Wednesday, July 13, 2011

Kunde v. Seiler (Cal. Ct. App. - July 13, 2011)

Yesterday I was doing an oral argument before the Court of Appeal in a pro bono case and there were two cases before mine, so -- having nothing else to do -- I listened intently.  One of the two was an election case that concerned the legality (and constituionality) of California allowing political parties to insert mailers in the sample voter ballots at no marginal cost.  It was an interesting case, and the lawyers were good.

This morning, less than 24 hours later, the Court of Appeal published this 32-page opinion.  Which is pretty rapid.  As well as proof positive that oral argument often doesn't matter much, since the entire opinion was clearly written before the argument and it's likely that not a single word changed.

(I'm not necessarily blaming the Court of Appeal in this regard; if you're not going to change the opinion, there's no reason to delay its publication merely to make it less obvious that oral argument didn't matter.  Nor was the opinion a surprise; the justices asked extremely few questions at oral argument, so it was pretty clear how it was going to come out.  But for those who think that the structure of the California Court of Appeal makes oral argument a useless formality, this is a pretty good example of that position.)

For what it's worth, I think the Court of Appeal gets this one right.  And I say that even though I'm somewhat sympathetic with the losing party's position.

Elections Code 13305 allows political parties to ask their members for contributions by including a one-page letter in the sample ballot mailed to registered party members, and all they have to pay is the marginal cost of inserting that page.  Because that one page rarely adds appreciable weight to the package (and hence does not change the postage cost), most of the time, they basically get to send out the request for free.  That's a pretty big advantage to recognized parties.

But it's an even bigger advantage, when, as here, the party doesn't just ask for contributions (nor, indeed, is that even a big point of the insert), but rather tells people how to vote in the election at issue; e.g., which candidates in an allegedly "nonpartisan" election the voter should vote for and how they should vote on the various initiatives and referenda on the ballot.  There's no doubt whatsoever that this wasn't the intent of the statute, which is geared towards contributions.  But the Court of Appeal's also correct that the statute does not expressly disallow such communications, and since it expressly disallows others (e.g., attacks on other parties), the Court of Appeal's decision makes sense.  Nor do I think this is a First Amendment violation, as it's true that the state is "sponsoring" (in a way) the message, but as long as the party pays the marginal cost of this speech -- which it does -- that's reasonable.  Sure, it favors recognized parties over other entities.  But so do a variety of other election statutes, and that's permissible under the First Amendment.  So as a matter of statutory and constitutional law, I think the decision makes sense.

Which is not to say that I think it's right that political parties should be permitted to do this.  In fact, I think it fairly clear they shouldn't be.  Asking for contributions is one thing.  Articulating partisan positions in official ballot materials in a nonpartisan election is another.  There's no reason for the state to effectively subsidize the latter, and ample reason for them not to.  So I see where the petitioners are coming from.

But this is a matter for the Legislature.  Perhaps unfortunately, but it is.  You can see why a more aggressive theory of the First Amendment might be potentially appealing here.  There are ample reasons for the political process to fail on this issue, and any fairminded public choice model clearly reveals why the elected branches can't reasonably be relied upon to handle this issue properly.  Do the Democratic and Republican Parties benefit by this electoral statute?  Sure they do.  Do they have any incentive to diminish their own impact on the electoral process?  Nope.  So is there any reason for the members of the Legislature, pretty much all of whom are members of these parties, to modify Section 13305 so it does what it's intended to do?  No.

You could potentially rely on the judiciary to correct these public choice failures.  But our system doesn't do that, which instead operates within very limited constitutional constraints.  And within those constraints, which are based upon fundamental democratic assumptions, the Court of Appeal gets this one right.

And doesn't take much time to do so.