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.
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.
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).
"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
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.
"[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
In sum, our case law establishes that geographic distribution requirements assigning equal political power to districts of unequal population violate equal protection. The All Districts Rule, however, avoids that defect. Whereas the rules in Moore, Idaho Coalition and Lomax afforded equal political power to counties having unequal populations, the All Districts Rule grants equal political power to congressional districts having equal populations. It thus does not trigger strict scrutiny under the principle announced in Moore, and it survives rational basis review because it serves the state's legitimate interest in ensuring a minimum of statewide support for an initiative as a prerequisite to placement on the ballot.
The plaintiffs argue that this is not the end of the inquiry because "there is more than one way for a state's election district scheme to create vote dilution." Reply Brief of Appellants 5. They rely on another set of Supreme Court cases suggesting that, with respect to a statewide election, equal protection requires votes to be counted on a statewide, rather than a district-by-district, basis.
This line of authorities begins with Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), which invalidated the way Georgia nominated candidates for statewide office. The state allocated a number of "units" to each county, much like the Electoral College assigns electoral votes to the states. The county unit system was based partially on population, but gave sparsely populated counties a disproportionate number of units relative to their populations. See Gray, 372 U.S. at 371-73, 83 S.Ct. 801. The Supreme Court invalidated the system under the principle later expanded upon in Moore. The scheme violated equal protection because it "[gave] every qualified voter one vote in a statewide election; but in counting those votes ... employ[ed] the county unit system which in end result weight[ed] the rural vote more heavily than the urban vote and weight[ed] some small rural counties heavier than other larger rural counties." Id. at 379, 83 S.Ct. 801. As relevant here, the Court also said that the unit system would have violated equal protection "even if unit votes [had been] allocated strictly in proportion to population"— that is, even if this system did not give disproportionate weight to small, rural counties. Id. at 381 n. 12, 83 S.Ct. 801. The Court explained that, "[o]nce the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—... wherever their home may be in that geographical unit." Id. at 379, 83 S.Ct. 801.
The Court expanded on this principle in Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971):
403 U.S. at 4-5, 91 S.Ct. 1889 (emphasis added) (citation omitted). Taken together, Gray and Gordon suggest that, with respect to a statewide election, a state must count votes on a statewide, rather than a district-by-district, basis. Doing otherwise devalues votes based on where voters happen to live. As the Court said in Reynolds, 377 U.S. at 560, 84 S.Ct. 1362, "Gray... held that voters cannot be classified, constitutionally, on the basis of where they live, at least with respect to voting in statewide elections."
Thus, were a state to decide an election for governor by determining which candidate received a majority of the votes cast in a majority of districts, rather than determining which candidate received a majority of the votes cast statewide, it might impermissibly devalue votes according to Gray and Gordon. The result presumably would be the same if a state were to decide an election on a statewide ballot measure by determining whether the initiative received majority support in a majority of districts, rather than whether the initiative received a majority of votes statewide. We must decide whether this principle disfavoring geographic counting also extends to the signature phase of a ballot initiative.
Similar to the two examples above, the All Districts Rule counts petition signatures on a geographic rather than a statewide basis. As a result, a ballot initiative may obtain the total number of signatures required statewide, but fail to qualify for the ballot solely based on where signers live. The All Districts Rule thus implicates the concerns raised in Gray, Gordon and Reynolds that "voters cannot be classified... on the basis of where they live, at least with respect to voting in statewide elections." Id.
We do not believe, however, that the All Districts Rule violates equal protection on this basis. Although language in Gray, Gordon and Reynolds suggests that a district-by-district system of counting votes in a statewide election would violate equal protection, none of the decisions suggests that district-by-district counting of signatures obtained to qualify an initiative for the ballot presents the same problem. Votes and petition signatures are similar in some respects, see Idaho Coalition, 342 F.3d at 1076 (noting that, as a general matter, "equal protection guarantees ... apply to ballot access restrictions just as they do to elections themselves"), but ballot access requirements and elections serve different purposes. A ballot access requirement determines whether there is a minimum level of grassroots support for an initiative to warrant its inclusion on the ballot. An election, by contrast, measures the collective, aggregate will of the electorate. These differences suggest that the bar on district-by-district counting apparently embodied in Gray, Gordon and Reynolds does not apply to the counting of petition signatures to qualify initiatives for the ballot.
This inference is supported by experience. Although geographic distribution requirements are commonplace at the
The plaintiffs also argue that the All Districts Rule denies equal protection because it violates the principle of majority rule, allowing "a small minority of the population of the state to veto the overwhelming wishes of the majority with regard to a particular ballot initiative." Brief of Appellants 13.
"[M]ajority rule" is one of the "ideals" that drives our democracy. Reynolds, 377 U.S. at 566, 84 S.Ct. 1362. "[T]here is nothing in the language of the Constitution," however, "that requires that a majority always prevail on every issue." Gordon, 403 U.S. at, 6, 91 S.Ct. 1889. As the Supreme Court explained in Gordon, where it upheld a West Virginia law prohibiting political subdivisions from incurring bonded indebtedness or increasing tax rates without the approval of 60 percent of the voters in a referendum election, see id. at 2, 91 S.Ct. 1889. "any departure from strict majority rule gives disproportionate power to the minority," but "so long as such provisions do not discriminate against or authorize discrimination against any identifiable class they do not violate the Equal Protection Clause," id. at 6-7, 91 S.Ct. 1889. Thus, "[t]o the extent that [Nevada] wishes to create a check on the will of the majority by a non discriminatory means, the equal protection clause is no bar." Idaho Coalition, 342 F.3d at 1079.
The plaintiffs suggest that the All Districts Rule discriminates against urban voters because it gives voters in the relatively rural Second District the ability to veto initiatives supported by voters in the more urban First and Third Districts. Brief of Appellants 19; Badillo Aff. ¶¶ 12, 17. The plaintiffs offer no evidence in support of this assertion, however. In any event, voters in the First and Third districts are not a discrete or insular minority. Nor do voters in the Second District have a "strangle hold on the State Legislature," Reynolds, 377 U.S. at 570, 84 S.Ct. 1362, that would prevent the majority of voters in the First and Third Districts from persuading the legislature to modify the All Districts Rule if it interferes with their political preferences. The rule thus does not discriminate against an identifiable class.
Under the First Amendment, election "[r]egulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest." Prete v. Bradbury, 438 F.3d 949, 961 (9th Cir.2006) (quoting Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1007 (9th Cir. 2003)). "Lesser burdens ... trigger less exacting review, and a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions." Id. (quoting Ariz. Right to Life, 320 F.3d at 1007-08). In applying this standard, we bear in mind that "States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally." Buckley v. Am. Constitutional Law Found., Inc. (ACLF), 525 U.S. 182, 191, 119 S.Ct. 636, 142 L.Ed.2d 599 (1999). At the same time, we must "separate valid ballot-access provisions from invalid interactive speech restrictions," thus "guard[ing] against undue hindrances to political conversations and the exchange of ideas." Id. at 192, 119 S.Ct. 636. Applying this framework here, we first address whether the plaintiffs have shown that the All Districts Rule imposes a severe burden on First Amendment rights and then address whether the state has articulated a sufficient interest to sustain the rule.
The Supreme Court has identified at least two ways in which restrictions on the initiative process can severely burden "core political speech." Meyer v. Grant, 486 U.S. 414, 422, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988). First, regulations can restrict one-on-one communication between petition circulators and voters. See id. at 422-23, 108 S.Ct. 1886. Second, regulations can make it less likely that proponents will be able to garner the signatures necessary to place an initiative on the ballot, "thus limiting their ability to make the matter the focus of statewide discussion." Id. at 423, 108 S.Ct. 1886. We consider each of these types of burdens as applied to the All Districts Rule.
Unlike the restrictions on petition circulators at issue in Meyer and ACLF, the All Districts Rule does not restrict one-on-one communication between petition circulators and voters. It neither
The plaintiffs nonetheless contend that the All Districts Rule imposes a severe burden on core political speech because it makes it more difficult and expensive to qualify an initiative for the ballot. There is no First Amendment right to place an initiative on the ballot. See Meyer, 486 U.S. at 424, 108 S.Ct. 1886 (recognizing that "the power of the initiative is a state-created right"). Regulations that make it more difficult to qualify an initiative for the ballot therefore do not necessarily place a direct burden on First Amendment rights.
Such regulations, however, may indirectly impact core political speech. As Meyer recognized, when an initiative fails to qualify for the ballot, it does not become "the focus of statewide discussion." Meyer, 486 U.S. at 423, 108 S.Ct. 1886. Ballot access restrictions may therefore "reduc[e] the total quantum of speech on a public issue." Id.
This is similar to the standard we apply to ballot access restrictions regulating candidates. In that setting, we have held that "the burden on plaintiffs' rights should be measured by whether, in light of the entire statutory scheme regulating ballot access, `reasonably diligent' candidates can normally gain a place on the ballot, or whether they will rarely succeed in doing so." Nader v. Brewer, 531 F.3d 1028, 1035 (9th Cir.2008) (quoting Libertarian Party of Wash. v. Munro, 31 F.3d 759, 762 (9th Cir.1994)); see also PEST Comm. v. Miller, 626 F.3d 1097, 1107, 1110 (9th Cir. 2010) (looking to the Nader standard for guidance in evaluating regulation of the initiative process).
To establish that the All Districts Rule significantly inhibits the ability of proponents to place initiatives on the Nevada ballot, the plaintiffs rely on affidavits submitted by Tony Badillo, a plaintiff, and Janine Hansen. Badillo is a supporter of a proposed initiative that would prevent the Las Vegas casinos from taking tips received by dealers. His affidavit declares:
Badillo Aff. ¶ 16. Hansen's affidavit says that she has been involved in several efforts to gather petition signatures in northern Nevada over the past decade. She asserts that it would be difficult to satisfy the All Districts Rule:
Hansen Aff. ¶¶ 13, 19, 27.
Badillo's and Hansen's assertions are too vague, conclusory and speculative to create a triable issue that the All Districts Rule significantly reduces the chances that proponents will be able to gather enough signatures to place initiatives on the ballot.
Because the plaintiffs have not shown that the All Districts Rule imposes severe burdens, the state need show only
Nevada undeniably has an important regulatory interest "in making sure that an initiative has sufficient grass roots support to be placed on the ballot." Meyer, 486 U.S. at 425-26, 108 S.Ct. 1886. The Supreme Court has recognized this interest as "substantial." ACLF, 525 U.S. at 204, 119 S.Ct. 636. The issue here is whether a state can assert an important interest in ensuring that this grassroots support be distributed throughout the state. Neither the Supreme Court nor this court has addressed this precise question.
We are persuaded that the state has shown an important regulatory interest. The First Amendment permits states "considerable leeway" in regulating the electoral process, provided their choices do not produce "undue hindrances to political conversations and the exchange of ideas." ACLF, 525 U.S. at 191-92, 119 S.Ct. 636. We believe this leeway applies to a state's decision about how to measure the grassroots support sufficient to qualify an initiative for the ballot. Some states may prefer a single, statewide signature requirement, while others may choose a signature requirement with a geographic component, restricting the initiative to proposals having a minimum level of statewide support, rather than only localized support. Half of the states with initiatives currently impose a geographic distribution requirement on petition signatures, reflecting the view that "geographic distribution requirements ... are important because they force initiative proponents to demonstrate that their proposal has support statewide, not just among the citizens of the state's most populous region." Initiative Petition Signature Requirements, National Conference of State Legislatures (Apr. 7, 2010), available at http://www. ncsl.org/legislatures-elections/elections-campaigns/signature-requirements.aspx; see also Thomas E. Cronin, Direct Democracy 236 (1989) ("Geographic requirements make sense in states such as New York, Texas, or Hawaii. Surely a petition in New York should include some signatures from localities outside New York City; a petition in Texas should have at least some support in the various regions of that sprawling state; and some percentage of petitions should come from some of the outer islands should Hawaii adopt the initiative and referendum."). Nevada has therefore articulated an important regulatory
The plaintiffs have not demonstrated the existence of a genuine issue on their claims that the All Districts Rule violates either the Equal Protection Clause or the First Amendment. The judgment of the district court is therefore affirmed.
