ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on the motion for summary judgment of Plaintiff Roque "Rocky" De La Fuente ("Plaintiff") and the cross-motion for summary judgment of Defendant Kim Wyman in her role as Washington State's Secretary of State ("the State"). Dkts. 30, 33. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and for the reasons stated below hereby grants Plaintiff's motion and denies Defendant's motion.

I. BACKGROUND

In 2016, Plaintiff ran as a candidate for President of the United States. In pursuit of the presidency, Plaintiff sought to be placed on Washington State's ballot as a candidate for the American Delta Party.

Washington State regulations provide that minor party or independent presidential candidates may be placed on the State's ballot by obtaining a valid nomination and presenting the Secretary of State with a "certificate of nomination." RCW 29A.56.600-.670. To be nominated, a minor party or independent candidate must hold one or multiple "conventions," each attended by at least one hundred voters, whereat the candidate obtains "nominating petitions" from at least 1,000 registered Washington voters. RCW 29A.56.600-.620. A "nominating petition" must be signed and bear the voter's printed name and address. RCW 29A.56.630.

This case revolves around the State's requirement that a convention be proceeded by the publication of ten days' notice in a newspaper of general circulation. Specifically, the State requires:

RCW 29A.56.620.

A minor party or independent presidential candidate can then be placed on the ballot by presenting the Secretary of State with a "certificate of nomination." RCW 29A.56.640. To be valid, the certificate must:

Id. If a party has failed to publish notice of a convention in compliance with RCW 29A.56.620 and submit proof of that publication, then the certificate of nomination will be rejected by the Secretary of State and the candidate will not appear on the presidential ballot.

On June 26, 2016, Trenton Pool submitted a certificate nominating Plaintiff as the presidential candidate for the American Delta Party. Dkt. 15-1 at 37-59, 69-81. The certificate of nomination was supported by over 2,600 nominating petitions. Dkt. 15-1 at 36, 57. On August 1, 2016, the State informed Trenton Pool that the certificate of nomination failed to show that the American Delta Party published notice at least ten days before each of the party's conventions, Dkt. 15-1 at 61. In that email, the State requested that Plaintiff withdraw any "unsupported petition signatures," seeming to refer to nominating petitions that were not obtained during a convention preceded by the requisite publication of notice. Dkt. 15-1 at 61.

On August 8, 2017, the State rejected Plaintiff's certificate of nomination because it did not "include proof of publication of the notice calling the convention." Dkt. 15-1 at 83. More specifically, the State rejected Plaintiff's certificate of nomination because it failed to show that notice was "published in a newspaper of general circulation within the county in which the party or candidate intends to hold a convention." Id. (emphasis in original). As a result, the State refused to place Plaintiff's name on the ballot.

On September 19, 2016, Plaintiff commenced this lawsuit by filing his complaint. Dkt. 1. Plaintiff's complaint claims that the publication of notice requirement found in RCW 29A.56.620 and .640(6) is a violation of his First Amendment rights. Id.

On September 21, 2016, he moved for an emergency injunction to enjoin the State from enforcing RCW 29A.56.620, .640(6) and to require the reprinting of ballots for the 2016 general election. Dkts. 1-11. The State opposed the motion. Dkts. 13-17. At a hearing on September 26, 2016, the Court denied Plaintiff's motion to issue an emergency injunction. Dkt. 18. The Court also asked that the parties submit a joint status report setting a schedule for promptly resolving the case. Id.

On October 7, 2016, the parties submitted their joint status report. Dkt. 21. On October 17, 2016, the Court issued a scheduling order setting a trial date and deadlines for motions, including motions for leave to amend the pleadings. Dkt. 22.

On October 18, 2017, Plaintiff filed his present motion for summary judgment. Dkt. 30. On October 27, 2017, the State responded and filed its cross-motion for summary judgment. Dkt. 33. On November 6, 2017, Plaintiff filed his reply and response to the State's cross-motion for summary judgment. Dkt. 34. On November 9, 2017, the State filed a reply on its cross-motion.

On January 31, 2017, the Court entered an order discussing the parties' arguments, setting forth the applicable legal standard for reviewing the validity of RCW 29A.56.620 and .640(6), reserving ruling on the parties' motions, and setting a date for oral argument. Dkt. 41. On February 14, 2017, the parties appeared before the Court for oral argument. Dkt. 42.

II. DISCUSSION

The parties have filed competing cross-motions for summary judgment. Dkts. 30, 33. Plaintiff moves for summary judgment on the basis that RCW 29A.56.620 and.640(6) pose an unconstitutional restraint on his First Amendment rights. Dkt. 30. The State moves for summary judgment on the basis that Plaintiff's claim is not justiciable and, in the alternative, RCW 29A.56.620 and .640(6) impose a constitutional regulation reasonably related to an important State interest. Dkt. 33. The Court has already ruled against the State's justiciability argument in its previous order. Dkt. 41 at 6-8. Therefore, the sole issue remaining before the Court is whether RCW 29A.56.620 and .640(6) are a constitutional regulation reasonably related to an important State interest.

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, nonspecific statements in affidavits are not sufficient, and missing facts will not be presumed. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).

Plaintiff challenges RCW 29A.56.620's requirement that minor party and independent presidential candidates publish notice of a "convention" in a newspaper of general circulation at least ten days before the convention is held on the basis that it places an unconstitutional burden on freedom of speech and association. The only practical result of RCW 29A.56.620 and .640(6) is that, in order for the 1,000 signatures needed to place a minor party or independent candidate on the presidential ballot to be considered valid, a minor party or independent candidate must incur the financial and logistic burden associated with publishing notice of a convention in each county the candidate seeks to obtain signatures. Accordingly, even if the candidate timely obtains the required number of nominating petitions, the State will reject the nomination certificate and the petitions will be considered invalid if notice of the convention was not properly published in a qualifying newspaper.

In deciding whether a local election law violates First Amendment rights, the Court must "weigh the character and magnitude of the burden the State's rule imposes on those rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). "When an election regulation imposes a severe burden on First Amendment rights, the state must show the law is narrowly tailored to achieve a compelling governmental interest—strict scrutiny review." Chamness v. Bowen, 722 F.3d 1110, 1116 (9th Cir. 2013) (citation and internal quotation marks omitted). On the other hand, the Court will "uphold restrictions that impose only a lesser burden on those rights so long as they are reasonably related to the state's important regulatory interest." Lindsay v. Bowen, 750 F.3d 1061, 1063 (9th Cir. 2014).

In their briefs, the parties dispute which one of these balancing tests should apply to the Court's review of RCW 29A.56.620. Plaintiff argues that the regulation must be evaluated with strict scrutiny. To support this argument, Plaintiff claims that RCW 29A.56.620 is a severe restriction on "core political speech." Dkt. 30 at 16. Specifically, Plaintiff explains that the term "convention" in RCW 29A.56.620 has been "watered down to mean any normal petitioning activity." Therefore, Plaintiff contends, RCW 29A.56.620 burdens "core" political activity by requiring that petitioning activity be preceded by a publication of notice and a ten-day waiting period each time and place that a minor party or independent candidate seeks to obtain valid signatures for ballot access. Also, Plaintiff suggested at oral argument that the statute would constitute a content-based restriction if it was designed for the sole purpose of "stoking backlash" and deterring minor party or independent political candidate speech. See Tr. of February 14, 2018 hearing at 14:18-23.

The Court remains convinced of its previous decision that the minimal burdens imposed by RCW 29A.56.620 require the Court to uphold its validity so long as the State can draw a reasonable relationship between the statute and a state interest. The burden imposed by RCW 29A.56.620 is slight, rather than severe, and is therefore subject to a less stringent level of scrutiny. A ballot-access regulation imposes a "severe" restriction only "if it significantly impairs access to the ballot, stifles core political speech, or dictates electoral outcomes." Chamness, 722 F.3d at 1116 (internal quotations omitted and emphasis added). In other words, "[a] restriction is particularly unlikely to be considered severe when a candidate is given other means of disseminating the desired information." Rubin v. City of Santa Monica, 308 F.3d 1008, 1014 (9th Cir. 2002). RCW 29A.56.620 does not directly restrict or limit the efforts of a minor party or independent candidate to associate freely or espouse political viewpoints. There are no allegations that Plaintiff was ever discouraged or prevented by the State from disseminating his political beliefs, promoting his presidential campaign, or associating with potential voters. Nor did the statute on its own actually prevent supporters from voting for Plaintiff, as state law still permitted him to submit his name for approval as a write-in candidate. RCW 29A.24.311(1). Even though RCW 29A.56.620 and .640(6) create a minor burden on speech and associational rights—specifically, seeking and signing valid nomination petitions—it cannot be said that the statute stifles core political speech. Nor can it be legitimately argued that RCW 29A.56.620 "significantly impairs" ballot access or "dictates electoral outcomes," considering the fact that five minor party and independent candidates successfully complied with its requirements and were included on the State's 2016 presidential ballot and six were also successfully listed on the 2012 ballot. See Nader v. Brewer, 531 F.3d 1028, 1035 (9th Cir. 2008) ("[P]ast candidates' ability to secure a place on the ballot can inform the court's analysis."). Therefore, in regards to the applicable standard of review, the Court agrees with the State that in order to decide the question of whether RCW 29A.56.620 and .640(6) unconstitutionally regulate access to the presidential ballot, the Court need only consider whether the statutes are reasonably related to an important regulatory interest of the State.

While satisfying this standard is ordinarily an easy hurdle for a state to overcome, the Court finds that the State has failed to satisfy this test in its defense of RCW 29A.56.620 and .640(6)'s publication of notice requirement. For the statutes to be constitutional, the State only needed to show that they in some way "protect[] the reliability and integrity of the election process." Chamness, 722 F.3d at 1117. See also Pub. Integrity All., Inc. v. City of Tucson, 836 F.3d 1019, 1025 (9th Cir. 2016). "[T]he State's asserted regulatory interests need only be sufficiently weighty to justify the limitation imposed on the party's rights." Timmons, 520 U.S. at 364 (internal quotation omitted). However, even under this highly deferential standard, the requirement that minor party and independent candidates publish advance notice of their conventions in a newspaper of general circulation appears arbitrary and the State has failed to establish a reasonable connection to a specified State interest.

As noted by the State, "[t]he statute's only requirement is that the public receive notice of the date, time, and location [of a convention] so that interested voters can attend if they so choose." Dkt. 33 at 22. In its briefs, the State argues that this notice requirement protects the integrity of elections by (1) providing the public with notice and a point of contact regarding an opportunity to learn about a minor party or independent candidate, and (2) giving notice of the convention to those persons desirous of being appointed as an elector for a minor party. Id. at 19-20. However, as noted in the Court's previous order, such an argument is circular and fails to draw any logical connection between these two intended purposes of the notice requirement and the integrity of the election process. The State cannot prevail by arguing that requiring public notice of a convention protects the integrity of the election process simply because it provides public notice of conventions.

At oral argument, the State further argued that public notice of the conventions serves the purpose of inviting the public to engage in the electoral process and therefore protects the integrity of our elections by fostering an informed electorate. While the Court agrees that having well-informed voters is a vital piece of our elections, the State has failed to explain how requiring minor and independent candidates to publish advance notice of a convention via newspaper reasonably furthers this interest beyond the requirement of obtaining at least 1,000 nominating petitions from registered voters. See RCW 29A.56.640. "In determining the nature and magnitude of the burden that [an] election procedure[] impose[s] . . . we must examine the entire scheme regulating ballot access." Libertarian Party of Washington v. Munro, 31 F.3d 759, 761-62 (9th Cir. 1994), overruled on other grounds by Pub. Integrity All., Inc., 836 F.3d 1019. Under the entire scheme governing the validity of a nominating certificate, if a party is capable of obtaining nominating petitions from at least 1,000 registered voters, the ten-day notice requirement of RCW 29A.56.620 appears to be an arbitrary restriction on the validity of those registered voters' petitions. Moreover, the State has failed to submit any evidence that the notice requirement of RCW 29A.56.620 actually results in any increase in the public's election participation. As noted by Plaintiff's counsel at oral argument, "[RCW 29A.56.620] is not really tethered to any state interest. Frankly, the record shows that this notice requirement doesn't do anything. Nobody sees it. Nobody acts on it . . . It is not tethered. It is a big fat nothing burger." Tr. of February 14, 2018 hearing at 16:10-18.

The best argument advanced by the State is that RCW 29A.56.620 and .640(6) reduce ballot clutter. Reducing ballot clutter is a recognized important regulatory interest, and at the very least, the statute was successful in keeping Plaintiff's name off the ballot. However, the Court finds that any effect that these statutes have in reducing ballot clutter is incidental and the notice requirement does not bear any reasonable connection to the underlying policies that support reducing ballot clutter. The broad interest of "reducing ballot clutter" is a catch-all expression covering the more particularized interests of avoiding ballot manipulation and voter confusion. Munro v. Socialist Workers Party, 479 U.S. 189, 193-94 (1986). One authorized method for achieving these goals is to eliminate would-be candidates who cannot muster a significant modicum of support. Id. (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971)) ("[T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot—the interest, if no other, in avoiding confusion, deception, and even frustration of the democratic process at the general election."). The present case illustrates how a minor party or independent candidate may be capable of mustering what the State considers to be a significant modicum of support—in this case the signed petitions of over 1,000 registered voters—yet still be excluded from the ballot for failing to give notice of county-by-county conventions. Moreover, with the exception of Plaintiff, the parties have failed to cite a single incident where the notice requirement of RCW 29A.56.620 and.640(6) has previously kept a candidate off the ballot.

In holding oral argument, the Court contemplated that RCW 29A.56.620 may advance an important state interest if the statute could be construed to provide an opportunity for citizen opposition and thus protect the ballot from over-crowding by candidates who are unable to gain sufficient support under the scrutiny of public debate and discourse. See Dkt. 41 at 14-15. However, this issue was not briefed by the State nor advocated at oral argument. Furthermore, Plaintiff claimed at oral argument that it would move the regulation out of content-neutrality and into the realm of content-based restrictions if the statutes were intended to chill the speech of minor party or independent candidates while the State simultaneously takes upon itself the task of informing registered voters of major parties' primaries. Because this issue was brought to the parties' attention in the Court's previous order and not advocated by the State at oral argument, the Court will not consider it further.

Based on the forgoing, the Court finds that the State has failed to show how RCW 29A.56.620 and .640(6) are reasonably related to an important state interest. Accordingly, the Court must conclude that RCW 29A.56.620 and .640(6) constitute an unlawful (albeit minimal) restriction on Plaintiff's First Amendment rights.

III. ORDER

Therefore, it is hereby ORDERED that Plaintiff's motion for summary judgment (Dkt. 30) is GRANTED and the State's cross-motion for summary judgment (Dkt. 33) is DENIED. In light of this order, the parties shall issue a joint status report no later than March 24, 2018, proposing a schedule for resolving any outstanding matters that must be addressed before the Court issues a final order and directs the entry of judgment in this case.