Filed 4/11/23: Certified for Publication 4/12/23 (order attached)

Reposting 4/12/23 publication order to include the 4/11/23 modification order.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JIM BOYDSTON et al.,

Plaintiffs and Appellants,

v.

ALEX PADILLA, as Secretary of State, 

et al.,

Defendants and Respondents.

 D080921

 (Super. Ct. No. CIVDS1921480)

 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.
2

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 presidentialprimary 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
Filed 3/21/23 (unmodified opinion)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JIM BOYDSTON et al.,

Plaintiffs and Appellants,

v.

ALEX PADILLA, as Secretary of State,

etc., et al.,

Defendants and Respondents.

 D080921

 (Super. Ct. No. CIVDS1921480)

APPEAL from a judgment of the Superior Court of San Bernadino 

County, Wilfred J. Schneider, Jr., Judge. Affirmed.

Briggs Law Corporation, Cory J. Briggs, Janna M. Ferraro; Peace & 

Shea and S. Chad Peace for Plaintiffs and Appellants.

Rob Bonta, Attorney General, Thomas S. Patterson, Assistant Attorney 

General, Anya M. Binsacca, Nelson R. Richards and Megan Anne Richards, 

Deputy Attorneys General, for Defendants and Respondents.

In this case, we reject the plaintiffs’ assertion of a novel and peculiar

constitutional right to vote in the presidential primary of a political party 

they have chosen not to join—without having their votes count for anything 

other than their expressive value.
2

The question presented here is whether California may lawfully require 

anyone who seeks to vote in a presidential primary for a candidate of a 

particular political party to associate with that party as a condition of

receiving a ballot with that candidate’s name on it. Plaintiffs contend that 

the answer is no. They argue that Elections Code section 13102, the statute 

that establishes California’s semi-closed presidential primary system, is 

therefore unconstitutional. 

Defendants California Secretary of State and the State of California 

dispute this conclusion, asserting that the United States Supreme Court has 

answered this question in the affirmative on multiple occasions. In

California Democratic Party v. Jones (2000) 530 U.S. 567 (Jones), the Court 

held that states may not force political parties to allow non-members to 

participate in their candidate-selection process and found that any 

“associational ‘interest’ in selecting the candidate of a group to which one 

does not belong . . . falls far short of a constitutional right, if indeed it can 

even fairly be characterized as an interest.” (Id., at pp. 573, fn. 5, 586.) In

Clingman v. Beaver (2005) 544 U.S. 581 (Clingman), the Court held that 

requiring voters to register with a political party before participating in its

primary only minimally burdens voters’ associational rights; any such 

restriction is constitutional so long as it is reasonable and nondiscriminatory. 

(Id. at pp. 592–593.) 

Attempting to avoid the conclusion compelled by these holdings, 

plaintiffs assert that although they must be permitted to vote in the 

presidential primary election without affiliating themselves with any political 

party, they do not seek to require the political parties to count their votes in 

determining the winner. Rather, plaintiffs merely desire to express their 

political preferences, and they believe they are constitutionally entitled to do 
3

so by casting votes for a party’s presidential candidate without registering 

with that party, and having “their preferences tallied and reported by the 

State” but not used to determine the outcome. In other words, they want 

their votes to be counted, but they do not want their votes to count.

As defendants point out, however, when plaintiffs discuss a “right” to 

cast an expressive ballot simply for the sake of doing so, rather than to affect

the outcome of an election, they have ceased talking about voting. Indeed, 

the Supreme Court has rejected the notion that elections have some

“generalized expressive function.” (Burdick v. Takushi (1992) 504 U.S. 428, 

438 (Burdick).) Plaintiffs’ inventive theories therefore do not supply a 

constitutional basis for evading binding legal precedent that forecloses their

arguments. Accordingly, we affirm the trial court’s ruling sustaining the 

defendants’ demurrer without leave to amend. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Original Complaint and Motion for Preliminary Injunction

Plaintiffs are registered voters and California taxpayers who filed their

initial complaint in July 2019 against then-Secretary of State Alex Padilla, 

named in his official capacity, and the State of California.1 They alleged

that, in 2016, California’s Secretary of State administered a semi-closed 

presidential primary that resulted in widespread voter confusion and the 

disenfranchisement of millions of voters. This included voters who had not 

registered as preferring a qualified political party, referred to as “no party 

1 The Secretary points out that, despite two rulings by the trial court 

that the State of California is not a proper party to this lawsuit, plaintiffs 

continue to improperly refer to the State as a defendant. Defendants contend

that plaintiffs have waived any argument that the trial court erred in ruling 

that the State is not a proper party. We agree, and we will refer to the 

defendants together as “the Secretary” throughout this opinion.
4

preference” (NPP) voters, and therefore were only allowed to vote for the 

candidate of a party that had chosen to allow NPP voters to participate in 

their primary election. According to plaintiffs, California’s presidential 

primary system is unconstitutional on its face and as applied under both the 

state and federal constitutions. 

The complaint further alleged that three of the plaintiffs were 

registered as NPP voters but wanted to vote for presidential primary 

candidates of their choice in 2020 without registering with a political party. 

Two plaintiffs were registered with a political party but wanted to vote for 

presidential primary candidates from other parties in 2020. One plaintiff 

preferred to register as NPP but had remained registered as a Democrat to

vote for her preferred candidate in 2020. The individual plaintiffs alleged 

that none of them were able to vote for the candidate of their choice in the 

2016 presidential primary election “unencumbered by a condition of party 

preference.” 

The complaint asserted six causes of action: (1) California’s semi-closed 

presidential primary election system does not comply with the California 

Constitution’s section requiring an open presidential primary (Cal. Const., 

art. II, § 5, subd. (c)); (2) the semi-closed primary violates plaintiffs’ 

substantive due process rights afforded to them by the California 

Constitution (Cal. Const., art. I, § 7); (3) the semi-closed primary denies 

plaintiffs equal protection of the law in violation of the California 

Constitution (Cal. Const., art. I, § 7); (4) the semi-closed primary 

appropriates public funds for a private purpose in violation of the California 

Constitution (Cal. Const., art. XVI, § 3); (5) the semi-closed primary violates 

plaintiffs’ substantive due process rights under the United States 

Constitution (42 U.S.C. § 1983); and (6) the semi-closed primary violates 
5

plaintiffs’ right of non-association under the United States Constitution (42 

U.S.C. § 1983). The complaint requested a declaration that California’s 

presidential primary system is “illegal in some manner.” It also sought an 

injunction prohibiting the Secretary from “administering a presidentialprimary election that does not comply with all applicable laws” and a writ 

directing the Secretary to “bring the[ ] administration of the presidential 

primary election into compliance with all applicable laws.” 

Shortly after filing the complaint, plaintiffs filed a motion for a 

preliminary injunction requiring the Secretary to allow all registered voters 

to cast a ballot for their candidate of choice in the 2020 presidential primary 

election without having to associate with a political party. The Secretary 

opposed, arguing that plaintiffs were unlikely to succeed on the merits 

because the United States Supreme Court had upheld a presidential primary 

system nearly identical to California’s system and plaintiffs’ claims therefore 

failed as a matter of law. 

The trial court held a hearing and thereafter denied the motion, 

concluding that plaintiffs had failed to establish a likelihood of prevailing. 

The court first found that, “to the extent the heart of the Plaintiffs’ complaint 

is that they are being denied the right to vote in the presidential primary 

election unless they associate with a party, the U.S. Supreme Court has 

found that the political parties’ freedom to associate means they get to dictate 

who is permitted to participate in the primaries that will assist in 

determining” their presidential nominee. Additionally, the court explained, 

NPP voters can vote in presidential primary elections when permitted by a 

political party merely by requesting a crossover ballot—they are not required 

to register with the party. 

B. First Amended Complaint and Motion for Judgment on the Pleadings
6

The parties stipulated to a first amended complaint to add another 

plaintiff, which plaintiffs filed in December 2019. Plaintiffs did not otherwise 

modify or add to their allegations. By stipulation, the Secretary’s answer to 

the original complaint was deemed the answer to the first amended 

complaint. 

The Secretary then moved for judgment on the pleadings, making many 

of the same arguments it had asserted in opposition to the preliminary 

injunction, including that plaintiffs’ claims had already been rejected by the 

United States Supreme Court in cases addressing similar constitutional 

challenges. After briefing and a hearing, the trial court granted the motion

but gave plaintiffs leave to amend their complaint. 

C. Second Amended Complaint and Demurrer

In response to the court’s ruling, plaintiffs filed their second amended 

complaint in October 2020. The second amended complaint repeated most of 

the allegations of the first two complaints but slightly revised the allegations 

regarding the individual plaintiffs. It alleged that plaintiffs Daniel Howle 

and Steven Fraker each seek to vote for a presidential candidate of his choice 

without being required to associate with a political party. Plaintiff Jim 

Boydston seeks to vote for a presidential candidate running for the 

Democratic Party nomination in the next presidential primary election 

without being required to associate with the Democratic Party. Plaintiff Jeff 

Marston, a registered Republican, seeks to vote in the primary election for a 

presidential candidate other than a Republican without being required to 

change his party preference. Plaintiff Josephine Piarulli, a registered 

Democrat, would prefer to be registered as a NPP voter but remains affiliated 

with the Democratic Party to ensure she can vote for a presidential candidate 

in the next presidential primary election. 
7

The second amended complaint also added several paragraphs alleging 

that the Secretary imposes additional burdens on NPP voters who want to 

vote in the presidential primary. NPP voters seeking to vote in the 

presidential primary election are required to “respond to an innocuous 

postcard to request a crossover ballot,” bring their NPP ballot to their polling 

place to surrender it and request a crossover ballot there, or re-register with

a party at their polling place and vote using that party’s primary ballot. 

Plaintiffs allege that this process is onerous and the Secretary fails to inform 

NPP of their options. Plaintiffs also allege that many counties set arbitrary 

deadlines for NPP voters to request a crossover ballot, which leads some NPP

voters to mistakenly believe that if they do not request a crossover ballot by 

mail, they have lost their ability to vote in the presidential primary. 

The Secretary demurred to the second amended complaint on the 

grounds that it failed to state facts sufficient to constitute a cause of action, 

arguing that the new allegations in the second amended complaint did not 

salvage plaintiffs’ claims. The demurrer was similar to defendants’ prior 

attacks on the complaint and made three main arguments. First, plaintiffs 

misconstrued the meaning of the term “open primary” in the California 

Constitution (Cal. Const., art. II, § 5, subd. (c)), which requires only that the 

State open the ballot to nationally recognized presidential candidates without 

requiring them to submit a certain number of qualified signatures, not that 

all voters be allowed to vote for any candidate regardless of stated party 

preference. Second, plaintiffs could not get around the United States 

Supreme Court opinions in Clingman, which upheld a substantially similar 

statutory scheme against a similar constitutional challenge, and Jones, 

where the Court found unconstitutional the same open primary system 

plaintiffs here argue is required under the California Constitution. Third, 
8

the California Constitution requires that the Legislature provide for “free 

elections” (Cal. Const., art. II, § 3), and courts have consistently upheld laws 

that provide for primary elections at the public expense while rejecting efforts 

to redistribute those costs to candidates or parties. 

Plaintiffs opposed the demurrer, arguing in response to the Secretary’s 

first argument that the logical extension of the California Constitution’s 

requirement that nationally recognized presidential candidates be included 

on the primary ballot is that all voters, including NPP voters, should have 

the right to vote for any candidate meeting the requirements. Plaintiffs next 

argued that California’s presidential primary system violates their right to 

freedom of association, equal protection, and substantive due process. They 

asserted that their case is distinguishable from Clingman and Jones, both 

because those cases involved the rights of political parties, rather than 

voters, and because plaintiffs here are not seeking to require political parties 

to count their presidential primary votes, only to require the Secretary to 

allow them to participate in the presidential primary voting process. Finally, 

plaintiffs asserted that they had sufficiently pleaded unconstitutional 

misappropriation of public funds because the California presidential primary 

election serves a substantially different purpose than a general election in 

that it is merely advisory and exclusively serves the interests of political 

parties; it therefore cannot serve a legitimate public purpose. 

D. Ruling on Demurrer to Second Amended Complaint

After a hearing in January 2021, the trial court issued a ruling 

sustaining the Secretary’s demurrer without leave to amend. The court 

concluded that plaintiffs’ new allegations did not materially change the 

nature of their legal theory, which the court had previously rejected, and 

found that the law is clear that California’s semi-closed primary system is 
9

constitutional. Specifically, the court determined that plaintiffs still failed to 

allege state action that deprived them of a cognizable right, because NPP 

voters “do not have a constitutional right to vote in a presidential primary for 

a political party’s candidate.” 

The trial court also found that plaintiffs’ right to freedom of association 

is not violated by the system because the system does not mandate that they 

associate with any political party. The court noted that the United States

Supreme Court has already held that political parties are permitted to 

restrict who can participate in their primaries. Moreover, the court found, 

Jones and Clingman establish that the Secretary’s differing treatment of 

NPP voters and political party members is justified, and plaintiffs failed to 

allege facts demonstrating any arbitrary state action such that plaintiffs’ 

constitutional rights were violated. 

Regarding plaintiffs’ misappropriation claim, the court concluded that 

the claim failed as a matter of law because using public funds to conduct 

primary elections does not violate the California Constitution, and plaintiffs 

cited no authority to support their argument to the contrary. 

The court declined to grant leave to amend based on its conclusion that 

the facts were not in dispute, no liability exists as a matter of law, and 

plaintiffs had failed to effectively amend their complaint after they had 

already been given the opportunity to do so. The court directed counsel for 

defendants to prepare and submit the order of judgment. They did so, but 

the trial court did not execute the judgment at that time. 

When plaintiffs filed their notice of appeal on March 29, 2021, they 

submitted only a copy of the January 29, 2021 order sustaining the demurrer. 

This court notified plaintiffs that an order sustaining a demurrer without 

leave to amend is not appealable and directed them to file a judgment with 
10

this court or have their appeal dismissed. Plaintiffs then obtained and filed 

with this court a judgment from the trial court dated April 28, 2021. We 

construe the notice of appeal as being taken from the judgment.

DISCUSSION

I

We review a judgment of dismissal based on a sustained demurrer de 

novo to determine whether the complaint alleges facts sufficient to state a 

cause of action. (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 

145, 162.) The California standard of review for an order sustaining a 

demurrer requires us to accept as true all properly pleaded material factual 

allegations of the complaint, together with facts that may be properly 

judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Where the 

trial court sustains a demurrer without leave to amend, we consider whether 

there is a reasonable possibility plaintiffs could cure the defect by an 

amendment and must reverse for abuse of discretion if that possibility exists. 

(Ibid.) Plaintiffs bear the burden of proving that an amendment would cure 

the defect. (Ibid.)

Because certain of plaintiffs’ claims are pleaded under section 1983 of 

title 42 of the United States Code, however, we apply the federal standard for 

review of the grant of a motion to dismiss to those claims. (Rubin v. Padilla

(2015) 233 Cal.App.4th 1128, 1144.) Under that standard, dismissal is 

proper only where it appears certain that plaintiffs can prove no set of facts 

in support of their claims that would entitle them to relief. (Arce v. Childrens 

Hospital Los Angeles (2012) 211 Cal.App.4th 1455, 1471.) In line with both 

California and federal practice, we accept the allegations in the complaint as 

true and construe them in the light most favorable to plaintiffs. (Ibid.) 

II
11

Plaintiffs’ first argument on appeal is that California’s semi-closed 

presidential primary system is unconstitutional because it violates (1) their 

First Amendment right to freedom of association under the United States 

Constitution, (2) the equal protection clause of the California Constitution 

and United States Constitution, and (3) their substantive due process rights 

under the United States Constitution. We conclude that these constitutional 

challenges are without merit. 

A. Legal Background

California currently uses a semi-closed primary for presidential 

elections. (Elec. Code, § 13102.)2 Voting in primary elections is limited to 

voters who have registered disclosing a preference for one of the political 

parties participating in the election unless the political party has authorized 

a voter who has not registered a party preference to vote the ballot of that 

party. Under this system, NPP voters may vote in presidential primaries of 

qualified political parties in one of two ways: (1) they may register for the 

party in whose presidential primary election they wish to vote; or (2) they 

may request the partisan ballot of a political party that has authorized NPP 

voters to participate in the party’s primary election. (§ 13102, subds. (a), (b).) 

All voters may change their voter registration to reflect a different party 

preference at any point up to two weeks prior to the election. (§ 2119, subd. 

(a).) Voters who miss that deadline may conditionally register up to and on 

election day and cast a provisional ballot, which will be processed and 

2 All subsequent statutory references are to the Elections Code unless 

otherwise noted.
12

counted once the county elections office verifies the information supplied by 

the voter. (§ 2170.)

Before adopting a semi-closed presidential primary election, California

used a “closed” primary to determine the nominees of qualified political 

parties for many years. (Jones, supra, 530 U.S. at p. 570.) Under the closed 

system, voters who did not identify a political party affiliation when 

registering to vote were not allowed to vote for candidates running for a 

partisan office in primary elections. Each voter thus received a ballot limited 

to candidates of their own party. (Ibid.) 

In 1996, California voters adopted by initiative Proposition 198, which 

changed California’s partisan primary from a closed primary to an “open” or 

“blanket” primary. (Jones, supra, 530 U.S. at p. 570.) Proposition 198

allowed all voters, including those not affiliated with any political party, to 

vote for any candidate regardless of the candidate’s political affiliation. 

(Ibid., citing former § 2001.) After the new law’s enactment, each voter’s 

primary ballot listed “every candidate regardless of party affiliation and 

allow[ed] the voter to choose freely among them.” (Ibid.) 

In 2000, the United States Supreme Court invalidated California’s 

partisan blanket primary. The Court found that it violated political parties’

First Amendment right to freedom of association because it required political 

parties to affiliate with voters who had chosen not to become party members

by forcing the parties to allow non-members to participate in their candidateselection process. (Jones, supra, 530 U.S. 567.) While the Court recognized 

“that States have a major role to play in structuring and monitoring the 

election process, including primaries,” it emphasized that the processes by 

which political parties select their nominees are not “wholly public affairs 

that States may regulate freely.” (Id. at pp. 572–573.) The Court concluded 
13

that California’s blanket primary forced political parties to associate with

“those who, at best, have refused to affiliate with the party, and, at worst, 

have expressly affiliated with a rival.” (Id. at p. 577.) Such forced affiliation, 

the Court found, had the likely effect of negatively impacting the political 

parties’ candidate-selection process and overall message—a severe burden on 

the parties’ right of association. (Id. at pp. 581–582.) The Court determined 

that the proffered state interests were not compelling, nor was Proposition 

198 narrowly tailored such that it could withstand strict scrutiny, and it 

therefore held the law unconstitutional. (Id. at pp. 582–586.) 

After Jones, the California legislature reinstated the previous closed 

primary system, but it modified the law. (Stats. 2000, ch. 898, § 8.) Voters 

registered as preferring a qualified political party receive a ballot containing

that party’s partisan candidates as well as all candidates for nonpartisan 

offices, voter-nominated offices, and measures. (§ 13102, subds. (a), (b).) By 

default, NPP voters receive only a nonpartisan ballot containing all 

candidates for nonpartisan offices, voter-nominated offices, and measures.

(Id., subd. (b).) An NPP voter may, however, request the partisan ballot of a 

political party if that party has authorized NPP voters to participate in the 

party’s primary election. (Ibid.) A party that wants to allow NPP voters to 

vote in its primary must notify the Secretary of State no later than the 135th 

day before the partisan primary election. (Id., subd. (c).) This semi-closed 

system for partisan primary elections remains in place today. (§ 13102.)

B. Analysis

1. Applicable Legal Standard

There is no dispute that the right to vote is fundamental. (See Burdick,

supra, 504 U.S. at p. 433.) “It does not follow, however, that the right to vote 

in any manner and the right to associate for political purposes through the 
14

ballot are absolute.” (Ibid.) As a practical matter and under constitutional 

law, government must play an active role in, and substantially regulate, 

elections to ensure they are fair. (Ibid.; Storer v. Brown (1974) 415 U.S. 724, 

730 (Storer).) And though electoral regulations “will invariably impose some 

burden upon individual voters,” not all burdens are unconstitutional, nor do 

all regulations compel strict scrutiny. (Burdick, at p. 433.) 

A court considering a constitutional challenge to an election law under 

the First and Fourteenth Amendments must apply the analysis and 

balancing test set forth by the United States Supreme Court in Anderson v. 

Celebrezze (1983) 460 U.S. 780 (Anderson) and developed more fully in 

Burdick. (Kunde v. Seiler (2011) 197 Cal.App.4th 518, 538–539; see also 

Norman v. Reed (1992) 502 U.S. 279, 288, fn. 8 [“As in Anderson . . . ‘we base 

our conclusions directly on the First and Fourteenth Amendments and do not 

engage in a separate Equal Protection Clause analysis.’ ”].)3 Under the 

Anderson/Burdick test, the standard applied to the challenged election law 

depends upon the burden it places upon voters. (Burdick, supra, 504 U.S. at 

p. 434.) Where the law imposes severe restrictions on voters’ First and 

Fourteenth Amendment rights, it must be narrowly tailored and advance a 

compelling state interest. (Ibid.) If the law imposes only “reasonable, 

nondiscriminatory restrictions,” on the other hand, “the state’s important 

regulatory interests are generally sufficient to justify” the restrictions. 

(Anderson, at p. 788.)

Before turning to the application of this framework, we first address 

plaintiffs’ threshold argument that conducting the Anderson/Burdick analysis 

3 The equal protection clauses of the California Constitution and United 

States Constitution “are substantially equivalent” and courts “analyze them 

in a similar fashion.” (People v. K.P. (2018) 30 Cal.App.5th 331, 341.)
15

is beyond the scope of a demurrer, and the trial court therefore erred in 

applying the test.4 Plaintiffs assert that because various United States 

Supreme Court election law challenges were decided after some form of 

evidentiary hearing where the lower court had weighed voter burdens and 

countervailing state interests, implicit in those holdings is the conclusion 

that such cases can never be decided on the pleadings. Plaintiffs cite no 

authority in support of this proposition. In fact, they concede on reply that 

the California Supreme Court and the Ninth Circuit have both resolved

election law challenges at the pleading stage. (See, e.g., Edelstein v. City and 

County of San Francisco (2002) 29 Cal.4th 164 (Edelstein) [concluding that 

the trial court had properly granted defendant’s motion for judgment on the 

pleadings]; Rubin v. City of Santa Monica (9th Cir. 2002) 308 F.3d 1008

[affirming grant of defendant’s motion to dismiss for failure to state a claim].) 

At least one appellate court has also affirmed dismissal of a 

constitutional challenge to a state election law at the pleading stage. (See 

Rubin v. Padilla, supra, 233 Cal.App.4th at pp. 1135, 1137 [affirming 

judgment after trial court sustained demurrer without leave to amend].) The 

plaintiffs in Rubin v. Padilla argued that the trial court improperly resolved 

their claims on demurrer because it was “required to permit them ‘to 

investigate the historical record, analyze statistical data, and develop expert 

testimony’ before it could evaluate the nature of the burden imposed on their 

4 Plaintiffs also contend it was error for the trial court to sustain the 

demurrer because the second amended complaint seeks declaratory relief, 

and plaintiffs are entitled to a declaration of rights even if it is against their 

interests. Because plaintiffs raise this argument for the first time in their

reply brief without a showing of good cause, it has been forfeited. (Hurley v. 

Dept. of Parks & Recreation (2018) 20 Cal.App.5th 634, 648, fn. 10.)
16

constitutional rights and weigh that burden against the state’s asserted 

interests.” (Id. at p. 1154.) The court rejected the argument, as do we. 

We therefore turn to application of the Anderson/Burdick framework to 

plaintiffs’ claims. 

2. Any Constitutional Burden Is Minimal and Reasonable

Step one of the Anderson/Burdick balancing test is to determine “ ‘the 

character and magnitude of the asserted injury to the rights protected by the 

First and Fourteenth Amendments that the plaintiff seeks to vindicate.’ ”

(Burdick, supra, 504 U.S. at p. 434.) In other words, we must first decide

whether the challenged law severely burdens the right to vote. Plaintiffs 

contend that section 13102 places a steep burden on NPP voters because it 

forces them to affiliate with a political party as a prerequisite to primary 

voting and requires NPP voters who have not affiliated with a party but wish 

to vote in a primary election to request a crossover ballot, which is a 

confusing and onerous process. According to Plaintiffs, the imposition of 

these burdens leads to the disenfranchisement of NPP voters. The Secretary 

argues that California NPP voters experience materially similar burdens as 

those already recognized as minimal in Clingman, and plaintiffs’ arguments

are foreclosed by the United States Supreme Court decisions in Clingman 

and Jones. We agree with the Secretary.

Plaintiffs first contend that California’s presidential primary system 

imposes an impermissible burden on their First Amendment freedom to 

associate because it requires them to associate with a political party to vote 

in the primary. They assert that “California’s understanding of party 

affiliation as a minimal burden . . . cannot be squared with the everincreasing number of voters who do not want to associate with any of the 

political parties or participate in their private nomination process[ ].” As the 
17

Secretary points out, however, characterizing party affiliation as a minimal 

burden does not merely reflect California’s “understanding” of the 

prerequisite to partisan voting—it reflects a binding statement of law made 

by the United States Supreme Court. (Clingman, supra, 544 U.S. at p. 592.) 

In Clingman, the Court considered a constitutional challenge to 

Oklahoma’s semi-closed primary system. (Clingman, supra, 544 U.S. at 

p. 584.) Like California’s current system, Oklahoma’s law allowed political 

parties to choose whether to allow independent voters to participate in their 

partisan primary elections, but the law did not allow parties to open their 

primary elections to other parties’ members. (Ibid.) The Libertarian Party of 

Oklahoma and voters registered as Republicans and Democrats argued that 

Oklahoma’s semi-closed primary system violated their First Amendment 

right to freedom of political association. (Ibid.) The Court disagreed, finding

that “requiring voters to register with a party prior to participating in the 

party’s primary minimally burdens voters’ associational rights.” (Id. at 

p. 592, italics added.) 

Even before Clingman, the Court had determined that any 

“associational ‘interest’ in selecting the candidate of a group to which one 

does not belong . . . falls far short of a constitutional right, if indeed it can 

even fairly be characterized as an interest.” (Jones, supra, 530 U.S. at p. 573,

fn. 5; see also Tashjian v. Republican Party (1986) 479 U.S. 208, 215, fn. 6

[“the nonmember’s desire to participate in the party’s affairs is overborne by 

the countervailing and legitimate right of the party to determine its own 

membership qualifications”].) Dismissing the argument plaintiffs advance 

here, the Court explained: “The voter who feels himself disenfranchised 

should simply join the party. That may put him to a hard choice, but it is not 

a state-imposed restriction upon his freedom of association, whereas 
18

compelling party members to accept his selection of their nominee is a stateimposed restriction upon theirs.” (Jones, at p. 584.) Requiring voters to 

associate with a party—whether by registering or requesting a crossover 

ballot—to participate in a partisan primary is thus, at most, a slight burden.

Plaintiffs seek to avoid this conclusion by claiming they are not seeking 

to participate or interfere in the political parties’ process but rather to express 

themselves through the presidential primary process. Specifically, they desire 

to “express their political views and preferences at the polls, unencumbered 

by the condition of registering or otherwise associating with a political party.” 

But again, United States Supreme Court precedent forecloses this

argument. The Court has explained that “the function of the election process 

is ‘to winnow out and finally reject all but the chosen candidates,’ . . . not to 

provide a means of giving vent to ‘short-range political goals, pique, or 

personal quarrel[s].’ Attributing to elections a more generalized expressive 

function would undermine the ability of States to operate elections fairly and 

efficiently.” (Burdick, supra, 504 U.S. at p. 438, quoting Storer, supra, 415 

U.S. at pp. 730, 735.) It has also expressly stated that “[b]allots serve 

primarily to elect candidates, not as fora for political expression.” (Timmons 

v. Twin Cities Area New Party (1997) 520 U.S. 351, 363 (Timmons).) The 

California Supreme Court has also recognized that the purpose of the election 

process is “not simply to provide an outlet for political expression.” 

(Edelstein, supra, 29 Cal.4th at p. 182, citing Burdick, at p. 438.) Moreover, 

the Legislature has defined the word “vote” as used in the California 

Constitution as “all action necessary to make a vote effective in any primary, 

special, or general election, including, but not limited to, voter registration, 

any other act prerequisite to voting, casting a ballot, and having the ballot 

counted properly and included in the appropriate totals of votes cast with 
19

respect to candidates for public office and ballot measures.” (§ 15702, italics 

added.)5 Not only is Plaintiffs’ desire to express themselves via the polls 

without having their votes count in determining the result not a 

constitutional right, therefore, but it also runs contrary to the California 

Constitution.

Plaintiffs next argue that California’s semi-closed primary system is 

unconstitutional because it requires NPP voters to jump through hoops to 

participate in the presidential primary election as crossover voters, a process 

which is itself unconstitutional because it is unduly burdensome and leaves 

some NPP voters confused. We do not agree.

Most electoral regulations—including voter and party registration—

“require that voters take some action to participate in the primary process.” 

(Clingman, supra, 544 U.S. at p. 593; see also Rosario v. Rockefeller

(1973) 410 U.S. 752, 760–762 [upholding requirement that voters change 

party registration 11 months before primary election].) Here, voters may 

change their party registration up until 15 days before an election. (§ 2119.) 

Even if voters miss that deadline, they may still cast a ballot in a party 

primary using the conditional voter registration process before or on the day 

of the election. (§ 2170.) They can also take other “action to participate in 

the primary process” by requesting a crossover ballot via mail or at their 

polling place. (Clingman, at p. 593.) That California NPP voters wishing to 

vote in a primary election must read their mail or otherwise seek out 

information to request a crossover ballot cannot reasonably be classified as a 

severe burden. It is “not difficult” to “ ‘ask[ ] for the appropriate ballot at the 

5 Courts ordinarily follow the Legislature’s definition of a word used in 

the Constitution if it is a reasonable construction. (Kaiser v. Hopkins (1936) 

6 Cal.2d 537, 540.)
20

appropriate time,’ ” and tasks like requesting a ballot or filing a form 

constitute “minimal effort.” (Clingman, at pp. 590–592.) Such “minor 

barriers between voter and party do not compel strict scrutiny.” (Id. at 

p. 593.)

We therefore conclude that, even accepting all plaintiffs’ allegations as 

true, the burdens plaintiffs identify are minimal.

C. Sufficient State Interests Justify the Minimal Burdens

The second step of the Anderson/Burdick balancing test requires us to 

consider California’s interests in imposing the voter restrictions and weigh 

those interests against the burdens. Where, as here, the challenged election 

law is reasonable, nondiscriminatory, and does not place a heavy burden on 

voters’ rights, “ ‘a State’s important regulatory interests will usually be 

enough to justify’ ” the law. (Clingman, supra, 544 U.S. at p. 593, quoting 

Timmons, supra, 520 U.S. at p. 358.) Plaintiffs contend that the state lacks a 

legitimate reason to treat NPP voters and party-affiliated voters differently—

in other words, that the state’s interests are insufficient to justify the 

restrictions of section 13102—and that the Secretary has failed to identify 

any state interests, as opposed to political party interests, that support 

section 13102. We reject these contentions.

Plaintiffs’ argument that the state’s interests are insufficient to justify 

treating NPP voters differently from party-affiliated voters is again 

foreclosed by United States Supreme Court precedent. First, the Court has 

already found that “[i]n facilitating the effective operation of [a] democratic 

government, a state might reasonably classify voters or candidates according 

to political affiliations.” (Clingman, supra, 544 U.S. at p. 594, internal 

quotation marks omitted.) States are therefore “allowed to limit voters’

ability to roam among parties’ primaries” by, for example, requiring them to 
21

register with a party before voting in a primary and prohibiting voters in one 

party from voting in another’s primary. (Id. at pp. 594–595.) 

Second, the state interests asserted here are the same as those the 

Court held in Clingman to be sufficient to justify minimal burden on voters. 

As in Clingman, California’s semi-closed primary “advances a number of 

regulatory interests that [the Supreme] Court recognizes as important: It 

‘preserv[es] [political] parties as viable and identifiable interest groups’; 

enhances parties’ electioneering and party-building efforts; and guards 

against party raiding and ‘sore loser’ candidacies by spurned primary 

contenders.” (Clingman, supra, 544 U.S. at pp. 593–594, internal citations 

omitted.) These important state interests easily justify the minimal burdens 

California’s presidential primary system imposes on voters. 

The State also has a compelling interest in “the integrity of the primary 

system” and “ ‘avoid[ing] primary election outcomes which would tend to 

confuse or mislead the general voting population . . . .’ ” (Clingman, supra,

544 U.S. at p. 594.) This interest would be undermined by plaintiffs’ 

proposed system. According to their theory, NPP voters have a right to have 

their presidential primary votes “tallied and reported by the State,” but not 

actually used in determining the party nominee. As a result, the reported 

“winner” of a party’s presidential primary (including NPP voters) could differ 

from the actual winner (excluding NPP voters). This could undermine public 

confidence in the election and create the false perception of a rigged primary.

It would also create massive confusion to allow some voters to participate in a 

presidential primary without having their votes used to determine the result.

NPP voters would be casting genuine votes for nonpartisan offices, voternominated offices, and measures on the ballot, but only token votes for a

presidential primary candidate on the same ballot. Many NPP voters would 
22

likely be misled into believing that their presidential primary votes would 

count towards the outcome. In such a bewildering election system, the public 

would have reason to question whether all genuine votes were being properly 

counted and all token votes properly excluded. The State’s strong interest in 

maintaining public confidence in the integrity of the election system 

outweighs any interest of NPP voters to cast purely symbolic votes for the 

candidate of a political party they have chosen not to join.

We therefore conclude that the trial court properly sustained the 

demurrer as to plaintiffs’ claims based on their freedom of association, equal 

protection, and due process rights. 

III

Plaintiffs also contend that the presidential primary election system 

violates the California Constitution’s prohibition on private use of public 

funds found in section 3 of article XVI, which provides that, subject to certain 

exceptions, “[n]o 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.) 

Plaintiffs argue that the primary system violates the constitution because it

(1) serves a predominantly private purpose despite being financed by public 

funds and (2) disenfranchises NPP voters. They cite no authority in support 

of this claim but explain that “it is the constitutionally infirm presidentialprimary system . . . that causes the appropriation of public funds in support 

of that system to be, likewise, constitutionally infirm.” Because we have 

already rejected plaintiffs’ claim that California’s presidential primary 
23

system is unconstitutional, it follows that their claim regarding the use of 

public funds in support of that system must likewise be rejected. 

Even considering this argument separately from the others, we 

conclude that it is without merit. California’s primary election plainly serves

a public purpose, as primaries are “ ‘an integral part of the entire election 

process.’ ” (Burdick, supra, 504 U.S. at p. 439, quoting Storer, supra, 415 

U.S. at p. 735.) Primaries “avoid burdening the general election ballot with 

frivolous candidacies” (Jones, supra, 530 U.S. at p. 572) and “avoid the 

possibility of unrestrained factionalism at the general election” (Munro v. 

Socialist Workers Party (1986) 479 U.S. 189, 196), both important goals that 

benefit the public. And the costs associated with holding these primary 

elections do not arise “because the parties decide to conduct one, but because 

the State has, as a matter of legislative choice, directed that party primaries 

be held.” (Bullock v. Carter (1972) 405 U.S. 134, 148.) California “has 

presumably chosen this course more to benefit the voters than the 

candidates” or parties. (Ibid.) We therefore disagree with plaintiffs’ 

conclusory statement that the presidential primary is for the exclusive 

benefit of political parties. To the extent that NPP voters feel 

disenfranchised by the primary system, they may simply join the party or 

request a crossover ballot. (See Jones, at p. 572; Clingman, supra, 544 U.S. 

at p. 590.) 

In sum, we agree with the trial court that, despite multiple

opportunities to amend their complaint, plaintiffs have failed to plead facts 
24

that could entitle them to relief.6 We therefore conclude that the demurrer

was properly sustained in its entirety.

DISPOSITION

The judgment of the trial court is affirmed. Respondents are entitled to 

recover their costs on appeal.

BUCHANAN, J.

WE CONCUR:

IRION, Acting P. J.

DO, J.

6 Plaintiffs do not argue that they are entitled to leave to amend their 

complaint again, nor do they suggest a different set of facts they would have 

pleaded if granted leave (see Rubin v. Padilla, supra, 233 Cal.App.4th at 

p. 1154), so we do not address that issue. 
Filed 4/12/23

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JIM BOYDSTON et al.,

Plaintiffs and Appellants,

v.

ALEX PADILLA, as Secretary of State, 

etc., et al.,

Defendants and Respondents.

 D080921

 (Super. Ct. No. CIVDS1921480)

 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
2

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