Re: [EL] First Amendment & ballot pamphlets

"We apply this reasoning to the case at bar.  The question is whether the
Legislature, by creating the statutory "candidate's statement," intentionally
opened a public forum that candidates for local judicial office may use for the
purpose of attacking their opponents.  Under the foregoing precedents the answer
is no.  There is no doubt that the Legislature has not explicitly authorized the
candidate's statement to be used for such expressive activity. And there is no
showing of a legislative policy or practice consistent with an intent to permit
such use.  On the contrary, section 10012 specifically lists the permissible
contents of such a statement as the following: the candidate's  [*489]  name,
age, occupation, and "a brief description . . . of the candidate's education and
qualifications" in no more than 200 words.  The negative implication of this
specific list, of course, is that the Legislature did not intend the statutory
candidate's statement to contain any other material: expressio unius est
exclusio alterius. (See, e.g., People v. Laiwa (1983) 34 Cal.3d 711, 723 [195
Cal.Rptr. 503, 669 P.2d 1278], and cases cited.) More important, the Legislature
made this implication express in section 10012.1, which explicitly prohibits the
use of a statutory candidate's statement by a candidate for local judicial
office as a forum for discussing "other candidates for judicial office or . . .
another candidate's qualifications, character, or activities." In short,
statutory candidates' statements "have never been dedicated .  . . to expression
in the form sought to be exercised here" ( ISKCON, supra, 505 U.S. at p. 681
[120 L.Ed.2d at p. 552, 112 S.Ct. at p. 2707]). In the absence of such
dedication, the candidate's statement is not a designated public forum within
the meaning of current Supreme Court jurisprudence.
...

(3d) These reasons are equally applicable to the case at bar.  Elections
for local judicial offices are normally low-profile events.  They are frequently
uncontested; even if contested, they usually arouse minimal public interest.
The voters have little knowledge of the requirements of the job and still less
of the qualifications of the candidates; in turn, the candidates frequently have
neither the inclination nor the time to inform the voters by means of a
traditional political campaign, and in any event may lack the means of doing
so--e.g., campaign staff, fundraising committees, media advisers, and so on.  To
help fill this informational void the Legislature created the statutory
candidate's statement.  From its terms and conditions we may reasonably infer
that its primary purpose is to give the voters at least a minimal amount--200
words' worth--of basic information about the background and qualifications of
little-known candidates. In light of that purpose it is plainly reasonable for
the Legislature to provide in section 10012.1 that the statement should not also
be used by the candidates as a partisan campaign device to attack their
opponents.  First, to so misuse a statutory statement could well impair its
effectiveness in a number of ways.  The voters could be distracted or confused
by the mixed messages contained in the statement; the statement is necessarily
so brief that to the extent a candidate devotes it to attacking others it would
convey even less factual information about the candidate's own background and
qualifications; and because these statements remain confidential until they are
published (see fn. 4, ante), all such candidates would have an incentive to
misuse them by attacking their opponents in order to avoid the possibility of
unanswered attacks by others in the same forum. 17"

See Clark v. Burleigh, 4 Cal. 4th 474 (1992).  While I am not aware of any specific challenge to the restriction on identifying party affiliation, I assume the Court's rationale above would apply (at least in State court).

Hope this helps,

Daniel

On Wed, Feb 16, 2011 at 11:03 PM, Elmendorf, Christopher <cselmendorf@ucdavis.edu> wrote: