JUSTICE KENNEDY 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."
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 association
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. 708 F.Supp. 278 (1988). The court entered judgment on this claim pursuant to Federal Rule of Civil Procedure 54(b), and petitioners appealed. A Ninth Circuit panel reversed, 880 F.2d 1062 (1989), but the en banc Court of Appeals affirmed the District Court's decision, 911 F.2d 280 (1990).
We granted certiorari, 498 U.S. 1046 (1991), to determine whether § 6(b) violates the First Amendment. At oral argument, doubts arose concerning the justiciability of that issue in the case before us. Having examined the complaint and the record, we hold that respondents have not demonstrated a live controversy ripe for resolution by the federal courts. As a consequence of our finding of nonjusticiability, we vacate the Ninth Circuit's judgment and remand with instructions to dismiss respondents' third cause of action.
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., 475 U.S. 534, 546 (1986), quoting King Bridge Co. v. Otoe County, 120 U.S. 225, 226 (1887). "`It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.'" Bender, supra, at 546, n. 8, quoting Warth v. Seldin, 422 U.S. 490, 517-518 (1975).
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 [respondents']
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:
An affidavit submitted by a Democratic committeeman states that "[i]n elections since 1986, the Democratic committee
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 speakers
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. Respondents
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, 419 U.S. 102, 136-148 (1974). Respondents have failed to demonstrate a live dispute involving the actual or threatened application of § 6(b) to bar particular speech. Respondents' generalized claim that petitioners have deleted party endorsements from candidate statements in past elections does not demonstrate a live controversy. So far as we can discern from the record, those disputes had become moot by the time respondents filed suit. While the mootness exception for disputes capable of repetition yet evading review has been applied in the election context, see Moore v. Ogilvie, 394 U.S. 814, 816 (1969), that doctrine will not revive a dispute which became moot before the action commenced. "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief
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 actual
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, 442 U.S. 289, 306 (1979); see also Webster v. Reproductive Health Services, 492 U.S. 490, 506 (1989) (plurality opinion). It is not clear from the language of the provision, for instance, that it applies to individual members of county committees. This apparent construction of the provision by petitioners, which may give respondents standing in this case, could be held invalid by the state courts. State courts also may provide further definition to § 6(b)'s operative language, "endorse, support, or oppose." "Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function." Longshoremen v. Boyd, 347 U.S. 222, 224 (1954).
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 overbreadth challenge, one seeking invalidation of the statute because its application in other situations would be unconstitutional. See Broadrick v. Oklahoma, 413 U.S. 601 (1973). We have some doubt that respondents' complaint should be construed to assert a facial challenge to § 6(b). Beyond question, the gravamen of the complaint is petitioners' application of § 6(b) to delete party endorsements from candidate statements in voter pamphlets. While the complaint seeks a declaration
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, 492 U.S. 469, 484-485 (1989); see also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-504 (1985). If the as-applied challenge had been resolved first in this case, the problems of justiciability that determine our disposition might well have concluded the litigation at an earlier stage.
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.
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., 489 U.S. 214 (1989). Because I do not believe an individual member of a party or committee may sue on behalf of such an organization, see Bender v. Williamsport Area School Dist., 475 U.S. 534, 544 (1986), however, no such plaintiff presenting a ripe controversy is before us. Alternatively, if this action
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., 425 U.S. 748, 756, and n. 14 (1976) (allowing listeners of potential speech to bring an anticipatory challenge where the parties stipulate that "a speaker exists"). Arguably, respondents have met this hurdle by offering several affidavits of members of party central committees stating that the committees plan to endorse candidates for nonpartisan office and to seek to have those endorsements publicized. See, e. g., App. 15. Second, respondents must prove that specific candidates for nonpartisan office would seek to mention the party endorsements in their statements if petitioners' policy of deleting such endorsements were declared invalid (moreover, to prove injury to their interest as informed voters, respondents would perhaps also have to allege that they would not otherwise know about the endorsements if the endorsements are not included in mailed candidates' statements). This latter hurdle has not, in my opinion, been met by respondents in such a way as to ensure that we are confronted by a definite and ripe controversy.
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 section
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.
JUSTICE WHITE, 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, the complaint sets forth the background for its three causes of action:
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 is the one that is at issue in this case. That cause of action, like the two before it, concerns
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." 708 F.Supp. 278, 279 (ND Cal. 1988). Similarly, both the original Ninth Circuit panel and the en banc panel stated:
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, 362 U.S. 17, 21 (1960), quoting Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). See also 911 F. 2d, at 304-305 (Rymer, J., dissenting) (arguing that § 6(b) should not be invalidated on this record).
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., 425 U.S. 748, 756-757 (1976); Kleindienst v. Mandel, 408 U.S. 753, 762 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,
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, 490 U.S. 605, 615-616 (1989). There, the plaintiffs challenged the validity of a state statute governing mineral leases, basing their standing on the claim that the statute deprived school trust funds of millions of dollars and thereby resulted in higher taxes. Id., at 614. Four Members of this Court noted that even if the statute were struck down, it was far from clear that the plaintiffs would enjoy any tax relief: "If respondents prevailed and increased revenues from state leases were available, maybe taxes would be reduced, or maybe the State would reduce support from other sources so that the money available for schools would be unchanged." Ibid.
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, 426 U.S. 26, 38 (1976).
I therefore dissent from the judgment ordering dismissal for want of justiciability.
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., 453 U.S. 114, 129 (1981). The voter information pamphlet obviously is not a traditional public forum, and its use may be limited to its intended purpose, which is to inform voters about nonpartisan elections. See Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46, n. 7 (1983). Refusing to permit references in candidate statements to party endorsements is therefore plainly constitutional.
JUSTICE MARSHALL, 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, 424 U.S. 1 (1976); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214 (1989); Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), respondents brought a pre-enforcement challenge to § 6(b), seeking a declaration that § 6(b) violates the First Amendment and an injunction against its application to candidate statements published in official "voter pamphlets." We granted certiorari in this case, 498 U.S. 1046 (1991), to review the decision of the Ninth Circuit, sitting en banc, that § 6(b) violates the First Amendment.
The majority vacates the judgment below and remands the 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 "justiciability" 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 wealth of relevant case law, the 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.
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, 468 U.S. 737, 751 (1984). In my view, "careful . . . examination of [the] complain[t]," id., at 752, makes it clear that these requirements are met in this case. All of the individual respondents are registered voters in California. See App. 2, ¶ 1. Moreover, all allege that petitioners' redaction policy has injured them in that capacity by restricting election-related speech that respondents wish to consume. See id., at 5, ¶¶ 37-38. As the majority acknowledges, see ante, at 319, our cases recognize that "listeners"
The majority's "doubt" about respondents' entitlement to proceed on a listener-standing theory
I cannot believe that Article II contemplates such an absurd 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., 426 U.S. 26, 43 (1976), so a defendant cannot defeat the plaintiff's standing to seek a favorable judgment simply by alleging a possibility that the defendant may
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  the likelihood that the complainant will disobey the law,  the certainty that such disobedience will take a particular form,  any present injury occasioned by the threat of [enforcement], and  the likelihood that [enforcement efforts] will actually ensue." Regional Rail Reorganization Act Cases, 419 U.S. 102, 143, n. 29 (1974). Like the pre-enforcement challenges in Buckley v. Valeo, 424 U.S. 1 (1976); Eu v. San Francisco Democratic Central Committee, 489 U.S. 214 (1989); and Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986), this case easily satisfies these requirements.
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 have alleged sufficient "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 pre-enforcement 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, 460 U.S. 780, 784, n. 3 (1983); First National Bank of Boston v. Bellotti, 435 U.S. 765, 774-775 (1978); Storer v. Brown, 415 U.S. 724, 737, n. 8 (1974); Moore v. Ogilvie, 394 U.S. 814, 816 (1969). But insofar as the purpose of entertaining a case in that mootness posture is not to remedy past wrongs but rather to "simplif[y] future challenges [and] thus increas[e] the likelihood that timely filed cases can be adjudicated before an election is held," Storer v. Brown, supra, at 737, n. 8 (emphasis added), it would be quite anomalous if ripeness doctrine were less solicitous of the interests of a party who brings a pre-enforcement challenge.
For this reason, it is surely irrelevant that the record does 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 "[r]espondents 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.
Because I conclude that the controversy before us is justiciable, 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., 467 U.S. 947, 965-966 (1984) (party who suffers unwanted but constitutionally permissible effect of a law may nonetheless succeed in voiding that law by showing that "there is no core of easily identifiable and constitutionally proscribable conduct that the [provision] prohibits").
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., 482 U.S. 569, 573-574 (1987) (considering overbreadth challenge first); Houston v. Hill, 482 U.S. 451, 458-467 (1987) (same). Rather, the rule represents one prudential consideration among many in determining the order in which to evaluate particular constitutional challenges.
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., 460 U.S. 37, 48 (1983), an issue on which the law is unsettled, see generally L. Tribe, American Constitutional Law § 12-24, p. 987 (2d ed. 1988) (noting "blurriness . . . of the categories within the public forum classification"). By contrast, respondents' overbreadth challenge is easily assessed. In the first place, the application of § 6(b) to party speech that "endorse[s], support[s], or oppose[s] a[ny] candidate for nonpartisan office" clearly is "substantial" when compared with § 6(b)'s only alleged "legitimate" application, namely, the redaction of voter
In addition, both the District Court and the Court of 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' overbreadth challenge, which I find to be dispositive of this case.
Conceived of as an overbreadth challenge, respondents' First Amendment attack upon § 6(b) 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[ing], or oppos[ing]'" 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, 393 U.S. 23, 32 (1968). We also determined that this prohibition was unsupported by any legitimate compelling state interest. The State defended the endorsement ban on the ground that it was necessary to prevent voter "confusion and undue [party] influence." See 489 U. S., at 228. Properly understood, this claim amounted to no more than the proposition that the State could protect voters from being exposed to information on which they might rationally rely, a "`highly paternalistic'" function to which the State could not legitimately lay claim. Id., at 223, quoting Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S., at 770; see 489 U. S., at 228-229.
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, 494 U.S. 652 (1990), petitioners try to repackage the State's concern to protect voters from themselves as an interest in avoiding "corruption" of the electoral process. The law that was at issue in Austin barred corporations from making political expenditures from their corporate treasuries in favor of, or in opposition to, political candidates. We upheld the constitutionality of that law, finding that a State could legitimately prohibit "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Id., at 660. Petitioners argue that California similarly should be able to prohibit political parties from using their special place in the political process to exercise a disruptive effect upon the election of nonpartisan office holders.
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 accumulated
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.
Karl Olson, Steven R. Shapiro, and Alan L. Schlosser filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
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, 355 U.S. 41, 47-48 (1957); see generally Fitzgerald v. Codex Corp., 882 F.2d 586, 589 (CA1 1989) ("[U]nder Fed. R. Civ. P. 8 it is not necessary that a legal theory be pleaded in the complaint if plaintiff sets forth `sufficient factual allegations to state a claim showing that he is entitled to relief' under some [tenable] legal theory" (emphasis in original)). I am particularly perplexed by JUSTICE WHITE'S determination that "[t]he courts below erred in treating respondents' challenge in this case as a facial challenge." Ante, at 328 (emphasis added). At every stage of this litigation, beginning with respondents' summary judgment motion, the parties have framed the constitutional question exclusively in terms of § 6(b)'s application to party endorsements, precisely the overbreadth argument that JUSTICE WHITE declines to reach. See Points and Authorities in Support of Summary Judgment in No. C-87-4724 AJZ (ND Cal.), pp. 22-26; Memorandum of Points and Authorities in Opposition to Summary Judgment in No. C-87-4724 AJZ (ND Cal.), pp. 20-41; Brief of Appellant in No. 88-2875 (CA9), pp. 7-18; Brief of Appellees in No. 88-2875 (CA9), pp. 5-36. In such circumstances, I do not understand what authority this Court would have for reversing the decision below, sua sponte, simply because the lower courts upheld a theory of relief not expressly relied upon in the complaint. See generally 5 C. Wright and A. Miller, Federal Practice and Procedure § 1219, p. 190 (2d ed. 1990) (text of Federal Rules "makes it very plain that the theory of the pleadings mentality has no place under federal practice").