Modification: Boydston v. Padilla

JIM BOYDSTON et al.,

Plaintiffs and Appellants,

v.

ALEX PADILLA, as Secretary of State, etc., et al.,

Defendants and Respondents.

No. D080921

(Super. Ct. No. CIVDS1921480)

California Court of Appeal

Fourth Appellate District

Division One

Filed April 12, 2023

ORDER CERTIFYING

OPINION FOR PUBLICATION

THE COURT:

The opinion in this case filed March 21, 2023 and modified on April 11, 2023 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is GRANTED.

IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and

ORDERED that the words "Not to Be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.

IRION, Acting P. J.

Copies to: All parties

JIM BOYDSTON et al.,

Plaintiffs and Appellants,

v.

ALEX PADILLA, as Secretary of State, et al.,

Defendants and Respondents.

No. D080921

(Super. Ct. No. CIVDS1921480)

California Court of Appeal

Fourth Appellate District

Division One

Filed April 11, 2023

ORDER MODIFYING OPINION

AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on March 21, 2023, be modified as follows:

The first sentence of the opinion (beginning with "In this case . . .") is deleted and replaced with the following:

In this case, we reject the plaintiffs' assertion of a novel and peculiar constitutional right to vote in California's presidential primary for the candidate of a political party they have chosen not to join---without having their votes count for anything other than their expressive value.

Immediately after the first full sentence on page 19 (beginning with "Not only is Plaintiffs' desire . . ."), the following footnote is inserted, which will necessitate the renumbering of subsequent footnotes:

Plaintiffs also contend that their claims are not foreclosed by Supreme Court precedent because, unlike in Jones, (1) plaintiffs' complaint focuses on the rights of individual voters rather than political parties, and (2) plaintiffs allege that California's primary system is a "state-sponsored straw poll," as the political parties are not bound by the results in nominating a candidate. We reject this argument for the same reasons we have just explained. First, even if we were to accept that Jones is distinguishable, plaintiffs fail to sufficiently distinguish their case from Clingman. Clingman also involved the rights of individual voters and a semi-closed primary system that, like California's, leaves each political party "free to . . . nominate the candidate of its choice." (Clingman, supra, 544 U.S. at p. 587.) Plaintiffs repeatedly emphasize language from the Clingman opinion referencing the Libertarian Party of Oklahoma's primary---presumably to contrast with what they refer to as California's "state-funded presidential-primary process"---but fail to explain how California's presidential primary process is materially different from the system in Oklahoma upheld as constitutional by the Supreme Court. Second, as we have explained, plaintiffs' desire to express themselves via the presidential primary process without actually assisting in the selection of a party's nominee does not implicate any constitutional right.

There is no change in judgment.

The petition for rehearing is denied.

IRION, Acting P. J.

Copies to: All parties