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High Court Rules--and Attorneys Scratch Their Heads

January 13, 1987|DAVID G. SAVAGE | Times Staff Writer

WASHINGTON — In a move that puzzled attorneys on both sides of the case, the Supreme Court on Monday told an appeals court to take another look at its ruling that threw out a California law forbidding political parties from endorsing candidates before primary elections.

But the justices said that the lower court should base its review on a recent high court ruling, which said that states cannot dictate the internal affairs of a political party.

Following the logic of that ruling would suggest that the California ruling was correct, attorneys involved said.

"Maybe they were confused by the case," said one attorney who asked not to be identified.

"It's hard to make heads or tails of it," said another lawyer, Cedric Chao of San Francisco, who represented the county central committees in San Francisco and Los Angeles that contested the state law. "We see the two opinions as consistent, so we'd like to see the 9th Circuit just reaffirm its decision."

Voter Control

At stake is what the state calls the "Progressive era reform" that in the early 1900s gave the voters control of the party primaries. The state Election Code prohibits parties or their county central committees from endorsing candidates so that no one has that advantage in the primaries.

In 1983, attorneys for the party committees filed suit, charging that state law violated their right to free speech and free association. A district court ruled for the party officials in 1984 and last year the U.S. 9th Circuit Court of Appeals upheld that judgment.

"It is readily apparent that the (state) regulations burden the parties' right to govern themselves as they think best," the appeals court said. "It is the right of the party, not the state, to decide how the party shall be governed."

In September, attorneys for Secretary of State March Fong Eu and Atty. Gen. John K. Van de Kamp appealed that ruling to the high court.

But before the justices decided on the appeal, they issued a final opinion in a somewhat similar case from Connecticut. On Dec. 10, the justices, on a 5-4 vote, threw out a Connecticut state law that said only voters registered with a party may vote in that party's primary elections. In ruling for the state Republicans, the justices said that the state law "impermissibly burdens the rights of the party and its members protected by the First and 14th Amendment."

Sent Back to Lower Court

On Monday, the high court issued a brief order in the California case (Eu vs. San Francisco County Central Committee, 86-434), sending it back to the 9th Circuit Court "for further consideration in light of" the Connecticut ruling (Tashjian vs. the Republican Party of Connecticut, 85-766).

It added that Justice John Paul Stevens favored affirming the existing appeals court ruling, while Chief Justice William H. Rehnquist "took no part in the consideration or decision of this case." There was no explanation for Rehnquist's action, although the lead attorney for the political parties was James Brosnahan, a San Francisco lawyer who testified at Rehnquist's confirmation hearing last year and accused him of harassing black voters at a Phoenix polling place in 1964.

Geoffrey Graybill, an attorney representing the California officials, said he did not understand the basis for the high court's action, but added that he was pleased to have a second chance to contest the case before the appeals court.

The state law "protects the democratic process," he argued, by preventing party officials from influencing the outcome of primary elections or who gets on the ballot in statewide and local general elections.

An attorney representing party officials said that he hopes the appeals court will again uphold the party's right to run its own affairs.

"I don't think there's any doubt this would strengthen the political parties in California, which most political scientists say are very weak," Chao said. "If the parties have a right to issue endorsements, it would be seen as more meaningful to participate in party affairs."

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