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Perspectives (Column)
May Judicial Candidates Tout Political Party Endorsements in Candidate Statements?
By Roger M. Grace
One of the most captivating legal issues to emerge this year, among those that weren’t resolved, was presented in a writ proceeding in connection with a race for the San Diego Superior Court. The issue was whether someone running for judicial office may allude to a political party’s endorsement in a candidate’s statement.
No decision on the merits came because the writ petition was deemed untimely.
Candidate statements are published, for a fee, along with the sample ballot. Such statements have not been purchased with frequency in recent elections in Los Angeles County because, in light of the number of voters here, the cost is so high—about $120,000—that campaign funds are better spent in other ways. In other counties, including San Diego where the price is $16,003, the purchase of these ads is commonplace.
Elections Code §13307(a)(1), applicable to nonpartisan offices, says that a candidate statement “shall not include the party affiliation of the candidate, nor membership or activity in partisan political organizations.”
One candidate for the bench in San Diego is court Commissioner Peter Singer. I mentioned him on Tuesday in connection with his writ petition challenging his opponent’s ballot designation; civil practitioner Pete Murray is running as “Attorney/Criminal Prosecutor.” Singer also contested in that petition Registrar of Voters Cynthia L. Paes’s action in striking from a list of endorsers in his candidate statement the words, “San Diego Democratic Party.”
Those words imply, of course, that Singer is a Democrat—something he could not come right out and say in the statement, if it were so, in light of §13307(a)(1). On the other hand, reference to the Democratic Party endorsement does not unmistakably identify him as a member of that party.
“Please be aware that I have not disclosed my party affiliation, and the organization is listed simply as an endorsing entity, just like the San Diego/Imperial Counties Labor Council,” Singer advised Paes in an email of Aug. 16, adding:
“I am not a member of the Democratic Party (or any of its affiliates), nor am I engaged in any partisan activities of the organization. Likewise, I am not a member of any political organization.”
He said in his verified writ petition:
“Petitioner is not a member of the Democratic Party (or any of its affiliates), nor engaged in any partisan activities of any political organization.”
Was Paes justified in editing (or was it censoring?) the candidate statement?
★
Art. VI, §6(a) of the California Constitution provides that “All judicial…offices…shall be nonpartisan.”
For a while, Article II §6(b) provided: “No political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office.”
Voters enacted that provision in 1986. The Ninth U.S. Circuit Court of Appeals, sitting en banc, invalidated it in 1990, but the U.S. Supreme Court vacated that decision by granting certiorari, then deciding in 1991 that the issue was nonjusticiable because there was no live controversy.
Voters, in approving Prop. 14 on June 8, 2010 (the “open primaries” initiative), got rid of the ban on political party endorsements of candidates in nonpartisan races. These words were added: “and the candidate’s party preference shall not be included on the ballot for the nonpartisan office.”
Under the Ninth Circuit’s 2012 decision in Sanders County Republican Central Committee v. Bullock, a political party has a First Amendment right to make endorsements in judicial races.
But that doesn’t mean that a state may not prohibit a judicial candidate from trumpeting such an endorsement. In its 2017 decision in French v. Jones, the Ninth Circuit upheld the constitutionality of a provision of the Montana Code of Judicial Conduct that provides: “[A] judge or judicial candidate shall not...seek, accept, or use endorsements from a political organization, or partisan or independent non-judicial office-holder or candidate....”
Writing for a three-judge panel, then-Judge (now Senior Judge) Jay Bybee said that “Montana has compelling interests in an impartial and independent judiciary” and the rule “is narrowly tailored to those interests because it strikes an appropriate balance between a candidate’s speech and Montana’s interest in an independent and impartial judiciary.”
So, if California could bar a judge from making any reference to an endorsement of a political party, it stands to reason that it could impose a far less drastic restriction in barring a reference to such an endorsement in a candidate statement.
It could (at least under the Ninth Circuit’s view) do that. But it hasn’t. It has barred an aspirant for election to a nonpartisan office from referring in a candidate statement to a party affiliation or to partisan political activities in which he or she is engaged—nothing more.
Paes did what the Legislature has not authorized. Why?
★
The Office of San Diego County Counsel Claudia G. Silva prepared a response to Singer’s writ petition on behalf of Paes. It explains:
“The Registrar determined that to permit reference to a partisan endorsement would permit an ‘end-run’ around Section 13307, which precludes references to various types of partisan activity—not just party affiliation—in an election for a nonpartisan office. The evident purpose of Section 13307 is to not indicate to voters a partisan preference in a nonpartisan election, which would proscribe a partisan endorsement regardless of whether the candidate is registered with that party.”
Yet, if a candidate boasts in a statement, “the Democratic Party endorses me,” that’s simply not tantamount to a proscribed utterance that “I am a Democrat.” Singer expressly disavows in his email to Paes and in a writ petition that’s under penalty of perjury that he is. For the moment, we’ll assume he was telling the truth. Absent evidence to the contrary, Paes doubtlessly acted on the assumption that he was.
Democratic governors appoint Republicans and non-partisans to judicial posts. It would hardly be heresy for a Democratic county committee to endorse a non-Democrat for election to such office, under compelling circumstances. There was a judicial election in Los Angeles a few years ago in which the Mexican American Bar Association endorsed a non-Hispanic against a Hispanic.
Paes’s rationale that a listing of the San Diego Democratic Party as a supporter of Singer necessarily connotes a “partisan preference” on the part of Singer toward the Democratic Party is a non-sequitur.
★
Murray, as real party in interest, said in his answer to the writ petition:
“The statute clearly prohibits the use of, or reference to, any partisan political affiliation….The words of the statute are unequivocal…..The Legislature clearly is seeking to keep partisan politics out of the election of nonpartisan positions as best they can. And though time constraints have precluded the opportunity to research this issue more, it is [real party’s] belief and understanding that the exclusion of political party affiliation is a long- held and well-understood limitation on these type of Ballot Statements. That is why the Registrar so readily excluded it.”
Yes, the Legislature did bar reference to “any partisan political affiliation.” But Singer did not make reference to any party affiliation.
While it might be that the Legislature “is seeking to keep partisan politics out of the election of nonpartisan positions as best” as it “can,” that reflects the lawmakers’ objective. Courts look to what the Legislature has done, through its enactments, not what its goals are. The Legislature did not bar references in candidate statements to political party endorsements.
The candidate stuck in the barb that why Singer “feels the need to disown the Democratic Party is simply mind-boggling and may well be a bit of troubling news to the Democratic Party itself.”
★
Attorney Mike Gatto, a former member of the state Assembly, has this reaction to the striking of reference to Singer’s party affiliation:
“At stake here is the balancing of two important interests. On one side, you have a candidate seeking to communicate an endorsement in an efficient and cost-effective manner. On the other side you have a law designed to stop partisanship from further infecting every corner of every document, in this case, one published by the government. I understand both impulses.”
Political consultant Fred Huebscher remarks:
“Clearly Registrar is incorrect given the language of the Elections Code section. Why shouldn’t a candidate say ‘I am endorsed by Democratic Party?’ ”
A Los Angeles Superior Court judge provides these thoughts:
“It is lamentable that partisanship cannot be ignored if one seeks to become a nonpartisan judicial officer. If one seeks an appointment, the Governor clearly favors members of his own political persuasion and partisanship is the ticket to the bench. If one seeks election, it clearly pays to broadcast whatever connection one can claim to the dominant political party in the state.
“It pays, that is, as long as one does not attempt to broadcast that connection in an official ballot, sample ballot, or voter guide. At least not in San Diego County where the registrar interprets Elections Code Section 13307(a)(1)’s prohibition on a ballot statement from containing any reference to one’s ‘party affiliation …membership…[or] activity in partisan political organizations,’ as including an endorsement by a political party.
“I make no comment on the propriety or otherwise of the registrar’s interpretation. I do, however, question the integrity of the candidate for seeking to utilize an official ballot statement to broadcast, albeit perhaps obliquely, a connection to a political party. Perhaps I judge the candidate too harshly. It is, of course, entirely possible this candidate, like so many others who run afoul various provisions of the Elections Code, was unaware of the provisions of this section. Or could it be that the candidate’s intent was not to violate the letter of the law, but to simply skirt around it? Whichever way you look at it, and the candidate, it does not come up smelling of roses, does it?”
★
Singer comes up smelling foul, indeed, when an additional matter is considered—but I’ll get to that in the next column.
Wrapping up the discussion of candidate statements: Singer also contested Paes’s rejection of his plea that she snip from Murray’s statement a quote from the retired judge whose office is being sought. That was improper, he argued, because Elections Code §13307(a)(1) says that a statement is to include matter “expressed by the candidate himself or herself” and Murray’s statement includes words of a third person.
Reference to a candidate’s “own words” is ambiguous. Does that mean the statement must be in the first person? Few are. Does it require that the candidate personally draft the message? Requiring that would be absurd. There is no express prohibition on including quotes, and there’s no arguable reason to erect one.
The sentence in issue in 13307(a)(1) says that the statement “may include the name, age, and occupation of the candidate and a brief description, of no more than 200 words, of the candidate’s education and qualifications.” Paes’s response to the writ petition argues that the quotation is an endorsement and “endorsements relate to candidates’ ‘qualifications’ for office.”
Although the quote from the ex-judge is comprised of a boast as to the level of support for Murray in the local legal community and could reasonably be viewed as unrelated to his qualifications, the Court of Appeal for this district in 1980 in Loza v. Panish ordained that the word “qualifications” be read expansively, and in 1999, in Hammond v. Agran, Div. Three of the Fourth District Court of Appeal, said it even includes a candidate’s views on issues.
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