On February 21, the California State Court of Appeals in Sacramento heard oral arguments in Fuller v Bowen, a case filed by a legislative candidate who meets the California Constitution’s one-year duration of residency requirement for candidates for the legislature. She had filed the case two years ago to force the Secretary of State to enforce the California Constitutional requirement against one of her opponents, who did not meet the one-year requirement.
The three judges, by their questions and statements, seem very likely to rule that the provision can’t be enforced, unless the legislature itself unseats someone who was elected but who doesn’t meet the requirement. One judge did seem somewhat bothered by the fact that the requirement goes unenforced. He asked the attorney for the Secretary of State if it is true that the provision goes unenforced. However, then the same judge asked another question before the attorney could answer, so unfortunately, the attorney for the state never answered the question.
The panel of judges even refused to let the appellant, Heidi Fuller, submit the decision of the New Jersey Supreme Court from February 16, which did enforce an almost identical provision of New Jersey’s Constitution. They said she notified the panel too late about that decision.
CALIFORNIA CONSTITUTION
ARTICLE 4 LEGISLATIVE
SEC. 5. (a) Each house shall judge the qualifications and elections of its Members and, by rollcall vote entered in the journal, two thirds of the membership concurring, may expel a Member.
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First part due to history reasons — the EVIL Brit monarchs trying to control who got elected to the Brit House of Commons.
As to qualifications — again.
Each State is a sovereign NATION-State.
What part of the U.S.A. Const. is allegedly violated by a State Const. candidate qualification ???
When Heidi Fuller challenged her opponent’s qualfications, that opponent was a candidate, not a member of the legislature. The part of the California Constitution you quote refers to challenges to people who have already been elected.
How many candidate standing cases regarding pre-election candidate qualifications of other candidates ???
i.e. How many election law bureaucrats (who have *standing*) are supposed to check candidate qualifications ???
See the ongoing 2012 Obama candidate mess in a zillion cases.
#2 There was a previous case where there was a question of whether a candidate for the legislature had lived in the State for a sufficient length of time.
The California Supreme Court said that only the legislature could make that determination (1) vacated a lower court order; and (2) told the lower court they should not have even taken the case.
The guidance from the SOS at that time was (1) it is a matter for the legislature, therefore the SOS could not enforce the restriction; and (2) even if they could, the durational requirement was unconstitutional.
It is a simple separation of powers issue. You don’t want the executive or judicial branches determining who is a legislator. Even if the legislature wanted to transfer authority to the Secretary of State, they do not have the authority to do so. “shall judge the qualifications and elections” gives sole authority which is not transferable.
Fuller convinced the lower court that by ordering the SOS to publish the voter’s pamphlet that the legislature was making her responsible for ensuring that the information was accurate, that each candidate qualified to be elected (I wonder if Orly Taitz was paying attention). But they also ruled that the SOS was wrong about the unconstitutionality of the durational residence requirement (incidentally, Jerry Brown, the much younger, was the SOS).
The legislature has intervened in the case, so it little wonder that the appeals court would pay attention to what the Supreme Court had previously ruled.
**Only** the legislature can determine if a legislator-elect was qualified and had been lawfully elected. Remember that when the constitution was written, all candidates were write-ins, and the people would be free to vote for whomever they pleased. After the votes were counted, the apparent winner would be given a piece of paper which he could take to Sacramento, where the legislature would determine if that person were qualified and the election had been properly conducted.
Just because there have been procedural changes such as government-printed ballots and primaries, does not mean that there is now a pre-qualification process. A county clerk refusing to put a legislative candidate on the ballot (because she believes him not to be qualified) is no different than if the county clerk refused to count the votes for the candidate.
#4, before 1973, California elections officials did enforce the state residency requirement. They only stopped because they thought the California Constitution violates the U.S. Constitution. But the US Supreme Court has made it very clear that the California Constitution does not violate the U.S. Constitution, not only with Clements v Fashing (which said there is no fundamental right to be a candidate) but the summary affirmances from New Hampshire.
# 2 — A candidate appears/claims to be elected.
How is a candidate *injured* by having an UN-qualified candidate on the ballots ???
One can NOT know where the votes for the UN-qualified candidate might go to.
i.e. simple case
Candidates A, B and write-in C.
B is claimed to be UN-qualified.
Any votes for B might go to A, C or nobody — assuming secret votes.
Even if there is no write-ins allowed, then the votes might go to A or nobody.
#5 In 1951, the California Supreme Court ruled that the sole authority to judge the election and qualifications of members of the legislature rested with the chamber of the legislature to which the candidate had been elected.
You may be confusing the cases regarding statutory durational residency requirement for municipal officers, with the constitutional durational residency requirement for legislature, which were made in the early 1970s.
The California Supreme Court itself in 1975 in Thomas v Mellon recognized the distinction.
#7, we aren’t talking about “members of the legislature” in the Fuller case.
Then there is the whole subject of the OLD Quo Warranto stuff (going back to the 1200s) — by what right do you hold your public office [AFTER taking office] — for offices OTHER than in the gerrymander Congress or a State legislature.
In most/all areas Quo Warranto stuff is now a civil action — with possible special procedural points.
Again – is it the job of the election law bureaucrat folks putting a person’s name on ballots to determine if the person is qualified to have his/her name on the ballots ???
— via a court action ??? I, Mary Bureaucrat, claim that John Doe is not qualified to be elected.
— or via executive action denying ballot access — with the person doing a court action claiming ballot access ??? Mary Bureaucrat has claimed that I, John Doe, am not qualified to be elected and she has not put my name on the ballots.
#8 In Re Mcgee 36 Cal.2d 592
http://scocal.stanford.edu/opinion/re-mcgee-26358
Was precisely the same issue. You’re not still trying to overthrow Smith v Allwright are you?
Or how about:
Allen v. Lelande, 164 Cal. 56
J. Henry Baetz has been nominated as a Republican candidate for the assembly in the sixty-fifth assembly district. The secretary of state has certified to the county clerk of Los Angeles County that he is the Republican nominee for member of the assembly from said district. It, is alleged that he is ineligible for that office by reason of nonresidence. The county clerk has been requested to strike his name from the official ballot as such candidate, and has refused. We are asked to issue a writ of mandate compelling the clerk to comply with that demand. The constitution of the state (art. IV, sec. 7) reads as follows: “Each house shall choose its officers, and judge of the qualifications, elections, and returns of its members.” By that article the assembly is made the exclusive judge of the qualifications of its members. The law providing for an official ballot cannot be held to have changed the intent of the people in adopting that constitutional provision that the assembly should be the sole and exclusive judge of the eligibility of those whose election is properly certified. For this court to undertake to try the question of eligibility and to deprive the candidate of any chance to be elected, would simply be to usurp the jurisdiction of the assembly.
The petition is denied.
#10, there has never been a California case that applies the state constitutional provision (about the legislature judging the qualifications of its members) to candidates who haven’t even won a primary yet. Never. And you can be sure that if someone tried to get on the ballot for the legislature and didn’t have the required 40 signatures, the Secretary of State would keep him off the primary ballot, and there would be no one saying, “Whether he has 40 valid signatures is for the legislature to decide.”
Ballot access procedures (i.e. nominating petitions, filing fees, conventions, caucuses, primaries, etc.) are quite different from officer qualifications.
How many times has a house of the gerrymander Congress or a gerrymander State legislature ruled that a candidate was NOT qualified or otherwise NOT elected — such that there was a vacancy declared – with or without a following special election ????
Another point – do any States make it a crime (i.e. esp. a FELONY) for a person to be a candidate for a public office when that person is NOT qualified to hold the public office ???
— i.e. wasting public time and money on printing ballots, counting votes, etc. — with possible later special elections if the UN-qualified person is allegedly elected.
#11 Maybe most lawyers, particularly those who seek to become elected to the legislature themselves respect the separation of powers.
Since Elections Code 8700 only applies to candidates who have not won a primary, is it a time, place, manner regulations; and not a qualification?
You want to overturn US Term Limits and Smith v Allwright?