American Civil Liberties Union v. Lomax

Citation471 F.3d 1010
Decision Date08 December 2006
Docket NumberNo. 04-17033.,04-17033.
CourtU.S. Court of Appeals — Ninth Circuit
PartiesAMERICAN CIVIL LIBERTIES UNION OF NEVADA; Sharon Brune; Carrie Renee Chamberlain; Katherine Chamberlain; Committee to Regulate and Control Marijuana; Danielle Halderman; Jennifer Knight; Marijuana Policy Project; Guitana Lee Matracia; Daniel Wisnosky, Plaintiffs-Appellees, v. Larry LOMAX, Defendant, and Dean Heller, Defendant-Appellant.

Brian Sandoval, Attorney General, and Victoria Thimmesch Oldenburg, Senior Deputy Attorney General, Carson City, NV, for the defendant-appellant.

Allen Lichtenstein, ACLU of Nevada, Las Vegas, NV, for the plaintiffs-appellees.

Matthew D. Brinckerhoff and Sarah Netburn, Emery Celli Brinckerhoff & Abady, LLP, New York, NY, for the plaintiffs-appellees.

Appeal from the United States District Court for the District of Nevada; James C. Mahan, District Judge, Presiding. D.C. No. CV-04-01035-JCM/LRL.

Before: HUG, KLEINFELD, and PAEZ, Circuit Judges.

PAEZ, Circuit Judge:

The citizens of Nevada reserved to themselves the power to legislate by initiative. NEV. Const. art. 19, § 2(1). By way of the state's petition process, Nevada citizens may place qualified initiatives, which propose to create or amend statutes, or amend the constitution, on a statewide general election ballot. Id. If a constitutional initiative obtains voter approval in two consecutive general elections, the initiative is adopted, and the Nevada Constitution is amended. NEV. CONST. art. 19, § 2(4).

In anticipation of the 2004 General Election, Plaintiffs1 (collectively "the Committee") circulated a petition to place the Regulation of Marijuana Initiative ("the initiative"), a constitutional initiative, on the ballot. After the Committee submitted the petition to Defendant Dean Heller, Nevada's Secretary of State ("the Secretary"), the Secretary determined that the initiative did not qualify for the ballot because the petition failed to garner the requisite number of valid signatures. Thousands of signatures were disqualified because they did not satisfy two non-signature requirements, as contained in the Dual Affidavit and Deemed Registered Rules. As a result of these disqualifications, the Secretary determined that the initiative petition failed to comply with two signature rules—the Statewide Rule, which requires that at least 10% of Nevada's eligible voters sign the petition, and the 13 Counties Rule, which requires that the initiative proponents obtain signatures from at least 10% of the eligible voters in at least 13 of the 17 Nevada counties.

The Committee challenged the 13 Counties, Dual Affidavit, and Deemed Registered Rules in district court, and moved for a preliminary injunction against the enforcement of these requirements. The Committee alleged that the 13 Counties Rule violated the Equal Protection Clause of the Fourteenth Amendment because it treats more favorably the votes of residents of sparsely populated counties than the votes of residents of densely populated counties, thereby diluting the votes of the latter. The court granted permanent injunctive relief with respect to the 13 Counties and Dual Affidavit Rules, only the former of which is before this court on appeal. The Secretary argues that the district court erred in enjoining enforcement of the 13 Counties Rule because the court did not undertake the requisite strict scrutiny review, the rule survives this exacting review, and the case on which the district court primarily relied does not control the present case.

The 2004 General Election has long passed, and the Committee's initiative did not appear on the ballot. Although the parties do not challenge the justiciability of this case, we initially consider two justiciability issues: standing and mootness. First, we hold that the Committee had standing to bring its constitutional challenges in federal court. Although the initiative failed to meet the Statewide Rule, which the Committee did not challenge, it would have done so had the Committee prevailed on its three challenges. The Committee's injury was therefore redressable when the Committee filed suit. Second, we hold that this case fits within the "capable of repetition, yet evading review" exception to the mootness doctrine. As in the other election cases we have decided, the challenged action here is too short in duration to enable full litigation on the merits, and there is a reasonable expectation that the Committee will again be subject to the challenged 13 Counties Rule.

Finally, we examine the merits of the Secretary's appeal, i.e. whether the 13 Counties Rule passes muster under strict scrutiny review. We agree with the district court that the 13 Counties Rule is unconstitutional. The 13 Counties Rule violates the equal protection tenet of "one person, one vote," and is not narrowly tailored. The rule is indistinguishable from a similar rule that this court struck down in Idaho Coalition United for Bears v. Cenarrussa, 342 F.3d 1073 (9th Cir. 2003). Accordingly, we affirm the district court's grant of a permanent injunction.

I. Background

During the petition cycle for Nevada's 2004 General Election, the Committee sought to place the Regulation of Marijuana Initiative on the ballot. The initiative sought to amend the Nevada Constitution to direct the state legislature to regulate the manufacture, taxation, and sale of marijuana. On February 18, 2004, the Committee filed a copy of the initiative petition with the Secretary. After it gathered 66,135 signatures in favor of the initiative, the Committee submitted the circulated petition to the various county clerks on June 14, 2004. On July 13, 2004, the Secretary announced that the initiative failed to qualify for the ballot. The Secretary concluded that the initiative did not satisfy the Statewide and 13 Counties Rules.

The 13 Counties Rule requires that "[a]n initiative petition ... shall be proposed by a number of registered voters equal to 10 percent or more of the number of voters who voted at the last preceding general election in not less than 75 percent of the counties [or 13 of the 17 counties] in the state." NEV. CONST. art. 19, § 2(2). Because the 13 Counties Rule is not based on county population, but rather on a fixed percentage of signatures from a fixed percentage of counties, it dilutes the vote of residents of densely populated counties, such as Washoe County, which includes Reno, and Clark County, which includes Las Vegas.2 In addition to this signature requirement, under Nevada's Statewide Rule, "the total number of registered voters signing the initiative petition shall be equal to 10 percent or more of the voters who voted in the entire state at the last preceding general election." NEV. CONST. art. 19, § 2(2). In the 2002 General Election, 513,370 people voted. Therefore, to satisfy the Statewide Rule, an initiative petition for the 2004 General Election must have contained at least 51,337 valid signatures. Because the Committee's initiative met the 10% threshold in only 12 counties, and only 34,947 of the 66,135 statewide signatures were validated, as alleged in the complaint, the Secretary concluded that it did not qualify for the ballot.

In making this determination, the Secretary, and the Clark County Election Department, invalidated thousands of signatures based on the Dual Affidavit and Deemed Registered Rules. The Dual Affidavit Rule requires that an initiative petition contain an affidavit from one of the signers averring that "all of the signatures are genuine and that each individual who signed such document was at the time of signing a registered voter in the county of his or her residence." N EV. CONST. art. 19, § 3(1). The Secretary invalidated 19,830 signatures from Clark and Washoe Counties because they did not comply with this rule. On the basis of these two counties' signature verification rates, 15,120 of these disqualified signatures would have been verified had the Dual Affidavit Rule not been enforced.

The Deemed Registered Rule establishes that a citizen is "deemed to be registered" to vote, a prerequisite to signing an initiative petition, when he or she submits a voter registration form to the county clerk. NEV. REV. STAT. § 293.5235. In a random 5% sample of the signatures gathered, the Clark County Election Department disqualified 102 signatures based on this rule.

On July 27, 2004, the Committee filed suit against the Secretary and the Clark County Registrar in district court pursuant to 42 U.S.C. § 1983, alleging that the 13 Counties, Dual Affidavit, and Deemed Registered Rules violated the First and Fourteenth Amendments. The Committee claimed that the 13 Counties Rule deprived residents of densely populated counties equal protection under the law; and curtailed their right to free speech and association, and their right to petition the government for redress of grievances.3 On that same day, the Committee also filed a motion for a temporary restraining order and preliminary injunction, asking the court to enjoin the Secretary from applying the 13 Counties and Dual Affidavit Rules, and to enjoin the Clark County Registrar from applying the Deemed Registered Rule to the signatures on the initiative petition. On August 2, the district court granted the motion for a temporary restraining order, and scheduled a hearing on the motion for a preliminary injunction for August 13, 2004.

At the hearing, the district court informed the parties that, like the rule that the Ninth Circuit invalidated in Idaho Coalition, the 13 Counties Rule violated the constitutional tenet of "one person, one vote" due to its unequal impact on voters from the various counties. The court posited that instead of requiring signatures from 10% of the voters in 75% of the counties, Nevada could require those same percentages in legislative districts, presumably state legislative...

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