Kunde v. Seiler
128 Cal. Rptr. 3d 869
Cal. Ct. App.2011Background
- Election Code section 13305 allows a county central committee to include a party contributor envelope or a one-page letter in the sample ballot mailing to its registered voters, with specified conditions.
- In June 2010, the San Diego Republican Party requested inclusion of an electioneering insert in specific supervisorial districts; Kunde, a Democratic voter, challenged it by petition for writ of mandate.
- The proposed insert combined a fundraising letter, party endorsements for local and statewide measures, and candidate endorsements, with a space for contributor name/address and spending disclosures required by statute.
- The trial court ordered removal of noncompliant content (no contributor name/address space) but otherwise allowed the insert, and Kunde appealed.
- The court addressed mootness but held the issue presented was of general public interest and likely to recur, thus review was appropriate.
- Key constitutional issue: whether interpreting 13305 to permit electioneering materials violates First Amendment rights or equal protection by excluding others from a government-subsidized forum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 13305 permit electioneering materials in the sample ballot mailer? | Kunde argues 13305 prohibits electioneering content. | Kunde contends the statute’s text is narrow and silent on electioneering, implying prohibition. | Yes; statute permits electioneering content. |
| Is 13305 constitutional as applied to allow electioneering materials? | As-applied, 13305 burdens First Amendment rights and equal protection. | As applied, it serves legitimate interests and is nondiscriminatory. | Constitutional as applied; interests outweigh modest burden. |
| Is the mandated content restriction (no words critical of another party) the sole content limit in 13305? | Statutory text restricts content to a narrow fundraising purpose, preventing advocacy. | Expressio unius est exclusio alterius supports implied permission for content beyond listed restrictions. | Content beyond listed restrictions is permissible. |
| Does 13305 create a limited public forum needing strict scrutiny? | Excludes groups; thus viewpoint discrimination and forum access issues arise. | If forum exists, access is reasonable and viewpoint neutral, given purpose to reach party members. | If forum exists, restrictions are reasonable and viewpoint neutral. |
Key Cases Cited
- Stanson v. Mott, 17 Cal.3d 206 (Cal. 1976) (no explicit authorization for public funds to promote a partisan position unless clearly authorized)
- Vargas v. City of Salinas, 46 Cal.4th 1 (Cal. 2009) (government not to take sides when using public funds in elections; applied to assess campaign‑style activity)
- Keller v. State Bar, 47 Cal.3d 115 (Cal. 1989) (government not to mount a campaign with the public treasury; distinctions with private speech)
- Anderson v. Celebrezze, 460 U.S. 780 (U.S. 1983) (framework balancing First Amendment rights against state interests in elections)
- Burdick v. Takushi, 504 U.S. 428 (U.S. 1992) (tiered scrutiny depending on burden of election regulation)
- Gebert v. Patterson, 186 Cal.App.3d 868 (Cal. App. 1986) (voter information materials as a forum for speech)
- Kaplan v. County of Los Angeles, 894 F.2d 1076 (9th Cir. 1990) (vote information materials; limits on content in governmental mailings)
- Good News Club v. Milford Central School, 533 U.S. 98 (U.S. 2001) (category of forum analysis for speech in limited public forums)
- Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (U.S. 2008) (Anderson framework applied to political speech in election contexts)