Metropolitan News-Enterprise


Thursday, July 14, 2011


Page 1


C.A. Upholds Law Allowing Political Party Committees To Use Sample Ballot Inserts for Fundraising




A political party may include a letter in its voters’ sample ballot materials, soliciting funds, endorsing candidates, and expressing its position on ballot measures, the Fourth District Court of Appeal ruled yesterday.

Div. One said such solicitations are permitted by Elections Code Sec. 13305, and that the section, as thus construed, does not violate the First Amendment or equal protection rights of individuals, or of groups that are not qualified political parties.

The justices affirmed the denial of a writ of mandate challenging the solicitation sent by the San Diego County Republican Central Committee to 2010 primary voters. The one-page letter asked voters to send donations to the party, and included an endorsement of candidates for county offices, as well as local positions in San Diego, Chula Vista, and Oceanside.

It also stated positions on state and local measures on the June ballot.

Thomas C. Kunde, a local voter and registered Democrat, sought a writ prohibiting the registrar of voters from sending out the letter.

He argued that statements made by the party violated Sec. 13305, which allows a party to provide “a party contributor envelope or a one-page letter” to be mailed to all voters affiliated with the party in that county, on condition that the party pay all associated costs, not criticize another party, provide a space for the name and address of the contributor; and inform the contributor how donations will be spent.

Constitutional Challenge

Kunde also contended that the statute was unconstitutional to the extent it permitted political parties to use the sample ballot to make political arguments that individuals or other groups could not make in that forum.

The Republican committee paid $23,000 in printing costs to include the letter in the sample ballot; mailing costs apparently were not charged because the letter did not increase the cost of sending the sample ballot.

San Diego Superior Court Judge Jeffrey Barton denied the writ, except to require that the party add the required space for contributor information, which the party conceded it had omitted. He found that nothing in the statute prohibited the party from stating views on offices or ballot measures, but did not expressly rule on the constitutional questions.

Justice Joan Irion, writing for the Court of Appeal, said the appeal was technically moot, since the election was held last year, but that the panel chose to reach the merits because the issue is of public interest and likely to recur.

She concluded the trial judge correctly interpreted the statute, and that the section does not violate the rights of participants in the political process that are not qualified as political parties.

Qualified Parties

Under state law, she noted, any party may qualify for the ballot if it obtained two percent of the statewide vote for any office at the last gubernatorial election; reaches an affiliated total of one percent of the electorate at least 135 days before the primary; or files petitions signed by 10 percent of the voters.

Any qualified party may send out the Sec. 13305 solicitation, Irion said, and there was no evidence the limitation of the section to qualified parties “was motivated by an intent to exclude persons or groups who hold a specific viewpoint or ideology.”

If the restrictions do impose a burden on the rights of political actors who are not qualified parties, the jurist elaborated, the burden is “modest”—since such actors can communicate and solicit funds by other means—and is supported by the state’s significant interest in facilitating communications between a party and its members.

Attorneys on appeal were Gregory G. Luke and Byron F. Kahr of Strumwasser & Woocher for Kunde; Deputy County Counsel Timothy M. Barry for the registrar of voters; and Charles H. Bell Jr. of Bell, McAndrews & Hiltachk for the GOP.

The case is Kunde v. Seiler (Central Committee of the Republican Party of San Diego County), 11 S.O.S. 3869.


Copyright 2011, Metropolitan News Company