Mecinas v. Hobbs

Citation30 F.4th 890
Decision Date08 April 2022
Docket Number20-16301
Parties Brian MECINAS; Carolyn Vasko; DNC Services Corporation, dba Democratic National Committee; DSCC ; Priorities USA; Patti Serrano, Plaintiffs-Appellants, v. Katie HOBBS, the Arizona Secretary of State, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Abha Khanna (argued), Elias Law Group LLP, Seattle, Washington; Marc Elias, Elisabeth C. Frost, and John M. Geise, Elias Law Group LLP, Washington, D.C.; for Plaintiffs-Appellants.

Kristen Michelle Yost (argued), Coppersmith Brockelman LLP, Phoenix, Arizona; Kara M. Karlson, Assistant Attorney General; Linley Wilson, Deputy Solicitor General; Office of the Attorney General, Phoenix, Arizona; for Defendant-Appellee.

Before: Johnnie B. Rawlinson and Paul J. Watford, Circuit Judges, and Jed S. Rakoff,* District Judge.

RAKOFF, District Judge:

In Arizona the state's Ballot Order Statute, A.R.S. § 16-502, requires that, in each county, candidates affiliated with the political party of the person who received the most votes in that county in the last gubernatorial race be listed first on the general election ballot. In 2019, three Arizona voters, Brian Mecinas, Carolyn Vasko, and Patti Serrano, and three organizations, the Democratic National Committee (the "DNC"), the Democratic Senatorial Campaign Committee (the "DSCC"), and Priorities USA ("Priorities"), a political action committee (collectively, the "Plaintiffs"), brought this action against Katie Hobbs, in her official capacity as the Arizona Secretary of State (the "Secretary"), claiming that the Ballot Order Statute violates the First and Fourteenth Amendments because it gives candidates the benefit of appearing first on the ballot, not on the basis of some politically neutral ordering (such as alphabetically or by lot), but on the basis of political affiliation. Specifically, Plaintiffs allege that, for most of the elections that have occurred in Arizona since the Ballot Order Statute was enacted, the Republican Party's candidates have appeared in the top position in the great majority of Arizona's general election ballots solely as a result of their political affiliation.

Without addressing the merits of Plaintiffs’ argument, the district court dismissed their complaint at the pleading stage based on jurisdictional challenges raised by the Secretary, viz. , that Plaintiffs lack standing and that the complaint presents a nonjusticiable political question. Plaintiffs now appeal, arguing that the district court erred in dismissing their suit on these grounds. We agree. Specifically, we hold that at least one of the plaintiffs—the DNC—has standing to bring this suit and that Plaintiffs’ claims do not present a nonjusticiable political question. We also reject the Secretary's argument that the district court's dismissal can be affirmed on the alternative ground that she is not the proper defendant under Article III or the Eleventh Amendment. Finally, we hold that Plaintiffs have stated a claim sufficient to survive a motion to dismiss. We therefore reverse the dismissal of the complaint and remand for further proceedings.

BACKGROUND

In 1979, the Arizona legislature enacted A.R.S. § 16-502, the Ballot Order Statute. The Ballot Order Statute establishes the order in which candidates appear on the ballot in general elections in each of Arizona's fifteen counties. The statute mandates a tiered system of organizing the names on the ballot. First, names of candidates are listed according to their political party, "in descending order according to the votes cast for governor for that county in the most recent general election for the office of governor." Id. § 16-502(E). Next, candidates affiliated with political parties that did not have candidates on the ballot in the last general election are "listed in alphabetical order below the parties that did have candidates on the ballot in the last general election." Id. Third are the names of candidates who were nominated but are not registered with a recognized political party. Id. A space for write-in candidates is listed last. Id . § 16-502(G).

Under this statutory organization scheme, the candidates of the political party that received the most votes in the most recent gubernatorial election in that county appear first in all races and on all ballots in that county. According to Plaintiffs’ complaint, the result of these rules has been that in all but a handful of general elections since the statute was enacted the vast majority of Arizona's voting population received a ballot with the Republican Party's candidates in the top position. The complaint further alleges that a candidate whose name appears first on a ballot in a contested race receives an unfair electoral advantage based on political affiliation—specifically, the benefit resulting from a recognized psychological phenomenon known as "position bias" or the "primacy effect."

Plaintiffs filed this action on November 1, 2019. Shortly thereafter, Plaintiffs amended their complaint and moved for a preliminary injunction in advance of the November 2020 election in Arizona. The Secretary opposed the preliminary injunction motion and filed a separate motion to dismiss.

In March 2020, the district court held a two-day evidentiary hearing on Plaintiffspreliminary injunction motion—at which Plaintiffs’ two experts, Dr. Jonathan Rodden and Dr. Jon Krosnick, and the Secretary's expert, Mr. Sean Trende, testified regarding the statistical modeling of the "primacy effect"—and heard oral argument on both the motion for preliminary injunction and the motion to dismiss. While both motions were still pending, the district court, on June 2, 2020, ordered the parties to submit a joint letter as to whether they would agree to deem the preliminary injunction hearing to also constitute a trial on the merits. Shortly thereafter, on June 8, 2020, the parties submitted a responsive letter stating that they would not so agree.

On June 25, 2020, the district court granted the motion to dismiss with prejudice, holding that Plaintiffs lack standing and, independently, that their claims present nonjusticiable political questions. The court did not reach the merits of Plaintiffs’ claims.

Plaintiffs timely noticed an appeal and moved for an injunction pending appeal, which the district court denied. With the 2020 election approaching, Plaintiffs moved this Court for an emergency injunction pending appeal. That motion was denied by the motions Panel in a brief order. Briefing and oral argument on Plaintiffs’ appeal followed.

STANDARD OF REVIEW

"We review de novo dismissal for lack of subject matter jurisdiction and may affirm on any basis supported by the record." Zuress v. Donley , 606 F.3d 1249, 1252 (9th Cir. 2010).1 When "deciding standing at the pleading stage, and for purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Desert Citizens Against Pollution v. Bisson , 231 F.3d 1172, 1178 (9th Cir. 2000).

It is true that there is an exception to this general rule where the defendant brings a motion under Rule 12(b)(1) challenging subject matter jurisdiction as a factual—rather than facial—matter. See White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000). "Once the moving party has converted the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch. , 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). At that point, the court may resolve any factual disputes concerning the existence of jurisdiction. See Augustine v. United States , 704 F.2d 1074, 1077 (9th Cir. 1983). "However, where the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits, the jurisdictional determination should await a determination of the relevant facts on either a motion going to the merits or at trial." Id.

Here, the Secretary's motion was based solely on the allegations in Plaintiffs’ amended complaint. It thus did not convert the motion to dismiss into a factual motion. And while the district court held an evidentiary hearing on the Plaintiff's preliminary injunction, there is nothing in the record to indicate that the court, sua sponte , converted it into a hearing on standing. As such, we properly consider this motion based solely on the allegations in the complaint.2

DISCUSSION
A. Standing

Article III of the U.S. Constitution limits federal court jurisdiction to "Cases" and "Controversies." U.S. Const. art. III, § 2, cl. 1. As the Supreme Court has explained, "the ‘case or controversy’ requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded." Allen v. Wright , 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). "[S]everal doctrines [ ] have grown up to elaborate that requirement," including "mootness, ripeness, political question, and the like," but "standing ... is perhaps the most important of these doctrines." Id.

To have standing, plaintiffs must establish (1) that they have suffered an injury in fact, (2) that their injury is fairly traceable to a defendant's conduct, and (3) that their injury would likely be redressed by a favorable decision. See Lujan v. Defs. of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Each of these elements must be supported "with the manner and degree of evidence required at the successive stages of the litigation."

Id. at 561, 112 S.Ct. 2130. At the pleading stage, "general factual allegations of injury...

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