On February 1, U.S. District Court Judge David O. Carter, a Clinton appointee, ruled that the California Secretary of State did not violate the First Amendment when he censored Paul Merritt’s candidate statement in the Voters Guide. The Voters Guide is a publication mailed to every registered voter. Candidates for partisan office may pay to have a statement about themselves. The law does not restrict the content, except to say the statement must not discuss any opponents of the candidate.
In the 2016 U.S. Senate primary, Paul Merritt, who was on the ballot, wrote a statement that started with his name and “registered independent voter”. But the Secretary of State refused to print “registered independent voter” in the statement, and changed it to “no party preference” without even telling Merritt. Generally when the state objects to something in the Guide, there are procedures to inform the candidate and work with the candidate. But Merritt didn’t even learn his statement had been changed until he received his copy of the Guide in the postal mail.
Judge Carter wrote that because independent candidates are not permitted to be labelled “independent” on the ballot, therefore it follows that they cannot call themselves “independent” in the candidate statement either. The state had tried to defend its decision by differentiating between the opening line of the statement, and the body of the statement. But Judge Carter’s six-page opinion takes no note of that, and implies the state could have censored the body of the statement as well as the heading.
Judge Carter overlooked a Ninth Circuit decision from 2002, Rubin v City of Santa Monica. That was a dispute over whether a candidate could use the occupation “peace activist” as his occupation (California prints occupations of candidates on the ballot). Although Rubin lost the case, the decision said that if he didn’t have the ballot label he wanted, he at least had the freedom to express that label in his candidate ballot statement in the Voters Guide.
Judge Carter did recognize there might be a due process violation by the Secretary of State’s refusal to even tell Merritt what he had done before doing it, so he granted permission to Merritt to amend his complaint to keep that part of his lawsuit alive. The decision is Merritt v Padilla, c.d., 8:16cv-606.
Judge Carter did make note of the State’s argument, and then went on to say (top of page 5) says that it is not necessary to reach a conclusion whether Merritt’s heading was a heading, or part of the statement.
Any reasonable observer would recognize the heading as a heading.
California should eliminate the candidate statements, and let each candidate provide contacts such as a website, twitter feed, email address, phone number, mailing address, home or campaign street address.