Geary v. Renne

CANBY, Circuit Judge,

dissenting:

Judge Trott has written well, but there is a fatal infirmity in all of the reasoning that supports California's constitutional provision. California justifies its suppression of political party endorsements because the voters, if given such information, might choose to act upon it and cause political results that the State regards as untoward. That is precisely the kind of political paternalism that conflicts fundamentally with the first amendment. See Eu v. San Francisco County Democratic Central Committee, — U.S. -, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989).

Every single evil that the State seeks to avoid flows from electoral choice. One need only look at the majority opinion’s dire prediction of the results that would follow from striking down California’s ban on party endorsements.

Unquestionably, with the demise of Article II, § 6(b), political parties would establish regular and formal procedures pursuant to which candidates for nonpartisan offices could solicit endorsement and support and positions on “slate mailers,” procedures whereby candidates *1083and their views and qualifications could be — and most likely would be — questioned and examined_ It is ... naive, we think, to believe that parties would rise above the temptation to support and endorse nonpartisan candidates with views incompatible with those of the party.... On the other side of this coin, nonpartisan candidates would feel pressure to adopt views believed to be acceptable to the party whose money, machinery and clout they sought to obtain. The substance of the nonpartisan process which California seeks to protect could easily be swept away by the political wind from which it is designed to be sheltered.

Majority opinion, supra at 1079. Of course, none of these events will come to pass if the voters pay no attention to major party endorsements. The key to all of the above developments is that many voters attach meaning to a political party endorsement and vote accordingly. Indeed, if the process described above in fact ensues, the voters will be quite correct. Parties will endorse candidates who adhere to the parties’ principles, the candidates will seek to embrace those principles, and the voter will then know that the endorsement means something. See Tashjian v. Republic Party of Connecticut, 479 U.S. 208, 220, 107 S.Ct. 544, 551-52, 93 L.Ed.2d 514 (1986).

Other evils envisaged by the majority 1079 “that party endorsements would place local officials and judges in debt to the statutory political parties,” and that party endorsement “would effectively determine who could and who could not run for that office” — are similarly dependent upon the voters’ positive reaction to the political endorsement.

To accept California’s position, then, is to accept the proposition that the voters, in acting favorably upon a political party endorsement, are making a mistake. They are attaching too much meaning, or the wrong meaning, to the party’s endorsement. Knowing that a particular party supports a candidate, the voters improperly vote for that candidate and give rise to too much party influence over local affairs. To combat this tendency, California could rely on independent candidates to try to convince the voters that they ought not to attach such importance to party labels. But California is apparently afraid that a majority of the voters will fail to be convinced. Consequently, it has taken a much simpler route: it has prohibited statutory political parties from endorsing (or otherwise supporting) candidates in nonpartisan elections, and from publicizing such endorsements. Under our Constitution, however, that option is not open to California. “It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.” Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770, 96 S.Ct. 1817, 1829, 48 L.Ed.2d 346 (1976); see also Anderson v. Celebrezze, 460 U.S. 780, 798, 103 S.Ct. 1564, 1574-75, 75 L.Ed.2d 547 (1983).

Much of the majority’s opinion is taken up with explanations of the beneficial effects of nonpartisan elections and an appeal to pragmatism. Good things, we are told, have followed from nonpartisan elections — good things that would not have come about if the voters were exposed to one particular vein of political speech. We are presented with Holmes’ statement that experience, not logic, has been the life of the law. There are several difficulties with this line of attack.

There are times when the law should accommodate to an existing condition and there are others when the status quo must yield to principle. The first amendment is perhaps our most fundamental assertion of principle, in a document that embodies the loftiest of norms along with the most pragmatic of compromises. Properly viewed, the first amendment protects free expression as an end in itself. See L. Tribe, American Constitutional Law 576-79 (1978). But even under a narrower, instrumental view of the first amendment, there is an irreducible core requirement. It is that political speech must be free so that the sovereign people can decide public issues. To posit that the people may decide incorrectly, and therefore should be denied *1084information in order to steer their decisions, is to posit some other sovereign who can decide when the people are likely to be mistaken, and what they should be allowed to know. Little would be left of the first amendment under such a regime. If we are to draw a principle from Holmes, then, it should be “that the ultimate good desired is better reached by free trade in ideas— that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (1919) (dissenting opinion). See also Gitlow v. New York, 268 U.S. 652, 673, 45 S.Ct. 625, 632, 69 L.Ed. 1138 (1925) (Holmes, J., dissenting) (“If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way”).

That California is suppressing expression because of its communicative impact is enough to invalidate its action in the absence of such an imminent danger “that an immediate check is required to save the county.” Abrams, 250 U.S. at 630, 40 S.Ct. at 22 (dissenting opinion); see Tribe, supra at 581. None of the political evils described in the majority opinion rise to that level. Indeed, it is not even clear that the evils, which are themselves well documented, were caused by political party endorsements or were cured by their suppression. I am not convinced, for example, that the influence of the Southern Pacific Railway in California politics would have been noticeably diminished if the local governments with which the railroad dealt had been elected without partisan support. Nor, I suggest, would it have been constitutional for California to solve the problem of Southern Pacific dominance by prohibiting the Railway from announcing its support for particular political candidates. See Buckley v. Valeo, 424 U.S. 1, 39, 96 S.Ct. 612, 644, 46 L.Ed.2d 659 (1976). Why should it be able so to restrict political parties?

Indeed, two themes seem to run throughout the majority’s review of California political history: first, that California voters have a strong tradition of anti-party independence and, second, that if candidates are endorsed by political parties, the California voters will overwhelmingly vote for party candidates to the exclusion of independents. Putting the anomaly aside, the majority opinion would favor the first tendency by permitting California to prohibit the second. Underlying that choice, of course, is the conclusion that nonpartisan candidates make “better” local officials than partisan ones do.1 That proposition is not self-evident, nor is the proposition that the interests of national political parties are irrelevant to local issues. There may be no Republican, or Democratic, or Libertarian way to build a city jail, but there may very well be Republican, Democratic or Libertarian positions on whether a jail should be built and who should be taxed for it. It is not necessarily bad government for voters to elect an official because of his partisan position on such an issue, nor for the official to feel committed to the position that got him elected. See Brown v. Hartlage, 456 U.S. 45, 58, 102 S.Ct. 1523, 1531, 71 L.Ed.2d 732 (1982). In any event, there is no need to decree the superiority of either the partisan or the nonpartisan local official; the voters can make that decision at each election.

Because the majority opinion is insufficiently sensitive to the point that a state may not suppress communication because of its communicative impact, it falls into other error. For example, it concludes that California’s constitutional provision “is not *1085a law aimed at ideas themselves or specific information that California wishes to suppress although concededly it has this ‘indirect consequence.’ ” Supra at 1081. California’s provision, however, forbids parties to “endorse, support, or oppose a candidate for nonpartisan office.” The whole thrust of the majority’s opinion is that a party endorsement conveys information that the state does not want to go to the voters, because they will act upon it. Article II, § 6(b) is intended to suppress that information. It is quite backward to characterize California’s law as one directed at corruption and other political evils, with an indirect effect upon speech. The State’s measure is directed at the content of speech, in order indirectly to achieve political consequences. That is its prime flaw.

It is also a mistake to equate political endorsement with control of the nomination process. Supra at 1079 n. 26. If the two are equivalent, it is only because of the effect of the endorsement on the minds of the voters. If that forbidden consideration is removed, the two categories are quite distinct. Nothing in the first amendment prevents California from establishing an open nomination process totally apart from party direction. Access to the ballot can be achieved by collection of signatures, or by some other neutral method. Such a system will permit California to achieve all the virtues it has attributed to nonpartisan office holding, if the voters agree with its goal.

The fact that California’s prohibition is aimed only at statutory parties and their central committees is hardly a saving grace. Those entities, as well as their members, enjoy rights of free speech and free association. Eu, 109 S.Ct. at 1020. Nor is much to be gained by the majority opinion’s emphasis on the fact that the parties seek to place their endorsements in the San Francisco voter pamphlet, an official government publication. San Francisco has chosen to open its voters’ pamphlet to endorsement by other groups; it denies access only to the statutory parties and their central committees, as the California constitutional provision dictates. The first amendment does not require San Francisco to distribute any endorsements at all, but that is not the issue in this case. The issue is whether California can prohibit party endorsements, and their distribution. For reasons already stated, the clear answer is “no,” and the answer is certainly made no less clear by the fact that California singles out political parties and permits endorsement by all others.2

Finally, a word about judges. It is true that the evils of partisanship appear to be greater in the case of judges than of other officials, because it is far from clear that decisions of judges ought to be responsive to the desires of the electorate, partisan or otherwise. “It is a serious accusation to charge a judicial officer with making a politically motivated decision. By contrast, it is to be expected that a legislator will vote with due regard to the views of his constituents.” Clements v. Fashing, 457 U.S. 957, 968, 102 S.Ct. 2836, 2846, 73 L.Ed.2d 508 (1982). The political threat to judicial independence, however, is attributable far more to the decision to elect judges in the first place, and to subject them to reelection, than it is to party endorsement. Having made that choice, the state is not free to prevent political parties or anyone else from announcing their support of a candidate; the first amendment does not permit the suppression of such information. Although the state interest is higher in the case of judges than of legislators, because of the difference in their functions, suppression of speech is too high a price to pay to advance that interest. See Unger v. Superior Court, 37 Cal.3d 612, 622-24, 209 Cal.Rptr. 474, 481-82, 692 P.2d 238, 244-45 (1984) (Grodin, Acting C.J., concurring). Other electoral devices, such as unopposed elections on the question of retention, long terms, or appointment are better constitutional routes to judicial independence.

Conclusion

The decision of the majority in this case permits California to suppress political ex*1086pression because the voters might misuse the information. Our entire first amendment jurisprudence is to the contrary.

Most recently, in Eu, the Supreme Court struck down California’s ban on pre-pri-mary endorsements by political parties. The Court stated:

California’s ban on primary endorsements ... prevents party governing bodies from stating whether a candidate adheres to the tenets of the party or whether party officials believe that the candidate is qualified for the position sought. This prohibition directly hampers the ability of a party to spread its message and hamstrings voters seeking to inform themselves about candidates and the campaign issues.

Eu, 109 S.Ct. at 1020. The Court then firmly rejected California’s paternalistic approach despite the reasons, including the danger of voter “confusion,” offered in support of the prohibition. Id. at 1020-23.

The reasoning and result in Eu transfer easily to this case. The first amendment prevents California from suppressing information that its voters might use. The district court understood that point and struck California’s provision down. I would affirm its ruling.3

. This assumption that nonpartisan candidates are "better” seems to underlie the conclusion of the majority opinion, supra at 1065, that California's prohibition of endorsements is to be treated sympathetically because it "opens” the political process to diverse interests, rather than clogging it. A diversity of viewpoints in a legislative body may or may not be a good thing, but it is not clearly beneficial or consistent with the first amendment to suppress expression in order to bring it about. To open a system by favoring independents is to close it for the disfavored partisan candidates. Which should be elected should be left to the voters, once they are permitted to know one from the other.

. My view of the first amendment issues in this case makes it unnecessary for me to reach the question of equal protection, where the California provision is equally suspect.

. The view of federalism cited by the majority opinion and drawn from Federalist No. 45, supra at n. 28, need not deter us from invalidating the California constitutional provision. The notion that federal concerns are directed toward external affairs, while the tenth amendment reserves to the states the concerns over liberties of the people, was advanced at a time when the Bill of Rights did not apply to the states. The division of powers Federalist No. 45 envisaged was radically altered by the fourteenth amendment, enacted in the aftermath of the Civil War. "We must consider what this country has become in deciding what [The Tenth] Amendment has reserved.” Missouri v. Holland, 252 U.S. 416, 434, 40 S.Ct. 382, 383-384, 64 L.Ed. 641 (1920). Nothing in our federalism as it exists today suggests that States should be the sole judges of the degree to which first amendment expression can be restricted.