Friday, October 18, 2002
Ninth Circuit Rejects Candidate’s ‘Peace Activist’ Ballot Designation
By KENNETH OFGANG, Staff Writer/Appellate Courts
The City of Santa Monica is not violating the First Amendment or the Equal Protection Clause by barring a council candidate from running under the designation “peace activist,” the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Judge Barry G. Silverman said the city clerk was entitled to reject Jerry Rubin’s proposed designation under state regulations adopted by the city. Those rules are valid, Silverman said, because they are politically neutral, serve the city’s reasonable interest in “preserving the simplicity of its ballot,” and leave the candidate with reasonable alternative means of communication.
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.
Santa Monica, a charter city, is not required to follow the state regulations but has opted to do so. Rubin told the clerk that he earns his living selling bumper stickers for various causes, including peace.
Rubin is running again this November, and apparently will be without a designation again. He elected to run without designation after the clerk again declined to allow him to run as “peace activist.”
His candidate statement does, however, refer voters to his e-mail address, email@example.com.
The “status” regulation says that a candidate cannot use a “state, condition, social position, or legal relation of the candidate to another person, persons, or the community as a whole” as a ballot designation, but must “identify with…particular specificity the manner by which the candidate earns his or her livelihood or spends the substantial majority of his or her time.”
Examples of prohibited designations, according to the regulation, include “philanthropist, activist, patriot, taxpayer, concerned citizen, husband, wife, and the like.”
Silverman agreed with Senior U.S. District Judge J. Spencer Letts of the Central District of California that the regulation is constitutional.
The U.S. Supreme Court and other circuits, Silverman noted, have given states wide latitude in conducting their elections. He cited decisions upholding laws that bar candidates from listing more than one party affiliation, preclude write-in voting, prohibit candidates qualifying by petition from using party designations that do not correspond to the names of recognized parties and require parties to demonstrate support by obtaining petition signatures or receiving a specified number of votes in order to remain on the ballot.
A regulation will be struck down, Silverman contrasted, if it imposes a “severe” restriction on speech, as in the case of the California law banning political parties from endorsing candidates who were not party nominees, or a Missouri law requiring that candidates’ positions on term limits be printed next to their names on the ballot.
The burden on Rubin, the judge said, is not severe. He can still describe himself and his activities in the 200-word candidate statement, which the city prints and distributes at its expense.
The jurist rejected the contention that there is no reasonable alternative to a candidate-selected ballot designation because the designation “is the last thing they see as they punch the ballot.”
The ballot is not a public forum, Silverman reasoned, but a part of the election machinery. “A ballot is a ballot, not a bumper sticker,” he wrote.
The appeal was argued by Hawaii attorney James Fosbinder for Rubin, Deputy City Attorney Lance Gams for Santa Monica, and Deputy Attorney General David M. Verhey for Secretary of State Bill Jones.
The panel agreed with Verhey that 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.
The case is Rubin v. City of Santa Monica, 01-56091.
Copyright 2002, Metropolitan News Company