This is a guest report, written and submitted by Brian Mori. Mori is a regular contributor to our sister site, The Desert Lamp. Through the Lamp and his time at the Arizona Daily Wildcat, Mori has covered stories ranging from undergraduate and graduate student government to administrative and city matters.
By Brian Mori
After convening for the first time in more than two years, the ASUA Supreme Court ruled 3-1 Monday night that sanctions against a University of Arizona student government Senate candidate will stand.
Associated Students of the University of Arizona Senate Candidate Jarett Benkendorfer filed suit against ASUA Election Commissioner Justine Piscitello after he was cited for two separate violations of the ASUA Elections Code.
In an argument against the legitimacy of the code, Benkendorfer accused the commission of violating previous ASUA Supreme Court rulings in a 1994 case that Senate candidates’ First Amendment rights cannot be denied without a “compelling government interest.”
Benkendorfer, a political science sophomore, was sanctioned in February for giving a campaign-related interview to senior Evan Lisull, creator of the Desert Lamp, a UA student government political blog, before the official start of the 2010 campaign season.
Benkendorfer was cited a second time March 3 after creating a Facebook group encouraging students to vote for Deanna Mariner, another Senate candidate, and himself.
The Facebook message did not address any specific platforms or issues, but the elections code prohibits candidates from associating on campaign materials.
In the three-strikes-and-you-might-be-disqualified student election system, Piscitello has sole jurisdiction over enforcing the elections code which regulates campaign material, but does not specifically regulate speech.
Mariner was also cited for the violation, but did not file a complaint against Benkendorfer.
Both were still eligible to run for Senate.
“It’s the principle,” Benkendorfer said shortly before Monday’s hearing began.
Benkendorfer was silent throughout the hearing and was represented by Lisull, who told the justices that portion of the commission’s code directly undermined previous ASUA court rulings, the First Amendment to the United States Constitution, and served little purpose.
The format of the hearing was similar to state and federal supreme courts. Each side presented their case and was asked questions directly from the four-judge panel of UA College of Law students.
Justice Melanie Rainer was not in attendance; Chief Justice Jen Dang said before the hearing that she could be briefed later in the event of a tie.
“There must be a compelling government interest in restricting these rights and the government must use the least restrictive means in doing so,” Lisull said. “We believe that neither apply in this case.”
Mariner did not attend the hearing, nor did she respond to e-mails.
Both sides told the justices that Mariner had voiced no opposition or complaint against Benkendorfer.
“The issue here is that he violated the code. That’s it,” said first-year law student Amanda Abeln, who represented Piscitello alongside Lauren Gizinski, also in her first year.
Abeln presented the justices with print-outs of the Facebook invitation and copies of a formal complaint made by Senate Candidate Courtney Campbell, and an unofficial complaint made via e-mail by Candidate Taylor Bilby.
A review of the documents confirmed that Campbell and Bibly reported the March violation to the ASUA Elections Commission.
“(The code) prevents one person’s reputation from carrying ten different candidates. It allows the students a more open opportunity to vote for individual candidates instead of groups,” Abeln said.
Lisull argued there was not enough potential harm to candidates to justify censoring political speech during an election, that if the commission is concerned about slander, they can address it on a case-by-case basis or change the code.
“You’re talking a blanket ban on any form of speech that comes with two names, or three names. I can think of no (more) strict way of doing this,” Lisull said. “It’s maintaining the code because it is the code.”
Piscitello did not speak at the hearing either, but wrote in a later e-mail:
“Mr. Benkendorfer caused another candidate to receive a violation against her campaign. What if the other candidate were to have been monetarily penalized or was subject to disqualification? The larger issue is that collective campaign material has the potential to instigate slander and/or negative consequences to the candidate. Perhaps a candidate does not want to be associated with another candidate in fear of negative repercussions.”
The justices questioned both sides on their interpretations of the potential for harm when candidates work together to earn votes, or when they associate with each others’ campaigns without expressed permission.
“It’s the commission’s concern that the candidates’ opinions are actually their own,” Abeln said.
Lisull quoted rulings from several First Amendment-related cases, including Gitlow v. New York (1925) which standardized the First Amendment as a part of fundamental citizen freedoms guaranteed by the Fourteenth Amendment, and Illinois State Board of Elections v. Socialist Workers Party (1979), which ruled that “the right of qualified voters, regardless of their political persuasion, to cast their votes effectively” is guaranteed by the due process clause of the Fourteenth Amendment.
Lisull argued that the ASUA Elections Code’s no-association-on-campaign-materials provision is rendered moot by allowing candidates to endorse each other through monetary donations.
“This basically has the effect of making sure they can collude together as long as voters don’t know about it,” he said.
The ASUA Elections Code allows any student to donate up to $100 to a candidate and does not prohibit candidates from donating to each other.
All candidates’ campaign expenses, however, should be documented in campaign expense reports and submitted to the commission.
Piscitello said that Lisull’s claim that the Elections Commission is uninterested in candidate collusion is untrue, and that if there was a rule against it, she would investigate.
No clear burden of evidence was established Monday night that each party would have to meet to prove their case.
Neither Lisull nor Abeln could provide examples in ASUA case law or situations on other university campuses that directly addressed regulation of student government election expression.
Lisull claimed that ASUA’s previous ruling in Wong v. ASUA (1994) required “compelling interest” to regulate expression though the national standard can be interpreted as much higher.
In the 1971 Supreme Court case New York Times v. United States, the court ruled: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”
In that case, the court ruled that the New York Times’ releasing of classified Vietnam war information was protected by the First Amendment.
Five years later, in Nebraska Press Association V. Stuart (1976), the United States Supreme Court ruled: “The barriers to prior restraint (of freedom of expression) remain high and the presumption against its use continues intact.”
The justices did not respond for comment, though their opinions should be available for public request through ASUA the week of March 22, 10 business days after the hearing.
Only about five spectators watched the proceedings Monday night, although they were open to students.