.)
Even before Clingman, the Court had determined that any
“associational ‘interest’ in selecting the candidate of a group to which one
does not belong . . . falls far short of a constitutional right, if indeed it can
even fairly be characterized as an interest.” (Jones, supra, 530 U.S. at p. 573,
fn. 5; see also Tashjian v. Republican Party (1986) 479 U.S. 208, 215, fn. 6
[“the nonmember’s desire to participate in the party’s affairs is overborne by
the countervailing and legitimate right of the party to determine its own
membership qualifications”].) Dismissing the argument plaintiffs advance
here, the Court explained: “The voter who feels himself disenfranchised
should simply join the party. That may put him to a hard choice, but it is not
a state-imposed restriction upon his freedom of association, whereas
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compelling party members to accept his selection of their nominee is a state-
imposed restriction upon theirs.” (Jones, at p. 584.) Requiring voters to
associate with a party—whether by registering or requesting a crossover
ballot—to participate in a partisan primary is thus, at most, a slight burden.
Plaintiffs seek to avoid this conclusion by claiming they are not seeking
to participate or interfere in the political parties’ process but rather to express
themselves through the presidential primary process. Specifically, they desire
to “express their political views and preferences at the polls, unencumbered
by the condition of registering or otherwise associating with a political party.”
But again, United States Supreme Court precedent forecloses this
argument. The Court has explained that “the function of the election process
is ‘to winnow out and finally reject all but the chosen candidates,’ . . . not to
provide a means of giving vent to ‘short-range political goals, pique, or
personal quarrel[s].’ Attributing to elections a more generalized expressive
function would undermine the ability of States to operate elections fairly and
efficiently.” (Burdick, supra, 504 U.S. at p. 438, quoting Storer, supra, 415
U.S. at pp. 730, 735.) It has also expressly stated that “[b]allots serve
primarily to elect candidates, not as fora for political expression.” (Timmons
v. Twin Cities Area New Party (1997) 520 U.S. 351, 363 (Timmons).) The
California Supreme Court has also recognized that the purpose of the election
process is “not simply to provide an outlet for political expression.”
(Edelstein, supra, 29 Cal.4th at p. 182, citing Burdick, at p. 438.) Moreover,
the Legislature has defined the word “vote” as used in the California
Constitution as “all action necessary to make a vote effective in any primary,
special, or general election, including, but not limited to, voter registration,
any other act prerequisite to voting, casting a ballot, and having the ballot
counted properly and included in the appropriate totals of votes cast with
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respect to candidates for public office and ballot measures.” (§ 15702, italics
added.)5 Not only is Plaintiffs’ desire to express themselves via the polls
without having their votes count in determining the result not a
constitutional right, therefore, but it also runs contrary to the California
Constitution.
Plaintiffs next argue that California’s semi-closed primary system is
unconstitutional because it requires NPP voters to jump through hoops to
participate in the presidential primary election as crossover voters, a process
which is itself unconstitutional because it is unduly burdensome and leaves
some NPP voters confused. We do not agree.
Most electoral regulations—including voter and party registration—
“require that voters take some action to participate in the primary process.”
(Clingman, supra, 544 U.S. at p. 593; see also Rosario v. Rockefeller
(1973) 410 U.S. 752, 760–762 [upholding requirement that voters change
party registration 11 months before primary election].) Here, voters may
change their party registration up until 15 days before an election. (§ 2119.)
Even if voters miss that deadline, they may still cast a ballot in a party
primary using the conditional voter registration process before or on the day
of the election. (§ 2170.) They can also take other “action to participate in
the primary process” by requesting a crossover ballot via mail or at their
polling place. (Clingman, at p. 593.) That California NPP voters wishing to
vote in a primary election must read their mail or otherwise seek out
information to request a crossover ballot cannot reasonably be classified as a
severe burden. It is “not difficult” to “ ‘ask[ ] for the appropriate ballot at the
5 Courts ordinarily follow the Legislature’s definition of a word used in
the Constitution if it is a reasonable construction. (Kaiser v. Hopkins (1936)
6 Cal.2d 537, 540.)
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appropriate time,’ ” and tasks like requesting a ballot or filing a form
constitute “minimal effort.” (Clingman, at pp. 590–592.) Such “minor
barriers between voter and party do not compel strict scrutiny.” (Id. at
p. 593.)
We therefore conclude that, even accepting all plaintiffs’ allegations as
true, the burdens plaintiffs identify are minimal.
C. Sufficient State Interests Justify the Minimal Burdens
The second step of the Anderson/Burdick balancing test requires us to
consider California’s interests in imposing the voter restrictions and weigh
those interests against the burdens. Where, as here, the challenged election
law is reasonable, nondiscriminatory, and does not place a heavy burden on
voters’ rights, “ ‘a State’s important regulatory interests will usually be
enough to justify’ ” the law. (Clingman, supra, 544 U.S. at p. 593, quoting
Timmons, supra, 520 U.S. at p. 358.) Plaintiffs contend that the state lacks a
legitimate reason to treat NPP voters and party-affiliated voters differently—
in other words, that the state’s interests are insufficient to justify the
restrictions of section 13102—and that the Secretary has failed to identify
any state interests, as opposed to political party interests, that support
section 13102. We reject these contentions.
Plaintiffs’ argument that the state’s interests are insufficient to justify
treating NPP voters differently from party-affiliated voters is again
foreclosed by United States Supreme Court precedent. First, the Court has
already found that “[i]n facilitating the effective operation of [a] democratic
government, a state might reasonably classify voters or candidates according
to political affiliations.” (Clingman, supra, 544 U.S. at p. 594, internal
quotation marks omitted.) States are therefore “allowed to limit voters’
ability to roam among parties’ primaries” by, for example, requiring them to
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register with a party before voting in a primary and prohibiting voters in one
party from voting in another’s primary. (Id. at pp. 594–595.)
Second, the state interests asserted here are the same as those the
Court held in Clingman to be sufficient to justify minimal burden on voters.
As in Clingman, California’s semi-closed primary “advances a number of
regulatory interests that [the Supreme] Court recognizes as important: It
‘preserv[es] [political] parties as viable and identifiable interest groups’;
enhances parties’ electioneering and party-building efforts; and guards
against party raiding and ‘sore loser’ candidacies by spurned primary
contenders.” (Clingman, supra, 544 U.S. at pp. 593–594, internal citations
omitted.) These important state interests easily justify the minimal burdens
California’s presidential primary system imposes on voters.
The State also has a compelling interest in “the integrity of the primary
system” and “ ‘avoid[ing] primary election outcomes which would tend to
confuse or mislead the general voting population . . . .’ ” (Clingman, supra,
544 U.S. at p. 594.) This interest would be undermined by plaintiffs’
proposed system. According to their theory, NPP voters have a right to have
their presidential primary votes “tallied and reported by the State,” but not
actually used in determining the party nominee. As a result, the reported
“winner” of a party’s presidential primary (including NPP voters) could differ
from the actual winner (excluding NPP voters). This could undermine public
confidence in the election and create the false perception of a rigged primary.
It would also create massive confusion to allow some voters to participate in a
presidential primary without having their votes used to determine the result.
NPP voters would be casting genuine votes for nonpartisan offices, voter-
nominated offices, and measures on the ballot, but only token votes for a
presidential primary candidate on the same ballot. Many NPP voters would
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likely be misled into believing that their presidential primary votes would
count towards the outcome. In such a bewildering election system, the public
would have reason to question whether all genuine votes were being properly
counted and all token votes properly excluded. The State’s strong interest in
maintaining public confidence in the integrity of the election system
outweighs any interest of NPP voters to cast purely symbolic votes for the
candidate of a political party they have chosen not to join.
We therefore conclude that the trial court properly sustained the
demurrer as to plaintiffs’ claims based on their freedom of association, equal
protection, and due process rights.
III
Plaintiffs also contend that the presidential primary election system
violates the California Constitution’s prohibition on private use of public
funds found in section 3 of article XVI, which provides that, subject to certain
exceptions, “[n]o money shall ever be appropriated or drawn from the State
Treasury for the purpose or benefit of any corporation, association, asylum,
hospital, or any other institution not under the exclusive management and
control of the State as a state institution, nor shall any grant or donation of
property ever be made thereto by the State.” (Cal. Const., art. XVI, § 3.)
Plaintiffs argue that the primary system violates the constitution because it
(1) serves a predominantly private purpose despite being financed by public
funds and (2) disenfranchises NPP voters. They cite no authority in support
of this claim but explain that “it is the constitutionally infirm presidential-
primary system . . . that causes the appropriation of public funds in support
of that system to be, likewise, constitutionally infirm.” Because we have
already rejected plaintiffs’ claim that California’s presidential primary
22
system is unconstitutional, it follows that their claim regarding the use of
public funds in support of that system must likewise be rejected.
Even considering this argument separately from the others, we
conclude that it is without merit. California’s primary election plainly serves
a public purpose, as primaries are “ ‘an integral part of the entire election
process.’ ” (Burdick, supra, 504 U.S. at p. 439, quoting Storer, supra, 415
U.S. at p. 735.) Primaries “avoid burdening the general election ballot with
frivolous candidacies” (Jones, supra, 530 U.S. at p. 572) and “avoid the
possibility of unrestrained factionalism at the general election” (Munro v.
Socialist Workers Party (1986) 479 U.S. 189, 196), both important goals that
benefit the public. And the costs associated with holding these primary
elections do not arise “because the parties decide to conduct one, but because
the State has, as a matter of legislative choice, directed that party primaries
be held.” (Bullock v. Carter (1972) 405 U.S. 134, 148.) California “has
presumably chosen this course more to benefit the voters than the
candidates” or parties. (Ibid.) We therefore disagree with plaintiffs’
conclusory statement that the presidential primary is for the exclusive
benefit of political parties. To the extent that NPP voters feel
disenfranchised by the primary system, they may simply join the party or
request a crossover ballot. (See Jones, at p. 572; Clingman, supra, 544 U.S.
at p. 590.)
In sum, we agree with the trial court that, despite multiple
opportunities to amend their complaint, plaintiffs have failed to plead facts
23
that could entitle them to relief.6 We therefore conclude that the demurrer
was properly sustained in its entirety.
DISPOSITION
The judgment of the trial court is affirmed. Respondents are entitled to
recover their costs on appeal.
BUCHANAN, J.
WE CONCUR:
IRION, Acting P. J.
DO, J.
6 Plaintiffs do not argue that they are entitled to leave to amend their
complaint again, nor do they suggest a different set of facts they would have
pleaded if granted leave (see Rubin v. Padilla, supra, 233 Cal.App.4th at
p. 1154), so we do not address that issue.
24
Filed 4/12/23
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JIM BOYDSTON et al., D080921
Plaintiffs and Appellants,
v. (Super. Ct. No. CIVDS1921480)
ALEX PADILLA, as Secretary of State, ORDER CERTIFYING
etc., et al., OPINION FOR PUBLICATION
Defendants and Respondents.
THE COURT:
The opinion in this case filed March 21, 2023 and modified on
April 11, 2023 was not certified for publication. It appearing the opinion
meets the standards for publication specified in California Rules of Court,
rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for
publication specified in California Rules of Court, rule 8.1105(c); and
ORDERED that the words “Not to Be Published in the Official Reports”
appearing on page one of said opinion be deleted and the opinion herein be
published in the Official Reports.
IRION, Acting P. J.
Copies to: All parties
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