Michael Chamness v. Abel Maldonado , 722 F.3d 1110 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL CHAMNESS; DANIEL No. 11-56303
FREDERICK; RICH WILSON ,
Plaintiffs-Appellants, D.C. No.
2:11-cv-01479-
and ODW-FFM
JULIUS GALACKI,
Intervenor-Appellant,
v.
DEBRA BOWEN , in only her official
capacity as California Secretary of
State; DEAN LOGAN , in only his
official capacity as Registrar-
Recorder, County Clerk of the
County of Los Angeles,
Defendants-Appellees,
ABEL MALDONADO ; CALIFORNIA
INDEPENDENT VOTER PROJECT ;
CALIFORNIANS TO DEFEND THE
OPEN PRIMARY ,
Intervenor-Defendants-Appellees.
2 CHAMNESS V . BOWEN
MICHAEL CHAMNESS; DANIEL No. 11-56449
FREDERICK; RICH WILSON ,
Plaintiffs-Appellants, D.C. No.
2:11-cv-01479-
v. ODW-FFM
DEBRA BOWEN , in only her official OPINION
capacity as California Secretary of
State; DEAN LOGAN , in only his
official capacity as Registrar-
Recorder, County Clerk of the
County of Los Angeles,
Defendants-Appellees,
CALIFORNIA INDEPENDENT VOTER
PROJECT ; CALIFORNIANS TO DEFEND
THE OPEN PRIMARY ; ABEL
MALDONADO ,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
February 13, 2013—Pasadena, California
Filed July 3, 2013
CHAMNESS V . BOWEN 3
Before: Marsha S. Berzon and Paul J. Watford, Circuit
Judges, and James G. Carr, Senior District Judge.*
Opinion by Judge Carr
SUMMARY**
Civil Rights
The panel affirmed the district court’s order granting
defendants summary judgment and denying a motion to
intervene in this action brought by plaintiffs challenging the
constitutionality of certain sections of California Senate Bill
6, legislation which, implementing California’s Proposition
14, changed the California election system by eliminating
party primaries and general elections with party-nominated
candidates, and substituting a nonpartisan primary and a two-
candidate runoff.
The panel first dismissed as moot the appeal by two of the
plaintiffs and the claims of a potential intervenor which
challenged the counting of write-in ballots, noting that the
California Elections Code has been amended to clarify that
voters are not permitted to cast write-in ballots in top-two
general elections.
*
The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 CHAMNESS V . BOWEN
The panel then rejected the claim brought by the third
plaintiff alleging that his First Amendment rights had been
violated because in the special congressional primary election
in which he wished to participate, he was prohibited from
using the ballot label “Independent” and was instead forced
to choose between a preferred party designation, “No Party
Preference,” or a blank space on that part of the ballot. The
panel held that plaintiff failed to establish that SB 6 severely
burdened his rights, noting that plaintiff failed to present any
evidence to support his claim that there was a difference
between “Independent” and “No Party Preference.” The
panel held that the law in this case represented a reasonable,
nondiscriminatory restriction that imposed a slight burden on
speech and was sufficiently supported by the state’s important
regulatory interests.
The panel held that the district court did not abuse its
discretion in denying the motion to intervene by Julius
Galacki, who attempted to run as a write-in candidate in a
July 12, 2011, general election for a congressional district.
The panel noted that Galacki knew of the law he wished to
challenge, and the effects it would have, well before the time
he filed his motion and therefore the district court acted
within its discretion in denying the motion as untimely.
COUNSEL
Gautam Dutta (argued), Fremont, California, for Plaintiffs-
Appellants and for Intervenor-Defendant-Appellant Julius
Galacki.
CHAMNESS V . BOWEN 5
George Waters (argued), Deputy Attorney General, Kamala
D. Harris, Attorney General of California, Douglas J. Woods,
Senior Assistant Attorney General, and Peter A. Krause,
Supervising Deputy Attorney General, Sacramento
California, for Defendant-Appellees Debra Bowen and Dean
Logan.
Christopher E. Skinnell (argued), Marguerite Mary Leoni,
Nielsen Merksamer Parrinello Gross & Leoni LLP, San
Rafael, California, for Intervenor-Defendants-Appellees.
OPINION
CARR, Senior District Judge:
This is a consolidated appeal in which plaintiffs-
appellants Michael Chamness, Daniel Frederick, and Rich
Wilson challenge the constitutionality of certain sections of
California Senate Bill 6 (SB 6), legislation which,
implementing California’s Proposition 14 (Prop. 14),
fundamentally changes the California election system by
eliminating party primaries and general elections with party-
nominated candidates, and substituting a nonpartisan primary
and a two-candidate runoff. Appellant Julius Galacki moved
to intervene in the lawsuit, but the trial court denied his
motion.
I. Factual Background
Before California voters approved Prop. 14 and the
California Legislature enacted SB 6, California operated
under a partisan primary election system. Under that system,
each qualified party held a primary election in June, and the
6 CHAMNESS V . BOWEN
winner became the party’s nominee in the November general
election. Independent candidates did not participate in the
primary elections but were nominated to the general election
ballot by voter petition.
Prop. 14 amended the California Constitution to establish
a “top-two” open primary election system under which voters
directly nominate two candidates. The top two vote-receiving
candidates become the general election candidates regardless
of political party affiliation or lack thereof. To implement
Prop. 14, the California Legislature enacted SB 6. Together,
Prop. 14 and SB 6 drastically changed elections in California.
Under the version of SB 6 in place at the time relevant to
this case, in the primary election candidates on the primary
ballot indicated either their political party preference, as
disclosed on the candidate’s most recent statement of
registration, or that they had “No Party Preference,” or
designated that preference spot on the ballot be left blank.
Cal. Elec. Code § 13105(a).
As Secretary of State, defendant Debra Bowen interpreted
the term “political party” in this section to mean only a
“qualified party” under Cal. Elec. Code § 5100. That section
imposes certain requirements before a group may become a
“qualified party.”1 Thus, a candidate may only list his party
1
A party is qualified to participate in any primary election under any of
the following conditions:
(a) If at the last preceding gubernatorial election there
was polled for any one of its candidates for any office
voted on throughout the state, at least 2 percent of the
entire vote of the state.
CHAMNESS V . BOWEN 7
preference on the primary ballot if that party has taken the
statutory steps to become a “qualified party.” At the time of
the disputed election, there were six qualified parties in
California: American Independent, Democratic, Green,
Libertarian, Peace and Freedom, and Republican. Bowen
concluded that a candidate who prefers a “non-qualified”
party could not state the term “Independent” on the ballot.
Rather, the candidate had to either state he has “No Party
Preference,” or leave the space blank.
(b) If on or before the 135th day before any primary
election, it appears to the Secretary of State, as a result
of examining and totaling the statement of voters and
their political affiliations transmitted to him or her by
the county elections officials, that voters equal in
number to at least 1 percent of the entire vote of the
state at the last preceding gubernatorial election have
declared their intention to affiliate with that party.
(c) If on or before the 135th day before any primary
election, there is filed with the Secretary of State a
petition signed by voters, equal in number to at least 10
percent of the entire vote of the state at the last
preceding gubernatorial election, declaring that they
represent a proposed party, the name of which shall be
stated in the petition, which proposed party those voters
desire to have participate in that primary election. This
petition shall be circulated, signed, verified and the
signatures of the voters on it shall be certified to and
transmitted to the Secretary of State by the county
elections officials substantially as provided for initiative
petitions. Each page of the petition shall bear a caption
in 18-point boldface type, which caption shall be the
name of the proposed party followed by the words
“Petition to participate in the primary election.”
Cal. Elec. Code § 5100.
8 CHAMNESS V . BOWEN
SB 6 also prohibits voters from casting write-in votes in
the general election. However, voters may cast write-in votes
in the primary election. Cal. Elec. Code § 8605 further states:
No person whose name has been written in
upon a ballot for an office at the direct
primary may have his or her name placed on
the ballot as a candidate for that office for the
ensuing general election unless one of the
following is applicable:
***
(c) At that direct primary he or she received
. . . the highest number of votes cast for that
office or the second highest number of votes
cast for that office . . . .
Because only the two candidates with the highest number
of votes in the primary election advance to the general
election, “[a] person whose name has been written on the
ballot as a write-in candidate at the general election for a
voter-nominated office shall not be counted.” Cal. Elec.
Code § 8606 (2011). Bowen interpreted this statute to
prohibit all write-in candidates from running in the general
election.
Chamness sought to run for office in the primary election
and wished to have the ballot state, in the party preference
space, “Independent.”2 Instead, he appeared on the ballot as:
2
As in his complaint, Chamness argues on appeal only that he wished
to designate himself “Independent” on the primary election ballot, not that
he must be allowed to identify himself as a member of the “Coffee Party.”
CHAMNESS V . BOWEN 9
MICHAEL CHAMNESS
No Party Preference
Non-Profit Organization Consultant
Frederick sought to run as a write-in candidate in the
general election for Assembly District 4, but under SB 6
could not do so. Wilson, who is registered to vote in
Assembly District 4, cast a write-in vote for Frederick in the
election. Election officials did not count Wilson’s vote for
Frederick.
Galacki attempted to run as a write-in candidate in the
July 12, 2011, general election for Congressional District 36.
He was not permitted to do so. When Galacki sought write-in
registration papers, Los Angeles County Registrar Dean
Logan explained to Galacki that SB 6 bans write-in
candidacies in the general election. Galacki thereafter
attempted to cast a write-in vote for himself in the general
election by mailing his ballot to Logan’s office. Logan did
not count the vote.
Chamness filed suit on February 17, 2011, seeking a
preliminary injunction to enjoin the implementation of SB 6
in the special congressional election in which he wished to
participate.
On March 1, 2011, intervenors-defendants, Abel
Maldonado, California Independent Voter Project (CIVP),
and Californians to Defend the Open Primary (CDOP), filed
a motion to intervene. The trial court granted the motion.
On March 30, 2011, the trial court denied Chamness’
motion for a preliminary injunction. Chamness filed a
10 CHAMNESS V . BOWEN
motion for an expedited appeal, which this court denied.
Chamness thereafter voluntarily dismissed that appeal.
On May 6, 2011, plaintiffs filed a motion for summary
judgment. On July 12, 2011, the general election occurred.
Frederick was not on the ballot, and Wilson’s vote for
Frederick was not counted. Galacki did not appear on the
ballot, and his vote for himself was not counted.
On July 14, 2011, the trial court denied Chamness’
motion for summary judgment, and sua sponte tentatively
granted defendants summary judgment. Also on July 14,
2011, Galacki filed a motion to intervene. In his motion, he
alleged SB 6 violated his First and Fourteenth Amendment
rights by barring him from running as a write-in candidate.
He also stated it violated his rights under the Elections Clause
by prohibiting Logan from counting Galacki’s write-in vote
for himself. Finally, he alleged SB 6 impermissibly forced
him to state that he has “No Party Preference,” when, in fact,
he wished to run as a Tea Party Candidate.
Galacki also stated he would assert two unique Elections
Clause claims: first, his right to run for federal office as a
write-in candidate; second, his right to cast a ballot as a write-
in candidate and have it counted. Galacki stated that
“[b]ecause [he] is entitled to intervene, the Court may
incorporate by reference his as-applied constitutional claims
(stemming from the July 12, 2011 General Election) into
Plaintiffs’ pending Motion for Summary Judgment.”
The trial court denied Galacki’s motion to intervene for
two reasons. First, it stated Galacki failed timely to file the
motion; and second, it stated that plaintiffs would adequately
represent Galacki’s rights.
CHAMNESS V . BOWEN 11
On August 23, 2011, the trial court formally granted
defendants summary judgment. Chamness, Frederick, and
Wilson appeal the trial court’s order granting defendants
summary judgment (Case No. 11-56449). Galacki appeals
the trial court’s order denying his motion to intervene (Case
No. 11-56303).
II. Jurisdiction and Mootness
This court has jurisdiction over this appeal as it arises
from the trial court’s final orders granting summary judgment
to defendants and denying Galacki’s motion to intervene.
28 U.S.C. § 1291; Citizens for Balanced Use v. Montana
Wilderness Ass’n, 647 F.3d 893, 896 (9th Cir. 2011) (this
court has “jurisdiction over the denial of a motion to
intervene as of right as a final appealable order . . .”); Rubin
v. City of Santa Monica, 308 F.3d 1008, 1013 (9th Cir. 2002).
Chamness’ case is not moot because his claims are
“‘capable of repetition, yet evading review.’” Rubin, 308 F.3d
1013 (quoting Shaefer v. Townsend, 215 F.3d 1031, 1033 (9th
Cir. 2000)). Chamness’ claim is capable of repetition
because future election administrators would deny him the
ability to use the designation “Independent” on the primary
ballot. See id. As this court has previously noted, “[i]f
[election law] cases were rendered moot by the occurrence of
an election, many constitutionally suspect laws . . . could
never reach appellate review.” Id. (internal quotation marks
omitted) (alterations in original). We therefore exercise
jurisdiction over this appeal. See id.Frederick’s and Wilson’s appeal is, however, moot. They
base their appeal on the proposition that California law
impermissibly allows voters to cast write-in votes in top-two
12 CHAMNESS V . BOWEN
general elections, but then prohibits those ballots from being
counted. Whether or not that was so at the time the district
court decided the case, see Field v. Bowen, 199 Cal. App. 4th
346, 350 (2011), it is not so now.
California’s Elections Code has been amended to clarify
that voters are not permitted to cast write-in ballots in top-two
general elections. See Cal. Elec. Code § 8606 (2012)
(“Notwithstanding any other provision of law, a person may
not be a write-in candidate at the general election for a
voter-nominated office”); id. § 15340 (“Except for a
voter-nominated office at a general election, each voter is
entitled to write on the ballot the name of any candidate for
any public office, including that of President and Vice
President of the United States.” (emphasis added)). Plaintiffs
concede that the state may prohibit write-in votes from being
cast in a general election. See Burdick v. Takushi, 504 U.S.
428, 441–42 (1992).
Because Frederick and Wilson seek only declaratory
relief affecting future elections, their appeal is moot.3 See
Renee v. Duncan, 686 F.3d 1002, 1016 (9th Cir. 2012). For
the same reason, Galacki’s claims regarding his write-in
candidacy and the vote he cast for himself in the general
election are moot.
3
That is, they do not claim Frederick would have won the election, nor
do they seek a change in the outcome of the election.
CHAMNESS V . BOWEN 13
III. Discussion of the Issues
A. Case No. 11-56449
Chamness argues the state violated his First Amendment
rights by prohibiting him from using the ballot label
“Independent” and forcing him to choose between a preferred
party designation, “No Party Preference,” or a blank space on
that part of the ballot.4 We hold that Chamness has failed to
establish that SB 6 severely burdened his rights, and uphold
the constitutionality of the statute as reasonably related to
furthering the state’s important interest in efficiently
regulating elections.
This court reviews the constitutionality of a statute de
novo. Rubin, 308 F.3d at 1008.
“Common sense, as well as constitutional law, compels
the conclusion that government must play an active role in
structuring elections.” Dudum v. Arntz, 640 F.3d 1098, 1103
(9th Cir. 2011) (quoting Burdick, 504 U.S. at 433). Any
4
The statute no longer provides that “[i]f the candidate chooses not to
have his or her party preference listed on the ballot, the space that would
be filled with a party preference designation shall be left blank.” Cal.
Elec. Code § 13105(a) (2011). Six months after the district court entered
judgment in this case, California amended its Elections Code to remove
the blank space option, requiring candidates to either designate a “Party
Preference” or state “Party Preference: None.” Cal. Elec. Code
§ 13105(a) (2012). Because Chamness challenges only his inability to
identify himself as an “Independent,” and does not argue in his appellate
briefs that the presence or absence of the blank space option has any effect
on the statute’s constitutionality, we express no view as to whether the
removal of the blank space option compels speech by requiring candidates
who prefer a non-qualified party to falsely state that they have no party
preference.
14 CHAMNESS V . BOWEN
“election system, ‘whether it governs the registration and
qualifications of voters, the selection and eligibility of
candidates, or the voting process itself, inevitably affects—at
least to some degree—the individual’s right to vote.’” Id. at
1106 (quoting Burdick, 504 U.S. at 433). Therefore, “the
Supreme Court developed a balancing test to resolve the
tension between a candidate’s First Amendment rights and
the state’s interest in preserving the fairness and integrity of
the voting process.” Rubin, 308 F.3d at 1014. This court
reiterated the appropriate test:
When deciding whether a state election law
violates First and Fourteenth Amendment
speech rights, courts are to “weigh the
character and magnitude of the burden the
State’s rule imposes on those rights against
the interests the State contends justify that
burden, and consider the extent to which the
State’s concerns make the burden necessary.”
Id. (quoting Timmons v. Twin Cities Area New Party,
520 U.S. 351, 358 (1997)).
When an election regulation imposes a “severe []
burden[]” on First Amendment rights, the state must show the
law is narrowly tailored to achieve a compelling
governmental interest—strict scrutiny review. Id. (quoting
Burdick, 504 U.S. at 434). Nondiscriminatory restrictions
that impose a lesser burden on speech rights need only be
reasonably related to achieving the state’s “‘important
regulatory interests.’” Id. (quoting Burdick, 504 U.S. at 434).
This court has noted that “voting regulations are rarely
subject to strict scrutiny.” Dudum, 640 F.3d at 1106 (citing
Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008)).
CHAMNESS V . BOWEN 15
A regulation imposes a severe speech restriction if it
“significantly impair[s] access to the ballot, stifle[s] core
political speech, or dictate[s] electoral outcomes.” Rubin,
308 F.3d at 1015. A regulation imposes a permissible
restriction on speech when it is “generally applicable, even-
handed, [and] politically neutral,” or if it “protects the
reliability and integrity of the election process.” Id. at 1014
(citing Hussey v. City of Portland, 64 F.3d 1260, 1265 (9th
Cir. 1995)). “This is true even when the regulations ‘have the
effect of channeling expressive activities at the polls.’” Id.(quoting Timmons, 520 U.S. at 369).
In Timmons, the Supreme Court upheld a law banning a
candidate from appearing on the ballot with more than one
political party designation. 520 U.S. at 369–70. The Court
held the burden imposed was a minor one, id. at 359, and
therefore rejected the political “party’s contention that it has
a right to use the ballot itself to send a particularized
message . . . to the voters[] about the nature of its support for
the candidate. Ballots serve primarily to elect candidates, not
as forums for political expression.” Id. at 363.
The Court held the state had a “strong interest in the
stability of [its] political system[].” Id. at 366. Although
such an interest does not allow the state to insulate political
parties from minor parties’ or independent competition, the
“interest permits them to enact reasonable election
regulations that may, in practice, favor the traditional two-
party system.” Id. at 367. The Court thus concluded that “the
burdens [the law] impose[d] on [the party’s] associational
rights are justified by ‘correspondingly weighty’ valid state
interests in ballot integrity and political stability.” Id. at
369–70.
16 CHAMNESS V . BOWEN
In Rubin, applying the Timmons analysis, this court held
that a city could preclude a candidate from designating on the
ballot, as his occupation, that he was a “peace activist.”
308 F.3d at 1015–17. The law prohibited any candidate from
naming a “status” as his occupation. Id. This court held that
the city’s “prohibition of status designations such as ‘activist’
does not severely burden a candidate’s First Amendment
rights.” Id. The court noted the regulation is viewpoint
neutral—it bans any type of “status” regardless of the
message it seeks to convey. Id. Additionally, it did not
hinder core political speech by preventing the candidate from
“supporting or discussing” peace activism during his
candidacy; it merely placed a limit on how his occupation
would appear on the ballot. Id. Finally, the city provided
him an alternative way to express his views through a
candidate’s statement distributed prior to the election. Id. at
1016. Under all of the circumstances, the law did not
severely burden the candidate’s speech rights. Id.Chamness has likewise failed to show that the statute
challenged in this case severely burdened his First
Amendment rights. Chamness seeks to use the ballot to
promote his political message. However, unlike the candidate
in Timmons, Chamness cannot identify the specific message
he wishes to convey or explain how that message is hindered.
The law prohibits Chamness from designating himself as
“Independent,” and requires him to state he has “No Party
Preference.” Yet, Chamness has failed to demonstrate any
real difference between the two locutions.
The only possible difference between the two phrases that
has been suggested is that “Independent” may evoke a
positive view—that the candidate affirmatively rejects the
politics of the other parties. “No Party Preference” might, on
CHAMNESS V . BOWEN 17
the other hand, evoke a neutral or even negative view—that
the candidate is apathetic to the views of the other parties;
i.e., while he does not identify with them, he does not reject
them. Chamness, however, failed to provide any evidence
that the two phrases are actually likely to be understood by
voters to convey these different meanings, and, if they do,
that the distinction would tend to affect the way voters cast
their votes. Considered in context, we cannot assume these
facts in the absence of evidence. To the contrary, we assume
the ballot was presented to a well-informed electorate,
familiar with the qualified political parties it has seen on past
ballots. See Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 454–55 (2008). Moreover, had
Chamness believed that “No Party Preference” had negative
connotations even to well-informed voters, he could have
requested that his name appear next to a blank space, which
was permitted under the version of SB 6 in effect during
Chamness’ candidacy.
The fact that the regulation in this case is viewpoint
neutral as to the required term “No Party Preference”
supports the conclusion that it imposes only a slight burden
on speech. See Rubin, 308 F.3d at 1015. The restriction does
not allow any candidates to term themselves “Independents”
and does allow all candidates to put themselves forward on
the primary ballot and gather votes. That candidates not
identified on the ballot as preferring a particular party must
use the term “No Party Preference” or leave the space blank
rather than designating themselves as an “Independent” has
no viewpoint implications, and so, for that reason as well,
imposes a “[l]esser burden[]” on speech.
Such slight speech burdens may be justified by the
“State’s ‘important regulatory interests,’” Timmons, 520 U.S.
18 CHAMNESS V . BOWEN
at 358 (quoting Burdick, 504 U.S. at 434), including
“prevent[ing] misrepresentation and electoral confusion,”
Norman v. Reed, 502 U.S. 279, 290 (1992). Here, there is
such an interest in preventing confusion. The term
“Independent,” if listed next to a candidate’s name on a
ballot, might be confused with the name of a political party,
such as the “American Independent” party—one of
California’s “qualified” political parties.5
The state also has an important interest in managing its
ballots. Timmons, 520 U.S. at 365. If the state were to allow
Chamness to use the term “Independent,” various candidates
could then seek to place other designations on the ballot in
5
Although defendants asserted an “interest in maintaining the distinction
between qualified political parties and nonqualified political bodies” as
justifying the “No Party Preference” language, we do not rely on that
distinction in our analysis. The California Supreme Court’s decision in
Libertarian Party v. Eu, 28 Cal.3d 535, 546 (1980), on which Defendants
rely for their assertion, held that “the distinction between qualified and
nonqualified parties serves a compelling state interest,” but did so largely
in reliance on conditions that no longer obtain— namely, the use of party
primaries conducted by the state, in which only one endorsed candidate
per party could appear on the final ballot. See Libertarian Party, 28 Cal.
3d at 545–46. Under the current system, in contrast, political parties do
not choose candidates; the state does not run separate primaries for various
parties; and multiple candidates can state that they prefer the same party.
Given the substantial changes from the election system at issue in
Libertarian Party to the present one, the analysis in that case of the
governmental interests supporting the “qualified parties” distinction is not
fully transferable to the present context.
In any event, Chamness does not contend that “Independent” is a
political party, nor does he challenge California’s limitation of
appearances on the ballot to “qualified” parties. See supra note 2. W e
therefore express no views as to the validity of California’s restriction
against stating preferences for non-qualified parties.
CHAMNESS V . BOWEN 19
lieu of a party preference. Those self-designations might, for
example, indicate specific political ideologies, or the absence
thereof. Id. (stating examples such as the “No New Taxes” or
“Stop Crime Now” parties). Or candidates could propose
designations containing language or messages inappropriate
for ballots, such as those containing profanity or promoting
racism or sexism. Limiting the ballot designations to political
parties, a prescribed term (“No Party Preference”), or a blank
space avoids both the problem of allowing questionable self-
designation and the alternative prospect of having to make
case-by-case governmental decisions regarding the
acceptability of various self-designations.
We therefore hold that the law in this case represents a
reasonable, nondiscriminatory restriction that imposes a slight
burden on speech and is sufficiently supported by the state’s
important regulatory interests.
In arguing for strict-scrutiny review, Chamness relies
heavily on Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992). In
Rosen, the Sixth Circuit invalidated an Ohio law that allowed
Democratic and Republican candidates to state their party on
the ballot, but prohibited the political party designation
“Independent.” Ohio uses an election system similar in all
relevant aspects to the former California system. Id. at
171–72, 174. Rosen was not affiliated with a political party,
and secured a place on the general election ballot by petition.
Id. at 171–72. The Ohio Secretary of State refused to allow
Rosen to designate himself as “Independent” on the ballot, in
compliance with an Ohio statute. Id. While the other
candidates would have either “Democrat” or “Republican”
next to their names, Rosen would have no designation by his.
Id.20 CHAMNESS V . BOWEN
The district court issued a preliminary injunction
requiring that Rosen be identified as “Independent by
Petition” on the ballot. Id. The district court later granted
summary judgment to Rosen on the merits of his claim, and
the Sixth Circuit affirmed. Id. at 172.
The Sixth Circuit noted that Rosen provided ample
evidence that the distinction between the label “Independent”
and no label at all severely prejudiced him at the polls. Id. at
173–74. One expert testified:
[P]arty identification is the single most
important influence on political opinions and
voting. . . . Without a designation next to an
Independent’s name on the ballot, the voter
has no clue as to what the candidate stands
for. Thus, the state affords a crucial
advantage to party candidates by allowing
them to use a designation, while denying the
Independent the crucial opportunity to
communicate a designation of their candidacy.
Id. at 172.
Another expert stated:
Independents compose an increasingly large
segment of the electorate, with approximately
34 percent of eligible voters identifying
themselves as Independents. . . . Independent
candidates are handicapped by their inability
to communicate a political designation on the
ballot. . . . Many voters do not know who the
candidates are or who they will vote for until
CHAMNESS V . BOWEN 21
they enter the voting booth. Without labels,
voters cannot identify the nonparty candidates
or know what they represent.
Id.The final expert stated “that Ohio’s ballot scheme is the
equivalent of putting an unlabeled product on a shelf next to
brand name products in a supermarket. Similarly, the
absence of a label for a candidate gives rise to mistrust and
negative inferences.” Id. at 172–73.
The Sixth Circuit struck down the Ohio law as an
unconstitutional restriction on independent candidates’ First
Amendment rights. Id. at 178. The court noted Rosen
presented evidence that the designation hindered his rights,
and the defendants failed to rebut that evidence. Id. at 176.
The court rejected the state’s asserted interest, finding, citing
Ohio’s history of impermissible ballot statutes, that the Ohio
statute “is nothing more than a deliberate attempt by the State
to protect and guarantee the success of the Democratic and
Republican parties.” Id. at 176. The court also rejected the
state interest in “producing a more manageable ballot” as “not
substantiated by the facts of this case.” Id. at 177. “By
excluding such designations from the ballot, Ohio will not
produce a shorter or smaller ballot.” Id.Rosen is not in conflict with our holding in this case, for
two reasons. First, as discussed above, Chamness failed to
present in the district court any evidence to support his claim
that there is a difference between “Independent” and “No
Party Preference.” Nor are the facts of this case sufficiently
similar to those in Rosen to allow Chamness to rely on the
studies presented in that case. That case involved the
22 CHAMNESS V . BOWEN
distinction, supported by expert testimony establishing its
prejudicial impact, between “Independent” and no
designation at all, when pitted against “Republican” or
“Democrat.” By contrast, this case involves an asserted, but
unsupported, distinction in likely impact between
“Independent” on the one hand, and “No Party Preference,”
when pitted against other “preference” designations for
California’s six qualified parties.
The Rosen court also stated that the law in that case
seemed to be “nothing more than a deliberate attempt by the
State to protect and guarantee the success of the Democratic
and Republican parties.” 970 F.2d at 176. There does not
appear to be any legitimate argument that the law in this case
seeks to insulate any political party or parties from
competition. Indeed, the law does not even allow a political
party to affirmatively endorse a candidate on the ballot or
allow a candidate to affirmatively state that a political party
endorses him; rather, he may only state that he prefers a
party. In other words, unlike the Ohio statute in Rosen, the
California open primary system permits no “brand names,” as
the references to political parties are only individual
candidates’ preferences, not endorsements by political parties
indicating that the party has reviewed a candidate’s
qualifications or positions.
Additionally, under the California system, multiple
candidates may state they prefer the same political party,
weakening any argument that the law seeks to guarantee the
success of certain political parties. To the contrary, when
multiple candidates state they prefer a single political party,
the voters cannot know from the ballot which candidate, if
any, the party actually endorses. Allowing multiple
candidates to state they prefer a single political party, in
CHAMNESS V . BOWEN 23
addition, may dilute the party’s support among those
candidates. Given these considerations, an otherwise well-
supported candidate with “No Party Preference” could, at
least theoretically, benefit from the statutory scheme. Rosen
does not, therefore, dictate a contrary outcome to the one we
reach in this case.
Chamness’ claim that the law violates the Election Clause
under Cook v. Gralike, 531 U.S. 510 (2001), also fails. In
that case, a state constitutional amendment instructed
members of the state’s legislature to support term limits for
members of the U.S. Congress. Id. at 514–15. Those who
did not had the words “DISREGARDED VOTER’S
INSTRUCTIONS ON TERM LIMITS” printed next to their
name on the ballot in a subsequent election. Id. The label
thus forced candidates to appear on the ballot next to a
derogatory message, specifically telling voters that the
candidate was unfaithful to the constitutional instruction. Id.The Court held that requiring the label violated the Election
Clause because doing so dictated the electoral outcome by
favoring a class of candidates. Id. at 525–26.
The law in this case does not, like the one in Cook,
promote a specific class of candidates who took certain
action. It is not pejorative or slanted toward a particular
viewpoint. See Bowen, 199 Cal. App. 4th at 363. In Rubin,
this court acknowledged as much when it stated the
constitutional provision “stands in stark contrast” to the law
in that case. 308 F.3d 1015–16. Because SB 6 does not
dictate political outcomes or invidiously discriminate against
24 CHAMNESS V . BOWEN
a class of candidates, it is not analogous to the statute
invalidated in Cook.6
B. Case No. 11-56303
Galacki argues the trial court erred in denying his motion
to intervene. We disagree.
This court “review[s] the denial of a motion to intervene
as of right de novo, with the exception of the timeliness
prong, which we review for abuse of discretion.” Citizens for
Balanced Use, 647 F.3d at 896.
The Ninth Circuit requires an applicant for intervention as
of right under Fed. R. Civ. P. 24(a)(2) to demonstrate that
(1) it has a significant protectable interest
relating to the property or transaction that is
the subject of the action; (2) the disposition of
the action may, as a practical matter, impair or
impede the applicant’s ability to protect its
interest; (3) the application is timely; and (4)
the existing parties may not adequately
represent the applicant’s interest.
United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th
Cir. 2004) (quoting United States v. City of Los Angeles,
288 F.3d 391, 397 (9th Cir. 2002)). “Each of these four
requirements must be satisfied to support a right to
intervene.” Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th
6
Plaintiffs also argued in their briefs that the trial court erred in allowing
Maldonado, CDOP, and CIVP to intervene in this case. At oral argument,
plaintiffs’ counsel conceded the point is now moot.
CHAMNESS V . BOWEN 25
Cir. 2003). While “Rule 24 traditionally receives liberal
construction in favor of applicants for intervention[,]” id., it
is incumbent on “[t]he party seeking to intervene [to show]
that all the requirements for intervention have been met.”
Alisal, 370 F.3d at 919.
The third requirement is dispositive here. “In analyzing
timeliness, we focus on the date the person attempting to
intervene should have been aware his interest[s] would no
longer be protected adequately by the parties, rather than the
date the person learned of the litigation.” Bates v. Jones,
127 F.3d 870, 873 (9th Cir. 1997) (internal quotation marks
omitted) (alteration in original).
The trial court did not abuse its discretion in deciding
Galacki failed to file a timely motion to intervene. As the
court noted, Galacki knew of the law he wished to challenge,
and the effects it would have, well before the time he filed his
motion. As Galacki acknowledges in his brief, he requested
write-in nomination papers on June 14, 2011, and the
statutory deadline to file write-in nomination papers for the
election passed on June 28, 2011. At that time, at the very
latest, he became aware he would not be allowed to run as a
write-in candidate. However, he waited until July 14, 2011,
to file his motion, by which time (1) the parties had submitted
a joint case management report to the district court expressing
the unanimous view that the case was likely to be resolved at
the summary judgment phase; (2) plaintiffs Chamness,
Frederick, and Wilson had filed a motion for summary
judgment and defendants had responded; and (3) the court
had taken the motion under submission and indicated its
intent to rule on the briefs. Under these circumstances, the
trial court acted well within its discretion in concluding that
allowing Galacki to intervene would entail substantial delays
26 CHAMNESS V . BOWEN
and inefficiencies resolving the case, and in therefore denying
Galacki’s motion as untimely.7
IV. Conclusion
For the foregoing reasons, we affirm the trial court’s order
granting defendants summary judgment and denying
Galacki’s motion to intervene.
AFFIRMED.
7
Because we affirm the denial of Galacki’s motion to intervene on
timeliness grounds, we do not reach the district court’s alternative holding
that Galacki failed to demonstrate that his claims are distinguishable from
the other plaintiffs’ claims.