CHRISTIAN NATIONALIST PARTY et al., Appellants, v. FRANK M. JORDAN, as Secretary of State, etc., Respondent, 49 Cal. 2d 448

GIBSON, C. J. The Christian Nationalist Party brought this action against the Secretary of State to secure a declaration as to the validity of

section 2540 of the Elections Code, which prescribes the requirements to be met by a political party before it may participate in a primary election. Gerald L. K. Smith and Charles F. Robertson, members of the party who were its candidates for president and vice president in 1956, are also plaintiffs. The complaint alleges that defendant refused to print the name of the party or of any of its candidates on the primary election ballot in 1956 because it had not complied with the requirements of the challenged

section and that, although desiring to participate in the 1958 primary election, the party will find it impossible to satisfy those requirements. A general demurrer was sustained without leave to amend, and plaintiffs have appealed from the ensuing judgment of dismissal.

Section 2540 of the Elections Code provides: “A party is qualified to participate in any primary election: “(

a) If at the last preceding gubernatorial election there was polled for any one of its candidates . . . for any office voted on throughout the State, at least 3 percent of the entire vote of the State . . .; or “ (

b) If on or before the one hundred thirty-fifth day before any primary election it appears to the Secretary of State as a result of examining and totaling the statement of voters and their political affiliations transmitted to him by the county clerks, that voters, equal in number to at least I percent of the entire vote of the State at the last preceding gubernatorial election, have declared their intention to affiliate with that party; or “(

c) If on or before the one hundred thirty-fifth day before any primary election there is filed with the Secretary of State a petition signed by voters, equal in number to at least 10 percent of the entire vote of the State at the last preceding gubernatorial election, declaring that they represent a proposed party, the name of which shall be stated therein, which proposed party those voters desire to have participate in that primary election. . . . “(

d) Except that whenever the registration of any party which qualified in the previous direct primary election falls below one-fifteenth of 1 percent of the total state registration, that party shall not be qualified to participate in the primary election but shall be deemed to have been abandoned by the voters, since the expense of printing ballots and holding a primary election would be an unjustifiable expense and burden to the State for so small a group. ...” A total vote of approximately 4,100,000 was cast at the last gubernatorial election in 1954, and a party’s participation in the 1958 primary election would be dependent, respectively, under tbe alternatives set forth in subdivisions (a), (

b) and (c), upon having polled 123,000 votes in 1954, obtaining 41,000 registrants or filing a petition signed by 410,000 voters. The position of plaintiffs is that the requirements of

section 2540 are so stringent that minor parties cannot qualify, although representing a substantial number of adherents, and that, therefore, the

section imposes an unwarranted limitation on the right of suffrage. It is alleged in the complaint that the Christian Nationalist Party has never participated in a gubernatorial election in California and must resort to either subdivision (

b) or subdivision (c), that, because voters are reluctant to become registered members of a party until it is qualified, extensive publicity and advertising costing at least $100,000 is necessary for a new party to obtain the number of registrants required under subdivision (b), that an expenditure of over $430,000 is essential to comply with subdivision (c), and that plaintiffs are financially unable to expend such sums.

Section 2540 of the Elections Code was enacted pursuant to a constitutional amendment which expressly empowers the Legislature to establish tests governing the right of political parties to participate in primary elections. (Cal. Const., art. II, §2½ [adopted in 1900, amended 1908].) In general, the purpose of the amendment was to give the Legislature a free hand in eliminating existing evils by providing for the direct nomination of candidates through an efficient primary election system in which the integrity of parties would be preserved. (See Communist Party v.

Peek, 20 Cal.2d 536, 552-553 [127 P.2d 889]; Schostag v. Cator, 151 Cal. 600, 605 [91 P. 502].) The determination of what measures will effectuate the objects of the constitutional provision is peculiarly within the domain of the legislative department, and, the usual presumption in favor of constitutionality being applicable, the courts will not interfere if there is any theory upon which the Legislature might reasonably conclude that a statute is essential to the carrying out of those objects. (Heney v. Jordan, 179 Cal. 24, 27-28 [175 P. 402].) We must, therefore, uphold the provisions of

section 2540 of the Elections Code unless they are clearly unreasonable. Percentage restrictions on the right to participate in primary elections exist in the large majority of the states (see Note (1948) 57 Yale L.J. 1276), and they have long been recognized as proper in California. In Katz v.

Fitzgerald (1907), 152 Cal. 433 [93 P. 112], the court held that such a restriction was reasonable, stating, at page 436, ‘ ‘ Some classification is made necessary, else any two, three, or four men might call themselves a party and impose the burden of placing the names of their candidates upon the ballot provided by the state law—a condition which could easily be made intolerable to the state as well as to the voter.” (In accord, Socialist Party v. Uhl (1909), 155 Cal. 776 [103 P. 181].) In Communist Party v. Peek, 20 Cal.2d 536 [127 P.2d 889], we approved

section 2540 while contrasting it with a statute which we held invalid. The defective statute provided that, notwithstanding

section 2540, a political party could not participate in a primary election unless it had 2,500 registered voters before the preceding primary election. It was pointed out that the test was an absolute one predicated upon the number of registered voters two years in the past, although information existed as to current registration, and that there was no alternative method of qualification.

We concluded that a party with a substantial number of new adherents might be excluded and that the reasonableness of any test based upon numerical data depends for its validity upon the theory that the Legislature is seeking to bar ‘ ‘ only insubstantial groups the deprivation of whose rights can be justified by the larger good derived from a more efficient operation of the primary system.” With respect to

section 2540, we said that “. . . it is clear that any substantial party could establish its right to participate in the primary election under some one of the various numerical tests therein provided.” (20 Cal.2d at pp. 552-553.) The number of citizens which constitutes a substantial group for purposes of an election law is not, of course, an absolute matter but a relative one which is to be measured in the light of the size of the entire voting population. Otherwise, a statute of the type before us would soon prove ineffective in a state which, like ours, is experiencing rapid growth. The standards for qualification in

section 2540, being stated in percentages of the total vote, are designed to respond to fluctuations in the size of the electorate, and they are set forth in the form of alternatives, so that provision is made for established parties, regardless of prior success, as well as for entirely new political groups. Under subdivision (a), a party which participated in the last gubernatorial election may qualify, notwithstanding the fact that up to 97 percent of the electorate may have rejected its candidates.

A party which was even less successful than necessary to meet the lenient three percent requirement of that subdivision or one which did not participate in the election is not barred from entering the forthcoming primary election but may take advantage of subdivision (b), should its program convince persons amounting to only one per cent of the 1954 vote (41,000 electors) to register as members. The ease with which subdivision (

b) may be satisfied is demonstrated by the fact that, in 1956, when there were 24,984 voting precincts in the state, a party having an average registration of less than two voters per precinct could qualify. Yet, satisfaction of this moderate registration requirement is not essential to qualification because, alternatively, a party may come within the terms of subdivision (

c) by filing a petition signed by voters who are equivalent in number to 10 percent of the earlier vote and who, without being required to become members, are willing to state that they represent the party and desire to have it participate in the 1958 primary election. It is true, of course, that a presently insubstantial group may be required to make expenditures in seeking qualification, but any numerical test would have the same effect.

The statute does not impose any financial requirement but only restrictions based on numerical data, and the circumstance that every group calling itself a party may not be able to obtain funds which it estimates would enable it to win the necessary support among the voters of the state does not show that the restrictions are not reasonably designed to advance a vital public purpose.

The right to participate in primary elections is an important one, and it is precisely that fact which justifies the enactment of measures designed to establish a workable primary election system so that the public may exercise the right effectively. To that end, the exclusion of insubstantial groups is proper, and, in our opinion,

section 2540, when taken as a whole, does not exclude any substantial party. It is argued that

section 2540 applies qualification standards which vary significantly in harshness, thereby discriminating between parties qualifying under subdivision (

a) and those which did not participate in the preceding gubernatorial election and must resort to subdivision (

b) or subdivision (c). In seeking to formulate fair qualification standards for all parties, the Legislature was confronted with the fact that, although the number of votes received at a prior election could reasonably be treated as reflective of the present strength of a party which participated therein, other criteria were necessary with respect to nonparticipating parties.

The registration in support of such parties and their ability to secure signatures on an appropriate petition were selected, and the Legislature was justified in concluding that there was a sufficient difference between these matters and the winning of votes to warrant variations in the applicable percentages. It must again be emphasized that the subdivisions under which nonparticipating parties may qualify are alternatives, and they may not be taken separately in considering whether they are discriminatory. While the percentage in subdivision (

c) is substantially larger than that in subdivision (a), the percentage in subdivision (

b) is only one-third as great. In view of the weight to be accorded legislative determinations in this field,

section 2540 may not be regarded as discriminating among parties of the same size. The judgment is affirmed. Shenk, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.

Section 2½ of

article II of the Constitution provides, in part: “The Legislature shall have the power to enact laws relative to the election of delegates to conventions of political parties; and the Legislature shall enact laws providing for the direct nomination of candidates for public office, by electors, political parties, or organizations of electors without conventions, at elections to be known and designated as primary elections; also to determine the tests and conditions upon which electors, political parties, or organizations of electors may participate in any such primary election.

It shall also be lawful for the Legislature to prescribe that any such primary election shall be mandatory and obligatory.” A candidate of a party which is excluded from a primary election may nevertheless be elected to office. He is not only eligible to receive write-in votes at the general election (Elec.

Code, § 5710) but may have his name printed on the general election ballot with the designation “Independent,” if, subsequent to the primary election, nomination papers are filed on his behalf by voters in the area involved who did not participate in the primary election and who number at least five per cent of the entire vote cast in that area at the preceding general election (Elec. Code, §§ 3040, 3041, 3815).