Idaho Coalition United for Bears v. Cenarrussa

• Decision Date: 08 September 2003
• Docket Number: No. 02-35030.,02-35030.
• Citation: 342 F.3d 1073
• Parties: Idaho Coalition United for Bears, a political committee; Lynn Fritchman, an individual; Don Morgan, an individual; Ronald D. Rankin, an individual; Initiative and Referendum Institute, a not-for-profit corporation, Plaintiffs-Appellees, v. Pete T. Cenarrussa, in his official capacity as Secretary of State for the State of Idaho, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

342 F.3d 1073

Idaho Coalition United for Bears, a political committee; Lynn Fritchman, an individual; Don Morgan, an individual; Ronald D. Rankin, an individual; Initiative and Referendum Institute, a not-for-profit corporation, Plaintiffs-Appellees, v. Pete T. Cenarrussa, in his official capacity as Secretary of State for the State of Idaho, Defendant-Appellant.

No. 02-35030.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2003 — Seattle, Washington.

Filed September 8, 2003.

Brian P. Kane, Deputy Attorney General, and Alan G. Lance, Attorney General, Boise, ID, for the defendant-appellant.

Paul Grant, Englewood, CO, for the plaintiff-appellees.

Christopher Troupis, Troupis and Summer, Merididan, ID, for the plaintiff-appellees.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-00-00668-BLW.

Before: Stephen Reinhardt, William A. Fletcher, and Ronald M. Gould, Circuit Judges.

OPINION

REINHARDT, Circuit Judge.

Idaho permits direct legislation through ballot initiatives. In order to appear on the ballot, an initiative must meet several conditions; one is that signatures in support of the initiative must be collected from six percent of the qualified voters in each of at least half of the state's counties. Because Idaho's counties vary widely in population, this geographic distribution requirement favors residents of sparsely populated areas over residents of more densely populated areas in their respective efforts to participate in the process of qualifying initiatives for the ballot. The district court held that this unequal treatment violates the Equal Protection Clause of the Fourteenth Amendment. We affirm.

Background

The Idaho Constitution allows citizens to make laws directly through initiatives placed on election ballots.¹ The Idaho Legislature has enacted enabling legislation that defines Idaho's procedures for conducting initiative and referendum elections.²

Plaintiff Idaho Coalition United for Bears is an organization that seeks to advance its supporters' goals through the initiative process. Plaintiffs also include the Initiative and Referendum Institute, a group that seeks to further the rights of citizens to participate in the initiative process, and three individuals who have organized petition drives in attempts to place initiatives on the ballot in past years. We refer to the plaintiffs collectively as "the Coalition." The Coalition sued Idaho Secretary of State Pete T. Cenarrusa ("Idaho"), challenging Idaho Code section 34-1805, which requires petition sponsors to obtain signatures of six percent of the qualified voters in the state as a whole, including six percent of the qualified voters in each of at least half of Idaho's 44 counties.³ Idaho Coalition United for Bears v. Cenarrusa, 234 F.Supp.2d 1159, 1160 (D.Idaho 2001).

Idaho's population is unevenly distributed throughout its counties: 60% of its population resides in just nine of its 44 counties.⁴ For this reason, prior to the enactment of the challenged provision, initiative sponsors generally collected the vast majority of their signatures in the most heavily populated counties. Idaho's multi-county signature requirement was designed to ensure a wider distribution of signatures. The Coalition argues, however, that the new requirement makes it nearly impossible for all but the richest of initiative proponents to qualify initiatives for the ballot and that it favors voters in sparsely populated areas over those in more densely populated areas.

As the district court noted, even if three quarters of Idaho's citizens signed a petition, the measure could still fail to qualify for the ballot because the proponents failed to collect signatures from six percent of the registered voters in at least 22 separate counties. The court granted summary judgment in favor of the Coalition, holding that section 34-1805 violates the Equal Protection Clause by giving preferential treatment to residents of sparsely populated counties. Idaho appeals.⁵

Analysis

Voting is a fundamental right subject to equal protection guarantees under the Fourteenth Amendment. See Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) ("Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society."). The ballot initiative, like the election of public officials, is a "`basic instrument of democratic government,'" Cuyahoga Falls v. Buckeye Comm. Hope Found., ___ U.S. ___, 123 S.Ct. 1389, 1395, 155 L.Ed.2d 349 (2003) (quoting Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 679, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976)), and is therefore subject to equal protection guarantees. Those guarantees furthermore apply to ballot access restrictions just as they do to elections themselves. See Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979).⁶

The question of the constitutionality of Idaho's requirement that in order to qualify an initiative petitions must be signed by a fixed percentage of voters from each of 22 of the state's 44 counties—counties which vary drastically in the size of their population—is controlled by Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). The Moore Court addressed an Illinois statute governing the nomination of newly formed political parties' candidates to be electors of President and Vice President of the United States. Moore, 394 U.S. at 818, 89 S.Ct. 1493. The statute provided for a nominating process requiring each candidate to collect at least 25,000 signatures, including "`signatures of 200 qualified voters from each of at least 50'" of the state's 102 counties. Id. at 815, 89 S.Ct. 1493(quoting Ill.Rev.Stat., chap. 46 § 10-3 (1967)). The asserted purpose of the law was "to require statewide support for launching a new political party rather than support from a few localities." Id. at 818, 89 S.Ct. 1493.

The constitutional flaw in the Illinois geographic distribution requirement was that, although the counties were of widely unequal population, the same "rigid, arbitrary formula" was applied to all of them. Id. The Moore Court held that the distribution requirement violated the one person, one vote principle of Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and Reynolds, a principle at the core of the fundamental right to vote. Moore, 394 U.S. at 819, 89 S.Ct. 1493("The idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government."). In Sanders, the Court invalidated Georgia's "county unit" system for nominating party candidates for United States Senator in primary elections. See 372 U.S. at 371, 83 S.Ct. 801. Under that system, each county was entitled to a certain number of "county unit" votes, all of which would be cast for the candidate for nomination who received the greatest number of popular votes in that county. Id. The candidate who received the greatest total number of county unit votes would become the nominee. Id. The system violated the one person, one vote principle because the populations of the various counties were not in proportion to the number of county unit votes to which the counties were entitled. Id. In Reynolds, the Court invalidated an Alabama legislative apportionment scheme, under which counties of unequal population were represented in equal numbers in the state legislature. Reynolds, 377 U.S. at 540, 84 S.Ct. 1362. In both cases, the votes cast by voters residing in the counties with larger population had less effect than the votes of those who lived in more sparsely populated rural areas.

Moore extended the principle of Sanders and Reynolds, which involved voting, to the collection of signatures on nominating petitions. Although Moore does not specifically discuss the applicable level of scrutiny, it is evident that under Moore strict scrutiny applies to state laws treating nomination signatures unequally on the basis of geography.

The district court perceived no material difference between the Illinois petition requirement invalidated in Moore and the requirement at issue in the present case, and we agree that there is none. Even the suggested purpose of the two requirements—to ensure that all options presented on the ballot command at least a modicum of statewide support—is the same. Idaho argues that the distinction between requiring sufficient voter support of candidates (as did the Illinois provision) and requiring such support for voter initiatives (as does the Idaho statute) is legally dispositive. Idaho believes that this difference is decisive because, the state asserts, the sort of candidate signature requirements at issue in Moore "may or may not directly impact the entire state but the direct legislation directly involves the entire state of Idaho." The state interest in "protecting the entire state from localized legislation," Idaho argues, is therefore greater than the state interest furthered by the law invalidated in Moore. As noted above, however, the plaintiffs in Moore were candidates for the offices of electors of President and Vice President of the United States from the state of Illinois. Moore, 394 U.S. at 815, 89 S.Ct. 1493. In our view, the question whether a new political party may place its presidential electors on the statewide presidential ballot represents at least as significant a matter of statewide concern as whether ballot initiatives may qualify. Idaho does not explain how it reaches the opposite conclusion. We therefore reject its proffered distinction as immaterial.⁷ Nominating petitions for candidates and for initiatives both implicate the fundamental right to vote, for the same reasons and in the same manner, and the burdens on both are subject to the same analysis under the Equal Protection Clause.

A more plausible...