Renne v. Geary/Concurrence Stevens

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 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 County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (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 District, 475 U.S. 534, 544, 106 S.Ct. 1326, 1332, 89 L.Ed.2d 501 (1986), however, no such plaintiff presenting a ripe controversy is before us. Alternatively, 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' 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 Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756, and n. 14, 96 S.Ct. 1817, 1823, and n. 14, 48 L.Ed.2d 346 (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 Election Code. That section 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 endorsements 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 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. #fn-s

After listing the defendants, the complaint sets forth the background for its three causes of action:

"In connection with each municipal election, the City and     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 &Par; 11-20. The second cause of action challenges the Registrar's charge of a fee for ballot arguments. Id., &Par; 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 actions by the Registrar with regard to the voter pamphlets. Specifically, respondents alleged:

"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 voter's 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:

"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 office      to be printed in the San Francisco Voter Pamphlet in      connection with elections scheduled for June 2 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 (CA9 1989); 911 F.2d 280, 282      (CA9 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, 362 U.S. 17, 21, 80 S.Ct. 519, 522, 4 L.Ed.2d 524 (1960), quoting Liverpool, New York & Philadelphia S.S.C.o. v. Commissioners of Emigration, 113 U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899 (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 Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-757, 96 S.Ct. 1817, 1822-1823, 48 L.Ed.2d 346 (1976); Kleindienst v. Mandel, 408 U.S. 753, 762, 92 S.Ct. 2576, 2581, 33 L.Ed.2d 683 (1972); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 1247, 22 L.Ed.2d 542 (1969).

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, 109 S.Ct. 2037, 2044-2045, 104 L.Ed.2d 696 (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, 109 S.Ct., at 2043. 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 Org.,'' 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976).

The majority's concerns about the ripeness of respondents' challenge, see ante, at 320-323, also are not sufficient to preclude our review. Although I agree with the majority that the possible applications of § 6(b) to speech by political parties and their members is not properly before us, here respondents have alleged, and petitioners have admitted, that San Francisco's Registrar of Voters has deleted references to political party endorsements from candidate statements printed in official voter pamphlets, and that he threatens to continue to do so in the future. See App. 5, ¶ 38; id., at 9, ¶ XIV. Indeed, the majority admits that the record contains "evidence of a credible threat that § 6(b) will be enforced . . . against candidates in the context of voter pamphlets." Ante, at 322. The Registrar's past conduct makes his threat "sufficiently real and immediate to show an existing controversy." O'Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974). See, e.g., Blum v. Yaretsky, 457 U.S. 991, 1000-1001, 102 S.Ct. 2777, 2783-2784, 73 L.Ed.2d 534 (1982) (allowing nursing home residents to sue to prevent threatened transfers); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974) (allowing action for declaratory relief based on threats of enforcement of antihandbilling statute). It is well settled that " '[o]ne does not have to await the consummation of threatened injury to obtain preventive relief.' " Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979), quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923). This is particularly true in the election context, where we often have allowed pre-enforcement challenges to restrictions on speech. See, e.g., Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (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 at issue in this case is constitutional as applied to the exclusion of party endorsements from the official voter pamphlets. California has decided that its "[j]udicial, school, county, and city offices shall be nonpartisan." Cal. Const., Art. II, § 6(a). I am confident that this provision is valid at least in so far as it authorizes the State not to identify on the official ballot candidates for nonpartisan offices as the candidates of political parties. The interests proffered as supporting California's nonpartisan provision-promotion of the impartial administration of government, prevention of corruption, and the avoidance of the appearance of bias-are interests that we have already held are sufficiently important to justify restrictions on partisan political activities. See CSC v. Letter Carriers, 413 U.S. 548, 565, 93 S.Ct. 2880, 2890, 37 L.Ed.2d 796 (1973). These interests are also similar to the interests supporting limitations on ballot access and voting eligibility that have been upheld by this Court. See American Party of Texas v. White, 415 U.S. 767, 786, 94 S.Ct. 1296, 1308, 39 L.Ed.2d 744 (1974); Storer v. Brown, 415 U.S. 724, 736, 94 S.Ct. 1274, 1282, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752, 761, 93 S.Ct. 1245, 1251, 36 L.Ed.2d 1 (1973); Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971).

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, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (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 Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 46, n. 7, 103 S.Ct. 948, 955, n. 7, 74 L.Ed.2d 794 (1983). Refusing to permit references in candidate statements to party endorsements is therefore plainly constitutional.

Accordingly, I would reverse the judgment of the Court of Appeals.

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, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (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., 111 S.Ct. 750, 112 L.Ed.2d 771 (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. Respondents' complaint alleges that petitioner municipal officials relied upon § 6(b) to adopt a policy of deleting "all references . . . to [party] endorsement[s]" from candidate statements submitted for inclusion in official "voter pamphlets" and that petitioners have announced their intention to make such redactions in future elections. App. 5, ¶ 38. The existence of the redaction policy is expressly admitted by petitioners in their answer. See id., at 9, ¶ XIV. Respondents maintain that this policy frustrates the "desire [of respondent committee members] . . . to publicize [party] endorsements" and the "desire [of all respondents] to read endorsements" in the voter pamphlets. Id., at 4-5, &Par; 36-37. The complaint prays for a declaration that § 6(b) violates the First Amendment and for an injunction against petitioners' continued enforcement of § 6(b) by means of the redaction policy. Id., at 6, &Par; 3, 6.

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, 424 U.S., at 12, 96 S.Ct., at 631; Eu v. San Francisco County 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 Circuit in Eu, see San Francisco County Democratic Central Committee v. Eu, 826 F.2d 814, 821-824 (1987), which no doubt explains why the lower courts and the parties did not even bother to return to these issues in this case.

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 profferred 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, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). In my view, "careful . . . examination of [the] complain[t]," id., at 752, 104 S.Ct., at 3325, 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, &Par; 37-38. As the majority acknowledges, see ante, at 319, our cases recognize that "listeners" suffer a cognizable First Amendment injury when the State restricts speech for which they were the intended audience. See, e.g., Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-757, 96 S.Ct. 1817, 1822-1823, 48 L.Ed.2d 346 (1976); see also San Francisco County Democratic Central Committee v. Eu, supra, (applying "listener" standing in election-law setting), aff'd, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). Nor can there be any doubt that the injury that respondents allege as listeners of election speech is "fairly traceable" to petitioners' redaction policy. Finally, this injury would, in my view, be redressed by the relief requested by respondents, for an injunction against the redaction policy would prevent petitioners from continuing to block respondents' access to committee endorsements in voter pamphlets.

The majority's "doubt" about respondents' entitlement to proceed on a listener-standing theory relates wholly to redressability. The majority notes that a provision in the California Election Code bars inclusion of a candidate's party affiliation in the statement submitted for publication in a voter pamphlet. See Cal.Elec.Code Ann. § 10012 (West 1977 and Supp.1991). The majority speculates that, if respondents succeed in invalidating § 6(b), petitioners might henceforth rely on § 10012 as a basis for continuing their policy of deleting endorsements. See ante, at 319. Articulating a novel theory of standing, the majority reasons that the registrar's possible reliance upon § 10012 to implement the same policy currently justified by reference to § 6(b) would defeat the redressability of respondents' listener injury.

In my view, this theory is not only foreign to our case law but is also clearly wrong. If the existence of overlapping laws could defeat redressability, legislatures would simply pass "backup" laws for all potentially unconstitutional measures. Thereafter, whenever an aggrieved party brought suit challenging the State's infringement of his constitutional rights under color of one law, the State could advert to the existence of the previously unrelied-upon backup law as an alternative basis for continuing its unconstitutional policy, thereby defeating the aggrieved party's standing.

I cannot believe that Article III 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, 96 S.Ct. 1917, 1926, 48 L.Ed.2d 450 (1976), so a defendant cannot defeat the plaintiff's standing to seek a favorable judgment simply by alleging a possibility that the defendant may subsequently act to undermine that judgment's ameliorating effect.

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, 419 U.S. 102, 143, n. 29, 95 S.Ct. 335, 358, n. 29, 42 L.Ed.2d 320 (1974). Like the pre-enforcement challenges in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989); and Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (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 sought to advert to such endorsements in their statements in the past and that petitioners have always deleted them from the voter pamphlets. Id., at 5, ¶ 38; id., at 9, ¶ XIV. When combined with the clearly expressed intentions of the parties, these allegations of "past wrongs" furnish sufficient evidence of "a real and immediate threat of repeated injury." O'Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974).

It is also clear that respondents have alleged sufficient "present injury occasioned by the threat of [future enforcement]." Regional Rail Reorganization Act Cases, supra, 419 U.S., at 143, n. 29, 95 S.Ct., at 358, 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, 103 S.Ct. 1564, 1567, n. 3, 75 L.Ed.2d 547 (1983); First National Bank of Boston v. Bellotti, 435 U.S. 765, 774-775, 98 S.Ct. 1407, 1414-1415, 55 L.Ed.2d 707 (1978); Storer v. Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274, 1282, n. 8, 39 L.Ed.2d 714 (1974); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 1494, 23 L.Ed.2d 1 (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, 415 U.S., at 737, n. 8, 94 S.Ct., at 1283, 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 initiation of suit until the election is so "imminent" that it may come and go before his challenge is adjudicated. See Regional Rail Reorganization Act Cases, supra, 419 U.S., at 143, 95 S.Ct., at 358 (" 'One does not have to await the consummation of threatened injury to obtain preventive relief,' " quoting Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923)). Indeed, in Buckley v. Valeo, supra, we held a pre-enforcement challenge to be justiciable even though the case was filed in the District Court nearly two years before the next scheduled national election. See id., 424 U.S., at 11-12, 96 S.Ct., at 630-631. Similarly, nothing in Eu v. San Francisco County Democratic Central Committee, supra, and Tashjian v. Republican Party of Connecticut, supra, suggests that elections were "imminent" when those cases were filed.

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, 419 U.S., at 143, n. 29, 95 S.Ct., at 358, 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. In Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), we struck down a similar California provision that barred party endorsements in primary elections for partisan offices. See id., at 222-229, 109 S.Ct., at 1019-1024. Nothing in our analysis turned on the identity of the candidates to be endorsed, the nature or precise language of the endorsements, or the mode of publicizing the endorsements. Similarly, here we can dispose of respondents' challenge to § 6(b) knowing simply that party central committees will continue to make endorsements of candidates for nonpartisan offices and that petitioners will continue to redact those endorsements from the voter pamphlets.

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, &Par; 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, 104 S.Ct. 2839, 2851-2852, 81 L.Ed.2d 786 (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").

As the majority notes, it is this Court's "usual . . . practice . . . [not] to proceed to an overbreadth issue . . . before it is determined that the statute would be valid as applied." Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-485, 109 S.Ct. 3028, 3037-3038, 106 L.Ed.2d 388 (1989). This is so because "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 than those   immediately before the court." Id., at 485, 109 S.Ct.,  at 3037 (emphasis in original), quoting Broadrick v.   Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37  L.Ed.2d 830 (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., 482 U.S. 569, 573-574, 107 S.Ct. 2568, 2571-2572, 96 L.Ed.2d 500 (1987) (considering overbreadth challenge first); Houston v. Hill, 482 U.S. 451, 458-467, 107 S.Ct. 2502, 2507-2513, 96 L.Ed.2d 398 (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, 103 S.Ct. 948, 956, 74 L.Ed.2d 794 (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 pamphlets. Moreover, the constitutional doctrine relevant to § 6(b)'s restriction of party speech is well settled. See Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989). Rather than undertaking to determine what sort of "public forum" voter pamphlets might constitute-a finding that could have broad ramifications, see, e.g., Patterson v. Board of Supervisors of City and County of San Francisco, 202 Cal.App.3d 22, 248 Cal.Rptr. 253 (1988) (suit challenging constitutionality of §§ 3795 and 5025 of California Election Code, authorizing deletions from arguments about ballot propositions in the voter pamphlet)-a court should, if possible, resolve this constitutional challenge by well-settled doctrine. See, e.g., Webster v. Reproductive Health Services, 492 U.S. 490, 525-526, 109 S.Ct. 3040, 3060-3061, 106 L.Ed.2d 410 (1989) (O'CONNOR, J., concurring in part and concurring in judgment).

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 County 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., 489 U.S., at 217, 109 S.Ct., at 1017. 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, 109 S.Ct., at 1019-1020, quoting William v. Rhodes, 393 U.S. 23, 32, 89 S.Ct. 5, 11, 21 L.Ed.2d 24 (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, 109 S.Ct., at 1023. 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, 109 S.Ct., at 1020, quoting ''Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc.,'' 425 U.S., at 770, 96 S.Ct., at 1829; see 489 U.S., at 228-229, 109 S.Ct., at 1023-1024.

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, petitioners are arguing that the State has an interest in protecting "the people" from their own susceptibility to being influenced by political speech. This is the very sort of paternalism that we deemed illegitimate in Eu.

Drawing on our decision in Austin v. Michigan Chamber of Commerce, 494 U.S., 110 S.Ct. 1391, 108 L.Ed.2d 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, 110 S.Ct., at 1397. 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." 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, 110 S.Ct., at 1403, the party endorsements in this case represent an expenditure of political capital accumulated through past voter support. And, whereas the special benefits conferred by state law in Austin "enhance[d]" the corporations' "ability to attract capital," id., at, 110 S.Ct., at 1397, the benefits California confers upon parties-e.g., permitting taxpayers to make voluntary contributions to parties on their tax returns-should have little effect on the parties' acquisition of political capital. In sum, the prospect that voters might be persuaded by party endorsements is not a corruption of the democratic political process; it is the democratic political process.

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.