Wendy Townley v. Ross Miller , 722 F.3d 1128 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY TOWNLEY ; AMY No. 12-16881
WHITLOCK; ASHLEY
GUNSON ; HEATHER THOMAS; D.C. No.
DAX WOOD ; CASJA LINFORD ; 3:12-cv-00310-
WESLEY TOWNLEY ; JENNY RCJ-WGC
RIEDL; TODD DOUGAN ;
BRUCE WOODBURY ; JAMES
W. DE GRAFFENREID ;
REPUBLICAN PARTY OF
NEVADA ,
Plaintiffs-Appellees,
v.
ROSS MILLER, Secretary of
State of Nevada,
Defendant-Appellant,
and
KINGSLEY EDWARDS,
Intervenor-Defendant.
2 TOWNLEY V . MILLER
WENDY TOWNLEY ; AMY No. 12-16882
WHITLOCK; ASHLEY
GUNSON ; HEATHER THOMAS; D.C. No.
DAX WOOD ; CASJA LINFORD ; 3:12-cv-00310-
WESLEY TOWNLEY ; JENNY RCJ-WGC
RIEDL; TODD DOUGAN ;
BRUCE WOODBURY ; JAMES
W. DE GRAFFENREID ; OPINION
REPUBLICAN PARTY OF
NEVADA ,
Plaintiffs-Appellees,
v.
ROSS MILLER, Secretary of
State of Nevada,
Defendant,
and
KINGSLEY EDWARDS,
Intervenor-Defendant-
Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Argued and Submitted
March 11, 2013—San Francisco, California
Filed July 10, 2013
TOWNLEY V . MILLER 3
Before: John T. Noonan, Jr., Raymond C. Fisher and
Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Fisher
SUMMARY*
Civil Rights
The panel vacated the district court’s preliminary
injunction and remanded with instructions to dismiss for lack
of standing an action challenging Nevada election law, Nev.
Rev. Stat. § 293.269, which allows voters the ability to
register their disapproval of all the named candidates running
for a particular office in statewide and presidential elections
by voting for “None of these candidates,” commonly referred
to as NOTC.
Pursuant to the law, the Secretary of State must count and
report to the public the number of NOTC ballots cast for each
office, but they cannot be counted in determining the winner
among the named candidates in those races. Plaintiffs alleged
that the law disenfranchises voters by disregarding ballots
cast for NOTC in determining the winner of elections.
Plaintiff moved for a preliminary injunction prohibiting the
state from allowing the NOTC option to appear on any ballot.
*
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 TOWNLEY V . MILLER
The panel held that seven of the plaintiffs, who expressed
an intent to vote but did not assert an intent to cast a ballot for
NOTC in the November 2012 election or any subsequent
election, lacked standing because they had not suffered an
injury-in-fact that was actual or imminent. The panel held
that the two plaintiffs who asserted a concrete intent to cast
ballots for NOTC, nevertheless failed to establish that the
relief they sought, removing the NOTC option from the
ballot, would redress their injury. Finally, the panel held that
the remaining plaintiffs, two Republican presidential elector
designees and the Nevada Republican Party, lacked
competitive standing because they failed to establish that
their alleged injury, that NOTC would potentially siphon
votes from the Republican Party’s nominee, was fairly
traceable to the conduct being challenged.
COUNSEL
Catherine Cortez Masto, Attorney General, and Kevin
Benson (argued), Senior Deputy Attorney General, Carson
City, Nevada, for Defendant-Appellant Ross Miller, Secretary
of State of Nevada.
Paul Swen Prior, Snell & Wilmer LLP, Las Vegas, Nevada,
and Michael T. Morley (argued), Law Offices of Michael T.
Morley, Washington, DC, for Plaintiffs-Appellees.
John P. Parris (argued), Law Offices of John P. Parris, Las
Vegas, Nevada, for Intervenor-Defendant-Appellant Kingsley
Edwards.
TOWNLEY V . MILLER 5
OPINION
FISHER, Circuit Judge:
Since 1975, Nevada has given its voters the ability to
register their disapproval of all the named candidates running
for a particular office in statewide and presidential elections
by voting for “None of these candidates,” commonly referred
to as NOTC. The Secretary of State must count and report to
the public the number of NOTC ballots cast for each office,
but they cannot be counted in determining the winner among
the named candidates in those races. They do, of course,
provide a way for disaffected voters to express themselves
other than by simply not voting. In June 2012, plaintiffs
challenged this 37-year-old state election law by suing in the
United States District Court for the District of Nevada to
prohibit the NOTC option from appearing on the November
2012 ballot and any others thereafter. Their contention is that
unless NOTC votes are given “legal effect” in some manner,
those voters are “disenfranchised” and so the NOTC option
cannot appear on the ballot at all. Although the merits of
their arguments are questionable,1 we do not resolve them
because we hold that none of these plaintiffs has standing to
assert the claims made in this lawsuit.
BACKGROUND
In 1975, the Nevada legislature passed a law permitting
voters to register their opposition to all candidates running in
statewide or presidential races by casting a ballot for “None
of these candidates” instead of one of the named candidates.
1
See, e.g., Townley v. Miller, 693 F.3d 1041, 1042 (9th Cir. 2012)
(Reinhardt, J. concurring).
6 TOWNLEY V . MILLER
See Nev. Rev. Stat. § 293.269. The statute has three
subsections. Section 293.269(1) mandates the inclusion of a
“None of these candidates” option on every ballot for any
statewide office or for President and Vice President of the
United States. Section 293.269(2) provides that only votes
cast for named candidates shall be counted in determining the
winner of those elections. Section 293.269(3) provides that
voters shall be instructed that they may select “None of these
candidates” only if they have not voted for any named
candidate in a particular race.2
2
The full text of § 293.269 is as follows:
1. Every ballot upon which appears the names of
candidates for any statewide office or for President and
Vice President of the United States shall contain for
each office an additional line equivalent to the lines on
which the candidates’ names appear and placed at the
end of the group of lines containing the names of the
candidates for that office. Each additional line shall
contain a square in which the voter may express a
choice of that line in the same manner as the voter
would express a choice of a candidate, and the line shall
read “None of these candidates.”
2. Only votes cast for the named candidates shall be
counted in determining nomination or election to any
statewide office or presidential nominations or the
selection of presidential electors, but for each office the
number of ballots on which the additional line was
chosen shall be listed following the names of the
candidates and the number of their votes in every
posting, abstract and proclamation of the results of the
election.
3. Every sample ballot or other instruction to voters
prescribed or approved by the Secretary of State shall
clearly explain that the voter may mark the choice of
TOWNLEY V . MILLER 7
As plaintiffs themselves argue, § 293.269 was enacted
with the sole intent of providing voters the opportunity to
express their lack of confidence in all of the candidates for
elected office – to send a message to candidates that they
need to “‘clean up [their] act’ if [they] get into office.”
Minutes, Assembly Election Committee, Nevada State
Assembly (Mar. 18, 1975); see also None of the Above, Wall
St. J., Dec. 22, 1975 (“A heavy vote in [the NOTC] space
would, of course, be a strong expression of displeasure with
available choices.”); Tom Gardner, Candidate ‘None’ didn’t
do as well in the general, Reno Evening Gazette, Nov. 11,
1978 (noting that the bill’s “original intent was to give voters
an opportunity to express lack of confidence in a candidate”).
In presidential, senatorial and gubernatorial general
elections, NOTC has typically garnered only a few percent of
the vote. See Nate Silver, In Nevada, No One is Someone to
Watch, FiveThirtyEight, N.Y. Times, Aug. 27, 2010,
http://fivethirtyeight.blogs.nytimes.com/2010/08/27/in-
nevada-no-one-is-someone-to-watch/. In primary elections,
however, the ballots cast for NOTC have at times exceeded
those cast for one or more named candidates. For example,
in the 1980 presidential primaries, more voters cast ballots for
NOTC than for Ted Kennedy, and primary winner Jimmy
Carter only narrowly “beat” NOTC. See Chris Black, The
Political Revolution: How to Throw the Bums Out, Boston
Globe, Oct. 28, 1990, at A29, 1990 WLNR 1100058; see also
Christopher W. Carmichael, Proposals for Reforming the
American Electoral System After the 2000 Presidential
Election: Universal Voter Registration, Mandatory Voting,
and Negative Balloting, 23 Hamline J. Pub. L. & Pol’y 255,
the line “None of these candidates” only if the voter has
not voted for any candidate for the office.
8 TOWNLEY V . MILLER
299–300 (2002) (identifying several occasions on which
NOTC garnered more ballots than votes received by named
candidates).
In June 2012, eleven plaintiffs filed suit against the
Nevada Secretary of State, alleging that § 293.269(2)
disenfranchises voters by disregarding ballots cast for NOTC
in determining the winner of elections. Seven plaintiffs are
Democratic, Republican or Independent registered voters who
“intend to vote” but have not expressed an intent to cast a
ballot for NOTC in any election. Two plaintiffs expressed an
intent to cast a ballot for NOTC. The final two plaintiffs
were Republican designees for presidential electors for the
November 2012 general election. The Nevada Republican
Party, which expressed its “strong interest in ensuring that
‘None of These Candidates’ does not appear as a ballot
option,” joined this appeal in support of the plaintiffs.
Of critical importance, the operative complaint does not
challenge subsection 1 of the NOTC statute – that is,
plaintiffs do not assert that the requirement that NOTC appear
on the ballot violates federal constitutional or statutory
provisions. Plaintiffs challenge only subsection 2 of the
NOTC statute. They argue that the state’s refusal to give
legal effect to ballots cast for NOTC disenfranchises voters
who cast such ballots. Although plaintiffs challenge only
subsection 2, the remedy they seek is not that the state be
ordered to give legal effect to ballots cast for NOTC. Rather,
they ask that the state be enjoined from allowing NOTC to
appear on the ballot altogether.
Plaintiffs moved for a preliminary injunction prohibiting
the state from allowing NOTC to appear on any ballot,
including the ballot for the November 2012 election. The
TOWNLEY V . MILLER 9
district court granted plaintiffs’ motion and stated that it
would bar the state from allowing NOTC to appear on the
ballot.
The Nevada Secretary of State and intervenor Kingsley
Edwards immediately appealed and filed emergency motions
to stay the district court’s order.3 A motions panel of this
court granted a stay of the injunction pending appeal. See
Townley v. Miller, 693 F.3d 1041, 1042 (9th Cir. 2012).
NOTC consequently appeared on the November 2012 ballot.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the district court’s entry of a
preliminary injunction under 28 U.S.C. § 1292(a)(1). We
review de novo questions of Article III justiciability,
including standing. See Porter v. Jones, 319 F.3d 483, 489
(9th Cir. 2003).
DISCUSSION
To establish standing, a plaintiff must demonstrate (1)
that he suffered an injury in fact, i.e., an invasion of a legally
protected interest that is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical; (2)
that there is a causal connection between the injury and the
conduct complained of, such that the injury is fairly traceable
to the challenged action of the defendant; and (3) that the
injury will likely be redressed by a favorable decision. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992).
3
Kingsley Edwards intervened in support of the Secretary of State
because he previously cast a ballot for NOTC and has an interest in
ensuring that it continues to be a ballot option.
10 TOWNLEY V . MILLER
At the preliminary injunction stage, plaintiffs must make a
clear showing of each element of standing. See id. at 561(“[E]ach element must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the
successive stages of the litigation.”); Lopez v. Candaele, 630
F.3d 775, 785 (9th Cir. 2010) (articulating “clear showing” as
the burden of proving standing at the preliminary injunction
stage).
Plaintiffs seek injunctive relief, not damages, and “[a]s a
general rule, in an injunctive case this court need not address
standing of each plaintiff if it concludes that one plaintiff has
standing.” Nat’l Ass’n of Optometrists & Opticians
LensCrafters, Inc. v. Brown, 567 F.3d 521, 522 (9th Cir.
2009).4 We therefore examine whether at least one plaintiff
has standing in this case.
1. Non-NOTC Voter Plaintiffs
According to the First Amended Complaint, seven
plaintiffs expressed an intent to vote but did not assert an
intent to cast a ballot for NOTC in the November 2012
election or any subsequent election. Plaintiffs argue that
4
Plaintiffs also seek declaratory relief, as well as attorney’s fees and
costs. W e need not examine standing as to these requests for relief,
however, as neither provides a basis for plaintiffs’ standing to sue. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998) (“[A]
plaintiff cannot achieve standing to litigate a substantive issue by bringing
suit for the cost of bringing suit.”); M ayfield v. United States, 599 F.3d
964, 971 (9th Cir. 2010) (holding, in a lawsuit challenging the legality of
government action, that because a declaratory judgment would not require
the government to take or abstain from taking action, it did not redress the
plaintiff’s injury).
TOWNLEY V . MILLER 11
these individuals “are harmed by the prospect of their ballots
not being counted or given legal effect, depending on whether
they cast their ballots for ‘None of These Candidates.’”
The non-NOTC voter plaintiffs have not suffered an
injury-in-fact that is “actual or imminent, not ‘conjectural’ or
‘hypothetical.’” Lujan, 504 U.S. at 560. The proposition that
these plaintiffs have standing because they may, at some
point, depending on which candidates decide to run in a
future election, choose to cast a ballot for NOTC and
therefore be denied a right that they assert exists epitomizes
speculative injury. This category of plaintiffs therefore lacks
standing.
2. NOTC Voter Plaintiffs
Two plaintiffs, Jenny Riedl and Todd Dougan, have
asserted a concrete intent to cast ballots for NOTC. Plaintiffs
argue that Riedl and Dougan have standing because
“[c]learly, a person who intends to cast his ballot of ‘None of
These Candidates’ is a ‘proper party’ to litigate whether it is
proper for Secretary Miller to present ‘None of These
Candidates’ as a ballot alternative, and then disregard ballots
cast for it.”
We agree with plaintiffs that the first two standing
requirements are met. In light of their stated intent to cast
ballots for NOTC, the injury Riedl and Dougan assert – the
harm caused by the Secretary refusing to give legal effect to
their ballots – is sufficiently concrete and imminent, not
12 TOWNLEY V . MILLER
conjectural or hypothetical.5 This injury is also causally
related to the challenged conduct – the Secretary of State’s
failure to give legal effect to ballots cast for NOTC.
Riedl and Dougan fall short, however, in establishing that
the relief they seek would redress the injury they argue is
caused by § 293.269(2). Plaintiffs say they are harmed
because the ballots cast for NOTC are not given legal effect,
yet they do not actually ask that, as the remedy for this injury,
the Secretary of State be ordered to give legal effect to such
ballots. Rather, they demand that the option of casting a
ballot for NOTC be entirely removed from the Nevada
election system. As a result, if plaintiffs were to prevail in
this lawsuit, voters’ opposition to named candidates would
not be given legal effect, but instead voters would no longer
have the opportunity to affirmatively express their opposition
at the ballot box at all. The relief plaintiffs seek will
therefore decrease their (and other voters’) expression of
political speech rather than increase it, worsening plaintiffs’
injury rather than redressing it.
The proposition that plaintiffs must seek relief that
actually improves their position is a well-established
principle. As then-Judge Kennedy noted more than three
decades ago, “[t]he court’s inability to redress the claimed
5
Although the complaint asserts Riedl and Dougan’s intent to cast
ballots for NOTC only in the 2012 presidential election, we assume
without deciding that these plaintiffs’ standing is not lost because the 2012
election has already occurred. See Moore v. Ogilvie, 394 U.S. 814,
815–16 (1969) (discussing the “capable of repetition, yet evading review”
doctrine in the election challenge context); Nelson v. King Cnty., 895 F.2d
1248, 1254 (9th Cir. 1990) (“Th[e ‘capable of repetition, yet evading
review’] exception governs cases in which the plaintiff possesses standing,
but then loses it due to an intervening event.”).
TOWNLEY V . MILLER 13
injury may be manifest” where “the requested relief will
actually worsen the plaintiff’s position.” Gonzales v.
Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982); see also id.(“[I]f the requested relief would worsen the plaintiff’s
position . . ., the plaintiff lacks standing.”); Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 188 n.4 (2000) (characterizing Linda R.S. v. Richard D.,
410 U.S. 614 (1973), as a case in which redressability was
lacking because “the relief sought in Linda R.S. – a
prosecution which, if successful would automatically land the
delinquent father in jail for a fixed term with predictably
negative effects on his earning power – would scarcely
remedy the plaintiff’s lack of child support payments”
(internal citation omitted)). This case presents precisely such
a scenario.6
Allowing standing here, where granting plaintiffs’
requested relief would decrease – indeed, eliminate – an
important benefit state law grants to Nevada voters, would
undermine the purpose of Article III standing. Standing
focuses on whether a plaintiff has a “personal stake” in the
action such that she will be an effective litigant to assert the
legal challenge at issue. See Baker v. Carr, 369 U.S. 186,
6
The cases plaintiffs cite do little to support their position. Unlike here,
the plaintiff in Orr v. Orr, 440 U.S. 268 (1979), did not seek relief that
would necessarily worsen his position. Rather, he argued that he should
not be required to pay alimony to his ex-wife because similarly situated
wives would not be required to pay under state law. See id. at 271.
Stanton v. Stanton, 421 U.S. 7 (1975), is irrelevant because it did not
involve the redressability question presented here. The only standing
issue discussed was whether a mother seeking child support for the care
of her 18-year-old daughter was the proper party to challenge a child
support statute, rather than the daughter having to assert the legal
challenge herself. See id. at 11–12.
14 TOWNLEY V . MILLER
204 (1962); FDIC v. Bachman, 894 F.2d 1233, 1236 n.1 (10th
Cir. 1990). Nonparties to litigation may suffer directly from
poorly considered decisions reached in actions brought by
parties who may not have adequate incentives or motives to
effectively present a legal challenge, particularly in a case
such as this that involves important public rights. See 13A
Charles Alan Wright et al., Federal Practice and Procedure
§ 3531.1 (3d ed. 2008); see also id. § 3531 (noting that the
Article III standing requirement helps to ensure that courts
will not make “[a]n improvident decision” that “may harm
. . . individuals who are not before the court”). A plaintiff
who seeks relief that advances, rather than undermines, her
position is the party best suited to litigate her case zealously
and present the best arguments for the court’s consideration.
See Baker, 369 U.S. at 204 (explaining that “[t]he gist of the
question of standing” is whether the plaintiff has “alleged
such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional
questions”).
“Relief that does not remedy the injury suffered cannot
bootstrap a plaintiff into federal court; that is the very essence
of the redressability requirement.” Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 107 (1998). Because the relief
plaintiffs seek would worsen the position of voters who
intend to cast ballots for NOTC, rather than redress the injury
they assert, this category of plaintiffs lacks standing.
3. Competitive Standing Plaintiffs
The remaining plaintiffs – two Republican presidential
elector designees and the Nevada Republican Party – rely on
TOWNLEY V . MILLER 15
the doctrine of competitive standing. Competitive standing
is the notion that “a candidate or his political party has
standing to challenge the inclusion of an allegedly ineligible
rival on the ballot, on the theory that doing so hurts the
candidate’s or party’s own chances of prevailing in the
election.” Drake v. Obama, 664 F.3d 774, 782 (9th Cir.
2011) (quoting Hollander v. McCain, 566 F. Supp. 2d 63, 68
(D.N.H. 2008)). Plaintiffs argue that they have competitive
standing because NOTC constitutes “an unconstitutional and
illegal ballot alternative that would potentially siphon votes
from the Party’s nominees running on its ‘Republican’ ballot
line.”
Assuming without deciding that the potential loss of an
election due to the appearance of NOTC on the ballot could
fulfill standing’s injury-in-fact requirement, plaintiffs
nonetheless have not established that the other standing
requirements are met as to the competitive standing plaintiffs.
Specifically, they do not at all address the second and third
prongs of standing, apparently believing that a plaintiff who
experiences competitive injury has competitive standing. As
we made clear in Drake, however, the potential loss of an
election can be sufficient injury-in-fact to support standing,
but the causation/traceability and redressability requirements
still must be met for standing to exist. See Drake, 664 F.3d
at 783, 784 (noting that this circuit has “held that the
‘potential loss of an election’ was an injury-in-fact sufficient
to give a local candidate and Republican party officials
standing,” but concluding that the political candidates
challenging President Obama’s eligibility for presidency
“failed to establish redressability sufficient to establish
standing” (quoting Owen v. Mulligan, 640 F.2d 1130,
1132–33 (9th Cir. 1981))).
16 TOWNLEY V . MILLER
Here, plaintiffs’ failure to meet the causation and
traceability requirement is their ultimate undoing. This case
is distinguishable from the competitive standing cases
plaintiffs cite, each of which asserted a constitutional or
statutory challenge to the inclusion of a candidate on the
ballot. See Fulani v. Hogsett, 917 F.2d 1028, 1029 (7th Cir.
1990) (challenging Indiana electoral officials’ decision to
allow presidential candidates on the ballot even though those
candidates were not certified by the Indiana Secretary of State
by the statutory deadline); Schulz v. Williams, 44 F.3d 48,
52–53 (2d Cir. 1994) (concluding that an intervenor had
standing to appeal an injunction by the district court that
required the inclusion of Libertarian candidates on the ballot
even though the state Board of Elections had concluded that
the petition to include those candidates was invalid); Texas
Democratic Party v. Benkiser, 459 F.3d 582, 586 (5th Cir.
2006) (challenging an official’s decision to declare one
candidate ineligible and replace him with a viable candidate).
In each of these cases, the competitive injury was clearly
traceable to the allegedly illegal action the lawsuit
challenged.
In contrast, plaintiffs have not connected the competitive
standing plaintiffs’ injury to the conduct the complaint says
violated their rights. See Lujan, 504 U.S. at 560. Plaintiffs’
complaint does not challenge the inclusion of NOTC as a
voting option on the ballot. Rather it challenges only the
subsection prohibiting ballots cast for NOTC from being
given legal effect. Plaintiffs having conceded the legality of
the NOTC option being on the ballot – the voter option that
would have a siphoning effect – the state’s failure to give
legal effect to the ballots cast for NOTC is immaterial to
plaintiffs’ alleged competitive injury. Therefore, plaintiffs
have failed to establish that the injury alleged by the
TOWNLEY V . MILLER 17
competitive injury plaintiffs is fairly traceable to the conduct
being challenged, so they too lack standing.7
CONCLUSION
In sum, plaintiffs do not articulate a way in which any
category of plaintiffs fulfills all three standing requirements.
Instead, plaintiffs attempt to cobble together the three
standing prongs from different groups – injury from the
NOTC voter plaintiffs and competitive standing plaintiffs,
traceability from the NOTC voter plaintiffs and redressability
from the competitive standing plaintiffs.8 Manufacturing
standing in this way is impermissible.
“However desirable prompt resolution of the merits . . .
may be, it is not as important as observing the constitutional
limits set upon courts in our system of separated powers.”
Steel Co., 523 U.S. at 110. Because plaintiffs lack standing,
we vacate the preliminary injunction and remand with
instructions that the district court dismiss this action without
prejudice for lack of standing.
REVERSED AND REMANDED.
7
Because plaintiffs’ argument that the Republican Party has
associational standing to assert the interests of its future nominees is
premised on the competitive standing of those nominees, it fails for the
same reason.
8
Notwithstanding plaintiffs’ failure to address redressability, it appears
that the competitive injury plaintiffs would satisfy this prong if NOTC
were removed from the ballot.