While I concur with the order of the court, I respectfully dissent from the conclusion voiced in the foregoing opinion.
The majority opinion asks us to look to the background and purpose of section 6 of article II of the state Constitution and the historical role played by the Legislature and by political parties in nonpartisan elections and in the conduct of party affairs. My consideration of these matters leads me to the conclusion that the people, in adopting the constitutional provision under consideration, intended a broader definition of nonpartisanship than that suggested in the opinion; and that a qualified statutory partisan political party, as distinguished from its members and any voluntary groups made up of all or any of its members, is prohibited by the Constitution from lending the authority of its name, or the name of its subordinate statutory groups, or its titular officers by their statutory party titles, to the support or opposition of candidates for judicial, school, county and city offices. In so concluding, I face the issue of whether the First Amendment to the United States Constitution precludes a state from so immunizing its election process from statutorily established partisan interest. I conclude that inasmuch as *Page 626 no individual, whether or not holding office as a member of the qualified statutory partisan political party, or no voluntary association of such individuals is restrained from advocating the support or nonsupport of such candidates, the state, in the pursuit of the laudable aim of freeing judicial offices from partisan consideration, has properly served a compelling interest by limiting the elections in which the statutorily created party may officially participate.
I. On November 7, 1972, the people of this state voted to incorporate the following language in the California Constitution. "Judicial, school, county and city offices shall be nonpartisan." (Cal. Const., art. II, § 5, renumbered § 6, June 8, 1976.) In Unger v. Superior Court (1980) 102 Cal.App.3d 681 [162 Cal.Rptr. 611] (Unger I) (hg. by Supreme Ct. den. May 22, 1980; cert. den. Jan. 26, 1981, 441 U.S. 1131 [67 L.Ed.2d 118, 101 S.Ct. 952])1 the petitioner sought to enjoin the Marin County Democratic Central Committee from endorsing and granting financial support to four candidates for election to the nonpartisan Marin Community College Board at the November 6, 1979, election. In determining that such actions should be prohibited as violating the provisions of section 6, the opinion defines nonpartisan as follows: "`not affiliated with or committed to the support of a particular political party: politically independent . . . viewing matters or policies without party bias . . . held or organized with all party designations or emblems absent from the ballot . . . composed, appointed or elected without regard to political party affiliations of members. . . .' (Webster's New Internat. Dict. (3d ed. 1965)." (102 Cal.App.3d at p. 685.) Similarly in State v. DistrictCourt (1949) 122 Mont. 464 [206 P.2d 166] the court noted, "According to Webster's New International Dictionary: Anon-partisan is a person `appointed or elected without regard to political affiliations; not controlled by parties or party spirit or interests.'" (Id. at p. 476 [206 P.2d at p. 172].)
The majority opinion dismisses the common sense conclusion ofUnger I as the result of reliance on a broad definition of the term "nonpartisan" in a dictionary. It disapproves Unger I because it does not mention the legislative *Page 627 history of section 6 and because it fails to recognize that there is no express prohibition in section 6 or anywhere in our statutes to prohibit the conduct in question. (Ante, p. 619.) It concludes that the legislative background and purpose of section 6, as well as the historical role played by political parties in nonpartisan elections and in the conduct of party affairs leads to the conclusion that section 6 does not prevent statutorily qualified parties from endorsing, supporting or opposing candidates for nonpartisan office. (Id. at p. 615.) The opinion concludes from the historical background that the focus should not be to decide whether statutory political parties have legislative authority to support or oppose candidates for nonpartisan office, but whether there is an express restraint against such actions. It then finds that the only limitations imposed by the Legislature or by the Constitution are that such an organization may not nominate a candidate for such office and that the election shall be nonpartisan in form.2 Strictly speaking an election nonpartisan in form is one in which no party label appears on the ballot, and candidates are nominated by a simple petition process. It is obvious, however, that if political parties are given the license offered by the proposed opinion, and only the form but not the substance of a nonpartisan election is guaranteed, there well may be a breakdown in the political philosophy underlying the use of such a ballot.
A Before demonstrating that prior legislation impliedly prohibited such activities, and that such activities cannot be justified on the grounds of improper practice in the past, I examine the purpose of section 6, and the intent of the voters in adopting the constitutional provisions. The plain meaning of the section is clear as laid out in Unger I. Unless a voter had prescience of the Attorney General's opinion rendered in January 1976 (59 Ops.Cal.Atty.Gen. 60), that voter in 1972 would not know or be concerned with the fact that the Legislature had failed to expressly curb a qualified partisan political party's authority to interfere in a nonpartisan election. The voter presumably would know that for almost six decades the power to nominate partisan candidates through primary election had been delegated to the registered voters of each party along with the election of party functionaries to support the election of those nominees and to conduct other partisan party affairs. The voter would be surprised to learn that when he *Page 628 voted to make judicial, school, county and city offices nonpartisan he only intended that a party could not nominate candidates for that office, and that he contemporaneously was permitting it free rein to endorse and use its resources to support or oppose such a candidate.
The majority opinion recognizes that there are "persuasive reasons why it is preferable for political parties to refrain from endorsing or opposing nonpartisan candidates." (Ante, p. 620.)3 Nonpartisanship in judicial elections serves several purposes. It permits the voter to focus on the intelligence, experience and integrity of the candidates rather than their political affiliations. It frees the candidates from obligation to a political organization that may later seek to exact favors for former or future support. It permits the nomination and reelection of qualified candidates without the necessity of securing a nomination in a partisan election.4
These purposes, aimed at preserving the independence of the judiciary as one of the three constitutional branches of government, will be subverted by authorizing and encouraging the statutorily constituted political parties to grant or withhold endorsement of candidates for judicial office as a matter of practice. Such organizations are specially created to advance the partisan aims of party members through the selection and election of candidates for legislative and executive offices who will expound those aims in office. (See Moore v. Panish (1982)32 Cal.3d 535, 542 [186 Cal.Rptr. 475, 652 P.2d 32].) It is obvious that the official interjection of such organizations in judicial elections will result in demands for similar subservience from candidates seeking formal endorsement for their election to the bench, and in tainting the election to the constitutionally designated nonpartisan office with issues unrelated to the administration of justice. Certainly the electorate had these evils in mind in adopting section 6. *Page 629
Under the 1913 Direct Primary Law a candidate for a judicial, school, county or township office who received a majority of the votes cast at the primary election would be the only candidate for such office at the ensuing general election (Stats. 1913, ch. 690, § 23, p. 1404). Other constitutional provisions had been held to exempt judicial offices from any interpretation of this provision that would permit the election of a judge at a primary election. (See Miller v. Childs (1915) 28 Cal.App. 478, 486-489 [152 P. 972] and French v. Jordan (1946) 28 Cal.2d 765, 768-769 [172 P.2d 46].) As a result section 2 3/4 of article II of the Constitution was proposed and adopted in 1926 to provide as follows: "Any candidate for judicial, school, county, township or other nonpartisan office who at a primary election shall receive votes on a majority of all the ballots cast for candidates for the office for which such candidates seek nomination, shall be elected to such office. . . ." (As adopted Nov. 2, 1926, and repealed Nov. 7, 1972; italics added.)
The majority opinion adopts the reasoning of the Attorney General in his opinion (59 Ops.Cal.Atty.Gen. 60), disapproved inUnger I (102 Cal.App.3d 681, 688), which concluded "Prior to that time, there was no statute prohibiting party endorsements of any type. There is no reason to suppose that the adoption of article II, section 2 3/4 was intended to impose such a prohibition." (59 Ops.Cal.Atty. 60, 63.) This begs the question. The constitutional amendment did not intend to define nonpartisan office other than by its common meaning. The statutes as they developed clearly distinguished between partisan and nonpartisan offices and did not permit a construction other than that the official organizations created by the Direct Primary Law had no authority to participate formally or informally in the elections for the designated offices. (See subpart B below.)
There is no reason to believe that Commissioner Spear or the electorate thought that "nonpartisan" had the limited meaning attributed to it by the Attorney General and the majority opinion. As we have seen section 2 3/4 was at best recognition of the existing statutory provisions that provided for nonpartisan elections. It only prescribed the manner of determining such elections. It did not expressly curb the Legislature's power to designate the offices that would be partisan or nonpartisan. The 1972 provisions were the first to give constitutional sanction to a guaranty of nonpartisanship. The material referred to in the majority opinion in no way indicated that the term should be limited to other than its common meaning. (See maj. opn. ante, pp. 617-618 and fn. 10.)
Section 26 of article I of the California Constitution states: "The provisions of this Constitution are mandatory and prohibitory, unless by express *Page 630 words they are declared to be otherwise."5 This means that the provisions of section 6 of article II are self-executing. (State Board of Education v. Levit (1959) 52 Cal.2d 441, 460-461 [342 P.2d 8]; French v. Jordan, supra, 28 Cal.2d 765, 767 770; Unger I, supra, 102 Cal.App.3d 681, 685; Flood v.Riggs (1978) 80 Cal.App.3d 138, 154 [145 Cal.Rptr. 573].) I reiterate what was quoted in the Levit case and applied inUnger I: "This section . . . not only commands that its [the Constitution's] provisions shall be obeyed, but that that disobedience of them is prohibited. Under the stress of this rule, it is the duty of this court to give effect to every clause and word of the constitution, and to take care that it shall not be frittered away by subtle or refined or ingenious speculation. The people used plain language in their organic law to express their intent in language which cannot be misunderstood, and we must hold that they meant what they said." (Oakland Paving Co. v. Hilton (1886) 69 Cal. 479, 512 [11 P. 3].)
B In turning to the history of the development of government intervention and regulation of political parties we find that in 1866 the Legislature provided an optional primary election which any voluntary political association or party might use for electing delegates or candidates. (Stats. 1865-1866, ch. 359, §§ 1-7, p. 438; see Friedman, Reflections Upon the Law of PoliticalParties (1956) 44 Cal.L.Rev. 65, 66.) In People v. Cavanaugh (1896) 112 Cal. 674 [44 P. 1057], upon which the majority opinion relies, the court upheld the dismissal of an indictment for violation of the purity of elections act (Stats. 1893, ch. 16, p. 12) because the act did not apply to such elections. The opinion states: "For, as we have seen, political parties are a law unto themselves as to the conduct of primary elections." (112 Cal. at p. 676.) It is true that prior to the amendment of the state Constitution in 1900, nominations were made by party conventions and the validity of the certificates of nomination were determined by custom and usage. (See Spelling v. Brown (1898)122 Cal. 277, 279 [55 P. 126]; Hutchinson v. Brown (1898)122 Cal. 189, 193 [54 P. 738].) In the latter case the court observed, "Delegates to political conventions are no doubt trustees in a large sense of the word, but they discharge a trust with which the courts do not meddle. They obey or disobey instructions as they see fit, and the only remedy for their disobedience is the censure of the people expressed at the polls." (122 Cal. at p. 192.) The same opinion, however, did observe: "[A]ccording to universal party usage in California, the central or executive committee of a party has no function after one election is over, except to *Page 631 preserve the organization and take the necessary preliminary steps for the assembling of the next convention." (Id., at p. 193.)
The Legislature made two attempts to impose a mandatory primary system in the interests of promoting purity of elections and supporting the exercise of free suffrage. The 1897 act (Stats. 1897, ch. 106, p. 115) was held unconstitutional on numerous technical grounds in Spier v. Baker (1898) 120 Cal. 370 [52 P. 659]. The court moreover expressed great misgivings concerning the state's right to regulate political parties. The opinion states, "We understand this law is the first of its kind in the United States. Its mandatory features present one of the greatest and most important innovations upon past legislation in this country bearing upon primary elections. Under the mandates of this act all political parties and associations must come under its wing or be destroyed. They must all bow down before it as the price of their existence. These things are only done by giant strides in state legislation, and the power of the state legislature to thus enact with reference to political parties presents grave and interesting questions." (Id., at p. 380.)
In 1899 (Stats. 1899, ch. 46, p. 47) the Legislature by amendments to the Political Code sought again to provide for the mandatory election of delegates to conventions of political parties through a primary election. Again the statute was held unconstitutional. (Britton v. Board of Commrs. (1900)129 Cal. 337 [61 P. 1115].) The plurality opinion observed that the law was an express limitation upon the powers political parties had theretofore exercised in adopting their own modes for selection of their representatives. (129 Cal. at p. 341.) Without determining that such elasticity was a right or a privilege, it found the statute was discriminatory in only granting participation to parties that had received 3 percent of the vote at the preceding election (id., at pp. 341-344); and that in its nature, because it permitted cross-voting, it could disrupt and misrepresent a political party. (Id., at pp. 344-347.)
On November 6, 1900, the people adopted a constitutional amendment empowering the Legislature to provide for a direct primary.6 The constitutionality of statutes enacted after the amendment was upheld in a series of *Page 632 cases. (Rebstock v. Superior Court (1905) 146 Cal. 308 [80 P. 65]; Schostag v. Cator (1907) 151 Cal. 600 [91 P. 502]; andKatz v. Fitzgerald (1907) 152 Cal. 433 [93 P. 112].) InRebstock and Schostag the court upheld the right of the Legislature to prescribe tests of the right to vote at primary elections. In the latter case the court observed: "The evils to be remedied were the corrupt practices by which, in the absence of proper public control, primary elections were made to defeat the will of the bona fide members of political parties." (151 Cal. at p. 605.)
In Katz it was contended, among other grounds, that the system destroyed the right of self-preservation of political parties, and impaired the right of citizens to assemble together and to instruct their representatives. The unanimous court, after echoing the sentiment quoted from Schostag, added that the state had a general interest in guarding the purity of primary elections since they had become an essential feature of our system of choosing public officers; and that each political party had a special interest in reserving to its members control of its own affairs. It found both needs met. (152 Cal. at p. 434.) Significantly, the Katz opinion recites: "To the objection that it makes a public body of that which is, in its essence, a private association of citizens to accomplish a public purpose, it is sufficient to say that the conception that a political party is merely a private association of citizens, a conception which in the past found wide acceptance, has, under the development of modern political parties, been very generally abandoned, and, where not abandoned, the conception itself has been destroyed, as in this state by force of the constitution and the statutory laws enacted under it. By virtue of the constitutional provision the state has seen fit to declare that political parties shall be as to their mode of holding conventions and nominating candidates for public office, regarded as public bodies whose methods are to be controlled by the state." (Id., at p. 435; see also Christian Nationalist Party v. Jordan (1957) 49 Cal.2d 448, 452-453 [318 P.2d 473, 70 A.L.R.2d 1153]; Communist Party v. Peek (1942) 20 Cal.2d 536, 544-545 [127 P.2d 889]; Heney v. Jordan (1918) 179 Cal. 24, 27-28 [175 P. 402]; Socialist Party v. Uhl (1909) 155 Cal. 776, 785-787 [103 P. 181]; Cal. Democratic Council v.Arnebergh (1965) 233 Cal.App.2d 425, 429 [43 Cal.Rptr. 531] petn. for hg. den., app. dism. for want of substantial question382 U.S. 202 [15 L.Ed.2d 269, 86 S.Ct. 395]; cf. Jones v.McCollister (1958) 159 Cal.App.2d 708, 711-712 [324 P.2d 639].)
I conclude, with a learned student of the subject, that following the establishment of the direct primary system, the following situation prevailed: "In statutory contemplation California party organs have been left with one major role — to campaign for the general election success of the party nominees selected by the voters at the primary. This role, according to statutory theory, *Page 633 they perform under direction of the state and county central committees." (Friedman, op. cit. supra, 44 Cal.L.Rev. at p. 69.)
With this background I examine the steps taken to render judicial elections nonpartisan. As of 1909 (Stats. 1909, ch. 405, p. 691) the provisions did not exclude any elected officers other than candidates at special elections to fill vacancies, officers of certain municipalities and districts, and of specified school districts. (Id., § 2, pp. 691-692, and see forms of ballot, p. 701.) In 1911 (Stats. 1911, ch. 398, p. 769; Stats. 1911, Ex. Sess., ch. 17, p. 66) the new primary election law expressly provided for nonpartisan nominating petitions for candidates for judicial office and school office and defined those terms. It was expressly provided, "In the case of a candidate for nomination to a judicial office or a school office, no affidavit shall be made that the candidate intends to affiliate with any party or to vote for a majority or any of the candidates of any party at any election." (Stats. 1911, ch. 398, § 5, subd. 4, p. 774; Stats. 1911, Ex. Sess., ch. 17, § 3, subd. 4, p. 71.) The statute provided that the group of names of candidates for nomination to any judicial office or school office should be identical for each such office on the primary election ballot of each political party. Nevertheless, the ballot did not distinguish between partisan and nonpartisan offices. At the election a candidate for judicial office or school office who received a majority of the votes for a single office would qualify as the only candidate of those running for the general election, but he might be opposed by petition of one not a candidate at the primary.
In 1913 a new statute (Stats. 1913, ch. 690, p. 1379) added county and township officers to the nonpartisan statutes. (Id., § 1, subds. 6, 7, 8, p. 1380.) With regard to the nonpartisan offices, the statute provided: "In the case of a nomination paper for any candidate for a judicial office, school office, county office, or township office, the provisions of this subdivision shall apply, except that no such nomination paper nor any section thereof shall contain the name of any political party, of any signer thereto, nor shall the candidate be referred to as a candidate for the nomination of any party." (Id., § 5, subd. 3, p. 1388.) By this law it was first provided that the candidates for the "judicial," "school" and "county and township" offices should be segregated from the partisan offices on the ballot. (Id., § 12, subds. 5, 6, pp. 1396-1397, and see form of ballot, § 12, subd. 10, p. 1399.)
From the foregoing provisions and statutory history viewed in the light of the actual duties imposed on the elected party representatives, I can only conclude that the Legislature intended that judicial, school, county and township office elections should be divorced from partisan interference. Nowhere can I find it implied or understood that the official party representatives *Page 634 were to cloak the candidates for nonpartisan offices in their fold as had been the case before the 1911 and 1913 exclusions.
We are told that the general powers conferred by the Legislature (see Elec. Code, § 9443, and note §§ 8942, 9742, 9852, 9954) give a discretion which embraces the right of the statutory governing bodies of political parties to endorse or assist candidates in elections for nonpartisan office. An overview of the statutory provisions reflects a primary election in which the partisan electorate selects its committeemen and nominees, who then, in turn with others, constitute the organization to press for election of candidates in the general election. I find no intent that these groups should at a later date in the twilight of their incumbency bestir themselves to get judicial candidates to file petitions so they can endorse the candidate in a subsequent primary election. Insofar as sections 8942, 9443, 9742 and 9852 authorize a qualified party to "perform such other duties and services for this political party as seem to be for the benefit of the party," such authorization should be limited to acts not prohibited by the Constitution.
The majority opinion also rests on custom and usage; and points out that the Legislature has failed to curb the practice, as it did in the case of preprimary endorsements for partisan office. (Elec. Code, § 11702, and see 23 Ops.Cal.Atty.Gen. 119 (1954); 19 Ops.Cal.Atty.Gen. 12 (1952).)7 In Unger I, 102 Cal.App.3d 681, the court did note that there had been occasions when endorsements and support had been given to candidates for nonpartisan offices. (102 Cal.App.3d at p. 684, fn. 4 at pp. 684-685.)
In Lee, The Politics of Nonpartisanship (1960), the tables referred to reflect that political organizations had been active in city or school elections in 9 percent or 8 of the 192 cities reporting and 25 percent or 11 of the 44 counties reporting. The Attorney General's opinion (59 Ops.Cal.Atty.Gen. 60, 64-65) also indicates similar partisan interference into nonpartisan elections. I am not impressed by these inroads into the philosophy and policy of a nonpartisan election, and the attempt to pin a limited meaning on the state constitutional provision. Should we say that the Fourteenth Amendment authorized separate but equal treatment in schools and public accommodations *Page 635 and facilities because such were customarily furnished? I prefer to believe that the people, in adopting the provisions now embraced in section 6 of article II, looked at the system which disassociated the candidates for partisan office and their respective parties from candidates for judicial, school, county and city offices, and to the dictionary. In so doing they intended, as held in Unger I, that the candidates for such offices should be elected without regard to their political affiliation, and that the matter of choice should be viewed without official party bias. (102 Cal.App.3d at p. 685.)
The fact that the Legislature recognized the evils of official preprimary endorsement of partisan candidates and failed to similarly specifically restrict endorsement of nonpartisan candidates is not relevant. The subject of partisan candidates was one which the qualified parties were authorized to manage and control, and it was proper to correct the failure to follow the statutory system. On the other hand, any common sense interpretation of nonpartisan would indicate that the offices so designated should be free of influence of the statutory recognized parties. That there was no demand for legislative prohibition could not legalize what the law never contemplated.
"Legislative inaction can in no manner qualify constitutional provisions capable of self-execution whose language adequately sets forth the rule through which the duty imposed may be enforced." (Unger I, supra, 102 Cal.App.3d at p. 687 citingFlood v. Riggs (1978) 80 Cal.App.3d 138, 155 [145 Cal.Rptr. 573] .)
I conclude that the statutorily recognized party may not officially endorse or expend funds for opposing or supporting a candidate for judicial office. That a referendum on a justice of the Supreme Court or the Court of Appeal is an election for judicial office cannot be questioned. Section 16 of article VI of the Constitution expressly refers to such an election under the title of "Election of judges" and expressly provides for a declaration of candidacy or nomination by the Governor of the person to stand for election.
II. Real parties in interest and amicus curiae contend if, as we assert, section 6 of article II of the state Constitution prohibits a qualified political party from officially endorsing or opposing a candidate in a nonpartisan judicial election, it violates the constitutional guarantees of freedom of speech and freedom of association, and denies them equal protection of the laws.
A The principles upon which they rely in respect to freedom of speech and association have been collated in the per curiam opinion in Buckley v. Valeo *Page 636 (1976) 424 U.S. 1 [46 L.Ed.2d 659, 96 S.Ct. 612] as follows: "Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order `to assure [the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' [Citations.] Although First Amendment protections are not confined to `the exposition of ideas,' [citations] `there is practically universal agreement that a major purpose of th[e] Amendment was to protect the free discussion of governmental affairs, . . . of course includ[ing] discussions of candidates . . . .' Mills v. Alabama, 384 U.S. 214, 218 (1966). This no more than reflects our `profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,' New York Times Co. v. Sullivan,376 U.S. 254, 270 (1964). In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential, for the identities of those who are elected will inevitably shape the course that we follow as a nation. As the Court observed in Monitor PatriotCo. v. Roy, 401 U.S. 265, 272 [28 L.Ed.2d 35, 91 S.Ct. 621] (1971), `it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.'
"The First Amendment protects political association as well as political expression. The constitutional right of association explicated in NAACP v. Alabama, 357 U.S. 449, 460 (1958), stemmed from the Court's recognition that `[e]ffective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.' Subsequent decisions have made clear that the First and Fourteenth Amendments guarantee `"freedom to associate with others for the common advancement of political beliefs and ideas,"' a freedom that encompasses `"[t]he right to associate with the political party of one's choice."' Kusper v.Pontikes, 414 U.S. 51, 56, 57, (1973), quoted in Cousins v.Wigoda, 419 U.S. 477, 487 (1975)." (424 U.S. at pp. 14 15 [46 L.Ed.2d at p. 685]. See, in addition to the cited cases included in the foregoing quotation, Citizens Against Rent Control v.Berkeley (1981) 454 U.S. 290, 295-296 [70 L.Ed.2d 492, 498-499, 102 S.Ct. 434] [revg. Citizens' Against Rent Control v. Cityof Berkeley (1980) 27 Cal.3d 819 (167 Cal.Rptr. 84,614 P.2d 742)], Consolidated Edison Co. v. Public Serv. Comm'n (1980)447 U.S. 530, 533-535 [65 L.Ed.2d 319, 325-326, 100 S.Ct. 2326]) and First National Bank of Boston v. Bellotti (1978)435 U.S. 765, 776-777 [55 L.Ed.2d 707, 717-718, 98 S.Ct. 1407].)
The interpretation we give to section 6 of article II must survive the exacting scrutiny necessitated by a state-imposed restriction of speech. *Page 637 Where as here, a prohibition is against speech itself, and the speech is intimately related to the process of governing, the state may prevail only upon showing a compelling subordinate interest, and that it has employed a means closely drawn to avail unnecessary abridgement. (First National Bank of Boston v.Bellotti, supra, 435 U.S. 765, 786 [55 L.Ed.2d 707, 724]. See also, Citizens Against Rent Control v. Berkeley, supra,454 U.S. 290, 298-299 [70 L.Ed.2d 492, 500-501]; Consolidated EdisonCo. v. Public Service Comm'n., supra, 447 U.S. 530, 540 [65 L.Ed.2d 319, 329]; and Buckley v. Valeo, supra, 424 U.S. 1, 25 [46 L.Ed.2d 659, 691].)
Real party Republican Party has conceded that the maintenance of the integrity and impartiality of the state judiciary is a compelling state interest.8 It contends that the censorship of the official party's simple advocacy of the removal of selected justices is not the least intrusive measure of achieving judicial impartiality and is therefore unconstitutional. As outlined above, the people of this state have mandated that judicial and other specified offices shall be nonpartisan. We have concluded that therefore the recognized statutory parties should be denied the right to participate as party partisans in their election. The record reflects, as stated in the majority opinion (ante, p. 614) that the real parties in interest, an officially recognized party and its responsible officers, intended to endorse the nonconfirmation of three justices of the Supreme Court in the November 1982 election, and planned to use the assets of the party to further that goal. The people have spoken and indicated that nonpartisan election of judges is necessary to secure their independence integrity and impartiality. To permit the acts complained of would permit a party to seek out a candidate to file an independent petition (the equivalent of a nomination) and then grant endorsement and support, similar to that furnished candidates for partisan office. We should not countenance a return to a system of partisan selection of judges which the people sought to avoid.
Real parties rely on Concerned Democrats of Florida v. Reno (S.D.Fla. 1978) 458 F. Supp. 60. There a Florida statute provided, "No political party or partisan political organization shall endorse, support or assist any candidate in his campaign for election to judicial office" (id. p. 61, fn. 1). The plaintiffs' were not, as here, the official state or local party committee, but were an organization formed and chartered by the executive committee of the state party and they are referred to in the opinion as "private citizens who wish to express their political preferences" (id. p. 65; cf. Jones v. *Page 638 McCollister, supra, 159 Cal.App.2d 708, 710). The group wanted to interview and publish its recommendations about judicial candidates. The court, as do real parties in interest in this case, recognized the state's compelling interest. It stated, "The court agrees that maintaining the integrity and impartiality of the state judiciary is a compelling state interest. There can be no question that the state has a vital interest in assuring that its judges are free from direct political pressure; that they can render decisions independent of political ramifications; and that they can discharge their duties free from the pressure, sometimes subtle and sometimes otherwise, that can be applied by political groups." (Id. at p. 64.)
The district court nevertheless concluded that the state could not control private citizens who wished to make their choices known, and that the statute in question was not closely drawn or the least intrusive method of achieving its objective because other statutes proscribing political activity by candidates for judicial office, and prescribing a separate nonpartisan ballot for judicial elections adequately treated the situation. (Id. at p. 65.)
The court in permitting the promotion of the exchange of political ideas for the benefit of the public expressed some reservations. The opinion states, "This factor is troublesome because there is an obvious interest to both the public and the Legislature in having judicial candidates free of the appearance of impropriety. An appearance of partisanship will hardly foster public confidence in the courts. However, the court feels constrained under cases discussed in conclusion number 4,supra." (Id. at p. 65.) The cases referred to are those on which real parties in interest rely in this case and they are distinguished below. We point out here, however, that our interpretation of the California Constitution does not purport to infringe on the right of private citizens who wish to express their preferences in a nonpartisan election either alone or in association with others. It merely concludes that to avoid the troublesome appearance of party partisanship and possible impropriety, the party organization created to provide for the selection and support of a party's partisan candidates may not officially participate in the nonpartisan election.
In Buckley v. Valeo, supra, the court, in upholding the $1,000 limitation on individual contributions to a candidate stated, "To the extent that large contributions are given to secure a political quid pro quo from current and potential office holders, the integrity of our system of representative democracy is undermined. Although the scope of such pernicious practices can never be reliably ascertained, the deeply disturbing examples surfacing after the 1972 election demonstrate that the problem is not an illusory one. [¶] Of almost equal concern as the danger of actual quid pro quo arrangements is the impact of the appearance of corruption stemming from public *Page 639 awareness of the opportunities for abuse inherent in a regime of large individual financial contributions." (424 U.S. at pp. 26-27 [46 L.Ed.2d at p. 692]; fn. omitted.) So here there is a compelling interest to prevent both actual, and the appearance of, impropriety. That interest has been expressed in our state law since 1911 and 1913.
The right of association is stressed in those cases which recognize the primacy of rules of a national party over a state regulation in determining the qualification of its delegates. (Democratic Party of U.S. v. Wisconsin (1981) 450 U.S. 107, 121-122 [67 L.Ed.2d 82, 94-95, 101 S.Ct. 1010]; and Cousins v.Wigoda (1975) 419 U.S. 477, 487-488 [42 L.Ed.2d 595, 603-604, 95 S.Ct. 541].) It also has served to protect the right to change party affiliation against arbitrary restrictions. (Kusper v.Pontikes (1973) 414 U.S. 51, 56-57 [38 L.Ed.2d 260, 266-267, 94 S.Ct. 303].) It has been asserted to uphold the right of those associating to voice their civil rights. (N.A.A.C.P. v.Button (1963) 371 U.S. 415, 430-431 [9 L.Ed.2d 405, 416-417, 83 S.Ct. 328]; N.A.A.C.P. v. Alabama (1958) 357 U.S. 449, 460-461 [2 L.Ed.2d 1488, 1498-1499, 78 S.Ct. 1163].) It is recognized as a right to be free from unwarranted investigative processes. (Sweezy v. New Hampshire (1957) 354 U.S. 234, 250-251 [1 L.Ed.2d 1311, 1324-1325, 77 S.Ct. 1203].) In this case there is no burden on associating with the qualified parties for recognized partisan purposes. Nor is there any burden on those who would associate for endorsing, opposing or supporting any candidate in a nonpartisan election. We merely contend that insofar as an official party or organization is concerned it cannot get officially involved in the nonpartisan election.
Cases dealing with freedom of the press are not determinative of the issue here. (Cf. Miami Herald Publishing Co. v.Tornillo (1974) 418 U.S. 241, 251 [41 L.Ed.2d 730, 737, 94 S.Ct. 2831]; and Mills v. Alabama (1966) 384 U.S. 214, 218-219 [16 L.Ed.2d 484, 487-488, 86 S.Ct. 1434]; see alsoMonitor Patriot Co. v. Roy (1971) 401 U.S. 265, 275-276 [28 L.Ed.2d 35, 42-43, 91 S.Ct. 621] and New York Times Co. v.Sullivan (1964) 376 U.S. 254, 269-271 [11 L.Ed.2d 686, 700-701, 84 S.Ct. 710, 95 A.L.R.2d 1412].)
Whatever may be an official party's function as an organ of views with respect to candidates for partisan office and general issues of government, it is not created or authorized for the purpose of endorsing, opposing and tangibly supporting its views on nonpartisan candidates so as to thereby defeat and undermine the status of the election for nonpartisan offices.
On its face First National Bank of Boston v. Bellotti,supra, may be interpreted as protecting the unqualified freedom of speech of any corporation *Page 640 or association from regulation. There the court found no compelling state interest in prohibiting the corporations from making contributions or expenditures for the purpose of influencing the vote on any question submitted to the voters other than one materially affecting any of the property business or assets of the corporation. (435 U.S. at p. 795 [55 L.Ed.2d at p. 729].) The court recognized, as we do here, that preserving the integrity of the electoral process, preventing corruption, and preserving the individual citizens' confidence in government were factors of the highest importance. (Id. at pp. 788-789 [55 L.Ed.2d at pp. 725-726].) The court was careful to point out that the importance of governmental interest in preventing the corruption of elected representatives though the creation of political debts was not before it. It stated "The case before us presents no comparable problem, and our consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office." (Id. at p. 788, fn. 26 [55 L.Ed.2d at p. 725]. See also, Citizens Against Rent Control v. Berkeley, supra,454 U.S. 290, 297-298 [70 L.Ed.2d 492, 499-500].)
Since here the issue is the injection of partisan issues into the election of candidates for nonpartisan office we findBellotti is neither controlling nor persuasive.
Governmental regulation of speech based on subject matter has been approved in narrow circumstances. In Greer v. Spock (1976) 424 U.S. 828 [47 L.Ed.2d 505, 96 S.Ct. 1211] the court held that the federal government could prohibit partisan political speech on a military base even though civilian speakers had been allowed to lecture on other subjects.9 In Lehman v. City of Shaker Heights (1974) 418 U.S. 298 [41 L.Ed.2d 770, 94 S.Ct. 2714] the court concluded that a city transit system that rented space in its vehicles for commercial advertising did not have to accept political advertising.10 *Page 641
In Consolidated Edison Co. v. Public Serv. Comm'n., supra, the court struck down a regulation that prohibited the inclusion in monthly electric bills of inserts discussing controversial issues of public policy. (447 U.S. 530, 544 [65 L.Ed.2d 319, 332].) In distinguishing the cases last referred to the court stated, "Greer and Lehman properly are viewed as narrow exceptions to the general prohibition against subject-matter distinctions. In both cases, the Court was asked to decide whether a public facility was open to all speakers. The plurality of Lehman and the Court in Greer concluded that partisan political speech would disrupt the operation of governmental facilities even though other forms of speech posed no such danger." (Id. at p. 539 [65 L.Ed.2d at p. 329], fn. omitted.) This case does not involve access to government property, but we feel that the People's constitutionally expressed desire that certain offices and the elections of candidates to those offices should be nonpartisan is entitled to freedom from disruption by endorsement or opposition and tangible support from entities expressly recognized for partisan purposes.
In similar vein we turn to CSC v. Letter Carriers (1973)413 U.S. 548 [37 L.Ed.2d 796, 93 S.Ct. 2880]. There the court upheld the constitutionality of the Hatch Act which prohibited active participation in political management or political campaign by civil service employees.11 The aims of the Hatch Act are similar to the reasons that induced the people to mandate that their judicial officers be nonpartisan. Judges are expected to administer justice without bias or favoritism for or against any political party or group or the members thereof and to serve the impartial execution of the laws. It is not enough that they are prohibited from running on partisan tickets. In order to avoid the appearance of partisanship there is a compelling interest that the qualified political parties refrain from taking official action in the *Page 642 election of judicial candidates. Since all concerned may separately or in association present their views, the infringement solely by prohibition of use of the official party label will not leave the public uninformed as to the merit of candidates.
B We are told that our construction of section 6 deprives the qualified parties of equal protection of the laws because nonqualified parties and other associations of varying lines of political nature are left free to endorse, oppose and tangibly support their views with respect to election for nonpartisan office. In California Medical Assn. v. FEC (1981)453 U.S. 182 [69 L.Ed.2d 567, 101 S.Ct. 2712], in respose to a similar contention, the opinion recites, "The differing restrictions placed on individuals and unincorporated associations, on the one hand, and on unions and corporations, on the other, reflect a judgment by Congress that these entities have differing structures and purposes, and that they therefore may require different forms of regulation in order to protect the integrity of the electoral process." (453 U.S. at p. 201 [69 L.Ed.2d at p. 583].) So here we find that since those who remain unregulated are those who cannot extend the imprimatur of a state-recognized political entity — the evil to be avoided — there is no unreasonable classification.
III. In Bridges v. California (1941) 314 U.S. 252 [86 L.Ed. 192, 62 S.Ct. 190, 159 A.L.R. 1346] (revg. Bridges v. California (1939) 14 Cal.2d 464 [94 P.2d 983] and Times Mirror Co. v.Superior Court (1940) 15 Cal.2d 99 [98 P.2d 1029]) the court observed, "The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect." (Id. at pp. 270-271 [86 L.Ed. at p. 207]; fn. omitted.)
There is no attempt here to throttle criticism of the judiciary. In fact the prohibition of partisan endorsement merely clears the air for free expression on the quality of the administration of justice, rather than reducing the selection of candidates to a litmus test of endorsement by a given qualified political party. *Page 643
The question is now moot and the alternative writ has served its purpose. It should therefore be discharged and the peremptory writ should be denied.
Potter, J.,* concurred.
The writer can recall his shock in learning in 1964 at the Institute of Judicial Administration Seminar for Appellate Court Judges that a judge of a court of general jurisdiction in one state where judges were elected on a partisan ticket was expected to contribute almost a year's salary to his party for the privilege of being its nominee.
"Such a policy is wholly consistent with the American constitutional tradition of a politically neutral military establishment under civilian control. It is a policy that has been reflected in numerous laws and military regulations throughout our history. And it is a policy that the military authorities at Fort Dix were constitutionally free to pursue." (424 U.S. at p. 839 [47 L.Ed.2d at p. 515]; fn. omitted.)