Application for stay of California Supreme Court's order denying
mandamus to require state officials to accept applicant's
nomination papers as candidate for the United States Senate, and
for order restraining the officials from refusing to accept the
papers, is denied, where the application does not disclose whether
the state court's denial of mandamus rested on an independent
state, rather than a federal, ground.
MR. JUSTICE DOUGLAS, Circuit Justice.
Hayakawa desires to run for the Senate from California on the
Republican ticket. He has until March 8, 1974, to file. When the
County Clerk and Secretary of State refused to accept his papers,
he petitioned California's Supreme Court for a writ of mandamus.
That court, on a 4-to-3 vote, denied it, no opinion being written.
Hayakawa plans to apply for certiorari here from that denial, and
meanwhile wants me to stay the order of the California Supreme
Court denying mandamus, pending the filing and disposition of a
petition for certiorari here. His application also requests me to
restrain the state officials from refusing to accept his nomination
papers. The barrier confronting the state officials is § 6401 of
the California Election Code, which prohibits a candidate from
being a candidate of one party when he has within 12 months been
registered with another party. Cases raising the constitutionality
of provisions of that character are before the Court and not yet
decided in No. 72-812,
Storer v. Brown, and No. 72-6050,
Frommhagen v. Brown. It would seem at first blush that the
present
Page 415 U. S. 1305
case, being of he same kind as
Storer and
Frommhagen, should be considered along with them.
The difficulty is that I have no way of knowing whether denial
of the writ of mandamus rested on an independent state ground. That
is an extraordinary writ, the issuance of which is traditionally
discretionary. It may be that one acquainted with the labyrinth of
California procedure would see the answer more clearly than I do.
Yet the federal question -- our only fulcrum in the case -- has not
yet surfaced in the litigation, as denial of mandamus, without
more, may conceal a number of independent state grounds.
Application denied.
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