Chula Vista Citizens for Jobs & Fair Competition v. Norris , 755 F.3d 671 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHULA VISTA CITIZENS FOR JOBS No. 12-55726
AND FAIR COMPETITION; LORI
KNEEBONE; LARRY BREITFELDER; D.C. No.
ASSOCIATED BUILDERS AND 3:09-cv-00897-
CONTRACTORS OF SAN DIEGO, INC., BEN-JMA
Plaintiffs-Appellants,
v. OPINION
DONNA NORRIS; MAYOR CHERYL
COX; PAMELA BENSOUSSAN; STEVE
CASTANEDA; JOHN MCCANN, in his
official capacity as Member of the
Chula Vista City Council; RUDY
RAMIREZ, JR., in his official
Capacity as Member of the Chula
Vista City Council,
Defendants-Appellees,
STATE OF CALIFORNIA,
Intervenor-Defendant–Appellee.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
November 6, 2013—Pasadena, California
2 CHULA VISTA CITIZENS V. NORRIS
Filed June 16, 2014
Before: Diarmuid F. O’Scannlain, Susan P. Graber,
and Carlos T. Bea, Circuit Judges.
Opinion by Judge O’Scannlain, in which Judge Graber
joins, except as to Part IV, and in which Judge Bea joins,
except as to Part III. Judge Graber filed an opinion
dissenting as to Part IV. Judge Bea filed an opinion
concurring as to Part III.
SUMMARY*
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded in an action
brought by two associations and two individuals alleging that
certain provisions of the California Elections Code pertaining
to initiatives and referenda, as incorporated into the Chula
Vista, California Charter, violated the First Amendment.
Plaintiffs challenged the state and local requirements that:
(1) official proponents of local ballot initiatives be electors,
which excludes non-natural persons and thereby excludes
associations; and (2) official initiative proponents identify
themselves on the face of the initiative petitions.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHULA VISTA CITIZENS V. NORRIS 3
The panel first determined that as to the challenge to the
elector requirement, abstention under Railroad Commission
v. Pullman Co., 312 U.S. 496 (1941), was not warranted
because the challenge implicated the chilling of expression
and the parties had not indicated that there were any pending
actions in the California courts.
Affirming the district court’s summary judgment to the
defendants on the elector requirement, the panel held that
associations do not have a First Amendment right to serve as
official proponents of local ballot initiatives.
Reversing the district court’s summary judgment to the
defendants as to the petition-proponent disclosure
requirement, the panel held that the requirement did not
satisfy exacting scrutiny and therefore §§ 9202 and 9207 of
the California Elections Code were invalid to the extent that
the provisions require official initiative proponents to identify
themselves on the face of initiative petitions.
Concurring in part and dissenting in part, Judge Graber
agreed with the majority opinion that the case was properly
before the court, and concurred in Part III of the opinion,
which held that the elector requirement passed constitutional
muster. She wrote separately to dissent from Part IV of the
opinion and stated that the petition-proponent disclosure
requirement survived any level of review.
Concurring, Judge Bea joined all of the majority opinion
except for Section III, which analyzed the local and state
requirements that official ballot initiative proponents be
electors, thereby excluding associations. Judge Bea wrote
that although he concurred in the result of Section III, he
believed that the majority opinion employed an incorrect test
4 CHULA VISTA CITIZENS V. NORRIS
to determine whether the elector requirement burdened any
First Amendment rights.
COUNSEL
James Bopp, Jr., The Bopp Law Firm, PC, Terre Haute, IN,
argued the cause for the Plaintiff-Appellant. Richard E.
Coleson, The Bopp Law Firm, PC, Terre Haute, IN, filed the
briefs for the plaintiff-appellant. With him on the briefs were
James Bopp, Jr., The Bopp Law Firm, PC, Terre Haute, IN;
Charles H. Bell, Jr., and Brian T. Hildreth, Bell, McAndrews
& Hiltachk, LLP, Sacramento, CA; and Gary D. Leasure,
Workman Leasure, LLP, San Diego, CA.
Charles A. Bird, McKenna Long & Aldridge, LLP, San
Diego, CA, argued the cause and filed a brief for the
Defendant-Appellee.
George Waters, Deputy Attorney General of California,
Sacramento, CA, argued the cause and filed a brief for the
Defendant-Intervenor–Appellee. With him on the brief were
Kamala D. Harris, Attorney General of California; Douglas
J. Woods, Senior Assistant Attorney General; and Peter A.
Krause, Supervising Deputy Assistant Attorney General,
Sacramento, CA.
CHULA VISTA CITIZENS V. NORRIS 5
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether associations have a First
Amendment right to serve as official proponents of local
ballot initiatives and the extent to which the same
Amendment protects the anonymity of initiative proponents.
I
A
This case arises from a political battle concerning labor
unions. Chula Vista Citizens for Jobs and Fair Competition
(“Chula Vista Citizens”), an unincorporated association, and
Associated Builders and Contractors of San Diego, Inc., an
incorporated association of construction-related businesses
(“the Associations”), sought to place an initiative on the
Chula Vista municipal ballot. As described by the title of the
initiative, the proposed measure “mandat[ed] that the City or
Redevelopment Agency not fund or contract for public works
projects where there [was] a requirement to use only union
employees.” The City of Chula Vista requires that initiative
proponents be electors (“the elector requirement”), which
excludes non-natural persons from serving as official
proponents. Faced with this obstacle, Chula Vista Citizens
asked two of its members, Lori Kneebone and Larry
Breitfelder, to serve as proponents in place of the
Associations. They agreed.
Section 903 of the Chula Vista Charter incorporates the
provisions of the California Elections Code that govern
initiatives and referenda “so far as such provisions of the
6 CHULA VISTA CITIZENS V. NORRIS
Election Code are not in conflict with [the] Charter.” The
code establishes several requirements that official proponents
must meet to qualify an initiative. First, proponents must file
a notice of intent to circulate an initiative petition for
signatures, and such notice must be signed by at least one but
not more than three proponents. Cal. Elec. Code § 9202(a)
(the “notice-filing requirement”). Defendant Donna Norris,
as the City Clerk, receives and processes these filings.
Proponents must include the written text of the initiative and
may include a 500-word statement of “reasons for the
proposed petition.” Id. The City Attorney then provides a
title and summary of the measure to the proponents. Id.§ 9203.
Because the City has a newspaper of general circulation,
the proponents must publish the notice of intent, title, and
summary in such newspaper and submit proof of publication
to the City Clerk. Id. § 9205(a) (the “publication
requirement”).1 Only at that point can the proponents begin
circulating their petition for signatures. Id. § 9207.
The initiative petition is typically divided into “sections”
to facilitate gathering signatures. See id. § 9201. Each
section of the petition must “bear a copy of the notice of
intention and the title and summary prepared by the city
attorney.” Id. § 9207. Because § 9202(a) requires
proponents to sign the notice, the effect of § 9207 is that the
identities of official proponents are disclosed to would-be
signatories of the petition (the “petition-proponent disclosure
requirement”). Proponents have 180 days to file the signed
1
Where no such newspaper exists for either the city or the county, the
same information must be posted at three designated public places in the
city. Cal. Elec. Code § 9205(b).
CHULA VISTA CITIZENS V. NORRIS 7
petitions with the City Clerk bearing the requisite number of
signatures. Id. § 9208. The City Clerk informs the
proponents whether they have gathered enough valid
signatures to qualify the initiative for the ballot. Whether the
initiative appears on the ballot or immediately becomes law
depends on the number of signatures gathered and the actions
taken by the City Council.
Kneebone and Breitfelder made two attempts to qualify
the initiative for the ballot. The first attempt (“First Petition”)
began on August 28, 2008, with the filing of the notice of
intent. Kneebone and Breitfelder later submitted 23,285
signatures to Norris after having complied with all the
requirements except one: They had not included their names
on the notice that appeared on the circulated petitions.
Instead, as Kneebone and Breitfelder later informed Norris,
they printed the following statement at the end of each
circulated petition: “Paid for by Chula Vista Citizens for Jobs
and Fair Competition, major funding by Associated Builders
& Contractors PAC and Associated General Contractors PAC
to promote fair competition.” On November 12, 2008, Norris
rejected the First Petition for failure to include the
proponents’ signatures on the notice accompanying the
circulated petitions.
The Associations again asked Kneebone and Breitfelder
to serve as proponents, which the pair again agreed to do.
The second attempt (“Second Petition”) began with the notice
filing on March 13, 2009. It complied with all
requirements—including the requirement that circulated
petitions bear the proponents’ signatures—appeared on the
June 8, 2010 municipal election ballot, and was approved by
voters.
8 CHULA VISTA CITIZENS V. NORRIS
B
On April 28, 2009, after Norris rejected their First
Petition but before qualifying the Second Petition, the
plaintiffs brought this 42 U.S.C. § 1983 suit in the Southern
District of California seeking declaratory and injunctive
relief. The complaint alleged that the elector and petition-
proponent disclosure requirements, both facially and as
applied, violate the First Amendment. On June 4, the
plaintiffs moved for a preliminary injunction and for an
expedited hearing. Because provisions of the state election
code were at issue, the State of California intervened as a
defendant.
The district court held a hearing on the preliminary
injunction motion on August 19. The next day, it ordered
supplemental briefing as to whether the Elections Code did,
in fact, require that official proponents be natural persons.
On March 8, 2010, the district court denied the preliminary
injunction motion as moot in light of the success of the
Second Petition, and it stayed consideration of the § 1983 suit
pending the Supreme Court’s decision in Doe v. Reed,
561 U.S. 186 (2010). When the district court lifted the stay,
both sides filed motions for summary judgment. The district
court granted summary judgment to Norris and her co-
defendants on March 22, 2010. It entered its judgment on
April 10, and plaintiffs timely appealed.
II
We must first determine whether the dispute over the
elector requirement is properly before us. The parties
disagree about whether the elector requirement is mandated
by state law, municipal law, or the City’s interpretation of
CHULA VISTA CITIZENS V. NORRIS 9
either body of law. Relying on the Supreme Court’s decision
in Railroad Commission v. Pullman Co., 312 U.S. 496(1941), Norris urges us to abstain from deciding the merits of
this case if doing so would require us to resolve a contested
issue of state law.
“[W]hen a federal constitutional claim is premised on an
unsettled question of state law, the federal court should stay
its hand in order to provide the state courts an opportunity to
settle the underlying state-law question and thus avoid the
possibility of unnecessarily deciding a constitutional
question.” Harris Cnty. Comm’rs Court v. Moore, 420 U.S.
77, 83 (1975). Pullman abstention counsels against deciding
unnecessary federal constitutional questions, but it is also
premised on “avoid[ing] federal-court error in deciding state-
law questions antecedent to federal constitutional issues.”
See Arizonans for Official English v. Arizona, 520 U.S. 43, 76
(1997). Because abstention “does not implicate [federal
courts’] subject matter jurisdiction,” we are “never required
to apply Pullman.” Columbia Basin Apartment Ass’n v. City
of Pasco, 268 F.3d 791, 802 (9th Cir. 2001). “Abstention is,
of course, the exception and not the rule, and [the Supreme
Court has] been particularly reluctant to abstain in cases
involving facial challenges based on the First Amendment.”
City of Houston v. Hill, 482 U.S. 451, 467 (1987) (internal
citation omitted).
We consider three factors when deciding whether
Pullman abstention is appropriate: “(1) there are sensitive
issues of social policy upon which the federal courts ought
not to enter unless no alternative to its adjudication is open,
(2) constitutional adjudication could be avoided by a state
ruling, and (3) resolution of the state law issue is uncertain.”
10 CHULA VISTA CITIZENS V. NORRIS
Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010)
(internal quotation marks omitted).
The Supreme Court has held that abstention in the First
Amendment context is disfavored because “the delay of
state-court proceedings might itself effect the impermissible
chilling of the very constitutional right [the plaintiff] seeks to
protect.” Hill, 482 U.S. at 467–68 (internal quotation marks
omitted). Our court has been particularly loath to abstain in
First Amendment cases: “We have held that, in First
Amendment cases, the first Pullman factor will almost never
be present because the guarantee of free expression is always
an area of particular federal concern.” Porter v. Jones,
319 F.3d 483, 492 (9th Cir. 2003) (internal quotation marks
omitted). This concern “applies to both facial and as-applied
challenges.” Id. at 493. In fact, we have abstained only once
in a First Amendment context, and that case had an “unusual
procedural setting” because the “issue in question was already
before the state supreme court.” Id. at 493–94. In every
other procedural setting, we have rejected abstention.
The challenge to the elector requirement implicates the
chilling of expression. Hill, 482 U.S. at 467–68. Indeed, if
the elector requirement is unconstitutional, the Associations
are being completely deprived of a constitutional right.
Moreover, the parties have not indicated that there are any
pending actions in the California courts. Porter, 319 F.3d at
492. In this context, the first Pullman factor is not met, and
abstention is not warranted. Id. The merits are thus before
us.2
2
Despite the successful qualification and passage of the initiative
advocated by the plaintiffs, this case is not moot because it is “capable of
repetition, yet evading review.” Fed. Election Comm’n v. Wis. Right to
CHULA VISTA CITIZENS V. NORRIS 11
III
The First Amendment provides, “Congress shall make no
law . . . abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.” U.S. Const.
amend. I. By virtue of the Fourteenth Amendment, the First
Amendment applies to actions by state governments.
Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947). The
Associations contend that the elector requirement abridges
the rights of speech, association, and petition. They further
argue that strict scrutiny applies to the elector requirement
and results in its invalidity. We begin with the threshold
issue of whether the elector requirement implicates the First
Amendment.
A
Although the Associations allege violations of speech,
associational, and petition rights, our analysis will focus on
the freedom of speech. The Associations mention their
petition claim, but they provide no legal authority to support
it. “A passing reference to an issue in a brief is not enough,
and the failure to make arguments and cite authorities in
support of an issue waives it.” Hamilton v. Southland
Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012);
Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993).
Thus, we do not address the Associations’ petition claim.
The Associations also allege that the elector requirement
is an unconstitutional condition on their right to associate for
Life, Inc., 551 U.S. 449, 462 (2007); see also Davis v. Fed. Election
Comm’n, 554 U.S. 724, 735 (2008).
12 CHULA VISTA CITIZENS V. NORRIS
purposes of political expression. See Speiser v. Randall,
357 U.S. 513, 520–29 (1958). In the First Amendment
context, the right to associate is not a free-standing right;
rather, one has the right to associate for the purpose of
engaging in activities protected by the First Amendment. Boy
Scouts of Am. v. Dale, 530 U.S. 640, 647–48 (2000); Roberts
v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984). The
Associations claim that serving as an official proponent is
protected by the Free Speech Clause, and thus that they have
a right to associate for the purpose of serving as official
proponents. Thus, if serving as an official proponent is not an
aspect of free speech, the condition imposed by the elector
requirement does not violate the associational rights of the
First Amendment. See Dale, 530 U.S. at 648 (“To determine
whether a group is protected by the First Amendment’s
expressive associational right, we must determine whether the
group engages in ‘expressive association.’”); City of Dallas
v. Stanglin, 490 U.S. 19, 25 (1989) (holding that, where the
First Amendment does not protect a certain activity, there can
be no First Amendment right of association to engage in that
activity). Because the Associations’ claim regarding freedom
of association depends on the success of their Free Speech
claim, we focus on the latter claim.
The question, then, is whether the elector requirement is
a law “abridging the freedom of speech.” U.S. Const.
amend. I.
B
To know whether the elector requirement abridges the
freedom of speech, it is important to identify precisely what
sort of infringement the requirement allegedly commits. The
CHULA VISTA CITIZENS V. NORRIS 13
Associations list several activities performed by official
proponents that they contend are protected speech:
[B]eing a proponent involves core political
activity beyond ministerial acts of signing and
filing things. A “proponent” begins with an
idea about an issue, creates the text of an
initiative to implement that idea, does the
necessary publication of notices to qualify it,
circulates petitions and/or arranges with
others to do so, and advocates for the
initiative.
The Associations’ listing of these ostensibly expressive
activities implies that associations are prohibited from
engaging in them. But the Associations’ actions in this case
belies that implication. As stated in their complaint, the
Associations “decided to propose the Initiative.” “Chula
Vista Citizens filed its required Clerk’s Version” of the
initiative text, just as “Chula Vista Citizens published the
Newspaper Version,” for which “[n]either Ms. Kneebone nor
Mr. Breitfelder paid any money.” “Chula Vista Citizens
hired The La Jolla Group to circulate the Petition in the City,”
and, as the district court pointed out, the Associations were
free to advocate for the initiative’s qualification and
enactment. In short, the Associations were able to participate
in all of the activities they mention.
However, the Associations were dependent on Kneebone
and Breitfelder as official proponents in order to engage in
these activities. That is the gravamen of their alleged injury.
The Associations believe the elector requirement violates the
Free Speech Clause because, in their words, “speech-by-
proxy is not a constitutionally permissible alternative because
14 CHULA VISTA CITIZENS V. NORRIS
it does not allow associations themselves to speak.” The
Associations would rather have the legal authority to engage
in these activities without relying on natural persons to serve
as proxies, and that requires them to be official proponents.
What the Associations seek, then, is the legal authority
attaching to the status of an official proponent,3 and this
amounts to a claim that serving as an official proponent is a
form of “speech” protected by the First Amendment.
C
We must next determine the nature of the legal authority
of official proponents. The Associations do not dispute that
the initiative power is a legislative power. And rightly so. As
the California Supreme Court has said, the initiative process
“represents an exercise by the people of their reserved power
to legislate.” Builders Ass’n of Santa Clara-Santa Cruz
Cntys. v. Superior Court, 529 P.2d 582, 586 (Cal. 1974).4
3
The mere fact that the Associations have to rely on proxies to
participate in these activities is insufficient, by itself, to violate the Free
Speech Clause. If serving as an official proponent is not part of the
freedom of speech, then it does not matter, for First Amendment purposes,
that the Associations must rely on proxies who can serve as official
proponents. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310,
337–40 (2010).
4
In determining whether the authority of official proponents is
legislative in nature, our inquiry is two-fold: (1) what powers, duties, and
responsibilities are delegated to official proponents, and (2) whether those
powers, duties, and responsibilities are legislative in character for First
Amendment purposes? California law, and the state courts’ interpretation
of California law, is dispositive as to the first question, but the second
question—which determines whether the First Amendment is implicated
by the elector requirement—is up to federal courts to decide.
CHULA VISTA CITIZENS V. NORRIS 15
Norris argues that the distinct role of proponents is to
introduce legislation: “[T]he legal acts of a Proponent are acts
of legislating, exercising the inherent, reserved power of
citizens to legislate for the entity in which they reside.”
Under this theory, because the initiative process is a
lawmaking one, the activities that commence that process are
analogous to the introduction of legislation. At least two
California appellate courts support this description of the
initiative process. San Francisco Forty-Niners v. Nishioka
said the following:
The initiative petition with its notice of
intention is not a handbill or campaign flyer—
it is an official election document subject to
various restrictions by the Elections Code,
including reasonable content requirements of
truth. It is the constitutionally and
Our two-step analysis is no different than what we do in myriad areas
of constitutional law. See, e.g., Memphis Light, Gas & Water Div. v.
Craft, 436 U.S. 1, 9 (1978) (“The Fourteenth Amendment places
procedural constraints on the actions of government that work a
deprivation of interests enjoying the stature of ‘property’ within the
meaning of the Due Process Clause. Although the underlying substantive
interest is created by an independent source such as state law, federal
constitutional law determines whether that interest rises to the level of a
legitimate claim of entitlement protected by the Due Process Clause.”
(internal quotation marks omitted)); see also Town of Castle Rock v.
Gonzales, 545 U.S. 748, 756–57 (2005) (same). This method of analysis
is all the more important when federal courts seek to analyze the structure
of state government, implicating bedrock principles of federalism and state
sovereignty. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71
(1978) (“Government . . . is the science of experiment, and a State is
afforded wide leeway when experimenting with the appropriate allocation
of state legislative power.” (internal quotation marks and citation
omitted)).
16 CHULA VISTA CITIZENS V. NORRIS
legislatively sanctioned method by which an
election is obtained on a given initiative
proposal.
89 Cal. Rptr. 2d 388, 396 (Ct. App. 1999). Widders v.
Furchtenicht stated that the legislative process begins once a
petition is circulated for signatures: “An initiative is put
before the people when they are asked to sign a petition to
place it on the ballot . . . .” 84 Cal. Rptr. 3d 428, 438 (Ct.
App. 2008) (internal quotation marks and citation omitted).
If the activities involved in qualifying an initiative for the
ballot start the legislative process, then official proponents
exercise part of the legislative power.
The Associations resist this characterization. They
distinguish between placing an initiative on the ballot (which
they concede is a legislative function) and asking electors to
place an initiative on the ballot (which they contend is a non-
legislative act). At oral argument, the Associations
analogized initiative proponents to lobbyists: The official
proponents come to the legislators (i.e., the electors) with a
proposal and ask the legislators to introduce a bill (i.e., sign
the petition to place the initiative on the ballot).
The problem with the Associations’ proffered distinction
is that the incidental role the Associations assign to official
proponents is inconsistent with the responsibilities conferred
on official proponents by the California Elections Code. As
the California Supreme Court has said, “[O]fficial proponents
of an initiative measure are recognized as having a distinct
role—involving both authority and responsibilities that differ
from other supporters of the measure.” Perry v. Brown,
265 P.3d 1002, 1017–18 (Cal. 2011). Official proponents
determine when the process will begin by filing the relevant
CHULA VISTA CITIZENS V. NORRIS 17
documents, Cal. Elec. Code § 9202(a), craft the text of the
initiative that will be put before the people, id., ensure that
the people know that the initiative process has commenced,
id. § 9205(a)–(b), and exercise a measure of control over the
arguments in favor of the initiative to which the people will
be exposed, id. § 9287. Thus, the California Elections Code
“place[s] an obligation upon the official proponents of an
initiative measure to manage and supervise the process by
which signatures for the initiative petition are obtained.”
Perry, 265 P.3d at 1017. If public officials refuse to defend
a successful initiative in court, official proponents may
“intervene or [] participate as real parties in interest in a
judicial proceeding to assert the state’s interest in the
initiative’s validity and to appeal a judgment invalidating the
measure.” Id. at 1025. But see Hollingsworth v. Perry,
133 S. Ct. 2652, 2663–67 (2013) (holding that official
proponents of California’s Proposition 8 lacked Article III
standing in federal court). These rights and responsibilities
are hardly consistent with the Associations’ minimalist
characterization of official proponents.
Perhaps most tellingly, unlike a lobbyist’s suggestion to
a legislator, qualifying an initiative for the ballot is a
necessary step for the people to exercise the initiative power.
See Cal. Elec. Code § 9200 (authorizing municipal initiatives
“pursuant to” the rules in the Elections Code); cf. Costa v.
Superior Court, 128 P.3d 675, 685 (Cal. 2006) (discussing
procedural challenges to ballot initiatives). In this critical
respect, it is more like introducing legislation. Thus, by
seeking the legal authority of official proponents, the
Associations seek the legislative power of setting the
initiative process in motion.
18 CHULA VISTA CITIZENS V. NORRIS
D
We turn now to the question of whether serving as an
official proponent, as we have described that status, is an
aspect of the freedom of speech protected by the First
Amendment.
The Associations rely primarily on Meyer v. Grant,
486 U.S. 414 (1988). In Grant, Colorado forbade initiative
proponents from employing paid petition circulators to gather
signatures. Id. at 417. The Court held that “[t]he circulation
of an initiative petition of necessity involves both the
expression of a desire for political change and a discussion of
the merits of the proposed change.” Id. at 421. Thus, it
applied exacting scrutiny to the challenged ban. Id. at 420,
428.
As the district court astutely observed, Grant held that
“advocation and circulation” of a petition is protected by the
First Amendment, but no one disputed the legal status of the
initiative proponents in Grant. Whether the activities of an
official proponent are protected by the freedom of speech is
a distinct question from whether serving as an official
proponent (that is, having the legal authority attaching to
official proponents) has the same protection. Thus, the issue
presented by the Associations is unanswered by Grant.
Indeed, it is one that neither the Supreme Court nor our
circuit has decided.
The Supreme Court has, however, addressed an analogous
situation to the one presented in this case. In Nevada
Commission on Ethics v. Carrigan, a state ethics law required
public officers to recuse themselves from voting on matters
in which they might reasonably be said to have a conflict of
CHULA VISTA CITIZENS V. NORRIS 19
interest. 131 S. Ct. 2343, 2346 (2011). Carrigan challenged
the law, asserting that the First Amendment protected his
right to vote in the city council. Id. at 2347.
The Supreme Court held that “restrictions upon
legislators’ voting are not restrictions upon legislators’
protected speech.” Id. at 2350. Importantly, the Court cited
the legislative nature of voting as the reason for its decision:
“The Nevada Supreme Court thought a legislator’s vote to be
protected speech because voting ‘is a core legislative
function.’ We disagree, for the same reason.” Id. at 2347(internal citation omitted). The Court elaborated on this
rationale: “[A] legislator’s vote is the commitment of his
apportioned share of the legislature’s power to the passage or
defeat of a particular proposal. The legislative power thus
committed is not personal to the legislator but belongs to the
people; the legislator has no personal right to it.” Id. at 2350.
The Court went further and stated that “the act of voting [in
a legislature] symbolizes nothing.” Id. Even if the legislative
act of voting were expressive, the Court reasoned, the
challenge would still fail because “[t]his Court has rejected
the notion that the First Amendment confers a right to use
governmental mechanics to convey a message.” Id. at 2351.
Carrigan establishes that the legal authority attaching to
a legislative office is not an aspect of the freedom of speech
protected by the First Amendment. The Associations seek the
legislative authority that comes with serving as official
proponents. Following Carrigan, we conclude that serving
20 CHULA VISTA CITIZENS V. NORRIS
as an official proponent is not an aspect of speech within the
meaning of the First Amendment.5
E
The Associations seem to think that because official
proponents have authority to engage in expressive activities,
such as the power to write the 500-word statement of reasons,
the freedom of speech requires that they be permitted to be
official proponents. But from the premise that certain
activities are expressive, it does not follow that the legal
authority to engage in such activities is part of the freedom of
speech. This case presents that threshold issue: If serving as
an official proponent is not part of the freedom of speech,
then the expressive nature of official proponents’ activities is
irrelevant.
A contrary conclusion would produce absurd results. If
the mere fact that an activity is expressive meant that there
was a First Amendment right to engage in that activity,
irrespective of the context in which the activity occurs, then
the First Amendment would protect the right of any voter to
participate in the debates of the state legislature. After all,
such debates are highly expressive in nature. Yet, no one
would maintain that the First Amendment prohibits limiting
participation in such debates to members of the state
legislature. Similarly, the exercise of an official proponents’
authority, if expressive in nature, can be limited to those who
qualify as official proponents. The First Amendment does
5
Carrigan’s holding was limited to the First Amendment. 131 S. Ct. at2350–51. We express no view here about whether the Associations’
alleged right might be protected under other provisions of the Federal
Constitution.
CHULA VISTA CITIZENS V. NORRIS 21
not require that associations be allowed to share in the
legislative power simply because the exercise of such power
might be expressive.
The Supreme Court made this clear in Carrigan. In
addition to upholding Nevada’s recusal law, the Court also
upheld the recusal provision’s prohibition on advocacy. Id.
at 2347. Because the recusal law was constitutional with
respect to legislative voting on conflicted legislation, then it
surely must also be the case, the Court reasoned, that the
provision restricting who might advocate on that legislation
was equally constitutional as a reasonable time, place, and
manner restriction. Id. (citing Clark v. Cmty. for Creative
Non-Violence, 468 U.S. 288, 293 (1984)). As the Supreme
Court observed, “Legislative sessions would become massive
town-hall meetings if those who had a right to speak were not
limited to those who had a right to vote.” Id. So too here,
any limit that the elector requirement might place on
expression incidentally is a reasonable time, place, and
manner restriction resulting from the initial, constitutional
limitation on whom the people have designated to serve in
this official role.
As the Court emphasized in Carrigan, Doe v. Reed is
consistent with Carrigan’s holding, id. at 2351, and it is
consistent with the analysis here. Whereas Carrigan
concerned whether the legal authority to exercise legislative
power is protected by the freedom of speech, Doe concerned
the extent to which the exercise of legislative power is
protected.6 Doe did not analyze restrictions on who could
6
The concurrence claims that this manner of reconciling Carrigan and
Doe departs from Supreme Court precedent, implying that its own
approach is well-established in the U.S. Reports. See Concurrence at
22 CHULA VISTA CITIZENS V. NORRIS
sign initiative petitions; it discussed whether the signing of a
petition was expressive.7 561 U.S. at 194–96. The
Associations in this case seek the legal authority to exercise
legislative power, which is why the analysis is governed by
Carrigan. Kneebone and Breitfelder, by contrast,
undoubtedly have such authority, but they seek to exercise it
in a certain way. Their challenge is governed by Doe.8 See
infra Part IV.
The challenge to the elector requirement asks whether the
freedom of speech requires the people to delegate legislative
power to associations, and Carrigan answers that it does not.9
45–48. Yet, other than the Supreme Court’s brief paragraph
distinguishing Carrigan from Doe, see Carrigan, 131 S. Ct. at 2351, no
federal court has described how Carrigan and Doe interact. Thus, any
effort in this regard will break new ground, including that of the
concurrence.
7
The concurrence is, therefore, quite wrong when it asserts that Doe
controls the elector requirement analysis. The key question with regard
to the elector requirement is whether California’s decision not to delegate
legislative authority to associations violates the freedom of speech. Doe
has nothing to say about that question.
8
This distinction between the legal authority to exercise legislative
power and the exercise of such power explains why the dissent errs when
it treats the challenges to the elector and petition-proponent disclosure
requirements identically. See Dissent at 52. Only if we ignore Doe’s clear
instruction, as the dissent would do, can we conclude that the legislative
character of initiative petitions strips proponents of First Amendment
protection.
9
Because we conclude that the elector requirement is constitutional,
there is no need to resolve the parties’ dispute over whether the
requirement is located in the California Elections Code, the City Charter,
or some other source.
CHULA VISTA CITIZENS V. NORRIS 23
IV
In their challenge to the petition-proponent disclosure
requirement, Kneebone and Breitfelder contend that the
compelled disclosure of their identities at the point of contact
with signatories violates the freedom of speech.
A
The Supreme Court has never held that there is some
“freewheeling right” to anonymity in the Constitution. Doe,
561 U.S. at 218 n.4 (Stevens, J., concurring in part and
concurring in judgment). Rather, the Court has said that the
“decision to remain anonymous, like other decisions
concerning omissions or additions to the content of a
publication, is an aspect of the freedom of speech protected
by the First Amendment.” McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 342 (1995). In the compelled
disclosure context, the abridgment of the freedom of speech
consists not in a violation of some amorphous “right to
anonymity”; it consists in the “direct regulation of the content
of speech,” id. at 345, or in the burden such disclosures place
on speech by, for example, deterring the speaker from
speaking, Buckley v. Valeo, 424 U.S. 1, 68 (1976); see also
Citizens United, 558 U.S. at 480–83 (Thomas, J., concurring
in part and dissenting in part). Our own precedent has
The parties also dispute which standard of review applies to the
elector requirement, but because we conclude that such requirement does
not implicate the First Amendment, we do not proceed to resolve that
question. See Ala. State Fed’n of Labor v. McAdory, 325 U.S. 450, 461
(1945) (“It has long been [the Court’s] considered practice not to decide
abstract, hypothetical or contingent questions, or to decide any
constitutional question in advance of the necessity for its decision. . . .”
(internal citations omitted)).
24 CHULA VISTA CITIZENS V. NORRIS
followed this basic framework. See ACLU v. Heller,
378 F.3d 979, 987 (9th Cir. 2004) (describing the
constitutional injury of compelled disclosure as the “direct
regulation of the content of political speech”).
We have never held that the content of a ballot initiative
petition is part of an official proponent’s freedom of speech.
The Supreme Court has recognized that the content of
political handbills, McIntyre, 514 U.S. at 337–47, the speech
of initiative petition circulators, Buckley v. Am. Constitutional
Law Found., Inc., 525 U.S. 182, 197–200 (1999), and the
signatures of initiative petition signatories, Doe, 561 U.S. at194–96, are protected speech, and thus the compelled
disclosure of the speaker’s identity to the public constitutes
a burden on such speech or a direct regulation thereof. But
initiative petitions are official election documents, San
Francisco Forty-Niners, 89 Cal. Rptr. 2d at 396, and the
Court has not had occasion to consider whether the content of
such documents constitutes protected speech.10
However, because the parties to this litigation agree that
the petition-proponent disclosure requirement is a regulation
of political speech,11 we need not resolve that question. We
10
At least one of our sister circuits has implied that, in some
circumstances, regulation of the content of initiative petitions would
abridge the freedom of speech. Biddulph v. Mortham, 89 F.3d 1491, 1500
(11th Cir. 1996) (per curiam) (“We obviously would be concerned about
free speech and freedom-of-association rights were a state to enact
initiative regulations that were content based or had a disparate impact on
certain political viewpoints.”).
11
Norris limits her briefing to the elector requirement. California
acknowledges that “an initiative petition is political speech” and states that
CHULA VISTA CITIZENS V. NORRIS 25
will assume—without deciding—that an official proponent’s
decision to disclose his identity on the face of an initiative
petition constitutes political speech, and under McIntyre, the
compelled disclosure of such information is “a direct
regulation of the content of speech” subject to First
Amendment scrutiny. McIntyre, 514 U.S. at 345.
B
Of course, we must determine which standard of review
governs our analysis of the petition-proponent disclosure
requirement’s constitutionality.12
The Supreme Court has “a series of precedents
considering First Amendment challenges to disclosure
requirements in the electoral context. These precedents have
reviewed such challenges under what has been termed
‘exacting scrutiny.’” Doe, 561 U.S. at 196. “That standard
“[t]here is no doubt that the challenged statutes, which govern the content
of an initiative petition, trigger scrutiny under the First Amendment.”
12
Kneebone and Breitfelder bring both as-applied and facial challenges
to the petition-proponent disclosure requirement. The nature of their
argument, however, is a facial challenge: They claim that the requirement
violates the freedom of speech no matter the identities or circumstances
of the official proponents. To be sure, Kneebone and Breitfelder have
asserted that they, in particular, have reasons for desiring to remain
anonymous when serving as official proponents, but their arguments, if
correct, preclude the idea that the requirement has a “plainly legitimate
sweep” or that “circumstances exist under which [it] would be valid.”
United States v. Stevens, 559 U.S. 460, 472–73 (2010) (internal quotation
marks omitted). Because Kneebone and Breitfelder’s “claim and the relief
that would follow . . . reach beyond the particular circumstances of these
plaintiffs,” they must “satisfy our standards for a facial challenge to the
extent of that reach.” Doe, 561 U.S. at 194.
26 CHULA VISTA CITIZENS V. NORRIS
requires a substantial relation between the disclosure
requirement and a sufficiently important governmental
interest.” Id. (internal quotation marks omitted). The
“‘strength of the governmental interest must reflect the
seriousness of the actual burden on First Amendment rights.’”
Id. (quoting Davis, 554 U.S. at 744). Like the case before us,
Doe considered the constitutionality of a law requiring the
disclosure of identifying information—in that case, the
identities of petition signatories. 561 U.S. at 190–95. The
Court applied exacting scrutiny and upheld the law. Id. at
197–202.
Against this clearly articulated standard of review for
compelled disclosure cases, Kneebone and Breitfelder argue
that strict scrutiny should apply. They point to American
Constitutional Law Foundation (“ACLF”) as an example of
strict scrutiny employed in a disclosure context. The
Supreme Court, however, has subsequently characterized the
standard of review in ACLF as “exacting scrutiny.” See Doe,
561 U.S. at 196. Moreover, it was precisely because the
Court did not apply strict scrutiny that Justice Thomas wrote
separately in ACLF. See 525 U.S. at 214–15 (Thomas, J.,
concurring in the judgment). Thus, nothing in ACLF
provides a basis for applying strict scrutiny to the petition-
proponent disclosure requirement.
California makes no effort to distinguish Doe. Rather, it
simply asserts that public forum doctrine should govern our
analysis. But the state points to no federal case that has
adopted such an approach. California might instead have
argued that the petition-proponent disclosure requirement
relates to the “mechanics of the electoral process,” thus
subjecting it to the potentially less-demanding “ordinary
litigation test.” See McIntyre, 514 U.S. at 344–45. But Doe
CHULA VISTA CITIZENS V. NORRIS 27
forecloses that option. The Doe Court, faced with the
compelled disclosure of signatories’ identities, rejected the
argument that the legislative character of initiative petitions
mandated a lesser form of scrutiny. 561 U.S. at 194–96. If
exacting scrutiny applies to the compelled disclosure of
signatories’ identities, there is no reason why official
proponents’ identities should not receive the same protection.
We therefore adhere to the Supreme Court’s “series of
precedents” regarding compelled disclosure by subjecting the
petition-proponent disclosure requirement to exacting
scrutiny. Id. at 196; see also Wash. Initiatives Now (WIN) v.
Rippie, 213 F.3d 1132, 1138–39 (9th Cir. 2000) (applying
exacting scrutiny to a law compelling the disclosure of
circulators’ identities, addresses, and compensation).
C
It remains for us to determine whether the petition-
proponent disclosure requirement survives exacting scrutiny.
In addressing this question, it is important to bear in mind
that the statutory scheme, as incorporated by the City Charter,
requires proponents to disclose their identities at three distinct
moments in the initiative process: the filing of a signed notice
with the City Clerk, Cal. Elec. Code § 9202(a), the
publication of the notice in a newspaper of general
circulation, id. § 9205, and the inclusion of the notice on each
section of the circulated initiative petitions, id. §§ 9202(a),
9207. Kneebone and Breitfelder only challenge the last
requirement.
The Supreme Court has described exacting scrutiny as a
“strict test.” Buckley, 424 U.S. at 66. Although distinct from
strict scrutiny, “exacting scrutiny is more than a rubber
28 CHULA VISTA CITIZENS V. NORRIS
stamp.” Minn. Citizens Concerned for Life, Inc. v. Swanson,
692 F.3d 864, 876 (8th Cir. 2012). Indeed, “[t]he Supreme
Court has not hesitated to hold laws unconstitutional under
this standard.” Id. (collecting cases). As Buckley made clear,
it is not enough for the state to have “some legitimate
governmental interest”; the Court “also ha[s] insisted that
there be a . . . ‘substantial relation’ between the governmental
interest and the information required to be disclosed.” 424
U.S. at 64. Moreover, it is the government’s burden to “show
that its interests . . . are substantial, that those interests are
furthered by the disclosure requirement, and that those
interests outweigh the First Amendment burden the disclosure
requirement imposes on political speech.” WIN, 213 F.3d at1138–39; see also Ctr. for Individual Freedom, Inc. v.
Tennant, 706 F.3d 270, 282 (4th Cir. 2013); Minn. Citizens
Concerned for Life, Inc., 692 F.3d at 877. Thus, the mere
assertion of a connection between a vague interest and a
disclosure requirement is insufficient.
California asserts two interests in the petition-proponent
disclosure requirement: (1) informing electors of an official
proponent’s identity, and (2) “preserving the integrity of the
electoral process.” Quoting Doe, the state claims that the
latter interest “extends more generally to promoting
transparency and accountability in the electoral process.”
Doe, 561 U.S. at 198. The district court relied on both
interests in sustaining the petition-proponent disclosure
requirement.
1
California contends that the public has a right to know the
identities of official proponents because an initiative is
analogous to the introduction of legislation, and therefore “it
CHULA VISTA CITIZENS V. NORRIS 29
is no different from the requirement that every bill in the
California Legislature be introduced by a member of the
Legislature.” California believes that “[l]egislation is
inherently a public act, regardless of the forum in which it
takes place.” The district court agreed, relying on two of our
cases that stressed the need for voters to know the identities
of those participating in initiative campaigns. See Human
Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 (9th Cir.
2010); Cal. Pro-Life Council v. Getman, 328 F.3d 1088 (9th
Cir. 2003).
Even assuming that this interest is sufficiently important
to satisfy exacting scrutiny, California must demonstrate that
the interest bears a substantial relation to the petition-
proponent disclosure requirement. Kneebone and Breitfelder
argue that because proponents must disclose their identities
at two distinct moments before circulating a petition, any
member of the public who wishes to learn the identities of
official proponents can do so, and there is no need for
disclosure on the face of the petition. California also cites the
notice-filing and publication requirements, but it argues that
these prior disclosures cut the other way: “[B]y the time
proponents’ names are printed on initiative petitions, their
identities are already known—the impact on proponents’
privacy is negligible because their names have already been
published in a newspaper of general circulation.”
The precedents of the Supreme Court and this circuit have
emphasized the importance of anonymity at the point of
contact with voters. McIntyre v. Ohio Elections Commission
established that “an author’s decision to remain anonymous,
like other decisions concerning omissions or additions to the
content of a publication, is an aspect of the freedom of speech
protected by the First Amendment.” 514 U.S. at 342. In the
30 CHULA VISTA CITIZENS V. NORRIS
realm of political speech, anonymity is important because it
“provides a way for a writer who may be personally
unpopular to ensure that readers will not prejudge her
message simply because they do not like its proponent.” Id.The Court therefore applied exacting scrutiny and struck
down an Ohio statute requiring authors of any “form of
general publication which is designed . . . to influence the
voters in any election” to disclose their identities. Id. at 338
n.3, 345–46.
The Court extended McIntyre’s holding in ACLF. In that
case, the Court applied exacting scrutiny to invalidate a
Colorado requirement that petition circulators wear badges
disclosing their identities at the point of contact with
signatories, and it contrasted this invalid rule with the
requirement that those same circulators submit affidavits to
the state containing their names, addresses, and signatures:
“Unlike a name badge worn at the time a circulator is
soliciting signatures, the affidavit is separated from the
moment the circulator speaks.” 525 U.S. at 198. The Court
saw this separation in time as important because revealing
one’s identity at the point of contact with signatories
“operates when reaction to the circulator’s message is
immediate and may be the most intense, emotional, and
unreasoned.” Id. at 199 (internal quotation marks omitted).
The Court observed that, when a circulator makes contact,
“the circulator must endeavor to persuade electors to sign the
petition,” id., a concern expressed in McIntyre’s statement
that “an advocate may believe her ideas will be more
persuasive if her readers are unaware of her identity,”
514 U.S. at 342. For that reason, ACLF held that “the badge
requirement compels personal name identification at the
precise moment when the circulator’s interest in anonymity
CHULA VISTA CITIZENS V. NORRIS 31
is greatest.” 525 U.S. at 199. By contrast, the affidavit
requirement was “responsive to the State’s concern” for
providing the identifying information to the public, but it did
so without interfering with the point of contact. Id. at 198.
Thus, there was not a sufficient governmental interest to
justify the badge requirement. Id. at 200.
Our decision in WIN v. Rippie followed a similar chain of
reasoning. WIN challenged a Washington law that compelled
the disclosure of petition circulators’ identities, addresses,
and compensation before and after an election. WIN,
213 F.3d at 1134–35. These disclosures were “routinely filed
during the circulation period,” which we said created a
chilling effect on speech. Id. at 1138–39. Applying exacting
scrutiny, we struck down the disclosure requirement. Id. at
1140. Central to our holding was our judgment that the
“interest in educating voters through campaign finance
disclosure is more adequately served by a panoply of the
State’s other requirements that have not been challenged.”
Id. at 1139. Like ACLF, WIN illustrates that, where
alternative means of furthering the state’s interest are
available, it will be very difficult for a compelled disclosure
law to survive exacting scrutiny.
Heller remains our clearest articulation of the principles
underlying McIntyre, ACLF, and WIN. In Heller, we
invalidated a Nevada law that required “certain groups or
entities publishing any material or information relating to an
election, candidate or any question on a ballot to reveal on the
publication the names and addresses of the publications’
financial sponsors.” 378 F.3d at 981 (internal quotation
marks omitted). Our holding rested on “[t]he constitutionally
determinative distinction between on-publication identity
disclosure requirements and after-the-fact reporting
32 CHULA VISTA CITIZENS V. NORRIS
requirements” that we said “has been noted and relied upon
both by the Supreme Court and by this Circuit.” Id. at 991.
We said ACLF stands for the following proposition: “[I]t is
not just that a speaker’s identity is revealed, but how and
when that identity is revealed, that matters in a First
Amendment analysis of a state’s regulation of political
speech.” Id. (emphasis added) (citing WIN, 213 F.3d at
1138). For that reason, “requiring a publisher to reveal her
identity on her election-related communication is
considerably more intrusive than simply requiring her to
report to a government agency for later publication how she
spent her money.” Id. at 992. Because the Nevada law
required the speaker to disclose her identity on the face of the
election-related communication, we held the state’s asserted
interests were inadequate to justify the burden on speech. Id.
at 1002.
In all of these precedents, the Supreme Court and this
circuit have taken the view that “[t]he injury to speech is
heightened” when speakers are compelled to disclose their
identities “at the same time they deliver their political
message.” ACLF, 525 U.S. at 199 (internal quotation marks
omitted). Such is the case here, where the petition-proponent
disclosure requirement forces official proponents to reveal
their identities on the face of the petition. Forced disclosures
of this kind are “significant encroachments on First
Amendment rights.” Buckley, 424 U.S. at 64.
These precedents also make clear that, where there are
alternative methods of meeting the government’s asserted
interests, the government’s task of justifying a compelled
disclosure law becomes much more onerous. See ACLF,
525 U.S. at 198–99; WIN, 213 F.3d at 1139. California
contends that voters have an interest in knowing the identities
CHULA VISTA CITIZENS V. NORRIS 33
of official proponents, but such identities are already
disclosed on two occasions before petition circulation can
begin. Proponents must disclose their identities to the City
Clerk when they file the notice of intent, and the Clerk must
provide copies of the notice to “any person upon request.”
Cal. Elec. Code §§ 9202(a), 9202.513. Additionally, there is
the publication requirement. Id. § 9205(a)–(b). Voters who
wish to know the identities of official proponents need only
make a trip to the City Clerk’s office or search for the
publication of the petition in their newspapers of general
circulation.
Like ACLF and McIntrye, the statutory scheme here
“compels personal name identification at the precise moment
when the [speaker’s] interest in anonymity is greatest.”
ACLF, 525 U.S. at 199. Like Heller, the disclosure
requirement in this case implicates the “constitutionally
determinative distinction between on-publication identity
disclosure requirements and [before-or-] after-the-fact
reporting requirements.” 378 F.3d at 991. Like ACLF and
WIN, there are alternative means of disclosure that are
“responsive to the [public’s] concern” in knowing the
identities of those involved in the initiative process. ACLF,
525 U.S. at 198. Under these circumstances, the
informational interest does not bear a substantial relation to
the petition-proponent disclosure requirement and fails
exacting scrutiny.
13
Section 9202.5 was enacted by the California legislature in 2012 and
took effect on January 1, 2013. See Cal. Elec. Code § 9202.5 (West
2013).
34 CHULA VISTA CITIZENS V. NORRIS
2
California also asserts an interest in maintaining the
integrity of the electoral process. Doe sustained a
Washington disclosure law on the basis of a similar interest,
see 561 U.S. at 197–98, and we will assume that the same
interest is sufficiently important for purposes of this case.
California provides no explanation for how its interest in
the integrity of the electoral process relates to the petition-
proponent disclosure requirement. It simply asserts the
interest. The district court elaborated on the nature of this
interest: “By requiring a proponent’s name to appear on the
circulated copy of the ballot initiative, the local voters who
consider the initiative may recognize whether the proponent
qualifies as an elector.” The district court appeared to be
saying that an anti-fraud interest underlay the petition-
proponent disclosure requirement, an interest the Supreme
Court found sufficiently important in Doe. Id.If the state is concerned about fraudulent proponents, as
the district court suspected, it can protect against that
possibility using the unchallenged disclosure requirements.
See Cal. Elec. Code §§ 9202, 9202(a), 9205(a)–(b). At each
of these stages, elections officials or the interested public can
verify proponents’ qualifications. In Doe, Washington
demonstrated that the existence of measures other than the
disclosure requirement at issue did not alleviate the
possibility of fraud and voter error. See, e.g., 561 U.S. at 198(pointing out that “the secretary’s verification and canvassing
will not catch all invalid signatures”). It is California’s
burden to show that the alternative methods of satisfying its
anti-fraud goal are insufficient. WIN, 213 F.3d at 1138–39.
CHULA VISTA CITIZENS V. NORRIS 35
Not only has it failed to carry its burden; it has not even
attempted to do so.
California claims that, as was the case with Washington
in Doe, its “interest in preserving electoral integrity is not
limited to combating fraud.” 561 U.S. at 198. Rather, the
interest “extends more generally to promoting transparency
and accountability in the electoral process.” Id. California
has not shown how the petition-proponent disclosure
requirement serves that interest or why the alternative
disclosure requirements are inadequate, relying instead on the
bare pronouncement of its interest. That is insufficient to
satisfy exacting scrutiny. See WIN, 213 F.3d at 1138–39; Ctr.
for Individual Freedom, Inc., 706 F.3d at 282; Minn. Citizens
Concerned for Life, Inc., 692 F.3d at 877.
D
A few responses to the dissent are in order. The dissent
acknowledges that Supreme Court and Ninth Circuit
precedent is deeply skeptical of compelled disclosure
requirements like the one challenged in this case, but it claims
that these cases “d[o] not apply here.” Dissent at 60. The
dissent seems to argue that official proponents, when acting
in their official capacity, have no right to speak anonymously
during the initiative process due to the public nature of their
office and the legislative character of an initiative petition.14
14
The dissent also implies that, because it relies exclusively on
California’s asserted interest in the integrity of the electoral process to
sustain the petition-proponent disclosure requirement, the doctrine of
McIntyre, ACLF, Heller, and WIN is inapplicable. Dissent at 60. But Doe
applied the doctrine of those cases in evaluating the constitutionality of
Washington’s compelled disclosure law, even though Doe, like the
dissent, relied exclusively on the interest in the integrity of the electoral
36 CHULA VISTA CITIZENS V. NORRIS
Id. Not a single precedent of this Court or of the Supreme
Court has ever relied on such distinctions to sustain a
compelled disclosure requirement, and the dissent does not
cite any.15
More fundamentally, it is incoherent for the dissent to
deny that official proponents have no right to speak
anonymously while simultaneously applying a form of
scrutiny designed to safeguard that very right. See Dissent at
55–56 (agreeing that exacting scrutiny applies). Compelled
disclosure requirements are constitutionally suspect because
the “decision to remain anonymous, like other decisions
concerning omissions or additions to the content of a
publication, is an aspect of the freedom of speech protected
by the First Amendment.” McIntyre, 514 U.S. at 342. But if
the dissent denies that the right to remain anonymous is an
aspect of official proponents’ freedom of speech, then the
petition-proponent disclosure requirement is not a “regulation
of the content of speech,” id. at 345, and there is no reason to
apply exacting scrutiny. See Doe, 561 U.S. at 219–21
(Scalia, J., concurring in the judgment) (stating that the
majority applied exacting scrutiny after finding that petition
process. 561 U.S. at 195–202. The dissent cannot avoid the clear
instructions of McIntyre, ACLF, Heller, and WIN merely by invoking the
interest in electoral integrity.
15
To the extent the dissent relies on the fact that an initiative petition is
a legislative document, Doe forecloses such argument. The signatories in
Doe, no less than the official proponents in this case, were introducing
legislation; their signatures were necessary for the petition to qualify for
the ballot. In that case, Washington raised precisely the same argument
the dissent makes here: because signatories are engaging in a “legally
operative legislative act,” they were not entitled to the same level of First
Amendment protection as they would be in other contexts. Doe, 561 U.S.
at 195. The Supreme Court rejected that rationale. Id. at 195–96.
CHULA VISTA CITIZENS V. NORRIS 37
signatories have a right to anonymous political expression);
Church of Am. Knights of the Ku Klux Klan v. Kerik,
356 F.3d 197, 208–09 (2d Cir. 2004) (declining to apply
exacting scrutiny “[b]ecause . . . plaintiffs’ right to
anonymous speech is not implicated here”). In short, the
dissent agrees we must apply a level of scrutiny that is only
appropriate if official proponents have some right to speak
anonymously, yet it denies that they have such a right. This
confusion, we suggest, undermines the dissent’s analysis.
The dissent’s confusion is compounded by its failure to
resolve the fundamental problem with California’s argument:
Even assuming that California has an important interest in
forcing official proponents to disclose their identities, why
must that disclosure occur on the face of initiative petitions?
Kneebone and Breitfelder do not disagree that official
proponents undertake duties and responsibilities that require
disclosing proponents’ identities to the public. After all, they
do not challenge the notice-filing and publication
requirements. They simply wish to remain anonymous at the
point of contact with voters. The dissent never explains why
a particular form of disclosure—the petition-proponent
disclosure requirement—is substantially related to the state’s
interest when there are alternative, unchallenged means of
disclosure.16
16
Significantly, California makes no effort to show why the petition-
proponent disclosure requirement is needed given that the public can learn
official proponents’ identities through the notice-filing and publication
requirements. Even if the dissent were able to articulate such a
justification, the burden is on California—not members of this Court—to
do so. WIN, 213 F.3d at 1138–39; Ctr. for Individual Freedom, Inc.,
706 F.3d at 282; Minn. Citizens Concerned for Life, Inc., 692 F.3d at 877.
38 CHULA VISTA CITIZENS V. NORRIS
Instead, the dissent merely asserts that the unchallenged
disclosure provisions would “fail to satisfy the government’s
interest in any meaningful or realistic sense.” Dissent at 62.
The dissent may very well think that, but Supreme Court
precedent is to the contrary. Any voter who wants to know
the identities of official proponents before signing a petition
can find out by visiting the City Clerk’s office or looking up
the identities in the newspaper of general circulation, Cal.
Elec. Code § 9202(a),§ 9202.5, § 9205, a far more accessible
means of gaining information than Colorado voters had
available to them after ACLF. Moreover, in ACLF, it was far
less convenient for Colorado voters to seek out the affidavits
of petition circulators than it was to have the circulators wear
identification badges, but the Court nonetheless invalidated
the badge requirement. 525 U.S. at 198–200. Perhaps the
dissent has an explanation for why Colorado voters should
have to work harder than California voters when evaluating
initiative petitions, but we cannot fathom what it might be.
The petition-proponent disclosure requirement does not
satisfy exacting scrutiny.
E
The petition-proponent disclosure requirement is
unconstitutional. Unlike the challenge to the elector
requirement, none of the parties assert that the petition-
proponent disclosure requirement exists apart from the state
elections code. Thus, §§ 9202 and 9207 of the California
Elections Code are invalid to the extent that they require
official initiative proponents to identify themselves on the
face of initiative petitions.
CHULA VISTA CITIZENS V. NORRIS 39
V
We affirm the district court’s grant of summary judgment
to the defendants as to the elector requirement, but we reverse
its grant of summary judgment to the defendants as to the
petition-proponent disclosure requirement. We therefore
reverse the district court’s denial of summary judgment to the
plaintiffs as to the petition-proponent disclosure requirement
and remand so that it can enter an injunction consistent with
this opinion. The parties shall bear their own costs.
AFFIRMED in part, REVERSED in part, and
REMANDED.
BEA, Circuit Judge, concurring:
I join all of the majority opinion except for Section III,
which analyzes the local and state requirements that official
ballot initiative proponents be electors, thereby excluding
associations. Although I concur in the result of Section III,
I see the issue differently. I believe that the majority opinion
employs an incorrect test to determine whether acting as an
official ballot initiative proponent is a legislative act with
expressive content or an expressive act with legislative effect,
and thus whether the elector requirement burdens any First
Amendment rights. The test should not be whether a
particular act has legislative effect or legislative character.
The correct test, as stated in Doe and Carrigan, asks whether
the individual—here the ballot initiative proponent—is
exercising his own power, as does a ballot initiative signatory
(Doe), or is exercising a governmental power that has been
democratically apportioned to him, as does a legislator voting
40 CHULA VISTA CITIZENS V. NORRIS
in a legislature (Carrigan). When I apply this test I conclude
that acting as a ballot initiative proponent is an expressive act,
despite its legislative effect, and is protected by the First
Amendment. Therefore, the elector requirement implicates
the First Amendment and must be so analyzed. Nonetheless,
I conclude the elector requirement satisfies at least the
exacting scrutiny test applied to state electoral regulations
under the First Amendment, and therefore I concur with the
opinion’s conclusion upholding the elector requirement.
I
A
The majority opinion incorrectly identifies what is the
precise right sought to be vindicated by the appellants. In its
Section III.B, the majority opinion suggests that the
appellants seek “the legal authority attaching to the status of
an official proponent.” Maj. Op. at 14. No, the precise right
the appellants want is not merely an abstract “authority.” Put
more simply and precisely, the appellants wish “to be
initiative proponents.” Blue Br. at 6. Becoming an official
ballot initiative proponent produces a particular quality of
speech. When someone is qualified as an official proponent,
he is able to speak from a particular vantage as an author of
the proposal. The quality and impact of speech by official
ballot initiative proponents is different from that of a mere
member of the public. “Proponents” can be seen as
sufficiently civic-minded to have taken the time and borne the
cost to bring up a measure. They have also taken the risk of
being identified with a particular political view. Because of
their demonstrated interest and willingness to risk
opprobrium, moreover, their speech is likely to carry greater
weight once their position as ballot proponents is recognized.
CHULA VISTA CITIZENS V. NORRIS 41
By restricting who may serve in this role, Chula Vista and
California restrict the range of speech non-electors and
associations can exercise.
The majority opinion also errs in holding that being an
official ballot initiative proponent is a legislative act. The
majority opinion holds that being an official ballot initiative
proponent is legislative at core because California state cases
and laws describe the ballot initiative proponent as akin to a
legislator, and because the acts of a ballot initiative proponent
are legislative in character and effect.
With respect, this test is mistaken. The Supreme Court
has explicitly held that expressive acts can still be protected
by the First Amendment, even if they have a legislative effect
under the state’s laws. Doe v. Reed, 561 U.S. 186, 194–96
(2010).1 Indeed, if having legislative effect could deprive an
expressive act of First Amendment protection, then
1
It should be noted that the respondent in Doe v. Reed made the same
argument that the majority opinion does here, namely that acting as a
ballot initiative signatory was a legislative act not protected by the First
Amendment because the Supreme Court of Washington had declared it to
be so. As the respondent’s brief before the Supreme Court in Doe stated,
“The Washington Supreme Court has stated that the ‘exercise of the
initiative power is an exercise of the reserved power of the people to
legislate’ and that ‘[in] approving an initiative measure, the people
exercise the same power of sovereignty as the legislature does when
enacting a statute.’ Amalgamated Transit Union Local 587 v. State,
11 P.3d 762, 779 (Wash. 2000).” Brief of Respondent at 24, Doe v. Reed,
561 U.S. 186 (2010) (No. 09–559), 2010 WL 1250504. The Supreme
Court in Doe, however, did not even address this argument, and thus did
not find it dispositive; nor should this panel. If acting as a ballot initiative
signatory is still a First Amendment activity despite its characterization as
a “legislative act” by state law, then this same logic should apply to acting
as a ballot initiative proponent.
42 CHULA VISTA CITIZENS V. NORRIS
governments could limit political speech by granting
legislative effect to particular speech acts. The majority
opinion ignores the test the Supreme Court itself has already
laid out in Doe and Carrigan to determine whether a
particular political activity is speech protected by the First
Amendment or is a legislative act with no First Amendment
protection.
The Doe Court stated the general rule that “[a]n
individual express[ing] a view on a political matter” when
participating in a political activity, whether or not it also
happens to have a governmental effect. Id. at 194–95. The
Court held that “sign[ing] a petition under Washington’s
referendum procedure” was an example of an individual
expressing a view on a political matter. Id. If the activity
expresses a political view, then generally it “implicates a First
Amendment right.” Id. at 195. Moreover, the First
Amendment still protects that expressive activity even if it
has “legal effect in the electoral process”:
[S]igning a referendum petition may
ultimately have the legal consequence of
requiring the secretary of state to place the
referendum on the ballot. But we do not see
how adding such legal effect to an expressive
activity somehow deprives that activity of its
expressive component, taking it outside the
scope of the First Amendment.
Id.Carrigan created an exception to this general rule. When
an individual performs a legislative act through his office as
CHULA VISTA CITIZENS V. NORRIS 43
legislator—such as a legislator voting in a legislature—that
act is not protected by the First Amendment because:
a legislator’s vote is the commitment of his
apportioned share of the legislature’s power to
the passage or defeat of a particular proposal.
The legislative power thus committed is not
personal to the legislator but belongs to the
people; the legislator has no personal right to
it.
Nevada Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2345
(2011). In other words, a legislative act is one that an
individual performs not as an individual or as a “principal,”
but as an elected representative, or an “agent” of the people,
i.e. “a governmental act [an individual performs] as a
representative of his constituents.” Id. at 2351 n.5.
Carrigan stated that it was not in tension with Doe. Id. at
2351. The Carrigan Court described Doe as holding that
“core political speech,” such as signing a ballot initiative
petition, “was not deprived of its protected status simply
because, under state law, a petition that garnered a sufficient
number of signatures would suspend the state law to which it
pertained, pending a referendum.” Id. Such political speech,
the Carrigan Court held, was distinguishable from the
legislative, governmental act of a legislator voting in a
legislature: “It is one thing to say that an inherently
expressive act remains so despite its having governmental
effect, but it is altogether another thing to say that a
governmental act becomes expressive simply because the
governmental actor wishes it to be so.” Id.44 CHULA VISTA CITIZENS V. NORRIS
Likewise, even if an act is a legally effective part of the
political process, it still may be an expressive act protected by
the First Amendment. “[T]he State, having chosen to tap the
energy and the legitimizing power of the democratic process,
must accord the participants in that process the First
Amendment rights that attach to their roles.” Doe, 561 U.S.
at 195 (internal quotation marks, ellipsis, and brackets
omitted). Only if the act done is authorized by a
governmental, democratically apportioned representative
power does it cease to be a personal act and thereby cease to
be protected by the First Amendment.
Thus, when a court must decide whether a political act is
inherently expressive and therefore protected by the First
Amendment or is a legislative, governmental act and
therefore not at all protected by the First Amendment, the
court must determine whether the act is more similar to the
act in Doe (signing a ballot initiative) or the act in Carrigan
(a legislator voting in a legislature). The relevant question is
whether the politically expressive act is personal to the actor,
or is merely exercised by him through democratic delegation
of governmental power to him and therefore does not belong
to him.
Applied here, this test reveals that the act of being a ballot
initiative proponent, just like the signing of a ballot initiative
proposal in Doe, is at its core expressive, not legislative,
despite its legislative effect. An official ballot initiative
proponent is neither an elected nor democratically appointed
position. The proponent has volunteered to exercise his own
power vested in him by California state law, Cal. Elec. Code
§ 9202(a). He does not exercise a power that has been
democratically apportioned to him as an “agent” of a
governmental body. Therefore, the Chula Vista and
CHULA VISTA CITIZENS V. NORRIS 45
California elector requirements burden the First Amendment
rights of those who desire to become official ballot initiative
proponents. In other words, being a ballot initiative
proponent is more like being a ballot initiative signatory
(Doe) than it is like a legislator voting in a legislature
(Carrigan).
It may be argued that the electors of California, or those
of Chula Vista, have “apportioned” to themselves the right to
act as ballot initiative proponents, and thus that becoming the
proponent of an initiative is the legislative act of an agent of
the people. This argument would fail, however, because it is
equally applicable to the ballot initiative signatories in Doe.
The electors of Washington state “apportioned” to themselves
the right to act as ballot initiative signatories just as the
electors of California “apportioned” to themselves the right
to act as ballot initiative proponents. The Supreme Court
holding in Doe, however, shows that this level of
“apportionment” does not convert the act from a personal,
expressive one to a delegated, representative one. Therefore,
when analyzed under the correct Doe-Carrigan framework,
acting as an official ballot initiative proponent is a personal
act of political expression that happens to have legislative
effect, similar to acting as a ballot initiative signatory; it is
not the governmental act of a democratically appointed agent
of the people. The First Amendment therefore applies to any
governmental restraints on such political expression.
B
Instead of applying the Doe-Carrigan framework to
determine whether the activity at issue is protected by the
First Amendment, the majority opinion applies its own test.
It distinguishes between “the activities of an official
46 CHULA VISTA CITIZENS V. NORRIS
proponent” and “serving as an official proponent (that is,
having the legal authority attaching to official proponents).”
Maj. Op. at 18. As the majority opinion puts it, just because
“certain activities are expressive, it does not follow that the
legal authority to engage in such activities is part of the
freedom of speech. This case presents that threshold issue.”2
Maj. Op. at 20. Therefore, the majority opinion concludes,
this case is controlled by Carrigan, and not by Doe:
“Carrigan concerned whether the legal authority to exercise
legislative power is protected by the freedom of speech,
2
The majority opinion suggests that “[a] contrary conclusion would
produce absurd results.” As the majority opinion explains:
If the mere fact that an activity is expressive meant that
there was a First Amendment right to engage in that
activity, irrespective of the context in which the activity
occurs, then the First Amendment would protect the
right of any voter to participate in the debates of the
state legislature. After all, such debates are highly
expressive in nature. Yet, no one would maintain that
the First Amendment prohibits limiting participation in
such debates to members of the state legislature.
Maj. Op. at 20. This hypothetical reveals the error in the majority
opinion’s reasoning. No one would argue that the calculus for
determining whether the First Amendment protects a particular speech act
is whether that act is expressive; this argument slays a mere straw man.
Nor is legislative effect dispositive. As discussed above, the act in
Carrigan was expressive in nature (and unprotected by the First
Amendment) and the act in Doe was legislative in effect (and protected by
the First Amendment). Neither fact was determinative. Instead, the
correct test is whether the speech act is one that belongs to the individual
and thus is constitutionally protected or one that stems from a
governmental authority that has been democratically apportioned and thus
can be limited by the entity which granted the authority. Acting as a
legislator is a legislative activity. Acting as a ballot initiative signatory is
a First Amendment activity.
CHULA VISTA CITIZENS V. NORRIS 47
[while] Doe concerned the extent to which the exercise of
legislative power is protected.” Maj. Op. at 21.
In other words, according to the majority opinion, if a
given act is considered a speech act at core, as opposed to a
legislative act, and thus is protected by the First Amendment,
then governmental limits on how that speech is to be
exercised would be analyzed under constitutional standards,
but the First Amendment would provide no protection against
governmental limits on who can exercise that speech. I see
no constitutional basis for the distinction between possessing
a right and exercising that right. Moreover, the majority
opinion’s approach could allow governments to control the
content of political speech by restricting the access to
particular forms of political speech , and to avoid having
those restrictions analyzed under the First Amendment.
Indeed, Citizens United refutes the majority opinion’s
“threshold question” argument. The majority opinion here
states that, because the state did not grant associations the
right to be official ballot initiative proponents, the panel need
not analyze the law under the First Amendment. Citizens
United, on the other hand, examined the constitutionality of
a statute and found it unconstitutional precisely because
associations were excluded from participating in a particular
activity. Citizen United v. FEC, 558 U.S. 310 (2010). In
Citizens United, 2 U.S.C. § 441b prevented associations from
making expenditures in connection to an election to public
office. The Supreme Court examined the “threshold
question” that the majority opinion here discusses and held
that “[p]remised on mistrust of governmental power, the First
Amendment stands against attempts to disfavor certain
subjects or viewpoints. Prohibited, too, are restrictions
distinguishing among different speakers, allowing speech by
48 CHULA VISTA CITIZENS V. NORRIS
some but not others.” Id. (internal quotation marks and
citations omitted). “We find no basis,” the Court went on,
“for the proposition that, in the context of political speech,
the Government may impose restrictions on certain
disfavored speakers.” Id. at 341. Thus, even the “threshold
question” of who gets to participate in a particular speech act
must be analyzed under the First Amendment.
Finally, under Citizens United, associations have the right
to assert these First Amendment protections. Id. at 365
(“[T]he Government may not suppress political speech on the
basis of the speaker’s corporate identity.”).
II
Because the majority opinion concludes that the elector
requirement does not burden the First Amendment at all, it
does not address what scrutiny should be applied to determine
its constitutionality. Because I conclude that the elector
requirement does burden the First Amendment, however, I
now address the proper scrutiny to be applied.
Under Citizens United, it would seem at first blush that,
because the “elector requirement” burdens political speech on
the basis of the identity of the speaker, it should be analyzed
under strict scrutiny. See Citizens United, 558 U.S. at 340(“Laws that burden political speech are subject to strict
scrutiny, which requires the Government to prove that the
restriction furthers a compelling interest and is narrowly
tailored to achieve that interest.” (internal quotation marks
omitted)).
The language of the Supreme Court in Doe, however,
suggests an indeterminate but deferential level of scrutiny for
CHULA VISTA CITIZENS V. NORRIS 49
restrictions in the ballot initiative process such as the elector
requirement. The six-person majority in Doe stated:
[T]he electoral context is [not] irrelevant to
the nature of our First Amendment review.
We allow States significant flexibility in
implementing their own voting systems. . . .
The State’s interest in preserving the integrity
of the electoral process is undoubtedly
important. States allowing ballot initiatives
have considerable leeway to protect the
integrity and reliability of the initiative
process, as they have with respect to election
processes generally.
Doe, 561 U.S. at 197 (internal quotation marks omitted); see
id. at 212–13 (Sotomayor, J., concurring) (“States enjoy
considerable leeway to . . . specify the requirements for
obtaining ballot access . . . . As the Court properly recognizes,
each of these structural decisions inevitably affects—at least
to some degree—the individual’s right to speak about
political issues and to associate with others for political ends.
For instance, requiring petition signers to be registered voters
. . . no doubt limits the ability or willingness of some
individuals to undertake the expressive act of signing a
petition. Regulations of this nature, however, stand a step
removed from the communicative aspect of petitioning, and
the ability of States to impose them can scarcely be
doubted.”) (citations and internal quotation marks omitted)
(emphasis added). Doe therefore suggests that regulations of
the electoral process, such as the “elector” requirement, while
burdening the First Amendment, are subject to a deferential
level of scrutiny, less demanding than strict scrutiny. We
must therefore conclude, on the basis of the deferential
50 CHULA VISTA CITIZENS V. NORRIS
language in Doe, that not all political expression has the same
protection, and that burdens that state and local governments
impose on political expression while those governments are
“implementing their own voting systems,” Doe, 561 U.S. at
2819, must be analyzed under a level of scrutiny more
deferential than strict scrutiny.
Considering the deferential language of Doe, and because
the elector requirement burdens “core political speech,”
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347
(1995), the level of scrutiny used here should be exacting
scrutiny, which requires a “substantial relation” between the
elector requirement and a “sufficiently important”
governmental interest. Doe, 561 U.S. at 195.
The interest that California asserts as the basis for the
“elector requirement” here is “that only the people
themselves shall exercise the right of self-government
reserved in the initiative.” California and Chula Vista assert
an interest that only those with “skin in the game,” i.e.
electors, who will be affected by the measure, should initiate
the referendum process. The California state and local
governments want only civic-minded locals, who presumably
would have knowledge of local affairs and would themselves
be affected by the referendum, to participate in the initiative
process. Otherwise, carpetbaggers, who themselves would
not bear the full cost of initiating a proposal and who would
not be burdened by the effects of the referendum, could
hijack the initiative process and dictate a state’s referendum
agenda. Considering the language of Doe, such an interest is
“sufficiently important,” and thus satisfies that prong of the
exacting scrutiny test.
CHULA VISTA CITIZENS V. NORRIS 51
The second part of the exacting scrutiny test requires that
the elector requirement be “substantially related” to the
governmental interest. The elector requirement could be
more narrowly tailored to achieve its objective. In particular,
the elector requirement is overinclusive, in that it prevents
from being an official ballot initiative proponent an
association made up entirely of electors, even though such an
association would not detract from the governmental interest
of insuring that only those with “skin in the game” initiate the
referendum process. The elector requirement, therefore,
because it is overinclusive, does not comply with the narrow
tailoring requirement of strict scrutiny. See Citizens United,
558 U.S. at 340. Under Doe’s more deferential level of
exacting scrutiny applied here, however, the elector
requirement is substantially related to the governmental
interest.3 It ensures that only those with “skin in the game”
will initiate the referendum process. Moreover, although it
prevents electors from initiating ballot proposals in
association with each other, it does not prevent them from
doing so as individuals. Therefore, I conclude that the elector
requirement satisfies exacting scrutiny; thus, I would reach
the same outcome as the majority opinion.
III
Like the majority opinion, I think that the elector
requirement does not violate the Constitution. I, however,
would follow closely the test articulated in Doe and Carrigan.
This would ensure that core political expression is analyzed
under the correct constitutional framework and would prevent
3
Doe was decided June 24, 2010, five months after Citizens United was
handed down.
52 CHULA VISTA CITIZENS V. NORRIS
core political expression from being denied the protection of
the First Amendment.
GRABER, Circuit Judge, concurring in part and dissenting in
part:
Two groups of Plaintiffs1 mount challenges to two
restrictions that the people of California have placed on their
initiative process: (1) the requirement that official
proponents be electors, that is, individual voters; and (2) the
requirement that each petition section list the name of at least
one official proponent. I agree with the majority opinion that
the case is properly before us, and I concur in Part III, which
holds that the elector requirement passes constitutional
muster. I write separately to dissent from Part IV. The
majority opinion properly recognizes in Part III that the role
of an official proponent of an initiative petition in California
is like that of a legislator. But the majority fails to apply this
analogy equally to Part IV. Following the analogy of official
proponent as legislator to its logical end, the disclosure
requirement survives any level of review.
The overarching question begins and ends with the role of
the official proponent within the California lawmaking
process. Although the California Constitution does not
describe the full contours of the official proponent’s role, the
California legislature has fleshed it out in a series of statutes.
1
Plaintiffs comprising the Associations are Chula Vista Citizens for
Jobs and Fair Competition and the Associated Builders and Contractors,
Inc. (“Associations”). Plaintiffs comprising the Individual Plaintiffs are
Lori Kneebone and Larry Breitfelder (“Individual Plaintiffs”).
CHULA VISTA CITIZENS V. NORRIS 53
Under the California Elections Code, an official
proponent enjoys a special relationship to the initiative that
continues long after the advocacy process is complete. See,
e.g., Cal. Elec. Code §§ 9202, 9205, 9207. In particular,
official proponents: (1) bear the obligation “to manage and
supervise the process by which signatures for the initiative
petition are obtained”; (2) “control the arguments in favor of
an initiative measure,” including by serving as gatekeeper for
all ballot arguments, providing arguments afforded priority
status on the ballot, controlling all rebuttal ballot arguments,
and retaining the ability to withdraw ballot arguments at any
time; and (3) are allowed to intervene, both before and after
the initiative is passed, in litigation affecting the initiated
statute, and to appeal state court rulings adverse to the
initiative’s validity. Perry v. Brown, 265 P.3d 1002, 1017–18
(Cal. 2011). But see Hollingsworth v. Perry, 133 S. Ct. 2652,
2662 (2013) (holding that the authority of the official
proponent to intervene in court proceedings pertaining to an
initiative is insufficient, without more, to create Article III
standing). In addition to having special duties beyond those
of ordinary supporters of an initiative, “the official
proponents of an initiative measure are recognized as having
a distinct role—involving both authority and responsibilities
that differ from other supporters of the measure,” Perry,
265 P.3d at 1017–18, and the California Supreme Court has
equated the role of a proponent to that of an elected legislator
to whom the people have delegated lawmaking power.2 It is
2
In fact, California law gives an official proponent more authority than
a legislator who, despite having sponsored and championed a piece of
legislation through the California legislature, would not have a right to
intervene in court on behalf of the legislation after it had been codified.
See Perry, 265 P.3d at 1021 (noting that legislators would not be afforded
the ability to intervene on behalf of a law that they had sponsored, before
holding that official proponents could so intervene). The United States
54 CHULA VISTA CITIZENS V. NORRIS
the distinct character of this role that informs the First
Amendment analysis for both challenges.
The Individual Plaintiffs challenge a requirement of the
California Elections Code that the text of the petitions
disclose the name of at least one official proponent. The
California Elections Code, as incorporated by the Chula Vista
City Charter, requires an official proponent of a ballot
initiative to provide a name and signature at three distinct
points during the initiative process. First, at least one of the
official proponents must provide a name and signature to the
City Clerk on the Notice of Intent to Circulate Petition when
the document is first filed. Cal. Elec. Code § 9202. Second,
the Notice of Intent to Circulate Petition, containing the
signature and name of at least one official proponent, must be
published in a newspaper of general circulation within the
city and county. Cal. Elec. Code §§ 9202, 9205. Finally, the
California Elections Code mandates that each section of the
petition bear a copy of the Notice of Intent to Circulate
Petition, which would necessarily include the name and
signature of any official proponent who signed the form
initially. Id. § 9207.
The Individual Plaintiffs mount a facial challenge to only
the final requirement, that each section of the petition bear a
copy of the Notice of Intent to Circulate Petition. They
contend that this content-based restriction, affecting the text
Supreme Court has held that an official proponent under California law is
not equivalent to an elected, public official for Article III purposes under
the Federal Constitution. Hollingsworth, 133 S. Ct. at 2662. The
California Supreme Court, however, retains supreme authority to define
the role of an official proponent under state law. See, e.g., Pembaur v.
City of Cincinnati, 475 U.S. 469, 481–82 (1986); R.R. Comm’n of Cal. v.
L.A. Ry. Corp., 280 U.S. 145, 152 (1929).
CHULA VISTA CITIZENS V. NORRIS 55
of the petition, impermissibly chills core political speech by
forcing speakers to disclose their identities at the point of
contact with potential signatories. Because this disclosure is
required at the point of contact with voters, the Individual
Plaintiffs urge us to review the disclosure regime with strict
scrutiny.
Anonymous political advocacy, such as the debate
between “Publius” in the Federalist Papers and his detractors
“Federal Farmer” and “Cato,” has played a fundamental role
in the development of our constitutional framework.
“Anonymity is a shield from the tyranny of the majority. It
thus exemplifies the purpose behind the Bill of Rights, and of
the First Amendment in particular: to protect unpopular
individuals from retaliation—and their ideas from
suppression—at the hand of an intolerant society.” McIntyre
v. Ohio Elections Comm’n, 514 U.S. 334, 356 (1995) (citation
omitted). It is perhaps because of this essential value that our
free speech tradition has hesitated to allow a government to
exclude speech from the marketplace of ideas merely because
that speech does not disclose its source. See id. at 342–43.
But compelled disclosure is not a direct prohibition on
speech. Doe v. Reed, 130 S. Ct. 2811, 2818 (2010); see also
Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 366
(2010) (holding that “disclosure requirements may burden
the ability to speak, but they . . . do not prevent anyone from
speaking” (citation and internal quotation marks omitted)).
Striking a balance between those two points, the Supreme
Court has applied “‘exacting scrutiny’” to disclosure regimes
in the electoral context, which “requires a ‘substantial
relation’ between the disclosure requirement and a
‘sufficiently important’ governmental interest.” Citizens
United, 558 U.S. at 366–67 (quoting Buckley v. Valeo,
424 U.S. 1, 64, 66 (1976) (per curiam)). Following Doe and
56 CHULA VISTA CITIZENS V. NORRIS
Citizens United, I would apply exacting scrutiny to the
disclosure regime.
The government maintains that the disclosure requirement
is a reasonable regulation of the initiative process that serves
two sufficiently important state interests: (1) to preserve the
integrity of the initiative process; and (2) to inform
signatories “as to who is formally proposing the legislation.”3
Because I find the state’s interest in preserving the integrity
of the electoral process sufficiently important, indeed
compelling, and substantially related to a narrowly tailored
disclosure regime, I would find the regime constitutional
under any level of scrutiny.
The Supreme Court has consistently recognized that the
government’s interest in preserving the integrity of the
electoral process is sufficiently important to survive exacting
scrutiny. Doe, 130 S. Ct. at 2819. “States allowing ballot
initiatives have considerable leeway to protect the integrity
and reliability of the initiative process, as they have with
respect to election processes generally.” Id. (internal
quotation marks omitted). The government’s interest in
preserving the integrity of elections is especially strong in the
context of fraud, but the interest “is not limited to combating
fraud” and “also extends more generally to promoting
transparency and accountability in the electoral process,
which the State argues is ‘essential to the proper functioning
of a democracy.’” Id.
3
I do not reach the question whether the people’s informational interest
is sufficiently important, because I would hold that the government’s
interest in preserving the integrity of the electoral process alone is
sufficiently important to sustain the minimal burden on official
proponents.
CHULA VISTA CITIZENS V. NORRIS 57
In the federal context, “[t]he public nature of federal
lawmaking is constitutionally required.” Id. at 2834 (Scalia,
J., dissenting) (quoting U.S. Const art. I, § 5, cl. 3: “‘Each
House shall keep a Journal of its Proceedings, and from time
to time publish the same, excepting such Parts as may in their
Judgment require Secrecy[.]’”). The lawmaking process is
kept transparent for good reason: Knowing the identities of
lawmakers and their actions plays an important role in
allowing the public to evaluate officials and hold them
accountable. “In a republic where the people are sovereign,
the ability of the citizenry to make informed choices among
candidates for office is essential, for the identities of those
who are elected will inevitably shape the course that we
follow as a nation.” Buckley, 424 U.S. at 14–15.
Similarly, the local government has an “essential” interest
in preserving an electoral process in which members of the
California public who are considering whether to sign an
initiative petition know for whom they are expressing support
as the official proponent when they sign a petition—and to
whom they will delegate certain lawmaking duties if the
petition is successful. The government’s interest in
supporting the integrity of the electoral process by providing
the public with the identity of an official proponent is not
directed solely at preventing fraud. The electoral process
would be degraded if potential signers have no way of
knowing whether their signatures are delegating lawmaking
duties to a desirable proponent for the initiative, who will
present arguments on behalf of the initiative and defend the
initiative in a manner with which the signers agree. As noted,
in California official proponents play a central role, both
during the lawmaking process and after their initiative is
enacted. Perry, 265 P.3d at 1017–18. An ineffective official
proponent: (1) could fail to manage and supervise the
58 CHULA VISTA CITIZENS V. NORRIS
initiative process; (2) could fail to file the petition with the
state; (3) could make poor choices regarding arguments and
statements for the ballot; (4) would receive priority status for
even the weakest arguments on the ballot; (5) could fail to
mount, or could withdraw from the ballot, the better
arguments; and (6) could fail to defend the initiative in court
proceedings. Id.
On issues of public importance, potential signers could
face multiple initiatives on the same topic. In order to make
an informed decision about which of the initiatives to support,
potential signers would need to know the differences in
content among the various initiatives. But the voters would
also need to know the identities of the official proponents for
each initiative so that the voters could evaluate how those
official proponents would present the important public issue
at hand. Because the official proponent serves an important
role in the lawmaking process and is delegated duties in the
lawmaking process far beyond that of an advocate, the
government has an essential interest in preserving an electoral
process that allows voters to know to whom they are
delegating lawmaking power when signing a particular
petition.
This “essential” interest clearly outweighs the minor
actual burden, if any, on the official proponents who must
disclose their identities. The role that these individuals wish
to fill is itself a public legislative role that is akin to the role
of an elected legislator. The voluntary undertaking of a
California proponent’s role entails other duties (beyond the
initial filing) that require disclosure of the official
proponent’s identity, for example, monitoring the integrity of
the petition-circulation process, crafting arguments for the
ballot, and intervening in court proceedings. Other circuits
CHULA VISTA CITIZENS V. NORRIS 59
have recognized that candidates for public office have no
First Amendment interest in anonymity by virtue of their
voluntary undertaking of a public role. See, e.g., Majors v.
Abell, 317 F.3d 719, 722 (7th Cir. 2003) (“[The plaintiff’s]
standing might be questioned on the ground that a candidate
has no [free speech] interest in anonymity that the statute
might protect; for there are no anonymous candidates.”).
Similarly, the role sought by these individuals is one that
necessarily requires public disclosure of identity. Even
assuming that an official proponent has a First Amendment
anonymity interest, the potential burden is negligible.
In a different context, the Supreme Court has expressed
skepticism that an informational interest can sustain regimes
that compel disclosure of the identity of an advocate at the
point of contact with voters, or signatories in the initiative
context. In Buckley v. American Constitutional Law
Foundation, Inc. (“ACLF”), 525 U.S. 182, 200 (1999), the
Court struck down a Colorado statute requiring every petition
circulator to wear a badge bearing the circulator’s name,
because the public’s informational interest in identifying the
advocate was insufficiently important to justify chilling
political speech and potentially to subject circulators to
harassment at the apex of face-to-face political advocacy.
Similarly, in McIntyre, the Supreme Court struck down an
Ohio ban on handbills that failed to identify the name of the
advocate, because the public’s informational interest in
knowing the identity of the advocate “means nothing more
than the provision of additional information that may either
buttress or undermine the argument in a document.” 514 U.S.
at 348. Beyond expressing concerns over fear of harassment
that could chill political speech, the Court noted that
disclosure of the advocates’ identity at the point of contact
with voters could weaken the effectiveness of the speech:
60 CHULA VISTA CITIZENS V. NORRIS
“[A]n advocate may believe her ideas will be more persuasive
if her readers are unaware of her identity.” Id. at 342; see
also ACLU of Nev. v. Heller, 378 F.3d 979, 994 (9th Cir.
2004) (“[F]ar from enhancing the reader’s evaluation of a
message, identifying the publisher can interfere with that
evaluation by requiring the introduction of potentially
extraneous information at the very time the reader encounters
the substance of the message.”).
We have adopted the Court’s skepticism of an
informational interest in the identity of the advocate at the
point of contact with voters. See Heller, 378 F.3d at 995(holding that an informational interest in allowing the public
to evaluate the advocacy document is not sufficiently
important to sustain compelled disclosure of an advocate’s
identity on the document itself); (WIN) Wash. Initiatives Now
v. Rippie, 213 F.3d 1132, 1140 (9th Cir. 2000) (holding that
an informational interest is not sufficiently important to
sustain compelled disclosure of advocates’ identities during
the circulation period).
But this doctrine does not apply here for two reasons.
First, the statute is directed toward the government’s interest
in preserving the integrity of elections, an interest that the
Supreme Court has recognized as sufficient to support
mandated disclosure of identity. Doe, 130 S. Ct. at 2820.
Second, the proponent of a California initiative is asking
voters to allow her to serve an official public role and to
allow her to act on the voters’ behalf in the legislative
process, not just recounting an idea as an advocate, and a
petition is an official legislative form, not a pamphlet or
advocacy document. See Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 363 (1997) (holding that the First
Amendment does not provide “a right to use the ballot itself
CHULA VISTA CITIZENS V. NORRIS 61
to send a particularized message”). Here, the disclosure
regime seeks to disclose the identity not of an advocate, but
of an individual who serves as an official proponent and
representative of the signers in the lawmaking process—a
role akin to a candidate for office and recognized explicitly as
distinct from that of an advocate under California law. See
Perry, 265 P.3d at 1017–18 (holding that “the official
proponents of an initiative measure are recognized as having
a distinct role—involving both authority and responsibilities
that differ from other supporters of the measure”). The
government’s interest in alerting potential signatories to the
official proponent’s identity, as a representative of the
initiative, is markedly different than the interests at stake in
McIntyre, Citizens United, and ACLF—that is, knowing the
identity of a mere advocate in order to evaluate an argument.
The Individual Plaintiffs respond that the state’s interest
is satisfied, or lessened, by two other required points of
disclosure—at the points of application and publication in a
newspaper of general circulation. Cal. Elec. Code §§ 9202,
9205. That argument fails to recognize that the signing of a
petition in this context is not simply agreeing to the content
of an initiative; it also is an expression of support for that
particular official proponent. If the name of the official
proponent is not printed on the petition, every elector who is
considering whether to sign would be required to match the
petition with public records or newspaper publications in
order to glean whom the elector is designating as the official
proponent. The two earlier points of disclosure identified by
the Individual Plaintiffs would provide no identifying
information whatsoever to an elector who is approached on
the street with a petition; the elector would lack sufficient
information to allow for an informed decision whether to
62 CHULA VISTA CITIZENS V. NORRIS
sign. Such a disclosure scheme clearly would fail to satisfy
the government’s interest in any meaningful or realistic sense.
By analogy, if ballots listed only the platforms of
candidates for an office, but not the candidates’ names,
undoubtedly we would not find it sufficient that voters were
able to access the names and platforms of candidates from
public records or from local media in order to guide voting
choices. We do not permit federal candidates for public
office to remain anonymous at the point of contact with
voters, nor do we force voters to support federal candidates
without knowing the candidates’ identities. So too here, we
should uphold the decision by the citizens of Chula Vista to
prohibit anonymous candidates for an official legislative role.
Finally, the Supreme Court has allowed those resisting
disclosure to mount a successful First Amendment challenge
where “they can show a reasonable probability that the
compelled disclosure of personal information will subject
them to threats, harassment, or reprisals from either
Government officials or private parties.” Doe, 130 S. Ct. at
2820 (internal quotation marks and brackets omitted). The
Individual Plaintiffs, however, have provided no evidence
that shows a likelihood of harassment, and they have
effectively conceded that they experienced no harassment in
response to their service as official proponents to Chula Vista
Measure G. Moreover, given the public role that an official
proponent serves in the lawmaking process, some public
pressure must be expected in order to hold that official
proponent accountable to a good faith performance of his
duties. Accordingly, Plaintiffs have failed to show that the
compelled disclosure would subject them to threats,
harassment, or unreasonable reprisals from government
officials or the public.
CHULA VISTA CITIZENS V. NORRIS 63
In sum, I would hold that the disclosure regime survives
exacting scrutiny because it is substantially related and
narrowly tailored to the government’s interest in preserving
the integrity and transparency of the electoral process by
providing voters with the identity of the official proponent.
Accordingly, I respectfully dissent from Part IV. I would
affirm the judgment in full.