Brown v. Chote

LOCATION: McDonnell Douglas Corporation Factory

DOCKET NO.: 71-1583
DECIDED BY: Burger Court (1972-1975)

CITATION: 411 US 452 (1973)
ARGUED: Feb 22, 1973
DECIDED: May 07, 1973

Henry G. Ullerich - for appellant
Philip Elman - for appellee
Phillip Elman -

Facts of the case


Media for Brown v. Chote

Audio Transcription for Oral Argument - February 22, 1973 in Brown v. Chote

Warren E. Burger:

-- in 71-1583, Brown against Chote.

Mr. Ullerich, you may proceed whenever you are ready.

Henry G. Ullerich:

Mr. Chief Justice and may it please the Court.

The constitutionality of the California candidate filing fee system is the subject of this direct appeal on the judgment of a three-judge Federal District Court, granting a preliminary injunction against the California Secretary of State and the various county clerks in the State of California.

The injunction in affect mandated the California Secretary of State to accept declarations of candidacy in the last primary election without payment of the statutory candidate filing fee of 1% of the annual salary of the office sought.

At least as to those members of the class of the plaintiff below who were willing to file an affidavit with the county clerk that they had insufficient money or property to personally pay the candidate filing fee.

The issues presented by this appeal from the judgment granting a preliminary injunction is, does California Elections Code, Section 6552, which imposes the statutory filing fee violate the Equal Protection Clause of the United States Constitution.

Subsidiary issue is what is the appropriate standard of review when this statute is challenged in the judicial proceeding.

An additional issue is whether this case is controlled by the decision last term in Bullock versus Carter, 405 U.S. 134 and the final issue is if a less stringent standard of review is applicable herein, other than the standard imposed in the Bullock case, does the California candidate filing fee have a rational basis which would be sustained under the traditional rational basis test under the Equal Protection Clause?

Factually, California requires a party primary election in even numbered years preceding the general election.

For the name of a candidate to appear on the primary ballot in June of even numbered years, the candidate must obtain declaration of candidacy forms from the county clerk and at that time, he is required to pay a candidate filing fee.

There is no method for a candidate’s name to appear on the primary ballot without paying the candidate filing fee.

Basically for state or federal office, that fee is either 1% or 2% of the annual salary of the office.

Harry A. Blackmun:

In that respect, why is it the percentage, why isn’t a flat fee?

Isn’t it cost the state as much to process something for the dog catchers, it does for United State Senate?

Henry G. Ullerich:

The answer to that I believe, Your Honor, is that the -- a particular flat fee over the years with the inflation that we have would tend to be perhaps minimal at one period of time and then become rather excessive in other periods of inflation or depression periods.

I think the annual salary, I mean, the basis the annual salary is pegged in more to the actual benefits at the end of a rainbow, if you will, and as the salary changes, the fee also changes somewhat.

I think also, there is a consideration of rather than being pegged at a very minimal fee of say, as was suggested in one case of $10.00 or $15.00 to handle the actual cost of handling the papers would not achieve the state objective that these candidate filing fees are designed achieve, that is to avoid overcrowding of the ballots fragmentation of votes or discouraging frivolous candidates.

The fee must be something more than a merely nominal fee to accomplish that purpose.

Harry A. Blackmun:

But you are charging candidate A more than candidate B, if they are not running for the same office?

Henry G. Ullerich:

That is true, Your Honor.

As you’ll see from our statutes that are reported in our brief that these would vary from no fee at all, if there is really no compensation for the office to 1% or 2%, and the distinction for the 1% or 2% that seems to be apparent in the statute is that let's say statewide office, for instance the United State Senate or a Governor or Lieutenant Governor and so forth, there would be some activity on the part of 58 county clerks or county registrars or voters in regard to that particular candidate whereas if you’re running from a particular district such a member of Congress or State assembly or State Senator, there is usually only one particular county or a limited district that would be involved in processing those papers.

Potter Stewart:

But then also as I understand your argument, you first quote the language in Bullock, recognizing that the state has a legitimate interest in regulating the number of candidates on the ballot and preventing clogging of its election machinery by frivolous candidates.

And your argument is that a $10.00 or $15.00 fee wouldn’t keep a candidate for Senator or Governor for a wholly frivolous, a non-serious one off the ballot.

You need a higher figure to accomplish the state purpose whereas a $10.00 or $15.00 fee probably would keep off frivolous candidate for dog catcher, isn’t right?

Henry G. Ullerich:

That would be true, Your Honor.

I think we have -- we are not riding on our clean slate anymore following that language in Bullock.

As we pointed out in our brief down in New Mexico, a Federal District Court invalidated the 6% of the annual salary filing fee for candidates for the United State Senate.

Following that Federal District Court ruling, there were 40 candidates who filed for the United State Senate and appeared on that ballot.

Only four of which paid the candidate filing fee.