Part 3 of the court's argument, unfortunately, works better in theory
than practice.  When Phil Gramm was running for the senate and there was
a primary for his old seat, very early on the day of the election,
"Gramm & Barton" signs went up everywhere.  My understanding was that
Phil specifically wanted to be neutral in the race and did not endorse
Barton.  Some group, I think a small Christian group, wanted it to
appear that he did.  Of course, they were just exercising their right to
recommend a vote--and the posters had the name of the group in very
small letters in a corner--but it looked like an endorsement--a Gramm /
Barton slate.  Barton barely squeaked thru, eventually won the seat, and
has been there ever since.  It's not clear to me that anything can or
should be done about this sort of thing, but I'm not sure I would try to
defend it on the grounds that a candidate can disavow support.  At least
in this case, there wasn't any time.
Bob Bernstein (bersra@auburn.edu) 

>>> rick.hasen@lls.edu 04/21/03 06:49PM >>>
Today a federal district court issued a preliminary injunction
enjoining 
enforcement of an Indiana statute that prohibits printing, publishing
or 
distributing a "slate" of candidates in a primary election without each

candidate's written consent. The state asserted three interests for the

infringement on the plaintiff's claimed First Amendment rights: the 
prevention of campaign fraud, the integrity of the election process 
through preservation of party stability, and the protecting candidate's

interest in not associating with other candidates or groups.

As for the first interest, the court held that the statute was not 
narrowly tailored to prevent fraud. Among other things, the court said

the statute would bar sending an e-mail urging a friend to "vote for 
Smith and Jones." Even read less broadly, the court said that "one-way

expressions of support are a common fact of life in politics, and, 
contrary to the Defendants, do not involve factual misrepresentations.

As for the second interest, promoting the stability of the two-party 
system, the court said that the statute did not interfere with party 
autonomy (distinguishing CDP v. Jones).

As for the third interest, the court held: "If the candidate wishes to

publicly disassociate himself from the slate, he is free to do so, but

the state exceeds its powers when it stifles that speech on his
behalf."

The case is Ogden v. Marendt, 1:03-cv-415-JDT-TAB, (S.D. Indiana, April

21, 2002). Thanks to Ed Feigenbaum for passing it along. It is not yet

posted on the web.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466 - voice
(213)380-3769 - fax
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlaw.blogspot.com