Court OKs Party Role in Nonpartisan Races

In a precedent-setting decision, the U.S. 9th Circuit Court of Appeals on Tuesday struck down a state ban on political party endorsements in elections for judgeships and other nonpartisan offices, a ruling that could have a significant impact on California politics.

The decision allows the Democratic, Republican and other political parties to make endorsements in races to elect county supervisors, city councils, mayors, school boards and superior and municipal court judges, among others.

“The role of political parties has been dramatically enhanced,” said Edmund G. Brown Jr., chairman of the California Democratic Party. “This decision constitutes a charter of freedom for political parties within California.”

Since the days of reform Gov. Hiram Johnson 80 years ago, California has avoided injecting formal party endorsements into these races in the belief that this decreases the opportunity for corruption of the judiciary and local officials.

But the 9th Circuit Court rejected that argument. The ban on partisan endorsements by political parties “illegally restricts political speech” and thereby violates the First and 14th Amendments to the Constitution, said the majority opinion written by Judge Alfred T. Goodwin.

In the past, there have been some party endorsements in nonpartisan races. However, a state constitutional amendment approved as Proposition 49 by California voters in 1986 barred the practice. A series of suits led to Tuesday’s decision.

In April, 1988, U.S. District Judge Alfonso J. Zirpoli in San Francisco, responding to a 1987 suit filed by 10 individuals and an organization called Election Action, issued an injunction prohibiting San Francisco from keeping party endorsements off the ballot in some nonpartisan races.

In July, 1989, a three-judge panel of the 9th Circuit overruled Zirpoli, holding that California’s compelling interest in preserving its nonpartisan system of government for local and judicial offices justified the ban on party endorsements. The plaintiffs asked for a review by a larger panel of 9th Circuit judges and secured a hearing from 11 judges.

Those judges voted 8 to 3 to permit party endorsements, despite pleas that it would corrupt the political process in California.

To support his majority decision, Goodwin cited language from a recent Supreme Court decision: “Advocacy of the election or defeat of candidates . . . is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy or defeat of legislation.”

The 9th Circuit majority rejected the argument that political endorsements in nonpartisan races “create the same risks of corruption or appearance of corruption” that the Supreme Court has previously determined justify governmental regulation of election spending.

“The rationale underlying ‘the long history of regulation of corporate political activity’ . . . simply is not available as a justification for the complete suppression of speech by political parties, regardless of whether the elections in question are partisan or nonpartisan in nature,” Goodwin wrote.

Judge Pamela A. Rymer’s dissent acknowledged that the ban impinges on First Amendment rights, but asserted that it should be upheld because California has a compelling interest in maintaining the structure of its nonpartisan government for judicial, school and municipal offices.

She said that the case was clearly distinguishable from a 9th Circuit decision which gave political parties the right to make endorsements in primaries for partisan offices. “The partisan primary election is designed to ensure that party nominations are within party lines, thus preserving the integrity of the party,” Rymer wrote.

“The purpose of an election within the nonpartisan structure has nothing to do with settling the internal divisions within a political party,” she said. “Nonpartisanship envisions ‘direct representation of citizens rather than indirect representation through parties as intermediaries,’ ” Rymer added.

A particularly sharp debate over the impact of endorsements in judicial races emerged in separate opinions written by Judge Arthur Alarcon, who dissented, and Judge Stephen Reinhardt, who voted with the majority.

Alarcon quoted philosopher George Santayana, playwright William Shakespeare and President Theodore Roosevelt in asserting that the process of electing judges in California would be seriously corrupted by partisan endorsements. His lengthy opinion referred to railroad and land barons who corrupted municipal politics in California in the early 20th Century until reforms were imposed by Hiram Johnson in 1910.

Reinhardt said that the reforms had left open the possibility of other means of corruption. He stressed that since California already elects judges, the process is inherently political. Reinhardt said that allowing partisan endorsements would be better and more democratic than simply allowing judges to “buy” their way on to slate mailers, one of the common means used to campaign in judicial races now.

The plaintiffs’ attorney, Arlo Hale Smith, who is the son of the Democratic Party candidate for attorney general in November’s election, said he was delighted by the result. “It’s a great victory for the First Amendment,” said the San Francisco lawyer.

He said he thought the decision would result in more party endorsements being made in local school and judicial races, “but frankly that’s happening indirectly already because there are loads of people who put out slate mailers. It’s only been the official parties not taking a stand.”

San Francisco City Atty. Louise Renne said she was disappointed by the outcome and would decide within the near future whether to appeal the decision to the U.S. Supreme Court. Like Alarcon, she expressed particular concern about a potential negative impact on judges.

“To a certain extent, it has been the tradition to remove judges from a political setting in California,” she said. “This is a step back. If you have to go and get the endorsement of a political party, that is a setback to a judge’s independence.”

Nelson Polsby, a political science professor at UC Berkeley and director of the university’s Institute of Governmental Studies, hailed the decision, contending that it would boost the fortunes of political parties and curb the power of other special interests. “Part of having a free democratic society is the right of people to back people whom they support,” Polsby said.

“The issue comes down to whether political parties are uniquely situated in such a fashion as to be barred from this normal right of association and endorsement.”

Polsby said arguments that party endorsements would lead to corruption of judges and municipal officials are unrealistic. In fact, he said special interests, such as big business, “have learned to play very effectively under Hiram Johnson’s rules.”

The majority opinion was joined by Judges Reinhardt, J. Clifford Wallace, Thomas Tang, Mary M. Schroeder, Melvin Brunetti, Alex Kozinski and Edward Leavy. Judges Alarcon and Ferdinand Fernandez joined in the dissent.