Salinger v. Jordan

[825]

THE COURT.

In this ease petitioner (hereinafter called Salinger) seeks a writ of mandamus to compel respondent Secretary of State (hereinafter called Secretary) “to designate him on the November 3, 1964 ballot as a ‘United States Senator, ’ and to list him first on that part of the ballot reserved for Senatorial Candidates.”

Salinger alleges, and the Secretary does not deny, that Salinger is now and since August 5, 1964, has been a United States Senator from the State of California; that the United States Senate administered to him the oath of office and seated him as a United States Senator; that pursuant to article I, section 5, clause 1, of the United States Constitution, the Rules Committee of the United States Senate approved his seating as a Senator and that in the primary election of June 2, 1964, he won the Democratic Party nomination for the United States Senate.

Section 10301 of the Elections Code provides, in part, as follows: “The designation shall remain the same for all purposes of both primary and general elections unless the candidate, at least 45 days prior to the general election, requests in writing a different designation which he then has the option to use under section 10219.” On August 14, 1964, more than 45 days prior to the general election, Salinger, by letter, requested the Secretary to designate him as “United States Senator.” By letter dated August 24th the Secretary rejected Salinger’s request stating: “Inasmuch as your name appeared on the June ballot without designation, this office takes the position there can be no

different designation

in your case, there having been no designation from which a change could be made. Therefore, this office must refrain from honoring your request. ”

We have accepted the case at this juncture pursuant to the stipulation of the parties that the proceedings be submitted to this court as an application for a peremptory writ of mandate and that the parties have waived issuance of any alternative writ of mandate, as well as oral argument, and that they have further stipulated that the decision of the court may be made final forthwith.

Sections 10301 and 10219 of the Elections Code entitle Salinger as an incumbent United States Senator to designate his occupation as a United States Senator; section 10202 of the Elections Code provides that, as an ineumhent, Salinger’s name “shall appear first upon a list of all candidates” for that office. These sections speak for themselves; they apply