Metropolitan News-Enterprise


Monday, August 11, 2008


Page 3


Court: Political Party Has No Right to Register Voters at VA Facility


By STEVEN M. ELLIS, Staff Writer


The Department of Veterans Affairs did not violate the First Amendment rights of California Democrats when it refused to allow them to register voters at one of its facilities, the Ninth U.S. Circuit Court of Appeals ruled Friday.

Rejecting a challenge to the department’s application of a federal regulation prohibiting “partisan activity” at its facilities, the court held the department acted within the Constitution because the hospital was not a public forum, the regulation did not target specific viewpoints, and the VA had reasonable concerns about disruption of patient care and appearance of partisan affiliation.

The department had allowed managers of its sites to decide individually whether to permit such drives for years in 2004 when Santa Clara County Democratic Central Committee Chair Steve Preminger, accompanied by attorney Scott Rafferty and another individual, attempted to register voters on the Menlo Park campus, which is located about 25 miles south of San Francisco.

Rafferty had received written permission from the facility’s manager to register voters, provided he not interrupt patient care, but when he arrived at Building 331 wearing a “John Kerry” button and introducing the group as being affiliated with the Democratic Party, a nurse asked them to leave.

The department subsequently revoked Rafferty’s permission, advising him that 38 C.F.R. § 1.218(a)(14) precluded “partisan activities” on the property. The regulation applies to activities including “those involving commentary or actions in support of, or in opposition to, or attempting to influence, any current policy of the Government of the United States, or any private group, association, or enterprise.”

Preminger and the Santa Clara County Democratic Central Committee filed suit, but U.S. District Judge Jeremy Fogel of the Northern District of California ruled that the Federal Circuit had exclusive jurisdiction over Preminger’s facial challenge to the regulation.

After the Federal Circuit rejected the facial challenge on the merits, Fogel held a three-day bench trial and similarly rejected Preminger’s as-applied First Amendment challenge. He further concluded that the plaintiffs lacked standing, and dismissed the case.

On appeal, the Ninth Circuit, in an opinion by Judge Susan Graber, held that Preminger—having personally been turned away from the facility—had standing, but otherwise affirmed Fogel’s decision.

Noting that the Ninth Circuit had previously held in the case that Building 331 was a nonpublic forum, a conclusion the Federal Circuit similarly reached, Graber opined that the content-based restriction was constitutional because it was reasonable, and not an effort to suppress an opposing view.

She said the department’s application of the regulation was reasonable based on its conclusion that allowing one partisan group access to the campus would invite requests from others—requiring supervision that could divert resources vital to residents’ treatment—and that it would give the appearance of favoritism over other parties.

Graber also concluded that the application of the regulation was viewpoint neutral—even though the department had allowed the League of Women Voters to conduct voter registration in 2004 and despite plaintiffs’ claims that the department allowed Republicans to register voters—based on the league’s nonpartisan status, and on testimony by department personnel that neither they nor the department had ever knowingly authorized any political party to conduct voter registration.

Judge Michael Daly Hawkins and U.S. District Judge James V. Selna of the Central District of California, sitting by designation, joined Graber in her opinion.

Rafferty, who served as counsel to the plaintiffs, predicted the decision would effect elections in “swing states,” and criticized the decision as the disenfranchisement of “thousands of wounded warriors.”

He told the MetNews he did not yet know whether his clients would seek review, pointing to current efforts in Congress to reverse a broad ban the department implemented in May prohibiting all outside groups from registering voters on its premises.

Representatives of the government could not be reached for comment.

The case is Preminger v. Peake, 08-15714.


Copyright 2008, Metropolitan News Company