Question
This case concerns two opposing ballot arguments filed regarding a county measure, both from bona fide organizations.
The elections official decided to evaluate the “quality” of the two arguments, as a means of selecting one for publication. He did not consider flipping a coin or random drawing.
He had no decision matrix or identified factors used in making his “evaluation.” He decided to select the argument that addressed a range of issues, instead of the argument focused on the tax measure.
I believe this is an encroachment on free speech rights and an abuse of discretion.
Additional facts:1) In a meeting yesterday, the elections official acknowledged that he and the elected Clerk Recorder discussed their political views regarding the ballot measure, during their selection deliberations;2) The county has a compelling interest in the success of the ballot measure in question. If it fails, the county will be compelled to find $300M to meet a commitment. The county’s “solution” to meet this commitment is the ballot measure. Arguably this means the elections official has a conflict of interest. His acknowledgement of political discussions during ballot argument selection deliberations raises concerns that the argument selection was politically-motivated.
Answer
As you appear to be aware, if more than one argument for or against a measure is submitted to the county elections official, Cal. Elec. Code § 9166 requires the official select one of each for printing and distribution.
“In selecting the argument the county elections official shall give preference and priority in the order named to the arguments of the following: (a) The board of supervisors or a member or members of the board; (b) The individual voter, or bona fide association of citizens, or combination of voters and associations, who are the bona fide sponsors or proponents of the measure; (c) Bona fide associations of citizens; and (d) Individual voters who are eligible to vote on the measure.” Cal. Elec. Code § 9166. Unfortunately, I could not find any cases interpreting this statute.
In Gebert v. Patterson, 186 Cal. App. 3d 868 (1986), the Court of Appeal found San Francisco’s fee requirement to publish a ballot argument denied equal access and, therefore, violated state and federal equal protection guarantees. However, the court made clear that a voter’s pamphlet is “limited” public forum. Id. at 874.
Generally, in a limited public forum, reasonable time, place, and manner regulations are permissible, but restrictions must be “content neutral” (as opposed to “content based”) and narrowly tailored to serve a significant government interest. Any restrictions must also allow ample alternative channels of communication. Perry Educ. Ass’n. v. Perry Local Educators Ass’n,, 460 U.S. 37, 45 (1983).
Content-neutral restrictions are those that are both viewpoint and subject matter neutral, i.e., do not contain any restrictions based on either the ideology of the message or the topic of the speech, whereas content-based restrictions are those that endeavor to restrict or prohibit speech based on either the viewpoint or subject matter. See, e.g., Boos v. Barry, 485 U.S. 312, 320 (1988).
Regulations related to public comment, therefore, must be neutrally administered. Baca v. Moreno Valley Unified Sch. Dist., 936 F. Supp. 719, 728-29 (1996) (if access to the forum is limited based on subject matter or speaker identity, limitations must be reasonable in light of the purpose served by the forum and must be viewpoint neutral)
Here, the Clerk should have followed statutory guidelines set forth in Cal. Elec. Code § 9166 in giving priority to any argument. In the event such prioritization is inapplicable between these competing arguments, provided the Clerk did not refuse to publish one of the arguments because of its viewpoint (i.e., pro or against the measure), streamlining ballot arguments may be a significant public interest–as evidenced by the statute.
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