Renne v. Geary – Oral Argument – April 23, 1991

Media for Renne v. Geary

Audio Transcription for Opinion Announcement – June 17, 1991 in Renne v. Geary

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William H. Rehnquist:

We’ll hear argument now in No. 90-769, Renne v. Geary.

Is that the way your client’s name is pronounced?

Wren or Rene, is it?

Dennis Aftergut:

Rennie, Mr. Chief Justice.

William H. Rehnquist:

Rennie?

Dennis Aftergut:

Rennie.

William H. Rehnquist:

Very well.

Dennis Aftergut:

Mr. Chief Justice, and may it please the Court:

Article II, section 6(b) of the California Constitution provides that no political party or central committee shall endorse, support, or oppose candidates in nonpartisan elections… that is, elections for judicial, school, county, or city office.

At issue in this case is whether the people of California may in the nonpartisan arena restrict the speech of those parties that have chosen to accept the benefits that the State confers upon its official parties in the partisan arena.

And because our argument so involves these special advantages, I begin by describing them for the Court, how parties get those advantages, and then I proceed to discuss how they justify the balance that the people of California have sought to strike between their two systems, their partisan system and their nonpartisan system.

Sandra Day O’Connor:

Would you mind inserting another little item, which is to tell us how this case arises?

Now, the respondents are not political parties in the State of California, are they?

They’re voters?

Dennis Aftergut:

The respondents include some voters, Your Honor, and they include some individual members of local central committees… that is the local organ in California of the State party.

But you are correct, Your Honor, the respondents are not parties themselves.

Sandra Day O’Connor:

And so how do we address the question in that light?

Is it an overbreadth argument of some kind?

I mean, 6(b) is addressed to political parties, I thought.

Isn’t that right?

Dennis Aftergut:

That’s correct, Your Honor.

Sandra Day O’Connor:

And we don’t have a political party here.

Dennis Aftergut:

Only as amici, Your Honor.

Sandra Day O’Connor:

Yes.

And so how is it that we even get to the question?

Dennis Aftergut:

Well, these respondents, Your Honor, seek… the way the case arises is they had… they sought to place in the San Francisco voter pamphlet endorsements either of them or endorsements by the committees of which they were a member.

And they sought to have that endorsement circulated through the government’s publication, the ballot pamphlet to all voters.

That’s how the case arises.

William H. Rehnquist:

Some of them were candidates who were being endorsed?

Dennis Aftergut:

I don’t believe that’s correct, Your Honor, although I can’t answer that question for sure.

William H. Rehnquist:

Well, perhaps we should address some of these questions to your opponent as to the standing of respondents.

Dennis Aftergut:

The way that the official parties in California become official parties is by choice.

That is California Election Code section 9951 provides the mechanism by which a group seeks to become an official party.

And I should also say that section 35 of the California Election Code defines parties as ballot-qualified parties, so that when article II, section 6(b) refers to parties, it is referring to ballot-qualified parties, that is those who have chosen to take advantage of the statutory benefits.

Byron R. White:

But what kind of… how did this case get started?

These… you say these respondents wanted to put their… wanted to recite in these pamphlets that there had been endorsements?

Dennis Aftergut:

That’s correct, Your Honor.

Byron R. White:

And who… and then somebody refused?

Dennis Aftergut:

Yes.

The–

Byron R. White:

Who refused?

Dennis Aftergut:

–The San Francisco Registrar of Voters.

Byron R. White:

Refused–

Dennis Aftergut:

Yes.

Byron R. White:

–to put them in.

And then the… and then they sued, the other people sued?

Is that it?

Dennis Aftergut:

That’s correct, Your Honor.

Byron R. White:

Because they wanted to get these endorsements in the pamphlets.

Dennis Aftergut:

In a pamphlet that is sent to all voters in the city, and which we contend would make a nonpartisan election partisan because these endorsements would go to every voter in the City and County of San Francisco.

Byron R. White:

And the grounds for refusing by the official was that the State law forbade endorsements?

Dennis Aftergut:

That the State law forbade endorsements in nonpartisan elections.

Byron R. White:

Exactly.

Dennis Aftergut:

Yes.

Antonin Scalia:

Mr. Aftergut, could you tell me, this constitutional provision which says that no political party may endorse, support, or oppose a candidate for nonpartisan office, does… would that prevent a political party from contributing money for the candidate to promote himself?

In other words, is it only addressed to an endorsement?

Could the Republican Party support the candidate so long as it did not say that he is the Republican-endorsed candidate?

Dennis Aftergut:

No, Your Honor.

Antonin Scalia:

It could not?

It cannot contribute money or do anything else to assist his campaign?

Dennis Aftergut:

That’s correct.

Support would include that.

The advantages that political parties, official political parties, ballot-qualified political parties get, parties that have chosen to become official parties, are a vast array of benefits.

I want to go through them quickly for the Court so the Court understands.

First, a ballot-qualified party is a party that has guaranteed access to the partisan ballot, to the Statewide ballot.

Second, the State operates the primaries for those ballot-qualified parties.

Third, the State assists those parties in expanding their affiliation in a very special way.

The voter registration card includes a list of the ballot-qualified parties and only the ballot-qualified parties, so that a voter registering marks which party he or she wishes to affiliate with.

Fourth, the parties are entitled to receive free of charge from the State a copy of the list of voter affiliation… of the registered voters and their affiliation.

Fifth, the official parties may send to this, to the individuals on this list, those people that the State has helped the parties affiliate with, may send them free of charge a solicitation letter allowing the parties to collect funds from these individuals.

Antonin Scalia:

What do you mean send it free of charge?

Dennis Aftergut:

It is sent without expense to the party with the sample ballot and the voter pamphlet that go out.

Antonin Scalia:

Oh, I see.

Dennis Aftergut:

State law provides for that.

Antonin Scalia:

The State pays the postage.

Dennis Aftergut:

The State pays the postage.

It can go out… the letter and the solicitation envelope goes out.

Sixth, the State allows parties to receive a $25 tax contribution on the income tax form dedicated to that party.

Seventh, the party meetings, the central committee meetings, occur in the seat of government, in the city hall, called by the clerk.

This is an array of advantages that is unique in its scope.

And why has California chosen to give its official parties, those that have chosen to become parties, why has California chosen to give them more advantages than any other State?

The reason has to do with the nature of California itself, and has to do with the decisions of this Court in the ballot access area.

California, being the largest of our States and being a State of tremendous diversity, finds a need to promote parties in order to promote stability in such a large and diverse State, in order to… parties help forge consensus among diverse groups, as this Court has recognized in the Storer case, in the Jenness case, in the American Party v. White case.

And parties help prevent a balkanization of the political process so that government can operate.

So California has chosen to structure its government, the people of California have chosen to structure their government in this way, strengthening the parties.

But there is a danger.

The danger is that California at the same time has coexisting a nonpartisan system, a strong nonpartisan system, a long tradition of nonpartisanship that goes back to the progressive era in Hiram Johnson.

And that commitment to nonpartisanship in fact is stronger than any other State because California is the only State in the country which absolutely prohibits nonpartisan nomination in all local and all school–

Antonin Scalia:

Prohibits partisan nomination.

Dennis Aftergut:

–Excuse me, prohibits partisan nominations in all local, all city, all county, all school, all judicial elections.

Sandra Day O’Connor:

Well, how does 6(b) operate?

Now, for example if there were a general election coming up and there were some judicial candidates on the ballot, listed on the ballot as nonpartisan, I take it that this provision 6(b) might be said to prohibit, let’s say, the Democratic Party from preparing a little card to give to registered Democrats by the precinct committeeman saying these judicial candidates are candidates that we think merit your support.

Take this with you to the ballot on election day.

Dennis Aftergut:

That’s correct.

Sandra Day O’Connor:

You could enjoin the distribution of a communication?

Dennis Aftergut:

That’s correct.

That is the… an injunction–

Sandra Day O’Connor:

That’s the position you take?

Dennis Aftergut:

–Yes.

And that is the only sanction that exists in the State of California.

In other words, there’s no criminal penalty for an official party’s endorsing.

It’s simply that some–

Sandra Day O’Connor:

But you can suppress the speech?

Dennis Aftergut:

–Well, the–

Sandra Day O’Connor:

The political speech.

Dennis Aftergut:

–The government could bring an action to enjoin that, or an individual could bring an action to enjoin that, as happened in the Unger case.

Sandra Day O’Connor:

And how is it you think the First Amendment would allow that?

Dennis Aftergut:

For the reasons that I am saying, Your Honor, that this is an essential part of the structure of government that California has chosen.

That is to say at the same–

Sandra Day O’Connor:

There are other States that have nonpartisan judicial elections, and they don’t purport to prevent speech by political parties.

Dennis Aftergut:

–That’s correct, Your Honor, and that was the point I was trying to develop in terms of a difference that exists in California.

And that is to say California gives to those parties that have chosen to become official parties this vast array of benefits.

And then secondly, California has this uniquely strong comprehensive commitment to nonpartisanship.

And so what California is saying when it speaks to its official parties, those that have made the choice of becoming official parties, it has given to them a choice.

And it has said you may have this vast array of advantages in order to assist in organizing our political system across the State.

But with that vast array of benefits there is a danger.

And the danger is that the State… the State by giving to parties that have chosen to take advantage of these benefits… the State itself will be weighing into the nonpartisan arena.

Sandra Day O’Connor:

Well, do you think that the State in First Amendment analysis can just offer additional benefits as a sort of quid pro quo for giving up First Amendment rights?

Dennis Aftergut:

Where the State has a sufficiently compelling interest and where the people of California have said this is how we wish to structure our government.

We structure our government by having a strong partisan, strong party role at the State level.

Dennis Aftergut:

We need it in our State.

But at the same time we have a strong nonpartisan system.

And the danger is that the State has… that these benefits that the parties have chosen to take, these benefits enhance the voice, amplify the voice of parties in a way that will put them, if they may endorse, back at the center of the nonpartisan arena where nonpartisanship envisions they do not play the central part.

Anthony M. Kennedy:

You describe all of the initial regulations that you’d recited as benefits.

I take it parties are required by law to have the meetings that you have described; are they not?

Dennis Aftergut:

Official… the answer is I believe you’re correct that official parties are required, although I am not, I must say I am not certain.

But the point is–

Anthony M. Kennedy:

Of course it’s required by law that they meet at a particular time and place as designated.

So these aren’t just benefits, they’re regulations.

Dennis Aftergut:

–But the point is that the… that may be so with respect to that particular regulation, Your Honor.

But the point is that the party has the choice.

The party has the choice of not accepting those benefits and of being like anybody else in the nonpartisan arena.

They can speak however loudly they want in the nonpartisan arena.

Anthony M. Kennedy:

They just can’t have a candidate in the primary.

You can’t have a candidate in the primary unless you’re an official political party.

Dennis Aftergut:

I’m not sure I understand Your Honor’s question.

Anthony M. Kennedy:

Well, you’re telling us that the parties voluntarily accept all of these emoluments and benefits that you have described.

And I am suggesting to you that an official party must comport with this regulatory scheme or it cannot enter a primary and it cannot support a candidate in any primary.

That’s the definition of a party.

Dennis Aftergut:

The party does not need to take advantage of these benefits, Your Honor, perhaps with the exception of the regular meetings.

But the others are not regulations.

The party does not have to nominate, does not have to have guaranteed access, it doesn’t have to take advantage of these benefits.

It has… it makes the choice–

Anthony M. Kennedy:

Can the Democratic Party have primary elections and not be an official party with respect to all of the regulations that you have described?

Dennis Aftergut:

–The Democratic Party can… the Democratic Party can, absolutely, get its candidate on the ballot for… I’m not sure about for a primary election, but it can definitely–

Anthony M. Kennedy:

Well, that’s critical, isn’t it?

Dennis Aftergut:

–It can get its candidate on the ballot by doing what any other group does, and that is by gathering the number of signatures that are necessary in order to get on the ballot.

The Democratic Party has chosen to take advantage of these benefits, and the price for taking advantage of those benefits that California exacts in order to protect the nonpartisan structure of its government from the enhanced voice that these benefits give to parties is to say we need this restriction in order to keep parties from occupying the central place in local government and in judicial government.

William H. Rehnquist:

So you say there is a way for a political party to get on the ballot without becoming an official party?

Dennis Aftergut:

Absolutely, Your Honor.

William H. Rehnquist:

And that’s by getting signatures?

Dennis Aftergut:

That’s correct, Your Honor.

And I can give the Court the statute.

I’m not sure I have it in mind.

It’s–

Byron R. White:

But getting it… they can get their candidate on the ballot, but it won’t say that that candidate is a candidate of that particular party, will it?

Dennis Aftergut:

–I’m not sure of the answer to that, Your Honor.

I believe… I am really not sure of the answer to that.

Byron R. White:

Well, anybody can get on the party… get on the ballot without a, if they get the number of signatures.

Dennis Aftergut:

That’s correct.

And–

Byron R. White:

So a political party doesn’t get on the ballot, somebody they want on the ballot gets on the ballot.

But the name of the party won’t be there, will it?

Dennis Aftergut:

–I’m not sure of the answer to that question, Your Honor.

Anthony M. Kennedy:

You’re talking about general elections, because for a primary you have to be an official party.

Dennis Aftergut:

Um-hum.

But the point is that the party may operate like anybody else if it… if the party chooses not to take advantage of these benefits that the State confers.

William H. Rehnquist:

Well, what if you had a party… let’s say it’s the Surfer Party, that was just new in California.

Dennis Aftergut:

Right.

William H. Rehnquist:

And it had 100,000 members, and it wanted to, it did not want to go through the official party structure.

Could it have a primary of its own?

Supposing there were two rivals for the nomination of that party?

Dennis Aftergut:

It… that party, it could choose its candidate in any way that it wished.

Whether it would be, I do not believe that… if it were not an official party it would not have a State-run primary, but it could choose its candidate by–

William H. Rehnquist:

It could have a convention?

Dennis Aftergut:

–It could have a convention.

William H. Rehnquist:

But it couldn’t go into the primary election the same day the officials parties did?

Dennis Aftergut:

Well, it could choose whatever day it wished, but it would not be… that would not be… they would not be a ballot-qualified party for running.

They can choose their candidate however they wish.

They can have a private election.

Dennis Aftergut:

They can have a–

Antonin Scalia:

But the State runs and pays for the primaries of the validated parties?

Dennis Aftergut:

–That’s correct.

Antonin Scalia:

Correct?

And it mails out information to all the voters about those parties.

Dennis Aftergut:

That’s correct.

Antonin Scalia:

And it lists those names on the ballot.

Dennis Aftergut:

That’s correct.

Antonin Scalia:

So that in a sense those parties become part of the governmental process of election.

Dennis Aftergut:

That is correct, Your Honor.

Antonin Scalia:

It’s part of the formal election system of California, that parties… part of the election is you have a party primary and then the formal election with the party names on it.

Dennis Aftergut:

And that is the point.

The point is that because, by becoming part of the State structure–

Antonin Scalia:

So it’s accepting the benefits.

It’s becoming part of the State electoral structure.

Dennis Aftergut:

–By becoming part of the State structure in the Statewide context, there is the danger of… the State has an enhanced power to regulate and to protect its other structure, that is its nonpartisan structure, from parties playing the role that they were designed not to play.

And that’s particularly important, Your Honor, because in local elections, for example, the danger of party domination is a danger that was part of the experience of California that led to this… led to this regulation, to the whole tradition of nonpartisanship.

And it exists for the reasons that Madison acknowledged, and that is that in smaller localities single parties do tend to dominate, and there is a danger from that that does not exist across broader geographic lines where there is a greater balance.

And so what you have in cities like our city, San Francisco, you have a one-party majority.

And you have, or you may have the reverse in Orange County.

And what happens is that if the State has enhanced the voice of these particular entities, you have exactly the same problem that the people wanted to avoid when they enacted the whole tradition of nonpartisanship.

And, frankly, that is what distinguishes this case, the structure… the State’s structural interest.

That is what distinguishes this case from the Eu case, because in the Eu case the structure of government was not involved.

In fact when the government in the Eu case offered as an interest, as a compelling interest, political stability from the Storer case, the Court’s response was that the State’s interest in political stability does not embrace an interest in party stability, in preserving party unity.

We’re not trying to protect party unity.

We’re trying to protect our nonpartisan local and judicial governments.

We’re trying to protect them from the danger of the State’s playing a role, weighing in on the side of the very parties that were, that the people decided were not supposed to be involved in judicial elections, and were not supposed to be involved in school elections, and were not supposed to be involved in city and county elections.

That is the justification, the structure of our government.

Byron R. White:

Is the State Attorney General involved in this case at all?

Dennis Aftergut:

No, he is not, Your Honor.

Dennis Aftergut:

He was not sued in this case, and he has not been involved.

Byron R. White:

But this is a provision of the California Constitution?

Dennis Aftergut:

That is correct, Your Honor.

Byron R. White:

And he doesn’t have any right or duty to be informed about when some constitutional provision is at issue?

Dennis Aftergut:

Your Honor, he does have a duty under the law to be informed, and we fulfilled that duty by notifying the Attorney General and–

Byron R. White:

But he never took any position in the case?

Dennis Aftergut:

–Whatever his reasons for not taking a position, whether they related to the fact that he is a partisan officer or was running for governor of a party, I simply cannot say.

I do not know what his reasons for being here or not being here were.

Byron R. White:

Thank you.

Mr. Aftergut, are you going to turn from the question of the State’s interest to the problem of inclusiveness before you are done?

Dennis Aftergut:

Certainly.

David H. Souter:

Okay.

Dennis Aftergut:

The principle basically that we’re advocating here, Justice Souter, is really quite a limited one.

That is we do not seek to prevent endorsement support or opposition by any group other than those that have chosen to take advantage of the benefits that I have described.

David H. Souter:

There’s no limitation on PAC’s and so on, for example, from coming out and endorsing and working for candidates?

Dennis Aftergut:

I am not sure I understand what the Court means.

David H. Souter:

Can a political action committee do the things which the party organization itself may not do?

Dennis Aftergut:

I think the answer to that question, Your Honor, would depend upon whose political action committee that it was.

If it were the–

David H. Souter:

Well, what’s the… what’s the standard by which you determine that?

Dennis Aftergut:

–Well, if this is, if what Your Honor is asking is could the Democratic Party form a PAC and do the same thing, the answer to that is no because that–

David H. Souter:

Well, could I form a PAC of Democratic surfers and support a candidate?

Dennis Aftergut:

–Absolutely, Your Honor, because you and your colleagues are not the beneficiaries of the State-conferred advantages that are given precisely for the purpose of enhancing your voice.

So what we are proposing here is a limited principle that applies only to these particular groups that the State has put in this preferred position.

David H. Souter:

So you’re just saying that the only PAC that cannot support is one that would be sort of an obvious or blatant alter-ego for the party itself?

Dennis Aftergut:

I couldn’t have said it better myself, Your Honor.

[Laughter]

David H. Souter:

Okay.

Dennis Aftergut:

Since I see my white light and I would like to reserve some time, let me just summarize by saying that where the State-conferred advantages meet the single-party domination that exists in so many localities is where we have the danger of officials being beholden to parties at the sponsorship of the State.

And in their ordinary experience the people of California understood that it would be an absolute fiction to think that official party endorsements would not dismantle their long heritage, their long tradition of nonpartisanship.

Dennis Aftergut:

Thank you.

William H. Rehnquist:

Thank you, Mr. Aftergut.

Mr. Smith.

Arlo Hale Smith:

Yes.

Thank you, Mr. Chief Justice, and members of the Court:

I think I’d like to start by saying that I think Mr. Aftergut overstates the amount of quote, choice, unquote under California law any party has on being on the ballot.

Anthony M. Kennedy:

Could you begin by telling us how the case came up?

10 registered voters–

Arlo Hale Smith:

Okay.

Anthony M. Kennedy:

–wanted to have something in the ballot.

Can you tell us what they wanted in the ballot?

Arlo Hale Smith:

Here’s what happened.

Basically there were 10 registered voters, some of them county central committee members.

The dispute was with the San Francisco Registrar of Voters, who categorically took the position that they would not print any statement by any candidate indicating a party endorsement under any circumstance.

Anthony M. Kennedy:

All right.

So these were candidate endorsements that a candidate is permitted by law to include in the ballot?

Arlo Hale Smith:

Yes.

Anthony M. Kennedy:

And the candidate wished to include a statement to the effect that he or she had been endorsed by a particular party or central committee?

Arlo Hale Smith:

Basically, Your Honor, that’s, that’s what the dispute was about.

However, there was not an actual statement that had been rejected.

The Registrar had in advance just taken–

Sandra Day O’Connor:

No candidate had come forward and said include this endorsement?

Arlo Hale Smith:

–No.

But the Registrar had in advance said–

Sandra Day O’Connor:

And no political party had come forward and said include this endorsement?

These are registered voters who went in and said we think you should include them–

Arlo Hale Smith:

–And county committee members.

Sandra Day O’Connor:

–Did they have any right to–

Arlo Hale Smith:

Yes.

Sandra Day O’Connor:

–to demand that certain materials be included?

Arlo Hale Smith:

Yes.

A number of these were county central committee members who were… county central committee members.

And–

Sandra Day O’Connor:

Can an–

–How did that give them any right?

Arlo Hale Smith:

–County central committee members would… are by this measure prohibited from, as committee members, voting to have their committee make endorsements which the candidates could then include.

William H. Rehnquist:

I thought… so the prohibition includes county committee political parties as well as–

Arlo Hale Smith:

Yes.

William H. Rehnquist:

–State?

Arlo Hale Smith:

It includes State and county committees.

It says… what it literally says is no political party or party central committee may endorse, support, or oppose a candidate for a nonpartisan office.

And then… nonpartisan office is defined as local, school, or judicial office.

Anthony M. Kennedy:

Was there any finding that there was an actual candidate that wanted to have this endorsement in his or her election?

Arlo Hale Smith:

No.

William H. Rehnquist:

Was there any indication that a party central committee wished to make an endorsement?

Arlo Hale Smith:

Yes.

Yes, the Republican Committee of San Francisco said it would intervene if the district court judge found that necessary to confer standing.

And the–

William H. Rehnquist:

But it was not a party?

Arlo Hale Smith:

–No.

The chairman was a party.

The chairman was… the chairman was party to the action.

And the chairman and some officers of the… of both county, both the Democratic and Republican Committees were parties to this action.

Antonin Scalia:

I see how that would give them an interest in whether the law is valid or not, but I don’t see how that gave them an interest in the act that forms the subject matter of the suit.

Does anyone except the candidate have the right to demand that something be included–

Arlo Hale Smith:

Yes.

Antonin Scalia:

–in this mailing?

Arlo Hale Smith:

Yes.

Antonin Scalia:

Who has the right to include it?

Arlo Hale Smith:

As long as reference is made to ballot measures, any registered voter in San Francisco could, if they pay the price, include something.

Sandra Day O’Connor:

Well, this isn’t a ballot measure.

It’s a political candidacy we’re talking about.

Arlo Hale Smith:

That’s right.

Sandra Day O’Connor:

So can any citizen come forward and demand that things be included in the pamphlet concerning a candidate?

And if so, where in the record do we find that regulation or provision?

Arlo Hale Smith:

You find in the San Francisco Administrative Code… you find in the San Francisco Administrative Code, San Francisco Charter of Provisions, for candidate statements and for ballot arguments.

And this case involved both candidate statements and ballot arguments.

The San Francisco Registrar took the position that they would never accept any candidate statement, period, if it had any party endorsement.

John Paul Stevens:

May I ask you if the California constitutional provision had been written in a different way and simply said that the statements sent out by the candidate shall not include any party endorsements that might be made, would that be constitutional?

Arlo Hale Smith:

Are you talking about in official election material, or are you talking about generally?

John Paul Stevens:

Official election material, which is what I gather gave rise to this controversy.

Arlo Hale Smith:

Your Honor, that might be a… if it was a forum-specific regulation that might be a different problem.

But this–

John Paul Stevens:

In other words, what I’m suggesting is perhaps even though on its face the California provision may be overly broad and unconstitutional.

Maybe as applied to the specific controversy here it’s a perfectly proper thing.

Arlo Hale Smith:

–Well, I’m not so sure if it is, and indeed the California court of appeal recently in a case called Clark v. Burleigh in a matter involving what judicial candidates could say, actually invalidated an election code provision that limited what judicial candidates could say in their candidate statements.

But whether that’s–

John Paul Stevens:

But it didn’t invalidate the provision prohibiting them from announcing a party endorsement in their candidate statement, did it?

Arlo Hale Smith:

–No.

John Paul Stevens:

Which is… well–

–Mr. Smith, is at least this clear on the standing point, that the only reason the Registrar gave, even though there may have been… may have been other reasons why he might have rejected the submissions for the–

Arlo Hale Smith:

The only reason was the State constitutional provision.

Antonin Scalia:

–That’s the only reason he gave?

Arlo Hale Smith:

That’s right.

And the respondent… the petitioner has never argued otherwise any points.

Antonin Scalia:

And as far as we know there is no other basis?

There may be other bases, but we’re not sure?

Arlo Hale Smith:

They have never asserted any other basis.

Indeed on this point they, both sides have agreed the whole time that–

Anthony M. Kennedy:

Well, what submission are you… was there an actual submission made?

Arlo Hale Smith:

–No.

Basically the Registrar just, when asked, said that they would follow article II, section 6(b), would not allow any candidates to print any such endorsements.

And the parties wanted to make endorsements and have the candidates go use the endorsements in their candidate statements.

William H. Rehnquist:

Well, what are the merits, Mr. Smith?

Arlo Hale Smith:

Your Honor, on the merits, I think it’s hard to envision a more flagrant violation of the First Amendment.

Basically, under this law voters in California have less rights than voters in the Soviet Union in the sense that the Soviet Union, you know, you have multiple-candidate elections which are not by party, to the extent they are now allowing multiple-candidate elections.

Yet I am sure that if Gorbachev announced tomorrow that the Lithuanian Nationalists or the Georgia Nationalists could not endorse candidates, that President Bush and Jim Baker would be rightly protesting a violation of civil rights.

William H. Rehnquist:

Well, to get a little closer to home, how do you distinguish this case from Austin v. The Michigan Chamber of Commerce?

Arlo Hale Smith:

How do I distinguish it?

William H. Rehnquist:

Yes.

Arlo Hale Smith:

Easily.

In Austin the problem was that… there’s two big things.

One branch is that in Austin the prohibition wasn’t as broad.

Basically the corporation could set up a totally controlled PAC, and… to make contributions, and the corporation could make any endorsement it wanted.

The corporation could send to its shareholders or members any expression it wanted on candidates.

It simply… in this case the political party cannot–

William H. Rehnquist:

Well, but the Michigan statute certainly prohibited the Michigan corporation in question from expressing itself in an election, and we said it was justified because the danger of corruption and because the State had given the corporation certain benefits.

Arlo Hale Smith:

–Well, I said there are two distinctions, though.

One is that the Michigan statute didn’t go nearly as far as this provision does, because this is an absolute prohibition and this Court’s opinion, as well as concurrence by Justice Brennan, were very explicit that they were saying it was not an absolute prohibition, because the Michigan corporation could set up a wholly controlled PAC.

The Michigan corporation could, to its members, send any endorsement it wanted.

And the Michigan corporation could endorse all it wanted, it just was limited in direct expenditure money from the corporate treasury.

The second point is what Austin and Massachusetts Citizens for Life make very clear is that the problem was not that the corporation got benefits, because there would not be necessity to exempt any corporations, including wholly political corporations.

It was just mere receipt of benefits does it.

The test was that it gave corporations advantage in the economic marketplace which would allow them to basically bring money over into the political marketplace.

And that was the quote, corruption, unquote, that the Court was concerned about.

William H. Rehnquist:

Do you think corruption is the only evil that a State may strike at under that rubric?

Arlo Hale Smith:

I think corruption is the only one that has been recognized as legitimate so far, and I think that this provision is just so all encompassing.

It’s… it applies to all parties, major or minor, ballot qualified or nonballot qualified.

It applies to all advocacy with respect to local, school, and judicial races whatsoever.

The political parties–

Byron R. White:

It’s practiced by the official party, isn’t it?

I don’t suppose… are the officers of the party forbidden to go out and campaign?

Arlo Hale Smith:

–Well, even if they’re not–

Byron R. White:

Are they or not?

Arlo Hale Smith:

–I believe individually they could campaign, but–

Byron R. White:

But then, any organization besides the party can support these candidates, I suppose, in these nonpartisan elections, like the California Democratic Council?

Arlo Hale Smith:

–Yeah, but that–

Byron R. White:

That’s not an official party, but–

Arlo Hale Smith:

–That’s true.

Byron R. White:

–So all organizations other than these officially recognized parties can campaign, endorse, and give money?

Arlo Hale Smith:

That’s right.

And that actually, though, underpoints the whole irrationality of the enactment.

Antonin Scalia:

Do you think the State of California could prohibit the justices of the Supreme Court of California from endorsing as a group a candidate for governor, one candidate or another?

Arlo Hale Smith:

I think, Your Honor, that the State might have greater ability to regulate the political activities of judges or judicial candidates than they could of the outside entities.

Antonin Scalia:

Why is that?

Because they are part of the governmental process?

And aren’t parties part of the governmental process, as California has set it up?

Arlo Hale Smith:

Parties are part of the governmental process only insofar as they are allowed to make nominations for certain offices.

And basically the, what… there is no choice.

If you have 1 percent of the registration you are automatically a qualified party in California, period.

All it takes is 1 percent of the registration.

You know, there’s no, I don’t even think there’s a legal way that the Democratic or Republican Party could, quote, withdraw, unquote, from, quote, accepting, unquote, the benefits that the petitioners talked about.

Because basically the test under California law is if you have 1 percent you’re a ballot-qualified party.

And the test also is, and with respect to a question that was asked earlier, under California law independent candidates cannot use any party designation.

In a case called Libertarian Party v. Eu, the California Supreme Court squarely held that about 10 years ago.

So basically, if you get 1 percent registration you are on the ballot as a party that nominates by primary.

You must nominate by primary under the California Constitution.

Antonin Scalia:

1 percent registration in what?

I don’t understand.

You register in the primaries, don’t you?

Arlo Hale Smith:

As soon as 1 percent of the voters register say that I want… I am affiliated with this party or that party, as soon as 1 percent of the voters register a certain way, the party–

Antonin Scalia:

Do they have to honestly say whether they are affiliated with one party or another?

Arlo Hale Smith:

–Under California law you have to actually… under California law you have to fill out a voter registration card that says I affiliate with this party or that party or–

Antonin Scalia:

Yeah, but I think it’s… isn’t it up to the party whether they want to be a primary party or not, whether they want to play the primary game and get on the ballot?

Arlo Hale Smith:

–No, they have no choice.

If 1 percent of the voters sign up–

Antonin Scalia:

Yeah, but they just tell their members, don’t sign up.

This party does not want to be on the primary ballot.

We don’t want to be a primary party.

Couldn’t they do that, and tell their voters don’t affiliate for purposes of this registration?

Can’t they?

Are you sure that they must say I–

Arlo Hale Smith:

–If–

Antonin Scalia:

–All right, you’ve got me, I’ll tell the truth.

I really am a member of the… whatever… the Surfers’ Party.

You have to say that?

Arlo Hale Smith:

–All I am telling you is that once there is 1 percent the party is on the ballot and is in the scheme.

And in fact once they’re on, even if they fall below 1 percent, as long as they don’t fall below something like one-fifteenth of a percent and they get at least 1 percent in some Statewide election, they stay qualified under the scheme.

And that’s how it works in California.

So there isn’t this great choice, and as a practical matter I think that’s just resuscitation of the old argument that if something’s a privilege then you can condition speech on it.

And I think this Court has in most contexts reject that… rejected that argument rather squarely.

Because by the same argument, I guess, anyone who got a… you know, you have Federal law saying anyone who got a patent couldn’t support any candidate for any Federal office.

Or anyone who got a student loan couldn’t be involved in any public political activities.

So I don’t think–

Antonin Scalia:

We have rejected it in most contexts.

The question is whether this is one of those in which we should reject it.

We haven’t rejected it in all.

We have upheld the Hatch Act, for example.

Arlo Hale Smith:

–Well, I believe that naturally, if you look at the cases coming after that, like Connick, it’s clear that the rationale is the government has… that the government is supposed to have the same kind of control over its employees that a private employer might.

And obviously the employment relation implies a certain degree of control that I think contributing or supporting a political organization doesn’t.

Arlo Hale Smith:

And MCLF is an authority on that, that a contributor or supporter can’t expect to control a lot of the workings of the political organization.

William H. Rehnquist:

Thank you, Mr. Smith.

Mr. Chao, we’ll hear now from you.

Cedric C. Chao:

Mr. Chief Justice, and may it please the Court:

One of the first indications that democracy was arriving in Eastern Europe last year was the formation of political parties.

As the Ninth Circuit noted in its Eu decision, political parties are nothing more than voluntary associations of individuals who band together in pursuit of shared political goals.

Political parties can succeed in the political marketplace only if their vision of society attracts a majority of the population.

And that is why this boogie-man of the party dominance makes no sense.

If voters like the message and they accept the message, then they will accept the candidates of that particular party and the programs of that particular party.

Anthony M. Kennedy:

And I take it if a judge doesn’t want to have an endorsement he’ll say a plague on all your houses, I don’t want any endorsements?

Cedric C. Chao:

That’s absolutely correct, Your Honor.

Section 6(b)–

William H. Rehnquist:

Do you think, Mr. Chao, that the Democratic Party could insist that it be able to nominate a candidate for the county board of supervisors, or whatever it is that’s now nonpartisan in San Francisco?

Cedric C. Chao:

–Well, under the nonpartisan nomination process the answer is no.

They do not have, they do not control access to the ballot.

William H. Rehnquist:

Well, would you… might not your argument lead to the conclusion that they have a constitutional right not to be excluded from competition for that office?

Cedric C. Chao:

Well, that issue is not before the Court.

William H. Rehnquist:

No, but I would be interested in your answer to it.

Cedric C. Chao:

I think that would be difficult to say, Your Honor.

I do think it would be difficult to say.

I would like to–

Byron R. White:

xxx offset in either way?

Cedric C. Chao:

–Either way, Your Honor.

Byron R. White:

So you don’t think your argument… don’t you think your argument here bears on that issue, though?

Cedric C. Chao:

I don’t believe directly so, and I don’t think we’re taking it that far, Your Honor.

I think what is at issue squarely in this case is whether, given the fact that there are elections, whether they be partisan or nonpartisan, where the political parties have an equal right to every other entity and individual in society to speak their piece, to say this candidate is qualified, this candidate is worthy of your support, and that’s really what’s before us.

Byron R. White:

And to contribute money?

Cedric C. Chao:

As well as contribute money, support and oppose.

That’s correct, Your Honor.

John Paul Stevens:

Do you think that the State could prohibit the candidate from including that endorsement in the statement that’s sent out to voters at public expense?

Cedric C. Chao:

I do not believe so, Your Honor.

That is not before the Court in this case–

John Paul Stevens:

Well, it’s what gave rise to the lawsuit, though.

Cedric C. Chao:

–That is in a different portion of this lawsuit.

That’s correct.

Section 6(b)–

Anthony M. Kennedy:

Your position is the Democratic or Republican Party cannot be prohibited from giving money to judicial candidates in California?

Cedric C. Chao:

–That is correct, Your Honor, under the present… that’s correct.

Section 6(b) is–

Anthony M. Kennedy:

Are they… I take it they’re not permitted to now?

Cedric C. Chao:

–Under section 6(b) they are not permitted, that is correct.

Byron R. White:

And this could go for retention elections, which are the only kind of elections there are, I guess?

Cedric C. Chao:

That is correct, with the exception, Your Honor, that for certain of our trial courts a challenger can take on an incumbent judge–

Byron R. White:

Okay.

Cedric C. Chao:

–And in fact that did happen in November 1990.

Section 6(b) is quite dangerous.

In California there are 19,279 elective offices.

Of those offices, only 179 are partisan.

What section 6(b) then does is it says that political parties may be silenced on the issue of political candidates in over 99 percent of elective offices in California, which goes to one of the major reasons for the existence of political parties, namely the ability to evaluate candidates for public office and to decide whether they are worthy of support or not.

Section 6(b) is equally an egregious burden on the right of the voters and of party members to receive information in elections.

And, as this Court has held repeatedly, one of the purposes of the First Amendments in the political marketplace is to ensure that voters receive as much information as possible in order to intelligently exercise the right of franchise.

Just two terms ago–

Antonin Scalia:

I mean, on the information point, do you agree with the answer that your opponent gave with regard to what is prohibited by this law?

That is to say the political party is not only prohibited from saying the Republican Party endorses so and so, but it cannot even put out a brochure at its expense describing what a terrific candidate this is?

It cannot even spend any money to circulate information on this person’s behalf, information apart from the party endorsement?

Cedric C. Chao:

–The statute reads not only endorse, Your Honor, but also support and oppose.

And I do not quarrel with my opponent’s interpretation of support to–

Antonin Scalia:

It doesn’t mean officially support necessarily?

It means contribute anything to his support?

Cedric C. Chao:

–We do not quarrel with that interpretation, Your Honor, and that is one of the reasons why we think the statute is, the burden of the statute is very, very broad.

Cedric C. Chao:

The… just two terms ago in Eu, it was held that the First Amendment protects the rights of political parties to endorse candidates to speak on candidates running in party primaries.

I submit that is difficult to see how the rationale of Eu does not apply with equal force to nonpartisan elections.

I would like to address… I think there is a very fundamental misconception, a very fundamental confusion in the compelling argument put forth by the petitioner.

Their primary compelling interest, they assert, is the impartial administration of government, and they found that on the Letter Carriers decision.

But I submit that he is… that petitioner has confused two very distinct concepts.

On the one hand, as Letter Carriers spoke, there is an interest in the impartial execution of the laws, which meant the execution and enforcement of laws without bias or favoritism toward any party or member.

In a local context that would mean whether I supported the winning or losing candidate for mayor, I have an equal expectation that my garbage will be picked up once a week just like everybody else.

The concept that they tried to throw in to bring into Letter Carriers rationale is impartial policy making.

They would have… they argue that there’s only one right way to run a city or a county.

And they also argue that parties, based on evidence of 100 years ago, are these engines of evil, and therefore parties are driven to pressure the local official to act in a way to decide a policy that is not the right way.

I submit that their syllogism is fatally incorrect.

There is not one right way to run a city or a county.

There are many ways to run a county–

Anthony M. Kennedy:

Well, are you saying that there is no State interest in having what are called nonpartisan offices?

Cedric C. Chao:

–There is no compelling interest in having a nonpartisan office.

A nonpartisan, the nonpartisan method of putting candidates on the ballot is merely one vehicle.

They… California has chosen on a nonpartisan nomination process.

Other States have done that and other States have chosen a partisan method of putting both judicial office holders and other office holders on the ballots.

Nonpartisanship–

Anthony M. Kennedy:

I’m not quite sure I understand.

So there is no governmental interest in having nonpartisan judicial elections?

Cedric C. Chao:

–I would submit that is correct.

There is… California is free to determine that we will put judges on the ballot on a nonpartisan basis.

But I would submit that the nonpartisan election by its, in and of itself, is not a compelling interest in the First Amendment structure.

Anthony M. Kennedy:

Well, what do you mean that California has an interest in putting them on the ballot on a nonpartisan basis?

How can they have that interest if on the other hand the candidate has the right to identify… does a, let me put it this way, does a judicial candidate have a constitutional right to identify his party, say I am a Republican or I am a Democrat?

Cedric C. Chao:

On the ballot, Your Honor?

Anthony M. Kennedy:

Yes.

Cedric C. Chao:

I would, I would say yes, Your Honor.

Anthony M. Kennedy:

So that’s your submission to this Court?

Cedric C. Chao:

Yes, Your Honor.

If I could return to Letter Carriers for just a short minute, Los Angeles County has a population of approaching 9 million people.

It is larger than the population, it has a population larger than that of 42 other States in this country.

The leaders of Los Angeles County and all the other cities and counties of this, of our State, face very controversial, very difficult policy choices every day.

And there is no one right way to make those choices.

The elections of the leaders of these cities and counties necessarily will involve discussions about both the voters’ views and the candidates’ views of these policy choices.

It is expected, the voters expect that there will be discussions, or how else will they make a decision on who to, with respect to who to vote for.

In these discussions political parties historically in our country have played a very important role, and we submit that section 6(b), by taking away that role, does great disservice to the First Amendments.

Petitioner ignores the fact that in Brown v. Hartlage it was recognized that candidate commitments enhance the accountability of government officials to the people that they represent, and assist the voters in predicting the effect of that votes.

This Court also held in Brown v. Hartlage that some promises are universally acknowledged as legitimate, indeed indispensable to decision making in a democracy.

If in my remaining time I could speak very briefly to the issue of judicial elections, States throughout our Nation employ many different methods of selecting and retaining judges.

Every method has its advantages, and of course plenty disadvantages.

California has opted for a system where we have retention elections, and in some cases contested elections.

The necessary result of that selection is that there will be discussion about judges, discussion of their records, discussion of their qualifications.

The asserted threat to judicial independence, of which petitioners speak of, is attributable not to the fact that political parties may participate in that process, but rather to the underlying decision to subject judges to elections in the first place.

Perhaps the most dramatic episode of the asserted threat to judicial independence was in 1986 retention elections in which three justices of our supreme court were defeated.

$7 million were raised by various special interest groups to defeat those justices, and it was, there were commercials, there were discussions focused on their views on the record, and specifically on the death penalty.

Voters cast those three justices out of office and, as Justice Groton wrote in adjudicature article, the polls indicated that the basis for casting those three justices out was not integrity or competence, but rather their death penalty position.

I raise this issue because political parties in 1986 did not play a role in those elections, and that illustrates the gross under-inclusiveness of this statute.

Petitioner also ignores the fact that both Bridges v. California and Craig v. Harney teach that we should presume that judges are able to withstand criticism and are able to withstand pressures in elections.

Even the California Judges’ Association, which adopted the California Judicial Code, has the same presumption.

In the Judicial Code it states, and I quote,

“judges should be unswayed by partisan interests, public clamor, or fear of criticism. “

end quotes.

I submit that to assume that judges are not persons of fortitude, able and willing to withstand the pressure of the electoral marketplace, is to do them a great disservice.

In closing I would submit to this Court that First Amendment jurisprudence teaches us that the free flow of information, particularly with respect to candidacies, particularly with respect to governmental affairs, is essential to our democracy and must be protected.

I submit that it would be wrong as a matter of law and as a matter of public policy to silence political parties on the very issue that they were formed to address.

I would request that the Ninth Circuit’s decision be affirmed.

Thank you.

William H. Rehnquist:

Thank you, Mr. Chao.

William H. Rehnquist:

Mr. Aftergut, do you have rebuttal?

You have 4 minutes remaining.

Dennis Aftergut:

I do, Mr. Chief Justice.

First a couple of very quick just factual points.

Justice Stevens, it was this part of the case which arose in the context of a… of an endorsement that was sought to be placed inside the voter pamphlet, as the third cause of action states.

And I don’t remember which Justice asked the question about whether this was, 6(b) was the only basis for taking that endorsement out, but California Elections Code section… now I seem to have lost it, 10,012, states that the… a candidate statement shall not include the party affiliation of the candidate or membership of activity in partisan and political organizations.

John Paul Stevens:

And that provision is not challenged in this case?

Dennis Aftergut:

That’s correct, Your Honor.

The point that was made about the Democratic Party, if it collects 1 percent of the vote, the State makes the party remain an official party, I submit is an absurd proposition.

If the party does not wish to be an official party and participate in the primary system, it can collect 10 percent of the vote, the State does not force it to participate in the party system.

There was a question about corruption being the only justification.

Corruption has not been the only justification for upholding State regulations of First Amendment rights.

The ballot access case is Jenness, Storer, and so forth, American Party v. Texas, v. White.

Those are cases which deal with what is at issue here, a State’s structuring of its electoral system.

And what those cases recognize is that when the First Amendment, when the associational rights and the rights of political groups to communicate with their members, when the First Amendment interests meet the practical realities of structuring a governmental system, the Court looks at the structural system with greater deference and tends to uphold those unless they are arbitrary or unreasonable.

And that’s basically what all of the arguments of, my opponents ignore is the structural interest that section 6(b) serves.

And as an example, Mr. Chao says that it’s, he’s very hard pressed to distinguish this case from Eu, that is Eu doesn’t refer to nonpartisanship or partisanship.

But if the Court looks at how Eu justified, how it rejected the compelling interest that the State offered, the Court rejected the Attorney General of California’s reliance on Storer for the proposition that the measure there promoted political stability.

The Court said this measure only promotes party stability, not political stability.

And what the Court said is that Storer does not stand for the proposition that a State may enact election laws to mitigate intra-party factionalism during a primary campaign.

And the Court said preserving party unity during a primary is not a compelling State interest.

We’re not trying to preserve party unity.

We’re trying to preserve California’s system of nonpartisanship.

And basically the danger here that we seek to avoid is that parties that have chosen to accept State conferred benefits have an enhanced voice.

The State weighs in.

And particularly where those… where that advantages converges in single party localities, they… parties can skew the debate.

It’s not that parties have an equal voice.

Parties have an advantage by the State.

William H. Rehnquist:

Thank you, Mr. Aftergut.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.