CARR, Senior District Judge:
This is a consolidated appeal in which plaintiffs-appellants Michael Chamness, Daniel Frederick, and Rich Wilson challenge the constitutionality of certain sections of California Senate Bill 6 (SB 6), legislation which, implementing California's Proposition 14 (Prop.14), fundamentally changes the California election system by eliminating party primaries and general elections with party-nominated candidates, and substituting a nonpartisan primary and a two-candidate runoff. Appellant Julius Galacki moved to intervene in the lawsuit, but the trial court denied his motion.
I. Factual Background
Before California voters approved Prop. 14 and the California Legislature enacted SB 6, California operated under a partisan primary election system. Under that system, each qualified party held a primary election in June, and the winner became the party's nominee in the November general election. Independent candidates did not participate in the primary elections but were nominated to the general election ballot by voter petition.
Prop. 14 amended the California Constitution to establish a "top-two" open primary election system under which voters directly nominate two candidates. The top
Under the version of SB 6 in place at the time relevant to this case, in the primary election candidates on the primary ballot indicated either their political party preference, as disclosed on the candidate's most recent statement of registration, or that they had "No Party Preference," or designated that preference spot on the ballot be left blank. Cal. Elec.Code § 13105(a).
As Secretary of State, defendant Debra Bowen interpreted the term "political party" in this section to mean only a "qualified party" under Cal. Elec.Code § 5100. That section imposes certain requirements before a group may become a "qualified party."
SB 6 also prohibits voters from casting write-in votes in the general election. However, voters may cast write-in votes in the primary election. Cal. Elec.Code § 8605 further states:
Because only the two candidates with the highest number of votes in the primary
Chamness sought to run for office in the primary election and wished to have the ballot state, in the party preference space, "Independent."
Frederick sought to run as a write-in candidate in the general election for Assembly District 4, but under SB 6 could not do so. Wilson, who is registered to vote in Assembly District 4, cast a write-in vote for Frederick in the election. Election officials did not count Wilson's vote for Frederick.
Galacki attempted to run as a write-in candidate in the July 12, 2011, general election for Congressional District 36. He was not permitted to do so. When Galacki sought write-in registration papers, Los Angeles County Registrar Dean Logan explained to Galacki that SB 6 bans write-in candidacies in the general election. Galacki thereafter attempted to cast a write-in vote for himself in the general election by mailing his ballot to Logan's office. Logan did not count the vote.
Chamness filed suit on February 17, 2011, seeking a preliminary injunction to enjoin the implementation of SB 6 in the special congressional election in which he wished to participate.
On March 1, 2011, intervenors-defendants, Abel Maldonado, California Independent Voter Project (CIVP), and Californians to Defend the Open Primary (CDOP), filed a motion to intervene. The trial court granted the motion.
On March 30, 2011, the trial court denied Chamness' motion for a preliminary injunction. Chamness filed a motion for an expedited appeal, which this court denied. Chamness thereafter voluntarily dismissed that appeal.
On May 6, 2011, plaintiffs filed a motion for summary judgment. On July 12, 2011, the general election occurred. Frederick was not on the ballot, and Wilson's vote for Frederick was not counted. Galacki did not appear on the ballot, and his vote for himself was not counted.
On July 14, 2011, the trial court denied Chamness' motion for summary judgment, and sua sponte tentatively granted defendants summary judgment. Also on July 14, 2011, Galacki filed a motion to intervene. In his motion, he alleged SB 6 violated his First and Fourteenth Amendment rights by barring him from running as a write-in candidate. He also stated it violated his rights under the Elections Clause by prohibiting Logan from counting Galacki's write-in vote for himself. Finally, he alleged SB 6 impermissibly forced him to state that he has "No Party Preference," when, in fact, he wished to run as a Tea Party Candidate.
Galacki also stated he would assert two unique Elections Clause claims: first, his right to run for federal office as a write-in candidate; second, his right to cast a ballot as a write-in candidate and have it counted. Galacki stated that "[b]ecause [he] is entitled to intervene, the Court may incorporate by reference his as-applied constitutional claims (stemming from the July
The trial court denied Galacki's motion to intervene for two reasons. First, it stated Galacki failed timely to file the motion; and second, it stated that plaintiffs would adequately represent Galacki's rights.
On August 23, 2011, the trial court formally granted defendants summary judgment. Chamness, Frederick, and Wilson appeal the trial court's order granting defendants summary judgment (Case No. 11-56449). Galacki appeals the trial court's order denying his motion to intervene (Case No. 11-56303).
II. Jurisdiction and Mootness
This court has jurisdiction over this appeal as it arises from the trial court's final orders granting summary judgment to defendants and denying Galacki's motion to intervene. 28 U.S.C. § 1291; Citizens for Balanced Use v. Montana Wilderness Ass'n, 647 F.3d 893, 896 (9th Cir.2011) (this court has "jurisdiction over the denial of a motion to intervene as of right as a final appealable order ..."); Rubin v. City of Santa Monica, 308 F.3d 1008, 1013 (9th Cir.2002).
Chamness' case is not moot because his claims are "`capable of repetition, yet evading review.'" Rubin, 308 F.3d at 1013 (quoting Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir.2000)). Chamness' claim is capable of repetition because future election administrators would deny him the ability to use the designation "Independent" on the primary ballot. See id. As this court has previously noted, "[i]f [election law] cases were rendered moot by the occurrence of an election, many constitutionally suspect laws ... could never reach appellate review." Id. (internal quotation marks omitted) (alterations in original). We therefore exercise jurisdiction over this appeal. See id.
Frederick's and Wilson's appeal is, however, moot. They base their appeal on the proposition that California law impermissibly allows voters to cast write-in votes in top-two general elections, but then prohibits those ballots from being counted. Whether or not that was so at the time the district court decided the case, see Field v. Bowen, 199 Cal.App.4th 346, 350, 131 Cal.Rptr.3d 721 (2011), it is not so now.
California's Elections Code has been amended to clarify that voters are not permitted to cast write-in ballots in top-two general elections. See Cal. Elec. Code § 8606 (2012) ("Notwithstanding any other provision of law, a person may not be a write-in candidate at the general election for a voter-nominated office"); id. § 15340 ("Except for a voter-nominated office at a general election, each voter is entitled to write on the ballot the name of any candidate for any public office, including that of President and Vice President of the United States." (emphasis added)). Plaintiffs concede that the state may prohibit write-in votes from being cast in a general election. See Burdick v. Takushi, 504 U.S. 428, 441-42, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).
Because Frederick and Wilson seek only declaratory relief affecting future elections, their appeal is moot.
III. Discussion of the Issues
A. Case No. 11-56449
Chamness argues the state violated his First Amendment rights by prohibiting him from using the ballot label "Independent" and forcing him to choose between a preferred party designation, "No Party Preference," or a blank space on that part of the ballot.
This court reviews the constitutionality of a statute de novo. Rubin, 308 F.3d at 1008.
"Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections." Dudum v. Arntz, 640 F.3d 1098, 1103 (9th Cir.2011) (quoting Burdick, 504 U.S. at 433, 112 S.Ct. 2059). Any "election system, `whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects — at least to some degree — the individual's right to vote.'" Id. at 1106 (quoting Burdick, 504 U.S. at 433, 112 S.Ct. 2059). Therefore, "the Supreme Court developed a balancing test to resolve the tension between a candidate's First Amendment rights and the state's interest in preserving the fairness and integrity of the voting process." Rubin, 308 F.3d at 1014. This court reiterated the appropriate test:
Id. (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (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. Id. (quoting Burdick, 504 U.S. at 434, 112 S.Ct. 2059). Nondiscriminatory restrictions that impose a lesser burden on speech rights need only be reasonably related to achieving the state's "`important regulatory interests.'" Id. (quoting Burdick, 504 U.S. at 434, 112 S.Ct. 2059). This court has noted that "voting regulations are rarely subject to strict scrutiny." Dudum, 640 F.3d at 1106 (citing Lemons v. Bradbury, 538 F.3d 1098, 1104 (9th Cir. 2008)).
A regulation imposes a severe speech restriction if it "significantly impair[s] access to the ballot, stifle[s] core political speech, or dictate[s] electoral outcomes." Rubin, 308 F.3d at 1015. A regulation
In Timmons, the Supreme Court upheld a law banning a candidate from appearing on the ballot with more than one political party designation. 520 U.S. at 369-70, 117 S.Ct. 1364. The Court held the burden imposed was a minor one, id. at 359, 117 S.Ct. 1364, and therefore rejected the political "party's contention that it has a right to use the ballot itself to send a particularized message ... to the voters[ ] about the nature of its support for the candidate. Ballots serve primarily to elect candidates, not as forums for political expression." Id. at 363, 117 S.Ct. 1364.
The Court held the state had a "strong interest in the stability of [its] political system." Id. at 366, 117 S.Ct. 1364. Although such an interest does not allow the state to insulate political parties from minor parties' or independent competition, the "interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two-party system." Id. at 367, 117 S.Ct. 1364. The Court thus concluded that "the burdens [the law] impose[d] on [the party's] associational rights are justified by `correspondingly weighty' valid state interests in ballot integrity and political stability." Id. at 369-70, 117 S.Ct. 1364.
In Rubin, applying the Timmons analysis, this court held that a city could preclude a candidate from designating on the ballot, as his occupation, that he was a "peace activist." 308 F.3d at 1015-17. The law prohibited any candidate from naming a "status" as his occupation. Id. This court held that the city's "prohibition of status designations such as `activist' does not severely burden a candidate's First Amendment rights." Id. The court noted the regulation is viewpoint neutral — it bans any type of "status" regardless of the message it seeks to convey. Id. Additionally, it did not hinder core political speech by preventing the candidate from "supporting or discussing" peace activism during his candidacy; it merely placed a limit on how his occupation would appear on the ballot. Id. Finally, the city provided him an alternative way to express his views through a candidate's statement distributed prior to the election. Id. at 1016. Under all of the circumstances, the law did not severely burden the candidate's speech rights. Id.
Chamness has likewise failed to show that the statute challenged in this case severely burdened his First Amendment rights. Chamness seeks to use the ballot to promote his political message. However, unlike the candidate in Timmons, Chamness cannot identify the specific message he wishes to convey or explain how that message is hindered. The law prohibits Chamness from designating himself as "Independent," and requires him to state he has "No Party Preference." Yet, Chamness has failed to demonstrate any real difference between the two locutions.
The only possible difference between the two phrases that has been suggested is that "Independent" may evoke a positive view — that the candidate affirmatively rejects the politics of the other parties. "No Party Preference" might, on the other hand, evoke a neutral or even negative view — that the candidate is apathetic to the views of the other parties; i.e., while he does not identify with them, he does not reject them. Chamness, however, failed to
The fact that the regulation in this case is viewpoint neutral as to the required term "No Party Preference" supports the conclusion that it imposes only a slight burden on speech. See Rubin, 308 F.3d at 1015. The restriction does not allow any candidates to term themselves "Independents" and does allow all candidates to put themselves forward on the primary ballot and gather votes. That candidates not identified on the ballot as preferring a particular party must use the term "No Party Preference" or leave the space blank rather than designating themselves as an "Independent" has no viewpoint implications, and so, for that reason as well, imposes a "[l]esser burden[ ]" on speech.
Such slight speech burdens may be justified by the "State's `important regulatory interests,'" Timmons, 520 U.S. at 358, 117 S.Ct. 1364 (quoting Burdick, 504 U.S. at 434, 112 S.Ct. 2059), including "prevent[ing] misrepresentation and electoral confusion," Norman v. Reed, 502 U.S. 279, 290, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992). Here, there is such an interest in preventing confusion. The term "Independent," if listed next to a candidate's name on a ballot, might be confused with the name of a political party, such as the "American Independent" party — one of California's "qualified" political parties.
The state also has an important interest in managing its ballots. Timmons, 520 U.S. at 365, 117 S.Ct. 1364. If the state were to allow Chamness to use the term "Independent," various candidates could then seek to place other designations on the ballot in lieu of a party preference. Those self-designations might, for example,
We therefore hold that the law in this case represents a reasonable, nondiscriminatory restriction that imposes a slight burden on speech and is sufficiently supported by the state's important regulatory interests.
In arguing for strict-scrutiny review, Chamness relies heavily on Rosen v. Brown, 970 F.2d 169 (6th Cir.1992). In Rosen, the Sixth Circuit invalidated an Ohio law that allowed Democratic and Republican candidates to state their party on the ballot, but prohibited the political party designation "Independent." Ohio uses an election system similar in all relevant aspects to the former California system. Id. at 171-72, 174. Rosen was not affiliated with a political party, and secured a place on the general election ballot by petition. Id. at 171-72. The Ohio Secretary of State refused to allow Rosen to designate himself as "Independent" on the ballot, in compliance with an Ohio statute. Id. While the other candidates would have either "Democrat" or "Republican" next to their names, Rosen would have no designation by his. Id.
The district court issued a preliminary injunction requiring that Rosen be identified as "Independent by Petition" on the ballot. Id. The district court later granted summary judgment to Rosen on the merits of his claim, and the Sixth Circuit affirmed. Id. at 172.
The Sixth Circuit noted that Rosen provided ample evidence that the distinction between the label "Independent" and no label at all severely prejudiced him at the polls. Id. at 173-74. One expert testified:
Id. at 172.
Another expert stated:
The final expert stated "that Ohio's ballot scheme is the equivalent of putting an unlabeled product on a shelf next to brand name products in a supermarket. Similarly, the absence of a label for a candidate gives rise to mistrust and negative inferences." Id. at 172-73.
The Sixth Circuit struck down the Ohio law as an unconstitutional restriction on independent candidates' First Amendment rights. Id. at 178. The court noted Rosen
Rosen is not in conflict with our holding in this case, for two reasons. First, as discussed above, Chamness failed to present in the district court any evidence to support his claim that there is a difference between "Independent" and "No Party Preference." Nor are the facts of this case sufficiently similar to those in Rosen to allow Chamness to rely on the studies presented in that case. That case involved the distinction, supported by expert testimony establishing its prejudicial impact, between "Independent" and no designation at all, when pitted against "Republican" or "Democrat." By contrast, this case involves an asserted, but unsupported, distinction in likely impact between "Independent" on the one hand, and "No Party Preference," when pitted against other "preference" designations for California's six qualified parties.
The Rosen court also stated that the law in that case seemed to be "nothing more than a deliberate attempt by the State to protect and guarantee the success of the Democratic and Republican parties." 970 F.2d at 176. There does not appear to be any legitimate argument that the law in this case seeks to insulate any political party or parties from competition. Indeed, the law does not even allow a political party to affirmatively endorse a candidate on the ballot or allow a candidate to affirmatively state that a political party endorses him; rather, he may only state that he prefers a party. In other words, unlike the Ohio statute in Rosen, the California open primary system permits no "brand names," as the references to political parties are only individual candidates' preferences, not endorsements by political parties indicating that the party has reviewed a candidate's qualifications or positions.
Additionally, under the California system, multiple candidates may state they prefer the same political party, weakening any argument that the law seeks to guarantee the success of certain political parties. To the contrary, when multiple candidates state they prefer a single political party, the voters cannot know from the ballot which candidate, if any, the party actually endorses. Allowing multiple candidates to state they prefer a single political party, in addition, may dilute the party's support among those candidates. Given these considerations, an otherwise well-supported candidate with "No Party Preference" could, at least theoretically, benefit from the statutory scheme. Rosen does not, therefore, dictate a contrary outcome to the one we reach in this case.
Chamness' claim that the law violates the Election Clause under Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001), also fails. In that case, a state constitutional amendment instructed members of the state's legislature to support term limits for members of the U.S. Congress. Id. at 514-15, 121 S.Ct. 1029. Those who did not had the words "DISREGARDED VOTER'S INSTRUCTIONS ON TERM LIMITS" printed next to their name on the ballot in a subsequent election. Id. The label thus forced candidates to appear on the ballot next to a derogatory
The law in this case does not, like the one in Cook, promote a specific class of candidates who took certain action. It is not pejorative or slanted toward a particular viewpoint. See Bowen, 199 Cal.App.4th at 363, 131 Cal.Rptr.3d 721. In Rubin, this court acknowledged as much when it stated the constitutional provision "stands in stark contrast" to the law in that case. 308 F.3d at 1015-16. Because SB 6 does not dictate political outcomes or invidiously discriminate against a class of candidates, it is not analogous to the statute invalidated in Cook.
B. Case No. 11-56303
Galacki argues the trial court erred in denying his motion to intervene. We disagree.
This court "review[s] the denial of a motion to intervene as of right de novo, with the exception of the timeliness prong, which we review for abuse of discretion." Citizens for Balanced Use, 647 F.3d at 896.
The Ninth Circuit requires an applicant for intervention as of right under Fed. R.Civ.P. 24(a)(2) to demonstrate that
United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir.2004) (quoting United States v. City of Los Angeles, 288 F.3d 391, 397 (9th Cir.2002)). "Each of these four requirements must be satisfied to support a right to intervene." Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003). While "Rule 24 traditionally receives liberal construction in favor of applicants for intervention[,]" id., it is incumbent on "[t]he party seeking to intervene [to show] that all the requirements for intervention have been met." Alisal, 370 F.3d at 919.
The third requirement is dispositive here. "In analyzing timeliness, we focus on the date the person attempting to intervene should have been aware his interest[s] would no longer be protected adequately by the parties, rather than the date the person learned of the litigation." Bates v. Jones, 127 F.3d 870, 873 (9th Cir.1997) (internal quotation marks omitted) (alteration in original).
The trial court did not abuse its discretion in deciding Galacki failed to file a timely motion to intervene. As the court noted, Galacki knew of the law he wished to challenge, and the effects it would have, well before the time he filed his motion. As Galacki acknowledges in his brief, he requested write-in nomination papers on June 14, 2011, and the statutory deadline to file write-in nomination papers for the election passed on June 28, 2011. At that time, at the very latest, he became aware he would not be allowed to run as a write-in candidate. However, he waited until July 14, 2011, to file his motion, by which time (1) the parties had submitted a joint case management report to the district
For the foregoing reasons, we affirm the trial court's order granting defendants summary judgment and denying Galacki's motion to intervene.
Cal. Elec.Code § 5100.
In any event, Chamness does not contend that "Independent" is a political party, nor does he challenge California's limitation of appearances on the ballot to "qualified" parties. See supra note 2. We therefore express no views as to the validity of California's restriction against stating preferences for non-qualified parties.