California Democratic Party v. Lungren

919 F. Supp. 1397

CALIFORNIA DEMOCRATIC PARTY; Bill Press; Susan Kennedy; San Francisco County Democratic Central Committee; Carole Migden; Sacramento County Democratic Central Committee; Rita Hodgkins; and Douglas Denton, Plaintiffs, v. Daniel LUNGREN, Attorney General of the State of California, California Republican Party; Tirso Del Junco; and Does 1 through 20, inclusive, Defendants.

No. C-94-1703.

United States District Court, N.D. California.

March 15, 1996.

Joseph Remecho, Jamet E. Sommer, John A. Lewis, Remcho, Johansen & Purcell, San Francisco, CA, for Plaintiffs.

Daniel G. Stone, Deputy Attorney General, Sacramento, CA, for defendant Lungren.

James R. Parrinello, John E. Mueller, Nielsen, Merksamer, Hodgson, Parrinello & Mueller, Mill Valley, California, for defendants California Republic Party and Del Junco.

OPINION AND ORDER

ORRICK, District Judge.

Article II, section 6(b) of the Constitution of the State of California bars party endorsements of candidates for so-called nonpartisan elective offices. The question raised by cross-motions for summary judgment now before the Court is whether section 6(b) violates the First Amendment to the Constitution of the United States. The Court holds that it does, and for the reasons set forth herein grants plaintiffs' motion and denies defendants' motion.

I.

The efforts exerted by both parties to get the basic question of section 6(b)'s constitutionality settled have a long and tortured history in both state and federal court, which is recorded in some detail in a prior opinion of this Court. California Democratic Party v. Lungren, 860 F.Supp. 718, 719-20 (N.D.Cal.1994). For purposes of this Opinion, a few highlights will suffice.

Section 6(b) prohibits political parties from endorsing, supporting, or opposing candidates for nonpartisan office. Cal. Const. Art. II, § 6. It was enacted in 1986 through a voter initiative. That initiative had its genesis in an attempt to overturn the California Supreme Court's decision interpreting the predecessor provision of section 6(b) as not prohibiting political parties from endorsing candidates for nonpartisan offices. See Unger v. Superior Court, 37 Cal.3d 612, 209 Cal.Rptr. 474, 692 P.2d 238 (1984).

Section 6(b) was challenged once before in this Court.¹ Geary v. Renne, 708 F.Supp. 278 (N.D.Cal.1988) ("Geary I"), rev'd, 880 F.2d 1062 (9th Cir.1989) ("Geary II"), rev'd on reh'g en banc, 911 F.2d 280 (9th Cir.1990) ("Geary III"), vacated on other grounds sub nom. Renne v. Geary, 501 U.S. 312, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) ("Geary IV").² The Ninth Circuit, sitting en banc, declared section 6(b)'s ban on nonpartisan endorsements unconstitutional and upheld the permanent injunction entered by the district court. Geary III, 911 F.2d at 280. The Supreme Court, however, vacated the Ninth Circuit's en banc decision on jurisdictional grounds, concluding that the case was not ripe, because the individuals challenging the law had not alleged "an intention to endorse any particular candidate." Geary IV, 501 U.S. at 321, 111 S.Ct. at 2339.³

As a prelude to this action, the California Democratic Party decided to support Delaine Eastin for State Superintendent of Public Instruction, a nonpartisan office, in the June 7, 1994, primary election. The Party produced a slate mailer endorsing Eastin and other candidates. Anticipating a challenge, the Party together with the other plaintiffs filed this action on May 13, 1994.

On May 25, 1994, the Republican Party sought a TRO from Sacramento Superior Court to halt distribution of the Democratic Party's slate mailer supporting Eastin. The Superior Court granted the application for a TRO the following day.

On May 27, 1994, plaintiffs applied in this Court for a TRO to prevent defendants from enforcing section 6(b) against them. The TRO was granted on June 1, 1994.

This Court subsequently granted plaintiffs' motion for a preliminary injunction on August 5, 1994, thereby allowing plaintiffs to endorse Eastin and other candidates for nonpartisan offices in the fall 1994 elections. California Democratic Party, 860 F.Supp. at 724, 727.

Plaintiffs now move for summary judgment, arguing that section 6(b) is unconstitutional on its face. Defendants likewise seek summary judgment, contending that section 6(b) is clearly not unconstitutional. In the alternative, defendants request that the Court uphold the statute insofar as it affects campaigns for elective judicial offices.

II.

"Congress shall make no law ... abridging the freedom of speech...." U.S. Const., amend. I. The First Amendment applies to the states as well by virtue of the Due Process Clause of the Fourteenth Amendment. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 908 n. 43, 102 S.Ct. 3409, 3423, 73 L.Ed.2d 1215 (1982).

To assess the constitutionality of a state election law such as section 6(b), the Court must first determine whether it burdens free speech rights protected by the First and Fourteenth Amendments. Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 222, 109 S.Ct. 1013, 1019-20, 103 L.Ed.2d 271 (1989). "If the challenged law burdens the rights of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest, and is narrowly tailored to serve that interest." Id. (citations omitted).

A.

Article II, section 6 of the California Constitution provides as follows:

(a) All judicial, school, county, and city offices shall be nonpartisan.

(b) No political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office.

Cal. Const. Art. II, § 6.

"Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association." Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1212, 1 L.Ed.2d 1311 (1957). Because individuals exercise their free speech rights by participating in political parties, political parties also possess First Amendment rights. San Francisco County Democratic Cent. Comm. v. Eu, 826 F.2d 814, 818 (9th Cir.1987), aff'd, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (citing Tashjian v. Republican Party of Conn., 479 U.S. 208, 212-16, 107 S.Ct. 544, 547-49, 93 L.Ed.2d 514 (1986)). Indeed, "any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents." Sweezy, 354 U.S. at 250, 77 S.Ct. at 1212.

At issue here is the speech of political parties during campaigns for elective office. The Supreme Court has explained that protection of such speech is especially important:

We have recognized repeatedly that "debate on the qualifications of candidates is integral to the operation of the system of government established by our Constitution." Buckley v. Valeo, 424 U.S. 1, 14 , 96 S.Ct. 612, 632, 46 L.Ed.2d 659 (1976) (per curiam). Indeed, the First Amendment "has its fullest and most urgent application" to speech uttered during a campaign for political office. Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 , 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971).

Eu, 489 U.S. at 223, 109 S.Ct. at 1020 (some citations omitted).

The Court finds, as it did previously, that section 6(b) unquestionably imposes a direct and substantial burden on core political speech. California Democratic Party, 860 F.Supp. at 724. Accordingly, the Court must apply strict scrutiny, that is, defendants must show that section 6(b) advances a compelling state interest and is narrowly tailored to serve that interest. Eu, 489 U.S. at 222, 109 S.Ct. at 1019-20.

B.

Defendants argue that California is entitled (1) to protect its nonpartisan election process from becoming partisan and (2) to create a "level playing field" for potential candidates for nonpartisan office. The foundation for these arguments is California's sovereign right to control its election process for state officers. See Tashjian, 479 U.S. at 217, 107 S.Ct. at 550.

California's broad authority to regulate state elections, however, "`does not extinguish the State's responsibility to observe the limits established by the First Amendment rights of the State's citizens.'" Eu, 489 U.S. at 222, 109 S.Ct. at 1019 (quoting Tashjian, 479 U.S. at 217, 107 S.Ct. at 550). Indeed, California's "power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights." Tashjian, 479 U.S. at 217, 107 S.Ct. at 550.⁴

Defendants argue that nonpartisan offices were created, at least in part, to combat the corruption of the process caused by the influence of the major political parties; therefore, section 6(b) is essential to preventing corruption of nonpartisan offices.

This argument is misplaced. See California Democratic Party, 860 F.Supp. at 725. The type of "corruption" contemplated by the California Attorney General, viz., the potential for political parties' speech to influence voters, is wholly different from the risk of corruption that justified limits on campaign financing. Id.; see Geary III, 911 F.2d at 283-84. "Corruption is a subversion of the political process" whereby "elected 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." Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 497, 105 S.Ct. 1459, 1468, 84 L.Ed.2d 455 (1985) (emphasis added).

What defendants characterize as "corruption" is, in fact, the heart of the political process itself. "The fact that candidates ... 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 1469.

Judge Canby, in his dissent from the panel's decision in Geary II,...