Re: [EL] First Amendment & ballot pamphlets

I don't know the answer to Chris's question, but I would go even further in posing it: Can any meaningful form of nonpartisan election survive Republican Party of Minnesota v. White? The answer partly depends on what counts as a nonpartisan election. If a nonpartisan election means simply one in which the ballot contains no party endorsements, then clearly the state can make and enforce that choice. But if it means that candidates can't run as partisans, that parties or central committees can't endorse nonpartisan candidates, or that candidates can't "announce" or speak about their partisanship, then I'm not sure any of these restrictions could constitutionally be enforced. Now, maybe nonpartisanship has in practice existed mainly in this watered-down form -- perhaps voters generally know the partisan affiliation of nonpartisan candidates, parties surreptitiously or openly communicate their endorsements, and nonpartisan campaigns are more often than not run with a wink and a nod piggybacked on a partisan campaign. In that case, recent constitutional rulings have little impact on the ground. Even so, I find it troubling that the Court has taken steps in the direction of constitutionalizing open partisanship as the only acceptable electoral format. I guess the Court's antipathy to Progressive era reforms is at least consistent!

____________________________
James A. Gardner
Vice Dean for Academic Affairs and
Joseph W. Belluck and Laura L. Aswad
Professor of Civil Justice
State University of New York
University at Buffalo School of Law
Room 316, O'Brian Hall
Buffalo, NY 14260-1100
voice: 716-645-2052
fax: 716-645-5940
e-mail: jgard@buffalo.edu
www.law.buffalo.edu
Papers at http://ssrn.com/author=40126

----- Original Message -----

To: Election Law

Sent: Thursday, February 17, 2011 2:03 AM

Subject: [EL] First Amendment & ballot pamphlets

Candidates for municipal office in San Francisco (and I assume elsewhere in California) may submit a 200 word "candidate statement" for pubication in the official, state-issued voter guide. The candidate can say whatever she wants, subject to two limitations: (1) the candidate may not claim the endorsement of a group or individual unless she also submits evidence of the endorsement, (2) the candidate may not "include [in her statement] the party affiliation of the candidate nor membership or activity in a partisan political organization."

The latter restriction was presumably intended to preserve the "nonpartisan character" of formally nonpartisan municipal elections. It seems to me, though, that it might be vulnerable on First Amendment grounds. Does anyone know of any First Amendment case law regarding restrictions on what may be said in state-issued voter guides? Or have an otherwise-informed opinion about whether this sort of restriction could survive a First Amendment challenge? (Is the state interest in maintaining the "nonpartisan character" of formally nonpartisan municipal elections strong enough to bar a candidate for mayor or city council from making statements of partisan preference or endorsement in a fora created by the state for voter education? Might the answer depend on evidence regarding (1) the degree to which the major party brands have "meanings" specific to the municipality (so that they're actually informative regarding candidate positions on local issues), and/or (2) whether there is a severe imbalance between the number of Dem and Repub voters in the jurisdiction by national party ID (which for various reasons may impede the development of competitive party politics at the local level, or even make the competition pointness)?

Christopher S. Elmendorf

Professor of Law

University of California at Davis

400 Mrak Hall Drive

Davis, CA 95616

tel: 530.752.5756