90-769 -- CONCUR v. GEARY

No. 90-769

[June 17, 1991]

Justice Stevens, 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 liti- gation depends entirely on whether the complaint should be construed as making a facial challenge or an as-applied chal- lenge -- for it is apparent that Justice White and Justice Marshall may both be interpreting the merits of their re- spective 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 in- cluding 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 endorse- ments 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 of- fice but were inhibited from doing so because of the constitu- tional provision, the case would unquestionably be ripe. Cf. Eu v. San Francisco County Democratic Central Commit- tee, 489 U.S. 214 (1989). Because I do not believe an indi- vidual member of a party or committee may sue on behalf of such an organization, see Bender v. Williamsport Area School District, 475 U.S. 534, 544 (1986), however, no such plaintiff presenting a ripe controversy is before us. Alterna- tively, if this action had been brought by a candidate who had been endorsed by a political party and who sought to include that endorsement in his or her candidate's statement, we would also be confronted with a ripe controversy.

Unlike such scenarios, however, the respondents in this case are voters. They claim, based on petitioners' represen- tations, 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 Phar- macy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756, and n. 14 (1976) (allowing listeners of po- tential speech to bring an anticipatory challenge where the parties stipulate that "a speaker exists"). Arguably, re- spondents have met this hurdle by offering several affidavits of members of party central committees stating that the com- mittees 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 can- didates for nonpartisan office would seek to mention the party endorsements in their statements if petitioners' policy of deleting such endorsements were declared invalid (more- over, to prove injury to their interest as informed voters, re- spondents would perhaps also have to allege that they would not otherwise know about the endorsements if the endorse- ments are not included in mailed candidates' statements). This latter hurdle has not, in my opinion, been met by re- spondents 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 inher- ent 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 Election Code. That sec- tion plainly prohibits the inclusion of the party affiliation of candidates in nonpartisan elections, and unquestionably would provide an adequate basis for petitioners' challenged policy even if the constitutional prohibition against endorse- ments were invalidated. Even if we were to strike down 6(b) as overbroad, then, it is unclear whether respondents' alleged injury would be redressed.

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 in- jury 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 preju- dice, and the courts would benefit from a more precise articu- lation 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.