Metropolitan News-Enterprise


Friday, June 7, 2002


Page 1


Ninth Circuit Judges Question Why Candidate Cannot Be Designated as ‘Peace Activist’ on Ballot


By a MetNews Staff Writer


Two Ninth U.S. Circuit Court of Appeals judges questioned an attorney for the City of Santa Monica yesterday as to whether the city is violating the First Amendment rights of a political candidate by barring him from running under the designation “peace activist.”

“If that is what [Jerry Rubin] does for a living,” Judge Barry Silverman asked Deputy City Attorney Lance Gams, “why can’t he put it on the ballot?”

Rubin, 58, drew more than 5,000 votes in the 2000 council election, despite not having a ballot designation after the city clerk rejected the one he wanted to use. The official, relying on regulations issued by the secretary of state, concluded that “peace activist” is a status, rather than a “profession, vocation, or occupation” as required by Elections Code Sec. 13308.

Rubin told the clerk that he earns his living selling bumper stickers for various causes, including peace, Gams explained. Rubin said after court that he wants to use the “peace activist” designation at the next council election, set for November. Filing begins July 15.

But Gams told the judges that the Constitution does not compel the city to accept his designation because the ballot is not a public forum. The purpose of the designation, he explained, is to allow candidates to identify themselves and enable voters to avoid confusing the candidates with others who have the same or similar names.

The purpose of allocating a space for the candidate to list himself, he said, “is not to let the candidate say whatever he wants.”

Santa Monica, he noted, provides all candidates with space for a 200-word statement in the official ballot pamphlet. Rubin is free to describe himself as a peace activist there, he said.

In response to a question by Senior Judge Cynthia Holcomb Hall, Gams said it was the “activist” part of the designation that concerns the city, not the “peace” part. Santa Monica, he said, is fearful that a ruling in favor of Rubin would open a “Pandora’s Box” in which all sorts of individuals will run for office, asking to be listed on the ballot with the word “activist,” preceded by descriptions of various causes.

Rubin’s attorney, James Fosbinder, took umbrage at the use of the mythological metaphor.. His client is not seeking to unleash “unspeakable evil” on the city, but merely to vindicate an important right.

The ballot, he argued in response to questioning by Judge Johnnie B. Rawlinson, is a limited-purpose public forum in which candidates must be “free to express themselves without censorship by government officials.” To the extent that a California Supreme Court decision dealing with candidate statements—Clark v. Burleigh (1992) 4 Cal.4th 474, holding that a judicial candidate could not use the statement to attack his opponent’s rulings—suggests otherwise, “I just think they’re wrong,” Fosbinder said.

“That’s why we’re in a federal forum,” he commented.

Secretary of State Bill Jones is also a defendant in the suit. But his attorney, Deputy Attorney General David M. Verhey, said Jones should not have been named in the case because he does not have an enforcement role in local elections and the city clerk was not required to follow his department’s regulations as to ballot designation. To the extent that Rubin is seeking damages from Jones under 42 U.S.C. Sec. 1983, Verhey added, the suit is also barred by Eleventh Amendment immunity.


Copyright 2002, Metropolitan News Company