Elections Code
In the June 2010 direct primary election, the Party made a request to San Diego County Registrar of Voters Deborah Seiler (the Registrar) that a ballot insert from the Party (the proposed insert) be included in the sample ballots sent to registered Republican voters in San Diego County supervisorial districts 1, 4 and 5.
The request was made pursuant to former section 13305, which at the time provided:
"(a) In each county, the county central committee of each qualified political party[
"(b) Each envelope or letter shall contain a space for the name and address of the contributor, and shall contain language which informs the contributor of the manner in which the money received shall be spent. The language on the envelope or letter shall not contain words critical of any other political party.
The proposed insert was set forth on two sides of a standard-size piece of paper, with each side of the paper split into two columns, apparently intended to be folded into a booklet. One of the four columns was a fundraising letter from the Party, signed by its chairman. The letter opened by stating that the Party "supports the candidates and ballot measures featured inside" as "[e]ach is committed to protecting taxpayers and stabilizing the finances of local government," and stated that "[y]our vote for these candidates and ballot measures can help get San Diego back on track." The letter also asked that contributions to the Party be made by phone or through the Internet to support "voter registration activities, Republican candidates for local and state office, voter education and member communication programs."
The other three columns of the proposed insert described candidates and ballot measures supported by the Party. One column was titled "Voter Guide for Local Propositions" and set forth the Party's position on one statewide proposition, local measures from San Diego County, the City of San Diego, the City of Chula Vista and the City of Oceanside, and included advocacy for the Party's position. The remaining two columns identified candidates that the Party supported for local nonpartisan offices:
The Registrar posted the proposed insert for public comment. Kunde, who is a voter registered with the Democratic Party and resides in San Diego County supervisorial district 4, filed a petition for writ of mandate on April 5, 2010, against the Registrar and named the Party as a real party in interest. The petition sought an order prohibiting the Registrar from including the proposed insert in the mailing of the sample ballot. Kunde argued that
The petition was set for hearing on April 13, 2010. Kunde argued in his memorandum of points and authorities in support of the petition that (1) the proposed insert did not comply with section 13305 because it did not contain "a space for the name and address of the contributor" as statutorily required (§ 13305, subd. (b)); (2) section 13305 does not authorize an insert containing electioneering materials, such as political advertisements for candidates and measures; and (3) inclusion of the proposed insert containing electioneering materials would violate constitutional guarantees of equal protection and free speech by excluding some persons from a government subsidized forum.
The Party opposed the petition. It did, however, concede that the proposed insert lacked a space for the name and address of the contributor as required by section 13305, subdivision (b), and it therefore submitted a revised proposed insert that contained a small form at the bottom of one of the columns which a contributor could cut out, complete and mail in with a contribution.
Evidence submitted to the trial court included an invoice that the Registrar sent to the Party, charging it approximately $23,000 for the expense of setting up and printing the proposed insert. It appears that the Party was not charged any postage costs by the Registrar because the one-page insert did not increase the cost of postage for the sample ballot.
The trial court granted the petition in part and denied it in part. Specifically, the trial court granted the petition insofar as it ruled that the Party would be required to use the revised proposed insert that contained a space for the contributor's name and address. It denied the petition in all other respects, concluding that section 13305 did not prohibit the Party from including endorsements of candidates and measures in the proposed insert. The trial court did not expressly discuss Kunde's constitutional arguments.
Kunde appeals from the judgment, asserting the same arguments that he did in the trial court—namely that section 13305 does not permit electioneering materials, and that if section 13305 is interpreted to permit electioneering materials such as those included in the proposed insert, it would violate the equal protection and First Amendment rights of persons who are not given access to the electioneering forum created by section 13305. Both the Party and the Registrar have filed briefs in opposition.
However, as the Party also notes, an exception to the doctrine of mootness exists where the issues presented "are of general public interest and likely to recur." (Clark v. Burleigh (1992) 4 Cal.4th 474, 481 [14 Cal.Rptr.2d 455, 841 P.2d 975] (Clark).) This exception is often applied in election cases. "`Under certain conditions, disputes concerning election procedures are properly reviewable by an appellate court even though the particular election in question has already taken place.' [Citation.] Even though the relief requested is no longer available, review may be appropriate if the contentions raised are of general public interest `and are likely to occur in future elections in a manner evasive of timely appellate review.'" (Huening v. Eu (1991) 231 Cal.App.3d 766, 770 [282 Cal.Rptr. 664]; see also Unger v. Superior Court (1984) 37 Cal.3d 612, 614 [209 Cal.Rptr. 474, 692 P.2d 238].)
We conclude that the exception is applicable here. The issue of whether an insert included pursuant to section 13305 may contain electioneering materials is a matter of general public interest that is likely to recur in subsequent
The Party argued unsuccessfully in the trial court that Kunde lacked standing to bring his petition because he was not beneficially interested in the outcome as required by Code of Civil Procedure section 1086. (Code Civ. Proc., § 1086 [a writ of mandate issues "upon the verified petition of the party beneficially interested"].) The Party renews its standing argument on appeal, advancing it specifically in the context of Kunde's argument that section 13305 is unconstitutional as applied in this case, but not in connection with his argument that the proposed insert was impermissible under section 13305.
The Party argues that because Kunde is "neither a registered voter who has declined to state a party affiliation, nor a Republican candidate allegedly not endorsed in the [proposed insert]," Kunde's own "right to vote, speak or associate" has not been injured by the inclusion of the proposed insert. The Party contends that, therefore, Kunde is not beneficially interested as required for a petitioner seeking a writ of mandate (Code Civ. Proc., § 1086). The Party also argues that although Kunde contends he has standing as a taxpayer under Code of Civil Procedure section 526a to seek a judgment "restraining and preventing any illegal expenditure of . . . funds" by the county (Code Civ. Proc., § 526a), no additional funds were expended by the Registrar in connection with the proposed insert.
The applicable facts are not in dispute, and the sole issues before us are legal questions concerning the interpretation of section 13305 and its constitutionality as applied here. We therefore apply a de novo standard of review. (Carson Citizens for Reform v. Kawagoe (2009) 178 Cal.App.4th 357, 366 [100 Cal.Rptr.3d 358] [statutory interpretation]; Alviso v. Sonoma County Sheriff's Dept. (2010) 186 Cal.App.4th 198, 204 [111 Cal.Rptr.3d 775] [as-applied constitutional challenge].)
We first address Kunde's contention that the proposed insert was not authorized by section 13305 because electioneering materials are not permitted to be included in the one-page letter or contributor envelope allowed by that provision.
Kunde contends that "[s]ection 13305's plain meaning is readily apparent— the statute establishes a narrowly defined method by which political parties can solicit contributions from their members . . .," and thus no electioneering content is permitted. To support his narrow interpretation of the statute, Kunde points out that "[t]he statutory text does not mention candidate endorsements, ballot measure advocacy, or any other form of electioneering." In essence, Kunde argues that because section 13305 does not expressly permit electioneering materials, they are prohibited.
As we will explain, neither the statutory language nor basic principles of statutory interpretation support Kunde's reading of the statute. On the contrary, as the trial court sensibly pointed out, the statute's plain language supports the opposite conclusion: because the Legislature chose to specify certain material that was not permitted in the one-page letter, all other content is permitted even if not specifically identified in the statute.
Further, even were we to accept, as Kunde argues, that the statute's sole purpose is to give political parties a method to solicit contributions from their members, the inclusion of electioneering materials is not necessarily inconsistent with that purpose. As explained in a declaration submitted by the Party's executive director in support of the Party's opposition to the writ petition, there is a direct connection between the electioneering materials and the Party's solicitation of contributions. "The purpose of these endorsements is to demonstrate to voters that the [Party] supports candidates and measures that reflect the [Party's] ideals, principles and values, and that their contributions will be well spent on the support of such candidates and measures." This strategy appears to be a reasonable method of soliciting contributions, and nothing in the statutory language prohibits it. Therefore, we are not persuaded that merely because the statute appears to exist for the purpose of facilitating the solicitation of contributions, those solicitations cannot also contain electioneering materials. The Legislature wisely has left the content of the solicitations to the judgment of the local political parties, who are in the best position to determine an effective solicitation strategy.
Kunde also rests his statutory interpretation on the principle set forth in Stanson v. Mott (1976) 17 Cal.3d 206 [130 Cal.Rptr. 697, 551 P.2d 1] (Stanson), that absent a "clear and explicit legislative authorization, a public agency may not expend public funds to promote a partisan position in an election campaign." (Id. at pp. 209-210.) Based on this principle, Kunde argues that we may not interpret section 13305 to permit the inclusion of electioneering materials in a political party's one-page letter or contributor envelope unless we conclude that the statute contains a clear and explicit authorization of such materials. As we will explain, the principle set forth in Stanson is not applicable here.
Stanson considered allegations that the director of the state Department of Parks and Recreation had authorized the agency to spend public funds to promote the passage of a bond issue that would fund the acquisition of parkland. (Stanson, supra, 17 Cal.3d at pp. 209, 211.) Stanson recited both the "general principle that expenditures by an administrative official are proper only insofar as they are authorized, explicitly or implicitly, by legislative enactment" (id. at p. 213), and the more specific principle that an agency may not expend funds for "partisan campaign purposes" (id. at p. 217) unless such authorization is given "`in clear and unmistakable language'" (id. at p. 216). Stanson found no such clear and unmistakable language in any of the statutory provisions authorizing the Department of Parks and Recreation to spend funds, and thus it concluded that the agency could not "spend public funds to campaign for the passage of the bond issue." (Id. at p. 220.) As we will explain, Stanson does not apply because the Registrar neither (1) expended public funds nor (2) promoted a partisan position in allowing the proposed insert in the sample ballot.
First, as explicitly required by section 13305 itself, the inclusion of the proposed insert did not involve the expenditure of public funds. The Party paid for all the costs of printing the proposed insert, and it would have been required to pay for additional postage costs had any been incurred. Because there was no expenditure of public funds, Stanson does not apply. (See Keller v. State Bar (1989) 47 Cal.3d 1152, 1171 [255 Cal.Rptr. 542, 767 P.2d 1020] (Keller) [speech by bar president with the primary purpose of assisting in the retention campaign of justices was not covered by Stanson because "[t]he speech itself . . . cost the State Bar nothing . . .," but press releases and educational materials that the bar paid to publish were covered].)
Kunde argues at length that by permitting a political party to include in the sample ballot mailing a one-page letter or contributor envelope containing
The Registrar's inclusion of the proposed insert in the sample ballot mailing does not amount to the Registrar "`mount[ing] an election campaign'" (Vargas v. City of Salinas, supra, 46 Cal.4th at p. 36), and there is no indication that the Registrar intended to "assist in the election campaign." (Keller, supra, 47 Cal.3d at p. 1172.) Instead, section 13305 operates on a nonpartisan and neutral basis. The Registrar has no involvement in selecting the message contained in the communications made by the political parties to their registered voters, and the proposed insert at issue here states multiple times that it is from the Party, and that it was paid for by the Party. Under these circumstances, the Registrar does not "promote a partisan position in an election campaign" (Stanson, supra, 17 Cal.3d at pp. 209-210) by allowing a political party, pursuant to section 13305, to include a one-page letter or contributor envelope containing electioneering materials in a sample ballot mailing.
Therefore, because Stanson does not apply, we reject Kunde's argument that absent a clear and explicit statutory authorization, section 13305 does not
Apart from his reliance on Stanson, Kunde points to other statutory provisions and a provision of the state Constitution to support his interpretation of section 13305.
First, Kunde relies on Government Code section 54964, subdivision (a), which states that "[a]n officer, employee, or consultant of a local agency may not expend or authorize the expenditure of any of the funds of the local agency to support or oppose the approval or rejection of a ballot measure, or the election or defeat of a candidate, by the voters."
Kunde argues that when section 13305 is interpreted to allow a political party to include electioneering materials in the sample ballot sent to its registered voters, the statute—as applied—violates both the First Amendment to the United States Constitution and the Fourteenth Amendment's equal protection clause.
Kunde's First Amendment argument centers on the contention that section 13305—if interpreted to allow electioneering materials—creates a limited public forum, and that all groups and persons not able to include an insert in the sample ballot mailing are unconstitutionally prohibited from speaking in that forum.
The forum at issue here is the mailing, sent by the Registrar, containing the sample ballot. The parties do not agree on whether that mailing is properly characterized as a limited public forum, or rather as a nonpublic forum.
Further, the barrier to access is reasonable in light of the apparent purpose of section 13305, which is to facilitate local political parties in communicating with and soliciting contributions specifically from their own members. (See Timmons v. Twin Cities Area New Party (1997) 520 U.S. 351, 366 [137 L.Ed.2d 589, 117 S.Ct. 1364] (Timmons) ["States . . . have a strong interest in the stability of their political systems."].) That purpose would not be served by allowing other groups or persons to have access to the mailings, and it is accordingly reasonable to deny them access.
The next issue is whether, as Kunde contends, section 13305, as applied, violates the equal protection rights of groups and persons who are not permitted access to the sample ballot mailing. According to Kunde, by permitting qualified political parties to have the valuable privilege of access to the sample ballot mailing, section 13305 impermissibly favors those parties and, in turn, puts other groups and persons at a disadvantage. Recognizing that his equal protection argument also depends on the right to association under the First Amendment, Kunde contends that the equal protection clause of the federal Constitution's Fourteenth Amendment is implicated because it "burden[s] the core political speech activity and associational rights" of excluded groups and persons under the First Amendment. (See Buckley v. Valeo (1976) 424 U.S. 1, 15 [46 L.Ed.2d 659, 96 S.Ct. 612] ["The First Amendment protects political association as well as political expression."].)
The United States Supreme Court continues to apply the Anderson analysis in election law cases. (Crawford v. Marion County Election Bd. (2008) 553 U.S. 181, 189-190 [170 L.Ed.2d 574, 128 S.Ct. 1610]; Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 451-452 [170 L.Ed.2d 151, 128 S.Ct. 1184] (Washington State Grange).) Further, although many of the cases applying the Anderson analysis—like Anderson itself—dealt with restrictions on access to the ballot, that analysis has also been applied in cases, such as this, where it is alleged that a statute provides an unfair advantage to certain political groups by giving them governmental benefits or subsidies. (See Green Party of Michigan v. Land (E.D.Mich. 2008) 541 F.Supp.2d 912, 915-916 [applying Anderson analysis when determining constitutionality of a statute allegedly providing an advantage to certain political parties by providing only them with voter political party preference declarations]; Moderate Party of Rhode Island v. Lynch (D.R.I. 2011) 764 F.Supp.2d 373 [applying Anderson in a challenge to the constitutionality of statute distributing funds to political parties on an allegedly unequal basis]; Libertarian Party of Indiana v. Marion County Bd. of Voter Registration (S.D.Ind. 1991) 778 F.Supp. 1458, 1462-1463 [applying Anderson analysis in a challenge to the constitutionality of statute providing that voter registration lists be furnished only to major political parties].)
We therefore turn to an application of Anderson's analytical approach to determine the constitutionality of section 13305, as applied in this case to allow the inclusion of electioneering materials.
In conducting the balancing mandated by Anderson, the first step is to determine "`the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.'" (Burdick, supra, 504 U.S. at p. 434.) Kunde contends that, as applied here, "section 13305 imposes a severe burden on the exercise of fundamental speech and associational rights" because (1) "by providing [the
Our inquiry is whether these are "`severe'" burdens on First Amendment rights, justifying the application of a higher level of scrutiny (Burdick, supra, 504 U.S. at p. 434), or are only "modest burdens" of a "`reasonable, nondiscriminatory'" nature (Washington State Grange, supra, 552 U.S. at p. 452). As we will explain, we conclude that the burden here on First Amendment rights, if it exists at all, is light.
First, as to the contention that the speech and associational rights of other groups and persons are burdened because the Party has been given a valuable privilege, we do not view the burden as being severe. Although they are denied access to the privilege of participating in the sample ballot mailing, other groups and persons are still able to campaign fully through their own mailings and other means of expression, and are not subject to any other restrictions. In one case where the Supreme Court concluded that the burden on First Amendment rights was not severe, it pointed out that the challenged laws, "do not restrict the ability of [the allegedly burdened political party] and its members to endorse, support, or vote for anyone they like. The laws do not directly limit the party's access to the ballot. They are silent on parties' internal structure, governance, and policymaking. . . . They also limit, slightly, the party's ability to send a message to the voters and to its preferred candidates." (Timmons, supra, 520 U.S. at p. 363.) The same is true here.
Further, any burden on the First Amendment rights of other groups and persons is "`reasonable'" and "`nondiscriminatory.'" (Burdick, supra, 504 U.S. at p. 434; Washington State Grange, supra, 552 U.S. at p. 452.) There is no indication of any intention to discriminate against other persons and groups by giving political parties access to the sample ballot mailing to communicate with their members. And, as we have discussed above in connection with the limited public forum issue, it is reasonable for section 13305 to restrict other persons and groups from access to the sample ballot mailing because the apparent purpose of section 13305 is to allow political parties to communicate with and raise funds from their own members, in the mailing of a unique sample ballot sent only to those members. That purpose would not be served by granting access to other persons and groups.
The next analytical step is to determine whether "`the State's important regulatory interests are generally sufficient to justify' the restrictions." (Burdick, supra, 504 U.S. at p. 434.) "[T]he State's asserted regulatory interests need only be `sufficiently weighty to justify the limitation' imposed on the party's rights. . . . Nor do we require elaborate, empirical verification of the weightiness of the State's asserted justifications." (Timmons, supra, 520 U.S. at p. 364, citation omitted.)
Here, as we have explained, the purpose of section 13305 appears to be the facilitation of a political party's communication and solicitation of contributions from its members. As the Party explains, this serves the legitimate state interest of increasing political participation and promoting the vibrancy of the political system. "States . . . have a strong interest in the stability of their political systems." (Timmons, supra, 520 U.S. at p. 366.) That interest is served by section 13305's facilitation of a political party's ability to communicate with and solicit funds from its members. We therefore conclude that the Legislature's purpose in enacting section 13305 is sufficient to justify any burden that it creates on the associational rights of groups and persons not permitted to participate in the sample ballot mailing.
The judgment is affirmed.
McIntyre, Acting P. J., and O'Rourke, J., concurred.