ACLU Takes on Issue of Non-Partisanship: Let My People Run!

For the second time, the San Diego ACLU is helping a retired naval officer, now a federal employee, protect his First Amendment right to run for election to the Alpine Union School District Board.

The case presents an important First Amendment question about whether the government can investigate and prosecute Christopher Newcomb solely because his opponents benefit from endorsements by political parties. Newcomb, a federal employee is running an independent, nonpartisan campaign for a local school board seat.

“We respectfully expect the court to address our core issues this time around,” said David Blair-Loy, legal director for the ACLU of San Diego & Imperial Counties. “Mr. Newcomb, a concerned citizen who wants to serve his community, should not be forced to choose between his First Amendment rights and his job. And the voters should not have to wonder whether a candidate will be disqualified from running or holding office because of activities and conduct of his opponents.”

In 2009, Newcomb was appointed to fill an unexpired position on the Alpine school board. His term expired in November 2010, and he ran for election to continue his service on the board. By California law, the school board election is nonpartisan, and Newcomb campaigned in a completely nonpartisan manner. During the campaign, however, the U.S. Office of Special Counsel (OSC) warned him that it might find him in violation of the Hatch Act, which prohibits federal employees from engaging in certain partisan political activities, and that the Act prohibited Newcomb from running in an election that becomes partisan, even if he runs independent of any political party.

The ACLU of San Diego & Imperial Counties filed a lawsuit in September 2010 on Newcomb’s behalf, arguing that it would violate the First Amendment to penalize Newcomb because other candidates, over whom he has no control, might choose to exercise their right to seek or advertise a party’s endorsement. The court dismissed that case as not “ripe” for review. But since that time, it became clear that the threat of potential Hatch Act enforcement undermined Newcomb’s campaign. Voters repeatedly asked him whether he would have to withdraw from the election or resign his seat if he was elected, and media reported several times on the issue, making Newcomb’s narrow loss (by 279 votes) almost surely attributable to the potential Hatch Act prosecution. Newcomb intends to run again in 2012 and would like to have the issue resolved before the campaign starts.

“Candidates who are endorsed by political parties receive a significant benefit,” said Blair-Loy, “most appreciably, inclusion of the candidate’s name in mailers sent out to voters.” Political parties often engage their members in promoting their preferred candidate via voter guides, letters, robo-calls, precinct canvassing and get-out-the-vote efforts. “Political parties certainly have a First Amendment right to do so, but that does not prohibit candidates for nonpartisan seats from running an independent campaign.”

Further, the San Diego ACLU lawsuit challenges the Office of Special Counsel’s implied threat to investigate and prosecute Newcomb, because the threat forces him to risk his employment as a cost of exercising his First Amendment rights. Given the closeness of the 2010 election, such a threat hovering over him would have the likely effect of impairing his ability to compete for election in 2012 and to confuse voters about his ability to win and to serve.

Newcomb graduated from the United States Naval Academy in 1987 and served as an active duty and reserve naval officer from May 1987 to June 2010. He is currently employed as an Acquisition Professional/Systems Engineer, Space and Naval Warfare Systems Command (SPAWAR) in San Diego. He lives in Alpine with his family and is dedicated to public education. He co-founded the Alpine Education Foundation, a nonprofit charity to support schools in Alpine, California, and has been involved with numerous community organizations, including the Reuben H. Fleet Science Center and San Diego Zoological Society.