On September 19, the Ninth Circuit enjoined a San Francisco ordinance that compels print ads for sugary drinks to carry this statement: “Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.” The statement must be bordered in black and must be so large as to comprise 20% of the square area of the ad.
This decision is one of a long line of cases that prohibit compelled speech. In other words, the free speech part of the First Amendment not only protects the right to speak, but the right not to speak, especially if the compelled speech is not indisputably true. This precedent, like similar precedents, will help the plaintiffs in Soltysik v Padilla, the lawsuit pending in the Ninth Circuit on California ballot labels for members of unqualified parties. Under the California election law, if they are running for Congress or partisan state office, they must have “party preference: none” printed next to their names, even if they do have a party preference. The plaintiff in Soltysik wants “party preference: Socialist” to be his ballot label. He is a registered Socialist. But the laws forces him to say he has no party preference.
The recent decision on San Francisco’s compelled speech can be read at this link. The case is American Beverage Association v City and County of San Francisco, 16-16072.
George Skelton, Los Angeles Times reporter for California government, here argues that Governor Jerry Brown should veto both SB 568 and SB 149. The former bill moves the primary in all years, for all office, from June to March. The second bill requires presidential primary candidates to reveal their income tax returns.
Nate Silver has this long and interesting analysis of the process by which statisticians and pollsters make predictions, especially about U.S. presidential elections, with greatest emphasis on 2016.
Doug Mataconis, senior editor of Outside the Beltway, has this essay on whether centrism could ever become a third force in U.S. elections.
On September 18, Michigan Governor Rick Snyder signed HB 4892, which makes it possible for candidates in four particular Michigan cities to run for local office this year, even though they missed the filing deadline. Generally these candidates were the victim of misinformation for local election officials.
On September 20, the Eighth Circuit heard Libertarian Party of Arkansas v Martin, 16-3794. The issue is the deadline for a newly-qualifying party to hold its nominating convention. The U.S. District Court had struck down the old law that said newly-qualifying parties must nominate all their non-presidential nominees several months before the major party primaries. Afterwards, the 2017 session of the legislature had passed a new law, letting such parties nominate up until primary day. However, the convention parties had to submit their certificates of nomination by noon on primary day. Here is the link to hear the oral argument.
The state had appealed the U.S. District Court decision. A few days before the Eighth Circuit hearing, the judges had asked both sides to discuss whether the case is now moot. The state spoke first and said the case is moot. One of the judges asked about the possibility that if the case is moot, and never subject to appellate review, what will happen if the legislature in the future repeals the new law and makes the deadline more restrictive again? The attorney for state said there is no evidence that that would happen. The attorney for the state only used up seven minutes of his time, even though he was entitled to fifteen minutes.
Then the attorney for the Libertarian Party spoke. He argued passionately that the new law does not carry out the U.S. District Court opinion, because forcing the newly-qualifying party to submit the names of its convention nominees by noon on primary day (a Tuesday) does not really give such a party the chance to make its nominations at the same time that the major parties are making their nominations. A convention on Tuesday would need to work very quickly in the morning, to give the party time to drive to various county seats and the state capitol to submit the certificates. In reality, the convention would need to be several days earlier. The attorney for the Libertarian Party also said that no one in the legislature consulted with the Libertarian Party when it drafted the 2017 law.
In rebuttal, the attorney for the state said that the new law is exactly what the party had asked for. During rebuttal, one judge asked the attorney for the state about the Arkansas history of evading constitutional ballot access wins. Arkansas had had its independent candidate petition deadline struck down in 1975, and 1977, and 1988, and again virtually struck down early in 2017. These repeated lawsuits were necessary because even after the state lost the case, it would forget about the old decision and re-enact the unconstitutional deadline. In response, the attorney for the state acknowledged this history, but said it was only a history related to independent candidates, not minor parties. The time for both sides then expired. Actually, though it was not brought up at the oral argument, the Arkansas legislature had treated minor parties the same way. The deadline for minor party petitions was struck down in 1977, and again in 1996, and yet again in 2006, because, just as with independent candidates, the state would lose a case but then after a few years re-enact the same bad laws all over again, for minor parties as well.