Roque De La Fuente v. Alex Padilla ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROQUE DE LA FUENTE, AKA No. 17-56668
Rocky,
Plaintiff-Appellant, D.C. No.
2:16-cv-03242-MWF-
v. GJS
ALEX PADILLA, California
Secretary of State; STATE OF OPINION
CALIFORNIA,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted March 12, 2019
San Francisco, California
Filed July 19, 2019
Before: J. Clifford Wallace, A. Wallace Tashima, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
2 DE LA FUENTE V. PADILLA
SUMMARY *
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought by independent presidential candidate Roque
De La Fuente challenging two California ballot access laws,
Cal. Elec. Code §§ 8400, 8403, which require independent
candidates to collect signatures from one percent of
California’s registered voters—over 170,000 signatures—to
appear on a statewide ballot.
The panel first held that De La Fuente had standing
because he suffered a concrete injury that was not merely
speculative. The panel noted that De La Fuente’s declaration
confirmed that he is running for President of the United
States in 2020.
Applying the balancing framework in Anderson v.
Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi,
504 U.S. 428 (1992), the panel held that California’s overall
scheme does not significantly impair ballot access. The
panel stated that Sections 8400 and 8403 were generally
applicable, even-handed, politically neutral, and aimed at
protecting the reliability and integrity of the election process.
The panel concluded that the ballot access laws reasonably
related to California’s important regulatory interests in
managing its democratic process and were proportionate to
California’s large voter population.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
DE LA FUENTE V. PADILLA 3
COUNSEL
Paul A. Rossi (argued), Mountville, Pennsylvania, for
Plaintiff-Appellant.
Jonathan M. Eisenberg (argued), Deputy Attorney General;
Xavier Becerra, Attorney General of California; Thomas S.
Patterson, Senior Assistant Attorney General; Stepan A.
Haytayan, Supervising Deputy Attorney General; Office of
the California Attorney General, Los Angeles, California;
for Defendants-Appellees.
OPINION
McKEOWN, Circuit Judge
We examine yet another state’s regulation of ballot
access as we consider a challenge to ballot qualification laws
in California, the country’s most populous state. See, e.g.,
Ariz. Libertarian Party v. Hobbs, 925 F.3d 1085 (9th Cir.
2019) (addressing Arizona ballot regulations). Together,
two California ballot access laws require independent
candidates to collect signatures from one percent of
California’s registered voters—over 170,000 signatures—to
appear on a statewide ballot. Independent presidential
candidate Roque De La Fuente challenges these
requirements as unconstitutional.
After losing the 2016 Democratic presidential primary in
California, De La Fuente wanted to continue his candidacy
in the general election as an independent candidate. But he
faced what he argues is a “cost prohibitive” obstacle:
sections 8400 and 8403 of California’s ballot access laws
(collectively, “Ballot Access Laws”). Cal. Elec. Code
§§ 8400, 8403. Under section 8400, independent candidates
4 DE LA FUENTE V. PADILLA
running for statewide office must collect signatures from one
percent of all registered voters. Id. § 8400 (requiring
independent candidates to collect signatures from “voters of
the state equal to not less in number than 1 percent of the
entire number of registered voters of the state at the time of
the close of registration prior to the preceding general
election”). Section 8403 requires independent candidates to
collect the signatures at least 88, but no more than 193, days
before the election. Id. § 8403(a). So, in 2016, De La Fuente
had to collect 178,039 valid signatures in 105 days to appear
on the general election ballot.
Assuming he needed paid canvassers and twice as many
signatures to ensure a comfortable margin of error, De La
Fuente estimated the cost of ballot access to be three to four
million dollars. He argues that such an expense makes
running statewide “cost prohibitive,” unconstitutionally
burdening rights guaranteed by the First and Fourteenth
Amendments. De La Fuente points out that the next highest
state signature requirement is about 60,000 fewer (in
Florida) and that no independent candidate has appeared on
California’s general election ballot since 1992. De La
Fuente self-funds his campaigns, and has officially declared
his 2020 presidential run.
California’s Secretary of State (the “Secretary”)
contends that the Ballot Access Laws are reasonably related
to California’s regulatory interests—streamlining the ballot,
avoiding ballot overcrowding, and reducing voter confusion.
Following a hearing, the district court granted the
Secretary’s motion for summary judgment and dismissed the
case.
DE LA FUENTE V. PADILLA 5
ANALYSIS
We review de novo De La Fuente’s constitutional
challenge. Nader v. Cronin, 620 F.3d 1214, 1216 (9th Cir.
2010). But first we address De La Fuente’s standing. To
have Article III standing, a party must suffer an “injury in
fact” that is both “concrete and particularized” and “actual
or imminent, not conjectural or hypothetical.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.
167, 180–81 (2000) (citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992)). The “injury in fact”
inquiry focuses on “whether the party invoking jurisdiction
had the requisite stake in the outcome,” although the injury
“need not be actualized.” Davis v. Fed. Election Comm’n,
554 U.S. 724, 734 (2008).
De La Fuente has suffered a concrete injury that is not
merely speculative. De La Fuente’s declaration confirms
that he is running for President of the United States in 2020.
Whether he will run as an independent or in a major political
party’s primary, as the Secretary argues, does not affect his
injury. Either path is all but certain to lead to De La Fuente
running as an independent in the general election. As many
well-known and not so well-known candidates know,
running in a party’s presidential primary is no guarantee of
running as that party’s general election candidate. De La
Fuente’s experience in 2016 reflects this reality. After De
La Fuente ran (and lost) in the Democratic primary election,
the only way he could appear on California’s presidential
general election ballot was to run as an independent. It is
likely that if De La Fuente runs in the 2020 Democratic
primary, history will repeat itself. Whichever path De La
Fuente chooses, he will suffer an “injury in fact.” He
therefore has standing. Cf. Ariz. Green Party v. Reagan, 838
F.3d 983, 987–88 (9th Cir. 2016).
6 DE LA FUENTE V. PADILLA
We therefore proceed to the merits of De La Fuente’s
challenge. To trigger strict scrutiny of the Ballot Access
Laws, De La Fuente must first show that they “seriously
restrict the availability of political opportunity.” Ariz. Green
Party, 838 F.3d at 989 (citing Libertarian Party of Wash. v.
Munro, 31 F.3d 759, 762 (9th Cir. 1994)). This is because
the “evidence that the burden is severe, de minimis, or
something in between, sets the stage for the analysis by
determining how compelling the state’s interest must be to
justify the law in question.” Id. at 985.
We evaluate challenges to ballot access laws under the
First and Fourteenth Amendments using the balancing
framework in Anderson v. Celebrezze, 460 U.S. 780 (1983),
and Burdick v. Takushi, 504 U.S. 428 (1992). See Ariz.
Libertarian Party, 925 F.3d at 1090. The balancing
framework is a “‘sliding scale’—the more severe the burden
imposed, the more exacting our scrutiny; the less severe, the
more relaxed our scrutiny.” Id. (citing Ariz. Green Party,
838 F.3d at 988). Under this “flexible standard,”
[a] court considering a challenge to a state
election law must weigh the character and
magnitude of the asserted injury to the rights
protected by the First and Fourteenth
Amendments that the plaintiff seeks to
vindicate against the precise interests put
forward by the State as justifications for the
burden imposed by its rule, taking into
consideration the extent to which those
interests make it necessary to burden the
plaintiff’s rights.
Id. (internal citations and quotation marks omitted). In short,
a state must narrowly tailor its law to advance “compelling”
interests if the burden on First Amendment rights is severe,
DE LA FUENTE V. PADILLA 7
Norman v. Reed, 502 U.S. 279, 289 (1992), but, if the burden
is minimal, the law only needs to reasonably advance
“important” interests, Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358 (1997).
Although De La Fuente argues that his individual burden
is severe because he might not appear on the ballot,
California’s overall scheme does not significantly impair
ballot access. See Ariz. Libertarian Party v. Reagan, 798
F.3d 723, 730 (9th Cir. 2015) (“[Courts] must examine the
entire scheme regulating ballot access.” (quoting Cronin,
620 F.3d at 1217)). Non-major party candidates can access
California’s ballot in three ways: as minor party candidates,
write-in candidates, or independent candidates. Although
the last independent candidate appeared on California’s
general election ballot in 1992, minor party candidates have
consistently appeared alongside major party candidates. De
La Fuente’s own expert suggested that “there’s almost
nobody left [for independent candidates] to petition”
because voters have their choice among major and minor
party candidates. Not only do these choices reduce a voter’s
need for independent candidates, they cut against De La
Fuente’s assertion that the Ballot Access Laws “seriously
restrict the availability of political opportunity.” Nader, 620
F.3d at 1217–18 (quoting Munro, 31 F.3d at 761–62). The
inclusion of minor party candidates also distinguishes this
case from others where courts have applied strict scrutiny.
See, e.g., Green Party of Georgia v. Kemp, 171 F. Supp. 3d
1340, 1363 (N.D. Ga. 2016) (applying strict scrutiny when
“the restrictions at issue in this case serve to prevent minor
parties from engaging in the fundamental political activity of
placing their candidate on the general election ballot”); cf.
Williams v. Rhodes, 393 U.S. 23, 31 (1968) (“[T]he right to
vote is heavily burdened if that vote may be cast only for one
8 DE LA FUENTE V. PADILLA
of two parties at a time when other parties are clamoring for
a place on the ballot.”).
A plain reading of both the statutes and the record
supports the conclusion that sections 8400 and 8403 are
“‘not severe’ restrictions.” Dudum v. Arntz, 640 F.3d 1098,
1106 (9th Cir. 2011) (quoting Rubin v. City of Santa
Monica, 308 F.3d 1008, 1014 (9th Cir. 2002)). Sections
8400 and 8403 are “generally applicable, even-handed,
politically neutral,” and aimed at protecting the reliability
and integrity of the election process. Id.; see Cal. Elec. Code
§§ 8400, 8403. Because the Ballot Access Laws do not
severely burden any constitutional rights, we analyze these
laws under a less exacting standard. See Dudum, 640 F.3d
at 1106 (“Where non-severe, lesser burdens on voting are at
stake, we apply less exacting review, and a State’s important
regulatory interests will usually be enough to justify
reasonable, nondiscriminatory restrictions.” (internal
alterations and quotations marks omitted)).
The Supreme Court has long recognized the “important
state interest in requiring some preliminary showing of a
significant modicum of support” and “in avoiding confusion,
deception, and even frustration of the democratic process at
the general election.” Jenness v. Fortson, 403 U.S. 431, 442
(1971). California’s ballot regulations seek to protect its
“important regulatory interests,” Burdick, 504 U.S. at 434,
in streamlining the ballot, avoiding ballot overcrowding, and
reducing voter confusion. California is not required “to
make a particularized showing of the existence of voter
confusion, ballot overcrowding, or the presence of frivolous
candidacies prior to the imposition of reasonable restrictions
on ballot access.” Munro v. Socialist Workers Party, 479
U.S. 189, 194–95 (1986)).
DE LA FUENTE V. PADILLA 9
The right to access the ballot is important to voters,
candidates, and political parties alike, but it must be
balanced against California’s need to manage its democratic
process. See Burdick, 504 U.S. at 441. Although the number
of signatures the Ballot Access Laws require may appear
high, it accounts for only one percent of California’s voter
pool, the largest in the country. This low percentage
threshold prevents candidates without established support
from appearing on the ballot—satisfying California’s
interests—without “seriously restrict[ing] the availability of
political opportunity.” Ariz. Green Party, 838 F.3d at 989
(quoting Munro, 31 F.3d at 762). These laws are also
consistent with other ballot access schemes deemed
constitutional. See, e.g., Storer v. Brown, 415 U.S 724, 740
(1974) (“Standing alone, gathering 325,000 signatures in 24
days would not appear to be an impossible burden [and] . . .
would not appear to require an impractical undertaking for
one who desires to be a candidate for President.”); Jenness,
403 U.S. at 442 (upholding law requiring independent
candidates to gather signatures equivalent to five percent of
the number of registered voters in the previous presidential
election); Nader, 620 F.3d at 1217 (concluding the burden
of collecting signatures equivalent to one percent of the
state’s voters in the previous presidential election was low).
The Ballot Access Laws reasonably relate to California’s
important regulatory interests in managing its democratic
process and are proportionate to California’s large voter
population. See Burdick, 504 U.S. at 441. California has no
constitutional obligation “to ‘handicap’ an unpopular
candidate to increase the likelihood that the candidate will
gain access to the general election ballot.” See Munro, 479
10 DE LA FUENTE V. PADILLA
U.S. at 198. We affirm the district court’s dismissal of the
case.
AFFIRMED.