Eu v. San Francisco County Democratic Central Comm. Page 2

Eu v. San Francisco County Democratic Central Comm. general information

Media for Eu v. San Francisco County Democratic Central Comm.

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

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.


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.


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.