Freedom Socialist Party v. Bradbury

• Decision Date: 12 June 2002
• Parties: FREEDOM SOCIALIST PARTY, Jordana Sardo, and Marjorie Elizabeth Sandoz, Respondents, v. Bill BRADBURY, in his official capacity as Oregon Secretary of State, Appellant.
• Court: Oregon Court of Appeals

48 P.3d 199

182 Or.App. 217

FREEDOM SOCIALIST PARTY, Jordana Sardo, and Marjorie Elizabeth Sandoz, Respondents, v. Bill BRADBURY, in his official capacity as Oregon Secretary of State, Appellant.

0003-02456; A113583.

Court of Appeals of Oregon.

Argued and Submitted March 19, 2002.

Decided June 12, 2002.

Mary H. Williams, Assistant Solicitor General, argued the cause for appellant. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Steven Goldberg, Portland, argued the cause for respondents. With him on the brief was Goldberg, Mechanic, Stuart & Gibson, LLP.

Monica A. Smith, Portland, Bill Goodman, and Smith, Gamson, Diamond & Olney, filed the brief amicus curiae for Center for Constitutional Rights et al.

Before HASELTON, Presiding Judge, and LANDAU and WOLLHEIM, Judges.

WOLLHEIM, J.

Defendant Secretary of State of Oregon appeals from a judgment entered in favor of plaintiffs in this declaratory judgment action declaring ORS 248.010 to be unconstitutional. For the reasons set forth below, we affirm.

Plaintiffs include the Freedom Socialist Party,¹ an Oregon registered voter who would vote for Freedom Socialist Party candidates in Oregon elections if possible, and an Oregon resident who would run for public office as a Freedom Socialist Party candidate were she permitted by law to do so. At issue in this case is the constitutionality of ORS 248.010, which provides that "[e]ach major political party and minor political party, its nominated candidates and its members and officers shall have the exclusive right to use the whole party name or any part of it."

The Freedom Socialist Party, which has been in existence for some 30 years and has run candidates for office in several other states, wishes to establish itself as a minor political party in Oregon and to run candidates for office. It sent a letter to defendant and a prospective petition to establish itself as a political party in House District 16 to that effect and received a letter in response from defendant refusing approval of the petition on the ground that the filing could not be accepted under the name "Freedom Socialist Party" because ORS 248.010 prohibited the use of the word "socialist" in the name of any new political party because another political party was using the word "socialist" in its name.

Plaintiffs initiated this action for declaratory and injunctive relief, seeking to have ORS 248.010 declared invalid and seeking a permanent injunction against defendant's enforcement of that statute. The gravamen of plaintiffs' complaint was that the statute violated numerous provisions of the Oregon Constitution, as well as the First Amendment to the United States Constitution, as applied to the state through the Fourteenth Amendment to the United States Constitution. The parties filed cross-motions for summary judgment on the federal constitutional issue. In support of their motion for summary judgment, plaintiffs filed an affidavit from the chair of the Socialist Party of Oregon, stating that, although the parties had distinct political ideologies, the Socialist Party of Oregon had no objection to Freedom Socialist Party candidates appearing on the same ballot as its candidates and had no concerns that voters would be confused about the differences between the two parties. Plaintiffs also presented an affidavit from a political science professor and author of several books about election politics who opined that the use of the word "socialist" in a party's name may be a central component of its identity, that voters who describe themselves as socialist are not likely to be confused when several parties use the term socialist as a component of their names, and that, if a candidate is not designated on a ballot according to the name by which his or her party is generally known, voters who might otherwise vote for the candidate are deprived of a critical voting cue.

The trial court granted plaintiffs' motion for summary judgment and denied defendant's motion. The court concluded that the statute could be interpreted "as prohibiting the use of a part of the name of an existing political party as part of the name of a new political party where the use would cause significant voter confusion," and further concluded that the statute, if interpreted in that manner, was facially valid but that it nonetheless was unconstitutional as applied to plaintiffs.

On appeal, defendant asserts that the trial court erred in concluding that ORS 248.010 is unconstitutional. Plaintiffs respond that the trial court correctly concluded that the statute violated the First Amendment, although they posit that the trial court erroneously determined that the statute could be given a construction that would render it constitutional under some circumstances. Defendant agrees with plaintiffs that the "narrowing construction" of the statute suggested by the trial court is not feasible but asserts that the statute, as written, is constitutional.

The only issue presented on appeal is whether ORS 248.010 violates the First Amendment to the United States Constitution.² The First Amendment provides that "Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." The First Amendment was made applicable to the states through the Fourteenth Amendment. See, e.g., City of Ladue v. Gilleo, 512 U.S. 43, 45 n. 1, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994). The First Amendment "protects the right of citizens to associate and to form political parties for the advancement of common political goals and ideas." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997). It also protects the rights of voters to cast votes effectively. Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). Cases such as this one, where a state restricts a political party's participation in the election process by preventing it from using its name on the ballot, implicate both of those First Amendment protections.

Those First Amendment rights, however, are exercised in the context of public elections, and it is undisputed that states "may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election—and campaign-related disorder." Timmons, 520 U.S. at 358, 117 S.Ct. 1364 (citations omitted). States, thus, may enact reasonable time, place, and manner-type restrictions concerning elections. Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986). In weighing First Amendment associational rights against states' interests, the Court has, as is its custom, developed a balancing test:

"When deciding whether a state election law violates First and Fourteenth Amendment associational rights, we weigh the character and magnitude of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary. Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger a less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable non-discriminatory restrictions." Timmons, 520 U.S. at 358,117 S.Ct. 1364 (internal quotation marks and citations omitted).

Defendant's argument on appeal is three-fold. First, defendant asserts that ORS 248.010 does not implicate the First Amendment rights of plaintiffs or anyone else. Defendant argues that ORS 248.010 limits only labels that the state uses on voter registration lists, voters' pamphlets, and ballots and that such lists, pamphlets, and ballots are not "public fora" and the state thus may reasonably regulate their content. Second, defendant argues that, assuming that First Amendment rights are implicated, ORS 248.010 imposes at most a minimal burden on such rights and thus the state's important regulatory interest justifies that burden. Finally, defendant argues that, even if the burden imposed by ORS 248.010 on plaintiffs' First Amendment rights is considered "severe," the state's interest of minimizing voter confusion is compelling enough to justify such a burden.

As discussed below, we reject each of defendant's arguments. First, we reject defendant's attempt to characterize this case as a First Amendment free speech case, to be analyzed based on whether the ballot box is a "public forum." First Amendment association and voting rights claims such as this one are not analyzed under a public forum/free speech rubric but are analyzed under the framework summarized in the Timmons case. That framework for analysis was not unique to Timmons (which concerned whether a political party had a constitutional right to list as its candidate on the ballot the same candidate nominated by a different party) but has been applied by the Court in numerous cases concerning First Amendment associational rights of political parties. See, e.g., California Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) (blanket primary system imposed a severe burden on associational rights of political parties, was not justified by a compelling state interest, and in any event was not a narrowly tailored means of furthering the state's interest); Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (state law that failed to provide for write-in candidacy in primary elections imposed a limited burden on First Amendment rights but was justified by legitimate state interest in avoiding the possibility of "unrestrained factionalism").

The analytic framework described above also was used by the Court in Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992),...