Eu v. San Francisco County Democratic Central Comm.

PETITIONER:Eu
RESPONDENT:San Francisco County Democratic Central Comm.
LOCATION:Kansas City Missouri School District

DOCKET NO.: 87-1269
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 489 US 214 (1989)
ARGUED: Dec 05, 1988
DECIDED: Feb 22, 1989

ADVOCATES:
Geoffrey Lloyd Graybill – on behalf of the Appellants
James G. Brosnahan – on behalf of the Appellees

Facts of the case

Question

Audio Transcription for Oral Argument – December 05, 1988 in Eu v. San Francisco County Democratic Central Comm.

I know that.

I know that’s your position, but I just wanted to be clear.

It’s all four of those that you say implicate the First Amendment.

Geoffrey Lloyd Graybill:

I believe they do, Justice Brennan.

Our, our position is that the political parties… and I believe this is the primary elec… the election of party officials and the endorsed candidates of the parties are affected in the primary election, which is an integral part of the state’s election process, and the importance to the state of assuring that those institutions that participate, do participate in a democratic manner and enable the grass roots to make direct input without being restricted by party organizations, machines, bosses, and smoke-filled rooms is a very deep-seated tradition in California.

It’s one that has been expressed by the members of the parties themselves.

That is a First Amendment right.

xxx… parties to endorse.

Any party that doesn’t want to endorse just won’t endorse.

If that’s good for the party and good for the pubic interest, they just won’t endorse.

Geoffrey Lloyd Graybill:

Well, Justice White, I think we have to look at who decides for the party, the members of the party or some organization that, or group, special interest, that manages to collect 32 votes on the executive board and not allow that matter to come up for a vote of the full committee.

Well, somebody else can organize a vote of 45 members and overrule that.

Geoffrey Lloyd Graybill:

I think in the circumstances of this case, Your Honor, the opportunity was in January of this year, and the convention occurred in March.

There’s, as I understand it, under the rules there would be no opportunity for anybody to override in those circumstances.

What should happen is that these by-laws would go to the legislature and they would be evaluated by members of the party who would determine whether it does in fact reflect–

I know, but all, all the 32 members managed to get done is that they said that there may be endorsements.

It didn’t force anybody to endorse.

No county commission has to endorse.

The State Committee doesn’t have to endorse.

There’s just a permission now, is that it?

Geoffrey Lloyd Graybill:

–Well, Your Honor, I believe that there was a system for making these endorsements that the party chair made sure went forward.

Well, a system, but did every, did every county central committee have to make endorsements under that by-law?

They didn’t need to?

Geoffrey Lloyd Graybill:

Justice White, they’re not permitted to as county central committees, per se.

There is a regional system, so the Plaintiffs before this Court–

Well, regional then.

Geoffrey Lloyd Graybill:

–still do not have the permission of their parties to make endorsements.

They are precluded, and if we’re to take the action of the parties, the action of the State Central Committees as being reflective of the will of the party, then these plaintiffs have not shown a substantial infringement on their rights by the restriction of this statute because they are–

If those party central committees had voted differently, they would have been voting to violate the law, right?

So you’re saying that the fact that the parties have not put into effect a mechanism that violates the law proves that the parties don’t want it, is that what you’re saying?

Geoffrey Lloyd Graybill:

–Justice Scalia, Justice Scalia, at any time during the course of this litigation, a party could have passed by-laws.

The passing of by-laws that says we want the right to endorse, and this is how we’re going to do it, does not violate any statute that is before this Court.

It’s only implementing them.

Geoffrey Lloyd Graybill:

Well, its–

You’re suggesting that they should have adopted by-laws that they knew could not be implemented because they’d be unlawful.

Geoffrey Lloyd Graybill:

–Well, the way the parties have done business is, it appears, is that that is what happens.

There is a decision by the organization, and it goes to the legislature, and the delegation… and there’s a comity relationship in the state legislature which we have established in the record through Senator Rodda’s declaration that one party historically and consistently has not interfered with the way another party wants to organize itself, and this ban on endorsements has been the consistent policy for over 75 years of both the Democratic and Republican Parties in California, and there’s nothing that in light of that–

James G. Brosnahan:

If it please the Court:

The State of California, as has been shown in the record before Your Honors, dictates what political parties can say, and Indeed, who it is, at least by office, that will say it.

And in doing such, the state aggrieves the First Amendment in some very serious respects.

First of all, this is a prior restraint by the state.

Secondly, it goes to the subject matter.

It is not content-neutral.

It bans all political endorsements by all parties.

Third, it applies not only to mature parties such as the Democratic Party or the Republican Party, but also one of my clients here, the State Libertarian Party, who is forbidden from endorsing candidates by one of the sections which is before Your Honors.

Only California and New Jersey have such a provision.

The other 48 states do not have the difficulties such that the state counsel was seeking to elucidate here a moment ago.

I’m sorry, Mr. Brosnahan.

Did you say New Jersey has the same thing?

James G. Brosnahan:

Yes, Your Honor.

I’m sorry to bring that news.

[Laughter]

Also, it is striking that the prohibition in the State of California is a flat prohibition.

It does not present the kind of problem as in Buckley v. Valeo, where you could say, well, it’s a limitation or a certain amount of money and the rest can at least be used for expression.

No.

It is a crime in California, has been a crime since 1963, for a political party to state its endorsement as to a particular candidate.

What do you have to do to get out of it, Mr. Brosnahan?

Is there no way of getting out of it once you’re, once you’re on the ballot, once you’re a ballot-qualified party?

James G. Brosnahan:

That’s right, Your Honor, unless you go to the legislature and try to get that changed up there.

Okay.

So it’s not a matter of saying, well, I just won’t, I just won’t have a primary then.

You have to have a primary.

You have no choice about being in the primary as a party, right?

James G. Brosnahan:

You have to have a… there really is no choice.

You have to have a primary.

The Democratic Party and the Republican Party, indeed, any party would have to bring their membership down below 1 percent in California to get off the ballot, if they chose that way to do it.

We submit no party is going to do that.

So really, there’s no choice.

This law doesn’t prevent individual members of the central committee from going around campaigning for certain people?

James G. Brosnahan:

That’s true, Justice White, as individuals, but not… they cannot–

Or even… can they organize within the committee, like Committee for John Jones, made up of just members of the central committee?

James G. Brosnahan:

–No, I don’t think they could do that, Justice White, because they could not represent in any way directly–

No, no, no, they don’t represent anything.

They just… except that everybody knows they’re members of the central committee.

James G. Brosnahan:

–If they, if they are doing something that purports to be an endorsement by the committee, and there would have to be lines drawn, then it would be criminal, and–

I don’t suppose anybody’s been put in jail under this.

James G. Brosnahan:

–Not yet, but there is one California case that does refer to it as criminal, and indeed, when counsel for the state says that they are attempting to avoid confusion, in fact, in the State of California there are slate mailers… and these are in the record described, that come and they use the word “Democratic”, they use the word “Republican”, and they list who should be there.

There’s tremendous confusion, tremendous animosity and difficulties, and as a matter of fact, not only is the party, say, the Republican Party, not free to endorse a candidate, but as happened to the Democratic Party, a member, a Grand Dragon of the Ku Klux Klan was nominated in San Diego to be the Democratic candidate for Congress, as the record shows, and the Democratic Party was not only forced by the law of California to be silent, it could say nothing, but he automatically qualified to become a member of the State Committee.

Now, they did in that case, the just refused to seat him, they just wouldn’t seat him, but the law was that he became a member of the Democratic Party, and there wasn’t anything that could be done about it.

The history of these provisions, I’d like to say a word about it because this is not 70 years of tradition.

As with regard to the endorsement, as I said, that’s 1963, so that’s a relatively new provision.

As to the provisions with regard to the state telling the parties who will be their leaders, that does go back further, but the most detailed articulation was 1977, but you can trace it all the way back in some form or another to 1929.

So it has been a gradual accretion of power by the legislature in California, and I submit that the Court is not looking at the ghost of Hiram Johnson today in these specific provisions, nor is the basic–

Was there, was there a challenge to the selection of the country central committees?

James G. Brosnahan:

–In this case?

In this lawsuit?

James G. Brosnahan:

No, no, Your Honor.

Those are elected, I would say, democratically.

Well, there are other California regulations and requirements at issue here in addition to the pre-primary endorsement issue.

James G. Brosnahan:

That’s true, Justice O’Connor, and the main ones are, specifically, the state dictates who will be on the State Central Committees.

Isn’t that a fairly common sort of statute in the states around the country?

James G. Brosnahan:

It is not, Justice O’Connor.

That’s only… we have found only one state where it is like California.

That’s Kansas.

There are then nine states, and Arizona is one of them, and Michigan is one of them… the rest are mostly western states… that have what I would call fairly described to you as a mix, that is to say, people can be elected but also certain officers are dictated by the state as being on the committee.

Right.

James G. Brosnahan:

The rest of the states, that is to say, approximately 40 states, do not purport to tell political parties who will be their leadership.

Well, now, didn’t this Court’s decision in Chaney uphold some sort of state regulation of who serves on the state committee?

James G. Brosnahan:

I don’t think so, if the Court pleases.

I read that decision.

And reading it and writing it are two different things, but as I read it, in the State of Washington there was a general provision, very general, very broad, about political parties, and the only dictation was there should be a balance between men and women.

The rest of the rights that were involved in that case… and this was the reason for its reversal… was that all of the other provisions came from the Democratic Party, I think it was the Democratic Party itself.

Well, I though it was a statute requiring each major party to have a state committee consisting of two people from each county.

James G. Brosnahan:

That is, that is correct, and also, I believe–

And the Court said that the state’s interest was unquestionably legitimate.

James G. Brosnahan:

–Up to that point.

And that a substantial regulation of elections is to be expected and upheld.

James G. Brosnahan:

There is that language in the case, but the holding, and the reason I think it was sent back, and the reason I think it commended itself to so many of the justices here, just from reading it was that all of the internal workings which were being challenged in fact came from the party itself, which is at the heart of the right of association.

If I may say so, the burden on a party is evident, and I wish to stress it.

When the state dictates to a political party who their leaders shall be really challenges the very essence of an association.

And we know from common understanding, just watching the interest people have in who the leaders will be of a political party, whether it be in the–

Well, the California statute requires alternating every two years–

James G. Brosnahan:

–It does.

–between northern and southern California.

Of course, there’s kind of unstated warfare in that state between the north and the south.

Do you think the state–

James G. Brosnahan:

Not completely resolved by that provision because if I’m right, and I think I am, the south gets to be the chair during all the presidential elections.

But a minor point, given the weighty things here.

William H. Rehnquist:

We’ll hear argument next in No. 87-1269, March Fong Eu v. San Francisco County Democratic Central Committee.

James G. Brosnahan:

But there’s no other state, there is no other state that we can find that has any such limitation, and if… say the Libertarian Party, for example, comes up, as indeed they may, with a vigorous, vigorous, vibrant leader who is able to increase their votes from 2 percent to 4 percent to 6 percent.

You may proceed, Mr. Graybill.

James G. Brosnahan:

The State of California, the legislature dictates to them that that person must be removed, and the legislature has not a single member of the Libertarian Party there to even entertain a bill, much less to muster it.

Geoffrey Lloyd Graybill:

Thank you, Justice Brennan, and may it please the Court:

–Do you recall what the, what the consequence was in Chaney?

Geoffrey Lloyd Graybill:

This case is here on appeal from a judgment of the Ninth Circuit after remand from this Court for reconsideration in light of its decision last term in Tashjian v. the Republican Party of Connecticut.

Could you get off the ballot?

Geoffrey Lloyd Graybill:

The primary question presented is whether California can, consistent with the First Amendment, protect the right of members of a state political party to control their party through their votes in the primary election conducted and financed by the state.

Was the consequence if you didn’t comply with this, with this manner of forming your party that you simply couldn’t, couldn’t have the state fund a primary for you?

Geoffrey Lloyd Graybill:

One of the challenged statutes enables party members to use the primary election to choose democratically the candidates who have the endorsement of the party in the general election for partisan office, and another set of challenged statutes enables the endorsed candidates as the chosen representatives of the party to be members of the party State Central Committee.

Or did you have to be in the primary?

Geoffrey Lloyd Graybill:

And this afternoon I’d like to address two general points.

You see, that makes some difference to me.

Geoffrey Lloyd Graybill:

The first is that the invalidated statutes promote strong and fundamental California interests in establishing a thoroughly open and democratic process for selecting its public officials; and the separate but related interest of establishing government which is stable and has the acceptance of its citizens.

It seems to me the state can attach some, some conditions, perhaps, to paying for your primary.

Geoffrey Lloyd Graybill:

And the final interest is in the prevention of fraud.

But you’re talking–

Geoffrey Lloyd Graybill:

And the second general notion that we’d like to address is that on the record below, the invalidation of the statutes violates this Court’s admonition, repeated most recently in Tashjian, that a court should not interfere with the First Amendment rights, the expression of First Amendment rights merely because it believes them to be unwise or irrational.

James G. Brosnahan:

May I address that–

Geoffrey Lloyd Graybill:

Now, California’s overriding and fundamental interest in these statutes is in an open and democratic system of selecting its government officials, and this interest reflects the evolution of values manifested by the amendments to the United States Constitution and decisions of this Court and of California’s own constitution which expand the franchise and permit more direct participation by the citizens of this country in the selection of their officers and the determination of policy.

–Yes.

Geoffrey Lloyd Graybill:

Some of those constitutional amendments that reflect this value are the elimination of the disenfranchise of black persons in this country by the Fifteenth Amendment, the direct election of United States Senators and the extension of the vote to women.

James G. Brosnahan:

–not so much in Chaney, because at that level of detail in Chaney, I’m not sure that I would be accurate, but on the level of what is appropriate, the state does finance, in 49 states the state does finance.

Geoffrey Lloyd Graybill:

And court… decisions of this Court of a general nature which reflect this are the decisions affecting one person, on vote and the restrictions on gerrymandering.

James G. Brosnahan:

In South Carolina they do not.

Geoffrey Lloyd Graybill:

And the California constitution–

James G. Brosnahan:

But they certainly have, and this Court has held, certain rights with regard to elections, particularly the general election in the fall.

Excuse me.

James G. Brosnahan:

That has to do with external workings.

I don’t understand what this has to do with preventing a party central committee from making a recommendation to the party membership.

James G. Brosnahan:

They have a right, as has been said in this case, to orderly elections and to statutes reasonable on their face that require orderly elections.

Geoffrey Lloyd Graybill:

–The… Justice Scalia, it does not prevent the members of the committee from communicating with their party.

James G. Brosnahan:

They do not have a right, and this is the profound essence of this case as far as at least my clients see it, they do not have a right to orderly parties.

Geoffrey Lloyd Graybill:

What it does is protect to the members of the party the right to participate directly in the choice of candidates without having that–

James G. Brosnahan:

That is a completely different thing.

Well, couldn’t they participate with the recommendation as well?

James G. Brosnahan:

And the spectrum along which we move with this case is far removed from the essence of a state saying, for example, well, you must be in a party a certain period of time before you run for election, as has been brought up several times in Anderson and other cases.

I mean, they are just talking about the right to know what the recommendation of the committee as a committee is.

James G. Brosnahan:

This case is more like Wigoda v. Cousins and the cases where this Court held that the state may not say who will be a delegate.

Then they’ll be able to accept it or reject it.

James G. Brosnahan:

The state should not say who should lead parties, and I am prepared at least to suggest to the Court that this is a very dangerous idea.

Why is that undemocratic?

James G. Brosnahan:

It is an extremely dangerous idea, and one that does not commend itself, no matter what one’s party, to a comfortable feeling about how democracy would work where legislatures would dictate who would lead particular parties.

Geoffrey Lloyd Graybill:

–Well, Justice Scalia, the choice, the representation being made on behalf of the committee is typically that this is the party’s candidate, and the effect that that can often have is that the choices available to the rest of the members of the party in the primary election are restricted.

James G. Brosnahan:

Justice Harlan said in NAACP v. Alabama, he observed a nexus, a close nexus between the right of association and the right of speech, and we argue that today.

Geoffrey Lloyd Graybill:

We have a phenomenon in California that’s caused a great deal of irritation, the election returns on the national level are reported before our polls close, and it’s been established by objective evidence that that affects the turnout in elections.

James G. Brosnahan:

We say that speech is affected by who is the speaker; who it is that will lead the party is affected.

Geoffrey Lloyd Graybill:

And we don’t get the participation of as many citizens in our election process when they think that their options have been foreclosed, that it’s over.

James G. Brosnahan:

For example, the irony is, going back to the days of populism in California where the legislature, as has been historically written about, was in some ways corrupt, which party would attack that problem were they to be dictated to by the legislature itself?

Well, that’s another case.

James G. Brosnahan:

We are not confronted today as far as argument is concerned, and I don’t think this Court is confronted with an abstract question about whether it would be all right to allow a legislature to decide something, and that is because each legislator would have interparty and intraparty conflicts, conflicts as to whether they will be running the party versus someone else, and conflicts as to whether the Libertarian Party, of which they will not be a member, by the majority in the California legislature at least, will be a strong, vibrant party.

You don’t want this case to hinge on whether it would be constitutional to prevent election returns from being announced in California, assuming that they are available?

James G. Brosnahan:

The Libertarian Party in this case was required to adopt the rules of the Peace and Freedom Party.

Geoffrey Lloyd Graybill:

No, Justice Scalia.

James G. Brosnahan:

They had to take those rules.

Geoffrey Lloyd Graybill:

What we are attempting to demonstrate by that analogy is that the tendency for an endorsement by what purports to be the party, and in California in fact is not the party, the party expresses itself in the primary election.

James G. Brosnahan:

That’s all that, that’s all that they could get up to this point.

Geoffrey Lloyd Graybill:

That’s what the primary election system is all about.

Mr. Brosnahan, haven’t we crossed the bridge, though, when we’ve permitted the states to require parties to select their leaders by primary?

Geoffrey Lloyd Graybill:

The party leaders–

I mean, suppose the Libertarian Party says we like the smoke-filled room.

It’s one thing to outlaw the smoke-filled room and it’s another thing to prevent me from knowing what the people in the smoke-filled room would recommend.

We really don’t think the way… and they take a vote democratically, and 99 percent of all of their members would rather not have a primary; they would rather have the party leaders meet in a smoke-filled room; they know more about it, I don’t trust my judgment as much as I do theirs.

Isn’t that something quite different?

And yet, we’ve said, we’ve said the states can say to a party, you cannot pick your leaders that way; we’ll tell you how to pick your leaders, your candidates.

Geoffrey Lloyd Graybill:

–That doesn’t prevent you, Justice Scalia, from knowing what the people in the smoke-filled room recommend.

You pick them through a primary.

Geoffrey Lloyd Graybill:

They have other means of access through, for example, membership in the California Democratic Council, our declarant, Senator Rodda, indicated any number of unofficial groups of party that get together and make their views known to the electorate.

James G. Brosnahan:

Nothing Justice Scalia, in this case, as we argue to Your Honor, nothing in this case implicates or attacks the primary system.

Geoffrey Lloyd Graybill:

This restriction is so minuscule with regard to the First Amendment rights of the individual members of the executive committees or the county central committees or the State Central Committees, the means available to them other than creating the false impression that they speak for the party are readily available.

Well, I know that.

So you’re saying we should validate it because it isn’t needed?

But you tell me where’s the line.

I don’t understand that.

Why can a state say that and yet not say what it said here, that you have to have some–

You say it’s minuscule, you can find out other ways, so it’s really not important.

James G. Brosnahan:

I think the state–

Geoffrey Lloyd Graybill:

Well, it is important, Justice Kennedy.

–how your delegates are going to be distributed geographically and all sorts of other things.

And so you’re here at the Supreme Court to defend it because it’s not important?

Where’s the line?

I don’t understand that.

James G. Brosnahan:

–I think the line is right around the poll which has to do with the state’s right to see that in an earlier election party disputes are resolved.

Geoffrey Lloyd Graybill:

Well, that is definitely not the case, and the reason it is important is that in California, in the direct primary system, the party, per se, speaks by its vote in the primary election.

James G. Brosnahan:

And this Court had spoken to that issue.

Geoffrey Lloyd Graybill:

When an official organ of the party, which under the charter of the party, which is reflected in these statutes, precludes them from making those endorsements, you have not only the mandate of the party that created these committees that these committees not try to speak for the party or to restrict the numbers of candidates and options available to the party in the primary election is a justifiable and overriding state interest, and it is narrowly construed to… it is narrowly fashioned not to infringe on the First Amendment rights of individual party leaders to express their views.

James G. Brosnahan:

There is, there is a right that the State has to see to it that in the general election, party disputes will have been resolved.

Geoffrey Lloyd Graybill:

They are just restricted from committing the fraud that exists by virtue of the existence of the California Democratic… the California primary election system.

James G. Brosnahan:

We don’t quarrel with that because it doesn’t relate to the two major clusters of issues, endorsement and leadership in the party.

Geoffrey Lloyd Graybill:

The parties speak at the primary with regard to who their endorsed candidates are to be for the general election and who the party leadership is to be.

James G. Brosnahan:

It doesn’t relate to that at all.

Didn’t the party, the Democratic Party, change its by-laws or requirements after the Ninth Circuit acted here to permit pre-primary endorsements by the committee?

James G. Brosnahan:

And so we do not question the right of the state to say if you are a Republican, for example, and you have a party dispute, you should run in the primary election, and it will all be resolved, or some states have variations with conventions and alternatives and things like that.

Geoffrey Lloyd Graybill:

Justice O’Connor.

Well, anyway, I gather Wigoda said that a state could not tell a national party who was to be seated for the state–

Geoffrey Lloyd Graybill:

I think we should be more precise there.

James G. Brosnahan:

That’s correct.

Geoffrey Lloyd Graybill:

The executive board of the State Central Committee of the Democratic Party, by a vote which is not clear but could have been as few as 32 out of over 1000 members, decided that matter.

–at its national convention.

Geoffrey Lloyd Graybill:

They did not present it to a vote of the full committee as was the case in Tashjian, and we really don’t know what the position of the party is on that.

James G. Brosnahan:

That’s correct.

Geoffrey Lloyd Graybill:

I don’t think that would be a fair reflection–

That goes rather far, doesn’t it?

Excuse me.

James G. Brosnahan:

And also Wisconsin v. LaFollette, and the times have really changed in terms of the old Populist notions which, as I say, are not implicated by these specific statutes.

Was it an effective vote?

James G. Brosnahan:

Nowhere today does one see the kinds of bosses that were here 60, 70 years ago.

Are you denying that it was an effective vote, binding on the committee?

James G. Brosnahan:

James Michael Curley, Mayor Haig, Boss Tweed, these people are gone.

Geoffrey Lloyd Graybill:

–Under the by-laws, Justice Scalia, as we understand them of the State Central Committee, that would be permissible, yes.

James G. Brosnahan:

There are, there are powerful legislators, and that is, that is at least a footnote to this story in the sense that we believe this case presents this Court with an opportunity to write an opinion which will allow political parties in this country of whatever name, if they choose… and that’s a major point that’s been made… if they choose, to be open and to bring in in the neighborhoods of this country people to participate in parties.

It was permissible.

James G. Brosnahan:

All of my clients, and there are many… I represent on the Democratic side the county committees… Justice White asked about this… the county committees that represent, in registered voters, over half of the registered Democrats in the State of California… to open up this process, as it is true in other states, so that citizens without a lot of power can be part of this process.

So once again you’re, you’re trying to impose upon the party some other rule about what, what the… how the party takes action.

James G. Brosnahan:

The people in California, I think, fairly stated, would enjoy as any citizen would enjoy what is done in other states.

If the Democratic Party of California says 32 votes does it in those circumstances, 32 votes does it, and you’re coming and tell us that it doesn’t do it?

James G. Brosnahan:

I think of Minnesota, it’s in the record, I think of Massachusetts.

Geoffrey Lloyd Graybill:

No, Your Honor.

James G. Brosnahan:

There are declarations by James McGregor Burns and by the mayor of Minneapolis, and they give figures to this Court as to what happens when parties are free to structure themselves the way they want.

Geoffrey Lloyd Graybill:

What we are explicating here is that does not reflect the will of the party necessarily.

James G. Brosnahan:

The State of Massachusetts, sometimes, there are over hundreds of thousands of citizens who participate in the party.

Geoffrey Lloyd Graybill:

There is a process that has been gone through to establish these reforms through the political process.

James G. Brosnahan:

It is not dictated from a capital.

Geoffrey Lloyd Graybill:

In other words, interest in the parties, one of their parties organized through the direct primary system, the progressives, the much maligned progressives, they established those things in statute.

James G. Brosnahan:

It is not, it is not the question of dominance.

Geoffrey Lloyd Graybill:

The members of the party here that disagree have been unsuccessful in persuading their parties in general, and I think we have to look here that the organization of a party is not the party, per se.

James G. Brosnahan:

The standard is compelling interest.

Geoffrey Lloyd Graybill:

There are other elements to it.

James G. Brosnahan:

The state has great trouble in articulating that, that standard, or to give this Court a basis on which to treat, as you are required to do in many other cases, the serious concerns articulated, and there’s been five years of litigation.

Geoffrey Lloyd Graybill:

There are the, the members of the party elected to the official positions in state government and in the national legislature–

Is it your view that any limit on the term of the party chairman is unconstitutional, or I take it the compelling interest standard applies and we, we… could the state limit the term to, say, ten years?

Including those who voted for this bill.

James G. Brosnahan:

I think it is probably unconstitutional.

Weren’t they all party people?

James G. Brosnahan:

Two years certainly is very short and cuts right into the accumulated experience and leadership qualities that one might possess.

Geoffrey Lloyd Graybill:

–You mean the by-laws?

James G. Brosnahan:

In fact, one of these parties changed its term, and I don’t know about ten years.

Weren’t they all party people in the legislature?

James G. Brosnahan:

You could come to a point, I suppose, where the state would make a greater interest.

Geoffrey Lloyd Graybill:

Are you referring to the by-law change or some legislation, Justice Marshall?

James G. Brosnahan:

But I have not, I have not heard, nor have I read a strong compelling interest based on general elections, based on that justification, for the limitation of the term.

The law involved in this case passed by the legislature of California, which legislature was composed of politicians.

James G. Brosnahan:

Why does the state need to tell the Libertarian Party you will have a leader for two years, and at the end of that two years, no matter what you have accomplished, no matter what you have done, you will be out.

Do you agree to that?

James G. Brosnahan:

Surely I think I sense that we are at the very heart of the First Amendment.

Geoffrey Lloyd Graybill:

Well, I think that that’s correct, Justice Marshall.

James G. Brosnahan:

One reads in the decisions of this Court the scholarly musings of Professor Emerson or Meiklejohn or any of these great scholars about what’s involved.

Geoffrey Lloyd Graybill:

I think we’re, we’re dealing with politicians throughout this lawsuit.

James G. Brosnahan:

This is not a gas company in San Diego when I speak of political parties.

Geoffrey Lloyd Graybill:

The overriding interest that California has in imposing this kind of minimal restriction on the speech of an entity as opposed–

James G. Brosnahan:

Nor is it the First National Bank of Boston in the Beliotti case.

How can you say it’s a minimal restriction.

James G. Brosnahan:

This is a political party in a free state in a free country, and the government says to it, here, these are your leaders.

It’s a, it’s a core right to express views in the political arena.

James G. Brosnahan:

That is the kind of thing that we have brought to Your Honors and that we seek to have reversed.

I mean, I just, I really don’t understand your terminology.

Suppose the state–

Geoffrey Lloyd Graybill:

–Justice O’Connor, the committee purports to speak for those, for others that are not members of the committee and that they were elected–

James G. Brosnahan:

Or affirmed, rather, affirmed.

Well, if the party mechanism permits the committee to express its views, for whatever it’s worth, how can that be some minimal right?

James G. Brosnahan:

Affirmed.

Geoffrey Lloyd Graybill:

–Justice O’Connor, it would still remain our contention at this point that the change in the by-laws is not necessarily reflective of the will of the party.

James G. Brosnahan:

[Laughter]

Geoffrey Lloyd Graybill:

It appears… and we have to acknowledge that under the circumstances that this case has gotten here, the record isn’t as complete as we would like, but we believe that the mechanism of a change in the by-laws and a submission to the legislature which determines… these are people that were nominated by members of the party in the primary election and elected… make a determination of whether this really is reflective of the will of the party.

James G. Brosnahan:

Thank you.

Geoffrey Lloyd Graybill:

And there is an example–

James G. Brosnahan:

Let me make a note of that.

Well, what was the will of the party before the amendment?

–Do you think the state could just prevent access to the ballot by a party and just say candidates and wouldn’t say they are Democratic or Democrats or Republicans or anything like that?

Geoffrey Lloyd Graybill:

–The amendment to the by-laws, Justice White?

James G. Brosnahan:

In the nonpartisan elections that is done.

Geoffrey Lloyd Graybill:

The will of the party, we believe, was reflected in the statute because this process–

Well, I know it’s done.

That’s a real bootstrap, isn’t it?

How about in so-called partisan elections?

Geoffrey Lloyd Graybill:

–Well, perhaps, but–

I don’t suppose the parties can force their way onto a state run election ballot, can they?

I mean, if the by-laws were wholly silent, they certainly didn’t forbid endorsing candidates.

James G. Brosnahan:

If they qualify, I suppose.

Geoffrey Lloyd Graybill:

–Well, Justice White–

James G. Brosnahan:

The state has qualifications–

It still was just as much of a, just as much of a restriction on the speech, no matter what the by-laws said, unless the by-laws absolutely forbade it, which it didn’t… they didn’t.

Well, the state doesn’t, doesn’t provide for qualifying.

Geoffrey Lloyd Graybill:

–Your Honor, we have referred in the record and established in the record, and I don’t think it’s rebutted here, that the political culture of California, the expression of First Amendment rights by the parties themselves indicates that they don’t want their institutions making endorsements, and this goes back before the advent of the primary election system.

They just say you can have… political parties are legal, but they don’t go on the ballot as… their candidates don’t go on the ballot as party candidates.

Geoffrey Lloyd Graybill:

This was the way Californians did business in the convention era, as was reflected in the opinion of the Attorney General–

James G. Brosnahan:

–I’m not sure about that, Justice White.

Well, apparently the county and State Central Committees… who brought this lawsuit?

James G. Brosnahan:

I think this Court would, if it came here, I think it would have to look, look at that in terms of expression, but it might be that the ballot presents a basis for control.

Geoffrey Lloyd Graybill:

–Well, there are three parties affected in this, political parties.

James G. Brosnahan:

Thank you.

Well, there, at least there are some county or State Central Committees that want endorsements.

Thank you, Mr. Brosnahan.

Geoffrey Lloyd Graybill:

There are no Republican Central Committees that want to endorse–

You have two minutes, Mr. Graybill.

How about the Libertarian Party?

Geoffrey Lloyd Graybill:

Thank you.

Are they on the primary ballot in California?

Geoffrey Lloyd Graybill:

I’d like to point out for the Court what the criminal provisions involved in this case do and do not do.

–Yes, I believe they are, Justice O’Connor.

It is not a crime for a party central committee to make an endorsement.

Do they permit pre-primary endorsements?

Geoffrey Lloyd Graybill:

It is a crime for somebody to claim that a candidate for the party’s nomination in a primary election is endorsed by the party, and so it doesn’t follow… and not even the plaintiffs contend that Section 29102 is applicable to the endorsement statute for the reasons stated in our brief.

Do their by-laws prevent pre-primary–

It is not, or to any of the other statutes.

Does that party permit pre-primary endorsements?

Geoffrey Lloyd Graybill:

Those apply to election officials only.

–Your Honor, the only indication in the record below is that they do not, they have not, in fact, made those endorsements since they’ve become a ballot-qualified party.

That is referred to in People v. Crutcher, and it is also reflected in Section 15 of the Elections Code which tracks the language in 29102.

Well, because they had to change their whole system once they became ballot-qualified.

What is the sanction, then, against, against the county committees violating the prohibition of endorsement?

They also changed their whole manner of electing delegates and went to a county system instead of a regional system, right?

Geoffrey Lloyd Graybill:

Being hit with a, a petition for an injunction in state court, Justice Scalia.

I mean, that doesn’t prove anything.

Geoffrey Lloyd Graybill:

This… these statutes are designed to protect the First Amendment rights of the members of the political parties.

It just proves that they’ve been obeying the law.

So the only thing that could happen to you if you violate it is you get an injunction.

Geoffrey Lloyd Graybill:

Well, Justice Scalia, there is nothing in the record below that indicates that the Libertarian Party requested to be exempted from the ban on endorsements.

That’s correct.

That’s nothing below, outside of the fact that the state–

The… another point that we’d like to make is that although the provision for the bar on endorsements did not show up in statute until 1963, it is well documented and undisputed that this has been the longstanding policy of the major parties in California all the way through to the present time, and there is really nothing substantial in the record to indicate that that is not the case to this day.

To be exempt, how do you request to be exempted, I mean?

Geoffrey Lloyd Graybill:

The state does have an overriding compelling interest, I believe, if Justice White was referring to the Storer case.

Is this the way you do things in California, there’s a law and you just go and ask for an exemption?

Yes.

Sure.

I have made the same mistake before, so don’t worry.

Or is there a special procedure to get an exemption from this?

Geoffrey Lloyd Graybill:

It was a compelling interest standard, and California was found to have met that standard in Storer, to protect the integrity of the parties in the primary system and in the general election system.

–There are amendments to laws submitted to the legislature every session, Justice Scalia, and this would be one of them.

Your time has expired.

Geoffrey Lloyd Graybill:

This is traditionally the way that the parties, especially the Democratic and Republican Parties in California, have done business.

Thank you, Justice Brennan.

Oh, you think the Libertarian Party is in the same position in California, just go to a friendly legislature and say we want to do something that we think will make us a more effective party.

William J. Brennan, Jr.:

The case is submitted.

Geoffrey Lloyd Graybill:

And there’s nothing in the record, Justice Scalia, that indicates they went to the legislature to request any kind of an exemption from that ban; every indication, when you look at their by-laws, their… it’s true, there’s no mention one way or the other with respect to the ban on endorsements, but they in fact did not, and there would have been nothing to prevent them from having unofficial groups such as within the… historically within the Democratic Party, there’s the California Democratic Council, and within the Republican Party the California Republican Assembly, which–

xxx… would they have to get an exemption from or an exception or whatever it is, from the ban on endorsing candidates?

Where would they have to go to get that?

Geoffrey Lloyd Graybill:

–They would go to the legislature, Justice Brennan.

Or they could use the initiative process.

And–

And that’s true, is it, also, of the provision of the statute, as I understand, that specifies the membership of the State Central Committee?

Geoffrey Lloyd Graybill:

–That’s correct, Your Honor.

You’d have to go to the legislature to get an exception from that, too?

Geoffrey Lloyd Graybill:

That’s correct.

But–

And the provision fixing the term of office of the State Committee chairs, that’s in the statute, isn’t it?

Geoffrey Lloyd Graybill:

–Yes, it is, Justice Brennan.

And there, too, they’d have to get an exception from the legislature, is that it?

Geoffrey Lloyd Graybill:

That’s true.

But, Justice Brennan, one of the things that we’d like to point out to the Court–

Forgive me for–

Geoffrey Lloyd Graybill:

–Yes.

–You do agree that each of those prohibitions raises a First Amendment question, don’t you, either speech or association or both?

Geoffrey Lloyd Graybill:

Your Honor, they may raise them, but they do not establish a substantial infringement of those interests.