Opinion
CHRISTIAN, J. Robert W. Bill and associated plaintiffs have appealed from a judgment denying declaratory and injunctive relief sought against Eugene D. Williams, County Clerk of the County of Sonoma. The action challenged the requirement that appellant Bill pay a filing fee or in lieu thereof submit a petition containing the signatures of 1,758 registered voters, to qualify for a place on the ballot as a candidate for the office of supervisor. After a temporary restraining order had been granted, [534]appellants’ request for a preliminary injunction was submitted on the pleadings; no evidence was presented. The court denied a preliminary injunction and dissolved the temporary restraining order. Upon stipulation of the parties, the court treated that disposition as a determination of the merits of the cause of action and judgment of dismissal was rendered. The present appeal followed.
Declarations were filed in support of the application for a temporary restraining order. But neither those declarations nor any other evidence was offered at the hearing on the order to show cause for preliminary injunction. Nevertheless, the facts stated in the declarations will be related to illustrate appellants’ constitutional contentions.
Appellant Robert W. Bill is a 48-year-old veteran whose income, from a veteran’s disability pension and other public benefits, is $290 per month. Bill decided to run for the Sonoma County Board of Supervisors in the June 1976 election, from the Third Supervisorial District, which comprises most of the City of Santa Rosa. Bill wanted to represent the low and moderate income residents of Sonoma County whose concerns were not, in his view, receiving attention.
In order to have his name placed on the ballot for county supervisor, appellant was required to pay a filing fee of $439.40, or submit a petition signed by 1,758 registered voters from the district, or submit any combination of the two. (See Elec. Code, § 6555, subds. (a)(4), (a)(5), (b)(3); Stats. 1976, ch. 1191.) Bill obtained an “in lieu” petition from the county clerk’s office and attempted to secure the requisite 1,758 signatures; he and two of his supporters began a door-to-door effort to obtain enough signatures, but did not succeed. According to the complaint and Bill’s declaration, the four other candidates for supervisor in appellant’s district also attempted to use the “in lieu” petition procedure, but none was able to obtain 1,758 signatures.
On March 12, 1976, before the deadline for filing for the June 8, 1976, primary election, Bill went to respondent’s office, presented his nominating petitions and asked that his name be placed on the ballot as a candidate for Third District Supervisor in the June primary election. The request was rejected, and the present litigation was commenced.
[535]Although the election which was at issue is now history, we do not consider it appropriate to dismiss the appeal as moot; the case involves a question “of general public interest [which] is likely to recur ____” (Green v. Layton (1975) 14 Cal.3d 922, 925 [123 Cal.Rptr. 97, 538 P.2d 225].)
Appellants contend that section 6555, subdivision (a)(4) and (5),1 of the Elections Code, which permits a candidate to submit a petition containing signatures of registered voters in lieu of a filing fee, violates the equal protection clause of the Fourteenth Amendment of the United States Constitution and article I, section 7, of the California Constitution. Appellants advance two theories: (1) under the statute, supervisorial candidates in some counties encounter a lesser signature requirement for their “in lieu” petition than supervisorial candidates in other counties; and (2) the signature requirement for counties such as Sonoma is so onerous and impractical that few, if any, candidates can gain access to the ballot through the petition procedure, leaving the ballot accessible only to those candidates who are able to pay the filing fee.
In any equal protection case, the appropriate standard for judging the statutory classification must be determined. The right of candidacy is not viewed as a “fundamental right” which of itself warrants strict scrutiny. However, where a practice, by impinging upon the right to run for public office, also has a real and appreciable effect on the right to vote effectively, that practice is subject to rigorous judicial review. (See Lubin v. Panish (1974) 415 U.S. 709, 716 [39 L.Ed.2d 702, 708-709, 94 S.Ct. 1315]; Choudhry v. Free (1976) 17 Cal.3d 660, 664 [131 Cal.Rptr. 654, 552 P.2d 438].)
[536]In Lubin v. Panish, supra, 415 U.S. 709, the United States Supreme Court declared that the California filing fee system was unconstitutional because the statute provided no reasonable alternative which would enable an indigent person who was a serious candidate to obtain access to the ballot. The Supreme Court recognized that the state has a “compelling interest” in protecting the integrity of its political processes from frivolous or fraudulent candidacies and in regulating the size of the ballot. It held, however, that in the absence of “reasonable alternative means of ballot access,” the state could not require an indigent candidate to pay a filing fee which he was not able to pay. (415 U.S. at p. 718 [39 L.Ed.2d at p. 710].) Following Lubin,,the California Supreme Court reached the same result in Knoll v. Davidson (1974) 12 Cal.3d 335 [116 Cal.Rptr. 97, 525 P.2d 1273], in which the court noted (fn. 11, p. 349): “The Legislature, in direct response to Lubin, has already enacted an alternative means of access to the ballot by providing that a candidate may submit a petition containing a specified number of signatures of registered voters in lieu of a filing fee for all elective offices. (Stats. 1974, ch. 454, amending Elec. Code, §§ 6555 and 18603 and adding Gov. Code, § 16100.6, effective July 11, 1974.) We express no opinion as to the constitutionality of the new filing fee system effective July 11, 1974.” This court must therefore determine whether section 6555, subdivision (a)(4)(5), provides such a “reasonable alternative means of access.” (See Green v. Layton, supra, 14 Cal.3d 922, 924.)
Intercounty Differences
Appellants point out that, at the time of the June 8, 1976, primary election, a candidate for supervisor in Sonoma County needed an “in lieu” petition signed by approximately 8.8 percent of the registered voters in his district, whereas a candidate for supervisor in San Francisco needed only one quarter of 1 percent of the registered voters of the City and County of San Francisco. But the comparison does not show a denial of equal protection. The charter of the City and County of San Francisco specified an 11-member governing body elected at large while in Sonoma, a general law county, there are only five supervisors and each stands for election in a single-member district. (See Gov. Code, §§ 25000, 25001.)
The equal protection clause bans “invidious discrimination”; it does not, however, forbid the states to make classifications and does not require them to treat different groups uniformly. (See Williams v. Rhodes (1968) 393 U.S. 23, 39 [21 L.Ed.2d 24, 36, 89 S.Ct. 5] [Douglas, 1, [537]cone, opn.].) The “in lieu” petition procedure does not purport to discriminate between the residents of counties similarly situated; the fact that it does not have identical effects in all counties does not establish a denial of equal protection.
Reasonableness of the Alternative
Appellants’ second theory is that the signature requirement is so burdensome in Sonoma County that candidates cannot reasonably gain access to the ballot through that alternative; the ballot is thus claimed to be accessible only to those candidates who can pay the filing fee. In effect, appellants assert that section 6555, subdivision (a)(4)(5), fails to provide indigent supervisorial candidates with a “reasonable alternative means” of access to the ballot in lieu of paying a filing fee. (See Lubin v. Panish, supra, 415 U.S. 709, 718 [39 L.Ed.2d 702, 710]; Knoll v. Davidson, supra, 12 Cal.3d 335, 349.)
Although a state has a legitimate interest in protecting the integrity of its election process from frivolous or fraudulent candidacies (see Storer v. Brown (1974) 415 U.S. 724, 736 [39 L.Ed.2d 714, 727, 94 S.Ct. 1274]), a candidate with substantial support is entitled to a realistic alternative means of access to the ballot where his indigency renders it impossible for him to pay the prescribed filing fee. (See Developments in the Law—Elections (1975) 88 Harv.L.Rev. 1111, 1142, fn. 121.) “If states are required to afford access to the ballot .. . that access must be meaningful and not ‘merely theoretical.’ ” (McCarthy v. Kirkpatrick (W.D.Mo. 1976) 420 F.Supp. 366, 375; see American Party of Texas v. White (1974) 415 U.S. 767, 783 [39 L.Ed.2d 744, 761, 94 S.Ct. 1296]; Jenness v. Fortson (1971) 403 U.S. 431, 439 [29 L.Ed.2d 554, 561, 91 S.Ct. 1970].) “The point, of course, is that ballot access must be genuinely open to all, subject to reasonable requirements.” (Lubin v. Panish, supra, 415 U.S. 709, 719 [39 L.Ed.2d 702, 710]; Knoll v. Davidson, supra, 12 Cal.3d 335, 347.)
Section 6555, subdivision (a)(4), provides that if the number of registered voters in the district in which a candidate seeks nomination is 2,000 or more, he may submit in lieu of the filing fee: (1) a petition containing four signatures of registered voters for each dollar of the filing fee, or (2) a petition containing the signatures of 10 percent of the total of registered voters in the district in which he seeks nomination, whichever is less. Also, section 6555, subdivision (b)(3), provides that “A candidate may submit the appropriate number of signatures to cover all or any pro [538]rata portion of the filing fee.” In the context of the present case, appellant was required under section 6555, subdivision (a)(4), to submit, in lieu of the filing fee, a petition containing 1,758 signatures (four times the filing fee of $439.40). At the time of the June 8, 1976, primary, this constituted a requirement of 8.8 percent of the voters registered in the district.
The question is whether a “reasonably diligent” supervisorial candidate for the third district could be expected to meet the signature requirement (see Storer v. Brown, supra, 415 U.S. 724, 738-740 [39 L.Ed.2d 714, 728-729, 94 S.Ct. 1274]; Fishman v. Schaffer (D.Conn. 1976) 418 F.Supp. 613, 615, fn. 4) or whether the statute imposes an excessively burdensome requirement upon such a candidate. (See Storer v. Brown, supra, 415 U.S. 724, 738 [39 L.Ed.2d 714, 728].) In Storer v. Brown, supra, the United States Supreme Court declared that, on its face, it did not appear to be a denial of equal protection to require an independent presidential candidate to obtain in 24 days 325,000 signatures (5 percent of the total votes cast in the last previous election). (415 U.S. at p. 740 [39 L.Ed.2d at p. 729]; see Williams v. Tucker (M.D.Penn. 1974) 382 F.Supp. 381, 385-386; see also American Party of Texas v. White, supra, 415 U.S. 767, 786-787 [39 L.Ed.2d 744, 763].) In the present case, it cannot be said that, standing alone, gathering 1,728 signatures in 55 days2 from a pool of 25,975 qualified signers is an unreasonably burdensome or impractical undertaking for a “reasonably diligent” county supervisorial candidate for the third district. No evidence was put before the trial court; thus, the court had no basis for determining that to submit four signatures for every dollar, which the candidate could not raise for his filing fee, was not a reasonable alternative means of access to the ballot. There was no evidence of how diligent an effort was made to gather the required showing of support or of how close the candidates came to collecting the requisite number of signatures.
The judgment is affirmed.
Caldecott, P. J., concurred.
Section 6555, subdivisions (a)(4), (a)(5), of the Elections Code:
“(a) Notwithstanding any other provision of this article, a candidate may submit a petition containing signatures of registered voters in lieu of a filing fee as follows:
“(4) For all other offices for which a filing fee is required, if the number of registered voters in the district in which he seeks nomination is 2,000 or more, a candidate may submit a petition containing four signatures of registered voters for each dollar of the filing fee, or 10 percent of the total of registered voters in the district in which he seeks nomination, whichever is less.
“(5) For all other offices for which a filing fee is required, if the number of registered voters in the district in which he seeks nomination is less than 2,000, a candidate may submit a petition containing four signatures of registered voters for each dollar of the filing fee, or 20 percent of the total of registered voters in the district in which he seeks nomination, whichever is less.”
The available time is determined by establishing the earliest time at which forms for “in lieu” petitions could be obtained (§§ 6490, 6555, subd. (b)) and subtracting the time before the election at which completed nominating papers must be filed (§ 6511 [repealed Stats. 1976, ch. 1191, § 60.5, No. 10, West’s Cal. Legis. Service, p. 5246; No. 6, Deering’s Adv. Legis. Service, p. 920]).