James W. Houston, State Bar No. 269689

James W. Houston, State Bar No. 269689 1 1105 K Street Sacramento, CA 95814 2 (916) 396-9760

3 Superior Court of California, 4 County of Sacramento

6 ) Case No.: Daniel Frederick, ) 7 ) Motion for Temporary Restraining Plaintiff, ) Order, Petition for Writ of Mandate 8 ) and Order to Show Cause vs. ) 9 ) EXPIDITED REVIEW REQUESTED Debra Bowen, Secretary of State ) 10 ) Defendant ) 11

15 Dated this January 31, 2011

16 ______1105 K Street 17 Sacramento, CA 95814 James W. Houston 18

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 1 1

3 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS 4 There are no interested entities or person to list in this certificate. 5

6 Dated:______

7 Counsel

8 TABLE OF CONTENTS

9 Page 10 TABLE OF AUTHORITIES...... 4 11 ......

12 PETITION FOR WRIT OF MANDATE...... 5

13 INTRODUCTION...... 5

14 Authenticity of Exhibits...... 6 15 Beneficial Interest of Petitioner...... 7 16 Chronology of Pertinent Events...... 7 17 Basis for Relief...... 9 18 Absence of Other Remedies...... 9 19

20 PRAYER...... 9

21 VERIFICATION...... 10

22 MEMORANDUM...... 10

23 I. WRIT RELIEF IS ESSENTIAL TO RESOLVE THE CURRENT 24 AMBIGUITY IN THE LAW SO AS TO PROTECT PLAINTIFF’S RIGHT TO BE ON THE BALLOT AND PREVENT STATEWIDE 25 DISENFRANCHISEMENT OF ALL MINORITY PARTY MEMBERS....10 ...... 26

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 2 A. Proposition 14 creates an ambiguity because it preserved California 1 Elections Code § 8106(a)(6), but fails to explain how it fits into the new primary election scheme...... 10 2

3 1. Proposition 14 and SB 6 were not intended to eliminate § 8106(a) (6) because such an action would be inapposite to the findings 4 that precede the text of the proposition and because they did strike other sections of the code, but left this intact...... 12 5 2. The cannons of statutory construction compel the court to 6 give effect to the statute because it was left intact...... 13 7 3. If § 8106(a)(6) is rendered superfluous, the law will be 8 unconstitutional because it will eviscerate a minority party’s ability to participate in the electoral process...... 14 9 4. Interpreting the statute so that § 8106(a)(6) is included leads to 10 the more reasonable result...... 15 11 B. Expedited review is necessary as Mr. Frederick and qualified voters 12 wishing to vote for him would be irreparably harmed if his name does not appear on the certified list of candidates scheduled to be 13 published January 31, 2011...... 16

14 1. Mr. Frederick will suffer irreparable harm if the certified list of candidates is published without his name and there is no 15 alternative remedy available...... 16 16 2. It is in the public’s interest to have minority party access to the 17 ballot and to have this ambiguity resolved...... 16

18 3. Mr. Frederick will likely succeed on the merits of his claim because the current electoral process impermissibly denies him 19 and other minority party candidates’ access to the ballot...... 17 20 CONCLUSION...... 17 21 APPENDIX...... 18 22 Declaration of Mr. Daniel Frederick...... A 23 Proposed Orders...... B 24 Certificate of Service...... C 25

2 TABLE OF AUTHORITIES 3

4 Page

5 Cases

6 U.S. Supreme Court

7 Lubin v. Panish (1974) 415 U.S. 709...... passim 8 Reynolds v. Sims (1964) 377 U.S. 533...... 13, 17 9 Williams v. Rhodes (1968) 393 U.S. 23...... 14 10 California Supreme Court 11

12 People v. Shabazz (2006) 38 Cal.4th 55...... 15

13 California Courts of Appeal

14 Bill v. Williams (1977) 70 Cal. App.3d 351...... 15, 17

15 Mabry v. Superior Court (2010) 185 Cal. App.4th 208...... 12, 13 16 Santa Clara Valley Transp. Authority v. Public Utilities Com. State of California (2004) 124 17 Cal.App.4th 346...... 12, 13 18 Statutes 19 California Constitution Article II...... 7 20

21 California Election Code § 8106(a) ...... 11

22 California Election Code § 8106(a)(6) ...... passim

23 California Civil Code § 526 ...... 16

24 California Civil Code § 526(a)(2) ...... 16 25

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 4 IN THE SUPERIOR COURT OF 1 CALIFORNIA, COUNTY OF 2

3 SACRAMENTO

5 Daniel E. Frederick,

6 Plaintiff, 7 vs. 8 Debra Bowen, Secretary of State 9 Defendant, 10

12 PETITION FOR WRIT OF MANDATE

14 INTRODUCTION 15 This case presents an issue of urgent importance that will permanently affect Daniel 16 Frederick’s ability to appear on the ballot for the March 8, 2011 special election being held to 17 fill the Fourth Assembly District vacancy. Daniel Frederick is a member of the Peace and 18 Freedom party. The Secretary of State is set to issue her Certified List of Candidates for the 19 Fourth Assembly District on January 31, 2011. If Mr. Frederick is not allowed to be on the 20 Certified List of Candidates, then the Sacramento County Registrar will not be able to place his 21 name on the ballot. 22

23 The issue in this case is whether California Elections Code §8106(a)(6), which allowed 24 minority party candidates to submit fewer signatures to gain ballot access, should be given 25

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 5 1 meaning even if it does not fit neatly within the statutory scheme created by Proposition 14, the

2 “Top-Two” Primary Act of 2010,.

4 Proposition 14, adopted by voters on June 8, 2010, created a “top-two” primary

5 election in which all potential candidates appear on the same ballot and the two candidates

6 receiving the most votes then move on to the general election. Prior to the adoption of this

7 proposition, each party conducted its own primary and the candidate receiving the most votes

8 would then proceed to represent their party on the general election. For smaller parties,

9 California Election Code § 8106(a)(6) allowed the submission of 150 signatures or ten percent

10 of the registered party members in the district, whichever is less. The Secretary of State has

11 refused to allow those who have satisfied this requirement access to the ballot. The effect of

12 this decision is to require all candidates, including smaller party candidates to collect 1500

13 signatures to meet the filing requirements – a ten-fold increase over § 8106(a)(6).

15 While the immediate need is to decide whether the law allows Daniel Frederick a place

16 on the March 8, 2011 ballot, this issue will continue to percolate in all elections held under the

17 auspices of Proposition 14. Moreover, this problem is especially acute in special primary

18 situations in which candidates have a reduced timeframe to collect signatures.

20 Thus, this litigation presents a compelling case for immediate writ review to resolve an

21 issue of statewide importance and protect the right of voters to select a candidate of their

22 choice.

24 Authenticity of Exhibits

25 A true and correct copy of the Declaration of Daniel Frederick is attached to this petition.

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 6 1 Plaintiff believes that the Secretary of State has a true and correct copy of the 225 signatures

2 submitted by Mr. Frederick.

4 Beneficial Interest of Petitioner

5 As indicated in the Frederick Declaration, the plaintiff is interested in the true and correct

6 interpretation and application of the statutes at issue.

8 Chronology of Pertinent Events

9 1. On February 20, 2009, Governor Arnold Schwarzenegger signed SB 6 (Maldonado) which 10 amended various provisions of the California Elections Code in order to facilitate the 11

12 implementation of a “top-two” primary system if the voters approved SCA 4. SCA 4

13 became Proposition 14 when it was placed on the June 8, 2010 ballot.

14 2. On June 8, 2010 California Voters approved Proposition 14, the Top Two Primaries Act

15 which amended Article II, sections 5 and 6 of the California Constitution. This 16 proposition stated, “A voter-nomination primary election shall be conducted to select the 17 candidates for congressional and state elective offices in California.” 18 3. On January 5, 2011, a vacancy was created in the Fourth Assembly District when Ted 19

20 Gaines was elected to the first State Senate district following a special election held

21 January 4, 2011.

22 4. On January 11, 2011, Governor Jerry Brown issued a proclamation declaring a special

23 election on May 3, 2011 to fill the vacancy in the Fourth Assembly district. 24 5. The primary was then set, per California Elections Code § 10704, for March 8, 2011, eight 25 weeks prior to the general election. 26

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 7 6. The Secretary of State then required each candidate wishing to submit an in-lieu petition 1 to gather 1500 signatures by January 13, 2011. January 13 was two days after the 2

3 Governor’s proclamation and eight days after the vacancy was created.

4 7. On January13, 2011, Daniel Frederick, a member of the Peace and Freedom party

5 submitted 225 signatures to the Secretary of State and was denied certification because he

6 did not submit 1500 signatures. 7 8. On January 20, 2011, Mr. Frederick attempted to file my Declaration of Candidacy with 8 the Sacramento Registrar of Voters and was told by staff that he could not file unless he 9 submitted a check for $952.91 10

11 9. The Peace and Freedom party is a Qualified Political Party according to the Secretary of

12 State. (http://www.sos.ca.gov/elections/ror/ror-pages/15day-gen-10/qual-pol-parties.pdf).

13 10. At the time of the November 2010 election, The Peace and Freedom party had a statewide

14 membership of 57,776 persons, representing 0.33% of all registered voters in California. 15 (http://www.sos.ca.gov/elections/ror/ror-pages/15day-gen-10/county.pdf). 16 11. At the time of the November 2010 election, The Peace and Freedom party had 713 17 registered voters in the Fourth Assembly District. 18 (http://www.sos.ca.gov/elections/ror/ror-pages/15day-gen-10/assembly.pdf). 19

20 12. Under Cal. Elec. Code §8106(a)(6) a member of the Peace and Freedom party would have

21 to submit 72 signatures to gain access to the ballot, as ten percent of the registered voters

22 of the Peace and Freedom Party in the Fourth Assembly District is less than 150.

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 8 1 Basis for Relief

2 13. The issue presented is whether the Secretary of State’s refusal to accept Daniel Frederick’s 3 in lieu petition, complying with California Elections Code §8106(a)(6) is inconsistent with 4

5 the intent of the Legislature and fails to provide for a reasonable alternative to the filing

6 fee.

7 Absence of Other Remedies 8 14. Delay of review until after January 31, 2011, will irreparably harm Mr. Frederick’s ability 9

10 to appear on the March 8, 2011 special primary election ballot for the Fourth Assembly

11 District. If he fails to appear on that ballot, qualified voters of the Peace and Freedom

12 Party, and other qualified voters who may wish to cast their vote for Mr. Frederick will be

13 denied the opportunity to exercise their right to choose the candidate of their choice. 14

15 PRAYER 16

17 Plaintiff prays that this court: 18

19 1. Issue a Temporary Restraining Order prohibiting the Secretary of State from issuing the 20 certified list of candidates on January 31, 2011, unless Mr. Frederick’s name appears on 21 that list. 22 2. Issue an alternative writ directing defendant, Secretary of State Debra Bowen, to interpret 23

24 California Election Code § 8106(a)(6) in a manner that is consistent with the intent of the

25 Legislature and Constitutional jurisprudence .

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 9 3. Issue an alternative writ ordering defendant, Secretary of State Debra Bowen, to show 1 cause why California Elections Code section 8106(a)(6) should not be interpreted to 2

3 provide for small party in-lieu petitions in all elections.

4 4. Grant such relief as may be just and proper. 5

6 Dated: January 31, 2011 Respectfully submitted, 7 By:______8 ATTORNEY FOR______9 VERIFICATION 10

11 I, Daniel D. Frederick, declare as follows: the petition is true and correct to the best of my knowledge. 12 ______13 Name Date

15 MEMORANDUM 16 I. 17

18 WRIT RELIEF IS ESSENTIAL TO RESOLVE THE CURRENT AMBIGUITY IN THE

19 LAW SO AS TO PROTECT PLAINTIFF’S RIGHT TO BE ON THE BALLOT AND

20 PREVENT STATEWIDE DISENFRANCHISEMENT OF ALL MINORITY PARTY

21 MEMBERS.

22 A. Proposition 14 creates an ambiguity because it preserved California Elections Code 23 §8106(a)(6), but failed to explain how it fits into the new primary election scheme. 24

25 In Lubin v. Panish, (1974) 415 U.S. 709, the United States Supreme Court held that the

26 state’s legitimate interest in keeping ballots manageable and clear, “must be achieved by a

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 10 1 means that does not unfairly or unnecessarily burden either a minority party’s or an individual

2 candidate’s equally important interest in the continued availability of political opportunity.”

3 415 U.S. at 716. Commensurate with that rule, the California Elections Code has provided two

4 methods of achieving ballot access in lieu of filing fees: one for majority parties and one for

5 minority parties. Prior to 2011, majority party candidates had to submit 1500 “in-lieu”

6 signatures while minority party candidates - those representing less than five percent of

7 registered voters - could submit 150 signatures or ten percent of the registered voters of that

8 party within the district, whichever is less. (Cal. Elec. Code §§ 8106(a), 8106(a)(6)). This

9 bifurcation represents an acknowledgment that political opportunity should not be

10 proportionate to the size and wealth of a person or party.

11 This code section was drafted prior to the adoption of Proposition 14 and Senate Bill (SB)

12 6 (stats. 2009, ch. 1) which eliminated the party primary system. Before 2011, parties

13 nominated their candidates during the primary and their names then appeared on the General

14 election ballot. Thus, the language of Cal. Elec. Code § 8106(a)(6) refers to, “a candidate

15 seeking the nomination of a qualified party with whom he or she is registered.” This

16 seemingly creates an anomaly because primary election contest no longer involves party

17 nominations. When Daniel Frederick attempted to comply with §8106(a)(6) by submitting

18 225 signatures on January 13, the Secretary of State refused to put his name on the Certified

19 List of Candidates because he did not submit 1500 signatures or pay the filing fee of $952.91.

20 This court is left with two interpretations, either the drafters of Proposition 14 intended to

21 eliminate, or render superfluous, this code section or, they simply made a mistake in drafting

22 and the provisions of § 8106(a)(6) should be interpreted to apply to minority party candidates

23 seeking access to the primary ballot.

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 11 1. Proposition 14 and SB 6 were not intended to eliminate § 8106(a)(6) because 1 such an action would be inapposite to the findings that precede the text of the 2

3 proposition and because the author did strike other sections of the code, but

4 left this intact.

5 As a general rule, words in statute should be given their ordinary and plain meaning and 6 should be construed in their statutory context. (Mabry v. Superior Court, (2010) 185 7 Cal.App.4th 208, 219). The purpose of statutory construction is to ascertain the intent of the 8 Legislature and effectuate the purpose of the law. (Santa Clara Valley Transp. Authority v. 9 Public Utilities Com. State of Cal., (2004) 124 Cal.App.4th 346, 359) (hereafter SCVTA). 10 Also, the canons of statutory construction generally preclude judicial construction that renders 11 part of the statute meaningless or inoperative. (Mabry, supra, 185 Cal.App.4th at 219.). 12 Proposition 14 began as Senate Constitutional Amendment (SCA) 4 (Maldonado) during 13 the 2008-2009 Legislative session. While it effectuated Constitutional changes, its companion 14 measure, SB 6 (Maldonado) implemented statutory changes that were only to go into effect if 15 Proposition 14 was adopted. (stats. 2009, ch. 1). Thus, it is helpful to think of them as a single 16 entity. 17 SB 6 was extremely comprehensive, it amended 55 different sections of the Elections Code 18 and repealed three. (stats. 2009, ch. 2). One of the repealed sections, and many of the 19 amended sections are within the same chapter as §8106(a)(6). Courts should assume that the 20 Legislature was aware of existing statutes and intended to maintain a consistent body of statute. 21 (SCVTA, supra, 124 Cal.App.4th at 360.) If they had intended to amend it or repeal it, they 22 could have. It is more likely, then, that they intended to leave it intact so as to provide a means 23 for minority party access to the ballot and simply failed to see the ambiguity it would create. 24 Such a conclusion is bolstered by the findings and declarations placed in Proposition 14 by 25 the same author of SB 6. The very first declaration states that the purpose of the law is to, 26

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 12 1 “protect and preserve the right of every Californian to vote for the candidate of his or her

2 choice.” (stats. 2009, ch.2). The second declaration states that, “All registered voters otherwise

3 qualified to vote shall be guaranteed the unrestricted right to vote for the candidate of their

4 choice.” (Id.) The phrase, “candidate of their choice” was not placed there by accident; it has

5 historical meaning in the judicial lexicon. Since Reynolds v. Sims, this right has represented

6 fulcrum upon which our electoral processes rests. (Reynolds v. Sims (1964) 377 U.S. 533, 555

7 (“any restrictions on that right strike at the heart of representative government.”)). The use of

8 this language in such a prominent place and with such strong language clearly indicates the

9 author’s desire to preserve access for minority party candidates.

10 2. The cannons of statutory construction compel the court to give effect to the 11 statute because it was left intact. 12

13 One cannon of statutory construction generally precludes judicial construction that renders

14 part of the statute meaningless or inoperative. (Mabry, supra, 185 Cal.App.4th at 219). Where

15 there are two potentially overlapping schemes, as there are here, the court must try to construe

16 them so as to give effect to all provisions. (SCVTA, supra, 124 Cal.App.4th at 360). The fact 17 remains that the Legislature kept the language in the statute, and its inclusion would appear to 18 comport with their intended electoral scheme than its exclusion. 19 Furthermore, there is a reasonable interpretation available to the court that gives meaning 20

21 to the words in the statute and allows for a consistent statutory scheme. By allowing §8106(a)

22 (6) to apply to minority party candidates seeking access to the Primary Election ballot, the state

23 will still be allowed to conduct a “top-two” primary, their interest in preventing frivolous

24 candidates will not be impinged, and there will be a reasonable alternative to the filing fee. 25

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 13 3. If § 8106(a)(6) is rendered superfluous, the law will be unconstitutional 1 because it will eviscerate a minority party’s ability to participate in the 2

3 electoral process.

4 The United States Supreme Court has recognized the legitimate state interest in

5 maintaining ballot clarity and minimizing fragmentation of voter choice. (Lubin, supra, 415

6 U.S. at 715). However, achievement of this interest must not unfairly or unnecessarily burden 7 a minority party’s ability to meaningfully participate in the political process. (Id. at 716). 8 Without minority party participation, the rights to vote and associate are heavily burdened. 9 (Williams v. Rhodes (1968) 393 U.S. 23, 31). 10

11 One means that many states have employed to winnow the field of candidates has been to

12 charge filing fees. This procedure was at the heart of Lubin. The Court found that California’s

13 failure to provide a reasonable alternative to the filing fee operated to exclude potentially

14 serious candidates from the ballot. (Id. at 718). The court suggested that States may impose on 15 minor political parties the requirement to demonstrate some “quantum of voter support” by 16 gathering signatures representing some percentage of voters who voted in the prior election. 17 (Id). It is fair to conclude that § 8106(a)(6) was an attempt to implement this suggestion by the 18 court. 19

20 If this court were to conclude that §8106(a)(6) is null, then California would find itself in

21 the same place it was before Lubin. The electoral scheme would be like that rejected in

22 Williams, whereby the two old, established parties would have a decided advantage and

23 minority parties would face substantial burdens on the rights to vote and associate. (Williams, 24 supra, 393 U.S. at 31). A minority party candidate wishing to get on the ballot must either pay 25 the filing fee of nearly one-thousand dollars, or collect 1500 signatures, which is ten times the 26

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 14 amount previously required. During special elections, the time frames are often condensed, as 1 they were in this case. 2

3 The question for the court, then, is whether this is a reasonable alternative to the filing fee.

4 A test for measuring the reasonableness of the alternative was laid out in Bill v. Williams,

5 (1977) 70 Cal.App.3d 531. The question is whether a reasonably diligent candidate could be

6 expected to meet the requirement. (Id. at 536.) A ten-fold increase in the burden placed on 7 minority candidates in a normal election is a high hurdle, indeed. Expecting them to 8 accomplish this during a condensed special election cycle is asking the impossible. It seems 9 patently obvious that requiring minority party candidates to gather 1500 signatures in eight 10

11 days is not something a reasonably diligent candidate could accomplish. Also, given term

12 limits, the frequency of special elections has grown exponentially. In the past 22 months, there

13 have been 12 special elections held to fill vacancies in the Assembly, State Senate and

14 Congress. (http://www.sos.ca.gov/elections/elections_specials.htm). This frequency shows no 15 signs of abating, so this problem will continue to be exacerbated in the months and years to 16 come. 17 4. Interpreting the statute so that § 8106(a)(6) is included leads to the more 18 reasonable result. 19

20 Another cannon of statutory construction holds that, “If a statute is amenable to two

21 alternative interpretations, the one that leads to the more reasonable result will be followed.”

22 (People v. Shabazz, (2006) 38. Cal.4th 55, 67-68. The court faces two possible alternative

23 interpretations. One would render § 8106(a)(6) void, creating a system wherein every 24 candidate must pay the filing fee or gather 1500 signatures regardless of means or available 25 time. The other interpretation leaves the statute intact and applies it to minority party 26

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 15 candidates wishing to participate in the “top-two” primary. Under this interpretation, minority 1 party candidates wishing to have their name placed on ballot can do so by satisfying the 2

3 reduced threshold of § 8106(a)(6). Given this choice, the latter interpretation seems to the

4 more reasonable and fair option.

6 B. Expedited review is necessary as Mr. Frederick and qualified voters wishing to vote 7 for him would be irreparably harmed if his name does not appear on the certified list 8 of candidates scheduled to be published January 31, 2011. 9 1. Mr. Frederick will suffer irreparable harm if the certified list of candidates 10

11 is published without his name and there is no alternative remedy available.

12 California Civil Code § 526 lays out several scenarios in which an injunction is

13 appropriate, for instance, “when it appears by the complaint…that the commission or

14 continuance of some act during litigation would produce waste, or great or irreparable injury, 15 to a party to the action. (Cal. Civ. Code § 526(a)(2)). The Secretary of State is set to publish the 16 certified list of candidates on January 31, 2011 at 5 P.M. and if she commits that act without 17 including Mr. Frederick, this will cause him and the public to be irreparably harmed. Once the 18 list is published it will be very difficult, if not impossible, to place his name on the March 8, 19

20 2011 ballot and will require additional litigation to accomplish.

21 2. It is in the public’s interest to have minority party access to the ballot and

22 to have this ambiguity resolved.

23 It is certainly within the public’s interest to have an electoral system that meets 24 constitutional muster. Disenfranchising thousands of voters who choose not to affiliate with 25 one of the major parties is not consistent with the Constitution as interpreted by the Supreme 26

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 16 Court. ( Lubin, supra, 415 U.S. at 716; Reynolds, supra, 377 U.S. at 555). Allowing the 1 current electoral scheme to proceed without the inclusion of Cal. Elec. Code §8106(a)(6) 2

3 would have such an effect and would adversely affect the public interest.

4 Additionally, it is within the public’s interest to have this ambiguity resolved before the

5 election takes place so that it, and all future elections, will be consistent in their execution. The

6 failure to either eliminate or include § 8106(a)(6) clearly creates an ambiguity in the law and 7 this ambiguity must be resolved. 8 3. Mr. Frederick will likely succeed on the merits of his claim because the 9 current electoral process impermissibly denies him and other minority 10

11 party candidates’ access to the ballot.

12 The current ambiguity in the law creates a constitutional problem and this must be

13 resolved. Based on the available jurisprudence put forth by the Supreme Court, a state must

14 provide reasonable alternatives to a filing fee. (Lubin, supra, 415 U.S. at 718). The current 15 requirement of 1500 signatures is not something a reasonable diligent minority party can be 16 expected to achieve. (Bill, supra, 70 Cal.App.3d at 536). If § 8106(a)(6) is not allowed to 17 stand, then there will be no reasonable alternative so California will be jettisoned back to the 18 pre-Lubin era. 19

20 CONCLUSION

21 The implementation of Proposition 14 created an ambiguity with respect to § 8106(a)(6)

22 and its protection of minority party rights. The Secretary of State’s refusal to enforce its

23 requirements threatens to deny Mr. Frederick access to the ballot and would deny qualified 24 voters in the district the ability to vote for a candidate of their choice. 25

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 17 Based on the language of the proposition and its companion measure, SB 6, it is reasonable 1 to conclude that the Legislature intended to preserve this alternative as an option for minority 2

3 party candidates. Furthermore, the rules of statutory construction favor giving this section

4 meaning because the words are still in the statute, and including them is the more reasonable

5 and constitutionally consistent interpretation.

6 Given the fact that the Certified list of Candidates is set to be published on January 31, 7 2011 without Mr. Frederick’s name presents an urgent situation that threatens to permanently 8 impair his rights without court intervention. Thus, a Temporary Restraining Order is 9 appropriate because; there is the presence of irreparable harm, with no satisfactory alternative 10

11 remedy, the public has a strong interest in seeing this ambiguity resolved, and Mr. Frederick is

12 likely to succeed in his argument that § 8106(a)(6) should be given meaning.

13 All of these factors compel this court to issue a Temporary Restraining Order prohibiting

14 the Secretary of State from issuing the Certified List of Candidates without Mr. Frederick’s 15 name and to issue a writ of mandate compelling the Secretary of State to interpret the law so as 16 to preserve the intent of the legislature and the words of the statute. 17

5 APPENDIX

Frederick v. Bowen, Plaintiff’s Writ of Mandate - 19