Geary v. Renne

GOODWIN, Chief Judge:

Since at least 1913, California by statute or state constitutional provision has made all city, county, school, and judicial offices nonpartisan. Political parties have no control over the nomination or election processes for those offices. Prior to 1986, however, no law prohibited political party endorsements of candidates running for such offices. Nevertheless, because the legal status of such endorsements was unclear, political parties did not endorse candidates in 75% of California counties. In 1986, the people of California voted overwhelmingly to adopt Proposition 49, which amended the state constitution to formalize the ban on political party endorsements: Article II, § 6(b) provides that “[n]o political party or party central committee may endorse, support or oppose a candidate for nonpartisan office.”

Plaintiffs-appellees in this case are ten registered voters of the City and County of San Francisco, an organization of registered voters, and one of that organization’s officers. The basis of their complaint as it relates to this appeal was the refusal of the City and County of San Francisco and the San Francisco Registrar of Voters (appellants) to permit official political party and party central committee endorsements to be printed in the San Francisco Voter Pamphlet prepared for elections scheduled June 2 and November 3, 1987. Appellants based their refusal to print such endorsements on the language of Article II, § 6(b).

On September 11, 1987, plaintiffs-appel-lees filed suit, and in their third cause of action challenged the constitutionality of § 6(b) and sought injunctive and declaratory relief. They alleged that § 6(b) violates the rights of political parties and their members to free speech and association under the first and fourteenth amendments of the Constitution1 and to equal protection under the fourteenth amendment.

On April 27, 1988, the district court granted the plaintiffs’ motion for partial summary judgment with regard to their third cause of action 708 F.Supp. 278, relying in large part on the reasoning of state Supreme Court Justice Grodin’s concurring opinion in Unger v. Superior Court, 37 Cal.3d 612, 209 Cal.Rptr. 474, 692 P.2d 238 (1984).2 On May 6, 1988, the city moved to vacate the district court’s judgment and was unsuccessful. This appeal followed.

The original panel of this court reversed the judgment, holding that California’s compelling interest in preserving its nonpartisan system of government for local and judicial offices justified the infringement of the plaintiffs’ first amendment rights effected by § 6(b). 880 F.2d 1062. We took this case en banc in order to reconsider the panel’s decision. Upon reconsideration, we affirm the decision of the district court.

The broad authority of the states to prescribe the procedures governing local elections “does not extinguish the State’s responsibility to observe the limits established by the first amendment rights of the State’s citizens.” Eu v. San Francisco Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 1019, 103 L.Ed.2d 271 (1989). In reviewing a challenge to a provision of a state’s election laws, we first consider whether the provision burdens rights protected by the first and fourteenth amendments. Id. If the enactment at issue impairs the first amendment rights of *283political parties and their members, “it can survive constitutional scrutiny only if the State shows that it addresses a compelling state interest ... and is narrowly tailored to serve that interest.” Id. 109 S.Ct. at 1019-20 (citations omitted); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978).

It is indisputable that the restrictions embodied in § 6(b) implicate appellees’ first amendment rights. The ban on endorsements directly affects political speech, “the inviolability of which rests at the core of the First Amendment.” San Francisco Democratic Cent. Comm. v. Eu, 826 F.2d 814, 833 (9th Cir.1987), aff'd, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). As the Supreme Court has made clear, “[a]dvoeacy of the election or defeat of candidates ... is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy or defeat of legislation.” Buckley v. Valeo, 424 U.S. 1, 48, 96 S.Ct. 612, 648, 46 L.Ed.2d 659 (1976). And because the exercise of these basic first amendment freedoms traditionally has been through the media of political associations, political parties as well as party adherents enjoy rights of political expression and association. Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311 (1957).

Because § 6(b)’s prohibitions do impair appellees’ first amendment rights, the burden is on the government to show a compelling state interest justifying the regulation. Eu, 826 F.2d at 833 (quoting Bellotti, 435 U.S. at 786, 98 S.Ct. at 1421). Appellants declare § 6(b) essential to preserving the nonpartisan nature of California’s system of electing local and judicial officials and assert that the State’s interest in the “fair and impartial administration of government” is compelling enough to warrant § 6(b)’s ban on partisan endorsements.

Attempting to avoid the constitutional minefield of claiming first amendment restrictions to be justified for the purpose of preventing “undue influence on voters” and guiding the electorate to make sensible choices, see, e.g., Bellotti, 435 U.S. at 789-91, 98 S.Ct. at 1422-24, appellants characterize their concern as an interest in the end product of § 6(b)’s restrictions on political party speech: i.e., prevention of a return of political party domination of local government and diminished voter confidence in local public officials. See, e.g., Amicus Curiae Brief of Tom Bradley, May- or of Los Angeles, at 3 (California’s concern “does not relate to the impact that endorsements may have on voters’ choices but rather to the indirect impact on elected officials’ independence from partisan political pressures”).

As support the State cites Supreme Court cases upholding limits on campaign contributions and spending, contending that political party endorsements create the same risks of corruption or the appearance of corruption that the Court previously has determined justify governmental regulation of election spending. The analogy is flawed. In its most recent pronouncement in this area, Austin v. Michigan Chamber of Commerce, — U.S. -, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), the Court upheld a provision of the Michigan Campaign Finance Act prohibiting corporations from using general treasury funds for independent expenditures in connection with state candidate elections. In its defense Michigan contended that the unique legal and economic characteristics of corporations necessitated some regulation of their political expenditures in order to avoid corruption or the appearance of corruption. Id. at 1397. Affirming that, in previous cases, “[w]e ... have recognized that ‘the compelling governmental interest in preventing corruption supports] the restriction of the influence of political war chests funneled through the corporate form,’ ” id. (quoting FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 500-01, 105 S.Ct. 1459, 1470, 84 L.Ed.2d 455 (1985) (NCPAC)), the Court found the Michigan statutory provision a legitimate check upon “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the [state-conferred] corporate form and that have little or no correlation to the public’s support for *284the corporation’s political ideas.” Id. at 1397.

The corruption the Court found properly addressed by the Michigan statute was not of the kind decried by California here. Under the definition applied in past cases, “[corruption is a subversion of the political process” whereby “[ejlected officials are influenced to act contrary to their obligations of office by the prospect of financial gain to themselves or infusions of money into their campaigns.” NCPAC, 470 U.S. at 497, 105 S.Ct. at 1468; see also Austin, 110 S.Ct. at 1421 (Kennedy, J., dissenting). “The hallmark of corruption is the financial quid pro quo: dollars for political favors.” NCPAC, 470 U.S. at 497, 105 S.Ct. at 1468.

By contrast, the Court explicitly has excluded from its definition the kind of conduct California seeks to prevent with § 6(b): “[tjhe fact that candidates and elected officials may alter or reaffirm their own positions on issues in response to political messages ... can hardly be called corruption, for one of the essential features of democracy is the presentation to the electorate of varying points of view.” Id at 498, 105 S.Ct. at 1468. The rationale underlying “the long history of regulation of corporate political activity” thus simply is not available as a justification for the complete suppression of speech by political parties, regardless of whether the elections in question are partisan or nonpartisan in nature. See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 256, 107 S.Ct. 616, 627, 93 L.Ed.2d 539 (1986) (MCFL) (emphasis added). As the Court said in exempting Massachusetts Citizens for Life, a nonprofit organization dedicated to promoting respect for the rights of the unborn, from Federal Election Campaign Act (FECA) prohibitions on corporate expenditures of treasury funds on behalf of federal candidates:

[such groups] do not pose [any] danger of corruption. MCFL was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the economic marketplace, but its popularity in the political marketplace.

Id. at 259, 107 S.Ct. at 628-29 (emphasis added). That description applies equally well to the political parties targeted by § 6(b).

In Eu we considered a similar ban on partisan endorsements before party primaries in California. Finding that “[wjith the exception of cases upholding laws carefully tailored to proscribe fraud and corruption,” the State had “cite[d] no authority for the proposition that the government can regulate the flow of information between political associations and their members,” we held that the ban “patently infringe[d] both the right of the party to express itself freely and the right of party members to an unrestricted flow of political information.” 826 F.2d at 835.

Appellants assert that Eu is distinguishable because it involved party endorsements in elections for partisan offices and because the state interest advanced here— i.e., in preventing the appearance or reality of “corruption” of nonpartisan officeholders — is more compelling. Having dealt with the latter contention above, we observe with regard to the first that there is nothing in this court’s Eu opinion or the Supreme Court’s affirmance of that opinion which suggests that either analysis was in any way dependent upon the fact that partisan offices were at issue. The concern in both fora was with the State’s abridgement of the rights of political parties and their members to exchange ideas and information, not with the nature of the elections at issue. See, e.g., 109 S.Ct. at 1020 (“[a] ‘highly paternalistic approach’ limiting what people may hear is generally suspect, but it is particularly egregious where the State censors the political speech a political party shares with its members”) (citations omitted); 826 F.2d at 835 (same).

Even if we were to find the state interests underlying § 6(b) compelling, we still would be bound to declare the amendment invalid, because appellants have failed to show that § 6(b) is narrowly tailored to achieve its purported objectives. See Eu, 826 F.2d at 834 (citing Consolidated Edison Co. v. Public Serv. Comm., 447 *285U.S. 530, 540, 100 S.Ct. 2326, 2334, 65 L.Ed.2d 319 (1980)). The State claims that § 6(b) is narrowly drawn because only political parties and their county central committees are prohibited from endorsing, supporting, or opposing nonpartisan candidates; individuals are not subject to its restrictions. But as we have noted, supra at 283, political parties as well as party adherents possess rights of expression and association under the first amendment, and the mere fact that § 6(b) targets the collective rather than the individual voices of party members does not suffice to render it “precisely drawn.” See Bellotti, 435 U.S. at 777, 98 S.Ct. at 1416 (“[t]he inherent worth of [political] speech ... does not depend upon the identity of its source, whether corporation, association, union, or individual”).

Even in the campaign contribution and expenditure cases appellants cite as support for their position, the Supreme Court consistently has emphasized the limited nature of the restrictions it has upheld and the availability of alternative avenues of expression for the affected speakers.3 As the Court observed in Buckley, with regard to the narrow provisions of the FECA it found to be constitutional:

[s]ignificantly, the Act’s contribution limitations in themselves do not undermine to any material degree the potential for robust and effective discussion of candidates and campaign issues by individual citizens, associations, the institutional press, candidates, and political parties.

424 U.S. at 28-29, 96 S.Ct. at 639-40 (emphasis added). Obviously, the same cannot be said of § 6(b); it imposes a total ban on any partisan gesture of support for or opposition to a candidate. Accordingly, the district court below specifically found that the State could adequately safeguard the interests § 6(b) was designed to protect by less drastic means, including provision for non-partisan methods of nominating candidates for local and judicial offices and controls on partisan activities of the candidates.4

We therefore reject appellants’ assertion that allowing party endorsements will lead inexorably to party usurpation of the nomination process for nonpartisan candidates; the seventy years of nonpartisan government celebrated by appellants were achieved without benefit of a formal ban on partisan advocacy, and the State has offered nothing but speculative evidence to *286support its contention that the invalidation of § 6(b) will generate a disastrous departure from the experience of the past.5

We are not unmindful that “the Constitution grants to the States a broad power [to regulate Congressional elections under] Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.” Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986); see also Oregon v. Mitchell, 400 U.S. 112, 124-25, 91 S.Ct. 260, 264-65, 27 L.Ed.2d 272 (1970) (opinion of Black, J., delivering the judgment of the Court) (observing that under the 10th Amendment, one of the powers reserved to the states is the regulation of state elections). But as the Supreme Court has emphasized, the state’s power to protect the integrity of its electoral processes “does not justify, without more, the abridgement of fundamental rights, such as the right to vote, see Wesberry v. Sanders, 376 U.S. 1, 6-7, 84 S.Ct. 526, 529, 11 L.Ed.2d 481 (1964), or, as here, the freedom of political association.” Tashjian, 479 U.S. at 217, 107 S.Ct. at 550; see also Miami Herald v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) and Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (striking down on first amendment grounds state election laws interfering with newspapers’ rights to comment on political candidates); Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (10th Amendment cannot save legislation prohibited by subsequently enacted fourteenth amendment).6

Because we find that the ban on partisan endorsements by political parties burdens political speech without being narrowly tailored to serve compelling state interests, we hold that § 6(b) violates the first and fourteenth amendments.7

AFFIRMED.

. The first amendment is made applicable to the states through the fourteenth amendment. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907 n. 43, 102 S.Ct. 3409, 3422, 73 L.Ed.2d 1215 (1982); Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963).

. In Unger, a plurality of the Court held that the state constitutional provisions making city, county, school, and judicial offices nonpartisan did not prohibit the making of endorsements by political parties. Justice Grodin wrote separately in order to express his view that a ban on such endorsements would violate the first amendment.

. In Austin, for example, the Court found the Michigan enactment at issue to be “precisely targeted” to achieve its aims because it "does not impose an absolute ban on all forms of corporate political spending but permits corporations to make independent political expenditures through separate segregated funds.” 110 S.Ct. at 1398 (emphasis in original). Similarly in MCFL, the Court emphasized that the FECA limitations on corporate political expenditures upheld in its previous cases were “of course distinguishable from the complete foreclosure of any opportunity for political speech that we invalidated in the state referendum context in First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 [98 S.Ct. 1407, 55 L.Ed.2d 707] (1978)." 479 U.S. at 259 n. 12, 107 S.Ct. at 628 n. 12 (emphasis added).

. In fact, the California Elections Code features several provisions designed to preserve the nonpartisan character of local and judicial elections. To begin with, we note that Section 37 of the Code explicitly forbids party participation in the nomination of candidates for nonpartisan office, defining a "nonpartisan office" as "an office for which no party may nominate a candidate.” In addition, the Code contains provisions stating that declarations of candidacy and other nomination papers may not refer to party affiliation (§ 6401.5); the name of the party to which a candidate for nonpartisan office belongs may not appear on the ballot (§ 10200.5); a voter may cast his ballot for a candidate for nonpartisan office without regard to party affiliation (§ 10214); and partisan and nonpartisan offices are to be listed in separate columns on the ballot form (§ 10207). See Unger, 37 Cal.3d at 616 (Grodin, J., concurring). See also Note, Local Nonpartisan Elections, Political Parties and the First Amendment, 87 Colum.L.Rev. 1677, 1698-1700 (1987) (concluding that § 6(b) unconstitutionally burdens first amendment rights and discussing means short of a complete ban on political party involvement in nonpartisan elections states may employ to counteract perceived threats of undue party influence on nonpartisan officeholders and preserve responsiveness of local government to constituent concerns).

§ 6(b) was enacted in 1986; appellants have made no showing that the above-mentioned Election Code provisions have proven inadequate to maintain the nonpartisan character of local and judicial offices.

.The affidavits by various state officials offered in evidence by appellants fail to demonstrate that "the relative voice of [political parties] has been overwhelming or even significant in influencing" nonpartisan elections, "or that there has been any threat to the confidence of the citizenry" in its nonpartisan officeholders. See Bellotti, 435 U.S. at 789-90, 98 S.Ct. at 1422-23. Indeed, as Justice Grodin pointed out in Unger, “one might expect that in local elections ..., local 'special interest’ and civic groups would have a greater influence over the electorate than would political parties.” 37 Cal.3d at 623-24 n. 4, 209 Cal.Rptr. 474, 692 P.2d 238 (Grodin, J., concurring) (citing Lee, The Politics of Nonpartisanship 77, 79 (1960)).

Even if California is correct, and the availability of partisan endorsements in the future does produce nonpartisan officeholders more sensitized to party preferences, that result will have been effected through the exercise of informed voter choice — a mechanism with which the State may not interfere out of a concern that, in the absence of regulation, the voters will mis-perceive their own best interests. See Bellotti, 435 U.S. at 791 n. 31, 98 S.Ct. at 1424 n. 31 (“[g]overnment is forbidden to assume the task of ultimate judgment, lest the people lose their ability to govern themselves”).

. It is, of course, "irrelevant that the voters rather than a legislative body enacted [§ 6(b) ], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.” Citizens Against Rent Control v. Berkeley, 454 U.S. 290, 295, 102 S.Ct. 434, 437, 70 L.Ed.2d 492 (1981).

. This disposition makes it unnecessary to reach appellees’ equal protection claims.