Lead Opinion
delivered the opinion of the Court.
Petitioners seek review of a decision of the United States Court of Appeals for the Ninth Circuit holding that Article II, § 6(b), of the California Constitution violates the First and Fourteenth Amendments to the Constitution of the United States. Section 6(b) reads: “No political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office.” Its companion provision, §6(a), provides that “[a]ll judicial, school, county, and city offices shall be nonpartisan.”
I
In view of our determination that the case is nonjusticiable, the identity of the parties has crucial relevance. Petitioners are the City and County of San Francisco, its board of supervisors, and certain local officials. The individual respondents are 10 registered voters residing in the City and County of San Francisco. They include the chairman and three members of the San Francisco Republican County Central Committee and one member of the San Francisco Democratic County Central Committee. Election Action, an asso
Respondents filed this suit in the United States District Court for the Northern District of California. Their third cause of action challenged § 6(b) and petitioners’ acknowledged policy, based on that provision, of deleting any references to a party endorsement from the candidate statements included in voter pamphlets. As we understand it, petitioners print the pamphlets and pay the postage required to mail them to voters. The voter pamphlets contain statements prepared by candidates for office and arguments submitted by interested persons concerning other measures on the ballot. The complaint sought a declaration that Article II, § 6, is unconstitutional and an injunction preventing petitioners from editing candidate statements to delete references to party endorsements.
The District Court granted summary judgment for respondents on their third cause of action, declaring § 6(b) unconstitutional and enjoining petitioners from enforcing it.
We granted certiorari,
Concerns of justiciability go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so. We presume that federal courts lack jurisdiction “unless ‘the contrary appears affirmatively from the record.’” Bender v. Williamsport Area School Dist.,
A
Proper resolution of the justiciability issues presented here requires examination of the pleadings and record to determine the nature of the dispute and the interests of the parties in having it resolved in this judicial proceeding. According to the complaint, the respondent committee members “desire to endorse, support, and oppose candidates for city and county office through their county central committees, and to publicize such endorsements by having said endorsements printed in candidate’s statements published in the voter’s pamphlet.” App. 4, ¶ 36. All respondents “desire to read endorsements of candidates for city and county office as part of candidate’s statements printed in the San Francisco voter’s pamphlet. ” Id., at 5, ¶ 37.
The complaint alleges that in the past certain of these petitioners “have deleted all references in candidate’s statements for City and County offices to endorsements by political party central committees or officers or members of such committees,” and that they will continue such deletions in the future unless restrained by court order. ¶ 38. Respondents believe an actual controversy exists because they contend § 6 and any other law relied upon to refuse to print the endorsements are unconstitutional in that they “abridge [respond
An affidavit submitted by the chairman of the Republican committee in connection with respondents’ motion for summary judgment illuminates and supplements the allegations of the complaint. It indicates the committee has a policy of endorsing candidates for nonpartisan offices:
“In 1987, the Republican Committee endorsed Arlo Smith for District Attorney, Michael Hennessey for Sheriff, and John Molinari for Mayor, despite objections from some that such endorsements are prohibited by California Constitution Article [II], Section 6. It is the plan and intention of the Republican Committee to endorse candidates for nonpartisan offices in as many future elections as possible. The Republican Committee would like to have such endorsements publicized by endorsed candidates in their candidate’s statements in the San Francisco voter’s pamphlet, and to encourage endorsed candidates to so publish their endorsements by the Republican Committee.
“In the future, I and other Republican Committee members . . . would like to use our titles as Republican County Committeemen in endorsements we make of local candidates which are printed in the San Francisco voter’s pamphlet. We cannot presently do so as [petitioner] Jay Patterson has a policy of deleting the word ‘Republican’ from all such endorsements.” Id., at 15-16.
An affidavit submitted by a Democratic committeeman states that “[i]n elections since 1986, the Democratic commit
B
Respondents’ allegations indicate that, relevant to this suit, petitioners interpret § 6(b) to apply to three different categories of speakers. First, as suggested by the language of the provision, it applies to party central committees. Second, petitioners’ reliance on § 6(b) to edit candidate statements demonstrates that they believe the provision applies as well to the speech of candidates for nonpartisan office, at least in the forum provided by the voter pamphlets. Third, petitioners have interpreted § 6(b) to apply to members and officers of party central committees, as shown by their policy of deleting references to endorsements by these individuals from candidate statements. The first of these interpretations flows from the plain language of § 6(b), while the second and third require inferences from the text.
As an initial matter, serious questions arise concerning the standing of respondents to defend the rights of speak
The respondent committee members allege injury to their rights, either through their committees or as individual committee members, to endorse candidates for nonpartisan offices, and also allege injury from the inability of candidates to include those endorsements in voter pamphlets. Respond
C
Justiciability concerns not only the standing of litigants to assert particular claims, but also the appropriate timing of judicial intervention. See Regional Rail Reorganization Act Cases,
The allegation that the Democratic committee has not endorsed candidates “[i]n elections since 1986” for fear of the consequences of violating § 6, App. 12, provides insufficient indication of a controversy continuing at the time this litigation began or arising thereafter. The affidavit provides no indication whom the Democratic committee wished to endorse, for which office, or in what election. Absent a contention that § 6(b) prevented a particular endorsement, and that the controversy had not become moot prior to the litigation, this allegation will not support an action in federal court.
Nor can a ripe controversy be found in the fact that the Republican committee endorsed candidates for nonpartisan elections in 1987, the year this suit was filed. Whether or not all of those endorsements involved elections pending at the time this action commenced, a point on which the affidavit is not clear, we have no reason to believe that § 6(b) had any impact on the conduct of those involved. The committee made these endorsements “despite objections from some that such endorsements are prohibited” by the provision at issue. App. 15. Nothing in the record suggests that any action was taken to enforce § 6(b) as a result of those endorsements. We know of no adverse consequences suffered by the Republican committee or its members due to the apparent violation of §6(b). We also have no indication that any of the three endorsed candidates desired or attempted to include the party’s endorsement in a candidate statement.
We also discern no ripe controversy in the allegations that respondents desire to endorse candidates in future elections, either as individual committee members or through their committees. Respondents do not allege an intention to endorse any particular candidate, nor that a candidate wants to include a party’s or committee member’s endorsement in a candidate statement. We possess no factual record of an ac
The record also contains no evidence of a credible threat that § 6(b) will be enforced, other than against candidates in the context of voter pamphlets. The only instances disclosed by the record in which parties endorsed specific candidates did not, so far as we can tell, result in petitioners taking any enforcement action. While the record indicates that the Democratic committee feared prosecution of its members if it endorsed a candidate, we find no explanation of what criminal provision that conduct might be held to violate. Petitioners’ counsel indicated at oral argument that § 6(b) carries no criminal penalties, and may only be enforced by injunction. Nothing in the record suggests that petitioners have threatened to seek an injunction against county committees or their members if they violate § 6(b).
While petitioners have threatened not to allow candidates to include endorsements by county committees or their members in the voter pamphlets prepared by the government, we do not believe deferring adjudication will impose a substantial hardship on these respondents. In all probability, respondents can learn which candidates have been endorsed by particular parties or committee members through other means. If respondents or their committees do desire to make a particular endorsement in the future, and a candidate wishes to
Postponing consideration of the questions presented, until a more concrete controversy arises, also has the advantage of permitting the state courts further opportunity to construe §6(b), and perhaps in the process to “materially alter the question to be decided.” Babbitt v. Farm Workers,
D
We conclude with a word about the propriety of resolving the facial constitutionality of § 6(b) without first addressing its application to a particular set of facts. In some First Amendment contexts, we have permitted litigants injured by a particular application of a statute to assert a facial over-breadth challenge, one seeking invalidation of the statute because its application in other situations would be unconstitutional. See Broadrick v. Oklahoma,
But even if one may read the complaint to assert a facial challenge, the better course might have been to address in the first instance the constitutionality of § 6(b) as applied in the context of voter pamphlets. “It is not the usual judicial practice, . . . nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily — that is, before it is determined that the statute would be valid as applied. Such a course would convert use of the overbreadth doctrine from a necessary means of vindicating the plaintiff’s right not to be bound by a statute that is unconstitutional into a means of mounting gratuitous wholesale attacks upon state and federal laws.” Board of Trustees of State University of N. Y. v. Fox,
HH f-H
The free speech issues argued in the briefs filed here have fundamental and far-reaching import. For that very reason, we cannot decide the case based upon the amorphous and ill-defined factual record presented to us. Rules of justiciability serve to make the judicial process a principled one. Were we to depart from those rules, our disposition of the case would lack the clarity and force which ought to inform the exercise of judicial authority.
The judgment is vacated, and the case is remanded with instructions to dismiss respondents’ third cause of action without prejudice.
It is so ordered.
Notes
Justice Scalia joins all but Part II-B of this opinion.
Concurrence Opinion
concurring.
The dissenting opinions in this case illustrate why the Court should decline review of the merits of the case in its present posture. Justice Marshall concludes that Article II, §6(b), of the California Constitution is invalid on its face because it is overbroad. Justice White, on the other hand, concludes that respondents’ complaint may not be construed as including a facial overbreadth challenge, and that § 6(b) is valid insofar as it is applied to petitioners’ policy of refusing to include endorsements in candidates’ campaign mailings.
Given the very real possibility that the outcome of this litigation depends entirely on whether the complaint should be construed as making a facial challenge or an as-applied challenge — for it is apparent that Justice White and Justice Marshall may both be interpreting the merits of their respective First Amendment questions correctly — and given the difficulty of determining whether respondents’ complaint against petitioners’ policy of deleting party endorsements from candidates’ statements may fairly be construed as including a facial overbreadth challenge, the Court is surely wise in refusing to address the merits on the present record.
Two other prudential concerns weigh against deciding the merits of this case. First, I am not sure that respondents’ challenge to petitioners’ policy of deleting party endorsements is ripe for review. If such a challenge had been brought by a political party or a party central committee, and if the complaint had alleged that these organizations wanted to endorse, support, or oppose a candidate for nonpartisan office but were inhibited from doing so because of the constitutional provision, the case would unquestionably be ripe. Cf. Eu v. San Francisco Cty. Democratic Central Comm.,
Unlike such scenarios, however, the respondents in this case are voters. They claim, based on petitioners’ representations, that § 6(b) of the State Constitution forms the basis for petitioners’ policy of deleting party endorsements from candidates’ mailed statements. But there are at least two hurdles that these respondents must overcome before their claim would be ripe for judicial review. First, they must prove that political parties would endorse certain candidates if § 6(b) were repealed or invalidated. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
Moreover, I am troubled by the redressability issues inherent in this case. Respondents’ complaint has challenged § 6(b) of the State Constitution, but it has not challenged the validity of § 10012 of the California Elections Code. That sec
These three unsettled issues — involving whether a facial overbreadth challenge may be construed to have been made, whether respondents’ challenge is ripe, and whether their injury is redressable — coalesce to convince me that review of the merits of respondents’ challenge is best left for another day and another complaint. No substantial hardship would accrue from a dismissal of respondents’ action without prejudice, and the courts would benefit from a more precise articulation of a current and definite controversy. I therefore join the Court’s opinion and judgment ordering the lower courts to dismiss the action without prejudice.
Dissenting Opinion
dissenting.
The majority’s concerns about the justiciability of this case, even though ultimately misplaced, are understandable, in light of the failure by the courts below to analyze the precise nature of the constitutional challenge that is presented here. Those concerns, however, should not prevent us from independently examining the record and deciding the issues that are properly presented. In doing so, I conclude that the only constitutional challenge that is properly before us is to the action by the San Francisco Registrar of Voters in deleting references in official voter pamphlets to political party endorsements, a challenge that is fully justiciable. Because the registrar’s action does not violate the First Amendment, I would reverse the judgment of the Court of Appeals. I therefore dissent from the majority’s disposition of this case.
The courts below erred in treating respondents challenge in this case as a facial challenge to the constitutionality of Article II, § 6(b), of the California Constitution. Respondents’ complaint reveals that they challenged only the application of § 6(b) by San Francisco’s Registrar of Voters in refusing to print in voter pamphlets references to endorsements by political parties.
After listing the defendants, background for its three causes of action:
“In connection with each municipal election, County mails a voters pamphlet to all registered voters. Said pamphlet contains ballot arguments for and against City and County measures, and statements of qualifications of candidates for City and County offices. Defendant PATTERSON [the Registrar of Voters] is responsible for preparing and publishing said voters pamphlet.” App. 3, ¶ 10.
The first cause of action then challenges the registrar’s deletion of portions of proposed ballot arguments submitted for inclusion in the voter pamphlets. 2 Record, Complaint ¶¶ 11-20. The second cause of action challenges the registrar’s charge of a fee for ballot arguments. Id., ¶¶ 21-30.
The third cause of action one case. That cause of action, like the two before it, concerns
“In the past, defendants PATTERSON and CITY AND COUNTY OF SAN FRANCISCO have deleted all references in candidate’s statements for City and County offices to endorsements by political party central committees or officers or members of such committees. Unless restrained from doing so by order of this court, defendants threaten to continue to delete or exclude all references in candidate’s statements to endorsement of candidates by political party central committees, or officers or members of such central committees.” App. 5, ¶38.
Respondents also stated that they “desire to read endorsements of candidates for city and county office as part of candidate’s statements printed in the San Francisco voters pamphlet.” ¶37. Finally, the only injunctive relief sought based on the third cause of action relates to the deletion of endorsements from the voter pamphlets. Id., at 6, ¶6.
In entering summary judgment in favor of respondents on the third cause of action, the District Court described respondents’ claim as follows: “Plaintiffs claim — and defendants admit — that defendants refuse to permit political party and political party central committee endorsements of candidates for such offices to be printed in the San Francisco voter’s pamphlet on account of said state constitutional provision.”
“The basis of [respondents’] complaint as it relates to this appeal was the refusal of [petitioners], the City and County of San Francisco and the San Francisco Registrar of Voters, to permit official political party and party central committee endorsements of candidates for nonpartisan offices to be printed in the San Francisco Voter Pamphlet in connection with elections scheduled for June2 and November 3, 1987. [Petitioners] based their refusal to print party endorsements on the language of article II, § 6(b).” 880 F. 2d 1062 , 1063 (1989);911 F. 2d 280 , 282 (1990).
As the above discussion reveals, and as the majority recognizes, see ante, at 323-324, it is far from clear that a facial challenge to the constitutionality of § 6(b) was presented in this case. Both the District Court and the en banc Court of Appeals nevertheless invalidated § 6(b) on its face, without analyzing the nature of respondents’ claim. In doing so, they violated two important rules of judicial restraint applicable to the resolution of constitutional issues — “ ‘one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’” United States v. Raines,
II
I have no doubt that the narrow issue presented in this case is justiciable. As the majority recognizes, ante, at 319, respondents in their capacity as registered voters are alleging that § 6(b), as applied by the registrar to the voter pamphlets, interferes with their right to receive information concerning party endorsements. Such a claim finds support in our decisions, which have long held that the First Amendment protects the right to receive information and ideas, and that this right is sufficient to confer standing to challenge restrictions on speech. See, e. g., Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,
The majority nevertheless speculates that there is no standing here because a provision in the California Elections Code “might be construed to prevent candidates from mentioning party endorsements in voter pamphlets, even in the absence of § 6(b).” Ante, at 319. That makes no sense. A constitutional challenge to a law is not barred merely because other laws might also mandate the allegedly unconstitutional action. If so, it would mean that the States or the Federal Government could insulate unconstitutional laws from attack simply by making them redundant.
The majority’s confusion on this issue is illustrated by its reliance on ASARCO Inc. v. Kadish,
The difference between ASARCO and the present case is obvious. In ASARCO, the State could, by other actions, legally preclude the relief sought by the plaintiffs. By contrast, in this case if petitioners’ refusal to allow references to party endorsements in voter pamphlets is unconstitutional when based on § 6(b), it probably is also unconstitutional if based on some other state law, such as California’s Elections Code. The injury alleged by respondents, therefore, “is likely to be redressed by a favorable decision.” Simon v. Eastern Ky. Welfare Rights Organization,
I therefore dissent from the judgment ordering dismissal for want of justiciability.
Ill
Although the Court does not discuss the merits, I shall briefly outline my view that the state constitutional provision
If the State may exclude party designations from the ballot, it surely may exclude party endorsements from candidate statements contained in the official voter pamphlet prepared by the government and distributed to prospective voters. It is settled that “the First Amendment does not guarantee access to property simply because it is owned or controlled by the government.” United States Postal Service v. Council of Greenburgh Civic Assns.,
Pursuant to both local and state law, the San Francisco Registrar of Voters prepares, publishes, and distributes to voters an information pamphlet for nonpartisan municipal elections. The pamphlet contains personal statements by candidates for nonpartisan offices, the text of each ballot measure submitted to the voters, digests of the measures, and arguments for and against the measures. See Geary v. Renne,
Dissenting Opinion
with whom Justice Blackmun joins, dissenting.
Article II, §6(b) of the California Constitution provides that “[n]o political party or party central committee may endorse, support, or oppose a candidate for nonpartisan office.” In a form of action extremely familiar to the federal courts, see, e. g., Buckley v. Valeo,
The majority vacates case with instructions to dismiss. It does so not because it disagrees with the merits of respondents’ constitutional claim; indeed, the majority never reaches the merits. Rather, the majority finds a threshold defect in the “justi-ciability” of this case that did not occur to any of the courts below or to any party in more than three years of prior proceedings. Federal courts, of course, are free to find, on their own motion, defects in jurisdiction at any stage in a suit. But the majority’s conclusion that respondents have failed to demonstrate a “live controversy ripe for resolution by the federal courts,” ante, at 315, is simply not supported by the record of this case or by the teachings of our precedents. Because I cannot accept either the views expressed in, or the result reached by, the majority’s opinion, and because I would affirm the decision of the Ninth Circuit on the merits, I dissent.
I consider first the question of justiciability. Respondents are 10 registered California voters, including a chairman and certain individual members of the local Democratic and Republican Party central committees.
I would have thought it quite obvious that these allegations demonstrate a justiciable controversy. In cases in precisely the same posture as this one, we have repeatedly entertained pre-enforcement challenges to laws restricting election-related speech. See, e. g., Buckley v. Valeo, supra, at 12 (1976); Eu v. San Francisco Democratic Central Committee, supra; see also Tashjian v. Republican Party of Connecticut, supra. Indeed, standing and ripeness arguments nearly identical to those canvassed by the majority today were expressly considered and rejected by the Ninth
Essentially ignoring the case majority proceeds as if the justiciability questions presented by this case — questions of standing and ripeness — were novel and unresolved. On the issue of standing, the majority purports to find “serious questions” concerning respondents’ entitlement to challenge § 6(b). Ante, at 318. Since mere “questions” about standing cannot sustain the dismissal of a suit, one wonders why the majority offers dicta of this kind. As it turns out, the majority uses this opportunity to espouse a novel basis for denying a party standing; the proffered theory is both illogical and unsupported by any precedent. As for ripeness, which the majority finds to be the dispositive jurisdictional defect, today’s decision erroneously concludes that there is no “live dispute involving the actual or threatened application of § 6(b) to bar particular speech.” Ante, at 320. I am persuaded by neither the majority’s “doubt” whether respondents have standing, ante, at 319, nor the majority's certainty that this case is unripe.
A
In order to demonstrate standing, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright,
The majority’s “doubt” about respondents’ entitlement to proceed on a listener-standing theory
I cannot believe that surd result. Obviously, if respondents succeed on the merits of their constitutional challenge to § 6(b), the immediate effect will be to permit candidates to include endorsements in the voter pamphlet. This is so because no other law (and no other interpretation of a law that petitioners have formally announced) purports to bar inclusion of such endorsements. Perhaps, as the majority speculates, see ante, at 319, petitioners will subsequently attempt to reinstate their redaction policy under some legal authority other than § 6(b). But whether or not they ultimately do so has no consequence here. Just as a plaintiff cannot satisfy the redressability component of standing by showing that there is only a possibility that a defendant will respond to a court judgment by ameliorating the plaintiff’s injury, see Simon v. Eastern Ky. Welfare Rights Org.,
B
Under our precedents, the question whether a pre-enforcement challenge to a law is ripe “is decided on a case-by-case basis, by considering [1] the likelihood that the complainant will disobey the law, [2] the certainty that such disobedience will take a particular form, [3] any present injury occasioned by the threat of [enforcement], and [4] the likelihood that [enforcement efforts] will actually ensue.” Regional Rail Reorganization Act Cases,
The record clearly demonstrates the likelihood of both future disobedience of §6(b) and future enforcement of that provision by way of petitioners’ redaction policy. As even the majority acknowledges, see ante, at 321, some respondent central committee members have expressed an intention to continue endorsement of candidates for nonpartisan offices. Indeed, the chairman of one committee, in addition to identifying the specific candidates that the committee has endorsed in past elections, states in an affidavit that it is the committee’s “plan and intention ... to endorse candidates for nonpartisan offices in as many future elections as possible.” App. 15. Likewise, as the majority acknowledges, see ante, at 322, petitioners expressly admit in their answer to the complaint that they intend to enforce §6(b) by deleting all references to party endorsements from candidate statements submitted for inclusion in official voter pamphlets. See App. 9, ¶ XIV. Of course, petitioners will have occasion to enforce § 6(b) in this manner only if candidates seek to include such endorsements in their statements. Respondents allege and petitioners concede, however, that candidates have
It is also clear that respondents “present injury occasioned by the threat of [future enforcement].” Regional Rail Reorganization Act Cases, supra, at 143, n. 29. Obviously, the reason that parties bring preenforcement challenges to laws that restrict election-related speech is to avoid the risk that a court will be unable to dispose of a postenforcement challenge quickly enough for the challenging parties to participate in a scheduled election. Buckley v. Valeo, supra. Our mootness jurisprudence responds to this dilemma by applying the capable-of-repetition-yet-evading-review doctrine to preserve the justiciability of an election-law challenge even after the election at issue has taken place. See, e. g., Anderson v. Celebrezze,
For this reason, it is not demonstrate an “imminent application of § 6(b).” Ante, at 322. So long as the plaintiff credibly alleges that he plans to disobey an election law and that government officials plan to enforce it against him, he should not be forced to defer
Most of the majority's concerns about the ripeness of this dispute arise from the majority’s uncertainty as to the “particular form” of future violations of § 6(b). See Regional Rail Reorganization Act Cases, supra, at 143, n. 29. The majority notes, for example, that “[rjespondents do not allege an intention to endorse any particular candidate.” Ante, at 321. Similarly, the majority objects that “[w]e do not know the nature of the endorsement [that the parties will next make], how it would be publicized, or the precise language petitioners might delete from the voter pamphlet.” Ante, at 322.
In my view, these uncertainties do not detract in the slightest from the ripeness of this case. The form of future disobedience can only matter in ripeness analysis to the extent that it bears on the merits of a plaintiff’s pre-enforcement challenge. The majority never bothers to explain how the identity of the endorsed candidates, the “nature” of the endorsement, the mode of publicity (outside of candidate statements submitted for inclusion in voter pamphlets), or the precise language that petitioners might delete from the pamphlets affects the merits of respondents’ challenge. Indeed, it is quite apparent that none of these questions is relevant.
II
Because I conclude that the controversy before us is jus-ticiable, I would reach the merits of respondents’ challenge. In my view, it is clear that § 6(b) violates the First Amendment.
At the outset, it is necessary to be more precise about the nature of respondents’ challenge. In effect, respondents’ complaint states two possible First Amendment theories. The first is that § 6(b), as that provision has been applied to delete endorsements from voter pamphlets, violates the First Amendment. See App. 4-5, ¶¶ 36-39(a). The second is that § 6(b) on its face violates the First Amendment because it “purports to outlaw actions by county central committees ... to endorse, support or oppose candidates for city or county offices.” Id., at 4, ¶ 35. This second theory can be understood as an overbreadth challenge: that is, a claim that regardless of whether § 6(b) violates the First Amendment in its peripheral effect of excluding references to party endorsements from candidates’ statements, § 6(b) is unconstitutional in its primary effect of barring parties and party committees from making endorsements. See Secretary of State of Md. v. Joseph H. Munson Co.,
“the overbreadth question is ordinarily more difficult to resolve than the as-applied, since it requires determination whether the statute’s overreach is substantial . . . ‘judged in relation to the statute’s plainly legitimate sweep,’ . . . and therefore requires consideration of many more applications thán those immediately before the court.” Id., at 485 (emphasis in original), quoting Broadrick v. Oklahoma, 413 U. S. 601 , 615 (1973).
Nonetheless, the rule that a court should consider as-applied challenges before overbreadth challenges is not absolute. See, e. g., Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc.,
In my opinion, competing prudential factors clearly support considering respondents’ overbreadth challenge first in this case. Unlike the situation in Fox, the as-applied challenge here is actually more difficult to resolve than is the overbreadth challenge. Insofar as they attack petitioners’ redaction policy as unconstitutional, respondents must be understood to argue that they have a right to receive particular messages by means of official voter pamphlets or a right to communicate their own messages by that means. Either way, this argument would require us to determine the “public forum” status of the voter pamphlets, cf. Perry Education Assn. v. Perry Local Educators’ Assn.,
In addition, both the Appeals disposed of respondents’ challenge on overbreadth grounds, and that is the only theory briefed by the parties in this Court. Because the as-applied component of respondents’ challenge has not been fully aired in these proceedings, resolving the case on that basis presents a significant risk of error. For these reasons, I turn to respondents’ over-breadth challenge, which I find to be dispositive of this case.
Conceived of as an overbreadth challenge, respondents’ First Amendment attack upon § 6(h)) closely resembles the issue presented in Eu v. San Francisco Democratic Central Committee, supra. As I have noted, Eu struck down on First Amendment grounds a California law that prohibited the party central committees from “‘endors[ing], support-ting], or opposing]’ ” any candidate in primary elections for partisan offices. Id., at 217. We concluded in Eu that this “ban directly affect[ed] speech which ‘is at the core of our electoral process and of the First Amendment freedoms.’” Id., at 222-223, quoting Williams v. Rhodes,
In my view, this case is directly controlled by Eu. As in Eu, there can be no question here that the endorsements that § 6(b) purports to make unlawful constitute core political speech. And, as in Eu, this prohibition is unsupported by any legitimate compelling state interest. Petitioners assert that § 6(b) advances a compelling state interest because it assures that “local government and judges in California are . . . controlled by the people [rather than] by those who run political parties.” Brief for Petitioners 7. The only kind of “control” that §6(b) seeks to prohibit, however, is that which “those who run political parties” are able to exert over voters through issuing party endorsements. In effect, then,
Drawing on our decision in Austin v. Michigan Chamber of Commerce,
Petitioners’ reliance on Austin is unavailing. The political activity that § 6(b) limits in this case is not the expenditure of money to further a viewpoint but merely the announcement of that viewpoint in the form of an endorsement. It is difficult to imagine how a political party’s announcement of its view about a candidate could exert an influence on voters that has “little or no correlation to the public’s support for the [party’s] political ideas.” Ibid. On the contrary, whatever influence a party wields in expressing its views results directly from the trust that it has acquired among voters.
Thus, whereas the Austin Court worried that corporations might dominate elections with capital they had only accumulated by dint of “ ‘economically motivated decisions of investors and customers,’” id., at 659, the party endorsements in this case represent an expenditure of political capital accu
In the final analysis, § 6(b) and the arguments that petitioners advance in support of it reflect an ambivalence about the democratic process itself. The possibility that judges and other elective nonpartisan office holders will fall under the influence of political parties is inherent in an electoral system in which voters look to others, including parties, for information relevant to exercise of the franchise. Of course, it is always an option for the State to end the influence of the parties by making these offices appointive rather than elective positions. But the greater power to dispense with elections altogether does not include the lesser power to conduct elections under conditions of state-imposed voter ignorance. If the State chooses to tap the energy and the legitimizing power of the democratic process, it must accord the participants in that process — voters, candidates, and parties — the First Amendment rights that attach to their roles.
Because § 6(b) clearly fails to meet this standard, and because I believe that the lower courts properly determined that they were in a position to reach this conclusion now, I would affirm the judgment of the Ninth Circuit. Consequently, I dissent.
In addition, there is one organization respondent, Election Action, which is committed to placing certain referenda matters on the ballot in California. As the majority notes, see ante, at 314-315, Election Action asserts no stake in this litigation independent of the individual voters who constitute its membership.
Because all respondents clearly have standing as potential receivers of protected speech, it is unnecessary to resolve whether certain respondents also have standing, in their capacity as committee members, to contest deletion from voter pamphlets of the committee’s endorsement. Were this the only available basis for respondents’ standing, it would be necessary to determine whether individual committee members may challenge infringement of the right to publicize an endorsement that is issued by the committee as a whole. As the majority points out, this matter is “unsettled.” Ante, at 320.
In support of its novel approach to standing, the majority cites no cases in which an injury was deemed unredressable because the challenged government conduct might have been — but was not — justified with reference to some law other than the one upon which the government officials relied. Indeed, the only precedents that the majority cites, ante, at 319, are decisions imposing the general requirement that injuries be redress-able. Stated at that level of generality, the principle is uncontrovertible— but it is also of no help to the majority here.
The majority cites a series of decisions to support its view that we do not know enough about the expressive activity restricted by § 6(b) to evaluate its constitutionality. Ante, at 322. The Court’s reasoning in the cited precedents, however, only confirms the deficiencies in the majority’s analysis here. For example, in Rescue Army v. Municipal Court of Los Angeles,
The majority expresses “doubt that respondents’ complaint should be construed to assert a facial challenge to § 6(b)” because the complaint prays for an injunction only against petitioners’ redaction policy and because “[r]eferences to other applications of § 6(b) [in the complaint] are at best conelusory.” Ante, at 323-324. Justice White’s dissenting opinion expresses a similar view. Ante, at 328, 330. But neither the majority nor Justice White explains why a party raising an overbreadth challenge must seek to enjoin applications of an invalid law other than the application that is injuring him. Moreover, to require a broader request for injunctive relief here would be both unfair and unnecessary. Although respondents know which officials should be enjoined in order to halt the redaction of voter pamphlets, respondents cannot know who will next enforce § 6(b) against party central committees that seek to endorse nonpartisan candidates. See, e. g., Unger v. Superior Court,
The insistence by the majority and by Justice White that a party expressly style his claim in his complaint as a challenge based on overbreadth is also inconsistent with the liberal “notice pleading” philosophy that informs the Federal Rules of Civil Procedure. See Conley v. Gibson,
It is, of course, no impediment to proceeding on an overbreadth theory that petitioners’ redaction policy supplies the ripe controversy in this case. The thrust of an overbreadth challenge is that a party is entitled “not to be bound by a [provision] that is unconstitutional.” Board of Trustees, State Univ. of N. Y. v. Fox,