Angle v. Miller

• Decision Date: 14 March 2012
• Docket Number: No. 10–16707.,10–16707.
• Citation: 673 F.3d 1122,2012 Daily Journal D.A.R. 3349,12 Cal. Daily Op. Serv. 2993
• Parties: Sharron E. ANGLE; Citizens in Charge; Kenneth R. Blackman; Tony Badillo; Jack Lipsman; Al Maurice; Pest Committee, Plaintiffs–Appellants, v. Ross MILLER, Secretary of State, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

12 Cal. Daily Op. Serv. 2993

2012 Daily Journal D.A.R. 3349

673 F.3d 1122

Sharron E. ANGLE; Citizens in Charge; Kenneth R. Blackman; Tony Badillo; Jack Lipsman; Al Maurice; Pest Committee, Plaintiffs–Appellants,

v.Ross MILLER, Secretary of State, Defendant–Appellee.

No. 10–16707.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 1, 2011.Filed March 14, 2012.

Prior Version Recognized as Unconstitutional

West's NRSA Const. Art. 19, § 2 Kermitt L. Waters (argued), Las Vegas, NV; Don P. Chairez (argued), for the appellants.

Catherine Cortez Masto, Attorney General; K. Kevin Benson (argued), Deputy Attorney General, Carson City, NV, for the appellee.Appeal from the United States District Court for the District of Nevada, James C. Mahan, District Judge, Presiding. D.C. No. 2:09–cv–01969–JCM–LRL.Before: RAYMOND C. FISHER and JOHNNIE B. RAWLINSON, Circuit Judges, and RICHARD MILLS, District Judge.^*

OPINION

FISHER, Circuit Judge:

Nevada permits direct legislation through ballot initiatives. To qualify an initiative for the ballot, proponents must obtain signatures from a number of registered voters equal to 10 percent of the votes cast in the previous general election in each of the state's congressional districts. The district court held that this geographic distribution requirement, which requires proponents to collect signatures from each of the state's congressional districts, violates neither the Equal Protection Clause nor the First Amendment. We affirm.

I. Background

The Nevada Constitution authorizes the citizens of Nevada to enact statutes and amend the Nevada Constitution through the initiative process. See Nev. Const. art. 19, § 2. To place an initiative on the ballot, proponents must obtain signatures from a number of registered voters equal to 10 percent of the votes cast in the previous general election. See id.

This signature requirement is also subject to a geographic distribution requirement known as the All Districts Rule.¹ Adopted in 2009, the All Districts Rule requires initiative proponents to meet the 10 percent signature threshold in each of the state's congressional districts. See Act of June 17, 2011, ch. 501, 2011 Nev. Laws, § 64(to be codified at Nev.Rev.Stat. § 295.012) (“A petition for initiative or referendum that proposes a constitutional amendment or statewide measure must be proposed by a number of registered voters from each petition district in the State that is at least equal to 10 percent of the voters who voted in that petition district at the last preceding general election.”); Act of June 13, 2011, ch. 320, 2011 Nev. Laws, § 1 (to be codified at Nev.Rev.Stat. § 293.069) (“ ‘Petition district’ means a district ... for the election of Representatives in Congress.”).

Nevada had three congressional districts at the time the state adopted the All Districts Rule and at the time the plaintiffs filed this lawsuit. The First and Third Districts were located within Clark County, which is situated in the southeast corner of the state and includes Las Vegas. The Second District included each of the state's other 16 counties, including all of northern Nevada, as well as portions of Clark County not included in the First and Third Districts. Nevada will have four congressional districts once the 2010 reapportionment and redistricting processes are completed. The state's congressional districts have equal populations, as the federal Constitution requires. See Karcher v. Daggett, 462 U.S. 725, 730, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983).

This action presents a facial challenge to the All Districts Rule. The plaintiffs are five individuals and two organizations, each of which opposes the All Districts Rule. Second Am. Compl. ¶¶ 17–26. The defendant is Ross Miller, Nevada's Secretary of State, who is sued solely in his official capacity. Id. at 1. We refer to the plaintiffs collectively as “plaintiffs” and to the defendant as “the state.”

The plaintiffs seek an order declaring the All Districts Rule unconstitutional and enjoining the state from enforcing it. As relevant here, they raise two claims. First, they contend that the All Districts Rule violates the Equal Protection Clause by allowing a minority of the state's population to veto the wishes of the majority with regard to ballot initiatives, making the votes of some citizens more influential than those of others. Second, they contend that the All Districts Rule violates the First Amendment by significantly increasing the burdens and expenses placed upon individuals seeking to quality initiatives for the ballot.

The parties filed cross motions for summary judgment and the district court rejected the plaintiffs' claims in a published opinion. See Angle v. Miller, 722 F.Supp.2d 1206 (D.Nev.2010).² The plaintiffs timely appealed. We have jurisdiction under 28 U.S.C. § 1291, we review de novo, see City of L.A. v. San Pedro Boat Works, 635 F.3d 440, 446 (9th Cir.2011), and we affirm.

II. Equal Protection

“Voting is a fundamental right subject to equal protection guarantees under the Fourteenth Amendment.” Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1076 (9th Cir.2003). A state “may decline to grant a right to legislate through ballot initiatives.” Id. at 1077 n. 7. “All procedures used by a State as an integral part of the election process,” however, “must pass muster against the charges of discrimination or of abridgment of the right to vote.” Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). Thus, when a state chooses to give its citizens the right to enact laws by initiative, “it subjects itself to the requirements of the Equal Protection Clause.” Idaho Coalition, 342 F.3d at 1077 n. 7.

Here, the plaintiffs argue that the All Districts Rule violates equal protection for three reasons: (1) that it results in vote dilution under the principle of Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); (2) that it results in vote dilution under a principle articulated in Gray v. Sanders, 372 U.S. 368, 381 & n. 12, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and Gordon v. Lance, 403 U.S. 1, 4–5, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971); and (3) that it discriminates against an identifiable class of voters. We address their arguments in turn.

A.

“[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Consistent with this principle, both the Supreme Court and this court have invalidated geographic distribution requirements that allocate equal political power to geographical units having unequal population.

In Moore, 394 U.S. at 815, 818–19, 89 S.Ct. 1493, the Supreme Court invalidated an Illinois law requiring presidential candidates seeking a place on the ballot to obtain 200 petition signatures from each of at least 50 of the state's 102 counties. The law violated the principle of one person, one vote because it gave equal political power to “sparsely settled counties and populous counties alike, contrary to the constitutional theme of equality among citizens in the exercise of their political rights.” Id. at 818–19, 89 S.Ct. 1493.

We extended Moore to ballot initiatives in Idaho Coalition, which invalidated an Idaho law requiring initiative proponents to obtain signatures from 6 percent of qualified voters in each of at least half of Idaho's 44 counties to qualify an initiative for the ballot. See 342 F.3d at 1074–75. Relying on Moore, we held that the geographic distribution requirement triggered strict scrutiny because it “allocate[d] equal power to counties of unequal population.” Id. at 1078. “[T]he few voters in a sparsely populated county have a power equal to the vastly larger number of voters who reside in a populous county.” Id. We rejected the state's argument that it had a “compelling interest in requiring a modicum of statewide support” for proposed ballot measures. Id. Furthermore, even if ensuring statewide support was a compelling interest, the requirement was not narrowly tailored because the state “could achieve the same end through a geographic distribution requirement” based on districts of equal population. Id. at 1078, 1079.

We relied on both Moore and Idaho Coalition in ACLU of Nevada v. Lomax, 471 F.3d 1010 (9th Cir.2006), where we invalidated Nevada's former geographic distribution requirement, known as the 13 Counties Rule. That rule required initiative proponents to gather signatures of 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 13 of Nevada's 17 counties. See Nev. Const. art. 19, § 2. Citing Idaho Coalition, we held that “an initiative qualification rule that requires a fixed percentage of petition signatures from a fixed percentage of counties in a state with a substantially uneven geographic distribution pattern, which favors residents of sparsely populated areas over residents of densely populated areas, violates the Equal Protection Clause.” Lomax, 471 F.3d at 1020. We applied strict scrutiny because the rule “dilute[d] the power of some votes by providing more sparsely populated counties with the same total power as densely populated counties.” Id. As in Idaho Coalition, we held that the state lacked a compelling interest in ensuring a modicum of statewide support for initiatives. See id. at 1021 & n. 13. Furthermore, even if this was a compelling interest, the 13 Counties Rule was not narrowly tailored because the state could have ensured statewide support by requiring initiative proponents to obtain signatures from districts, such as state legislative districts, having equal population. See id. at 1021.

In sum, our case law establishes that geographic distribution requirements assigning equal political power to districts of unequal population...