Opposition Brief — Recall '92, Inc. v. Edwards

,

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No. 93-1062 FIFFYNn

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In The

Supreme Court of the United States

October Term, 1993

o

RECALL ’92, INC., et al.,

Petitioners,

versus

EDWIN W. EDWARDS, Governor of the State

of Louisiana, et al.,

Responden ts.

.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

6

RESPONDENTS’ BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

¢

RICHARD P. Igvous

Attorney General

State of Louisiana

James M. Ross*

Assistant Attorney General

P. O. Box 94005

Baton Rouge, Louisiana 70804-9005

(504) 342-7013

Roy A. MOnGruE, JR.

Assistant Attorney General

P. O. Box 94005

Baton Rouge, Louisiana 70804-9005

(504) 342-7013

AnaciE R. LAPLact

Assistant Attorney General

P. O. Box 94005

Baton Rouge, Louisiana 70804-9005

(504) 342-7013

+

Counsel of Record Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

pr rere ry rrr os Pew rer re ee

REE er re rrr ee ae re ii

Citations of Opinions and Judgments Below ....... 1

IRE EES EEF NS ET OAS CP eT Ca 2

ee ee cou ae abe eee eeu eeed 2

EY Oe PIII o's. 6'c a 6 bee cen kecdbveesscunes 9

IEE 6h vivnb 64 Se ele were ecetc necekdesseveesenness 11

(Ec ETRE Ae eH SN aN a aD ee 17

ii

TABLE OF AUTHORITIES

Page

CASES

Burson v. Freeman, __ U.S. __, 112 S.Ct. 1846, 119

Ro Oo. | rrr arte re ne Se passim

Calchera v. Procarione, 805 F.Supp. 716 (E.D. Wisc.

NOIR ogo vv btbh 0 ndedece eee 5

CBS, Inc. v. Smith, 681 F.Supp. (1204 N.D. Ga.

1) PPT errerErrcerre vers rr rr er, kpc s 9

City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502

CSE cc cc dees vande eee Oo rere eee eee 17

Clean-Up ‘84 v. Heinrich, 759 F.2d 1511 (11th Cir.

5) A rrr rar as Pe Sy 5

Daily Herald v. Munro, 838 F.2d 380 (Ca. 1988)........ 9

Longo v. U.S. Postal Service, 953 F.2d 790, 983 F.2d 9

(Joel Ge. 1982) oe ve ade ccvaeyusa ss eee 16

Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16

LOéd. 640968... ce eee 13

NBC v. Cleland, 697 F.Supp. (1204 N.D. Ga. 1988)..... 9

U.S. v. Kokinda, 497 U.S. 720, 110 S.Ct. 3115, 111

oS” es ee eerer err rere er he tr ye ere 16

STATUTE

SARS. 103068. ...0 sithincesseieeee eee passim

No. 93-1062

¢

In The

Supreme Court of the United States

October Term, 1993

7

RECALL '92, INC., et al.,

Petitioners,

versus

EDWIN W. EDWARDS, Governor of the State

of Louisiana, et al.,

Respondents.

S

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

«

RESPONDENTS’ BRIEF IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

+

CITATIONS OF OPINIONS

AND JUDGMENTS BELOW

The opinions and judgments of the United States

District Court for the Middle District of Louisiana and the

United States Court of Appeals for the Fifth Circuit are

contained in Petitioners Appendix to its Petition for a

Writ of Certiorari. All references by Respondents in this

opposition brief will be to those decisions contained in

Petitioner’s Arpendix.

INTRODUCTION

The State of Louisiana through the named defen-

dants, Edwin W. Edwards, Governor, Richard P. leyoub,

Attorney General and W. Fox McKeithen, Secretary of

State submit this Brief in Opposition to the Petition for

Writ of Certiorari in order to point out material misstate-

ments or omissions of fact or law set forth in the petition,

in accord with this Court’s Rule 15 as well as to present

the state’s arguments for denying the petition for writ of

certiorari. Respondents will address these specific items

of perceived misstatement or omission prior to the argu-

ment for the State’s position for denying the petition.

+

STATEMENT OF THE CASE

This case involves a First Amendment challenge to

Louisiana’s electioneering law, LSA-R.S. 18:1462 which

prohibits all electioneering activity as well as to prohibit

the display of political signs, pictures, advertising and

the distribution of campaign cards, or campaign literature

of any description whatsoever, with a 600 foot radius of

the entrances to polling places on election and absentee

voting days in Louisiana.

Relying on the following this Court’s decision in

Burson v. Freeman, U.S. __, 112 S.Ct. 1846, 119 L.Ed.2d

5 (1992), the United States District Court found the chal-

lenged statute constitutional as creating a campaign-free

zone around polling places and that the statute applied to

both issues and parties whether or not they were on the

ballot. See Appendix G. The Fifth Circuit Court of

eo

Appeals affirmed that decision, see Appendix B. Peti-

tioners now ask this Court to reverse and declare the

statute unconstitutional, alleging two grounds, “(1)

whether, consistent with the First Amendment, a state

can proscribe non-ballot related political speech in areas

outside polling places on election days, and (2) at what

measurable distance from the polls does the govern-

ment’s restriction of political speech become an imper-

missible burden on First Amendment rights. Petition p. 4.

It should be noted at the outset that the statute does not

bar “political speech” but prohibits the activities set forth

in the statute as interpreted by the United States District

and Appellate Courts and the Louisiana Supreme Court

on certification from the Fifth Circuit, Schirmer, et al. v.

Edwards, et al., No. 92-CQ-2829, Appendix E. All of these

Courts correctly decided that LSA-R.S. 18:1462 did pro-

hibit the solicitation of signatures in a recall petition and

that the statute applied to that activity.

MISSTATEMENTS OR OMISSIONS

OF LAW AND FACT

First, the challenged statute is incompletely set out, in the

petition, in that sections B through F are omitted, p. 3

Appendix A, these sections were not challenged. Section

B, set out below, is however, vital, in that it exempts

private property, not used as a polling place, from the

prohibition on the placing of political signs and pictures.

This important section distinguishes two cases relied on

by petitioner in the application:

LSA-R.S. 18:1462

A. Except as otherwise provided by law, it

shall be unlawful for any person, between the

hours of 6:00 a.m. and 9:00 p.m., to perform or

cause to be performed any of the following acts

within any polling place being used in an elec-

tion on election day or within any place wherein

absentee voting is being conducted, or within a

radius of six hundred feet of the entrance to any

polling place being used in an election on elec-

tion day or any place wherein absentee voting is

being conducted:

(1) To solicit in any manner or by any means

whatsoever any other person to vote for or

against any candidate or proposition being

voted on in such election.

(2) To remain within any such polling place or

place wherein absentee voting is being con-

ducted or within a radius of six hundred feet of

the entrance of any such polling place, except

when exercising the right to vote, after having

been directed, in writing, by an election com-

missioner or law enforcement officer to leave |

the premises or are of a polling place or after

having been directed, in writing, by a registrar |

or deputy registrar to leave the place wherein

absentee voting is being conducted.

!

(3) To hand out, place, or display campaign

cards, pictures, or other campaign literature of

any kind or description whatsoever.

(4) To place or display political signs, pictures,

or other forms of political advertising.

B. The provisions hereof shall not apply to the

placing and displaying, either by the owner,

ee

lessee, or lawful occupant thereof, or with the

consent of such owner, lessee or occupant, of

political signs or pictures on private property

which is not being used as a polling place.

At p. 15 of the petition, it is alleged that there is a conflict

between the 5th Circuit’s decision in this case and the

11th circuit’s decision in Clean-Up ‘84 v. Heinrich, 759 F.2d

1511 (11th Cir. 1985). Initially respondents submit that

Clean-Up ‘84 was decided seven (7) years prior to the

Court’s landmark decision in Burson v. Freeman, supra

(1992) and that Burson represents the rule in the United

States and that there is therefore no conflict. Furthermore,

Clean-Up is distinguished by the fact that the prohibition

contained in the Florida statute did not exempt private

property as does Louisiana’s, see Section B above.

Petitioners also cite the post Burson case of Calchera v.

Procarione, 805 F. Supp. 716 (E.D. Wisc. 1993) which found

Wisconsin’s statute prohibiting campaign speech within

500 feet of the polls unconstitutional. In Calchera, the

Wisconsin statute did not exempt private property and

therefore prohibited the placement of political signs on

private property within the 500 foot radius. The Court

was uncertain as to the validity of the 500 foot zone, see

Calchera, p. 719, commenting on Burson,

“This language might suggest that the plurality

would have no problem with even a 500 foot

boundary as prescribed in Section 12.03(2).”

What the Wisconsin Court had problems with and what

was the reason for decision, the State submits, was the

private property prohibition, as follows,

“This is not a case where the legislature is

regulating expression in a public forum; section

12.03 with its sweeping zone of protection, pro-

hibits individual homeowners from expressing

their political views on their own property. p.

720”

The Louisiana statute exempts private property, LSA-R.S.

48:1462 B.

In light of the above there is no conflict in the Cir-

cuits and the later District Court case is clearly distin-

guishable from the petition herein. The state also points

out that the companion case relied on by petitioner at p.

12 & 13, State of Louisiana v. Schirmer, Appendix H is not a

final judgment and is presently docketed in the Louisiana

Supreme Court as docket No. 93-KA-2631. This is a crimi-

nal misdemeanor case and the State 1s appealing the

judgment on the motion to quash the bill of information.

Second. Petitioners in brief, at p. 21 state that Louisiana’s

restricted zone around polling places dates only from

1960. This is incorrect. A restricted zone or barrier around

polling places in Louisiana’s statutes dates from 1894. A

listing of the acts of the legislature incorporating some

barrier is of record in this case and is listed below along

with the size of the zone in that act.

(1) Act 181 of 1894, Section 17 created a 15 foot

barrier in front of each polling place and a

10 foot barrier to its side.

(2) Act 137 of 1896, Section 41 prohibited any

person from obstructing, hindering or

delaying any voter on his way to a polling

place and provided for a 6 foot barrier.

(3) Act 49 of 1906, Section 37, prohibited any

person from buying, selling or offering

anything of value to a voter, intimidating,

ae Re ET

(4)

(5)

(6)

(7)

(8)

(9)

by threat or promise, any voter for the pur-

pose of influencing his vote. It also pro-

vided for at least a six foot barrier.

In 1914, Act 277 increased the barrier from

six feet to fifty feet.

Act 97 of 1922 continued the 50 foot guard

rail, and prohibited anyone within the bar-

rier, except commissioners, watchers, and

voters actually voting. Also provided a

penalty for any person who bought any

vote or intimidated any voter.

In 1960, Act 40 increased the barrier around

the polling place to 600 feet. However, Act

221 of 1960 also increased the barrier to 300

feet and specifically repealed Act 40 of

1960. Act 40 of 1960 was again repealed by

Act 32 of 1962.

Act 221 of 1960 enacted LSA-R.S. 18:1534

with a 300 foot barrier. It also provided for

candidates to place their campaign cards or

sample ballots on a table near the entrance

to the polling place, so that a voter could

select one if he so desired, “free from the

influence, solicitation or suggestion of any

kind”.

Act 493 of 1972 amended LSA-R.S. 18:1534

to prohibit any person from polling or dis-

playing campaign cards or sample ballots

near the entrance to any polling place,

thereby repealing the language in Act 221

of 1960.

In 1980, Act 180 increased the barrier

around polling places to 600 feet. (repealed

LSA-R.S. 18:1534).

Louisiana has a 100 year history of providing some

size of restricted zone around the voting area that was

found necessary in Burson, to secure the state’s compel-

ling interest in preventing voter intimidation and election

fraud, Burson p. 1855.

Third. Petitioners at p. 10, allege that the state did not

present concrete evidence for the need of the 600 foot

barrier enacted in 1980 by Act 180. This is incorrect. The

record is replete with testimony proving the fact that the

legislature considered the 300 foot barrier insufficient and

raised the barrier to 600 feet for that reason. Representa-

tive Charles Lancaster, the author of Act 180 testified that

the 300 foot limit “was not effective in having a polling

place that was totally free from political influence on

election days.” (Transcript, Volume 3, p. 145). Representa-

tive Joe Accardo, Chairman of the House and Govern-

mental Affairs Committee of the Louisiana House of

Representatives, testified that he and that committee sup-

ported legislation increasing the distance from 300 feet to

600 feet in LSA-R.S. 18:1462. He stated,

“I supported the legislation, . . . because in

the District I live in, the 300 foot limit was very

often not enough distance to keep people who

were engaged in political activities from inter-

secting the voters who were going to the polls.

Very often the 300 foot limit was — the parking

lots were outside the 300 foot limit. Very often

people parked on the street to get to the polling

places and there were instances where there was

political activity going on by various candidates

and their supporters trying to talk to voters as

they walked to the polls or try to get to the

polls. (Transcript, Volume 3, p. 180).

The record is clear that the Louisiana legislature carefully

considered the 300 foot limit and found it to be inade-

quate, then increased that limit to 600 feet to insure that

Louisiana voters would be free of interference, fraud,

intimidation and confusion at the polls on election day.

Fourth. Petitioners in brief st p. 18 make the statement

that exit polling “is at least as intrusive and disruptive as

the activity proposed by petitioner in the instant case

which is the solicitation of signatures for a recall peti-

tion.” Petitioners attempt to rely on exit polling and

media interviewing cases, namely, Daily Herald Company

v. Munro, 838 F.2d 380 (9th Cir. 1988); NBC v. Cleland, 697

F.Supp 1204 (N.D. GA. 1988); CBS Inc. v. Smith, 681

F.Supp 794 (S.S. Fla. 1988). These cases are not applicable

to this question. Exit polling is news gathering activity

undertaken after the voter has voted, not political activ-

ity, such as an attempt to solicit signatures on a recall

petition or an attempt to campaign for a candidate.

,

The foregoing is submitted in accord with Rule 15.

The following is the state’s position on why the Judg-

ments of the District Court and Court of Appeal are

correct and that the petition for writ of certiorari should

be denied.

SUMMARY OF THE ARGUMENT

LSA-R.S. 18:1462 prohibits the political activity listed

therein including speech in the form of campaigning

within 600 feet of a polling place on election day and

during absentee voting. The decisions of the District

Court and the Fifth Circuit Court of Appeals upholding

10

the constitutionality of that statute were mandated by

this Supreme Court’s recent decision Burson v. Freeman,

112 S.Ct. 1846 (1992). It is respondents’ position that each

state has the right to provide a campaign free zone

around its polling places. That each state must rely on its

own experience in deciding what size zone it should

have. That Louisiana, like Tennessee in Burson, has pro-

vided such election laws for its citizens for approximately

100 years. That the Louisiana experience as evidenced by

its legislative acts indicates that the 600 foot zone is

deemed necessary for this purpose. That the statute is

narrowly drawn in that it restricts First Amendment

rights only while the polls are open on one or two days

every years or so and at absentee voting places and that

all other places, times and manner of political speech is

left open and unrestricted. That this statute is necessary

in order to provide Louisiana’s citizens free and unen-

cumbered access to the polls so that they may exercise

their right to vote freely and without interference, intim-

idation or confusion.

It is the State’s position that it is constitutional for the

statute to prohibit non-ballot related activity such as the

recall petition herein and without such a prohibition the

statute would be virtually unenforceable.

It is further respondents’ position that the statute, as

found by the District Court, Court of Appeal and Louisi-

ana Supreme Court on certification from the Fifth Circuit,

prohibited in section A(3) & (4) the recall petition activity

sought to be engaged in by petitioners. There is simply

11

no necessity to grant the writ to clarify Burson for its

teachings are clear.

ARGUMENT

The basis of the lower court’s decisions upholding

the constitutionality of Louisiana’s statute is this Court's

decision in Burson recognizing the state’s right to provide

a campaign free zone around polling places on election

day. The most powerful arguments for not granting the

writ and for upholding the statute’s constitutionality are

contained in Justice Blackmun’s decision in Bursom. In

that Burson settled the issues raised therein, Petitioner’s

claim that only two questions remain open for decision in

this case. First, can Louisiana proscribe political activity,

campaigning or politicking not related to items on the

election ballot and second, is Louisiana’s 600 foot cam-

paign-free zone so impermissibly large as to render it

unconstitutional.

WHAT SIZE ZONE IS PERMITTED?

Petitioners argue that the real question remaining is,

at what measurable distance from the polls does the

government's restriction on campaign activity become an

impermissible burden on First Amendment rights. The

answer to this question is again provided by Burson indi-

rectly and is: Whatever distance that is deemed necessary

by the State’s citizens through their elected representa-

tives in order to insure that the polls will be free from

accumsan

12

voter intimidation, interference, election-fraud and con-

fusion, until that zone interferes with First Amendment

rights not related to the polling place.

Respondents stress and Burson states that the autho-

rized goa! of these statutes is to have a campaign free

polling place. They are not designed to create difficulties

for political activity at the polls, they are designed to

eliminate it. Therefore, whatever distance that is neces-

sary in each state’s judgment, to accomplish the desired

end is appropriate until that distance becomes unreason-

able. New Hampshire had ten feet, Louisiana has 600 feet,

Kentucky and Wisconsin have 500 feet, thirty-eight states

have established campaign-free zones of 250 feet or less,

Petition, p.7 None of these states are right or wrong. They

simply have different judgments. This Court in Burson

has upheld Tennessee’s 100 foot zone. This question was

addressed in Burson beginning at 112 S.Ct. 1856 as fol-

lows:

“The real question is how large a restricted zone

is permissible or sufficiently tailored. . . .

Furthermore, because a government has such a

compelling interest in securing the right to vote

freely and effectively, this Court never has held

a State “to the burden of demonstrating empiri-

cally the objective efforts on political stability

that [are] produced” by the voting regulation in

question. Citing Munro v. Socialist Workers Party,

479 U.S. 189, 195 107 S.Ct. 533, 537, 93 L.Ed. 2d

499 (1986). ...

Beginning at p. 1857 Burson continued,

13

“Thus, requiring proof that a 100-foot boundary

is perfectly tailored to deal with voter intimida-

tion and election fraud would necessitate that a

State’s political system sustain some level of

damage before the legislature could take correc-

tive action. Legislatures, we think, should be

permitted to respond to potential deficiencies in

the electoral process with foresight rather than

reactively, provided that the response is reason-

able and does not significantly impinge on con-

stitutionally protected rights.” Id., at 195-196,

107 S.Ct., at 537-38 (emphasis added).

“We do not think that the minor geographic

limitation prescribed by § 2-7-111(b) constitute

such a significant impingement. Thus, we sim-

ply do not view the question whether the 100-

foot boundary line could be somewhat tighter as

a question of “constitutional dimension.”

Of course, at some distance from the polls, a campaign-

free zone would be unconstitutional. Burson again

addressed this, at p. 1857,

“At some measurable distance from the polls, of

course, governmental regulation of vote solicita-

tion could effectively become an impermissible

burden akin to the statute struck down in Mills

v. Alabama, supra.”

Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed. 484

(1966) struck down a law that made it a crime for a

newspaper editor to publish an editorial election day

urging readers to vote in a particular way. Louisiana’s 600

foot zone, and the states at 500, 250 or less are not akin to

Mills which involved no distance but was an outright ban

on political speech. Louisiana does not have to draw the

perfect distance. The statutory history reflects that in

14

1980 it considered 300 feet inadequate and amended the

statute to increase the zone to 600 feet to accomplish the

constitutionally protected purpose. The perfect distance

may be 100, 200, 300, 400 or Hawaii's 1000 foot zone, the

country’s largest. In New Hampshire’s judgment, 10 feet

is adequate. In the absence of a federal election law on

the subject, each state has the right to carve out the

campaign free zone that it deems necessary. Louisiana’s

zone is not impermissibly large. Burson answers the ques-

tions raised in petitioner’s writ application and the peti-

tion should be denied.

THE STATE CAN PROSiBIT NON-BALLOT

RELATED CAMPA‘‘;* ACTIVITY IN

THE CAMPAIGN-FREE ZONE.

The answer to this remaining issue alleged by peti-

tioner is clear to the effect that the statute may ban non-

ballot related activity. Any other answer would render

the constitutionally authorized zone meaningless for it

would allow all other campaign activity or politicking

other than ballot related activity. This would open the

environs of the polling places to candidates seeking the

same captive audience that the recall drive sought. Com-

mon sense teaches, what better place to find voters than

at a polling place. Office seekers facing upcoming elec-

tions would descend on polling places to campaign while

the voters voted. Some might even campaign for allies on

that day’s ballot until they were required to leave. Those

in favor of a recall would compete for the voters attention

with those opposed to the recall creating the kind of

political free for all that 100 years of state legislative

ee ET

15

history has sought to prevent, for one day (14 hours) and

at one place. This would unquestionably increase voter

interference, intimidation, election fraud and confusion.

All the lower Courts in this case, including the Louisiana

Supreme Court concurred that the statute banned the

non-ballot related activity engaged in by petitioner. They

found that sections (3) and (4) of LSA-R.S. 18:1462 prohib-

ited the recall signs, stands and paraphernalia used by

petitioner. These sections are set out below and appear at

petitioner's Appendix A.

LSA-R.2. 18:1462

(3) To hand out, place or display campaign

cards, pictures, or other campaign litera-

ture of any kind or description whatsoever.

(4) To place or display political signs, pictures,

or other forms of political advertising.

The Fifth Circuit held that Louisiana’s statute banning all

political activity described therein was even more defens-

ible than the Tennessee statute upheld in Burson and

would have answered some of Justice Stevens concerns

expressed in his dissent in Burson. In any event, it is clear

that without the total ban in the campaign-free zone the

statute would be potentially useless. The Fifth Circuit in

this case, reported at 2 F.3d 117, held correctly at p. 123,

“Accordingly, we find that a total ban on poli-

ticking within the campaign-free zone is not

overboard. In fact, the total ban in the present

context is the most defensible position. The state

has a compelling interest in protecting its voters

and the proffered reasons given by the legisla-

ture demonstrate a reasonable compromise to

16

the problems that necessitated the campaign-

free zone in the beginning.”

That the states or the federal government have the

constitutional power to ban campaign activity or solicita-

tion activity in certain public places is well settled by

recent decisions in the following cases. In U.S. v. Kokinda,

497 U.S. 720, 111 L. Ed. 571, 110 S.Ct. 3115 (1990) this

Court upheld a postal service regulation prohibiting

solicitation on postal service premises and the distribut-

ing of literature on a sidewalk near a post office entrance.

Of particular interest to this case is the Kokinda Court's

discussion of the nature of solicitation at p. 3123 citing

United States v. Belsky, 799 F.2d 1485 (11th Cir. 1986),

“ ‘Soliciting funds in an inherently more intru-

sive and complicated activity than is distribut-

ing literature.’ . . . [it is] more intrusive and

intimidating than an encounter with a person

giving out information.”

In the instant case, petitioners desired to set up recall

stands near the polling places to have access both to the

captive audience of those desiring to vote and also and

even more intrusive, the ability to have those who had

voted be able to return to the polls and check their

registration signatures while others were attempting to

vote. In Longo v. U.S. Postal Service, 953 F.2d 790 (2nd Cir.

1992) the Second Circuit held that a postal service regula-

tion prohibiting campaigning for election to public office

on postal service property was constitutional. On remand

after this Court’s Burson decision, the Longo court

changed its rationale but reached the same decision,

namely that the postal service could prohibit campaign-

ing on postal service property. This is a year round ban.

a

17

The electioneering statute is a one day ban and is as

narrowly drawn as is necessary to accomplish the desired

end, which is a campaign free polling place.

The Fifth Circuit and the District Court were correct

in holding that the statute, in banning the non-ballot

related activity the subject of this case, is constitutional.

¢

CONCLUSION

This Court in Burson v. Freeman, supra, has answered

all of the questions presented in petitioner’s writ applica-

tion. In order to further its constitutionally protected

compelling interest in preventing voter intimidation, elec-

tion fraud, interference and confusion, Louisiana has

established, after 100 years of statutory history, a 600 foot

campaign-free zone around the polls on election day and

absentee voting days. All fifty states have such zones.

They are narrowly drawn as to the distance and most

importantly time, namely one or two days. The statute

bans the non-ballot related activity listed therein which

included the recall petition, the subject of this case. This

is a petition that simpiy does not need to be granted

because this case was in essence, decided by this Honor-

able Court in 1992 in Burson v. Freeman.

A quote from the petition for certiorari best expresses

the philosophical differences between petitioner and

respondents. It is found at page 18 and cites a phrase

from this Court’s decision in City of Houston v. Hill, 482

U.S. 451, at 452, 107 S.Ct. 2502 (1987) as follows, “a

certain-amount of expressive disorder is inevitable in a

18

free society and must be protected if freedom is to sur-

vive.” Both this Supreme Court in Burson and the legisla-

tures of fifty states have determined that this “expressive

disorder” shall not interfere with voting at or near the

polling places on election day.

For the above reasons, Respondents ask that this

Honorable Court deny the petition for Writ of Certiorari

in this matter.

Respectfully submitted,

RicHARD P. Ievous

Attorney General

State of Louisiana

James M. Ross*

Assistant Attorney General

P. O. Box 94005

Baton Rouge, Louisiana 70804-9005

(504) 342-7013

Roy A. Monarue, Jr.

Assistant Attorney General

P. O. Box 94005

Baton Rouge, Louisiana 70804-9005

(504) 342-7013

Ancie R. LAPLAcE

Assistant Attorney General

P. O. Box 94005

Baton Rouge, Louisiana 70804-9005

(504) 342-7013

"Counsel of Record Counsel for Respondents