ROGER T. BENITEZ, District Judge.
This case presents two questions of first impression. It asks whether the First Amendment grants a corporation or association the right to serve as the official proponent of a local ballot initiative. It also asks whether official proponents enjoy a First Amendment right to anonymity during the period when signatures are being gathered. Having considered the arguments and the evidence presented, this Court answers "no" to both questions. The plaintiffs also ask that certain statutory requirements governing ballot initiatives be declared void for vagueness. The Court finds those sections are sufficiently clear to pass constitutional muster.
The Plaintiffs are the Chula Vista Citizens for Jobs and Fair Competition (an unincorporated association), the Associated Builders & Contractors, Inc. (a corporation), Lori Kneebone and Larry Breitfelder (residents and registered voters of Chula Vista, California). The Defendants are Chula Vista city officials sued in their official capacities. The State of California has intervened to defend the constitutionality of California's elections laws.
Chula Vista Citizens and Associated Builders & Contractors, Inc., attempted to propose an initiative to be placed on the ballot in the City of Chula Vista, but it was rejected by the City Clerk. Then Kneebone and Breitfelder proposed an initiative and it was accepted and enough signatures collected to place the initiative on the ballot. The ballot measure, known as "Proposition G," passed on June 8, 2010 by a margin of 55.75% to 44.25%.
Plaintiffs filed their Complaint challenging state and municipal election laws as violating the First Amendment: (a) by preventing corporations and associations from serving as official proponents of Proposition G; and (b) by requiring the official proponents of Proposition G to disclose their names during the time of circulating Proposition G for signature gathering. Plaintiffs also challenge as too vague various terms in the statutes governing ballot initiatives.
Plaintiffs and Defendants have filed cross-motions for summary judgment on all counts of the Complaint.
The California Constitution provides that its citizenry may propose laws for popular consideration. Likewise, the City of Chula Vista Charter also permits its citizenry to propose ordinances for the ballot. To begin the process, both Chula Vista and California require a ballot initiative be officially and formally proposed by an "elector." See City of Chula Vista Charter § 903; Cal. Elec.Code § 342. Section 903 of the City Charter states in part,
(emphasis added). Chula Vista's Charter incorporates the California Elections Code. Under California Elections Code § 9202(a), to start the process a "proponent"
(emphasis added). California Elections Code § 321 defines an "elector" to be a natural person and a resident,
An "elector" may be a voter once he or she registers to vote. See Cal. Elec.Code § 359. Consequently, only a natural person may be an official initiative proponent because the privilege is restricted to "electors."
Plaintiffs do not disagree, but argue that the natural person requirement offends the First Amendment to the United States Constitution. Consequently, Plaintiffs ask this Court to declare California Elections Code §§ 342 and 9202 unconstitutional
Assuming that Plaintiffs have Article III standing,
Plaintiffs contend that the elector requirement impermissibly prohibits associational speakers from speaking. The argument begins with the well-accepted position that advocating for an initiative petition is core political speech. It continues with the also well-accepted idea that the circulation of a ballot initiative involves core political speech. See Meyer v. Grant, 486 U.S. 414, 421-22, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). Plaintiffs then attempt to stretch the idea of advocation and circulation to include the mechanics of initiation. They argue that the act of proposing an initiative is also core political speech and that corporations and associations are
"The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California." Perry v. Schwarzenegger, 628 F.3d 1191, 1197 (9th Cir.2011). Under California's constitutional form of government, "All political power is inherent in the people." Cal. Const. art. II, § 1; Schwarzenegger, 628 F.3d at 1196. While the state legislature passes most laws, the people of California have retained for themselves the power to pass laws and amend their Constitution. Cal. Const. art. IV, § 1; Schwarzenegger, 628 F.3d at 1196 ("the sovereign people's initiative power is considered to be a fundamental right."). The state constitution makes clear that this initiative power belongs to people. Neither corporations nor unincorporated associations are mentioned. Cf. Citizens United, 130 S.Ct. at 972 (Stevens, J., concurring and dissenting in part) ("Corporations ... are not themselves members of `We the People' by whom and for whom our Constitution was established."). "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt them or reject them." Cal. Const. art. II, § 8 (emphasis added); Schwarzenegger, 628 F.3d at 1196. The Supreme Court of California describes the initiative power held by California citizens:
Assoc. Home Builders etc., Inc. v. City of Livermore, 18 Cal.3d 582, 591-92, 135 Cal.Rptr. 41, 557 P.2d 473 (1976) (citations omitted); see also Costa v. Superior Court, 37 Cal.4th 986, 1008-09, 39 Cal.Rptr.3d 470, 128 P.3d 675 (2006) (describing the initiative power of California electors). Just last year, the California Supreme Court described the state's initiative power as a power distinctly reserved to "people" or "electors:"
Perry v. Brown, 52 Cal.4th 1116, 134 Cal.Rptr.3d 499, 265 P.3d 1002 (2011) (emphasis in original) (citations omitted). That is not to say that corporations and associations may not promote, discuss, debate, underwrite, or advocate for or against a ballot measure. But the position of official initiative proponent is a special role springing from and confined by state law. As Perry points out, "[u]nder these and related statutory provisions, the official proponents of an initiative measure are recognized as having a distinct role — involving both authority and responsibilities that differ from other supporters of the measure...." Id. (emphasis added).
For example, one would rightly expect the Governor and Attorney General to defend a California law passed by popular initiative vote. But if for some unforeseen reason no public defense is mounted, it is only the official proponents who have standing to defend the initiative in court. Perry v. Brown, 671 F.3d 1052, 1064-65, 1072 (9th Cir.2012) ("we do know that California law confers on `initiative sponsors' the authority `to defend, in lieu of public officials, the constitutionality of initiatives made law of the State'") (quoting Perry v. Brown, 52 Cal.4th 1116, 134 Cal.Rptr.3d 499, 265 P.3d 1002).
Like the State, the people of Chula Vista in adopting a governing charter, reserved to themselves, as electors, the power of the city ballot initiative. In view of the self-governance model adopted by the citizens of Chula Vista and of California, the elector requirement makes good public policy sense, since the act of proposing a ballot initiative is the first step in an act of law-making. The State argues, and Perry recognizes, that there are several legislation-related examples where the actors must be electors and thus natural persons. For example, only electors are allowed to vote. Only electors are allowed to run for office. Only electors may sign nominating papers necessary to qualify candidates for the ballot. Only electors (as elected legislators) are allowed to introduce bills to the legislature. Thus, it is entirely consistent that only a natural person elector may be an official ballot initiative proponent.
Plaintiffs do not come to terms with the idea that the natural person citizens of Chula Vista may constitutionally reserve to themselves the power to make law, for their argument overlooks the essence of self-government. Brown, 671 F.3d at 1073 ("The People of California are largely free to structure their system of governance as they choose."). Permitting a corporation or association to be a ballot initiative proponent could lead to local laws being proposed by foreigners unready to contribute to the city or bear the responsibility of citizenship. Worse, corporations with assets, operations, or shareholders located outside the city, state, or country might propose initiatives adversely affecting the welfare of citizens of Chula Vista, in order to gain a business advantage elsewhere. Likewise, associations of people who live and work in other locales, could propose laws to their own advantage or the disadvantage of Chula Vistans. Even harmless or well-meant initiatives, could drown out
The State of California points out in its brief that "the submission of an initiative petition is the first step in a legislative process." According to the State, "because an initiative petition is a legislative document, it is legitimately limited to members of the legislative body, in this case the electorate."
States are allowed "significant flexibility" in designing their own initiative systems. Doe v. Reed, ___ U.S. ___, 130 S.Ct. 2811, 2818, 177 L.Ed.2d 493 (2010) ("To the extent a regulation concerns the effect of a particular activity in that process, the government will be afforded substantial latitude to enforce that regulation."). In this case, the elector requirement is a reasonable state restriction on who may officially energize the ballot initiative machinery. "These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action." Id. at 2827 (Sotomayor, J., concurring). "As the Court properly recognizes, each of these structural decisions inevitably affects — at least to some degree — the individual's right to speak about political issues and to associate with others for political ends." Id. at 2827-28 (citations and internal quotations omitted). "Regulations of this nature, however, stand a step removed from the communicative aspect of petitioning, and the ability of the States to impose them can scarcely be doubted." Id. (citations and internal quotations omitted). The elector (or natural person) requirement is premised upon the distinction between an elector who proposes a measure, and all other persons who may evaluate and advocate for or against its passage. It is a step removed from restrictions on speech and debate. It is a rational, reasonable, and constitutional choice by the people of Chula Vista acting in their sovereign capacity, to fashion
Moreover, the elector requirement is not subject to strict scrutiny, as Plaintiffs assert. If Chula Vista Charter § 903 restricted core political speech, it would need a compelling interest and it would need to be narrowly tailored to achieve that interest. However, the preferred protections for core political speech are out of place in the context of ballot initiative mechanics. Serving in the position of an official ballot initiative proponent is not pure speech. It is a legislative act. But, even assuming for the sake of argument, that serving as an official proponent is speech to some degree, it is speech a large step removed from the core communicative aspect of circulating a petition and publicly advocating for its passage or defeat. It is speech much closer to the mechanics of the ballot initiative process.
"It is by no means necessary for a State to prove" that measures to control the mechanics of the ballot initiative process "are narrowly tailored to its interests." Reed, 130 S.Ct. at 2827 (Sotomayor, J., concurring) (citing Celebrezze, 460 U.S. at 788, 103 S.Ct. 1564). "To require that every voting, ballot, and campaign regulation be narrowly tailored to serve a compelling interest `would tie the hands of States seeking to assure that elections are operated equitably and efficiently.'" Buckley v. Am. Const. Law Found. ("Buckley II"), 525 U.S. 182, 206, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) (Thomas, J., concurring) (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997)). Thus, strict scrutiny is not the appropriate test for the elector requirement. Instead, it is a regulation for which the Supreme Court recognizes that states and municipalities are given leeway. It this case, the elector requirement is a rational, reasonable, and necessary measure to protect Chula Vista's form of self-government. But, it is not the end of the matter.
Plaintiffs offer another argument against the requirement that a proponent be a natural person, again relying on Citizens United. They argue that by not permitting corporations and associations to act as official proponents, the natural person requirement forces these non-natural persons to speak by proxy through the mouths of their members. The Achilles' heel of this contention is that the argument assumes in the first place that the First Amendment grants corporations and associations the right to officially propose a ballot initiative. As discussed above, however, Chula Vista and California reserve only to electors the power to engage the machinery of lawmaking by ballot initiative. Since an elector must be a natural person and resident, and since corporations and associations are not natural persons and may not be residents, the speech-by-proxy concept does not fit. An association may perhaps persuade one of its members or a corporation may persuade an employee to propose a ballot initiative. But ultimately it is the natural person's right and choice to be an official proponent.
Plaintiffs also argue that the elector requirement creates an impermissible unconstitutional condition by forcing corporations and associations to choose between two protected rights:
Like the ill-fitting speech-by-proxy argument, however, this argument also relies on the premise that an association has a right to officially propose a ballot initiative. Once again, however, that right is permissibly reserved to natural person electors. Neither corporations nor unincorporated associations have the right to engage in the "speech" of officially proposing a ballot measure.
To sum up, since California and Chula Vista utilize the ballot initiative as a method of making law, and each restrict law-makers to natural person electors rather than artificial person associations and corporations, this Court holds that the elector requirement is constitutional.
During the process of proposing and qualifying an initiative for a Chula Vista election, the name of the official proponent is required to be disclosed at three times. First, at the filing of the Notice of Intent to Circulate a Petition. Second, during the newspaper publication of the Notice of Intent. Third, when the copies of the Notice of Intent are circulated for voter signatures. The Plaintiff proponents do not object to the disclosure requirement in the first two instances. Indeed, they have already disclosed their names in the process of qualifying Proposition G for the ballot.
Instead, Plaintiffs challenge the mandatory disclosure of their names as official proponents on the text of the proposition used by circulators to solicit voter signatures.
The individual Plaintiffs, Lori Kneebone and Larry Breitfelder, were the official proponents of Proposition G. They took the necessary steps to place their ballot initiative before the voters of the City of Chula Vista in a city-wide election. The individual Plaintiffs have the requisite Article III standing to challenge the proponent name disclosure requirement.
Kneebone and Breitfelder argue that they enjoy a First Amendment right to engage in anonymous political speech. They contend the third step name disclosure requirement trenches on that right. Plaintiffs are correct that the First Amendment right to free speech includes a right to speak anonymously. This is especially true for political speech. The Supreme Court observes,
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995) (citations omitted). In that regard, the Ninth Circuit notes that protection for anonymous speech under the First Amendment "was first articulated a half-century ago in the context of political speech," if not earlier. In re Anonymous Online Speakers, 661 F.3d 1168, 1172 (9th Cir.2011) (citing Talley v. California, 362 U.S. 60, 64-65, 80 S.Ct. 536, 4 L.Ed.2d 559 (1960)). Anonymous political speech in the United States actually goes back much farther than 50 years. "Undoubtedly the most famous pieces of anonymous American political advocacy are The Federalist Papers, penned by James Madison, Alexander Hamilton, and John Jay, but published under the pseudonym `Publius.'" Id. at 1172-73 (citing McIntyre, 514 U.S.
For their part, Plaintiffs rely heavily on McIntyre and ACLU of Nev. v. Heller, 378 F.3d 979 (9th Cir.2004). They argue that under McIntyre and Heller, the First Amendment protects their right to anonymously propose a ballot initiative. However, while both cases involved ballot initiatives, neither McIntyre nor Heller consider whether an official proponent of a ballot initiative enjoys a right to anonymity. McIntyre concerned "an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name," and was fined $100 for omitting her name from her leaflets. 514 U.S. at 358, 115 S.Ct. 1511 (Ginsburg, J., concurring). Heller, likewise concerned an organization whose members wished to distribute anonymous flyers about an existing ballot initiative. 378 F.3d 979; see also Hatchett v. Barland, 816 F.Supp.2d 583 (E.D.Wis.2011) (individual sanctioned for mailing anonymous postcards about existing ballot measures).
Neither McIntyre nor Heller address the question raised by this case: whether a proponent of a ballot initiative may remove his or her name from copies of the notice of intent circulated by signature gatherers, and still qualify the measure for an election. Some cases have focused on those who do the footwork of circulating petitions and gathering signatures.
Plaintiffs next argue that the issue decided in Buckley v. Am. Const. Law Found. ("Buckley II"), 525 U.S. 182, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999) and Washington Initiatives Now! v. Rippie ("WIN"), 213 F.3d 1132 (9th Cir.2000) — "whether government may ban anonymous petition circulation" — is the same as in this case. But the issue is not the same. Buckley II and WIN deal with the rights of workers who gather initiative signatures. Circulators of ballot initiatives have
But Plaintiffs Kneebone and Breitfelder are not circulators; they are the official proponents. As is common with ballot initiative campaigns, Plaintiffs hired professional circulators to gather signatures. As a result, these Plaintiffs were not exposed to the same risk of "heat of the moment" harassment faced by circulators in Buckley II. Since Plaintiffs here are not circulators, and the difference is significant, neither Buckley II nor WIN is controlling.
The Ninth Circuit has said that "the right to speak, whether anonymously or otherwise, is not unlimited." In re Anonymous Online Speakers, 661 F.3d at 1173. It is important to point out that the proponent name disclosure requirement is not a prohibition on speech and does not criminalize speech. Instead, it requires Breitfelder and Kneebone to disclose their identity as official proponents of the legislation. As the Supreme Court observes, disclosure requirements "may burden the ability to speak [or not speak], but they... do not prevent anyone from speaking." Citizens United, 130 S.Ct. at 914 (citations omitted). For testing the constitutionality of a disclosure requirement, the government burden on speech must pass exacting scrutiny, "meaning that it is substantially related to a sufficiently important governmental interest." Human Life of Wash. v. Brumsickle, 624 F.3d 990, 1005 (9th Cir. 2010), cert. denied, ___ U.S. ___, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011); see also Reed, 130 S.Ct. at 2818 (exacting scrutiny applies where a statute imposes disclosure requirement rather than a prohibition on speech).
California argues that it has two important interests related to the disclosure requirement that outweigh a proponent's right to anonymity: (1) an electoral informational interest; and (2) an interest in preserving the integrity of the electoral process.
In its brief, California describes its informational interest: "because the right to
Id. at 1007-08 (internal quotation marks and citations omitted).
Human Life evaluated Washington's burden on ballot measure spending, rather than nonfinancial advocacy. While not directly on point, the case illustrates the notion that a state's informational interest may be just as strong in the context of a ballot measure campaign as it is in a candidate campaign for public office. As one court recently observed, "[t]he Ninth Circuit... has held that the informational interest applies even more strongly in the context of ballot initiatives." Justice v. Hosemann, 829 F.Supp.2d 504, 515 (N.D.Miss.2011).
To reiterate, Plaintiffs argue that McIntyre should control and that the right to political anonymity outweighs California's informational interest. But, the Ninth Circuit has traveled down a parallel road before. In California Pro-Life Council v. Getman, the Ninth Circuit explained, "[l]ike the Court in McIntyre, [the plaintiff] asks us to disregard California's informational interest in disclosure and hold that ballot-measure advocacy is absolutely protected speech. We think McIntyre is distinguishable from the case at bar, as the McIntyre Court itself observed." 328 F.3d 1088, 1104 (9th Cir.2003). Getman described California's informational interest:
Id. at 1106 (citation omitted). California voters, as lawmakers, have a substantial informational interest in knowing the identity of those soliciting their votes. California voters, as lawmakers, also have a substantial interest in knowing the identity of the official sponsors of a ballot initiative who seek their signature approval to put the measure to a public vote. Cf. Cal. Pro-Life Council v. Randolph, 507 F.3d 1172, 1179 n. 8 (9th Cir.2007) ("We note that in the context of disclosure requirements, the government's interest in providing the electorate with information related to election and ballot issues is well-established."). It may be true, as Plaintiffs argue, that "the best test of truth is the power to get itself accepted in the competition of the market." See McIntyre, 514 U.S. at 347 n. 11, 115 S.Ct. 1511. And it may be that "[p]eople are intelligent enough to evaluate the source of an anonymous writing" and can "evaluate its anonymity along with its message." Id. But it is also true that, "[o]f course, the identity of the source is helpful in evaluating ideas." Id.
California has made its own decision. For purposes of ballot measure signature gathering, the State has decided that it is in the best interest of its voters (as petition signers) to know the name of a ballot measure's official proponent. California has a legitimate and substantial interest in fostering an informed and educated electorate. See Caruso v. Yamhill Cnty., 422 F.3d 848, 861 (9th Cir.2005), cert. denied, 547 U.S. 1071, 126 S.Ct. 1786, 164 L.Ed.2d 519 (2006). Section 9207, by requiring the circulated petition to bear a copy of the Notice of Intent, which in turn discloses the names of the official proponents, is directly related to that informational interest. Section 9207 thus plays a role by which California voters may inform themselves in exercising control of their government (i.e., determining whether an issue has enough merit to be placed on the election ballot). Because the disclosure requirement that the Plaintiffs identify themselves as official proponents during the gathering of signatures is substantially related to a sufficiently important governmental interest, the statutory scheme survives exacting scrutiny.
California also asserts an interest in preserving the integrity of the electoral process. The State explains that this interest is not limited to preventing fraud, but "extends more generally to promoting transparency and accountability in the electoral process." The interest is similar to Washington's interest recognized by the Supreme Court as important in Reed. Reed found, "[t]he State's interest in preserving the integrity of the electoral process is undoubtedly important." 130 S.Ct. at 2819; see also Buckley II, 525 U.S. at 191, 119 S.Ct. 636 ("States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process.").
Plaintiffs point out that questions as to whether the name of the proponent is fraudulent or authentic, could be answered by the first two required proponent name disclosures in the California scheme. But the disclosure requirement goes to preserving
Because California's informational interest and its interest in preserving the integrity of the electoral process is served by the proponent identity disclosure requirement on circulated petitions, and because the dual interests reflect the seriousness of the actual burden on the First Amendment rights of official proponents, the statutes survive exacting scrutiny on their face.
Plaintiffs also attempt to demonstrate the burden as applied specifically to Kneebone and Breitfelder. Unfortunately, the evidence demonstrates only a slight burden on Kneebone's and Breitfelder's right to speak anonymously.
The Supreme Court explains that "those resisting disclosure can prevail under the First Amendment if they can show `a reasonable probability that the compelled disclosure of personal information will subject them to threats, harassment, or reprisals from either Government officials or private parties.'" Reed, 130 S.Ct. at 2820 (quoting Buckley v. Valeo, 424 U.S. 1, 74, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)) (emphasis added); see also Family PAC, 685 F.3d at 807, 2012 WL 266111 at *4 ("The Court explained that in an atypical case presenting a bona fide threat of harassment or retaliation, an aggrieved party could seek an exemption from compelled disclosure by making a sufficient evidentiary showing in an as-applied challenge.").
Plaintiffs offer scant support for their as-applied challenge. Both Kneebone and Breitfelder willingly disclosed their identity in two prior disclosures: on the initial Notice of Intent filing and later on the published copy of the Notice of Intent. Theses actions by Kneebone and Breitfelder undercut the claim of a severe burden on their right to anonymous speech. At the same time, absent is evidence of any actual threats or harassment. Complicating the evidentiary presentation is the fact that both Kneebone and Breitfelder were active in other public ways during the campaign.
Rather than maintaining a low public profile consistent with a desire for anonymity, both Kneebone and Breitfelder participated fully in public debate over Proposition G. For example, both proponents appeared before the Chula Vista City Council on two occasions to speak in support of the ballot initiative. Those meetings were broadcast on public television. Then, Kneebone and Breitfelder signed the "Rebuttal to the Argument Against Proposition G" that was printed in the pre-election Voter Information pamphlet. That pamphlet is mailed to all registered voters. Kneebone's name and photograph also appeared on two election mailers in support of the ballot initiative sent to residents of Chula Vista. And Kneebone and Breitfelder featured in a video in support of the ballot initiative that was posted on YouTube and on the "Yes on G" website. At the same time, Breitfelder was president of The Chula Vista Taxpayers Association which publicly supported Proposition G and sent out mailers to voters to that effect. As part of his own campaign for City Councilman he told the
For the as-applied challenge, the strongest evidence is Kneebone's own statement that she feared harassment. In her statement she says that she feared harassment from union members after revealing her name on the circulated petition. However, while she may have feared harassment, she has not shown instances of actual harassment. Without more, she is unable to show that there is a reasonable probability of future harassment. Even if she were able to show actual harassment, Plaintiffs would still have to draw a connection between the harassment suffered and the disclosure of her name on the circulated petition. That task would be complicated by Kneebone's various other public statements.
The as-applied showing for Breitfelder, though different, is no stronger. Breitfelder believes he was subjected to "reprisals" during his own campaign for City Councilman as a result of being identified as a proponent of the ballot initiative. Breitfelder, in more ways than Kneebone, placed himself in the middle of the public political discourse over Proposition G. Breitfelder was a candidate for public office. He identifies the "reprisals" as being negative election campaign literature highlighting his own candidacy as anti-union. The campaign literature
Rather than a "reprisal" in the sense Reed uses the term, this type of political advertisement is commonplace and core political speech. As detailed above, however, Breitfelder was active in supporting Proposition G in many ways, including tying his support to his own candidacy for office. Consequently, accurate speech by a candidate's political opponents does not qualify as a reprisal. And even if it did, it is not clearly tied to the proponent name disclosure requirement.
Further undercutting the as-applied challenge is the evidence that Kneebone and Breitfelder objected to disclosure based on reasons other than a desire to speak anonymously. They explained in depositions that the reason they did not want their names on the circulated petition was not a desire to maintain anonymity, or a desire that Proposition G be judged solely on its merits. Quite the opposite. They both explained that they wanted voters to know that the "correct" sponsor of the ballot initiative was the Association of Builders and Contractors, Inc. and the Chula Vista Citizens for Jobs and Fair Competition. For example, Kneebone testified,
Similarly, Breitfelder testified,
This testimony suggests that Kneebone and Breitfelder were not interested in engaging in anonymous political speech so much as they were interested in voters being informed of the names of the organizational sponsors of Proposition G. Consequently, Plaintiffs have not made the particularized showing required for an as-applied challenge. Plaintiffs' hurdle is not high, but it is a hurdle. Reed, 130 S.Ct. at 2823 (Alito, J., concurring) (citations omitted) ("speakers must be able to obtain an as-applied exemption without clearing a high evidentiary hurdle"). Plaintiffs need show "only a reasonable probability that disclosure will lead to threats, harassment, or reprisals." Id. (citations omitted).
In other words, Plaintiffs could have presented specific evidence of past or present harassment, a pattern of threats or specific manifestations of public hostility, or an array of evidence to meet the standard. Id. (citations omitted). But Plaintiffs' evidence does not meet the standard. The one instance of a possible reprisal came in the form of a campaign advertisement describing Mr. Breitfelder as "anti-union" and a supporter of Proposition G. That evidence is ambiguous. The stances taken by Breitfelder in his role as a candidate for public office were publicized in a myriad of other ways and open to public comment.
To sum up, the California disclosure requirement imposed only slight burdens on Plaintiffs' right to engage in anonymous political speech, as applied to them. Therefore, the as-applied challenge fails.
Plaintiffs and the State also move for summary judgment on Plaintiffs' vagueness challenges in Counts 3, 4, and 5. "[W]e insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.... [W]here a vague statute `abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms.'" Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) (citations omitted). Nevertheless, "`perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.'" United States v. Williams, 553 U.S. 285, 128 S.Ct. 1830, 1845, 170 L.Ed.2d 650 (2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)).
In Count 3, Plaintiffs attack as unconstitutionally vague, the term "proponent" and "publish" as used in California Elections Code § 342. They argue that because a "proponent" is defined as "the person or persons who publish a notice or intention to circulate petitions," then an association may be a proponent when an association publishes the notice. They argue, that publishing means paying for the publication. They then contend that since Chula Vista Citizens actually paid for the publishing of the notice of intention for Proposition G, then Chula Vista Citizens may be the official proponent.
This Court discerns no such ambiguity or vagueness. A statute that implicates free speech rights "will survive a facial challenge so long as it is clear what the statute proscribes in the vast majority of its intended applications" Humanitarian Law Project v. U.S. Treasury Dept., 578 F.3d 1133, 1146 (9th Cir.2009) (citations omitted). Men of ordinary intelligence would understand that the general "proponent" language of the state provision dealing with local initiatives, is clarified by the specific "elector" language found in Chula Vista Charter § 903. In this way, the state statutes simply leave to each municipality to choose which persons may propose a local initiative. Read in context, California Elections Code 342 is not susceptible to Plaintiffs' reading that an association or incorporation may become an official proponent merely by paying for cost of publication. It is only by tearing the terms out of their overall context
In Count 4, Plaintiffs attack as unconstitutionally vague the "bear a copy" requirement contained in California Elections Code § 9207. When the proponents of a ballot initiative begin the process of circulating the petitions, Section 9207 requires each section of the petition to "bear a copy of the notice of intention." They argue that § 9207 is not clear whether a copy must include the names of the official proponents. They argue that California Elections Code § 9202 permits the circulated copy to be less than an exact copy and that a substantially correct copy, but a copy without proponents names, should qualify.
Again, this Court discerns no such ambiguity or vagueness. Section 9202 contains language to be used for the introduction of the notice of intent. That introductory language need not be exact. Section 9202's leniency in the creation of the notice of intent cannot be reasonably imported into § 9207 and read as permitting something less than a complete copy of the notice of intent. Even if it could, it cannot be reasonably argued that the omission of the important element of the proponents' names would be in substantial compliance with the bear-a-copy language of § 9207. "A law is unconstitutionally vague if it fails to provide a reasonable opportunity to know what conduct is prohibited, or is so indefinite as to allow arbitrary and discriminatory enforcement." Human Life, 624 F.3d at 1019 (citations omitted). The phrase is not susceptible to arbitrary enforcement.
In Count 5, Plaintiffs attack as unconstitutionally vague the phrase "in substantially the following form" requirement contained in California Elections Code § 9202.
The elector (or natural person) requirement to be an official ballot initiative proponent
IT IS SO ORDERED.
Because Proposition G eventually qualified and passed, this case would be moot, but for the exception for Constitutional injuries which are capable of repetition while evading judicial review. See FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007); Farris v. Seabrook, 677 F.3d 858, 863 (9th Cir.2012) ("The exception frequently arises in election cases."). This case fits the exception.
Instead, Plaintiffs attack the "elector" requirement found in the parallel state statutes incorporated by Charter § 903. Thus, Plaintiffs' arrow may have missed its mark. For example, Plaintiffs' prayer for relief seeks,
See Verified Complaint, at 41 ¶ 2 (emphasis added). Similarly, paragraph three of the prayer seeks,
Id. at 41 ¶ 3 (emphasis added).
On the other hand, since Charter § 903 does incorporate provisions of the California Elections Code, by challenging the complimentary state statutes found in § § 342 and 9202, which are consistent with the "elector" requirement in City Charter § 903, Plaintiffs impliedly challenge the city charter provision, as well. Moreover, it is worth noting that Defendants do not challenge Plaintiffs' Article III standing. Therefore, Plaintiffs' standing will be assumed.
