Ban on Party Support in Nonpartisan Races Upheld

In a decision of political significance in California, a federal appeals court Monday upheld a state ban on political party endorsements in elections for judges and other nonpartisan offices, stating in strong language that the provision was needed to prevent parties from dominating these elections.

To allow parties to endorse, support or oppose candidates for judge or other nonpartisan offices would “ring down the curtain on state, local and municipal nonpartisanship,” wrote Judge Stephen Trott in a 2-1 decision issued by the U.S. 9th Circuit Court of Appeals, whose jurisdiction covers nine western states, including California.

Parties would “be able to close the door to elective office to independent-minded persons who refuse to toe the party line,” he added.

The decision reversed a ruling by U.S. District Judge Alfonso J. Zirpoli of San Francisco and upheld a state constitutional amendment approved as Proposition 49 by California voters in 1986. The case arose out of an attempt by 10 individuals and an organization called Election Action in San Francisco to establish the right of party endorsements in nonpartisan races in 1987.

The court ruled that the state ban did not violate either 1st Amendment rights of free speech or 14th Amendment guarantees of equal protection.

Trott wrote in detail about the history of California politics in his decision.

“We may trace the roots of nonpartisanship in California to a time (the early years of the 20th Century) when local government, including the judiciary and public school boards, appears to have been dominated by partisan political bodies which were largely under the thumb of aggressive special interest, including the Southern Pacific Railroad,” which at the time was called “the Octopus,” Trott wrote in a lengthy opinion.

Constitutional changes were enacted in 1910 that made all local government offices and judicial positions nonpartisan.

In 1984, however, a question arose on whether political parties could make endorsements in such races after the State Supreme Court ruled that there was no ban on a political party taking a position in judicial retention elections. The move stemmed from the conservatives’ desires to unseat then-California Chief Justice Rose Elizabeth Bird and some of her colleagues.

Trott said in his ruling that situation was distinct from the question in this case. And he distinguished the issues in the case from a U.S. Supreme Court ruling earlier that permits political parties in California to endorse candidates in their own partisan primaries.

Among the principal reasons for upholding the ban, Trott wrote, is that the state law “expanded, rather than constricted, the political process, did not unnecessarily restrict political debate . . . and compared favorably with similar 1st Amendment restrictions previously approved by the Supreme Court.”

Dennis Aftergut, chief assistant city attorney for San Francisco who represented the city’s mayor, Board of Supervisors and other officials who were defendants in the case, said he was “delighted” with the decision. “Nonpartisan local government is an 80-year-old democratic tradition in California. This decision keeps that tradition alive.”

Appeals Court Judge Joseph T. Sneed concurred in the ruling, but Judge William C. Canby Jr. dissented. He said the majority decision upheld a state exercise in “political paternalism.”