In Jesson v. Davis, 2002 WL 598915, the California Court of Appeal, Fourth Appellate District, rejected Nick Jesson’s challenge to California’s gubernatorial primary.
The California Constitution provides that every public official must take an oath before entering office. The oath provided by the Constitution includes a paragraph requiring the affiant to state that he or she is not, nor has been for the last five years, a member of an organization advocating the overthrow of the government by force or violence. In 1967, the California Supreme Court held that this paragraph is invalid under the United States Constitution. [Vogel v. County of Los Angeles, 68 Cal. 2d 18 (1967).] In all gubernatorial elections after Vogel, the forms and papers filed by candidates, including the affirmation of the oath, have not contained the offending paragraph. However, Jesson typed his own oath, which included the offending paragraph, and filed it with his nomination papers.
Jesson claimed that, because he was the only one to include the offending paragraph, which still appears in the Constitution, in his nomination papers, the Secretary of State should refuse to certify the election. Jesson argued that Vogel applies only to non-elected civil servants and does not apply to candidates for public office. Acknowledging that Vogel, and the decisions upon which it was based, did not involve elected officials, the Court of Appeal nevertheless determined that the rationale of Vogel applies equally well to elected officials and non-elected civil servants. Furthermore, the Court of Appeal noted that the United States Supreme Court held that a similar Indiana statute violated the United States Constitution, because free speech and free press guarantees do not permit a state to forbid advocacy, except where such advocacy is directed to inciting imminent lawless action and is likely to incite such action. [Communist Party of Indiana v. Whitcomb, 414 U.S. 441 (1974).]
In the end, the Court of Appeal concluded, “It is very clear, then, that [the offending paragraph] of the oath as stated in the California Constitution cannot be required of anyone to become Governor of California or even to get a library card. End of discussion.” The Court also ordered Jesson to pay the defendants’ costs.