Freedom Socialist Party v. Bradbury

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 US 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 US 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 US 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 US at 358 (citations omitted). States, thus, may enact reasonable time, place, and manner-type restrictions concerning elections. Tashjian v. Republican Party of Connecticut, 479 US 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 nondiscriminatory restrictions.” Timmons, 520 US at 358 (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 US 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 meáns of furthering the state’s interest); Burdick v. Takushi, 504 US 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 US 279, 112 S Ct 698, 116 L Ed 2d 711 (1992), which concerned First Amendment associational rights. The Court’s analysis in Norman clearly demonstrates that defendant is incorrect in the present case in its assertion that ORS 248.010 places no burden on First Amendment associational rights. In Norman, the Court held unconstitutional a state statute that had been interpreted by a state court to preclude the Harold Washington Party from running candidates in elections in certain geographical areas because a Harold Washington Party had run a candidate in an earlier election in a different, although geographically overlapping, area.³ Id. at 290. The Court concluded that such a prohibition was “far broader than necessary to serve the state’s asserted interests” in preventing misrepresentation and electoral confusion. Id. The Court stated:

“To prevent misrepresentation and electoral confusion, Illinois may, of course, prohibit candidates running for office in one subdivision from adopting the name of a party established in another if they are not in any way affiliated with the party. The State’s interest is particularly strong where, as here, the party and its self-described candidates coexist in the same geographical area. But Illinois could avoid these ills merely by requiring the candidates to get formal permission to use the name from the established party they seek to represent, a simple expedient for fostering an informed electorate without suppressing the growth of small parties.” Id.

Thus, not only is the analytic framework for the type of question at issue here well-established by case law from the Court, but the Court has applied that framework in circumstances factually similar to the present case. Based on Norman, we conclude that defendant is incorrect both in its premise that the proper analytic framework concerns whether the ballot is a “public forum” and in its conclusion that plaintiffs’ First Amendment associational rights are not implicated by ORS 248.010.

The next step of the process is to “weigh the character and magnitude of the burden the State’s rule imposes on [plaintiffs’] rights against the interests the State contends justify the burden, and consider the extent to which the State’s concerns make the burden necessary.” Timmons, 520 US at 358. The burden, we conclude, is severe. The Freedom Socialist Party has a national presence, albeit perhaps not a large one, demonstrated by its publication of numerous materials and its fielding of candidates in elections in other states. It has operated under this name for more than 30 years. As noted by plaintiffs’ expert, the party designation of a candidate on the ballot provides voters with a “critical voting cue.” Such a voting cue would seem to be particularly critical where the word in question is one such as “socialist,” which is not merely a slogan but actually reflects a specific political ideology. We conclude that a state law that prevents a political party from running candidates under the name by which it is generally recognized places a severe burden on the associational and voting rights of members of that party.⁴

We next turn to the nature of the state’s interest and whether, if that interest is compelling, ORS 248.010 is sufficiently narrowly tailored to justify the severe burden it places on plaintiffs’ constitutional rights. Defendant has identified only one state interest that is promoted by ORS 248.010: to avoid electoral confusion when voters face a choice among political parties with similar names.⁵ The Court has acknowledged that preventing electoral confusion is, in fact, a legitimate state interest in circumstances such as these:

“To prevent misrepresentation and electoral confusion, Illinois may, of course, prohibit candidates running for office in one subdivision from adopting the name of a party established in another if they are not in any way affiliated with the party. The State’s interest is particularly strong where, as here, the party and its self-described candidates coexist in the same geographical area. But Illinois could avoid these ills merely by requiring the candidates to get formal permission to the use name from the established party they seek to represent, a simple expedient for fostering an informed electorate without suppressing the growth of small parties.”Norman, 502 US at 290 (emphasis added).

We acknowledge that the state does have a legitimate interest in preventing voter confusion. The extent to which that interest is furthered by the strictures of ORS 248.010, however, is not obvious. See, e.g., Rosen v. Brown, 970 F2d 169, 177 (6th Cir 1992) (in ruling on state law that prevented candidate from using “independent” designation on ballot, the court noted that the state’s “claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism”). It is, in fact, arguable that a statute that prevents some, but not all, socialist candidates for political office from designating themselves as socialists simply because they do not belong to the first socialist party to be recognized in a state contributes to, rather than alleviates, voter confusion.

Logic dictates that the risk of electoral confusion must be greater where multiple parties coexist with the same name, as was the case in Norman, than under circumstances such as these, where the parties’ names in question are similar only insofar as they both contain the word “socialist.” Certainly, if a law that promotes the legitimate state interest of preventing voter confusion is overly broad when it provides an absolute ban the use of the same party name, one that has an absolute ban on the use of any part of a party name that is the same as a part of another party’s name is likewise over-broad. As noted by the Court in Norman, the state’s interest in preventing voter confusion might be addressed by requiring the party with the same (or similar) name to get formal permission to use the name from the other party involved, which occurred not only in Norman but in the present case as well.⁶ Even a law that made such a requirement, however, might not be sufficiently narrowly tailored if it prohibited any similar words in the names of political parties, as does ORS 248.010. Cf. Riddell v. National Democratic Party, 508 F2d 770, 777-78 (5th Cir 1975) (law prohibiting more than one party from using the word “democratic” in its name was not sufficiently narrowly tailored and could, in fact, increase voter confusion, given that both parties in that case had valid claims to be described as the “democratic” party).

In sum, defendant’s position is untenable. Each of defendant’s three arguments described above is undermined by, if not flatly contradictory to, the decision of the Court in Norman.⁷ In short, as shown by Norman, First Amendment associational and voting rights are implicated when a state statute prohibits a new political party from running candidates under the party’s name because another party has used that name (or a part of it). The burden placed on those First Amendment rights is severe, because voters are deprived of an important voting cue when candidates are unable to run for office using their party affiliation. While the state has an interest in preventing voter confusion that may justify at least some restriction on parties’ choice of names, a restriction that prohibits a new party from using “any part” of the name used by another political party sweeps too broadly, and may, in fact, cause more voter confusion than it alleviates. The trial court correctly concluded that ORS 248.010 is unconstitutional.

We address, briefly, the trial court’s suggestion that ORS 248.010 could be given a “narrowing construction” that renders it constitutional. It is true that a court, when faced with an ambiguous statute, may employ a maxim of statutory construction that would cause the court to choose a constitutional construction of the statute over an unconstitutional one. See State v. Kitzman, 323 Or 589, 602, 920 P2d 124 (1996) (“when one plausible construction of a statute is constitutional and another plausible construction of a statute is unconstitutional, courts will assume that the legislature intended the constitutional meaning”). That maxim has no application here, though, because ORS 248.010 is unambiguous — it prohibits “the use of the whole party name or any part of it,” with no limitations or qualifications. The trial court, in suggesting that the statute could be interpreted as prohibiting the use of a party name or part of a name only where the use would cause significant voter confusion, ran afoul of the maxim of statutory construction that courts are not to “insert what has been omitted” into a statute. ORS 174.010. There is no plausible narrowing construction to be given to ORS 248.010 that would render it constitutional. Plaintiffs are correct that the statute is facially unconstitutional.

Affirmed.

1 The Freedom Socialist Party describes itself as “dedicated to the building of a genuine workers’ democracy based on socialism that will guarantee full economic, social, political and legal equality to women, people of color, sexual minorities, and all who are exploited, oppressed, and repelled by the profit system and its offshoot, imperialism.”

2 Defendant makes a number of arguments on appeal concerning whether ORS 248.010 violates Article I, section 8, of the Oregon Constitution. Because that question was not before the court on summary judgment, and because plaintiffs do not assert that Article I, section 8, provides an alternative basis for affirming the trial court’s judgment, we do not address whether the statute violates Article I, section 8.

In response to the concurrence, we note that defendant has not argued to this court or to the trial court that plaintiffs were required to establish that they had no recourse under the state constitution before asserting a claim under the federal constitution. The concurrence acknowledges that recent case law from the Oregon Supreme Court appears not to require such a prerequisite. Given that the parties have not briefed and argued the questions, and that the case law on this subject is uncertain, at best, we choose not to impose such a requirement in the present case.

3 The Illinois statute in question provided that new political parties “shall not bear the same name as, nor include the name of any established political party[.]" Norman, 501 US at 284, quoting Ill Rev Stat, ch 46, § 10-5. It was unclear on the record in that case whether the two Harold Washington Parties were unrelated entities. It was undisputed, however, that the “new” Harold Washington Party was authorized by the candidate who previously had run as the Harold Washington Party candidate to use the name. Id. at 285.

4 Although the Court in Norman did not explicitly state whether it considered “severe” the burden imposed by the law at issue in that case, which prevented a new party from using the same name as a name that had previously been used, it is implicit in the Court’s conclusion that the law “sweeps broader than necessary to advance electoral order,” 502 US at 290, that the Court was using the test for when a burden is “severe.” See Timmons, 520 US at 358 (regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored). See also Riddell v. The National Democratic Party, 508 F2d 770 (5th Cir 1975) (analyzing statute similar to ORS 248.010 and concluding that prohibition on two parties using the word “democratic” in their names was a “substantial burden” on associational and voting rights that must be justified by a compelling state interest).

5 Interestingly enough, defendant has not argued in this case that laws such as ORS 248.010 that can be barriers to new political parties serve a legitimate state purpose of promoting the two-party system and preventing factionalism among established political parties, although it is clear that, historically, such laws often have advanced that interest. See generally Timmons, 520 US at 366-67 (recognizing that states may have an interest in enacting election regulations that favor the traditional two-party system, and further recognizing that that interest is a legitimate one, albeit not one that justifies unreasonably exclusionary restrictions).

6 We note, as well, that the Socialist Party of Oregon has participated in this case as amicus curiae in support of plaintiffs’ position. Other amici representing political parties and organizations too numerous to list here also have appeared in support of plaintiffs.

7 Surprisingly, defendant has not even cited Norman, much less attempted to distinguish it from the present case.