Court Overturns Ban on Candidates Mentioning Their Opponents

News Release: 
Monday, November 2, 2009

Noting that freedom of speech is "essential to our democratic ideals," U.S. District Court Judge Robert Lasnik today overturned the ban on candidates mentioning their opponents in the City of Seattle's voter pamphlet. The ruling came in a lawsuit filed by the ACLU challenging the Seattle Ethics and Election Commission's censorship of candidate statements. Agreeing with the ACLU's arguments, Judge Lasnik found that the restriction on candidate statements violates the First Amendment because it bans the expression of certain viewpoints.

"Candidates should be free to tell the public clearly and directly why they are running for public office. Disagreement with an opponent's record is a major reason why many citizens become candidates. It's ridiculous for the government to prevent them from mentioning their opponent," said Kathleen Taylor, Executive Director of the ACLU.

The suit was filed on behalf of Grant Cogswell, a candidate for City Council, whose statement for this month's primary election pamphlet was rejected by the Seattle Ethics and Election Commission on grounds that it mentioned his opponent. As a result of the ruling, candidates for office will be able to mention opponents in statements in the voter pamphlet for the November general election.

Another candidate, Mark Sidran, who is running for Mayor, also submitted a candidate statement that the Commission rejected. Much of the rejected language did not even refer to Sidran's opponents but simply described significant problems he perceives in the current city government. A declaration from Sidran was included in the lawsuit.

Grant Cogswell is running for City Council because of his concern for transportation issues, and his opposition to the incumbent's record on these issues is central to his candidacy. In a July 31, 2001 letter, the Ethics and Elections Commission rejected the statement Cogswell submitted because it mentioned his opponent's record in office. (Statement is included at end of this press release.) The Commission accepted for publication an alternative candidate statement by Cogswell that did not mention the incumbent.

Case law makes clear that the election pamphlets are "limited public forums," and that the government cannot enforce discrimination based on viewpoint in such forums. In his ruling, Judge Lasnik pointed out that, "In the circumstances of this case, allowing the incumbent to talk about his record and achievements while denying plaintiff the opportunity to talk about those same topics provides the public with only one side of a debatable subject and deprives plaintiff of a fair opportunity to present himself and his candidacy to the voters."

Judge Lasnik noted that freedom of speech has traditionally been considered a fundamental right in this country "not only because its facilitates intelligent self-government, but also because the free exchange of ideas is the best method by which to arrive at the truth."

The ACLU is a nonpartisan organization and does not endorse candidates for elected office. Cooperating attorneys William Rava, Noah Levine, and Lisa Willmer of the law firm Perkins Coie handled the case for the ACLU.

Statement of Grant Cogswell Rejected by Seattle Ethics and Election Commission 

"Sound Transit refuses to consider monorail even though Seattle voted for it twice. The incumbent, Councilmember McIver, was originally appointed – not elected – to his seat on the city council in 1996. Since taking office, McIver has served as a key board member of Sound Transit and lobbied against grants for Monorail from that agency; voted for the legislation that repealed the first Monorail Initiative; hesitated to stand against the forces on regional committees who want more lanes on SR 520, and is failing to pursue sensible public transportation solutions for the city and the region."

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