IVP Lawsuit Opening Brief

Court of Appeal, Fourth Appellate District, Division Two Court of Appeal, Fourth Appellate District, Division Two
Kevin J. Lane, Clerk/Executive Officer Kevin J. Lane, Clerk/Executive Officer

Electronically RECEIVED on 1/20/2022 at 5:39:20 PM Electronically FILED on 1/20/2022 by C. Daniels, Deputy Clerk
Docket No. E076797
IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION TWO
JIM BOYDSTON, STEVEN FRAKER, DANIEL HOWLE,

JOSEPHINE PIARULLI, JEFF MARSTON, and
INDEPENDENT VOTER PROJECT,
Plaintiffs and Appellants,
v.
ALEX PADILLA, as SECRETARY OF STATE; and STATE OF

CALIFORNIA
Defendants and Respondents.
San Bernardino County Superior Court

Case No. CIVDS1921480
(Judge Wilfred J. Schneider, Jr. – Department S-32)
From Judgment after Court Trial
APPELLANTS’ OPENING BRIEF
BRIGGS LAW CORPORATION PEACE & SHEA, LLP

*Cory J. Briggs (SBN 176284) S. Chad Peace (SBN 290274)
[email protected] [email protected]
Janna M. Ferraro (SBN 328921) 2700 Adams Avenue, Suite 204
[email protected] San Diego, CA 92116
99 East “C” Street, Suite 111 Telephone: (619) 255-4461
Upland, CA 91786
Telephone: (909) 949-7115
[BLC File no. 1351.03]
Attorneys for Plaintiffs and Appellants

Jim Boydston, Steven Fraker, Daniel Howle,
Josephine Piarulli, Jeff Marston, and Independent
Voter Project
TO BE FILED IN THE COURT OF APPEAL APP-008
COURT OF APPEAL CASE NUMBER:
COURT OF APPEAL FOURTH APPELLATE DISTRICT, DIVISION TWO E076797
ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NUMBER: 176284

SUPERIOR COURT CASE NUMBER:
NAME: Cory J. Briggs (State Bar no. 176284)//Janna M. Ferraro (State Bar no. 328921) CIVDS1921480
FIRM NAME: Briggs Law Corporation
STREET ADDRESS: 99 East "C" Street, Suite 111
CITY: Upland STATE: CA ZIP CODE: 91786
TELEPHONE NO.: 909-949-7115 FAX NO.:
E-MAIL ADDRESS: [email protected]
ATTORNEY FOR (name): Plaintiffs and Petitioners Jim Boydston, et al
APPELLANT/ JIM BOYDSTON; STEVEN FRAKER, et al.

PETITIONER:
RESPONDENT/ ALEX PADILLA, et al.
REAL PARTY IN INTEREST:
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

(Check one): INITIAL CERTIFICATE SUPPLEMENTAL CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial
certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a
motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you learn of changed or additional information that must
be disclosed.
1. This form is being submitted on behalf of the following party (name ): Jim Boydston
2. a. There are no interested entities or persons that must be listed in this certificate under rule 8.208.
b. Interested entities or persons required to be listed under rule 8.208 are as follows:
Full name of interested Nature of interest

entity or person (Explain):
(1)
(2)
(3)
(4)
(5)
Continued on attachment 2.
The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other
association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or
more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices
should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).
Date: January 20, 2022
Cory J. Briggs
(TYPE OR PRINT NAME) (SIGNATURE OF APPELLANT OR ATTORNEY)
Page 1 of 1
Form Approved for Optional Use
Judicial Council of California
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Cal. Rules of Court, rules 8.208, 8.488
www.courts.ca.gov
APP-008 [Rev. January 1, 2017]
Page 2


PETITIONER:

be disclosed.
1. This form is being submitted on behalf of the following party (name ): Steven Fraker

(1)
(2)
(3)
(4)
(5)
Cory J. Briggs
Page 1 of 1
www.courts.ca.gov
Page 3


PETITIONER:

be disclosed.
1. This form is being submitted on behalf of the following party (name ): Daniel Howle

(1)
(2)
(3)
(4)
(5)
Cory J. Briggs
Page 1 of 1
www.courts.ca.gov
Page 4


PETITIONER:

be disclosed.
1. This form is being submitted on behalf of the following party (name ): Josephine Piarulli

(1)
(2)
(3)
(4)
(5)
Cory J. Briggs
Page 1 of 1
www.courts.ca.gov
Page 5


PETITIONER:

be disclosed.
1. This form is being submitted on behalf of the following party (name ): Jeff Marston

(1)
(2)
(3)
(4)
(5)
Cory J. Briggs
Page 1 of 1
www.courts.ca.gov
Page 6


PETITIONER:

be disclosed.
1. This form is being submitted on behalf of the following party (name ): Independent Voter Project

(1)
(2)
(3)
(4)
(5)
Cory J. Briggs
Page 1 of 1
www.courts.ca.gov
Page 7
CERTIFICATION OF WORD COUNT
(Cal. R. of Court 8.204(c)(1).)
I, Cory J. Briggs, hereby certify, pursuant to California Rule

of Court 8.204(c)(1), that this Appellants’ Opening Brief is set in
13-point Century Schoolbook font and contains under 9,230 words,
as counted by the Microsoft 365 Word word-processing program
used to generate the brief.
Dated: January 20, 2022. __________________________
Cory J. Briggs
Appellant’s Opening Brief

Page 8
TABLE OF CONTENTS
Certification of Word Count ............................................................ 8
Table of Contents ............................................................................. 9
Table of Authorities ....................................................................... 11
I. Introduction ............................................................................. 15
II. Statement of the Case ............................................................. 17
A. Factual Allegations........................................................... 17
B. Procedural Background .................................................... 23
C. Statement of Appealability .............................................. 25
III. Standard of Appellate Review ................................................ 25
IV. Discussion ................................................................................ 26
A. Standard of Review on Demurrer .................................... 26
B. Plaintiffs’ Second Amended Complaint Alleges Facts
Sufficient to State a Claim ......................................................... 27
1. Plaintiffs Adequately Allege California’s Presidential-
Primary System Violates Both State and Federal
Constitutions ........................................................................... 27
i. California’s Presidential-Primary System Violates
Plaintiffs’ First Amendment Right to Freedom of
Association ........................................................................... 29
ii. California’s Presidential-Primary System Violates
Plaintiffs’ Right to Equal Protection ................................... 33
iii. California’s Presidential-Primary System Violates
Plaintiffs’ Right to Substantive Due Process ..................... 40
2. Plaintiffs Allege Facts Sufficient to State a Claim under
Article XVI, Section 3, of the California Constitution:
Unconstitutional Appropriation of Public Funds .................. 42
C. Governing Law Protecting First Amendment Rights of
Political Parties Does Not Foreclose Plaintiffs’ Claims ........... 44
1. Jones Does Not Foreclose Plaintiffs’ Claims and Actually
Strengthens Them ................................................................... 45

Page 9
2. Clingman Does Not Foreclose Plaintiffs’ Claims and
Actually Strengthens Them .................................................... 49
D. Plaintiffs’ Claims Should Be Decided on the Merits ...... 51
V. Conclusion ............................................................................... 54

Page 10
TABLE OF AUTHORITIES
Cases
Arce v. County of Los Angeles,
211 Cal. App. 4th 1455 (2012) ................................................... 27
Blank v. Kirwan,
39 Cal. 3d 311 (1985) .................................................................. 26
Burdick v. Takushi,
504 U.S. 428 (1992) .............................................................. 51, 52
C.A. v. William S. Hart Union High Sch. Dist.,
53 Cal. 4th 861 (2012) ................................................................ 26
California Democratic Party v. Jones,
530 U.S. 567 (2000) ............................................................. passim
City of Dinuba v. Cty. of Tulare,
41 Cal. 4th 859 (2007) ................................................................ 26
Communist Party of U.S. of Am. v. Peek,
20 Cal. 2d 536 (1942) ............................................................ 28, 30
Dawn D. v. Superior Ct. (Jerry K.),
17 Cal. 4th 932 (1998) ................................................................ 40
Democratic Party of U.S. v. Wisconsin ex rel. La Follette,
450 U.S. 107 (1981) ........................................................ 34, 36, 38
Dunn v. Blumstein,
405 U.S. 330 (1972) .................................................................... 27
Elrod v. Burns,
427 U.S. 347 (1976) .................................................................... 39
Filarsky v. Superior Ct.,
28 Cal. 4th 419 (2002) ................................................................ 53
Gerwan Farming, Inc. v. Lyons,
24 Cal. 4th 468 (2000) .......................................................... 17, 42
Gray v. Sanders,
372 U.S. 368 (1963) .................................................................... 36
Harper v. Virginia State Bd. of Elections,
383 U.S. 663 (1966) .................................................................... 27

Page 11
In re Marriage of Cornejo,
13 Cal. 4th 381 (1996) ................................................................ 45
Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council 31,
138 S. Ct. 2448 (2018) ................................................................ 29
Kusper v. Pontikes,
414 U.S. 51 (1973) ...................................................................... 29
Los Altos Golf & Country Club v. Cty. of Santa Clara,
165 Cal. App. 4th 198 (2008) ............................................... 25, 26
Moore v. Ogilvie,
394 U.S. 814 (1969) ........................................................ 41, 49, 53
Moore v. Shapiro,
293 F.Supp. 411 (N.D. Ill. 1968) ................................................ 48
Nealy v. Cty. of Orange,
54 Cal. App. 5th 594 (2020) ....................................................... 52
Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal.,
475 U.S. 1 (1986) ........................................................................ 29
People v. Lopez,
38 Cal. App. 5th 1087 (2019) ..................................................... 33
Rawls v. Zamora,
107 Cal. App. 4th 1110 (2003) ................................................... 52
Reynolds v. Sims,
377 U.S. 533 (1964) .............................................................. 36, 41
Roberts v. United States Jaycees,
468 U.S. 609 (1984) .................................................................... 29
Rubin v. Padilla,
233 Cal. App. 4th 1128 (2015) ................................................... 26
Spence v. State of Wash.,
418 U.S. 405 (1974) .................................................................... 48
Spier v. Baker,
120 Cal. 370 (1898) ..................................................................... 28
Tashjian v. Republican Party of Conn.,
479 U.S. 208 (1986) ............................................................. passim
Washington v. Glucksberg,
521 U.S. 702 (1997) .............................................................. 40, 41

Page 12
Wesberry v. Sanders,
376 U.S. 1 (1964) ............................................................ 28, 35, 37
Statutes
Civ. Proc. Code § 430.30 ................................................................ 26
Civ. Proc. Code § 452 ..................................................................... 17
Elec. Code § 13001 ......................................................................... 23
Elec. Code § 2001 ........................................................................... 45
Elec. Code § 2151(b)(1) .................................................................. 38
Elec. Code § 2300 ........................................................................... 31
Elec. Code § 6002(b) ................................................................. 31, 37
Elec. Code § 6300(b) ................................................................. 31, 37
Elec. Code § 6461(c) ................................................................. 31, 37
Other Authorities
ALEX PADILLA: U.S. SENATOR FOR CALIFORNIA, About,
https://www.padilla.senate.gov/about/ ...................................... 17
CALIFORNIA SECRETARY OF STATE, Dr. Shirley N. Weber:
Biography,
https://www.sos.ca.gov/administration/about/ .......................... 18
Sam Metz, California crossover ballot rules leave millions of votes
uncast? Desert Sun (March 3, 2020, 11:16 a.m.),
https://amp.desertsun.com/amp/4628142002 ............................ 38
Rules
Cal. R. Ct. 8.104(d)(2) .................................................................... 25
Constitutional Provisions
Cal. Const., art. I............................................................................ 29
Cal. Const., art. I, § 7 ..................................................................... 33
Cal. Const., art. II, §§ 1, 2 ............................................................. 31
Cal. Const., art. XVI, § 3 .......................................................... 23, 42
U.S. Const., 14th Amend., § 1 ....................................................... 40
U.S. Const., amends. I ................................................................... 29

Page 13
U.S. Const., amends. XIV ........................................................ 29, 33

Page 14
I. INTRODUCTION
The State has millions of “no party preference” or “NPP”

voters. The question presented here is whether the State may
lawfully require any registered voter wanting to vote in the
presidential-primary election for a candidate who belongs to a
political party of which the voter is not a member to associate with
that party as a condition to receiving a ballot with the preferred
candidate’s name on it.
With an ever-increasing number of voters opting to register
as NPP – for a variety of reasons, almost all of which boil down to
dissatisfaction with the political parties, concerns for privacy, or
both – a substantial segment of the State’s electorate is effectively
disenfranchised from the first integral stage of the presidential-
election process. These voters either associate against their wishes
with the political party to which their preferred candidate belongs
– in order to obtain from the State a ballot with that candidate’s
name on it – or they cannot vote for their preferred candidate. This
disenfranchisement has far-reaching negative consequences on
political discourse, on voter turnout, and perhaps most
importantly on faith in the electoral process.
Contrary to the trial court’s assertion, the State’s current
presidential-primary system has never been given the stamp of
approval by the U.S. Supreme Court. Rather, in response to the
High Court’s decision in California Democratic Party v. Jones, 530
U.S. 567 (2000), the State simply modified its presidential-primary
system from one that violated the rights of the plaintiffs in that
case – namely, private political parties – to a system that violates

Page 15
the rights of the plaintiffs in this case – namely, private
individuals consisting of NPP voters.
Plaintiffs’ position in this case is truly modest: It is entirely
possible for the State to administer a presidential-primary system
that protects the rights of both political parties and individual
voters. Because it is easy enough to do, there is no good reason to
force non-partisan individuals to associate against their wishes
with a political party in order to exercise their right to vote for the
candidate of their choice in the presidential primary.
Rather than articulating the State’s interests in defending
this case, Respondents invoke the interests of political parties
“to limit the voters’ ability to roam among political parties.”
Ironically, several remedies for the infringement on the
individual’s right to vote, like giving NPP voters their own NPP
primary ballot, not only would respect non-partisan individuals’
constitutional rights against forced political associations, but also
would significantly reduce the number of NPP voters forced to
roam into a political party’s private-nomination proceedings as
their only means of participating in presidential-primary election
just to drop out afterward.
For the reasons discussed herein, the trial court erred in
sustaining the demurrer and dismissing the operative complaint
because Plaintiffs have alleged facts sufficient to state a claim and
their novel claims deserve to be heard on the merits.

Page 16
II. STATEMENT OF THE CASE
A. Factual Allegations1
Both the right to vote and the right to associate – or not

associate – are protected by the U.S. and California Constitutions.
See II AA 805 (¶ 5), 808-809 (¶¶ 16, 17, 18, 21). Primary elections
are an integral and important stage of the public-election process.
See II AA 805 (¶ 2), 806 (¶ 9), 808 (¶ 17), 818 (¶ 87). The State’s
only criteria to be a “qualified registered voter” – and, thus,
participate in the public-election process – are that the individual
must be: (1) a U.S. citizen living in California, (2) registered where
he or she currently lives, (3) at least 18 years old, and (4) not in
prison or on parole for a felony. II AA 812 (¶ 38). There is no
requirement that a registered voter identify a political party
preference – that is, to associate with a political party – in order to
exercise the right to vote. Id. A voter who declines to associate with
a political party is registered as “no party preference” (i.e., NPP).
Id.
Defendants and Respondents Alex Padilla, as Secretary of
State,2 and the State of California (hereinafter collectively,
1 For purposes of demurrer, Plaintiffs’ factual allegations must be

accepted as true and given a liberal construction. Gerwan
Farming, Inc. v. Lyons, 24 Cal. 4th 468, 515-16 (2000); Civ. Proc.
Code § 452.
2 Since the filing of this lawsuit, Alex Padilla was appointed by
California’s governor in 2020 to fill the U.S. Senate seat vacated

by former Senator (and now Vice-President) Kamala Harris. See
ALEX PADILLA: U.S. SENATOR FOR CALIFORNIA, About,
https://www.padilla.senate.gov/about/ (last visited Dec. 2, 2021).

Page 17
“Respondents” or the “State”) are required to administer the
presidential-primary election. See II AA 814 (¶¶ 51, 53). The
Secretary of State is the chief elections officer tasked with
“adopting regulations to assure the uniform application and
administration of state election laws.” Id. (¶ 53). Presidential-
primary elections are publicly funded from county treasuries. Id.
(¶ 51).
In 2016, approximately 4.7 million voters – nearly 25 percent
of the electorate – were registered as NPP. See II AA 807 (¶ 14),
814 (¶ 52). Whether or not those voters could cast a vote for a
presidential-primary candidate was completely controlled by the
private political parties. Id.; II AA 807-808 (¶¶ 15-16), 809 (¶ 23);
see also II AA 812 (¶¶ 41-43; only presidential candidates that are
members of qualified political parties can participate as candidates
in the primary election).
NPP voters are not given the same access to the State’s
presidential-primary process. By default, NPP voters receive a
“non-partisan” primary ballot from the State, but the ballot
omits all candidates for President of the United States. II AA 812
(¶ 44). NPP voters can gain access to the presidential-primary
process in only two ways: (1) they can waive or relinquish their
unaffiliated status and register with the political party of their
Assemblywoman Dr. Shirley N. Weber was appointed to succeed

Mr. Padilla and is the current Secretary of State. See CALIFORNIA
SECRETARY OF STATE, Dr. Shirley N. Weber: Biography,
https://www.sos.ca.gov/administration/about/ (last visited Dec. 2,
2021).

Page 18
preferred candidate; or (2) they can request a crossover ballot from
a political party, but only if that party, by its own internal rules,
allows NPP voters to participate.3 See II AA 812-813 (¶¶ 44-49).
Said another way, NPP voters can participate in the presidential
primary only if authorized by the private political party. II
AA 813 (¶ 46); see also II AA 805 (¶ 4).
In 2016 and 2020, only three of the six qualified political
parties4 (American Independent, Libertarian, and Democratic)
allowed NPP voters to even request a crossover ballot from the
State; the other three political parties (Green, Peace & Freedom,
and Republican) did not. Id. (¶¶ 47-49). Therefore, NPP voters who
wanted to participate in the presidential-primary election but did
not want to formally register with a political party could only cast
a vote for those candidates appearing on the American
Independent, Libertarian, and Democratic primary ballots (and
even then only if they went through the process for requesting a
crossover ballot); and were precluded from casting a vote for those
candidates appearing on the Green, Peace & Freedom, and
Republican primary ballots unless they formally associated (i.e.,
registered) with the respective political party. Id.
3 NPP voters that want to cast a vote for a presidential candidate

associated with one of the political parties that does not permit
crossover voting have no other options but to formally associate
with the party. See II AA 813 (¶ 49).
4 Political parties are “qualified” by the Secretary of State. See II
AA 812 (¶ 41).

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The process by which an NPP voter can request a crossover
ballot from the State has its own constitutionally concerning
burdens. NPP voters must individually request a crossover ballot,
either from their poll worker or, if voting by mail, by requesting
one by a certain deadline in advance of the primary election. See
id. (¶ 48); see also II AA 814-815 (¶¶ 54, 55).5 However, if NPP
voters do not request the ballot using the correct terminology (i.e.,
requesting a “crossover” ballot), they will not receive it and poll
workers are barred from making any suggestions or providing
additional information to these voters about their options. II AA
815 (¶ 56). In contrast, party-affiliated voters are automatically
provided a ballot by the State that includes at least some of the
presidential-primary candidates. See id. (¶ 57); but see II AA 813
(¶ 45) (party-affiliated voters can only vote for candidates in the
primary of the political party for which they are registered).
Even where a crossover ballot is available to an NPP voter,
the burdens imposed by the State on voters obtaining that
crossover ballot creates confusion and imposes additional, onerous
steps on NPP voters desiring to cast a vote in a primary election.
See II AA 814-815 (¶¶ 54-59). For example, NPP voters who vote
by mail (also known as “absentee voters”) must either (a) respond
to an innocuous postcard to request a crossover ballot; (b) bring
their NPP ballot to their polling place, surrender it, and request a
crossover ballot at the polling place; or (c) register with one of the
5 When an NPP voter does request a crossover ballot, their names

and contact information are provided to that political party for
future marketing. See II AA 50:14-16.

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qualified private political parties. II AA 814 (¶ 54). Respondents
are aware that many counties, when they send out the
aforementioned postcards (which often resemble junk mail) to NPP
voters, set arbitrary deadlines for NPP voters to respond with what
type of crossover ballot they want in order for them to receive that
ballot. II AA 814-815 (¶ 55). Reasonable NPP voters are led to
believe that if they miss the deadline, they have lost their right to
vote in the presidential-primary election, which is not the case. Id.
Furthermore, Respondents fail to adequately inform NPP voters of
their options and poll workers are barred from making any
suggestions or providing additional information to these voters
about their options. II AA 815 (¶ 56).
The result of these burdens is confusion and the
disenfranchisement of NPP voters. See II AA 805 (¶ 4), 807 (¶ 13).
Respondents have an obligation to provide a free and fair election
equally to every qualified registered voter, regardless of party
affiliation (or lack thereof) and regardless of what the political
parties do with the results. See II AA 815 (¶ 59).
Plaintiffs are all citizens living in California. See II AA 811
(¶¶ 30-36). Plaintiffs meet all criteria to be qualified registered
voters in the State. See id. Plaintiffs are either registered as
NPP, or would prefer to register as NPP, and desire to cast
a vote for a presidential-primary candidate without being
forced to register or otherwise associate with a political
party. See II AA 811-812 (¶ 37). In 2016 and 2020, each individual
Plaintiff was unable to vote for the candidate of their choice in the
presidential primary election unencumbered by the condition to

Page 21
declare a party preference or otherwise associate with a political
party. Id.
Plaintiffs do not demand that the political parties use their
vote in selecting the parties’ respective nominees; nor could
they. See generally II AA 820 (Prayer). The ultimate selection of
each political party’s nominee is conducted according to private
party rules, not the presidential primaries conducted by the
several states. See II AA 807-808 (¶ 15), 813-814 (¶ 50), 815 (¶¶ 58,
61). Plaintiffs merely seek an equal opportunity to exercise
their fundamental right to participate in the presidential-
primary process the State has established and to express
their political views and preferences at the polls,
unencumbered by the condition of registering or otherwise
associating with a political party. II AA 811-812 (¶¶ 30-37).
Respondents fail to provide equal access to the presidential
primary election process to all qualified voters. See II AA 805 (¶
4), 808-809 (¶¶ 17, 18), 811-812 (¶ 37), 815-820 (¶¶ 62-100).
Regardless of how the private political parties ultimately select
their nominees, Respondents have the same obligations to NPP
and party-affiliated voters alike: provide free and fair elections
that are accessible by all qualified voters; and accept, tally, and
report the result of each validly cast vote. II AA 815 (¶ 59).
Respondents’ perverse efforts to protect the associational
rights of political parties has resulted in a presidential-primary
system that violates state and federal constitutional rights of
individual voters, including Plaintiffs. See II AA 805 (¶ 4), 808-
809 (¶¶ 16-18). With NPP voters now approximately 25 percent of

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the electorate in 2020 (and growing), the level of de facto voter
suppression due to the party-controlled primary-election process is
constitutionally (and morally) untenable. II AA 805-806 (¶¶ 5, 7),
807 (¶¶ 13-14), 814 (¶ 52).
California’s primary elections are paid from county
treasuries. II AA 814 (¶ 51; citing Elec. Code § 13001). As a result
of this transferring of control of the primary-election process to the
political parties and prioritizing the rights of political parties over
the rights of individual voters, California’s current presidential-
primary system serves a predominantly private purpose – i.e., to
wholly benefit the private political parties – and
unconstitutionally appropriates public funds for a private purpose.
See II AA 817-818 (¶¶ 81-85); Cal. Const., art. XVI, § 3.
B. Procedural Background
Plaintiffs filed their complaint for declaratory and injunctive

relief in July 2019. I AA 13. Respondents answered generally
denying Plaintiffs’ allegations and asserting seven affirmative
defenses. I AA 34-36.
Plaintiffs filed a motion for preliminary injunction seeking
to require Respondents to administer a presidential-primary
election in 2020 where any registered voter could cast a ballot for
his or her candidate of choice without having to declare or
otherwise associate with a political party. See I AA 38-39. The
motion was briefed, and the trial court denied the motion. See
generally I AA 43 (opening brief), 285 (opposition brief), 354 (reply
brief), 390-398 (ruling on motion dated Nov. 19, 2019).

Page 23
The parties stipulated to allow Plaintiffs to file a first
amended complaint to add an additional plaintiff. I AA 331-334.
The first amended complaint was filed on December 6, 2019. I AA
339. Because the amendment only added an additional plaintiff
and made no other changes, Respondents’ original answer was
deemed their answer to the first amended complaint. I AA 332.
Thereafter, Respondents filed a motion for judgment on the
pleadings (“MJOP”) as to the first amended complaint. I AA 425.
The motion was briefed, and the trial court granted the motion
with leave to amend. See II AA 429 (opening brief), 759 (opposition
brief), 781 (reply brief), 793-803 (ruling on motion dated Oct. 2,
2020). Plaintiffs filed their second amended complaint (“SAC”) on
October 22, 2020. II AA 804.
Respondents demurred to Plaintiffs’ SAC on the ground that
each and every cause of action failed to state facts sufficient to
constitute a cause of action against Respondents. See II AA 824-
825. The demurrer was briefed, and the trial court sustained the
demurrer without leave to amend. See II AA 827 (opening brief),
860 (opposition brief), 885 (reply brief), 895-910 (minute order and
ruling on demurrer dated Jan. 29, 2021). The trial court directed
counsel for Respondents to prepare the order or judgment of
dismissal after hearing; however, Respondents did not comply. See
II AA 895.
On March 29, 2021, Plaintiffs filed their notice of appeal
despite no judgment being entered in order to preserve their
appeal rights. See II AA 911. On April 26, 2021, this Court ordered
Plaintiffs to file and serve a file-stamped copy of the judgment.

Page 24
Pursuant to the direction of this Court, Plaintiffs prepared a
proposed judgment that was subsequently signed and entered by
the trial court on April 28, 2021. II AA 936-937.
C. Statement of Appealability
The trial court granted Respondents’ demurrer without

leave to amend on January 29, 2021. See II AA 895. On March 29,
2021, Plaintiffs filed their notice of appeal despite no judgment
being entered in order to preserve their appeal rights. See II AA
911. Thereafter, pursuant to the direction of this Court, Plaintiffs
caused a judgment of dismissal to be entered by the trial court on
April 28, 2021. II AA 936-937. A copy of the judgment was filed
with this Court on April 30, 2021. See Cal. R. Ct. 8.104(d)(2) (“The
reviewing court may treat a notice of appeal filed after the superior
court has announced its intended ruling, but before it has rendered
judgment, as filed immediately after entry of judgment.”); Los
Altos Golf & Country Club v. Cty. of Santa Clara, 165 Cal. App.
4th 198, 202–03 (2008) (liberally construing premature appeal of
an order sustaining a demurrer as being taken from the later filed
judgment of dismissal) (“Los Altos Golf”). Thus, this appeal is
timely.
III. STANDARD OF APPELLATE REVIEW
The appellate court’s review from a judgment of dismissal

following the sustaining of a demurrer is de novo. Los Altos Golf,
165 Cal. App. 4th at 203. The appellate court examines the
operative complaint to determine whether it “states facts sufficient

Page 25
to state a cause of action under any possible legal theory” and is
“not limited to plaintiffs’ theory of recovery or ‘form of action’ pled
in testing the sufficiency of the complaint.” City of Dinuba v. Cty.
of Tulare, 41 Cal. 4th 859, 870 (2007).
IV. DISCUSSION
A. Standard of Review on Demurrer
A demurrer is limited to defects on the face of the

complaint. Civ. Proc. Code § 430.30; Blank v. Kirwan, 39 Cal. 3d
311, 318 (1985). The court determines whether the operative
complaint alleges facts stating a cause of action under any theory
and “give[s] the complaint a reasonable interpretation by reading
it as a whole and all its parts in their context.” Los Altos Golf, 165
Cal. App. 4th at 203. A plaintiff need not allege each evidentiary
fact that might eventually form part of the plaintiff’s proof. C.A. v.
William S. Hart Union High Sch. Dist., 53 Cal. 4th 861, 872 (2012).
The court also considers matters judicially noticed and, “to
the extent that the issues involve the interpretation of statutory
provisions, [the court] review[s] the parties’ arguments
independently, as statutory construction is a question of law.” Los
Altos Golf, 165 Cal. App. 4th at 203.
For claims pleaded under section 1983 of title 42 of the
United States Code, California’s state courts apply the federal
standard of review for a motion to dismiss. Rubin v. Padilla, 233
Cal. App. 4th 1128, 1144 (2015). “Under that standard, dismissal
is proper only where it appears beyond doubt that the plaintiff

Page 26
can prove no set of facts in support of the claims that would entitle
him to relief. [Citation.] Either way, [the court] must assume the
truth of the complaint’s properly pleaded or implied factual
allegations. [Citation.] ... In addition, [the court must] give the
complaint a reasonable interpretation, and read it in context.
[Citation.]” Id. (internal citations and quotations omitted;
emphasis added). “In line with California practice, the court ...
construes the allegations, and any reasonable inferences that may
be drawn from them, in the light most favorable to the plaintiff.”
Arce v. Cty. of Los Angeles, 211 Cal. App. 4th 1455, 1471 (2012).
B. Plaintiffs’ Second Amended Complaint Alleges

Facts Sufficient to State a Claim
Accepting Plaintiffs’ allegations as true and giving the SAC

a liberal construction, as the Court must, the SAC contains facts
sufficient to state claims under both the state and the federal
Constitutions.
1. Plaintiffs Adequately Allege California’s

Presidential-Primary System Violates Both
State and Federal Constitutions
Each “citizen has a constitutionally protected right to

participate in elections on an equal basis with other citizens in the
jurisdiction,” Dunn v. Blumstein, 405 U.S. 330, 336 (1972), even
though “the right to vote in state elections is nowhere expressly
mentioned” in the Constitution. Harper v. Virginia State Bd. of
Elections, 383 U.S. 663, 665 (1966). Here in California, the right of

Page 27
its citizens to vote has been “recognized as one of the highest
privileges of the citizen.” Spier v. Baker, 120 Cal. 370, 375 (1898).
This privilege includes the right to vote in primary elections:
[T]he right of suffrage, everywhere
recognized as one of the fundamental
attributes of our form of government is
guaranteed and secured by the
Constitution of this state to all citizens
who are within the requirements therein
provided. [Citations.] This constitutional
right of the individual citizen includes the
right to vote ‘at all elections which are now
or may hereafter be authorized by law
(Const. of Calif., art. II, § 1), including
the right to vote at primary elections.
[¶] ... the legislature has no power to
deprive any citizen of the state, who
fills all the requirements demanded
by [the state constitution], from voting
[in a primary election].
Communist Party of U.S. of Am. v. Peek, 20 Cal. 2d 536, 542-543

(1942) (emphasis added) (“Communist Party”).
“The power to regulate the time, place, and manner of
elections does not justify, without more, the abridgment of
fundamental rights, such as the right to vote, see Wesberry v.
Sanders, 376 U.S. 1, 6-7 (1964), or, as here, the freedom of political
association.” Tashjian v. Republican Party of Conn., 479 U.S. 208,
217 (1986).
California’s presidential-primary system impermissibly
infringes on the constitutional rights of Plaintiffs and other
similarly situated NPP voters. It is true that courts have
recognized that participating in elections will impose some

Page 28
burdens on individual voters, but California’s current system goes
beyond the minimal burdens that are constitutionally permissible,
resulting in widespread (and ever-increasing) NPP voter
disenfranchisement.
i. California’s Presidential-Primary System
Violates Plaintiffs’ First Amendment
Right to Freedom of Association
Plaintiffs’ sixth cause of action alleges violations of
Plaintiffs’ First Amendment right not to associate. II AA 819-820.
Both the U.S. and California Constitutions protect the right
of citizens to freely associate. U.S. Const., amends. I, XIV; Cal.
Const., art. I, §§ 2 & 7; see also Jones, 530 U.S. at 574. “It is beyond
debate that freedom to engage in association for the advancement
of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured
by the Due Process Clause of the Fourteenth Amendment, which
embraces freedom of speech.” Tashijian, 479 U.S. at 214 (citations
omitted). “‘The right to associate with the political party of one’s
choice is an integral part of this basic constitutional freedom.’” Id.
(quoting Kusper v. Pontikes, 414 U.S. 51, 57 (1973)). This right is
understood to include the right not to associate. Jones, 530 U.S. at
574; Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984); see
also Janus v. Am. Fed’n of State, Cty., & Mun. Employees, Council
31, 138 S. Ct. 2448, 2463 (2018) (“The right to eschew association
for expressive purposes is likewise protected”); Pacific Gas & Elec.
Co. v. Public Util. Comm’n of Cal., 475 U.S. 1, 9 (1986) (“forced
associations that burden protected speech are impermissible”).

Page 29
Here, Plaintiffs, as individual voters, have the constitutional
right to participate in all integral stages of the election process,
including primary elections. II AA 808 (¶ 17), 818 (¶ 87); see
Communist Party, 20 Cal. 2d at 542-543. Plaintiffs also have the
right to associate – or not associate – for political purposes. Jones,
530 U.S. at 574-575; Tashijian, 479 U.S. at 214. All Plaintiffs are
qualified registered voters in California. See II AA 811-812 (¶¶ 30-
37). Plaintiffs were unable to vote for the candidate of their choice
in the 2016 and 2020 presidential-primary elections
unencumbered by a condition of declaring a party preference or
otherwise associating with a political party. Id. (¶ 37).6
There are two separate processes in play when it comes to
primary elections. There is the process by which the political
parties’ respective members cast a vote (albeit a non-binding
6 For example, Plaintiffs Howle, Boydston, and Fraker are all

registered as NPP and in 2016 and 2020 they were unable to cast
a vote for any presidential candidate without first associating –
either through formally registering or requesting a crossover ballot
– with one of the qualified political parties. II AA 811 (¶¶ 30-33).
As a further example, Plaintiff Piarulli would prefer to be
registered as NPP but has affiliated with the Democratic Party to
ensure that she has full opportunity to cast a vote for a presidential
candidate in the next primary election. Id. (¶ 35). In the first
example, the Plaintiffs have been denied their right to participate
in the presidential primary because they exercised their right not
to associate with a qualified political party. In the second example,
the Plaintiff has been forced to waive their right not to associate
in order to exercise their right to participate in the presidential
primary. This is precisely the kind of unconstitutional condition on
the exercise of a fundamental right that is impermissible. See also
supra note 5.

Page 30
advisory vote) for their parties’ respective nominees. Cf. Jones, 530
U.S. at 572-573. And then there is the larger public-election
process administered by the State. See Cal. Const., art. II, §§ 1, 2;
see also Elec. Code § 2300 (Voter Bill of Rights). Respondents are
responsible for administering the State’s primary-election process.
See II AA 805 (¶¶ 2, 6), 814 (¶ 53). In this respect, Respondents’
obligations to individual voters are the same regardless of party-
affiliation or non-affiliation: Respondents “must provide free and
fair elections that are accessible by all qualified voters, and they
must accept, tally, and report the results of each validly cast vote.”
II AA 815 (¶ 59). “What the political parties do with primary votes
cast in favor of their candidates is left entirely to these parties’
respective rules.” Id., ¶ 58; see also, e.g., Elec. Code §§ 6002(b),
6300(b), 6461(c).
In sustaining Respondents’ demurrer, the trial court held
that the association requirement about which Plaintiffs complain
“is coming from the political parties themselves to which they are
authorized to do under [Jones].” II AA 906:18-20. However, that
holding was erroneous. “[W]hen a State prescribes an election
process that gives a special role to political parties, it
‘endorses, adopts and enforces [the discriminatory acts]’ that the
parties … bring into the process – so that the parties’
discriminatory action becomes state action under the Fifteenth
Amendment.” Jones, 530 U.S. at 573 (emphasis added). Therefore,
when Respondents – on behalf of the political parties – require
voters to register (i.e., associate or affiliate) with a political party

Page 31
(or request a crossover ballot 7 if allowed by the political party) to
participate in the presidential-primary election or relinquish the
right to participate in that primary process altogether, the
requirement is the result of state action. See id. Such
requirements must then fall within the strictures of the U.S. and
California Constitutions and, as alleged by Plaintiffs, where
California’s presidential primary system as currently
administered does not so fall. See generally II AA 804-820 (SAC).
Just as political parties have the right not to associate with
voters who have not demonstrated a sufficient level of commitment
to the party, each individual voter has the right not to associate
with a political party that may hold positions antithetical to those
of the voter as a precondition for casting an advisory vote for a
particular primary candidate for President of the United States
(who by law must be party-affiliated or meet other qualifying
conditions, see II AA 812 (¶¶ 41-43)). The State, through
Respondents, has made party-affiliation a mandatory precondition
for participating in the public process that is the State’s component
of the presidential-primary election (which Respondents
administer using public monies; see section IV-B-2, infra). II AA
809 (¶ 19).
The freedom to associate – or not – is a protected
constitutional right. Accepting Plaintiffs’ allegations as true, as
the Court must, Plaintiffs’ SAC alleges facts sufficient to state a
7As discussed below, this is not a simple process, not available in

all circumstances, and itself an unconstitutional burden.

Page 32
claim that California is violating those rights through its semi-
closed presidential-primary system. Thus, the demurrer should
have been overruled.
ii. California’s Presidential-Primary System
Violates Plaintiffs’ Right to Equal
Protection
Plaintiffs’ third cause of action alleges that California’s
presidential-primary system violates Plaintiffs’ equal-protection
rights. II AA 817.
Equal protection under the law is guaranteed by both the
U.S. and California Constitutions. See U.S. Const., amend., XIV §
1; Cal. Const., art. I, § 7. “Equal protection of the laws simply
means that similarly situated persons shall be treated in like
manner unless there is a sufficiently good reason to treat them
differently.” People v. Lopez, 38 Cal. App. 5th 1087, 1108 (2019).
“The first step in evaluating any equal protection claim is
determining whether there are two groups of individuals who are
similarly situated with respect to the legitimate purpose of the law
but are being treated differently.” Id. (Internal quotation marks
omitted). Next, the Court must “ascertain whether the Legislature
has a constitutionally sufficient reason to treat the groups
differently.” Id. Laws that discriminate based on a “suspect
classification” (e.g., race, gender, national origin) or affect a
fundamental right – like the right to vote and the right to freedom
of association – must be narrowly tailored to further a compelling
government interest. Id.

Page 33
Here, NPP voters (like Plaintiffs) are similarly situated to
party-affiliated voters in that all must be qualified voters in
California, all have the constitutional rights to vote (including
presidential-primary elections), and no vote cast in favor of any
presidential-primary candidate is binding on a political party. See
II AA 812 (¶ 38), 813 (¶ 50), 815 (¶¶ 58, 59, 61); see also Democratic
Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 126
(1981) (holding that state could not bind its Democratic delegation
to results of open primary) (“La Follette”). Moreover, the State’s
obligations to voters – whether NPP or party-affiliated – are the
same. See II AA 815 (¶ 59).
There can be little argument that party-affiliated voters and
NPP voters receive different treatment under California’s system
for presidential-primary elections. See, e.g., II AA 812-813 (¶ 44),
814-815 (¶¶ 54-57). In the context of private political parties
selecting their respective nominee, this disparate treatment
serves a legitimate purpose and is perfectly legal. See Jones, 530
U.S. at 575, 577. However, when the State is discriminating in
this manner and disparately treats qualified registered voters in
the public-primary process, such treatment is constitutionally
impermissible and violates equal protection. See II AA 817 (¶¶ 76-
79). While the political parties have a valid reason for treating
voters differently, the State does not.
First, in denying NPP voters (like Plaintiffs) the opportunity
to cast a vote in a presidential primary, Respondents are
obstructing NPP voters’ access to an integral stage of the
presidential-election process merely because they chose to not

Page 34
associate with a political party. In this respect, the U.S. Supreme
Court’s legislative-apportionment cases (i.e., upholding the “one
person, one vote” rule) are analogous and instructive as they speak
to the same rights and principles that underlie Plaintiffs’ claims.
No right is more precious in a free
country than that of having a voice in
the election of those who make the
laws under which, as good citizens, we
must live. Other rights, even the most
basic, are illusory if the right to vote is
undermined. Our Constitution leaves no
room for classification of people in a way
that unnecessarily abridges this right.
Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964) (emphasis added).

Elsewhere, the High Court has held Alabama’s apportionment
scheme based on population data that were over 60 years old
violated equal protection because it did not consider population
shifts and growth, reasoning:
Since legislatures are responsible for
enacting laws by which all citizens are to
be governed, they should be bodies which
are collectively responsive to the popular
will. And the concept of equal
protection has been traditionally
viewed as requiring the uniform
treatment of persons standing in the
same relation to the governmental
action questioned or challenged. With
respect to the allocation of legislative
representation, all voters, as citizens of a
State, stand in the same relation
regardless of where they live.

Page 35
Reynolds v. Sims, 377 U.S. 533, 565 (1964) (emphasis added).
Similarly, the Court has rhetorically observed: “How then can one
person be given twice or 10 times the voting power of another
person in a statewide election merely because he lives in a rural
area, or because he lives in the smallest rural county?” Gray v.
Sanders, 372 U.S. 368, 379 (1963).
California’s system does not consider that the rise or shift in
the number of voters who register as NPP (and the corresponding
reduction in the number of voters registering with the political
parties) is creating similar inequity. See I AA 72-73 (“Other”
column), 75 (“No Party Preference” column). Providing political
parties and their voters with State-administered presidential
primary ballots but not providing NPP voters with ballots giving
them presidential choices dilutes the NPP voters’ voice and
expression of political preference. California’s understanding of
party affiliation as a minimal burden within the context of
participating in a political party’s nomination proceedings cannot
be squared with the ever-increasing number of voters who do not
want to associate with any of the political parties or participate in
their private nomination processes at all.
As alleged in the SAC, the presidential primary is scarcely
more than a State-sponsored straw poll. II AA 813 (¶ 50). By a
private party’s internal rules, it is not required to accept the
results of the primary election. Id.; Elec. Code §§ 6002(b), 6300(b),
6461(c); see also La Follette, 450 U.S. at 126. How the private
political parties select their “standard bearer” is a wholly separate
process; the State cannot interfere with the private affairs of the

Page 36
political parties. See Jones, 530 U.S. at 575; see also, e.g., Elec.
Code §§ 6002(b), 6300(b), 6461(c).
Respondents already send out various forms of the primary
ballot and report separate primary results by party. See II AA 815
(¶¶ 59, 60). Thus, there is no legitimate reason to deny NPP voters
the right to express their political preference in the same way that
party-affiliated voters can. All things being equal and assuming all
other requirements for being a qualified registered voter are met,
Respondents lack a sufficient reason to treat these two similarly
situated groups of voters – party-affiliated and NPP – differently.
By denying NPP voters the right to participate in the
presidential-primary election – i.e., giving NPP voters no voice or
opportunity to express themselves at this integral stage of the
election process unless they are willing to waive or relinquish their
constitutional right not to associate with a political party –
undermines NPP voters’ right to vote in a primary election. Cf.
Wesberry, 376 U.S. at 17-18.
Next, Respondents also treat NPP voters differently by
requiring them to jump through additional, onerous hoops in order
to participate in the presidential-primary election as crossover
voters without a sufficiently good reason for doing so.
The presidential-primary system imposes burdens on NPP
voters’ ability to cast a vote in the public presidential-primary
election that are not borne by party-affiliated voters. See II AA 814-
815 (¶¶ 54-57). Party-affiliated voters by default get to participate
in the presidential-primary election. II AA 815 (¶ 57). NPP voters
by default do not get to participate; instead, NPP voters are

Page 37
provided a nonpartisan ballot which does not include an option to
cast a vote for any presidential candidate. Elec. Code § 2151(b)(1);
II AA 812 (¶ 44). Setting aside the fact that forced association with
a political party as a precondition for exercising one’s right to vote
is also constitutionally impermissible (see section IV-B-1-i, supra),
the confusing steps that an NPP voter needs to navigate in order
to cast a crossover vote in a presidential-primary election without
sacrificing their non-partisan status are unduly burdensome and
have the effect of disenfranchising millions of voters each election
cycle.8 See II AA 805 (¶ 4), 807 (¶¶ 13-14), 814-815 (¶¶ 54-57).
The State administers and conducts the presidential-
primary election in accordance with the private political parties’
rules, including the exclusion of NPP voters. See II AA 812 (¶ 44),
813 (¶¶ 46-49), 814 (¶ 54), 815 (¶ 57). This converts the political
parties’ rules into government-sanctioned discrimination. Jones,
530 U.S. at 573. Yet the purpose of the presidential-primary
election is to obtain an advisory vote from the electorate. See II
AA 813-814 (¶ 50). All votes cast in a presidential primary are
nonbinding on the political parties in their selection of their
general-election nominee. Id.; see also La Follette, 450 U.S. at 126
(holding that state could not bind Democratic delegation to result
8Reporting from the 2020 primary election is that, despite polls

showing 75% of NPP voters wanted to vote for a Democratic
presidential candidate, the statewide crossover ballot request rate
was only 9%. See Sam Metz, California crossover ballot rules leave
millions of votes uncast? Desert Sun (March 3, 2020, 11:16 a.m.),
https://amp.desertsun.com/amp/4628142002.

Page 38
of open primary). Therefore, by enforcing the political parties’
rules on who may and may not participate in presidential-primary
elections, the State is denying NPP voters’ equal access to the
State’s public presidential-primary process without a sufficiently
good reason for doing so. See also II AA 907:8-9 (“Plaintiffs [sic]
allegations demonstrate they are treated differently than
members of political party members [sic].”). The disparate
treatment of similarly situated voters furthers no legitimate State
interest; even if the political parties have an interest in limiting
NPP voters’ access to the presidential primary election process,
the State has no such interest. See II AA 815 (¶ 59), 817 (¶¶ 76-
77), 906:4-8.
Plaintiffs allege that they have either reluctantly registered
for a political party in order to exercise their fundamental right to
participate in the presidential-primary elections or, by virtue of
their NPP status, have not been afforded an equal opportunity to
participate in this integral stage of the presidential-election
process. II AA 811-812 (¶¶ 30-37). Either way, NPP voters face
unconstitutional burdens on their ability to participate in the
presidential-primary process that no party-affiliated voter faces.
Cf. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.”).
Thus, Plaintiffs have alleged facts sufficient to support their
claim for violation of equal protection under the U.S. and
California Constitutions and the demurrer should have been
overruled.

Page 39
iii. California’s Presidential-Primary System
Violates Plaintiffs’ Right to Substantive
Due Process
Plaintiffs’ second and fifth causes of action allege violations
of their substantive due-process rights under the state and federal
constitutions, respectively. II AA 816-817.
Article I, section 7, of the California Constitution provides
that “[a] person may not be deprived of life, liberty, or property
without due process of law or denied equal protection under the
laws.” The Fourteenth Amendment to the United States
Constitution contains nearly identical language. See U.S. Const.,
amend., XIV § 1. The federal due-process clause protects
“fundamental rights and liberties,” which are “deeply rooted in the
Nation’s history and tradition.” Washington v. Glucksberg, 521
U.S. 702, 720-721 (1997) (“Glucksberg”). To that end, government
is forbidden from infringing on one’s fundamental rights or liberty
interests unless the infringement is narrowly tailored to serve a
compelling state interest. Dawn D. v. Superior Ct. (Jerry K.), 17
Cal. 4th 932, 939 (1998).
California has adopted the U.S. Supreme Court’s
methodology for assessing substantive due-process claims. “First,
the court must make a ‘careful description of the asserted
fundamental liberty interest.’” Id. at 940 (quoting Glucksberg, 521
U.S. at 720-721 ). “Second, the court must determine whether the
asserted interest, as carefully described, is one of our fundamental
rights and liberties.” Id. “Only if a court decides the asserted
liberty interest is a fundamental interest protected by the due

Page 40
process clause does it weigh the state’s countervailing interest ...
to justify the state’s infringement of the liberty interest.” Id. at
940-941.
Here, Plaintiffs allege that they have the constitutionally
protected rights not to associate with a political party if they so
prefer and to vote for the candidate of their choice in the public-
election process, including the presidential-primary election. II AA
808-809 (¶ 18), 818 (¶ 87). These are the fundamental liberty
interests at stake in this lawsuit. See Reynolds, 377 U.S. at 555
(“The right to vote freely for the candidate of one’s choice is of the
essence of a democratic society, and any restrictions on that right
strike at the heart of representative government.”); accord Moore
v. Ogilvie, 394 U.S. 814, 818 (1969) (“Ogilvie”); see also Jones, 530
U.S. at 574 (the right to associate in furtherance of common
political beliefs includes “the right not to associate.”). 9
Plaintiffs further allege that Respondents’ administration of
the presidential-primary system infringes upon these liberty
interests held by Plaintiffs and other similarly situated voters. See
II AA 811-812 (¶¶ 30-37), 816-817 (¶¶ 70-75), 818-819 (¶¶ 86-95).
Plaintiffs go on to describe how their fundamental rights are being
infringed by Respondents. See, e.g., II AA 805-806 (¶¶ 5-9), 808 (¶
16), 809 (¶¶ 21, 22), 811-812 (¶ 37), 812-814 (¶¶ 44-50), 814-815
(¶¶ 54-61). These allegations – which must be accepted as true and
given a liberal construction – are sufficient to state a due-process
9These principles of law were confirmed by the trial court in its

ruling on the MJOP. See II AA 797:5-11.

Page 41
claim. See Gerawan Farming, Inc., 24 Cal. 4th at 515-516.
Therefore, this Court should reverse the trial court’s order
sustaining Respondents’ demurrer and find Plaintiffs’ SAC
sufficiently alleges their due process claim.
2. Plaintiffs Allege Facts Sufficient to State a

Claim under Article XVI, Section 3, of the
California Constitution: Unconstitutional
Appropriation of Public Funds
Plaintiffs’ fourth cause of action alleges violations of Section

3 of Article XVI of the California Constitution, which prohibits the
appropriation of public funds for any private purpose. This claim
dovetails from the constitutional violations described above
because it is the constitutionally infirm presidential-primary
system administered by Respondents that causes the
appropriation of public funds in support of that system to be,
likewise, constitutionally infirm.
Subject to exceptions not applicable here, the California
Constitution states: “No money shall ever be appropriated or
drawn from the State Treasury for the purpose or benefit of any
corporation, association, asylum, hospital, or any other institution
not under the exclusive management and control of the State as a
state institution, nor shall any grant or donation of property ever
be made thereto by the State….” Cal. Const., art. XVI, § 3.
Notably, the political parties are private organizations not “under
the exclusive management and control of the State.” See id. They

Page 42
serve their own purposes. Accord Jones, 530 U.S. at 573 (party
affairs are not public affairs).
California’s presidential-primary system violates the
California Constitution because it (i) serves a predominantly
private purpose, (ii) explicitly disenfranchises a certain class of
voter (i.e., NPP voters) based solely on their political non-
affiliation or requires the relinquishment of constitutional rights
to participate, and (iii) is financed by public monies appropriated
from the State Treasury.
California’s presidential-primary system only serves the
interest of the political parties and their voters; in fact, the results
are merely advisory (i.e., not binding) in the ultimate selection of
the parties’ respective nominees at party conventions. See II AA
813-814 (¶ 50), 815 (¶¶ 58, 61). A public presidential-primary
system that provides no non-partisan benefit cannot serve a
legitimate public purpose. Indeed, while “[t]he Legislature ...
[must] provide for registration and free elections,” preventing
upwards of 25 percent of registered voters from participating in
those “free elections” for the sole benefit of the political parties
(who get to control voter access to the ballot without having to
honor the results) is an unconstitutional appropriation of public
funds. See II AA 817-818 (¶¶ 80-85). Moreover, Respondents have
the ability to administer a presidential-primary election in a
manner that does not violate the rights of NPP voters. See, e.g., II
AA 815 (¶ 60).
NPP voters have to bear the tax burden for an election that
serves private political parties (to which they don’t belong), not the

Page 43
public. While taxpayers often must pay for programs that they may
not support, taxation should never be levied in a manner that
creates inequitable representation. II AA 809 (¶ 19).
The allegations in the SAC are sufficient to state a claim for
unconstitutional appropriation of public funds for a private
purpose. Accordingly, Respondents’ demurrer should have been
overruled.
C. Governing Law Protecting First Amendment

Rights of Political Parties Does Not Foreclose
Plaintiffs’ Claims
Both Respondents and the trial court believed that Jones

and Clingman were dispositive and foreclosed Plaintiffs’ claims.
See, e.g., II AA 832:22-28, 901:2-6. However, this lawsuit is not
governed by Jones or Clingman in the way Respondents and the
trial court described. Those cases analyzed the associational rights
of private political parties in selecting their respective
nominees and under what circumstances burdens imposed by the
state on those rights were justified. The fundamental right to vote
and to be free from forced political associations – both of which
were held protected by Jones and Clingman – are precisely the
rights that Plaintiffs seek to vindicate here. Nothing about
Plaintiffs’ claims or the relief they seek imposes anything – not a
burden, and not a benefit – on political parties.

Page 44
1. Jones Does Not Foreclose Plaintiffs’ Claims
and Actually Strengthens Them
Both Respondents’ and the trial court agreed that Plaintiffs’

claims are foreclosed by the Supreme Court’s decision in Jones.
Their error is two-fold.
First, the question answered in Jones was whether a
political party had a First Amendment right to associate (or not)
with voters not affiliated with that party in the process of
selecting that party’s nominee. Jones did not consider whether
a non-partisan (i.e., NPP) voter has the right to participate in the
State’s presidential-primary election without the State-mandated
condition of having to affiliate with one of the qualified political
parties. Cases are not authority for propositions not considered.
In re Marriage of Cornejo, 13 Cal. 4th 381, 388 (1996).
Second, the legal principles in Jones actually support
Plaintiffs’ claims. In 1996, California voters passed Proposition
198 and thereby changed the State’s primary system from a
“closed” partisan primary, in which only party members can vote
for candidates of their party, to a “blanket” primary in which “‘[a]ll
persons entitled to vote, including those not affiliated with any
political party, shall have the right to vote … for any candidate
regardless of the candidate’s political affiliation.’” Jones, 530 U.S.
at 570 (citing Elec. Code § 2001). Four political parties
challenged the blanket-primary system, successfully arguing that
it severely burdened their First Amendment right to associate (or
not) because it “force[d] the political parties to associate with – to
have their nominees, and hence their positions, determined

Page 45
by – those who, at best, have refused to affiliate with the party,
and, at worst, have expressly affiliated with a rival.” Id. at 577
(emphasis added). The Supreme Court found that “Proposition 198
forces [the political parties] to adulterate their candidate-
selection process – the ‘basic function of a political party,’
[citation] – by opening it up to persons wholly unaffiliated with
the party.” Id. at 581 (emphasis added). In declaring Proposition
198 unconstitutional as applied, the Supreme Court held that a
political party has the First Amendment right not to associate with
voters who decline to register with that party. Id. at 581.
Therefore, the State could not require political parties, through a
blanket-primary system, to associate with non-party-affiliated
voters (whether registered as NPP or with another party) in their
candidate-selection process. Id.
Jones stands for the proposition that political parties have
the right to decide who their nominees – their “standard-bearers”
– will be. Jones does not stand for the proposition that the
constitutional rights of individual voters are secondary or
subordinate to those of the political parties; in fact, it’s quite the
contrary. The Court specifically recognized that a voter’s right “to
cast a meaningful vote” was a fundamental right. Id. at 573 n.5.
The Court also recognized that the State’s interests in “promoting
fairness, affording voters greater choice, increasing voter
participation, and protecting privacy” could be compelling but were
not “in the circumstances of this case.” Id. at 584 (italics in
original).

Page 46
The “constitutionally crucial” characteristic that doomed
Proposition 198 was that the primary voters were choosing the
political parties’ nominees, not that affiliated and unaffiliated
voters were given equal opportunity to express their preferred
candidates for President of the United States. Id. at 585-586; see
also id. 573 n.5 (“the associational ‘interest’ in selecting the
candidate of a group to which one does not belong [] falls far short
of a constitutional right” (emphasis added)).
The Jones Court shrugged off “the plight of the non-party-
member” in dicta: “The voter who feels himself disenfranchised
should simply join the party” if the voter wants to participate in
that party’s affairs. Jones, 530 U.S. at 584. But here, Plaintiffs are
not looking to participate in the affairs of private political parties
but only to express themselves in the public presidential-primary
process. See II AA 805-806 (¶ 7), 807-808 (¶ 15), 811-812 (¶¶ 30-
37).10 This distinction was specifically recognized by the Court: “[i]f
the ‘fundamental right’ to cast a meaningful vote were really at
issue in this context, Proposition 198 would be not only
constitutionally permissible but constitutionally required.”
Id. at 573 n.5 (emphasis added). Indeed, the Court in dicta opined
that “a nonpartisan blanket primary” would be constitutionally
10Plaintiffs’ claims have evolved since the commencement of this

lawsuit. To the extent any of Plaintiffs’ claims can be construed as
seeking to participate in affairs of political parties, such a
construction is not intended as even the primary votes of party-
members are non-binding on the political parties and are merely
advisory. See II AA 813-814 (¶ 50), 815 (¶¶ 58, 61).

Page 47
permissible. Id. at 585 (italics in original). “Under a nonpartisan
blanket primary, a State may ensure more choice, greater
participation, increased ‘privacy,’ and a sense of ‘fairness’ – all
without severely burdening a political party’s First Amendment
right of association.” Id. at 586. Thus, Jones did not foreclose
Plaintiffs’ claims but rather opened the door wide open for them.
The question before the Jones Court focused on the rights
that political parties have to control their nomination process.
Here, in contrast, the question focuses on the rights that
individual voters have to participate in the State’s presidential-
primary process without having to sacrifice political independence.
Such a question is ripe for review. See Jones, 530 U.S. 581 (“We
have consistently refused to overlook an unconstitutional
restriction upon some First Amendment activity simply because it
leaves other First Amendment activity unimpaired.”); accord
Spence v. State of Wash., 418 U.S. 405, 411 n.4 (1974) (rejecting
notion that freedom of expression is “minuscule and trifling”
because there are “thousands of other means available to (him) for
the dissemination of his personal views” … “‘one is not to have the
exercise of his liberty of expression in appropriate places abridged
on the plea that it may be exercised in some other place.’”).
Plaintiffs believe that if faced with the question presented in this
case, the nation’s highest court would not be so dismissive of the
rights of individual non-partisan voters. 11
11 A similar declaration of “standing precedent” was made by a

district court in Moore v. Shapiro, 293 F.Supp. 411, 414 (N.D. Ill.
1968). There the plaintiffs urged the district court to hold prior

Page 48
2. Clingman Does Not Foreclose Plaintiffs’
Claims and Actually Strengthens Them
Respondents similarly argued and the trial court ruled that

Plaintiffs’ claims are foreclosed by Clingman, and they are again
similarly mistaken.
First, the question answered in Clingman was whether
requiring a voter to disaffiliate from one political party in order
to participate in the primary election of another political
party burdened the latter political party’s First Amendment
right to associate with non-party-affiliated voters in the process
of selecting of the latter party’s nominee. That decision had
nothing to do with burdens imposed on non-partisan voters.
Second, the legal principles in Clingman also support
Plaintiffs’ claims. There, Oklahoma’s semi-closed primary law
permitted a political party to invite its own party members and
voters registered as “independent” (similar to NPP in California)
to participate in its primary election but did not permit a political
party to similarly invite members registered to other parties to
participate. Clingman, 544 U.S. at 585. The Libertarian Party of
Oklahoma (“LPO”) wanted to invite all voters – Libertarian,
independent, Republican and Democrat – to participate in its
presidential-primary election but the state refused to allow it.
Id. at 584-585. The question was “whether the Constitution
precedent not to be controlling and the district court declined. Id.

When that case reached the U.S. Supreme Court, it reversed the
district court’s ruling and explicitly overruled the prior precedent
(as plaintiffs had been urging). See Ogilvie, 394 U.S. at 819.

Page 49
requires that voters who are registered in other parties be allowed
to vote in the LPO’s primary.” Clingman, 544 U.S. at 588
(emphasis added). Concluding that the answer was “no,” the Court
held that Oklahoma’s primary system did not violate the free-
association rights of the Libertarian Party, which wanted to invite
any and all voters to participate in its primary election, because
the state’s regulatory interest justified the restriction. Id. at 584,
593-594.
The Clingman Court was concerned with the “voter who was
unwilling to disaffiliate from another party to vote in the LPO
primary” and whether voters were “locked in” to a particular
affiliation. Id. at 589, 591. The Court found that “requiring voters
to register with a party [i.e., disaffiliate from one party and join
another] prior to participating in the party’s primary
minimally burdens voters’ associational rights.” Id. at 592
(emphasis added). Importantly, the result of the primary vote
would “assist in selecting the Libertarian Party’s candidates for
the general election.” Id. at 588. For the same reasons the Court
struck down California’s blanket primary in Jones, it upheld
Oklahoma’s semi-closed primary in Clingman. See id. at 588-589.
Just as in Jones, the focus in Clingman was on the effect of the
challenged law on the political parties’ nominee-selection
process. Again, Plaintiffs are not looking to participate in the
affairs of the private political parties but rather to express
themselves in the State-funded presidential-primary process. See

Page 50
II AA 805-806 (¶ 7), 807-808 (¶ 15), 811-812 (¶¶ 30-37). 12 Political
parties will remain just as free to ignore the votes cast by NPP
voters, but at least NPP voters will have had their preferences
tallied and reported by the State.
D. Plaintiffs’ Claims Should Be Decided on the Merits
In cases like this one, the U.S. Supreme Court has laid out
the analytical framework to be followed:
“[C]onstitutional challenges to specific
provisions of a State’s election laws …
cannot be resolved by any ‘litmus-paper
test’ that will separate valid form invalid
restrictions.” [Citations.] “Instead, a court
… must first consider the character and
magnitude of the asserted injury to the
rights protected by the First and
Fourteenth Amendments that the
plaintiff seeks to vindicate. It then must
identify and evaluate the precise interests
put forward by the State as justification
for the burden imposed by its rule. In
passing judgment, the Court must not
only determine the legitimacy and
strength of each of those interests, it also
must consider the extent to which those
interests make it necessary to burden the
plaintiff's rights.”
Tashjian, 479 U.S. at 213-214; see also Burdick v. Takushi, 504

U.S. 428, 434 (1992).
Whether or not the rights and/or burdens that Plaintiffs
describe in the SAC are ultimately “outweighed by the State’s
12 See supra note 9.

Page 51
countervailing interest” involves factual determinations and a
review of the evidence that goes beyond the face of the pleadings.
See Rawls v. Zamora, 107 Cal. App. 4th 1110, 1115 (2003) (“the
constitutionality of election laws can only be determined by a
complete weighing of interests given the high-stake goal that
elections be fair and honest.”); Nealy v. Cty. of Orange, 54 Cal. App.
5th 594, 597 (2020), review denied (Dec. 16, 2020) (“In reviewing a
trial court’s ruling sustaining a demurrer, [the court’s] focus is
limited to the facts alleged on the face of the pleadings and its
exhibits, and any facts subject to judicial notice.”). Indeed, the
cases cited by the trial court in its demurrer ruling were all decided
after some form of evidentiary hearing (i.e., motion for summary
judgment or trial) and not through a challenge to the pleadings.
See, e.g., Tashjian, 479 U.S. at 211 (decided on motion for summary
judgment); Burdick, 504 U.S. at 432 (decided on motion for
summary judgment); Jones, 530 U.S. at 599 (decided after bench
trial); Clingman, 544 U.S. at 584 (decided after bench trial).
Implicit in these holdings is that the burdens and countervailing
governmental interests cannot be determined on the pleadings. As
such, this case should be permitted to advance beyond the
pleadings stage and should be heard on the merits.
In its ruling sustaining Respondents’ demurrer, the trial
court stated: “the law is clear that the semi-closed primary system
in California is constitutional and elections law will invariably
impose some burden on individual voters. Plaintiffs have still
failed to allege facts to demonstrate arbitrary acts on the part of
the State or showing the State unreasonably deprived them of

Page 52
life, liberty or property without due process.” II AA 900:2-6
(underline in original; emphasis added). The trial court’s ruling
has two problems.
First, in stating that California’s primary system is
constitutional, the trial court was referring to the Supreme Court’s
decision in Clingman, which was decided on its merits based on
the facts before the Court. Plaintiffs’ case should be afforded the
same opportunity. Cf. Ogilvie, 394 U.S. at 819 (overruling prior
precedent based on few facts and circumstances).
Second, the trial court erroneously required a higher level of
pleading that is not required by law. See C.A., 53 Cal. 4th at 872
(a plaintiff need not allege each evidentiary fact). The SAC was
only required to allege facts sufficient to state a claim, not allege
facts sufficient to prove a claim. A liberal reading of the SAC
discloses that Plaintiffs obviously believe the acts of Respondents
are arbitrary and unreasonable. See generally II AA 804-823.
Moreover, the SAC seeks declaratory relief under Code of Civil
Procedure section 1060 (and analogous federal authority). In
declaratory-relief actions, any doubts as to the propriety of
declaratory relief should be resolved in favor of Plaintiffs. See
Filarsky v. Superior Ct., 28 Cal. 4th 419, 433 (2002).
Because Plaintiffs’ SAC alleged facts sufficient to state a
claim that California’s presidential-primary system violates the
U.S. and California Constitutions, Respondents’ demurrer should
have been overruled.

Page 53
V. CONCLUSION
Plaintiffs’ SAC alleged facts sufficient to state their claims

and the trial court erred in holding otherwise and in requiring a
heightened level of pleading to survive Respondents’ demurrer.
Whether or not the claimed burdens are constitutionally
permissible goes beyond the face the pleadings and to the merits
of Plaintiffs’ claims. Plaintiffs deserve the opportunity to present
their evidence of unconstitutional burdens and to have their claims
heard on their merits. For these reasons, this Court should reverse
the trial court’s ruling that sustained Respondents’ demurrer and
find that Plaintiffs sufficiently alleged the claim in the SAC.

Page 54

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Court of Appeal, Fourth Appellate District, Division Two Court of Appeal, Fourth Appellate District, Division Two

Kevin J. Lane, Clerk/Executive Officer Kevin J. Lane, Clerk/Executive Officer

Docket No. E076797

IN THE COURT OF APPEAL

JIM BOYDSTON, STEVEN FRAKER, DANIEL HOWLE,

ALEX PADILLA, as SECRETARY OF STATE; and STATE OF

San Bernardino County Superior Court

APPELLANTS’ OPENING BRIEF

BRIGGS LAW CORPORATION PEACE & SHEA, LLP

Attorneys for Plaintiffs and Appellants

ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NUMBER: 176284

APPELLANT/ JIM BOYDSTON; STEVEN FRAKER, et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Full name of interested Nature of interest

Date: January 20, 2022

ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NUMBER: 176284

APPELLANT/ JIM BOYDSTON; STEVEN FRAKER, et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Full name of interested Nature of interest

Date: January 20, 2022

ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NUMBER: 176284

APPELLANT/ JIM BOYDSTON; STEVEN FRAKER, et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Full name of interested Nature of interest

Date: January 20, 2022

ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NUMBER: 176284

APPELLANT/ JIM BOYDSTON; STEVEN FRAKER, et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Full name of interested Nature of interest

Date: January 20, 2022

ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NUMBER: 176284

APPELLANT/ JIM BOYDSTON; STEVEN FRAKER, et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Full name of interested Nature of interest

Date: January 20, 2022

ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NUMBER: 176284

APPELLANT/ JIM BOYDSTON; STEVEN FRAKER, et al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Full name of interested Nature of interest

Date: January 20, 2022

I, Cory J. Briggs, hereby certify, pursuant to California Rule

Appellant’s Opening Brief

Appellant’s Opening Brief

Appellant’s Opening Brief

Appellant’s Opening Brief

Appellant’s Opening Brief

Appellant’s Opening Brief

Appellant’s Opening Brief

The State has millions of “no party preference” or “NPP”

Appellant’s Opening Brief

Appellant’s Opening Brief

Both the right to vote and the right to associate – or not

1 For purposes of demurrer, Plaintiffs’ factual allegations must be

California’s governor in 2020 to fill the U.S. Senate seat vacated

Appellant’s Opening Brief

Assemblywoman Dr. Shirley N. Weber was appointed to succeed