Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, October 6, 1995 TAG: 9510060077
SECTION: VIRGINIA PAGE: C-3 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
DATELINE: LENGTH: Medium
This week, the Virginia Society for Human Life and three individuals filed two federal lawsuits hoping to have a state election law, which was used to stop the guides from being distributed, declared unconstitutional.
They're suing the Democratic Party of Virginia and its past leaders, members of the Virginia Board of Elections and the commonwealth's attorneys throughout the state.
The Democrats "have a history almost of election-eve injunctions," said Richard Coleson, a Terre Haute, Ind., attorney for the Virginia Society for Human Life.
The lawsuits, filed in U.S. District Court in Roanoke this week, argue that state election laws are too restrictive of issue advocacy, as when interest groups try to let voters know where candidates stand on those issues, be they gun control, abortion or other topics.
One suit wants the Democratic Party prohibited from stopping the distribution of the voter guides before next month's elections. The other suit seeks damages for injunctions the party got against the plaintiffs - two in 1989 and one in 1993 - because the groups had not registered with the state as political committees.
The plaintiffs will ask a federal judge Wednesday to issue a temporary restraining order preventing the Democrats from stopping distribution of the voter guides next month. They also want one suit made into a class action, so that the Democrats would be prevented from stopping any group, not just the ones who brought the suit.
They're also asking that a Virginia election law be declared unconstitutional because it infringes on Virginians' First Amendment rights to engage in political speech. The first suit is filed in the names of the VSHL and Andrea Sexton, a Salem resident who serves as chairwoman of the society's Roanoke Valley chapter.
The second suit is filed in the name of Mary-Beth LaRock, a Loudoun County state representative of the conservative Christian group Concerned Women for America, and Vern Jordahl, a member of the Virginia Leadership Council. Jordahl is also a Roanoke County School Board candidate. They are seeking damages and attorneys' fees for the losses they say were incurred when they were prohibited from passing out voter guides for their organizations.
The state requires groups that spend more than $100 trying to influence an election to register as "political committees" with the state and make regular reports. The only ones excluded are tax-exempt groups recognized by the Internal Revenue Service as 501(c)(3) nonprofit organizations, meaning their primary purpose is educational, religious or charitable.
The VSHL argues that having to register is burdensome and could jeopardize its nonprofit status with the IRS as a tax-exempt organization under section 501(c)(4). The group also cites a U.S. Supreme Court decision that (c)(4) organizations, which are allowed to engage in more political lobbying than (c)(3)s, should be not be restricted from advocacy in an election.
Coleson, whose firm serves as national counsel for the National Right to Life Committee, said he is not aware of another state in which a political party has convinced judges to prevent residents from passing out literature before they've done so. The party or anyone else should have to file a complaint with the Board of Elections, which would investigate whether laws were broken after the guides were passed out, Coleson said. The lawsuit maintains the Democratic Party has no standing to get an injunction.
"Why a judge allowed them to come in and get an injunction, ... I'm still baffled," he said. "The whole idea of prior restraint is repugnant to the Supreme Court."
Democratic leaders have gotten injunctions against conservative groups in Fairfax and Richmond. The Virginia Supreme Court dissolved one of those injunctions in 1993, the day before election day, but it was too late to distribute most of the guides.
The Virginia high court also issued no ruling when it overturned the trial judge's injunction, so there is no opinion to guide future decisions.
The state Democratic Party had not seen the lawsuit yet, a spokeswoman said, and would not comment on it. In the past, the Democrats have maintained that the conservative groups' voter guides actually were advocating for Republican candidates and were not simply issue-based.
ACLU of Virginia Executive Director Kent Willis said he could not comment on these lawsuits but said in general some of Virginia's campaign laws are "too restrictive in this regard."
"If they're not endorsing a candidate, they should be able to have their say about an election without any penalty," Willis said. "The way the law has been applied appears to violate the free expression clause of the First Amendment."
by CNB