I respectfully dissent.
The issue that the majority should have confronted is whether San Diego’s ban on write-in candidates and write-in voting has “a ‘real and appreciable impact’ upon the equality, fairness and integrity of the electoral process. [Citation.]” (Choudhry v. Free (1976) 17 Cal.3d 660, 664 [131 Cal.Rptr. 654, 552 P.2d 438].) Only regulations with such impact should be subjected to strict scrutiny. (Ibid.) In my view, San Diego’s ordinance is nondiscriminatory and places a de minimis burden on the electoral process.
For a discussion of the appropriate equal protection analysis of this ordinance, I adopt as my view the analysis of the Court of Appeal, Fourth Appellate District, written by Acting Presiding Justice Wiener and concurred in by Justice Work and Justice Butler. That opinion follows, with appropriate additions and deletions:*
[] [I] begin with the premise that in our form of government, the right to vote is fundamental and essential. While the right is not expressly protected by the United States Constitution (Rodriguez v. Popular Democratic Party (1982) 457 U.S. 1, 9 [72 L.Ed.2d 628, 635, 102 S.Ct. 2194]), the United States Supreme Court has repeatedly made clear “that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. ” (Dunn v. Blumstein (1972) 405 U.S. 330, 336 [31 L.Ed.2d 274, 280, 92 S.Ct. 995].)
Of course, the San Diego ordinance at issue here does not directly restrict anyone’s right to vote. Rather, it regulates the manner in which persons may become candidates for elected municipal offices. Nonetheless, “the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.” (Bullock v. Carter (1972) 405 U.S. 134, 143 [31 L.Ed.2d 92, 99, 92 S.Ct. 849].) It is thus not surprising that this cor*729relation has figured prominently in a series of United States Supreme Court cases which have applied the strict scrutiny test in invalidating restrictions on persons who sought to be candidates for public office. (See Illinois Elections Bd. v. Socialist Workers Party (1979) 440 U.S. 173, 184 [59 L.Ed.2d 230, 240, 99 S.Ct. 983]; Lubin v. Panish (1974) 415 U.S. 709, 716 [39 L.Ed.2d 702, 708, 94 S.Ct. 1315]; Bullock v. Carter, supra, 405 U.S. at pp. 142-144 [31 L.Ed.2d at pp. 99-100]; Williams v. Rhodes (1968) 393 U.S. 23, 31 [21 L.Ed.2d 24, 31-32, 89 S.Ct. 5]; see also Johnson v. Hamilton (1975) 15 Cal.3d 461, 468-469 [125 Cal.Rptr. 129, 541 P.2d 881].)
That the court has viewed strict scrutiny as the appropriate standard to be applied in these cases is reasonably clear. What operative facts in each case trigger that standard is more opaque. In Bullock v. Carter, for instance, the court reviewed a filing fee requirement for candidates in Texas elections. The choice-of-standard problem was described as follows: “[N]ot every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802 (1969). Texas does not place a condition on the exercise of the right to vote, nor does it quantitatively dilute votes that have been cast. Rather, the Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. The existence of such barriers does not of itself compel close scrutiny. Compare Jenness v. Fortson, 403 U.S. 431 (1971), with Williams v. Rhodes, 393 U.S. 23 (1968). In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” (405 U.S. at p. 143 [31 L.Ed.2d at pp. 99-100], fns. omitted.) The court in Bullock goes on to conclude that the Texas filing fee requirement had “a real and appreciable impact on the exercise of the franchise” (id., at p. 144 [31 L.Ed.2d at p. 100]), thus triggering the stricter standard of review.
Unfortunately, neither Bullock nor any subsequent United States Supreme Court case has analyzed “the degree to which a particular regulation affects the right to vote . . . .” (Libertarian Party v. Eu (1980) 28 Cal.3d 535, 543 [170 Cal.Rptr. 25, 620 P.2d 612].) Nonetheless, California appellate courts have generally attempted to apply the Bullock formulation in evaluating candidate restrictions to determine whether the challenged regulation has a “real and appreciable impact” on the electoral process and thus must be subjected to strict scrutiny. (See Choudhry v. Free [, supra,] 17 Cal.3d 660, 664; Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 799 [187 Cal.Rptr. 398, 654 P.2d 168]; Libertarian Party v. Eu (1978) 83 Cal.App.3d 470, 473 [147 Cal.Rptr. 888]; Fridley v. Eu (1982) 131 Cal.App.3d 100, 104 [182 Cal.Rptr. 232].) As [we have] explained, however, “[N]ot every classification established by an ‘election *730law’ need be subjected to this ‘strict’ judicial scrutiny; innumerable election provisions detailing the mechanisms of the election process may have only minimal, if any, effect on the fundamental right to vote, and classifications of this nature may properly be judged under the ‘rational basis’ equal protection standard.” (Gould v. Grubb (1975) 14 Cal.3d 661, 670 [122 Cal.Rptr. 377, 536 P.2d 1337]; see also Rittenband v. Cory (1984) 159 Cal.App.3d 410, 421 [205 Cal.Rptr. 576].)
Historically, California courts applying the Bullock test have made liberal use of the strict scrutiny standard in evaluating restrictions on candidacy. (E.g., Johnson v. Hamilton, supra, 15 Cal.3d 461 (applied to candidate residency requirements); Choudhry v. Free, supra, 17 Cal.3d 660 (applied to candidate property ownership requirements); DeBottari v. Melendez (1975) 44 Cal.App.3d 910 [119 Cal.Rptr. 256] (applied to one-year restriction on recalled officials running for the same public office).) Nonetheless, this line of cases has consistently interpreted and applied federal constitutional law in resolving the equal protection issues presented. Moreover, the more recent California cases recognize that federal law in this area is unsettled and that the United States Supreme Court may be cutting back on the use of the strict scrutiny standard.1 (See, e.g., Choudhry v. Free, supra, *73117 Cal.3d at p. 664; Johnson v. Hamilton, supra, 15 Cal.3d at pp. 466-468; Fridley v. Eu, supra, 131 Cal.App.3d at p. 104; Libertarian Party v. Eu, supra, 83 Cal.App.3d at pp. 472-473.)
We are thus faced with determining whether San Diego’s prohibition of write-in candidates and write-in voting has a “real and appreciable impact” on the right to vote and on the “equality, fairness and integrity of the electoral process.” (Choudhry v. Free, supra, 17 Cal.3d at p. 664.) In doing so, [I] recognize that the facts of this case do not fall neatly into any of the hollows carved by past decisions. Nearly all of the prior cases have considered restrictions which denied “access to the ballot altogether” (Libertarian Party v. Eu, supra, 28 Cal.3d at p. 543) to some “significant” or “identifiable class” of potential candidates. (Thompson v. Mellon (1973) 9 Cal.3d 96, 100 [107 Cal.Rptr. 20, 507 P.2d 628, 65 A.L.R.3d 1029] (opn. of Sullivan, J.); cf. Fullerton Joint Union High School Dist. v. State Bd. of Education, supra, 32 Cal.3d at p. 799.) The group of persons denied access by the San Diego ordinance consists only of those individuals who decide initially not to become candidates but who later interpret changes in the political climate to have improved their chances of being elected. [I] find it difficult to characterize this as the systematic exclusion of a “significant” group.
Moreover, to the extent there is an excluded group, such persons are “identified” only by virtue of their conscious decision not to become a candidate by the normal filing deadline. The waxing and waning of a potential candidate’s political enthusiasm in an otherwise open political system can hardly be equated with the less mutable characteristics which have defined the excluded groups in past cases. (Compare Choudhry v. Free, supra, 17 Cal.3d 660 (defined by property ownership); Johnson v. Hamilton, supra, 15 Cal.3d 461 (defined by residency); Knoll v. Davidson (1974) 12 Cal.3d 335 [116 Cal.Rptr. 97, 525 P.2d 1273] (defined by ability to pay); *732Libertarian Party v. Eu, supra, 83 Cal.App.3d 470 (defined by party affiliation).) The San Diego system is thus, in a very real sense, nondiscriminatory in nature: Anyone can become a candidate if filing deadlines are complied with; if they are not, everyone is subject to the same prohibition against becoming a write-in candidate. (See Green v. Layton (1975) 14 Cal.3d 922, 928 [123 Cal.Rptr. 97, 538 P.2d 225].)
A recent case employed similar reasoning in holding that the lack of an appreciable impact justified application of the rational basis test in evaluating a candidacy restriction. In Fridley v. Eu, supra, 131 Cal.App.3d 100, a state statute effectively precluded use of the write-in process by candidates seeking a minor party’s nomination in the party primary process.2 The court concluded that the statute “does not have an appreciable impact upon the right to vote” because the statutory scheme “afforded all candidates access to the ballot by the ‘simple expedient of filing nomination papers.’” (Id., at p. 104, quoting Blair v. Hebl (W.D.Wis. 1980) 498 F.Supp. 756, 761.) Thus, even if the write-in procedure were unavailable, the alternate means of obtaining ballot access meant that the statutory restriction did not significantly affect the choices available to voters. (Compare Lubin v. Panish, supra, 415 U.S. at p. 716 [39 L.Ed.2d at p. 708].) Under such circumstances, the statute need only be “rationally related to a legitimate state interest.”3 (Fridley, supra, 131 Cal.App.3d at pp. 104-105.)
Having determined that the San Diego scheme must be evaluated using the more deferential branch of the two-tiered equal protection rubric (see generally Fullerton Joint Union High School Dist. v. State Bd. of Education, supra, 32 Cal.3d at pp. 798-799), [I] must now evaluate the governmental interests asserted by San Diego in support of its total prohibition against write-in candidacy and write-in voting.[]
*733Where nonpartisan offices—such as those involved in San Diego municipal elections—are concerned, the clear purpose of the primary election is to narrow the field of candidates to two so that the winner of the general election is assured of having the support of a majority of the voters. (Cf. Storer v. Brown, supra, 415 U.S. at p. 735 [39 L.Ed.2d at p. 726].) The United States Supreme Court has recognized this as a permissible if not significant governmental interest. (Williams v. Rhodes, supra, 393 U.S. at p. 32 [21 L.Ed.2d at p. 32].) Were write-in voting permitted in the general election, the winner might receive significantly less than 50 percent of the vote.4 Accordingly, [I] believe that San Diego’s prohibition of write-in voting at the general election is reasonably related to a legitimate governmental interest. [] [End of Court of Appeal opinion.]
I would hold that San Diego’s prohibition against write-in voting in municipal general elections is constitutional.
Brackets together, in this manner [], are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than the editor’s parallel citations) are, unless otherwise indicated, used to denote insertions or additions. (Estate of McDill (1975) 14 Cal.3d 831, 834 [122 Cal.Rptr. 754, 537 P.2d 874].)
This somewhat more deferential approach to candidate restrictions may be signaled by the recent decision in Clements v. Fashing (1982) 457 U.S. 957 [73 L.Ed.2d 508, 102 S.Ct. 2836], Clements concerned a challenge to two Texas constitutional provisions which prohibited a large number of public officials from running for the state legislature and which forced a more limited number to resign from their current office prior to announcing their candidacy for any other public office. The four-justice plurality opinion by Justice Rehnquist explains that the court’s “ballot access” cases “focus on the degree to which the challenged restrictions operate as a mechanism to exclude certain classes of candidates from the electoral process. The inquiry is whether the challenged restriction unfairly or unnecessarily burdens ‘the availability of political opportunity.’” (Id., at p. 964 [73 L.Ed.2d at p. 516], quoting from Lubin v. Panish, supra, 415 U.S. 709, 716 [39 L.Ed.2d 702, 708, 94 S.Ct. 1315].) The plurality goes on to categorize the two lines of ballot access cases in which the court has applied strict scrutiny principles as those involving wealth-based restrictions (e.g. Lubin v. Panish, supra, 415 U.S. 709; Bullock v. Carter, supra, 405 U.S. 134) and those which burden the First Amendment associational interests of small political parties or independent candidates (e.g., Illinois Elections Bd. v. Socialist Workers Party, supra, 440 U.S. 173; American Party of Texas v. White (1974) 415 U.S. 767; Williams v. Rhodes, supra, 393 U.S. 23). (457 U.S. at pp. 964-965 [73 L.Ed.2d at pp. 516-517].)
While not necessarily limiting the strict scrutiny analysis to only those two categories, Justice Rehnquist explained in Clements that the interference at issue was not significant enough to trigger the heightened review standard. (Id., at pp. 967, 970 [73 L.Ed.2d at pp. 518, 520].) He noted that the Texas system did not absolutely prohibit the officials from becoming candidates for the other offices. The restrictions were viewed as “a de minimis burden” on the political aspirations of the affected persons because they discriminate “neither on the basis of political affiliation nor on any factor not related to a candidate’s qualifications to hold political office.” (Id., at p. 967 [73 L.Ed.2d at p. 518].)
The two illustrative categories mentioned by the Clements plurality suggest that strict scrutiny is appropriate where the candidacy restriction interferes not only with the right to vote but also with some other constitutionally protected interest (e.g., association) or constitutionally questionable classification (e.g., wealth). No California court has yet had the *731opportunity to comment on the Clements analysis, although some language in prior cases suggests a tension with Justice Rehnquist’s rationale. (See, e.g. Fullerton Joint Union High School Dist. v. State Bd. of Education, supra, 32 Cal.3d at p. 799 (“[I]t is the impact of the classification on the electoral process that triggers strict scrutiny. That heightened mode of analysis is not limited to cases involving suspect or invidious classifications”); see also Bay Area Women’s Coalition v. City and County of San Francisco (1978) 78 Cal.App.3d 961, 967 [144 Cal.Rptr. 591].)
[I] perceive that the Clements plurality would apply the rational basis test in evaluating the San Diego ordinance prohibiting write-in voting because such ordinance implicates no additional constitutionally protected class or value. In view of [my] conclusion that strict scrutiny is inapplicable even under existing California precedent because the challenged San Diego scheme has no “real and appreciable impact” on the fairness and integrity of the voting process, [I] need not address the difficult questions of the extent to which the Clements plurality represents the view of the Court and, if so, whether the equal protection provisions of [the] California Constitution compel a different analysis.
The restriction challenged in Fridley was the statutory requirement that in order for a write-in who wins a primary election to have his name placed on the general election ballot, he must have received at least 1 percent of the total number of votes cast in the last general election for the office he seeks. Mr. Fridley, a member of the Libertarian Party, won that party’s primary for the office of state assemblyman in the 22d District. The statute in question made it impossible for him to appear on the general election ballot because the total number of registered Libertarian voters in the 22d District did not equal 1 percent of the votes cast in the previous general election for the assembly seat.
The Fridley court was correct in its conclusion that the minimal impact of the statutory restriction on the choices available to voters justified application of the rational basis test. Furthermore, the state undoubtedly has a legitimate interest in assuring that a write-in candidate does not merely take advantage of a situation where no one appears on the primary ballot (131 Cal.App.3d at p. 105), but in fact demonstrates a significant level of support “among that party’s electorate” (ibid.). If the result in Fridley can be questioned, it is only because the requirement used to gauge support—1 percent of all votes cast for that office at the last general election—has little relationship to the amount of support possessed by the write-in candidate within his party. (Compare Blair v. Hebl, supra, 498 F.Supp. 756 (level of support requirement for write-in candidates in primary election tied to number of votes received by that party’s gubernatorial candidate in the last general election).)
In fact, unsuccessful candidates at the primary election could simply continue their campaigns as write-ins at the general election.