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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Court of Appeal Case No.: _c_o_73_7_6_3______

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I.

There are no interested entities or parties to list in this Certificate per California Rules of Court, Rule 8.208 Interested entities or parties are listed below:
Nature of Interest

Name of Interested Entity or Person

2.
3.

4.

5.
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7. 8.

9.

Signature of Attorney/Party Submitting Form Nathaniel Oleson Printed Name UNITED STATES JUSTICE FOUNDATJON 932 ''D" Street, Suite 3 Ramona, California 92065 Address Party Represented: Dummett; Houston; LaKamp; Johnson; and Ott State Bar No.: _2_76_6_95 _ _ __

TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................. iii I. INTRODUCTION ...................................................................... 1 A. B. C. D. II. Nature of Action............................................................... 1 Order Appealed ................................................................ 2 Relief Requested .............................................................. 2 Statement of Apealability ................................................ 3

STATEMENT OF THE CASE ................................................ 3 A. B. Procedural History ........................................................... 3 Statement of Facts ............................................................ 5

III. IV.

STANDARD OF REVIEW ....................................................... 9 ARGUMENT ........................................................................... 10 A. Appellants did state facts sufficient to constitute a cause of action for issuance of a writ of mandate under CCP 1085 .......................................................... 10 The Secretary of State's reliance on California Elections Code 6901 is misplaced because 6901 unconstitutionally prevents the Secretary of State from fulfilling her duties as the Chief Elections Officer of California ...................................................... 13

B.

C.

Keyes v. Bowen Does Not Apply To This Case Since It Did Not Resolve Any Constitutional Challenge to 6901 And Incorrectly Held That the Secretary of State Has No Duty To Verify the Constitutional Eligibility of Presidential Candidates ............................ 20

V.

CONCLUSION ........................................................................ 25

CERTIFICATE OF COMPLIANCE ................................................. 26 DECLARATION OF SERVICE

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TABLE OF AUTHORITIES FEDERAL CONSTITUTION United States Constitution Article II ........................................ 8, 14, 21 United States Constitution Article II, 1 ............................... 19, 23, 24 United States Constitution Article II, 1, Clause 5 ............................ 6 United States Constitution Article VI, Clause 2................................. 21 FEDERAL CASES Cleaver v. Jordan, 393 U.S. 810, 89 S.Ct. 43 (1968) ........................ 18 Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008) ................... 13 STATE CONSTITUTION California Constitution, Article I, 3 ................................................ 23 California Constitution, Article III, 1 ....................................... 11, 21 STATE STATUTES California Code of Civil Procedure 904.1(a)(1) ............................... 3 California Code of Civil Procedure 1085 ............................. 2, 10, 11 California Election Code 10 ........................................................... 14 California Election Code 6901 ................................................ passim California Election Code 13314(a)(1) ............................................ 12 California Government Code 12172 .............................................. 14 California Government Code 12172.5 ........................................... 14 iii

STATE CASES Aubry v. Tri-City Hospital Dist., 2 Cal.4th 962 (1992)................................................................. 10 Banks v. Housing Authority of City and County of San Francisco, 120 Cal.App.2d 1, 260 P.2d 668 (App. 1 Dist. 1953), cert. denied 74 S.Ct. 784, 347 U.S. 974 ................................... 12 City of Dinuba v. County of Tulare, 41 Cal.4th 859 (2007) ............... 10 Corbell v. Superior Court, 125 Cal.Rptr.2d 46 (App. 1 Dist. 2002), review denied, 101 Cal.App.4th 649 ........................................ 12 Farm Raised Salmon Cases, 42 Cal.4th 1077 (2008) .......................... 9 Keyes v. Bowen, 189 Cal.App.4th 647 (2010).................. 21, 22, 24, 25 Pollack v. Lytle, 120 Cal. App. 3d 931 (1981) disapproved on other grounds in Beck v. Wecht, 28 Cal. 4th 289 (2002)................................................................ 9 Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26 ......... 9 San Joaquin County Dept. Of Child Support Services v. Winn 163 Cal. App.4th 296, 77 Cal.Rptr.3d 470 (App. 3 Dist. 2008) ................................................................... 3

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I. INTRODUCTION A. Nature of Action This opening brief is filed on behalf of Appellant JOHN ALBERT DUMMETT, JR. (DUMMETT), GIL HOUSTON (HOUSTON), LARRY LAKAMP (LAKAMP), MILO L. JOHNSON (JOHNSON) and JOE OTT (OTT) (collectively APPELLANTS). This appeal is brought as a result of the lower Courts judgment of dismissal of the PETITION FOR WRIT OF MANDATE COMPELLING RESPONDENTS TO REQUIRE PROOF OF ELIGIBILITY PRIOR TO APPROVING PRESIDENTIAL CANDIDATE NAMES FOR BALLOT PLACEMENT, AND TO DECLARE UNCONSTITUTIONAL CALIFORNIA ELECTION CODE SECTION 6901 (WRIT), filed by Writ Petitioners DUMMETT, HUSTON, LAKAMP, JOHNSON, OTT, MARKHAM ROBINSON,1 and THE CONSTITUTION PARTY,2 which resulted from the lower Courts erroneous sustaining of the demurrer filed therein by Respondent CALIFORNIA

1 2

Markham Robinson is not a party to this appeal. The Constitution Party is not a party to this appeal. 1

SECRETARY OF STATE DEBRA BOWEN (BOWEN) in her official capacity. The Courts sustaining of BOWENS demurrers was in error because, contrary to the lower Courts ruling, APPELLANTS did state facts sufficient to constitute a cause of action for issuance of a writ of mandate under California Code of Civil Procedure (CCP) 1085, did state facts sufficient to show California Election Code (EC) 6901 to be unconstitutional, as well as to support other ancillary relief. B. Order Appealed APPELLANTS appeal the lower Courts Entry of Judgment of Dismissal, entered on April 19, 2013 [Clerks Transcript (CT) 164], after it sustained BOWENS demurrer on March 22, 2013 (CT 168). C. Relief Requested APPELLANTS respectfully request that this Court reverse the lower Courts Judgment of Dismissal following its order sustaining BOWENS demurrer and remand the case to the lower Court with instructions for the lower Court to order BOWEN to answer WRIT or, in the alternative, with instructions for the lower Court to allow APPELLANTS leave to amend.

D.

Statement of Appealability CCP section 904.1(a)(1), provides that an appeal may be taken

from a judgment other than an interlocutory judgment. Here, APPELLANTS appeal the lower Courts March 22, 2013, Judgment of Dismissal, after sustaining BOWENS demurrer (CT 168). Because the dismissal leaves no further matters for the lower Court to decide regarding WRIT, the judgment is an appealable final judgment. A judgment is final for purposes of appeal when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined. San Joaquin County Dept. of Child Support Services v. Winn (App. 3 Dist. 2008) 163 Cal.App.4th 296, 77 Cal.Rptr.3d 470. This matter was timely appealed on April 29, 2013 (CT 174). II. STATEMENT OF THE CASE A. Procedural History This appeal is brought as a result of the lower Courts judgment of dismissal of APPELLANTS WRIT following the lower Courts sustaining of BOWENS demurrer.

On February 23, 2012, APPELLANTS filed a PETITION FOR WRIT OF MANDATE COMPELLING RESPONDENTS TO REQUIRE PROOF OF ELIGIBILITY PRIOR TO APPROVING PRESIDENTIAL CANDIDATE NAMES FOR BALLOT PLACEMENT, AND TO DECLARE UNCONSTITUTIONAL CALIFORNIA ELECTION CODE SECTION 6901, naming BOWEN as respondent. On March 26, 2012, a Notice of Related Cases was filed by the respondents in the Sacramento Superior Court case captioned Noonan, et al., v. Bowen, et al., Case No. 34-2012-80001048. On April 9, 2012, a RULING ON NOTICE OF RELATED CASES AND ORDER TRANSFERRING CASE was issued by the lower Court, and the case was reassigned to Honorable Michael P. Kenny. On May 4, 2012, respondent BOWEN filed a demurrer to WRIT, and a hearing on the demurrers was scheduled for October 26, 2012. (CT 35). On May 21, 2012, APPELLANTS filed PETITIONERS EX PARTE MOTION TO VACATE ORDER. (CT 56). The grounds for the motion were that APPELLANTS received no notice of the Notice of Related Cases until Friday, April 6, 2012, when BOWEN served on

APPELLANTS her support for the Notice of Related Cases, which afforded APPELLANTS no opportunity to respond. (CT 57). The hearing was held on the ex-parte motion on May 25, 2012. On May 26, 2012, the lower Court vacated its prior Ruling on Notice of Related Cases and Order Transferring Cases filed on April 9, 2012. (CT 83). On June 15, 2012, the lower Court issued a new RULING ON NOTICE OF RELATED CASES AND ORDER TRANSFERRING CASE, and held that the cases were related and ordered the underlying case again be reassigned to Honorable Michael P. Kenny. (CT 89). The hearing on BOWENS demurrer took place on October 26, 2012, and, after oral arguments, the lower Court affirmed its tentative ruling, sustaining BOWENS demurrer without leave to amend. (CT 138). On March 29, 2013, the lower Court entered its Order Sustaining Demurrers to WRIT without leave to amend, and it entered a judgment dismissing WRIT in its entirety. (CT 149) This appeal followed. B. Statement of Facts Appellant DUMMETT, a citizen of the State of California, was a write-in candidate for President of the United States in the 2012

California Republican primary election (Federal Election Commission registration # P20002499). (CT 02). As a Presidential candidate, DUMMETT has an interest in having a lawful and fair Presidential election contest. (CT 02). This interest could be analogized to the interest of a towns Babe Ruth baseball team, where one of the children trying out for that team is ineligible because he lives in a different town. There, all of the children who actually live in the town are harmed if the rules are violated, since they are being forced to compete against children who do not live in that town and not eligible to be on that team. If BOWEN was not required to verify the eligibility of all candidates who apply to be named on the California Presidential primary ballot under U.S. Constitution Article II, Section 1, Clause 5, and candidates enter this race without having met said constitutional eligibility requirements, then DUMMETT was compelled to campaign against ineligible candidates on the California Republican Presidential primary ballot, and on the California Presidential general election ballot, and he suffered irreparable harm due to having been denied a fair competition in the Presidential primary, and in the Presidential general election. (CT 03).

The other Appellants are natural persons who were (i) all residents of California, (ii) all registered and eligible to vote for President of the United States in the 2012 election cycle, and (iii) all eligible California electors. (CT 03-04). As eligible California electors, APPELLANTS have an interest in all Presidential candidates being verified as having met the minimum requirements of eligibility prior to the placement of the candidates names on the ballot for the Primary Election. (CT 03-04). BOWEN is the California Secretary of State, and, by virtue of her position, is the Chief Elections Officer for the State of California. She was responsible for enforcing California election law, including verifying eligibility for office, and printing the ballots for the 2012 primary election. (CT 04). APPELLANTS filed a WRIT seeking a determination by the lower Court whether BOWEN had verified that all candidates for the 2012 California Presidential primary election had provided proof that they possessed the minimum qualifications for the Office of President of the United States, and, if not, APPELLANTS requested that the lower Court enjoin BOWEN from placing the names of such unverified candidates on the California Presidential primary election

ballot, unless and until such time as BOWEN could show that each of said candidates had so verified their eligibility for the office. (CT 02). APPELLANTS sought this relief because an unprecedented and looming constitutional crisis would occur if BOWEN did not require that all Presidential candidates provide proof that they meet the U.S. Constitutions Article 2 eligibility requirement for the office of President prior to candidate names being placed on the ballot, since the voters would reasonably rely on the assumption that all names on the ballot had been verified as eligible for the office, and that the only remaining task for the voters would be to select a candidate for whom to vote. (CT 02). Finally, in their WRIT, APPELLANTS requested that the lower Court find California Elections Code 6901, which governs the duties of the Secretary of State in relation to the ballot for the General Election, to be unconstitutional and unenforceable. (CT 11-12). BOWEN filed a demurrer to WRIT arguing that WRIT failed to state facts sufficient to constitute a cause of action that could support the relief requested in WRIT. The lower Court agreed with BOWEN, subsequently sustained the demurrer without leave to amend, and dismissed the case in its entirety.

III. STANDARD OF REVIEW On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, the reviewing Court applies an independent review standard, giving the Petition a reasonable interpretation, and treating the demurrer as admitting all material facts properly pleaded. Farm Raised Salmon Cases, 42 Cal. 4th 1077, 1089 n. 10 (2008). A demurrer tests only the legal sufficiency of the pleadings; it does not test the truth of the Petitions allegations or their accuracy, but admits the truth of all material factual allegations, and the Petitioners ability to prove them. Quelimane Co. v. Stewart Title Guar. Co., 19 Cal. 4th 26, 47 (1998). The issue on this appeal, then, is whether APPELLANTS stated, or could state, a cause of action under any possible legal theory. For such purposes, all material facts pleaded in the complaint, and those that arise by reasonable implication, must be considered true. Pollack v. Lytle, 120 Cal. App. 3d 931, 936, fn. 2 (1981) (disapproved on other grounds in Beck v. Wecht, 28 Cal. 4th 289, 298 (2002)).

The judgment must be reversed if the Petitioners stated a cause of action under any possible legal theory, regardless of the label attached to the cause of action. Aubry v. Tri-City Hospital Dist., 2 Cal. 4th 962, 966-967 (1992). It is also reversible error to sustain a Demurrer without leave to amend, if the Petitioners show, either in the trial Court or on appeal, that there is a reasonable possibility that any defect identified by the Respondent can be cured by an amendment. City of Dinuba v. County of Tulare, 41 Cal. 4th 859, 865 (2007). IV. ARGUMENT A. Appellants did state facts sufficient to constitute a cause of action for issuance of a writ of mandate under CCP 1085 In its order sustaining BOWENS demurrers, the lower Court stated that WRIT fails to state facts sufficient to constitute a cause of action. The Courts ruling was in error. Under CCP 1085, [a] writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from

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which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person. The California Secretary of State is responsible for enforcing California Election law, including Federal Election law incorporated via the California Constitution. (California Constitution, Article III, 1.) BOWEN is also responsible for placing names of presidential candidates on the ballot. California Secretaries of State have traditionally removed from the ballot, or refused to place on the ballot, names of presidential candidates who did not meet the requirements for eligibility for the office of President of the United States. Adhering to her offices traditional duty, BOWEN refused to place a noneligible third party candidate on the ballot for the 2012 California primary election. BOWEN did not, however, check the eligibility of presidential candidates nominated by national political parties pursuant to California Election Code Section 6901, which prevents BOWEN from exercising her duty to ensure compliance with California and Federal election laws. As the result of BOWENs action, names were placed on the California Ballot without verification as to their eligibility for the office, BOWENs duty was circumvented and WRIT Petitioners, among others, were injured.

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Although courts often deny relief for a writ of mandamus, a writ of mandate should not be denied when the issues presented are of great public importance and must be resolved promptly. Corbell v. Superior Court, 125 Cal.Rptr.2d 46, 101 (App. 1 Dist. 2002), review denied, 101 Cal.App.4th 649. Furthermore, a court is not bound by precedent in determining facts and circumstances compelling the issuance of a writ of mandamus, and a writ will issue against a city or other public body or officer wherever law and justice so require. Banks v. Housing Authority of City and County of San Francisco, 120 Cal.App.2d 1, 260 P.2d 668 (App. 1 Dist. 1953), cert. denied, 74 S.Ct. 784, 347 U.S. 974. As argued before the lower Court, California State law provides that any voter in California may seek a writ of mandate for errors in the placing of a name on the ballot. The Elections Code states that [a]n elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of a name on, or in the printing of, a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect of duty has occurred, or is about to occur. (EC 13314(a)(1)).

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Additionally, a U.S. District Court has held, a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidates or partys own chances of prevailing in the election. Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008). As such, DUMMETT, as a candidate for President in the 2012 election cycle, and as a California voter who was concerned that one or more unverified candidates for President of the United States would be included on the California primary ballot, had a legitimate interest in ensuring that all candidates for the office of President are eligible to run for and serve as President. Because of the foregoing, DUMMETT had both standing and legitimate grounds to Petition the lower Court for a Writ of Mandate. Therefore, BOWENS demurrer should have been overruled. B. The Secretary of State's reliance on California Elections Code 6901 is misplaced because 6901 unconstitutionally prevents the Secretary of State from fulfilling her duties as the Chief Elections Officer of California In its order sustaining BOWENS demurrer, the lower Court relied upon California Elections Code 6901 to excuse the Secretary of State from any legal duty to determine the eligibility of candidates

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for President of the United States before their names may be placed on the ballot. (CT 138). Section 6901 states the following: Whenever a political party, in accordance with Section 7100, 7300, 7578, or 7843, submits to the Secretary of State its certified list of nominees for electors of President and Vice President of the United States, the Secretary of State shall notify each candidate for elector of his or her nomination by the party. The Secretary of State shall cause the names of the candidates for President and Vice President of the several political parties to be placed upon the ballot for the ensuing general election. [EC Code 6901.] The lower Courts reliance on 6901 is misplaced because it is wholly inconsistent with Article II of the United States Constitution, as well as with the duties and requirements of the Secretary of State provided by the California Government Code (GC), including the duty to determine candidates eligibility for holding various offices. Pursuant to California Election Code 10, BOWEN is the Chief Elections Officer of the State of California, and in that position, she has the powers and duties specified in section 12172.5 of the California Government Code. The Secretary of States website (http://www.sos.ca.gov/admin/about-the-agency.htm) itemizes the statutory duties of the office of the Secretary of State, including duties as the Chief Elections Officer for California, to ensure that Californias election laws are followed (GC 12172), to investigate

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election fraud (id.), and to advise candidates and local elections officials on the qualifications and requirements for running for office (id.). In order to fulfill the duty to advise candidates, the Secretary of State provides to the public several documents containing information concerning the qualifications and requirements for each elected position. Documents that list the qualifications and requirements for each elected position are provided for all state and Federal offices, including the offices of Governor and Lieutenant Governor; Secretary of State, Controller, and Treasurer; Attorney General; Insurance Commissioner; Member of the State Board of Equalization; State Senator and Member of the Assembly; United States Senator; United States Representative in Congress; and President of the United States. The lower Courts reliance on California Elections Code 6901 results in a troubling situation because 6901 requires the Secretary of State to verify that every candidate for the above-listed positions is eligible for the sought position, except for those candidates that have been selected for the office of President and Vice President of the United States by a national political party. Such national party-

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selected candidates are not required to present to the Secretary of State any documentation proving their eligibility. The Court's reliance on California Elections Code 6901 produces absurd results. For example, if the Republican Party were to nominate former Governor Arnold Schwarzenegger for President, California Elections Code 6901 would require the Secretary of State to place him on the ballot for the election, despite the fact that Arnold Schwarzenegger is well known as not being a natural born citizen of the United States. Further, if the Libertarian Party were to nominate Ayn Rand as candidate for President, the Secretary of State would have no option other than to put her on the ballot, even though Ms. Rand died in 1982. Again, if the Democratic Party were to nominate David Cameron, the Prime Minister of the United Kingdom of Great Britain and Northern Ireland, then the Secretary of State would be forced to put Mr. Brown on the ballot, despite the fact that he is a citizen of Great Britain. The foregoing examples illustrate the inconsistencies between California Elections Code 6901 and the eligibility requirements for President established by the United States Constitution. Each individual in the examples referenced above is ineligible to hold office

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as President of the United States and, therefore, must by law be excluded from the ballot. Yet, under California Elections Code 6901, the Secretary of State has no discretion or authority to exclude those obviously ineligible candidates from the ballot. In fact, California Elections Code 6901 directs the Secretary of State to disregard the U.S. Constitution as well as her duties as Chief Elections Official in the State of California with regard to the most important elected office in the United States. Without oversight and meaningful remedial action from the Secretary of State, absurd results are a real possibility. Political parties are not government agencies, and should not be trusted with ensuring that federal and state constitutions and laws are complied with, as their primary mission is to elect their candidates to office which could diminish their enthusiasm to see a particular law be followed. Perhaps because 6901 leads to absurd and unconstitutional results, it has been selectively disregarded in the past. Indeed, it would be fair to say it has been discriminately and arbitrarily applied. Throughout Californias past, Californias Secretaries of State have exercised their due diligence by reviewing necessary background documents, verifying that the various candidates that were submitted

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by the respective political parties as eligible for the ballot were, indeed, eligible. For example, in 1968, the Peace and Freedom Party certified Eldridge Cleaver as a qualified candidate for President of the United States. The California Secretary of State at the time, Frank Jordan, found that, according to Mr. Cleavers birth certificate, Mr. Cleaver would be only 34 years old at the time of the general election, which was one year shy of the Constitutional requirement of a candidate being at least 35 years of age in order to be on the ballot as a candidate for President. Using his administrative powers, Mr. Jordan removed Mr. Cleaver from the ballot despite the plain language of 6901. Mr. Cleaver challenged Mr. Jordans decision to the Supreme Court of the State of California, and later to the Supreme Court of the United States, which affirmed the actions of the Secretary of State by denying review of the decision dismissing Mr. Cleavers challenge to his removal from the ballot. Cleaver v. Jordan, 393 U.S. 810, 89 S.Ct. 43 (1968). Similarly, in 1984, the Peace and Freedom Party certified Larry Holmes as an eligible candidate in the Presidential primary. When Californias Secretary of State at the time, Daniel M. Burns, checked

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Mr. Holmes' eligibility for office, it was found that Mr. Holmes was not eligible, and his name was removed from the ballot, despite the plain language of 6901. The removal of ineligible candidates is not a relic of history. Respondent BOWEN has herself recently exercised her power to remove ineligible candidates from the ballot. As recently as 2012, Ms. Peta Lindsay was certified by the Peace and Freedom Party to be its Presidential candidate on the ballot for the 2012 California Primary Election. BOWEN, however, rejected the Peace and Freedom Partys candidate and refused to place her name on the ballot because she was only 27 years old, which did not satisfy the U.S. Constitutions Article II, Section 1 requirement that candidates for President of the United States be at least 35 years of age. Despite the fact that Californias Secretaries of State, including BOWEN herself, have historically asserted the discretionary right to fulfill their duties under the U.S. Constitution, the Government Code, and the Elections Code, by requiring that candidates meet the various eligibility requirements before appearing on the ballot, and thereby disregard 6901, the lower Courts ruling in this case implies that Secretaries of State are free to disregard the statute when they choose,

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or enforce the statute when they choose to. Such unfettered discretion is illegal and unconstitutional in that it gives the Secretary of State the arbitrary power to decide whether to require proof of a particular candidates eligibility before placing the candidate on the ballot. Thus, as California Elections Code 6901 conflicts with the requirements of the U.S. Constitution and is inconsistent with the duties of the Secretary of State provided by the California Elections Code and the California Government Code, California Elections Code 6901 is unconstitutional and unenforceable. Furthermore, the pattern of inconsistent application is arbitrary and capricious, giving the Secretary of State the power to discriminate based on personal preferences as to against whom to require proof of eligibility. Clearly, the lower Court erred in ignoring 6901s unconstitutionality and in sustaining BOWENS demurrer. C. Keyes v. Bowen Does Not Apply To This Case Since It Did Not Resolve Any Constitutional Challenge to 6901 And Incorrectly Held That the Secretary of State Has No Duty To Verify the Constitutional Eligibility of Presidential Candidates. APPELLANTS argued in the WRIT that the language of California Elections Code 6901, compelling the Secretary of State to place any candidate nominated by a national political party on the

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ballot without verifying that the candidate is eligible for the office, is in direct conflict with the requirements for Presidential eligibility in Article II of the United States Constitution. (CT 10). This is no trivial matter, as the California Constitution provides: The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land. (California Constitution, Article III, 1). Since the United States Constitution is the supreme law of the land, under both the United States and the California Constitutions (U.S. Constitution, Article VI, Clause 2; California Constitution, Article III, 1), any statute which conflicts with the United States Constitution is therefore void and unenforceable. The Court in the case of Keyes v. Bowen, 189 Cal.App.4th 647 (2010) cited California Elections Code 6901 as an example of a nondiscretionary duty of the California Secretary of State to place names of candidates nominated by national political parties on the ballot for the California General Election. Keyes v. Bowen, 189 Cal.App.4th 647, 659 (2010). The Court ultimately held that the California Secretary of State owed no duty to verify eligibility of presidential candidates. Keyes v. Bowen, 189 Cal.App.4th 647, 661 (2010).

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Keyes v. Bowen does not apply here. Petitioners in raised this issue of whether California Elections Code 6901 was unconstitutional. Keyes v. Bowen, 189 Cal.App.4th 647, 659 (2010). However, the Court refused to consider whether the statute was unconstitutional, holding: The contention is forfeited because it was raised for the first time in their reply brief without a showing of good cause. Keyes v. Bowen, 189 Cal.App.4th 647, 659 (2010). Accordingly, Keyes v. Bowen did not rule against the type of constitutional challenge brought here. As to the narrow ruling of the court in Keyes v. Bowen, it wholly disregarded the significance of prior inconsistent application of the statute. As discussed in section B, supra, the California Secretaries of State have historically exercised their due diligence by reviewing necessary background documents, verifying that the candidates that were submitted by the respective political parties as eligible for the ballot were, indeed, eligible. Again, as discussed above, the removal of ineligible candidates is not a relic of historical actions by California Secretaries of State, as BOWEN, too, exercises this power to remove ineligible candidates from the ballot. It bears mention that since BOWEN has demonstrated by her actions that she

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can, and does, remove ineligible presidential candidates from the ballot, there is no question that she looks to the Article 2, 1 minimum requirements for eligibility as an absolute guideline as to whom she should permit to be named on the ballot. Given this enforcement of Article 2, 1 by the California Secretaries of State, both now and in the past, it is inconsistent and unconstitutional under California Constitution Article 1, 3 for there to be a two-tiered application of the law as applied to Presidential candidates. No court could sanction a system whereby BOWEN exercises her statutory duty to permit some candidates to be exempt from proving their eligibility for office to solely by showing they have been approved by a national political party as here. A rule that can be applied or waived at will is no rule of law. It is the very definition of arbitrary government. It is the rule of man, not of law. BOWEN should be required to make such verification of eligibility for all presidential candidates, and not just verify the eligibility of candidates from smaller political parties. As discussed above, BOWEN is required by California statute to oversee California elections, and to enforce California election law. This requirement cannot be satisfied by attempting to transfer the duty

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to enforce election law to any other entity, such as to political parties, or even to the California electorate. Petitioners HOUSTON, LAKAMP, JOHNSON, and OTT, as California electors, neither have the responsibility, nor are they in a position to be able, to require Presidential candidates to provide sufficient proof that said candidates are eligible for the office. The only responsibility for a California elector is to vote for the candidate that the elector believes to be best able to govern the country. The elector acts in the belief that any Presidential candidate approved by BOWEN for name placement on the primary ballot has been properly verified by BOWEN, as possessing the minimum requirements of eligibility for the office. If BOWEN is not required to verify the eligibility of Presidential candidates, then that responsibility will improperly be transferred to the electorate, which cannot, despite the possibility of a majority vote for a particular candidate, overcome the Article II, Section 1, requirements. For the reasons stated above, Keyes v. Bowen did not resolve the constitutional challenge brought here. To the extent it is relevant, it was wrongly decided and should be reversed, and the Secretary of

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State should be required to verify the eligibility of all candidates for the offices that they seek, without any exception.

v.
CONCLUSION
Based on the foregoing, APPELLANTS respectfully request that this Court reverse the lower Court's Judgment of Dismissal after Sustaining BOWEN'S Demurrer and remand the case to the lower Court with instructions for the lower Court to order BOWEN to answer WRIT or, in the alternative, with instructions for the lower Court to provide APPELLANTS leave to amend.

DATED: December 18, 2013

Respectfully submitted,

NATHANIEL J. OLESON Attorney for Appellants

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CERTIFICATE OF COMPLIANCE CRC 8.204(c)(l) I hereby certify that this Opening Brief consists of 4, 784 words per California Rules of Court Rule 8.204(c)(l). The number of words was confirmed by reference to counting by the Microsoft Word computer program used to typeset this brief. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge. Executed this 18th day of December 18, 2013.

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