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Tim Myers: History, signs, shoulder shrugging and constitutional law

Myers' Musings

Posted: March 27, 2010 8:40 p.m.
Updated: March 28, 2010 4:55 a.m.
 
Today, Santa Clarita stands just 15 days from the counting of the votes for the City Council election. I say vote-counting day rather than election day, because right now 70 percent to 75 percent of the votes cast for the 2010 election sit in the City Clerk's office or in the hands of the Postal Service.

The already determined winners make me think of "B" students two days after a stunning 2,300 performance on the SAT, awaiting the official score posting on the secure Web. (It no longer comes in the mail.) The already determined losers make me think of victims of a deadly poison that will not kick in until 8 p.m. on vote-counting day, and then with absolutely lethal effect.

Every player in the election process now acknowledges this voting pattern, with all serious candidates sending out their expensive mailers and third-party media endorsements publicized before the mailing of the absentee ballots. So, with the election basically finished, I turn to making a historical record of this election, unique in so many ways, and also providing a short lesson in constitutional law.

Let us consider the issue of candidate signage. A few "truisms" relate to this issue locally. Experts state unequivocally that campaign signage negligently affects the outcome of local elections, yet in every election one sees accusations and now videotape of sign theft (or attempted theft) and vandalism.

City officials state clearly that city workers will (and have) removed campaign signs found in the public right of way. Add to this an assertion that incumbents erect signs that violate the local ordinances regarding size, and one is left scratching their head wondering if Santa Clarita achieved a state of anarchy and lawlessness with everyone shirking the valid laws.

I will assert the fact that most (read all) of the city's ordinance regarding campaign signage and other unique campaign issues, like contribution limits, completely violate the U.S. Constitution's First Amendment right of free speech. Everyone knows it, including the city attorney, who throws a "shoulder shrug" when questioned about violations in open meetings.

He shrugs his shoulders, not due to a charley horse, but because he realizes these laws would collapse upon any serious constitutional challenge. So, one should not hold his or her breath for the imposition of a find or other punitive action against rogue candidates and campaigns.

The reasons revolve around four terms. "Fundamental" and "non-fundamental" rights, and "strict scrutiny" versus "rational basis."
A fundamental right includes one of the many rights enshrined in the First Amendment and, more recently, the Second Amendment to the Constitution. A nonfundamental right includes obtaining a driver's license (a "privilege not a right," quoting Coach Anderson, my high school driving instructor).

Any law limiting a "fundamental right" will face "strict scrutiny" in any constitutional challenge. Under strict scrutiny, the government must show a "compelling interest" for the law and prove it most narrowly tailored the law to achieve that compelling interest.

In any law limiting a "non-fundamental right," the government must only prove a rational basis for the law, and the person challenging the law must prove it over-reaches.

Consider the case of the driver's license. Since obtaining a license does not constitute a fundamental right, the government possesses great latitude in regulating their issuance with only a showing of rationality. Therefore, a government can decide that the minimum age for a license should increase to 18 without a factual showing of a real relationship to the government's compelling interest of safety.

But now consider the issue of campaign signs, certainly related to one of the most fundamental rights of political speech. Can the city show a compelling interest in keeping campaign signs below a certain size and out of the public right of way?

The only possible compelling interest might relate to traffic safety, but then the city would need to factually show (not just believe) that citizens distracted by campaign signs - particularly large campaign signs - regularly use their cars to mow down pedestrians and crash into other motorists.

Constitutional law history shows every law limiting a fundamental right ends up reversed when held up to strict scrutiny, or, in this case, the shrugging of the city attorney's shoulders.

Tim Myers is a Valencia resident. His column reflects his own views and not necessarily those of The Signal. "Myers' Musings" appears Sundays in The Signal.

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