California’s voter guide booklet allows candidates wide leeway in what they are allowed to say to people going to the polls.
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Before California’s 23 million registered voters cast their ballots, they receive a guide from state election officials to help inform their decisions. The voter guide publishes entire campaign statements submitted by the candidates.
But with it being relatively simple to run for office in California, what if a candidate with no real chance of winning decides to use the guide as a vehicle for publishing statements that could be seen as unhinged?
Don Grundmann of Santa Clara, who was 54th out of 61 candidates in the June 2 race for governor as of Wednesday evening, submitted a campaign statement that said Israel had killed right-wing political activist Charlie Kirk with a bomb, “rules our conquered Republic,” orchestrated al Qaeda’s terrorist attacks on the World Trade Center and the Pentagon on Sept. 11, 2001, and considers Palestinians, Christians and Americans its “sworn forever enemy.”
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It was published verbatim.
Election officials, and some legal analysts, say the Constitution’s First Amendment, and its California counterpart, bar the government from censoring statements based on their opinions, even if they promote bigotry or hatred.
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A group of legislators is now sponsoring a bill that would allow the state to remove objectionable material from election documents it circulates to voters.
But once the state agrees to circulate candidates’ statements in official ballot pamphlets, “it can’t restrict offensive viewpoints or bigoted viewpoints,” Eugene Volokh, a legal scholar at Stanford’s Hoover Institution, said in response to this week’s introduction of AB1853 by Assembly Member Gail Pellerin, D-Santa Cruz.
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And Matt Coles, a law professor at UC College of Law-San Francisco, said that in a publication submitted to voters in the name of the government, “the state may limit the content of statements, but not (their) viewpoint.”
The bill, supported by the Legislature’s Jewish Caucus and Jewish California, a coalition of Jewish groups, would apply to ballot statements that California Secretary of State Shirley Weber provides to voters from candidates for state office. The law now requires Weber to provide a candidate’s entire statement of up to 250 words, as long as it does not mention other candidates by name, but AB1853 would require her to remove attacks on individuals or groups and any false or misleading claims.
“Hate speech has no place in California’s official voter materials,” Pellerin said in a statement Tuesday. Asked about free-speech concerns, she replied that her bill “does not limit a candidate’s ability to speak; it establishes reasonable standards for content included in an official taxpayer-funded voter guide.”
David Bocarsly. CEO of Jewish California, said the legislation would allow Weber’s office to enforce guidelines that the office has suggested for campaign statements but lacks power to enforce under court rulings.
“Candidates have the right to share their positions on any number of issues – whether bigoted or not – in the public domain,” Bocarsly told the Chronicle. “A document approved by the state and sent to 23 million Californians is not the public domain, and the State has every right to bar language from its platform that can foment hate.”
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But Volokh said the Supreme Court has clearly prohibited any government interference with expressions of viewpoints, by election candidates and other private parties.
In a 2017 ruling, Matal v. Tam, the court ordered the U.S. Patent and Trademark Office to register the name of an Asian rock band, the Slants, which it had refused to do because it found the name to be disparaging. “Speech may not be banned on the grounds that it expresses ideas that offend,” Justice Samuel Alito wrote for an eight-member majority.
Similarly, in Healy v. James, an eight-member majority led by Justice Lewis Powell ordered Central Connecticut State College in 1972 to recognize a campus chapter of the leftist Students for a Democratic Society without requiring SDS to prove that recognition would not be harmful.
Weber, a Democrat, was appointed by Gov. Gavin Newsom as the state’s top elections official in 2021, won a four-year term in 2022 and will be on the November ballot for re-election against Republican Don Wagner. In a May 7 letter to the American Jewish Committee, she said she has “tremendous concern” over statements like Grossmann’s but must preserve freedom of speech.
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“I condemn antisemitism, just as I condemn all forms of racism, religious intolerance and bigotry,” Weber wrote. But she said the candidate’s statement had been reviewed by experts in her office and the office of state Attorney General Rob Bonta, and they found “no legal basis to reject the statement or remove it from the Voter Information Guide, even taking into account its inflammatory, controversial, or offensive content.”