Mahan v. National Conservative Political Action Committee

• Decision Date: 27 April 1984
• Docket Number: No. 811386,811386
• Citation: 227 Va. 330,315 S.E.2d 829
• Parties: Joan S. MAHAN, et al., etc. v. NATIONAL CONSERVATIVE POLITICAL ACTION COMMITTEE. Record
• Court: Virginia Supreme Court

Page 829

315 S.E.2d 829

227 Va. 330

Joan S. MAHAN, et al., etc. v. NATIONAL CONSERVATIVE POLITICAL ACTION COMMITTEE.

Record No. 811386.

Supreme Court of Virginia.

April 27, 1984.

John A. Gibney, Jr., Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., William G. Broaddus, Chief Deputy Atty. Gen., on briefs), for appellants

Robert R. Sparks, Jr., McLean (J. Curtis Herge, Sedam & Herge, P.C., McLean, on brief), for appellee.

Present CARRICO, C.J., COCHRAN, COMPTON, STEPHENSON, RUSSELL, and THOMAS, JJ., and GORDON, Retired Justice.

RUSSELL, Justice.

The members of the State Board of Elections ¹ appeal a declaratory judgment which held unconstitutional a statute defining and restricting the entities entitled to obtain copies of the Board's computerized statewide list of registered voters.

FACTS

Since 1973, ² the Board has been required by Code § 24.1-23(1) to maintain a statewide central roster of registered voters, which lists all qualified voters in the Commonwealth by city or county and by precinct. Code § 24.1-23(4) requires the Board, prior to any election, to furnish the general registrar of each city and county with the list of qualified voters in each precinct, which then constitutes the official local list of qualified voters for the forthcoming election. The local general registrar maintains the lists on file and keeps them up to date pursuant to Code § 24.1-46. They are available for public inspection and copying in the 136 local general registrar's offices throughout the Commonwealth.

Code § 24.1-23(8), however, provides for limited dissemination of the statewide central roster maintained by the Board. That section makes it the Board's duty to furnish precinct lists, at a reasonable price, to the following recipients only, and for the specified purposes only:

1. State and Federal courts for jury selection purposes;

2. Candidates for election or political party nomination, to further their candidacy;

3. Political party committees or officials thereof, for political purposes only;

4. Incumbent officeholders, to report to their constituents; and

5. Nonprofit organizations which promote voter participation and registration, for that purpose only.

Authorized recipients are entitled to precinct lists in computer printout form, or in the form of magnetic tape to be used in computer equipment, as they may request. Any person receiving such a list is required to make oath:

1. That he is an authorized recipient under the statute;

2. That the list will be used only for the statutory purpose; and

3. That he will not permit any unauthorized person to use or copy the list.

National Conservative Political Action Committee (NCPAC) is a non-profit District of Columbia corporation qualified to do business in Virginia. It was organized in 1975 for the purpose of influencing federal, state, and local elections. It makes financial contributions to political candidates and campaign committees. It also makes independent expenditures to support or oppose candidates and political issues. It relies heavily on direct mailings to voters as well as on telephone calls and media advertising. It has no candidates of its own, and is neither a "political party," a "political party committee," nor a "nonprofit organization which promotes voter participation and registration" within the purview of Code § 24.1-23(8).

NCPAC filed a statement of organization with the Board, pursuant to Code § 24.1-254.1, as a "committee other than a candidate's committee or political party committee" for the years 1977 and 1978. It refers to itself as an "independent political committee, as defined in 2 U.S.C. § 431(4)." It concedes that it does not fit within any of the statutory categories of authorized recipients of computerized central voter's lists under Code § 24.1-23(8).

On July 11, 1978, John T. Dolan, Chairman of NCPAC, wrote to Joan S. Mahan, Secretary of the Board, requesting a copy of the computer tape of all registered voters in the Commonwealth. The letter stated that NCPAC wished to use the tape solely "for the purposes [sic] of making independent expenditures in behalf of candidates," and assured the Board that the use of the tape would be "limited to purely political purposes and not for commercial exploitation." Secretary Mahan responded for the Board by letter of July 17, 1978, pointing out that NCPAC did not fit within any one of the five categories of entities authorized by Code § 24.1-23(8) to receive copies of the central list, denying NCPAC's request, and stating that the Board had no discretion in the matter.

NCPAC lawfully could obtain the data which the Board denied to it by sending agents to each of the 136 local registrar's offices, copying the lists maintained there, and then collating and transcribing the data into form suitable for use in computer equipment. The trial court found from the evidence that the cost and effort of doing this would be prohibitive, that NCPAC had refrained from activity in several past political campaigns in Virginia because of this factor, and that it would be required to refrain therefrom in the future if the Board's ruling stands. On the other hand, the court found that NCPAC intended to make independent expenditures in support of candidates in federal and state elections in Virginia if given access to the Board's central list at reasonable cost.

NCPAC may also obtain some of the same information from commercially available lists of contributors to various causes, and it is always free to reach the public at large through advertising in public media. The trial court found, however, that such methods are an inadequate substitute for the more effective targeting of registered

voters which NCPAC could accomplish by direct mail if it had access to the Board's list.

PROCEEDINGS

NCPAC filed a motion for declaratory judgment against the Board, contending that Code § 24.1-23(8) is unconstitutional as applied to it. Most of the facts were stipulated, but additional evidence was received in an ore tenus hearing. In a written opinion, the court held that Code § 24.1-23(8) was unconstitutional and invalid as applied to NCPAC because it abridged protected free speech in a manner unjustified by a compelling state interest, and because it unlawfully discriminated against NCPAC by treating it differently from other political organizations similarly situated. The court entered a declaratory judgment which directed the Board to furnish NCPAC with copies of the computer tape of the central roster of registered voters on the same basis as political parties and candidates.

STANDARDS OF REVIEW

It cannot be said that the statutory scheme prohibits NCPAC from addressing Virginia's registered voters on political issues, because the names and addresses of the voters are available to it in the local registrar's offices. There are also, as noted above, other means than direct mail available for communication with the electorate. The net effect of Code § 24.1-23(8), however, is to extend to its enumerated classes of authorized recipients a relatively facile and inexpensive means of identifying voters, which is denied to other classes who may also wish to influence elections. Among the many voices clamoring for attention in the political arena, the statute grants an advantage of time and money to some which it denies to others. When classifications of this kind affect fundamental constitutional rights, they are subject to strict judicial scrutiny.

This Court has been reluctant to declare legislative acts unconstitutional, and will do so only when the infirmity is clear, palpable, and practically free from doubt. We accord every legislative act a presumption of constitutionality. Blue Cross v. Commonwealth, 221 Va. 349, 358, 269 S.E.2d 827, 832 (1980); Green v. County Board, 193 Va. 284, 287, 68 S.E.2d 516, 518 (1952). Accordingly, we will uphold statutory classifications if they bear some rational relationship to a legitimate legislative interest or purpose. See Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977). We have said that a classification ordinarily will be upheld "if any state of facts can be reasonably conceived that would support it." Blue Cross, 221 Va. at 363, 269 S.E.2d at 836; accord I.D.A. v. La France Cleaners, 216 Va. 277, 282, 217 S.E.2d 879, 883 (1975); Mandell v. Haddon, 202 Va. 979, 989, 121 S.E.2d 516, 524 (1961). But where the statute creates a "suspect classification" (e.g. race, sex, or religion) or where it affects a fundamental constitutional right, the presumption of constitutionality fades, and the "strict scrutiny" test, rather than the more relaxed "rational relationship" test, applies. San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

Laws that affect fundamental constitutional rights, as we have seen, are subjected to strict judicial scrutiny. Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1969). In order to satisfy such an examination, the law must be a necessary element for achieving a compelling governmental interest. Greenberg v. Bolger, 497 F.Supp. 756, 778 (E.D.N.Y.1980). To be viewed as necessary, the classification or infringement must be the least burdensome means available for attaining the governmental objective in question. Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 1003, 31 L.Ed.2d 274 (1972).

FREEDOM OF SPEECH

Not all speech is protected by the First Amendment to the Federal Constitution and article I, section 12 of the Virginia The Federal Election Campaign Act of 1971, Pub.L. No. 92-225, 86 Stat. 3 (codified as amended at 2 U.S.C. §§ 431-455 (1974)), imposed strict limitations on campaign contributions to candidates for public office and on independent expenditures by individuals and groups in furtherance of political campaigns. In 1976, the Supreme Court, in Buckley v. Valeo, supra, held unconstitutional those parts of the Campaign...