As noted earlier, a Republican candidate for State Senate in California filed a lawsuit on February 2, 2010, to force the Secretary of State to enforce Article IV, sec. 2(c) of the State Constitution. That provision, since 1879, has required candidates for the legislature to have lived in the district for a year before the election. California Secretaries of State have not been enforcing it since 1975, when the State Supreme Court ruled that California’s duration of residency laws for candidates violate the U.S. Constitution.
The recent lawsuit, filed by Heidi Fuller to keep her opponent, Tom Berryhill, off the ballot, had been filed in the State Court of Appeals in Fresno. That was the wrong place to file the case. California election law requires such lawsuits to be filed in Superior Court in Sacramento. The case, Fuller v Bowen, has now been re-filed in Sacramento, where it is in front of Judge Frawley, 34-2010-80000452-CU-WM-GDS.
This story from the Lodi Sentinel erroneously says the U.S. Supreme Court in 1972 struck down a law requiring candidates to have been a resident of the district for one year. That is not true. The 1972 case, Dunn v Blumstein, struck down residency requirements for voters, not candidates. In 1975 the U.S. Supreme Court summarily affirmed a lower court decision upholding a 7-year residency requirement for candidates for New Hampshire State Senate. Also in 1982, the U.S. Supreme Court ruled in Clements v Fashing that there is no constitutional right to be a candidate. Note that Clements v Fashing is not a ballot access case; it relates to whether a particular individual may hold the office, not whether any individual should be on the ballot.
In light of the recent USSC decision, one has to wonder how long the lower courts will determine a corporate “person” needs to reside in a district to run for office.
And what would be the proof of residency? Bills from their electric company? What if the corporate person IS the electric company? Hmmm…that’s a tough one.
Please…be “dispassionate” and “well-reasoned” in your responses.
The Secretary of State has never had the power to determine the qualifications of legislators. Only the legislature can make that determination.
Prior to the adoption of the Australian ballot, election officials would simply tally up the votes, issue a certificate to the apparent winner and he would be off to Sacramento. If a losing candidate didn’t think the winner was qualified, he’d contest the election before the legislature.
Even though the legislature has provided for intermediate steps such as declarations of candidacies, and primaries, they can not transfer authority for determining qualifications to the Secretary of State (and the Secretary of State may not usurp that authority). If Debra Bowen were to keep Tom Berryhill off the ballot, then if he contested the election, the legislature would likely tell him you received zero votes, which is less than the winner, so it doesn’t matter whether you are qualified or not.
The California Supreme Court has already rule in a similar case where the loser of a primary attempted to have the nominee removed because of a claimed lack of duration of residency.
Heidi Fuller contends that the Supreme Court had declined to rule because it was too late to complain after the primary, and now want the courts to rule because she heard on the radio that Berryhill plans to run and so the Secretary of State has plenty of time to disqualify him in advance. But I think the Supreme Court was actually saying that it was useless for them to make a ruling on qualifications since only the legislature has that authority.
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Ah HAH! But what if a sufficient number of corporate “persons” were to be elected to the California legislature, or perhaps even one hugely capitalized corporate “person,” couldn’t they/it merge with or acquire by hostile takeover all of the opposition legislators, then perhaps outsource them to Thailand or maybe simply downsize them into the unemployment lines, thus making this particular issue somewhat moot?
In fact, isn’t this EXACTLY what the USSC had in mind when they ruled that corporate persons had the same rights to bear ar…er, sorry…I meant the same rights to free speech as the sort of actual, mortal “persons” who have lungs and kidneys?
Just trying to be “dispassionate” here…