#### Sam YORTY and James E. Miller, Petitioners, v. Richard B. STONE, Secretary of State, State of Florida, et al., Respondents.

No. 42045.

Supreme Court of Florida.

Feb. 22, *1972.*

James E. Miller, in pro per and for Sam Yorty, petitioners.

Robert L. Shevin, Atty. Gen., and Daniel S. Dearing, Asst. Atty. Gen., and Clinton H. Coulter, Jr., Tallahassee, for respondents.

DEKLE, Justice.

Former President of the United States, Harry S. Truman, once said in reference to the political arena that, “If you can’t stand the heat, you should stay out of the kitchen.” Perhaps this observation of that terse patriot of Independence, Missouri, expresses in a sense the answer to the challenge by petitioner, Los Angeles’ May- or Sam Yorty, to Florida’s new presidential preference primary law which places *147on the ballot for March 14, all “presidential candidates who are generally advocated or recognized in news media throughout the United States or in the state.” 1

We recognize the sacrifice that it is to privacy to have your name submitted to the people as a candidate for public office without having the choice whether your name will appear on the ballot. Privacy, however, yields to public interest when a citizen chooses to reach for the high goal of the presidency of these United States. He becomes a public figure in the sense expressed in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).2

*148Petitioner Yorty seeks writ of mandamus or prohibition to require respondents Secretary of State Stone and Committee members named to comply with petitioner’s request to remove his name from the list of candidates to appear on the March 14, 1972, Florida presidential primary ballot. There is no dispute that Mayor Yorty is recognized in the news media throughout the country, as well as in Florida, as a declared candidate for President of the United States; and that he is actively campaigning in the New Hampshire primary of March 7. He just does not wish to submit his name in the Florida primary, contending that he “doesn’t have the financial resources to participate in all of the important primaries” and that thereby his inability to campaign in Florida could cause “irreparable harm” to his national candidacy if he appeared on the ballot in Florida “and then fails to do well;” that placing his name on the ballot in Florida is in violation of his right of privacy under Fla. Const. art. I, § 2, F.S.A., and violates due process of law under Fla.Const. art. I, § 9, as well as such rights under Amendments I and XIV of the United States Constitution. Jurisdiction vests under Fla. Const, art. V, § 4(2).

Petitioner cites as his authority this Court’s earlier case of Battaglia v. Adams, Secretary of State, 164 So.2d 195 (Fla.1964). The Attorney General says that *Battaglia*does not apply and is to be distinguished because there President Richard M. Nixon, then a private citizen and not an announced candidate for office, requested and was successful in having his name removed from the primary ballot in Florida. *Battaglia*was of course prior to the present statute. Our Chief Justice Roberts in that opinion referred to State ex rel. Burch v. Gray, 125 So.2d 876 (Fla.1960), wherein a slate of electors in Florida sought to *include*the name of Governor Orval Faubus of Arkansas on the Florida presidential primary ballot. Governor Faubus requested that his name be removed from the ballot and this Court affirmed the opinion of then Attorney General Richard W. Ervin, a present Justice on this Court, to remove his name from *149the ballot. There Mr. Nixon was not isolating a given primary in one of the states from which he sought to withdraw his name as a primary preferential candidate, but based his request for removal of name from the ballot upon “my decision not to enter my name in presidential primaries,” thus removing his name from *any*primary consideration as a candidate. It would seem that it is a matter of “all or none” in a determination of this kind.

In *Battaglia,*we also said:

> “. . . it appears to be generally held that, in the absence of statutory inhibition [which now has occurred], a candidate has a natural or inherent right to resign at any time and to have his name deleted from the ballot [citations omitted].” (bracketed portions added)

Even in *Battaglia,*therefore, our view of protected privacy was predicated upon *“resigning,”*to have his name deleted. He can do that now under the new statute, if he will execute the affidavit. This, the petitioner states he will not do.

Here, the public interest transcends the bounds of privacy accorded to an individual citizen. The candidacy involved is for a national office, of course, and the candidate can no more pick and choose in which states he may be considered, than a candidate for state office might choose to withhold his name in a given county or counties within the 67 counties in Florida where he may feel that he is weak or could not afford the expense of compaigning, as is suggested by petitioner here.

The people also have a right to an orderly election. There may be a reasonable provision to keep the ballot free of unwarranted and meaningless names submitted which are not in serious contention and which would only burden the ballot and detract from those candidates who are in serious contention on the national or state levels. This control is sought to be provided by the terms of the statute.

The statute is a valid exercise of the police power of the state by the Legislature, in whom that power reposes. It is applied equally to all candidates for the presidency and each stands on the same footing, so that there is no denial of *equal*protection and due process under the Florida and United States Constitutions. In this posture of the case we do not need to reach the contention that there was a waiver by Mayor Yorty of his right of privacy which is discussed in *Battaglia, supra,*and also in State ex rel. Haft v. Adams, 238 So.2d 843 (Fla.1970), and New York Times Co. v. Sullivan, *supra.*

The Florida statute makes provision for a candidate to avoid having his name placed on the ballot by submitting an affidavit that he is not and does not presently intend to become a candidate for President at the upcoming Nominating Convention.

Mayor Yorty argues that the state .is “compelling him” to be on a ballot where he does not prefer to be and that this denies him his right of privacy and equal protection under the First and Fourteenth Amendments of the United States Constitution. The aforementioned “escape clause” grants him the “preference” so that he is really making that decision by declaring himself to be a candidate and refusing to exercise the statutory provision mentioned. The candidate cannot “have his cake and eat it too.”

A matter of such magnitude as the selection of the best possible candidate for the highest position in this nation should be controlled by the public’s right to a complete expression of their views and not by the individual’s personal and tactical choices which he exercises as he pursues this goal. The people of Florida should not be denied the right to express themselves in such a choice on any announced candidate, while other states are granted that right of choice, as such candidate chooses. This would be a denial of the *voters’*right of free choice and due process. Other states including Ohio, Wiscon*150sin and Oregon have similar statutes, although no case on those statutes has been cited to us.

We accordingly uphold the constitutionality of those sections of Fla.Stat. §§ 103.-101(3) (a) and 103.101(4), F.S.A. contested here.

Writs of mandamus and of prohibition are denied. The cause is dismissed and in light of the limited time remaining under the statute, we dispense with petitions for rehearing.

It is so ordered.

ROBERTS, C. J., and ADKINS, BOYD and McCAIN, JJ., concur.

ERVIN and CARLTON, JJ., dissent with opinion.

1

. “PRESIDENTIAL ELECTORS: POLITICAL PARTIES; COMMITTEES

> “E. S. 103.101 Presidential preference primary.—

> “(1) This act shall be known and may be cited as the Florida presidential preference primary law.

> “(2) Each political party which had east for its candidate for president and vice-president in the last election more than ten percent (10%) of the total vote east for president and vice-president in the state, and with which ten percent (10%) of the total registered electors have registered by February 1, of each general election year, shall elect on the second Tuesday in March in 1972, and on the second Tuesday in March every four (4) years thereafter, one person to be the candidate for nomination by his party for president of the United States. Each elector of such party may vote his preference for one (1) person to be the candidate for nomination by his party for president.

> “(3) The name of any candidate for a political party nomination for president of the United States shall be printed on the ballots:

> “(a) Upon the direction of a presidential candidate selection committee composed of a non-voting chairman who shall be the secretary of state, the speaker of the house of representatives, the president of the senate, the minority leaders of both the house and senate, and the chairmen of political parties required to have a presidential preference primary under this act, or their respective designees. The secretary of state, during the second week in January each year a presidential preference primary is held, shall prepare and publish a list of names of *presidential candidates who are generally advocated or recognized in news media throughout the United States or in the state.*The secretary of state shall submit such list of names of presidential candidates to the selection committee during the second week in January each year a presidential preference primary election is held. Each person designated by the secretary of state as a presidential candidate shall appear on the presidential preference primary ballot unless all committee members of the same political party as the candidate agree to delete such candidate’s name from the ballot. The selection committee shall meet in Tallahassee during the third week in January each year a presidential preference primary is held, on a date publicly announced by the chairman. The selection committee shall publicly announce and submit the names of presidential candidates who shall appear on the presidential primary ballot to the department of state no later than January 20 each year a presidential preference primary election is held. Not later than February 1, the department of state shall notify each presidential candidate designated by the committee. Such notification shall be in writing by registered mail with return receipt requested. (Emphasis added.)

> * * * * *

> “(4) A candidate’s name shall be printed on the Florida presidential preference primary ballot unless he submits to the department of state by noon February 15 in each year a presidential preference primary is held, an affidavit stating without qualification that he is not now, and does not presently intend to become a candidate for president at the upcoming nominating convention. If a candidate withdraws pursuant to this act, the department of state shall notify the state executive committee that the candidate’s name will not be placed on the ballot.

> “ (5) The names of candidates for political party nominations for president of the United States shall be printed on official ballots for the presidential preference primary elections and shall be marked, counted, canvassed, returned, and proclaimed in the same manner and under the same conditions, so far as the same are applicable, as are other state elections.”

2

. New York Times Co. v. Sullivan, supra (p. 268, 84 S.Ct. p. 720) :

> “ . . . for ‘public men, are, as it were, public property,’ and ‘discussion cannot be denied and the right, as well as the duty, of criticism must not be *148stifled.’ ” From Beauharnais v. Illinois, 343 U.S. 250, at 263-264, 72 S.Ct. 725, 96 L.Ed. 919.

New York Times Co. v. Sullivan, supra (p. 269, 84 S.Ct. p. 720) :

> “The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498. ‘The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.’ Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117.”

New York Times Co. v. Sullivan, supra (p. 270, 84 S.Ct. p. 721) :

> “Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. See Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131; De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 81 L.Ed. 278.”

New York Times Co. v. Sullivan, supra (p. 281, 84 S.Ct. p. 726) :

> “It is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast, and the advantages derived are so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great, and the chance of injury to private character so small, that such discussion must be privileged.” From Coleman v. MacLennan, 78 Kan. 711, 724, 98 P. 281, 286 (1908).

ERVIN, Justice

(dissenting):

We are concerned today with the constitutionality of Section 103.101(4), Florida Statutes, F.S.A., which provides:

> “A candidate’s name shall be printed on the Florida presidential preference primary ballot unless he submits to the department of state by noon February IS in each year a presidential preference primary is held, an affidavit stating without qualification that he is not now, and does not presently intend to become a candidate for president at the upcoming nominating convention. If a candidate withdraws pursuant to this act, the department of state shall notify the state executive committee that the candidate’s name will not be placed on the ballot.”

The majority of this Court holds in this case that the section may constitutionally force potential presidential candidate Sam Yorty to elect one of only two alternatives, permitting his name to be placed on the Florida presidential preference primary ballot or swearing that he is not, and has no intention of becoming, a presidential candidate in the next election. I cannot agree with the majority’s conclusion upholding the validity of the section. It appears to me that the requirements of Section 103.101(4) must yield to the constitutional rights of Petitioner Yorty in the area of privacy and due process.

The section in effect forces potential nominees to become candidates in Florida. Such a position clearly impinges upon the personal and political rights of such persons. Candidacy imports campaigning, i.e., organization for the campaign, solicitation of votes, and expenditure of money and personal energy. A citizen has the right to refrain or refuse to take the arduous role of a political candidate despite a state legislative mandate to the contrary. Traditionally, candidates seeking their party’s nomination for president have selected those primaries in which they wished to run. Whether or not they appear on the ballot in a given state should be a matter of their volition, not the state’s.

To require Yorty to be a candidate for public office in competition with others against his will subjects him to the possibility of defeat, chagrin and humiliation, and possible loss of prestige, all of which may hurt his life career and damage his public stature. There are examples in history of political defeat affecting the physical and mental condition of candidates and hastening their deaths. Horace Greeley was so affected. Defeated candidates have suffered diminution of their prestige and personal effectiveness. Harold Stassen is an example.

Eight years ago this Court resolved the question of whether a citizen could be required to be a political candidate in this state against his will. Battaglia v. Adams, Fla.1964, 164 So.2d 195. Although Section 103.101 was not in effect at that time, the *Battaglia*holding regarding the constitutional right to privacy is directly on point and is clearly controlling in this case. Constitutional guaranties are imperatives that do not yield with the passing vagaries of statutes.

*151The *Battaglia*facts are as follows: In 1964, Battaglia and others qualified as a slate of delegates to the Republican National Convention pledged to Richard Nixon. Nixon telegraphed the then Secretary of State, Tom Adams, to “take whatever action is appropriate under the law of Florida to keep my name from being entered on the Florida presidential primary ballot.” Adams refused to certify Nixon’s name for inclusion on the ballot and refused to add the names of the Battaglia group as an unpledged slate. Battaglia and the other potential Nixon delegates brought a mandamus action requesting this Court to direct Adams to place Nixon on the ballot or, in the alternative, to put their names on as an unpledged slate. This Court refused to do so, saying Nixon:

> *“has an absolute right to say whether or not his name shall be advanced as a candidate for president*or any other office by the relators or any other group. *An unauthorized use of a person’s name in this respect is recognized as a violation of his right of privacy.*See State ex rel. LaFollette v. Hinkle, 131 Wash. 86, 229 P. 317, in which the court upheld the right of Mr. LaFollette to prohibit the use of his name by the so-called La-Follette State Party as their candidate for a state office. As pointed out by the court in the LaFollette case, nothing so exclusively belongs to a man or is so personal and valuable to him as his name, inasmuch as his reputation and the character he has built up are inseparably connected with it. See also *77*C.J.S. Right of Privacy § 5, p. 409; 41 Am.Jur. 940, Privacy, Sec. 20, and page 944, Section 24; and the cases collected in the annotation in 138 A.L.R. at page 22.

> *“The relators [Battaglia, et*al.] *recognize the applicability of the ‘right of privacy’ rule in this situation but argue that Mr. Nixon, by his governmental and political activities over the last several years and during the current presidential-election year, has 'waived any right of privacy in this area’*that he may have had. *We do not agree. The fact that he may have consented to the use of his name in the Oregon primary,*as stated by relators, *does not mean that he has given a blanket consent*to all comers, in whatever situation, *to use his name in preferential primaries all over the Country.*Mr. Nixon has unquestionably, as contended by relators, ‘by his accomplishments, fame, or mode of life * * * become a public personage, and he thereby relinquishes at least a part of his right of privacy.’ 41 Am.Jur., Privacy, p. 938, quoted in Cason v. Baskin, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430; but *this permissible ‘invasion’ of the right of privacy of one who has become a public personage relates to the dissemination of legitimate news items or other matters of public interest.”*(Emphasis supplied.)

The similarities between *Battaglia*and the case *sub judice*are obvious. In each a political figure was engaged in activities indicating a desire on his part to be his party’s nominee for President of the United States. Both men requested, however, that their names not appear on the Florida primary ballot. The request was granted in *Battaglia;*it was denied in this case. Any distinctions which may be found in the two cases cannot justify the contrary conclusions. Under Battaglia v. Adams we must find Section 103.101(4), Florida Statutes, F.S.A. unconstitutional insofar as it forces a potential candidate to either run in the Florida presidential preference primary or swear he is not a candidate for the office of President of the United States.

To be constitutional, Section 103.101(4), Florida Statutes, F.S.A., must permit a potential candidate to remove his name from the Florida presidential preference primary ballot by submitting to the office of the Secretary of State a withdrawal affidavit stating merely that he does not wish to be included on the primary ballot. Such an affidavit would have to be received prior to the printing of the ballot to avoid con*152fusion, disruption and undue expense. The statute could establish such a deadline, but, of course, it must be reasonable. See Beller v. Adams, Fla.1970, 235 So.2d 502.

The Secretary of State’s office has indicated in the record of this case that as of this week Yorty’s name could be deleted from the ballot because there is time enough to do so before the ballot has to be printed for the March 14th primary. His name should be removed.

CARLTON, Justice

(dissenting):

I strongly dissent on the basis that Section (4) of Fla.Stat. 103.101, F.S.A. (set out in the majority opinion) unconstitutionally requires a disavowal of presidential candidacy as the price of removal from the ballot.

My dissent does not focus upon the right of privacy because this Court has already adequately addressed itself to that right in Battaglia v. Adams, 164 So.2d 195 (1964), when it said that a person *could not*be injected, “[A]gainst his will into a political arena where he is not prepared to and has no desire to do battle . . . .” The majority’s attempt to distinguish *Battaglia*away is particularly weak. I think *Batta-glia*was right when announced and should stand today.

I am more particularly concerned about a denial of equal protection of the laws as guaranteed by the federal Constitution. Mayor Yorty tells us that he is unprepared for the Florida preference primary because he does not have the financial resources or the time to materially participate. It is well known that media exposure, publicity, and campaign organization are directly related to the solvency of a campaign treasury. Yet, having decided that he *cannot*compete with others more adequately financed, the Mayor now finds that he is trapped on the ballot unless he is willing to perjure himself by filing an affidavit disavowing his candidacy. The word “perjure” is appropriate because he is on the New Hampshire ballot, and he is campaigning there.

Thus Fla.Stat. 103.101(4) F.S.A. puts upon the ballot all those recognized under the statute as candidates, but forces those with inadequate funds to either withdraw from presidential politics or chance the humiliation of a certain defeat. This indirectly erects a substantial barrier to those who would participate in federal elections. State action of this nature in other areas relating to elections has been uniformly struck down as unconstitutional. It is' analogous to situations involving discriminatory voter registration practices; to statutes struck down as favoring large counties over small ones in nominating petition cases like Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); and to cases like Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) where a statute was drafted in a fashion so as to make more difficult the right of underfinanced minorities to make use of democratic processes.

In summary, I conclude that Section (4) of Fla.Stat. 103.101, F.S.A. violates the right of privacy discussed in *Battaglia, supra;*it denies candidates of lesser financial means the freedom to campaign as they deem wise; it erects a barrier to the freedom to participate in federal elections guaranteed to all candidates as well as to all electors by the United States Constitution. These deficiencies would be remedied if Section (4) were altered to provide for withdrawal without a declaration that the candidate disavows any aspiration to be a candidate for the presidency of the United States.