Chula Vista Citizens for Jobs & Fair Competition v. Norris

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHULA VISTA CITIZENS FOR JOBS No. 12-55726

AND FAIR COMPETITION; LORI

KNEEBONE; LARRY BREITFELDER; D.C. No.

ASSOCIATED BUILDERS AND 3:09-cv-00897-

CONTRACTORS OF SAN DIEGO, INC., BEN-JMA

Plaintiffs-Appellants,

v. OPINION

DONNA NORRIS; MAYOR CHERYL

COX; PAMELA BENSOUSSAN; STEVE

CASTANEDA; JOHN MCCANN, in his

official capacity as Member of the

Chula Vista City Council; RUDY

RAMIREZ, JR., in his official

Capacity as Member of the Chula

Vista City Council,

Defendants-Appellees,

STATE OF CALIFORNIA,

Intervenor-Defendant–Appellee.

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

November 6, 2013—Pasadena, California

2 CHULA VISTA CITIZENS V. NORRIS

Filed June 16, 2014

Before: Diarmuid F. O’Scannlain, Susan P. Graber,

and Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain, in which Judge Graber

joins, except as to Part IV, and in which Judge Bea joins,

except as to Part III. Judge Graber filed an opinion

dissenting as to Part IV. Judge Bea filed an opinion

concurring as to Part III.

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment and remanded in an action

brought by two associations and two individuals alleging that

certain provisions of the California Elections Code pertaining

to initiatives and referenda, as incorporated into the Chula

Vista, California Charter, violated the First Amendment.

Plaintiffs challenged the state and local requirements that:

(1) official proponents of local ballot initiatives be electors,

which excludes non-natural persons and thereby excludes

associations; and (2) official initiative proponents identify

themselves on the face of the initiative petitions.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CHULA VISTA CITIZENS V. NORRIS 3

The panel first determined that as to the challenge to the

elector requirement, abstention under Railroad Commission

v. Pullman Co., 312 U.S. 496 (1941), was not warranted

because the challenge implicated the chilling of expression

and the parties had not indicated that there were any pending

actions in the California courts.

Affirming the district court’s summary judgment to the

defendants on the elector requirement, the panel held that

associations do not have a First Amendment right to serve as

official proponents of local ballot initiatives.

Reversing the district court’s summary judgment to the

defendants as to the petition-proponent disclosure

requirement, the panel held that the requirement did not

satisfy exacting scrutiny and therefore §§ 9202 and 9207 of

the California Elections Code were invalid to the extent that

the provisions require official initiative proponents to identify

themselves on the face of initiative petitions.

Concurring in part and dissenting in part, Judge Graber

agreed with the majority opinion that the case was properly

before the court, and concurred in Part III of the opinion,

which held that the elector requirement passed constitutional

muster. She wrote separately to dissent from Part IV of the

opinion and stated that the petition-proponent disclosure

requirement survived any level of review.

Concurring, Judge Bea joined all of the majority opinion

except for Section III, which analyzed the local and state

requirements that official ballot initiative proponents be

electors, thereby excluding associations. Judge Bea wrote

that although he concurred in the result of Section III, he

believed that the majority opinion employed an incorrect test

4 CHULA VISTA CITIZENS V. NORRIS

to determine whether the elector requirement burdened any

First Amendment rights.

COUNSEL

James Bopp, Jr., The Bopp Law Firm, PC, Terre Haute, IN,

argued the cause for the Plaintiff-Appellant. Richard E.

Coleson, The Bopp Law Firm, PC, Terre Haute, IN, filed the

briefs for the plaintiff-appellant. With him on the briefs were

James Bopp, Jr., The Bopp Law Firm, PC, Terre Haute, IN;

Charles H. Bell, Jr., and Brian T. Hildreth, Bell, McAndrews

& Hiltachk, LLP, Sacramento, CA; and Gary D. Leasure,

Workman Leasure, LLP, San Diego, CA.

Charles A. Bird, McKenna Long & Aldridge, LLP, San

Diego, CA, argued the cause and filed a brief for the

Defendant-Appellee.

George Waters, Deputy Attorney General of California,

Sacramento, CA, argued the cause and filed a brief for the

Defendant-Intervenor–Appellee. With him on the brief were

Kamala D. Harris, Attorney General of California; Douglas

J. Woods, Senior Assistant Attorney General; and Peter A.

Krause, Supervising Deputy Assistant Attorney General,

Sacramento, CA.

CHULA VISTA CITIZENS V. NORRIS 5

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether associations have a First

Amendment right to serve as official proponents of local

ballot initiatives and the extent to which the same

Amendment protects the anonymity of initiative proponents.

I

A

This case arises from a political battle concerning labor

unions. Chula Vista Citizens for Jobs and Fair Competition

(“Chula Vista Citizens”), an unincorporated association, and

Associated Builders and Contractors of San Diego, Inc., an

incorporated association of construction-related businesses

(“the Associations”), sought to place an initiative on the

Chula Vista municipal ballot. As described by the title of the

initiative, the proposed measure “mandat[ed] that the City or

Redevelopment Agency not fund or contract for public works

projects where there [was] a requirement to use only union

employees.” The City of Chula Vista requires that initiative

proponents be electors (“the elector requirement”), which

excludes non-natural persons from serving as official

proponents. Faced with this obstacle, Chula Vista Citizens

asked two of its members, Lori Kneebone and Larry

Breitfelder, to serve as proponents in place of the

Associations. They agreed.

Section 903 of the Chula Vista Charter incorporates the

provisions of the California Elections Code that govern

initiatives and referenda “so far as such provisions of the

6 CHULA VISTA CITIZENS V. NORRIS

Election Code are not in conflict with [the] Charter.” The

code establishes several requirements that official proponents

must meet to qualify an initiative. First, proponents must file

a notice of intent to circulate an initiative petition for

signatures, and such notice must be signed by at least one but

not more than three proponents. Cal. Elec. Code § 9202(a)

(the “notice-filing requirement”). Defendant Donna Norris,

as the City Clerk, receives and processes these filings.

Proponents must include the written text of the initiative and

may include a 500-word statement of “reasons for the

proposed petition.” Id. The City Attorney then provides a

title and summary of the measure to the proponents. Id.

§ 9203.

Because the City has a newspaper of general circulation,

the proponents must publish the notice of intent, title, and

summary in such newspaper and submit proof of publication

to the City Clerk. Id. § 9205(a) (the “publication

requirement”).1 Only at that point can the proponents begin

circulating their petition for signatures. Id. § 9207.

The initiative petition is typically divided into “sections”

to facilitate gathering signatures. See id. § 9201. Each

section of the petition must “bear a copy of the notice of

intention and the title and summary prepared by the city

attorney.” Id. § 9207. Because § 9202(a) requires

proponents to sign the notice, the effect of § 9207 is that the

identities of official proponents are disclosed to would-be

signatories of the petition (the “petition-proponent disclosure

requirement”). Proponents have 180 days to file the signed

1

Where no such newspaper exists for either the city or the county, the

same information must be posted at three designated public places in the

city. Cal. Elec. Code § 9205(b).

CHULA VISTA CITIZENS V. NORRIS 7

petitions with the City Clerk bearing the requisite number of

signatures. Id. § 9208. The City Clerk informs the

proponents whether they have gathered enough valid

signatures to qualify the initiative for the ballot. Whether the

initiative appears on the ballot or immediately becomes law

depends on the number of signatures gathered and the actions

taken by the City Council.

Kneebone and Breitfelder made two attempts to qualify

the initiative for the ballot. The first attempt (“First Petition”)

began on August 28, 2008, with the filing of the notice of

intent. Kneebone and Breitfelder later submitted 23,285

signatures to Norris after having complied with all the

requirements except one: They had not included their names

on the notice that appeared on the circulated petitions.

Instead, as Kneebone and Breitfelder later informed Norris,

they printed the following statement at the end of each

circulated petition: “Paid for by Chula Vista Citizens for Jobs

and Fair Competition, major funding by Associated Builders

& Contractors PAC and Associated General Contractors PAC

to promote fair competition.” On November 12, 2008, Norris

rejected the First Petition for failure to include the

proponents’ signatures on the notice accompanying the

circulated petitions.

The Associations again asked Kneebone and Breitfelder

to serve as proponents, which the pair again agreed to do.

The second attempt (“Second Petition”) began with the notice

filing on March 13, 2009. It complied with all

requirements—including the requirement that circulated

petitions bear the proponents’ signatures—appeared on the

June 8, 2010 municipal election ballot, and was approved by

voters.

8 CHULA VISTA CITIZENS V. NORRIS

B

On April 28, 2009, after Norris rejected their First

Petition but before qualifying the Second Petition, the

plaintiffs brought this 42 U.S.C. § 1983 suit in the Southern

District of California seeking declaratory and injunctive

relief. The complaint alleged that the elector and petition-

proponent disclosure requirements, both facially and as

applied, violate the First Amendment. On June 4, the

plaintiffs moved for a preliminary injunction and for an

expedited hearing. Because provisions of the state election

code were at issue, the State of California intervened as a

defendant.

The district court held a hearing on the preliminary

injunction motion on August 19. The next day, it ordered

supplemental briefing as to whether the Elections Code did,

in fact, require that official proponents be natural persons.

On March 8, 2010, the district court denied the preliminary

injunction motion as moot in light of the success of the

Second Petition, and it stayed consideration of the § 1983 suit

pending the Supreme Court’s decision in Doe v. Reed,

561 U.S. 186 (2010). When the district court lifted the stay,

both sides filed motions for summary judgment. The district

court granted summary judgment to Norris and her co-

defendants on March 22, 2010. It entered its judgment on

April 10, and plaintiffs timely appealed.

II

We must first determine whether the dispute over the

elector requirement is properly before us. The parties

disagree about whether the elector requirement is mandated

by state law, municipal law, or the City’s interpretation of

CHULA VISTA CITIZENS V. NORRIS 9

either body of law. Relying on the Supreme Court’s decision

in Railroad Commission v. Pullman Co., 312 U.S. 496

(1941), Norris urges us to abstain from deciding the merits of

this case if doing so would require us to resolve a contested

issue of state law.

“[W]hen a federal constitutional claim is premised on an

unsettled question of state law, the federal court should stay

its hand in order to provide the state courts an opportunity to

settle the underlying state-law question and thus avoid the

possibility of unnecessarily deciding a constitutional

question.” Harris Cnty. Comm’rs Court v. Moore, 420 U.S.

77, 83 (1975). Pullman abstention counsels against deciding

unnecessary federal constitutional questions, but it is also

premised on “avoid[ing] federal-court error in deciding state-

law questions antecedent to federal constitutional issues.”

See Arizonans for Official English v. Arizona, 520 U.S. 43, 76

(1997). Because abstention “does not implicate [federal

courts’] subject matter jurisdiction,” we are “never required

to apply Pullman.” Columbia Basin Apartment Ass’n v. City

of Pasco, 268 F.3d 791, 802 (9th Cir. 2001). “Abstention is,

of course, the exception and not the rule, and [the Supreme

Court has] been particularly reluctant to abstain in cases

involving facial challenges based on the First Amendment.”

City of Houston v. Hill, 482 U.S. 451, 467 (1987) (internal

citation omitted).

We consider three factors when deciding whether

Pullman abstention is appropriate: “(1) there are sensitive

issues of social policy upon which the federal courts ought

not to enter unless no alternative to its adjudication is open,

(2) constitutional adjudication could be avoided by a state

ruling, and (3) resolution of the state law issue is uncertain.”

10 CHULA VISTA CITIZENS V. NORRIS

Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th Cir. 2010)

(internal quotation marks omitted).

The Supreme Court has held that abstention in the First

Amendment context is disfavored because “the delay of

state-court proceedings might itself effect the impermissible

chilling of the very constitutional right [the plaintiff] seeks to

protect.” Hill, 482 U.S. at 467–68 (internal quotation marks

omitted). Our court has been particularly loath to abstain in

First Amendment cases: “We have held that, in First

Amendment cases, the first Pullman factor will almost never

be present because the guarantee of free expression is always

an area of particular federal concern.” Porter v. Jones,

319 F.3d 483, 492 (9th Cir. 2003) (internal quotation marks

omitted). This concern “applies to both facial and as-applied

challenges.” Id. at 493. In fact, we have abstained only once

in a First Amendment context, and that case had an “unusual

procedural setting” because the “issue in question was already

before the state supreme court.” Id. at 493–94. In every

other procedural setting, we have rejected abstention.

The challenge to the elector requirement implicates the

chilling of expression. Hill, 482 U.S. at 467–68. Indeed, if

the elector requirement is unconstitutional, the Associations

are being completely deprived of a constitutional right.

Moreover, the parties have not indicated that there are any

pending actions in the California courts. Porter, 319 F.3d at

492. In this context, the first Pullman factor is not met, and

abstention is not warranted. Id. The merits are thus before

us.2

2

Despite the successful qualification and passage of the initiative

advocated by the plaintiffs, this case is not moot because it is “capable of

repetition, yet evading review.” Fed. Election Comm’n v. Wis. Right to

CHULA VISTA CITIZENS V. NORRIS 11

III

The First Amendment provides, “Congress shall make no

law . . . abridging the freedom of speech, or of the press; or

the right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.” U.S. Const.

amend. I. By virtue of the Fourteenth Amendment, the First

Amendment applies to actions by state governments.

Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947). The

Associations contend that the elector requirement abridges

the rights of speech, association, and petition. They further

argue that strict scrutiny applies to the elector requirement

and results in its invalidity. We begin with the threshold

issue of whether the elector requirement implicates the First

Amendment.

A

Although the Associations allege violations of speech,

associational, and petition rights, our analysis will focus on

the freedom of speech. The Associations mention their

petition claim, but they provide no legal authority to support

it. “A passing reference to an issue in a brief is not enough,

and the failure to make arguments and cite authorities in

support of an issue waives it.” Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012);

Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993).

Thus, we do not address the Associations’ petition claim.

The Associations also allege that the elector requirement

is an unconstitutional condition on their right to associate for

Life, Inc., 551 U.S. 449, 462 (2007); see also Davis v. Fed. Election

Comm’n, 554 U.S. 724, 735 (2008).

12 CHULA VISTA CITIZENS V. NORRIS

purposes of political expression. See Speiser v. Randall,

357 U.S. 513, 520–29 (1958). In the First Amendment

context, the right to associate is not a free-standing right;

rather, one has the right to associate for the purpose of

engaging in activities protected by the First Amendment. Boy

Scouts of Am. v. Dale, 530 U.S. 640, 647–48 (2000); Roberts

v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984). The

Associations claim that serving as an official proponent is

protected by the Free Speech Clause, and thus that they have

a right to associate for the purpose of serving as official

proponents. Thus, if serving as an official proponent is not an

aspect of free speech, the condition imposed by the elector

requirement does not violate the associational rights of the

First Amendment. See Dale, 530 U.S. at 648 (“To determine

whether a group is protected by the First Amendment’s

expressive associational right, we must determine whether the

group engages in ‘expressive association.’”); City of Dallas

v. Stanglin, 490 U.S. 19, 25 (1989) (holding that, where the

First Amendment does not protect a certain activity, there can

be no First Amendment right of association to engage in that

activity). Because the Associations’ claim regarding freedom

of association depends on the success of their Free Speech

claim, we focus on the latter claim.

The question, then, is whether the elector requirement is

a law “abridging the freedom of speech.” U.S. Const.

amend. I.

B

To know whether the elector requirement abridges the

freedom of speech, it is important to identify precisely what

sort of infringement the requirement allegedly commits. The

CHULA VISTA CITIZENS V. NORRIS 13

Associations list several activities performed by official

proponents that they contend are protected speech:

[B]eing a proponent involves core political

activity beyond ministerial acts of signing and

filing things. A “proponent” begins with an

idea about an issue, creates the text of an

initiative to implement that idea, does the

necessary publication of notices to qualify it,

circulates petitions and/or arranges with

others to do so, and advocates for the

initiative.

The Associations’ listing of these ostensibly expressive

activities implies that associations are prohibited from

engaging in them. But the Associations’ actions in this case

belies that implication. As stated in their complaint, the

Associations “decided to propose the Initiative.” “Chula

Vista Citizens filed its required Clerk’s Version” of the

initiative text, just as “Chula Vista Citizens published the

Newspaper Version,” for which “[n]either Ms. Kneebone nor

Mr. Breitfelder paid any money.” “Chula Vista Citizens

hired The La Jolla Group to circulate the Petition in the City,”

and, as the district court pointed out, the Associations were

free to advocate for the initiative’s qualification and

enactment. In short, the Associations were able to participate

in all of the activities they mention.

However, the Associations were dependent on Kneebone

and Breitfelder as official proponents in order to engage in

these activities. That is the gravamen of their alleged injury.

The Associations believe the elector requirement violates the

Free Speech Clause because, in their words, “speech-by-

proxy is not a constitutionally permissible alternative because

14 CHULA VISTA CITIZENS V. NORRIS

it does not allow associations themselves to speak.” The

Associations would rather have the legal authority to engage

in these activities without relying on natural persons to serve

as proxies, and that requires them to be official proponents.

What the Associations seek, then, is the legal authority

attaching to the status of an official proponent,3 and this

amounts to a claim that serving as an official proponent is a

form of “speech” protected by the First Amendment.

C

We must next determine the nature of the legal authority

of official proponents. The Associations do not dispute that

the initiative power is a legislative power. And rightly so. As

the California Supreme Court has said, the initiative process

“represents an exercise by the people of their reserved power

to legislate.” Builders Ass’n of Santa Clara-Santa Cruz

Cntys. v. Superior Court, 529 P.2d 582, 586 (Cal. 1974).4

3

The mere fact that the Associations have to rely on proxies to

participate in these activities is insufficient, by itself, to violate the Free

Speech Clause. If serving as an official proponent is not part of the

freedom of speech, then it does not matter, for First Amendment purposes,

that the Associations must rely on proxies who can serve as official

proponents. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310,

337–40 (2010).

4

In determining whether the authority of official proponents is

legislative in nature, our inquiry is two-fold: (1) what powers, duties, and

responsibilities are delegated to official proponents, and (2) whether those

powers, duties, and responsibilities are legislative in character for First

Amendment purposes? California law, and the state courts’ interpretation

of California law, is dispositive as to the first question, but the second

question—which determines whether the First Amendment is implicated

by the elector requirement—is up to federal courts to decide.

CHULA VISTA CITIZENS V. NORRIS 15

Norris argues that the distinct role of proponents is to

introduce legislation: “[T]he legal acts of a Proponent are acts

of legislating, exercising the inherent, reserved power of

citizens to legislate for the entity in which they reside.”

Under this theory, because the initiative process is a

lawmaking one, the activities that commence that process are

analogous to the introduction of legislation. At least two

California appellate courts support this description of the

initiative process. San Francisco Forty-Niners v. Nishioka

said the following:

The initiative petition with its notice of

intention is not a handbill or campaign flyer—

it is an official election document subject to

various restrictions by the Elections Code,

including reasonable content requirements of

truth. It is the constitutionally and

Our two-step analysis is no different than what we do in myriad areas

of constitutional law. See, e.g., Memphis Light, Gas & Water Div. v.

Craft, 436 U.S. 1, 9 (1978) (“The Fourteenth Amendment places

procedural constraints on the actions of government that work a

deprivation of interests enjoying the stature of ‘property’ within the

meaning of the Due Process Clause. Although the underlying substantive

interest is created by an independent source such as state law, federal

constitutional law determines whether that interest rises to the level of a

legitimate claim of entitlement protected by the Due Process Clause.”

(internal quotation marks omitted)); see also Town of Castle Rock v.

Gonzales, 545 U.S. 748, 756–57 (2005) (same). This method of analysis

is all the more important when federal courts seek to analyze the structure

of state government, implicating bedrock principles of federalism and state

sovereignty. See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71

(1978) (“Government . . . is the science of experiment, and a State is

afforded wide leeway when experimenting with the appropriate allocation

of state legislative power.” (internal quotation marks and citation

omitted)).

16 CHULA VISTA CITIZENS V. NORRIS

legislatively sanctioned method by which an

election is obtained on a given initiative

proposal.

89 Cal. Rptr. 2d 388, 396 (Ct. App. 1999). Widders v.

Furchtenicht stated that the legislative process begins once a

petition is circulated for signatures: “An initiative is put

before the people when they are asked to sign a petition to

place it on the ballot . . . .” 84 Cal. Rptr. 3d 428, 438 (Ct.

App. 2008) (internal quotation marks and citation omitted).

If the activities involved in qualifying an initiative for the

ballot start the legislative process, then official proponents

exercise part of the legislative power.

The Associations resist this characterization. They

distinguish between placing an initiative on the ballot (which

they concede is a legislative function) and asking electors to

place an initiative on the ballot (which they contend is a non-

legislative act). At oral argument, the Associations

analogized initiative proponents to lobbyists: The official

proponents come to the legislators (i.e., the electors) with a

proposal and ask the legislators to introduce a bill (i.e., sign

the petition to place the initiative on the ballot).

The problem with the Associations’ proffered distinction

is that the incidental role the Associations assign to official

proponents is inconsistent with the responsibilities conferred

on official proponents by the California Elections Code. As

the California Supreme Court has said, “[O]fficial 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.” Perry v. Brown,

265 P.3d 1002, 1017–18 (Cal. 2011). Official proponents

determine when the process will begin by filing the relevant

CHULA VISTA CITIZENS V. NORRIS 17

documents, Cal. Elec. Code § 9202(a), craft the text of the

initiative that will be put before the people, id., ensure that

the people know that the initiative process has commenced,

id. § 9205(a)–(b), and exercise a measure of control over the

arguments in favor of the initiative to which the people will

be exposed, id. § 9287. Thus, the California Elections Code

“place[s] an obligation upon the official proponents of an

initiative measure to manage and supervise the process by

which signatures for the initiative petition are obtained.”

Perry, 265 P.3d at 1017. If public officials refuse to defend

a successful initiative in court, official proponents may

“intervene or [] participate as real parties in interest in a

judicial proceeding to assert the state’s interest in the

initiative’s validity and to appeal a judgment invalidating the

measure.” Id. at 1025. But see Hollingsworth v. Perry,

133 S. Ct. 2652, 2663–67 (2013) (holding that official

proponents of California’s Proposition 8 lacked Article III

standing in federal court). These rights and responsibilities

are hardly consistent with the Associations’ minimalist

characterization of official proponents.

Perhaps most tellingly, unlike a lobbyist’s suggestion to

a legislator, qualifying an initiative for the ballot is a

necessary step for the people to exercise the initiative power.

See Cal. Elec. Code § 9200 (authorizing municipal initiatives

“pursuant to” the rules in the Elections Code); cf. Costa v.

Superior Court, 128 P.3d 675, 685 (Cal. 2006) (discussing

procedural challenges to ballot initiatives). In this critical

respect, it is more like introducing legislation. Thus, by

seeking the legal authority of official proponents, the

Associations seek the legislative power of setting the

initiative process in motion.

18 CHULA VISTA CITIZENS V. NORRIS

D

We turn now to the question of whether serving as an

official proponent, as we have described that status, is an

aspect of the freedom of speech protected by the First

Amendment.

The Associations rely primarily on Meyer v. Grant,

486 U.S. 414 (1988). In Grant, Colorado forbade initiative

proponents from employing paid petition circulators to gather

signatures. Id. at 417. The Court held that “[t]he circulation

of an initiative petition of necessity involves both the

expression of a desire for political change and a discussion of

the merits of the proposed change.” Id. at 421. Thus, it

applied exacting scrutiny to the challenged ban. Id. at 420,

428.

As the district court astutely observed, Grant held that

“advocation and circulation” of a petition is protected by the

First Amendment, but no one disputed the legal status of the

initiative proponents in Grant. Whether the activities of an

official proponent are protected by the freedom of speech is

a distinct question from whether serving as an official

proponent (that is, having the legal authority attaching to

official proponents) has the same protection. Thus, the issue

presented by the Associations is unanswered by Grant.

Indeed, it is one that neither the Supreme Court nor our

circuit has decided.

The Supreme Court has, however, addressed an analogous

situation to the one presented in this case. In Nevada

Commission on Ethics v. Carrigan, a state ethics law required

public officers to recuse themselves from voting on matters

in which they might reasonably be said to have a conflict of

CHULA VISTA CITIZENS V. NORRIS 19

interest. 131 S. Ct. 2343, 2346 (2011). Carrigan challenged

the law, asserting that the First Amendment protected his

right to vote in the city council. Id. at 2347.

The Supreme Court held that “restrictions upon

legislators’ voting are not restrictions upon legislators’

protected speech.” Id. at 2350. Importantly, the Court cited

the legislative nature of voting as the reason for its decision:

“The Nevada Supreme Court thought a legislator’s vote to be

protected speech because voting ‘is a core legislative

function.’ We disagree, for the same reason.” Id. at 2347

(internal citation omitted). The Court elaborated on this

rationale: “[A] legislator’s vote is the commitment of his

apportioned share of the legislature’s power to the passage or

defeat of a particular proposal. The legislative power thus

committed is not personal to the legislator but belongs to the

people; the legislator has no personal right to it.” Id. at 2350.

The Court went further and stated that “the act of voting [in

a legislature] symbolizes nothing.” Id. Even if the legislative

act of voting were expressive, the Court reasoned, the

challenge would still fail because “[t]his Court has rejected

the notion that the First Amendment confers a right to use

governmental mechanics to convey a message.” Id. at 2351.

Carrigan establishes that the legal authority attaching to

a legislative office is not an aspect of the freedom of speech

protected by the First Amendment. The Associations seek the

legislative authority that comes with serving as official

proponents. Following Carrigan, we conclude that serving

20 CHULA VISTA CITIZENS V. NORRIS

as an official proponent is not an aspect of speech within the

meaning of the First Amendment.5

E

The Associations seem to think that because official

proponents have authority to engage in expressive activities,

such as the power to write the 500-word statement of reasons,

the freedom of speech requires that they be permitted to be

official proponents. But from the premise that certain

activities are expressive, it does not follow that the legal

authority to engage in such activities is part of the freedom of

speech. This case presents that threshold issue: If serving as

an official proponent is not part of the freedom of speech,

then the expressive nature of official proponents’ activities is

irrelevant.

A contrary conclusion would produce absurd results. If

the mere fact that an activity is expressive meant that there

was a First Amendment right to engage in that activity,

irrespective of the context in which the activity occurs, then

the First Amendment would protect the right of any voter to

participate in the debates of the state legislature. After all,

such debates are highly expressive in nature. Yet, no one

would maintain that the First Amendment prohibits limiting

participation in such debates to members of the state

legislature. Similarly, the exercise of an official proponents’

authority, if expressive in nature, can be limited to those who

qualify as official proponents. The First Amendment does

5

Carrigan’s holding was limited to the First Amendment. 131 S. Ct. at

2350–51. We express no view here about whether the Associations’

alleged right might be protected under other provisions of the Federal

Constitution.

CHULA VISTA CITIZENS V. NORRIS 21

not require that associations be allowed to share in the

legislative power simply because the exercise of such power

might be expressive.

The Supreme Court made this clear in Carrigan. In

addition to upholding Nevada’s recusal law, the Court also

upheld the recusal provision’s prohibition on advocacy. Id.

at 2347. Because the recusal law was constitutional with

respect to legislative voting on conflicted legislation, then it

surely must also be the case, the Court reasoned, that the

provision restricting who might advocate on that legislation

was equally constitutional as a reasonable time, place, and

manner restriction. Id. (citing Clark v. Cmty. for Creative

Non-Violence, 468 U.S. 288, 293 (1984)). As the Supreme

Court observed, “Legislative sessions would become massive

town-hall meetings if those who had a right to speak were not

limited to those who had a right to vote.” Id. So too here,

any limit that the elector requirement might place on

expression incidentally is a reasonable time, place, and

manner restriction resulting from the initial, constitutional

limitation on whom the people have designated to serve in

this official role.

As the Court emphasized in Carrigan, Doe v. Reed is

consistent with Carrigan’s holding, id. at 2351, and it is

consistent with the analysis here. Whereas Carrigan

concerned whether the legal authority to exercise legislative

power is protected by the freedom of speech, Doe concerned

the extent to which the exercise of legislative power is

protected.6 Doe did not analyze restrictions on who could

6

The concurrence claims that this manner of reconciling Carrigan and

Doe departs from Supreme Court precedent, implying that its own

approach is well-established in the U.S. Reports. See Concurrence at

22 CHULA VISTA CITIZENS V. NORRIS

sign initiative petitions; it discussed whether the signing of a

petition was expressive.7 561 U.S. at 194–96. The

Associations in this case seek the legal authority to exercise

legislative power, which is why the analysis is governed by

Carrigan. Kneebone and Breitfelder, by contrast,

undoubtedly have such authority, but they seek to exercise it

in a certain way. Their challenge is governed by Doe.8 See

infra Part IV.

The challenge to the elector requirement asks whether the

freedom of speech requires the people to delegate legislative

power to associations, and Carrigan answers that it does not.9

45–48. Yet, other than the Supreme Court’s brief paragraph

distinguishing Carrigan from Doe, see Carrigan, 131 S. Ct. at 2351, no

federal court has described how Carrigan and Doe interact. Thus, any

effort in this regard will break new ground, including that of the

concurrence.

7

The concurrence is, therefore, quite wrong when it asserts that Doe

controls the elector requirement analysis. The key question with regard

to the elector requirement is whether California’s decision not to delegate

legislative authority to associations violates the freedom of speech. Doe

has nothing to say about that question.

8

This distinction between the legal authority to exercise legislative

power and the exercise of such power explains why the dissent errs when

it treats the challenges to the elector and petition-proponent disclosure

requirements identically. See Dissent at 52. Only if we ignore Doe’s clear

instruction, as the dissent would do, can we conclude that the legislative

character of initiative petitions strips proponents of First Amendment

protection.

9

Because we conclude that the elector requirement is constitutional,

there is no need to resolve the parties’ dispute over whether the

requirement is located in the California Elections Code, the City Charter,

or some other source.

CHULA VISTA CITIZENS V. NORRIS 23

IV

In their challenge to the petition-proponent disclosure

requirement, Kneebone and Breitfelder contend that the

compelled disclosure of their identities at the point of contact

with signatories violates the freedom of speech.

A

The Supreme Court has never held that there is some

“freewheeling right” to anonymity in the Constitution. Doe,

561 U.S. at 218 n.4 (Stevens, J., concurring in part and

concurring in judgment). Rather, the Court has said that the

“decision to remain anonymous, like other decisions

concerning omissions or additions to the content of a

publication, is an aspect of the freedom of speech protected

by the First Amendment.” McIntyre v. Ohio Elections

Comm’n, 514 U.S. 334, 342 (1995). In the compelled

disclosure context, the abridgment of the freedom of speech

consists not in a violation of some amorphous “right to

anonymity”; it consists in the “direct regulation of the content

of speech,” id. at 345, or in the burden such disclosures place

on speech by, for example, deterring the speaker from

speaking, Buckley v. Valeo, 424 U.S. 1, 68 (1976); see also

Citizens United, 558 U.S. at 480–83 (Thomas, J., concurring

in part and dissenting in part). Our own precedent has

The parties also dispute which standard of review applies to the

elector requirement, but because we conclude that such requirement does

not implicate the First Amendment, we do not proceed to resolve that

question. See Ala. State Fed’n of Labor v. McAdory, 325 U.S. 450, 461

(1945) (“It has long been [the Court’s] considered practice not to decide

abstract, hypothetical or contingent questions, or to decide any

constitutional question in advance of the necessity for its decision. . . .”

(internal citations omitted)).

24 CHULA VISTA CITIZENS V. NORRIS

followed this basic framework. See ACLU v. Heller,

378 F.3d 979, 987 (9th Cir. 2004) (describing the

constitutional injury of compelled disclosure as the “direct

regulation of the content of political speech”).

We have never held that the content of a ballot initiative

petition is part of an official proponent’s freedom of speech.

The Supreme Court has recognized that the content of

political handbills, McIntyre, 514 U.S. at 337–47, the speech

of initiative petition circulators, Buckley v. Am. Constitutional

Law Found., Inc., 525 U.S. 182, 197–200 (1999), and the

signatures of initiative petition signatories, Doe, 561 U.S. at

194–96, are protected speech, and thus the compelled

disclosure of the speaker’s identity to the public constitutes

a burden on such speech or a direct regulation thereof. But

initiative petitions are official election documents, San

Francisco Forty-Niners, 89 Cal. Rptr. 2d at 396, and the

Court has not had occasion to consider whether the content of

such documents constitutes protected speech.10

However, because the parties to this litigation agree that

the petition-proponent disclosure requirement is a regulation

of political speech,11 we need not resolve that question. We

10

At least one of our sister circuits has implied that, in some

circumstances, regulation of the content of initiative petitions would

abridge the freedom of speech. Biddulph v. Mortham, 89 F.3d 1491, 1500

(11th Cir. 1996) (per curiam) (“We obviously would be concerned about

free speech and freedom-of-association rights were a state to enact

initiative regulations that were content based or had a disparate impact on

certain political viewpoints.”).

11

Norris limits her briefing to the elector requirement. California

acknowledges that “an initiative petition is political speech” and states that

CHULA VISTA CITIZENS V. NORRIS 25

will assume—without deciding—that an official proponent’s

decision to disclose his identity on the face of an initiative

petition constitutes political speech, and under McIntyre, the

compelled disclosure of such information is “a direct

regulation of the content of speech” subject to First

Amendment scrutiny. McIntyre, 514 U.S. at 345.

B

Of course, we must determine which standard of review

governs our analysis of the petition-proponent disclosure

requirement’s constitutionality.12

The Supreme Court has “a series of precedents

considering First Amendment challenges to disclosure

requirements in the electoral context. These precedents have

reviewed such challenges under what has been termed

‘exacting scrutiny.’” Doe, 561 U.S. at 196. “That standard

“[t]here is no doubt that the challenged statutes, which govern the content

of an initiative petition, trigger scrutiny under the First Amendment.”

12

Kneebone and Breitfelder bring both as-applied and facial challenges

to the petition-proponent disclosure requirement. The nature of their

argument, however, is a facial challenge: They claim that the requirement

violates the freedom of speech no matter the identities or circumstances

of the official proponents. To be sure, Kneebone and Breitfelder have

asserted that they, in particular, have reasons for desiring to remain

anonymous when serving as official proponents, but their arguments, if

correct, preclude the idea that the requirement has a “plainly legitimate

sweep” or that “circumstances exist under which [it] would be valid.”

United States v. Stevens, 559 U.S. 460, 472–73 (2010) (internal quotation

marks omitted). Because Kneebone and Breitfelder’s “claim and the relief

that would follow . . . reach beyond the particular circumstances of these

plaintiffs,” they must “satisfy our standards for a facial challenge to the

extent of that reach.” Doe, 561 U.S. at 194.

26 CHULA VISTA CITIZENS V. NORRIS

requires a substantial relation between the disclosure

requirement and a sufficiently important governmental

interest.” Id. (internal quotation marks omitted). The

“‘strength of the governmental interest must reflect the

seriousness of the actual burden on First Amendment rights.’”

Id. (quoting Davis, 554 U.S. at 744). Like the case before us,

Doe considered the constitutionality of a law requiring the

disclosure of identifying information—in that case, the

identities of petition signatories. 561 U.S. at 190–95. The

Court applied exacting scrutiny and upheld the law. Id. at

197–202.

Against this clearly articulated standard of review for

compelled disclosure cases, Kneebone and Breitfelder argue

that strict scrutiny should apply. They point to American

Constitutional Law Foundation (“ACLF”) as an example of

strict scrutiny employed in a disclosure context. The

Supreme Court, however, has subsequently characterized the

standard of review in ACLF as “exacting scrutiny.” See Doe,

561 U.S. at 196. Moreover, it was precisely because the

Court did not apply strict scrutiny that Justice Thomas wrote

separately in ACLF. See 525 U.S. at 214–15 (Thomas, J.,

concurring in the judgment). Thus, nothing in ACLF

provides a basis for applying strict scrutiny to the petition-

proponent disclosure requirement.

California makes no effort to distinguish Doe. Rather, it

simply asserts that public forum doctrine should govern our

analysis. But the state points to no federal case that has

adopted such an approach. California might instead have

argued that the petition-proponent disclosure requirement

relates to the “mechanics of the electoral process,” thus

subjecting it to the potentially less-demanding “ordinary

litigation test.” See McIntyre, 514 U.S. at 344–45. But Doe

CHULA VISTA CITIZENS V. NORRIS 27

forecloses that option. The Doe Court, faced with the

compelled disclosure of signatories’ identities, rejected the

argument that the legislative character of initiative petitions

mandated a lesser form of scrutiny. 561 U.S. at 194–96. If

exacting scrutiny applies to the compelled disclosure of

signatories’ identities, there is no reason why official

proponents’ identities should not receive the same protection.

We therefore adhere to the Supreme Court’s “series of

precedents” regarding compelled disclosure by subjecting the

petition-proponent disclosure requirement to exacting

scrutiny. Id. at 196; see also Wash. Initiatives Now (WIN) v.

Rippie, 213 F.3d 1132, 1138–39 (9th Cir. 2000) (applying

exacting scrutiny to a law compelling the disclosure of

circulators’ identities, addresses, and compensation).

C

It remains for us to determine whether the petition-

proponent disclosure requirement survives exacting scrutiny.

In addressing this question, it is important to bear in mind

that the statutory scheme, as incorporated by the City Charter,

requires proponents to disclose their identities at three distinct

moments in the initiative process: the filing of a signed notice

with the City Clerk, Cal. Elec. Code § 9202(a), the

publication of the notice in a newspaper of general

circulation, id. § 9205, and the inclusion of the notice on each

section of the circulated initiative petitions, id. §§ 9202(a),

9207. Kneebone and Breitfelder only challenge the last

requirement.

The Supreme Court has described exacting scrutiny as a

“strict test.” Buckley, 424 U.S. at 66. Although distinct from

strict scrutiny, “exacting scrutiny is more than a rubber

28 CHULA VISTA CITIZENS V. NORRIS

stamp.” Minn. Citizens Concerned for Life, Inc. v. Swanson,

692 F.3d 864, 876 (8th Cir. 2012). Indeed, “[t]he Supreme

Court has not hesitated to hold laws unconstitutional under

this standard.” Id. (collecting cases). As Buckley made clear,

it is not enough for the state to have “some legitimate

governmental interest”; the Court “also ha[s] insisted that

there be a . . . ‘substantial relation’ between the governmental

interest and the information required to be disclosed.” 424

U.S. at 64. Moreover, it is the government’s burden to “show

that its interests . . . are substantial, that those interests are

furthered by the disclosure requirement, and that those

interests outweigh the First Amendment burden the disclosure

requirement imposes on political speech.” WIN, 213 F.3d at

1138–39; see also Ctr. for Individual Freedom, Inc. v.

Tennant, 706 F.3d 270, 282 (4th Cir. 2013); Minn. Citizens

Concerned for Life, Inc., 692 F.3d at 877. Thus, the mere

assertion of a connection between a vague interest and a

disclosure requirement is insufficient.

California asserts two interests in the petition-proponent

disclosure requirement: (1) informing electors of an official

proponent’s identity, and (2) “preserving the integrity of the

electoral process.” Quoting Doe, the state claims that the

latter interest “extends more generally to promoting

transparency and accountability in the electoral process.”

Doe, 561 U.S. at 198. The district court relied on both

interests in sustaining the petition-proponent disclosure

requirement.

1

California contends that the public has a right to know the

identities of official proponents because an initiative is

analogous to the introduction of legislation, and therefore “it

CHULA VISTA CITIZENS V. NORRIS 29

is no different from the requirement that every bill in the

California Legislature be introduced by a member of the

Legislature.” California believes that “[l]egislation is

inherently a public act, regardless of the forum in which it

takes place.” The district court agreed, relying on two of our

cases that stressed the need for voters to know the identities

of those participating in initiative campaigns. See Human

Life of Wash., Inc. v. Brumsickle, 624 F.3d 990 (9th Cir.

2010); Cal. Pro-Life Council v. Getman, 328 F.3d 1088 (9th

Cir. 2003).

Even assuming that this interest is sufficiently important

to satisfy exacting scrutiny, California must demonstrate that

the interest bears a substantial relation to the petition-

proponent disclosure requirement. Kneebone and Breitfelder

argue that because proponents must disclose their identities

at two distinct moments before circulating a petition, any

member of the public who wishes to learn the identities of

official proponents can do so, and there is no need for

disclosure on the face of the petition. California also cites the

notice-filing and publication requirements, but it argues that

these prior disclosures cut the other way: “[B]y the time

proponents’ names are printed on initiative petitions, their

identities are already known—the impact on proponents’

privacy is negligible because their names have already been

published in a newspaper of general circulation.”

The precedents of the Supreme Court and this circuit have

emphasized the importance of anonymity at the point of

contact with voters. McIntyre v. Ohio Elections Commission

established that “an author’s decision to remain anonymous,

like other decisions concerning omissions or additions to the

content of a publication, is an aspect of the freedom of speech

protected by the First Amendment.” 514 U.S. at 342. In the

30 CHULA VISTA CITIZENS V. NORRIS

realm of political speech, anonymity is important because it

“provides a way for a writer who may be personally

unpopular to ensure that readers will not prejudge her

message simply because they do not like its proponent.” Id.

The Court therefore applied exacting scrutiny and struck

down an Ohio statute requiring authors of any “form of

general publication which is designed . . . to influence the

voters in any election” to disclose their identities. Id. at 338

n.3, 345–46.

The Court extended McIntyre’s holding in ACLF. In that

case, the Court applied exacting scrutiny to invalidate a

Colorado requirement that petition circulators wear badges

disclosing their identities at the point of contact with

signatories, and it contrasted this invalid rule with the

requirement that those same circulators submit affidavits to

the state containing their names, addresses, and signatures:

“Unlike a name badge worn at the time a circulator is

soliciting signatures, the affidavit is separated from the

moment the circulator speaks.” 525 U.S. at 198. The Court

saw this separation in time as important because revealing

one’s identity at the point of contact with signatories

“operates when reaction to the circulator’s message is

immediate and may be the most intense, emotional, and

unreasoned.” Id. at 199 (internal quotation marks omitted).

The Court observed that, when a circulator makes contact,

“the circulator must endeavor to persuade electors to sign the

petition,” id., a concern expressed in McIntyre’s statement

that “an advocate may believe her ideas will be more

persuasive if her readers are unaware of her identity,”

514 U.S. at 342. For that reason, ACLF held that “the badge

requirement compels personal name identification at the

precise moment when the circulator’s interest in anonymity

CHULA VISTA CITIZENS V. NORRIS 31

is greatest.” 525 U.S. at 199. By contrast, the affidavit

requirement was “responsive to the State’s concern” for

providing the identifying information to the public, but it did

so without interfering with the point of contact. Id. at 198.

Thus, there was not a sufficient governmental interest to

justify the badge requirement. Id. at 200.

Our decision in WIN v. Rippie followed a similar chain of

reasoning. WIN challenged a Washington law that compelled

the disclosure of petition circulators’ identities, addresses,

and compensation before and after an election. WIN,

213 F.3d at 1134–35. These disclosures were “routinely filed

during the circulation period,” which we said created a

chilling effect on speech. Id. at 1138–39. Applying exacting

scrutiny, we struck down the disclosure requirement. Id. at

1140. Central to our holding was our judgment that the

“interest in educating voters through campaign finance

disclosure is more adequately served by a panoply of the

State’s other requirements that have not been challenged.”

Id. at 1139. Like ACLF, WIN illustrates that, where

alternative means of furthering the state’s interest are

available, it will be very difficult for a compelled disclosure

law to survive exacting scrutiny.

Heller remains our clearest articulation of the principles

underlying McIntyre, ACLF, and WIN. In Heller, we

invalidated a Nevada law that required “certain groups or

entities publishing any material or information relating to an

election, candidate or any question on a ballot to reveal on the

publication the names and addresses of the publications’

financial sponsors.” 378 F.3d at 981 (internal quotation

marks omitted). Our holding rested on “[t]he constitutionally

determinative distinction between on-publication identity

disclosure requirements and after-the-fact reporting

32 CHULA VISTA CITIZENS V. NORRIS

requirements” that we said “has been noted and relied upon

both by the Supreme Court and by this Circuit.” Id. at 991.

We said ACLF stands for the following proposition: “[I]t is

not just that a speaker’s identity is revealed, but how and

when that identity is revealed, that matters in a First

Amendment analysis of a state’s regulation of political

speech.” Id. (emphasis added) (citing WIN, 213 F.3d at

1138). For that reason, “requiring a publisher to reveal her

identity on her election-related communication is

considerably more intrusive than simply requiring her to

report to a government agency for later publication how she

spent her money.” Id. at 992. Because the Nevada law

required the speaker to disclose her identity on the face of the

election-related communication, we held the state’s asserted

interests were inadequate to justify the burden on speech. Id.

at 1002.

In all of these precedents, the Supreme Court and this

circuit have taken the view that “[t]he injury to speech is

heightened” when speakers are compelled to disclose their

identities “at the same time they deliver their political

message.” ACLF, 525 U.S. at 199 (internal quotation marks

omitted). Such is the case here, where the petition-proponent

disclosure requirement forces official proponents to reveal

their identities on the face of the petition. Forced disclosures

of this kind are “significant encroachments on First

Amendment rights.” Buckley, 424 U.S. at 64.

These precedents also make clear that, where there are

alternative methods of meeting the government’s asserted

interests, the government’s task of justifying a compelled

disclosure law becomes much more onerous. See ACLF,

525 U.S. at 198–99; WIN, 213 F.3d at 1139. California

contends that voters have an interest in knowing the identities

CHULA VISTA CITIZENS V. NORRIS 33

of official proponents, but such identities are already

disclosed on two occasions before petition circulation can

begin. Proponents must disclose their identities to the City

Clerk when they file the notice of intent, and the Clerk must

provide copies of the notice to “any person upon request.”

Cal. Elec. Code §§ 9202(a), 9202.513. Additionally, there is

the publication requirement. Id. § 9205(a)–(b). Voters who

wish to know the identities of official proponents need only

make a trip to the City Clerk’s office or search for the

publication of the petition in their newspapers of general

circulation.

Like ACLF and McIntrye, the statutory scheme here

“compels personal name identification at the precise moment

when the [speaker’s] interest in anonymity is greatest.”

ACLF, 525 U.S. at 199. Like Heller, the disclosure

requirement in this case implicates the “constitutionally

determinative distinction between on-publication identity

disclosure requirements and [before-or-] after-the-fact

reporting requirements.” 378 F.3d at 991. Like ACLF and

WIN, there are alternative means of disclosure that are

“responsive to the [public’s] concern” in knowing the

identities of those involved in the initiative process. ACLF,

525 U.S. at 198. Under these circumstances, the

informational interest does not bear a substantial relation to

the petition-proponent disclosure requirement and fails

exacting scrutiny.

13

Section 9202.5 was enacted by the California legislature in 2012 and

took effect on January 1, 2013. See Cal. Elec. Code § 9202.5 (West

2013).

34 CHULA VISTA CITIZENS V. NORRIS

2

California also asserts an interest in maintaining the

integrity of the electoral process. Doe sustained a

Washington disclosure law on the basis of a similar interest,

see 561 U.S. at 197–98, and we will assume that the same

interest is sufficiently important for purposes of this case.

California provides no explanation for how its interest in

the integrity of the electoral process relates to the petition-

proponent disclosure requirement. It simply asserts the

interest. The district court elaborated on the nature of this

interest: “By requiring a proponent’s name to appear on the

circulated copy of the ballot initiative, the local voters who

consider the initiative may recognize whether the proponent

qualifies as an elector.” The district court appeared to be

saying that an anti-fraud interest underlay the petition-

proponent disclosure requirement, an interest the Supreme

Court found sufficiently important in Doe. Id.

If the state is concerned about fraudulent proponents, as

the district court suspected, it can protect against that

possibility using the unchallenged disclosure requirements.

See Cal. Elec. Code §§ 9202, 9202(a), 9205(a)–(b). At each

of these stages, elections officials or the interested public can

verify proponents’ qualifications. In Doe, Washington

demonstrated that the existence of measures other than the

disclosure requirement at issue did not alleviate the

possibility of fraud and voter error. See, e.g., 561 U.S. at 198

(pointing out that “the secretary’s verification and canvassing

will not catch all invalid signatures”). It is California’s

burden to show that the alternative methods of satisfying its

anti-fraud goal are insufficient. WIN, 213 F.3d at 1138–39.

CHULA VISTA CITIZENS V. NORRIS 35

Not only has it failed to carry its burden; it has not even

attempted to do so.

California claims that, as was the case with Washington

in Doe, its “interest in preserving electoral integrity is not

limited to combating fraud.” 561 U.S. at 198. Rather, the

interest “extends more generally to promoting transparency

and accountability in the electoral process.” Id. California

has not shown how the petition-proponent disclosure

requirement serves that interest or why the alternative

disclosure requirements are inadequate, relying instead on the

bare pronouncement of its interest. That is insufficient to

satisfy exacting scrutiny. See WIN, 213 F.3d at 1138–39; Ctr.

for Individual Freedom, Inc., 706 F.3d at 282; Minn. Citizens

Concerned for Life, Inc., 692 F.3d at 877.

D

A few responses to the dissent are in order. The dissent

acknowledges that Supreme Court and Ninth Circuit

precedent is deeply skeptical of compelled disclosure

requirements like the one challenged in this case, but it claims

that these cases “d[o] not apply here.” Dissent at 60. The

dissent seems to argue that official proponents, when acting

in their official capacity, have no right to speak anonymously

during the initiative process due to the public nature of their

office and the legislative character of an initiative petition.14

14

The dissent also implies that, because it relies exclusively on

California’s asserted interest in the integrity of the electoral process to

sustain the petition-proponent disclosure requirement, the doctrine of

McIntyre, ACLF, Heller, and WIN is inapplicable. Dissent at 60. But Doe

applied the doctrine of those cases in evaluating the constitutionality of

Washington’s compelled disclosure law, even though Doe, like the

dissent, relied exclusively on the interest in the integrity of the electoral

36 CHULA VISTA CITIZENS V. NORRIS

Id. Not a single precedent of this Court or of the Supreme

Court has ever relied on such distinctions to sustain a

compelled disclosure requirement, and the dissent does not

cite any.15

More fundamentally, it is incoherent for the dissent to

deny that official proponents have no right to speak

anonymously while simultaneously applying a form of

scrutiny designed to safeguard that very right. See Dissent at

55–56 (agreeing that exacting scrutiny applies). Compelled

disclosure requirements are constitutionally suspect because

the “decision to remain anonymous, like other decisions

concerning omissions or additions to the content of a

publication, is an aspect of the freedom of speech protected

by the First Amendment.” McIntyre, 514 U.S. at 342. But if

the dissent denies that the right to remain anonymous is an

aspect of official proponents’ freedom of speech, then the

petition-proponent disclosure requirement is not a “regulation

of the content of speech,” id. at 345, and there is no reason to

apply exacting scrutiny. See Doe, 561 U.S. at 219–21

(Scalia, J., concurring in the judgment) (stating that the

majority applied exacting scrutiny after finding that petition

process. 561 U.S. at 195–202. The dissent cannot avoid the clear

instructions of McIntyre, ACLF, Heller, and WIN merely by invoking the

interest in electoral integrity.

15

To the extent the dissent relies on the fact that an initiative petition is

a legislative document, Doe forecloses such argument. The signatories in

Doe, no less than the official proponents in this case, were introducing

legislation; their signatures were necessary for the petition to qualify for

the ballot. In that case, Washington raised precisely the same argument

the dissent makes here: because signatories are engaging in a “legally

operative legislative act,” they were not entitled to the same level of First

Amendment protection as they would be in other contexts. Doe, 561 U.S.

at 195. The Supreme Court rejected that rationale. Id. at 195–96.

CHULA VISTA CITIZENS V. NORRIS 37

signatories have a right to anonymous political expression);

Church of Am. Knights of the Ku Klux Klan v. Kerik,

356 F.3d 197, 208–09 (2d Cir. 2004) (declining to apply

exacting scrutiny “[b]ecause . . . plaintiffs’ right to

anonymous speech is not implicated here”). In short, the

dissent agrees we must apply a level of scrutiny that is only

appropriate if official proponents have some right to speak

anonymously, yet it denies that they have such a right. This

confusion, we suggest, undermines the dissent’s analysis.

The dissent’s confusion is compounded by its failure to

resolve the fundamental problem with California’s argument:

Even assuming that California has an important interest in

forcing official proponents to disclose their identities, why

must that disclosure occur on the face of initiative petitions?

Kneebone and Breitfelder do not disagree that official

proponents undertake duties and responsibilities that require

disclosing proponents’ identities to the public. After all, they

do not challenge the notice-filing and publication

requirements. They simply wish to remain anonymous at the

point of contact with voters. The dissent never explains why

a particular form of disclosure—the petition-proponent

disclosure requirement—is substantially related to the state’s

interest when there are alternative, unchallenged means of

disclosure.16

16

Significantly, California makes no effort to show why the petition-

proponent disclosure requirement is needed given that the public can learn

official proponents’ identities through the notice-filing and publication

requirements. Even if the dissent were able to articulate such a

justification, the burden is on California—not members of this Court—to

do so. WIN, 213 F.3d at 1138–39; Ctr. for Individual Freedom, Inc.,

706 F.3d at 282; Minn. Citizens Concerned for Life, Inc., 692 F.3d at 877.

38 CHULA VISTA CITIZENS V. NORRIS

Instead, the dissent merely asserts that the unchallenged

disclosure provisions would “fail to satisfy the government’s

interest in any meaningful or realistic sense.” Dissent at 62.

The dissent may very well think that, but Supreme Court

precedent is to the contrary. Any voter who wants to know

the identities of official proponents before signing a petition

can find out by visiting the City Clerk’s office or looking up

the identities in the newspaper of general circulation, Cal.

Elec. Code § 9202(a),§ 9202.5, § 9205, a far more accessible

means of gaining information than Colorado voters had

available to them after ACLF. Moreover, in ACLF, it was far

less convenient for Colorado voters to seek out the affidavits

of petition circulators than it was to have the circulators wear

identification badges, but the Court nonetheless invalidated

the badge requirement. 525 U.S. at 198–200. Perhaps the

dissent has an explanation for why Colorado voters should

have to work harder than California voters when evaluating

initiative petitions, but we cannot fathom what it might be.

The petition-proponent disclosure requirement does not

satisfy exacting scrutiny.

E

The petition-proponent disclosure requirement is

unconstitutional. Unlike the challenge to the elector

requirement, none of the parties assert that the petition-

proponent disclosure requirement exists apart from the state

elections code. Thus, §§ 9202 and 9207 of the California

Elections Code are invalid to the extent that they require

official initiative proponents to identify themselves on the

face of initiative petitions.

CHULA VISTA CITIZENS V. NORRIS 39

V

We affirm the district court’s grant of summary judgment

to the defendants as to the elector requirement, but we reverse

its grant of summary judgment to the defendants as to the

petition-proponent disclosure requirement. We therefore

reverse the district court’s denial of summary judgment to the

plaintiffs as to the petition-proponent disclosure requirement

and remand so that it can enter an injunction consistent with

this opinion. The parties shall bear their own costs.

AFFIRMED in part, REVERSED in part, and

REMANDED.

BEA, Circuit Judge, concurring:

I join all of the majority opinion except for Section III,

which analyzes the local and state requirements that official

ballot initiative proponents be electors, thereby excluding

associations. Although I concur in the result of Section III,

I see the issue differently. I believe that the majority opinion

employs an incorrect test to determine whether acting as an

official ballot initiative proponent is a legislative act with

expressive content or an expressive act with legislative effect,

and thus whether the elector requirement burdens any First

Amendment rights. The test should not be whether a

particular act has legislative effect or legislative character.

The correct test, as stated in Doe and Carrigan, asks whether

the individual—here the ballot initiative proponent—is

exercising his own power, as does a ballot initiative signatory

(Doe), or is exercising a governmental power that has been

democratically apportioned to him, as does a legislator voting

40 CHULA VISTA CITIZENS V. NORRIS

in a legislature (Carrigan). When I apply this test I conclude

that acting as a ballot initiative proponent is an expressive act,

despite its legislative effect, and is protected by the First

Amendment. Therefore, the elector requirement implicates

the First Amendment and must be so analyzed. Nonetheless,

I conclude the elector requirement satisfies at least the

exacting scrutiny test applied to state electoral regulations

under the First Amendment, and therefore I concur with the

opinion’s conclusion upholding the elector requirement.

I

A

The majority opinion incorrectly identifies what is the

precise right sought to be vindicated by the appellants. In its

Section III.B, the majority opinion suggests that the

appellants seek “the legal authority attaching to the status of

an official proponent.” Maj. Op. at 14. No, the precise right

the appellants want is not merely an abstract “authority.” Put

more simply and precisely, the appellants wish “to be

initiative proponents.” Blue Br. at 6. Becoming an official

ballot initiative proponent produces a particular quality of

speech. When someone is qualified as an official proponent,

he is able to speak from a particular vantage as an author of

the proposal. The quality and impact of speech by official

ballot initiative proponents is different from that of a mere

member of the public. “Proponents” can be seen as

sufficiently civic-minded to have taken the time and borne the

cost to bring up a measure. They have also taken the risk of

being identified with a particular political view. Because of

their demonstrated interest and willingness to risk

opprobrium, moreover, their speech is likely to carry greater

weight once their position as ballot proponents is recognized.

CHULA VISTA CITIZENS V. NORRIS 41

By restricting who may serve in this role, Chula Vista and

California restrict the range of speech non-electors and

associations can exercise.

The majority opinion also errs in holding that being an

official ballot initiative proponent is a legislative act. The

majority opinion holds that being an official ballot initiative

proponent is legislative at core because California state cases

and laws describe the ballot initiative proponent as akin to a

legislator, and because the acts of a ballot initiative proponent

are legislative in character and effect.

With respect, this test is mistaken. The Supreme Court

has explicitly held that expressive acts can still be protected

by the First Amendment, even if they have a legislative effect

under the state’s laws. Doe v. Reed, 561 U.S. 186, 194–96

(2010).1 Indeed, if having legislative effect could deprive an

expressive act of First Amendment protection, then

1

It should be noted that the respondent in Doe v. Reed made the same

argument that the majority opinion does here, namely that acting as a

ballot initiative signatory was a legislative act not protected by the First

Amendment because the Supreme Court of Washington had declared it to

be so. As the respondent’s brief before the Supreme Court in Doe stated,

“The Washington Supreme Court has stated that the ‘exercise of the

initiative power is an exercise of the reserved power of the people to

legislate’ and that ‘[in] approving an initiative measure, the people

exercise the same power of sovereignty as the legislature does when

enacting a statute.’ Amalgamated Transit Union Local 587 v. State,

11 P.3d 762, 779 (Wash. 2000).” Brief of Respondent at 24, Doe v. Reed,

561 U.S. 186 (2010) (No. 09–559), 2010 WL 1250504. The Supreme

Court in Doe, however, did not even address this argument, and thus did

not find it dispositive; nor should this panel. If acting as a ballot initiative

signatory is still a First Amendment activity despite its characterization as

a “legislative act” by state law, then this same logic should apply to acting

as a ballot initiative proponent.

42 CHULA VISTA CITIZENS V. NORRIS

governments could limit political speech by granting

legislative effect to particular speech acts. The majority

opinion ignores the test the Supreme Court itself has already

laid out in Doe and Carrigan to determine whether a

particular political activity is speech protected by the First

Amendment or is a legislative act with no First Amendment

protection.

The Doe Court stated the general rule that “[a]n

individual express[ing] a view on a political matter” when

participating in a political activity, whether or not it also

happens to have a governmental effect. Id. at 194–95. The

Court held that “sign[ing] a petition under Washington’s

referendum procedure” was an example of an individual

expressing a view on a political matter. Id. If the activity

expresses a political view, then generally it “implicates a First

Amendment right.” Id. at 195. Moreover, the First

Amendment still protects that expressive activity even if it

has “legal effect in the electoral process”:

[S]igning a referendum petition may

ultimately have the legal consequence of

requiring the secretary of state to place the

referendum on the ballot. But we do not see

how adding such legal effect to an expressive

activity somehow deprives that activity of its

expressive component, taking it outside the

scope of the First Amendment.

Id.

Carrigan created an exception to this general rule. When

an individual performs a legislative act through his office as

CHULA VISTA CITIZENS V. NORRIS 43

legislator—such as a legislator voting in a legislature—that

act is not protected by the First Amendment because:

a legislator’s vote is the commitment of his

apportioned share of the legislature’s power to

the passage or defeat of a particular proposal.

The legislative power thus committed is not

personal to the legislator but belongs to the

people; the legislator has no personal right to

it.

Nevada Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2345

(2011). In other words, a legislative act is one that an

individual performs not as an individual or as a “principal,”

but as an elected representative, or an “agent” of the people,

i.e. “a governmental act [an individual performs] as a

representative of his constituents.” Id. at 2351 n.5.

Carrigan stated that it was not in tension with Doe. Id. at

2351. The Carrigan Court described Doe as holding that

“core political speech,” such as signing a ballot initiative

petition, “was not deprived of its protected status simply

because, under state law, a petition that garnered a sufficient

number of signatures would suspend the state law to which it

pertained, pending a referendum.” Id. Such political speech,

the Carrigan Court held, was distinguishable from the

legislative, governmental act of a legislator voting in a

legislature: “It is one thing to say that an inherently

expressive act remains so despite its having governmental

effect, but it is altogether another thing to say that a

governmental act becomes expressive simply because the

governmental actor wishes it to be so.” Id.

44 CHULA VISTA CITIZENS V. NORRIS

Likewise, even if an act is a legally effective part of the

political process, it still may be an expressive act protected by

the First Amendment. “[T]he State, having chosen to tap the

energy and the legitimizing power of the democratic process,

must accord the participants in that process the First

Amendment rights that attach to their roles.” Doe, 561 U.S.

at 195 (internal quotation marks, ellipsis, and brackets

omitted). Only if the act done is authorized by a

governmental, democratically apportioned representative

power does it cease to be a personal act and thereby cease to

be protected by the First Amendment.

Thus, when a court must decide whether a political act is

inherently expressive and therefore protected by the First

Amendment or is a legislative, governmental act and

therefore not at all protected by the First Amendment, the

court must determine whether the act is more similar to the

act in Doe (signing a ballot initiative) or the act in Carrigan

(a legislator voting in a legislature). The relevant question is

whether the politically expressive act is personal to the actor,

or is merely exercised by him through democratic delegation

of governmental power to him and therefore does not belong

to him.

Applied here, this test reveals that the act of being a ballot

initiative proponent, just like the signing of a ballot initiative

proposal in Doe, is at its core expressive, not legislative,

despite its legislative effect. An official ballot initiative

proponent is neither an elected nor democratically appointed

position. The proponent has volunteered to exercise his own

power vested in him by California state law, Cal. Elec. Code

§ 9202(a). He does not exercise a power that has been

democratically apportioned to him as an “agent” of a

governmental body. Therefore, the Chula Vista and

CHULA VISTA CITIZENS V. NORRIS 45

California elector requirements burden the First Amendment

rights of those who desire to become official ballot initiative

proponents. In other words, being a ballot initiative

proponent is more like being a ballot initiative signatory

(Doe) than it is like a legislator voting in a legislature

(Carrigan).

It may be argued that the electors of California, or those

of Chula Vista, have “apportioned” to themselves the right to

act as ballot initiative proponents, and thus that becoming the

proponent of an initiative is the legislative act of an agent of

the people. This argument would fail, however, because it is

equally applicable to the ballot initiative signatories in Doe.

The electors of Washington state “apportioned” to themselves

the right to act as ballot initiative signatories just as the

electors of California “apportioned” to themselves the right

to act as ballot initiative proponents. The Supreme Court

holding in Doe, however, shows that this level of

“apportionment” does not convert the act from a personal,

expressive one to a delegated, representative one. Therefore,

when analyzed under the correct Doe-Carrigan framework,

acting as an official ballot initiative proponent is a personal

act of political expression that happens to have legislative

effect, similar to acting as a ballot initiative signatory; it is

not the governmental act of a democratically appointed agent

of the people. The First Amendment therefore applies to any

governmental restraints on such political expression.

B

Instead of applying the Doe-Carrigan framework to

determine whether the activity at issue is protected by the

First Amendment, the majority opinion applies its own test.

It distinguishes between “the activities of an official

46 CHULA VISTA CITIZENS V. NORRIS

proponent” and “serving as an official proponent (that is,

having the legal authority attaching to official proponents).”

Maj. Op. at 18. As the majority opinion puts it, just because

“certain activities are expressive, it does not follow that the

legal authority to engage in such activities is part of the

freedom of speech. This case presents that threshold issue.”2

Maj. Op. at 20. Therefore, the majority opinion concludes,

this case is controlled by Carrigan, and not by Doe:

“Carrigan concerned whether the legal authority to exercise

legislative power is protected by the freedom of speech,

2

The majority opinion suggests that “[a] contrary conclusion would

produce absurd results.” As the majority opinion explains:

If the mere fact that an activity is expressive meant that

there was a First Amendment right to engage in that

activity, irrespective of the context in which the activity

occurs, then the First Amendment would protect the

right of any voter to participate in the debates of the

state legislature. After all, such debates are highly

expressive in nature. Yet, no one would maintain that

the First Amendment prohibits limiting participation in

such debates to members of the state legislature.

Maj. Op. at 20. This hypothetical reveals the error in the majority

opinion’s reasoning. No one would argue that the calculus for

determining whether the First Amendment protects a particular speech act

is whether that act is expressive; this argument slays a mere straw man.

Nor is legislative effect dispositive. As discussed above, the act in

Carrigan was expressive in nature (and unprotected by the First

Amendment) and the act in Doe was legislative in effect (and protected by

the First Amendment). Neither fact was determinative. Instead, the

correct test is whether the speech act is one that belongs to the individual

and thus is constitutionally protected or one that stems from a

governmental authority that has been democratically apportioned and thus

can be limited by the entity which granted the authority. Acting as a

legislator is a legislative activity. Acting as a ballot initiative signatory is

a First Amendment activity.

CHULA VISTA CITIZENS V. NORRIS 47

[while] Doe concerned the extent to which the exercise of

legislative power is protected.” Maj. Op. at 21.

In other words, according to the majority opinion, if a

given act is considered a speech act at core, as opposed to a

legislative act, and thus is protected by the First Amendment,

then governmental limits on how that speech is to be

exercised would be analyzed under constitutional standards,

but the First Amendment would provide no protection against

governmental limits on who can exercise that speech. I see

no constitutional basis for the distinction between possessing

a right and exercising that right. Moreover, the majority

opinion’s approach could allow governments to control the

content of political speech by restricting the access to

particular forms of political speech , and to avoid having

those restrictions analyzed under the First Amendment.

Indeed, Citizens United refutes the majority opinion’s

“threshold question” argument. The majority opinion here

states that, because the state did not grant associations the

right to be official ballot initiative proponents, the panel need

not analyze the law under the First Amendment. Citizens

United, on the other hand, examined the constitutionality of

a statute and found it unconstitutional precisely because

associations were excluded from participating in a particular

activity. Citizen United v. FEC, 558 U.S. 310 (2010). In

Citizens United, 2 U.S.C. § 441b prevented associations from

making expenditures in connection to an election to public

office. The Supreme Court examined the “threshold

question” that the majority opinion here discusses and held

that “[p]remised on mistrust of governmental power, the First

Amendment stands against attempts to disfavor certain

subjects or viewpoints. Prohibited, too, are restrictions

distinguishing among different speakers, allowing speech by

48 CHULA VISTA CITIZENS V. NORRIS

some but not others.” Id. (internal quotation marks and

citations omitted). “We find no basis,” the Court went on,

“for the proposition that, in the context of political speech,

the Government may impose restrictions on certain

disfavored speakers.” Id. at 341. Thus, even the “threshold

question” of who gets to participate in a particular speech act

must be analyzed under the First Amendment.

Finally, under Citizens United, associations have the right

to assert these First Amendment protections. Id. at 365

(“[T]he Government may not suppress political speech on the

basis of the speaker’s corporate identity.”).

II

Because the majority opinion concludes that the elector

requirement does not burden the First Amendment at all, it

does not address what scrutiny should be applied to determine

its constitutionality. Because I conclude that the elector

requirement does burden the First Amendment, however, I

now address the proper scrutiny to be applied.

Under Citizens United, it would seem at first blush that,

because the “elector requirement” burdens political speech on

the basis of the identity of the speaker, it should be analyzed

under strict scrutiny. See Citizens United, 558 U.S. at 340

(“Laws that burden political speech are subject to strict

scrutiny, which requires the Government to prove that the

restriction furthers a compelling interest and is narrowly

tailored to achieve that interest.” (internal quotation marks

omitted)).

The language of the Supreme Court in Doe, however,

suggests an indeterminate but deferential level of scrutiny for

CHULA VISTA CITIZENS V. NORRIS 49

restrictions in the ballot initiative process such as the elector

requirement. The six-person majority in Doe stated:

[T]he electoral context is [not] irrelevant to

the nature of our First Amendment review.

We allow States significant flexibility in

implementing their own voting systems. . . .

The State’s interest in preserving the integrity

of the electoral process is undoubtedly

important. 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.

Doe, 561 U.S. at 197 (internal quotation marks omitted); see

id. at 212–13 (Sotomayor, J., concurring) (“States enjoy

considerable leeway to . . . specify the requirements for

obtaining ballot access . . . . 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.

For instance, requiring petition signers to be registered voters

. . . no doubt limits the ability or willingness of some

individuals to undertake the expressive act of signing a

petition. Regulations of this nature, however, stand a step

removed from the communicative aspect of petitioning, and

the ability of States to impose them can scarcely be

doubted.”) (citations and internal quotation marks omitted)

(emphasis added). Doe therefore suggests that regulations of

the electoral process, such as the “elector” requirement, while

burdening the First Amendment, are subject to a deferential

level of scrutiny, less demanding than strict scrutiny. We

must therefore conclude, on the basis of the deferential

50 CHULA VISTA CITIZENS V. NORRIS

language in Doe, that not all political expression has the same

protection, and that burdens that state and local governments

impose on political expression while those governments are

“implementing their own voting systems,” Doe, 561 U.S. at

2819, must be analyzed under a level of scrutiny more

deferential than strict scrutiny.

Considering the deferential language of Doe, and because

the elector requirement burdens “core political speech,”

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347

(1995), the level of scrutiny used here should be exacting

scrutiny, which requires a “substantial relation” between the

elector requirement and a “sufficiently important”

governmental interest. Doe, 561 U.S. at 195.

The interest that California asserts as the basis for the

“elector requirement” here is “that only the people

themselves shall exercise the right of self-government

reserved in the initiative.” California and Chula Vista assert

an interest that only those with “skin in the game,” i.e.

electors, who will be affected by the measure, should initiate

the referendum process. The California state and local

governments want only civic-minded locals, who presumably

would have knowledge of local affairs and would themselves

be affected by the referendum, to participate in the initiative

process. Otherwise, carpetbaggers, who themselves would

not bear the full cost of initiating a proposal and who would

not be burdened by the effects of the referendum, could

hijack the initiative process and dictate a state’s referendum

agenda. Considering the language of Doe, such an interest is

“sufficiently important,” and thus satisfies that prong of the

exacting scrutiny test.

CHULA VISTA CITIZENS V. NORRIS 51

The second part of the exacting scrutiny test requires that

the elector requirement be “substantially related” to the

governmental interest. The elector requirement could be

more narrowly tailored to achieve its objective. In particular,

the elector requirement is overinclusive, in that it prevents

from being an official ballot initiative proponent an

association made up entirely of electors, even though such an

association would not detract from the governmental interest

of insuring that only those with “skin in the game” initiate the

referendum process. The elector requirement, therefore,

because it is overinclusive, does not comply with the narrow

tailoring requirement of strict scrutiny. See Citizens United,

558 U.S. at 340. Under Doe’s more deferential level of

exacting scrutiny applied here, however, the elector

requirement is substantially related to the governmental

interest.3 It ensures that only those with “skin in the game”

will initiate the referendum process. Moreover, although it

prevents electors from initiating ballot proposals in

association with each other, it does not prevent them from

doing so as individuals. Therefore, I conclude that the elector

requirement satisfies exacting scrutiny; thus, I would reach

the same outcome as the majority opinion.

III

Like the majority opinion, I think that the elector

requirement does not violate the Constitution. I, however,

would follow closely the test articulated in Doe and Carrigan.

This would ensure that core political expression is analyzed

under the correct constitutional framework and would prevent

3

Doe was decided June 24, 2010, five months after Citizens United was

handed down.

52 CHULA VISTA CITIZENS V. NORRIS

core political expression from being denied the protection of

the First Amendment.

GRABER, Circuit Judge, concurring in part and dissenting in

part:

Two groups of Plaintiffs1 mount challenges to two

restrictions that the people of California have placed on their

initiative process: (1) the requirement that official

proponents be electors, that is, individual voters; and (2) the

requirement that each petition section list the name of at least

one official proponent. I agree with the majority opinion that

the case is properly before us, and I concur in Part III, which

holds that the elector requirement passes constitutional

muster. I write separately to dissent from Part IV. The

majority opinion properly recognizes in Part III that the role

of an official proponent of an initiative petition in California

is like that of a legislator. But the majority fails to apply this

analogy equally to Part IV. Following the analogy of official

proponent as legislator to its logical end, the disclosure

requirement survives any level of review.

The overarching question begins and ends with the role of

the official proponent within the California lawmaking

process. Although the California Constitution does not

describe the full contours of the official proponent’s role, the

California legislature has fleshed it out in a series of statutes.

1

Plaintiffs comprising the Associations are Chula Vista Citizens for

Jobs and Fair Competition and the Associated Builders and Contractors,

Inc. (“Associations”). Plaintiffs comprising the Individual Plaintiffs are

Lori Kneebone and Larry Breitfelder (“Individual Plaintiffs”).

CHULA VISTA CITIZENS V. NORRIS 53

Under the California Elections Code, an official

proponent enjoys a special relationship to the initiative that

continues long after the advocacy process is complete. See,

e.g., Cal. Elec. Code §§ 9202, 9205, 9207. In particular,

official proponents: (1) bear the obligation “to manage and

supervise the process by which signatures for the initiative

petition are obtained”; (2) “control the arguments in favor of

an initiative measure,” including by serving as gatekeeper for

all ballot arguments, providing arguments afforded priority

status on the ballot, controlling all rebuttal ballot arguments,

and retaining the ability to withdraw ballot arguments at any

time; and (3) are allowed to intervene, both before and after

the initiative is passed, in litigation affecting the initiated

statute, and to appeal state court rulings adverse to the

initiative’s validity. Perry v. Brown, 265 P.3d 1002, 1017–18

(Cal. 2011). But see Hollingsworth v. Perry, 133 S. Ct. 2652,

2662 (2013) (holding that the authority of the official

proponent to intervene in court proceedings pertaining to an

initiative is insufficient, without more, to create Article III

standing). In addition to having special duties beyond those

of ordinary supporters of an initiative, “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,” Perry,

265 P.3d at 1017–18, and the California Supreme Court has

equated the role of a proponent to that of an elected legislator

to whom the people have delegated lawmaking power.2 It is

2

In fact, California law gives an official proponent more authority than

a legislator who, despite having sponsored and championed a piece of

legislation through the California legislature, would not have a right to

intervene in court on behalf of the legislation after it had been codified.

See Perry, 265 P.3d at 1021 (noting that legislators would not be afforded

the ability to intervene on behalf of a law that they had sponsored, before

holding that official proponents could so intervene). The United States

54 CHULA VISTA CITIZENS V. NORRIS

the distinct character of this role that informs the First

Amendment analysis for both challenges.

The Individual Plaintiffs challenge a requirement of the

California Elections Code that the text of the petitions

disclose the name of at least one official proponent. The

California Elections Code, as incorporated by the Chula Vista

City Charter, requires an official proponent of a ballot

initiative to provide a name and signature at three distinct

points during the initiative process. First, at least one of the

official proponents must provide a name and signature to the

City Clerk on the Notice of Intent to Circulate Petition when

the document is first filed. Cal. Elec. Code § 9202. Second,

the Notice of Intent to Circulate Petition, containing the

signature and name of at least one official proponent, must be

published in a newspaper of general circulation within the

city and county. Cal. Elec. Code §§ 9202, 9205. Finally, the

California Elections Code mandates that each section of the

petition bear a copy of the Notice of Intent to Circulate

Petition, which would necessarily include the name and

signature of any official proponent who signed the form

initially. Id. § 9207.

The Individual Plaintiffs mount a facial challenge to only

the final requirement, that each section of the petition bear a

copy of the Notice of Intent to Circulate Petition. They

contend that this content-based restriction, affecting the text

Supreme Court has held that an official proponent under California law is

not equivalent to an elected, public official for Article III purposes under

the Federal Constitution. Hollingsworth, 133 S. Ct. at 2662. The

California Supreme Court, however, retains supreme authority to define

the role of an official proponent under state law. See, e.g., Pembaur v.

City of Cincinnati, 475 U.S. 469, 481–82 (1986); R.R. Comm’n of Cal. v.

L.A. Ry. Corp., 280 U.S. 145, 152 (1929).

CHULA VISTA CITIZENS V. NORRIS 55

of the petition, impermissibly chills core political speech by

forcing speakers to disclose their identities at the point of

contact with potential signatories. Because this disclosure is

required at the point of contact with voters, the Individual

Plaintiffs urge us to review the disclosure regime with strict

scrutiny.

Anonymous political advocacy, such as the debate

between “Publius” in the Federalist Papers and his detractors

“Federal Farmer” and “Cato,” has played a fundamental role

in the development of our constitutional framework.

“Anonymity is a shield from the tyranny of the majority. It

thus exemplifies the purpose behind the Bill of Rights, and of

the First Amendment in particular: to protect unpopular

individuals from retaliation—and their ideas from

suppression—at the hand of an intolerant society.” McIntyre

v. Ohio Elections Comm’n, 514 U.S. 334, 356 (1995) (citation

omitted). It is perhaps because of this essential value that our

free speech tradition has hesitated to allow a government to

exclude speech from the marketplace of ideas merely because

that speech does not disclose its source. See id. at 342–43.

But compelled disclosure is not a direct prohibition on

speech. Doe v. Reed, 130 S. Ct. 2811, 2818 (2010); see also

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 366

(2010) (holding that “disclosure requirements may burden

the ability to speak, but they . . . do not prevent anyone from

speaking” (citation and internal quotation marks omitted)).

Striking a balance between those two points, the Supreme

Court has applied “‘exacting scrutiny’” to disclosure regimes

in the electoral context, which “requires a ‘substantial

relation’ between the disclosure requirement and a

‘sufficiently important’ governmental interest.” Citizens

United, 558 U.S. at 366–67 (quoting Buckley v. Valeo,

424 U.S. 1, 64, 66 (1976) (per curiam)). Following Doe and

56 CHULA VISTA CITIZENS V. NORRIS

Citizens United, I would apply exacting scrutiny to the

disclosure regime.

The government maintains that the disclosure requirement

is a reasonable regulation of the initiative process that serves

two sufficiently important state interests: (1) to preserve the

integrity of the initiative process; and (2) to inform

signatories “as to who is formally proposing the legislation.”3

Because I find the state’s interest in preserving the integrity

of the electoral process sufficiently important, indeed

compelling, and substantially related to a narrowly tailored

disclosure regime, I would find the regime constitutional

under any level of scrutiny.

The Supreme Court has consistently recognized that the

government’s interest in preserving the integrity of the

electoral process is sufficiently important to survive exacting

scrutiny. Doe, 130 S. Ct. at 2819. “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.” Id. (internal

quotation marks omitted). The government’s interest in

preserving the integrity of elections is especially strong in the

context of fraud, but the interest “is not limited to combating

fraud” and “also extends more generally to promoting

transparency and accountability in the electoral process,

which the State argues is ‘essential to the proper functioning

of a democracy.’” Id.

3

I do not reach the question whether the people’s informational interest

is sufficiently important, because I would hold that the government’s

interest in preserving the integrity of the electoral process alone is

sufficiently important to sustain the minimal burden on official

proponents.

CHULA VISTA CITIZENS V. NORRIS 57

In the federal context, “[t]he public nature of federal

lawmaking is constitutionally required.” Id. at 2834 (Scalia,

J., dissenting) (quoting U.S. Const art. I, § 5, cl. 3: “‘Each

House shall keep a Journal of its Proceedings, and from time

to time publish the same, excepting such Parts as may in their

Judgment require Secrecy[.]’”). The lawmaking process is

kept transparent for good reason: Knowing the identities of

lawmakers and their actions plays an important role in

allowing the public to evaluate officials and hold them

accountable. “In a republic where the people are sovereign,

the ability of the citizenry to make informed choices among

candidates for office is essential, for the identities of those

who are elected will inevitably shape the course that we

follow as a nation.” Buckley, 424 U.S. at 14–15.

Similarly, the local government has an “essential” interest

in preserving an electoral process in which members of the

California public who are considering whether to sign an

initiative petition know for whom they are expressing support

as the official proponent when they sign a petition—and to

whom they will delegate certain lawmaking duties if the

petition is successful. The government’s interest in

supporting the integrity of the electoral process by providing

the public with the identity of an official proponent is not

directed solely at preventing fraud. The electoral process

would be degraded if potential signers have no way of

knowing whether their signatures are delegating lawmaking

duties to a desirable proponent for the initiative, who will

present arguments on behalf of the initiative and defend the

initiative in a manner with which the signers agree. As noted,

in California official proponents play a central role, both

during the lawmaking process and after their initiative is

enacted. Perry, 265 P.3d at 1017–18. An ineffective official

proponent: (1) could fail to manage and supervise the

58 CHULA VISTA CITIZENS V. NORRIS

initiative process; (2) could fail to file the petition with the

state; (3) could make poor choices regarding arguments and

statements for the ballot; (4) would receive priority status for

even the weakest arguments on the ballot; (5) could fail to

mount, or could withdraw from the ballot, the better

arguments; and (6) could fail to defend the initiative in court

proceedings. Id.

On issues of public importance, potential signers could

face multiple initiatives on the same topic. In order to make

an informed decision about which of the initiatives to support,

potential signers would need to know the differences in

content among the various initiatives. But the voters would

also need to know the identities of the official proponents for

each initiative so that the voters could evaluate how those

official proponents would present the important public issue

at hand. Because the official proponent serves an important

role in the lawmaking process and is delegated duties in the

lawmaking process far beyond that of an advocate, the

government has an essential interest in preserving an electoral

process that allows voters to know to whom they are

delegating lawmaking power when signing a particular

petition.

This “essential” interest clearly outweighs the minor

actual burden, if any, on the official proponents who must

disclose their identities. The role that these individuals wish

to fill is itself a public legislative role that is akin to the role

of an elected legislator. The voluntary undertaking of a

California proponent’s role entails other duties (beyond the

initial filing) that require disclosure of the official

proponent’s identity, for example, monitoring the integrity of

the petition-circulation process, crafting arguments for the

ballot, and intervening in court proceedings. Other circuits

CHULA VISTA CITIZENS V. NORRIS 59

have recognized that candidates for public office have no

First Amendment interest in anonymity by virtue of their

voluntary undertaking of a public role. See, e.g., Majors v.

Abell, 317 F.3d 719, 722 (7th Cir. 2003) (“[The plaintiff’s]

standing might be questioned on the ground that a candidate

has no [free speech] interest in anonymity that the statute

might protect; for there are no anonymous candidates.”).

Similarly, the role sought by these individuals is one that

necessarily requires public disclosure of identity. Even

assuming that an official proponent has a First Amendment

anonymity interest, the potential burden is negligible.

In a different context, the Supreme Court has expressed

skepticism that an informational interest can sustain regimes

that compel disclosure of the identity of an advocate at the

point of contact with voters, or signatories in the initiative

context. In Buckley v. American Constitutional Law

Foundation, Inc. (“ACLF”), 525 U.S. 182, 200 (1999), the

Court struck down a Colorado statute requiring every petition

circulator to wear a badge bearing the circulator’s name,

because the public’s informational interest in identifying the

advocate was insufficiently important to justify chilling

political speech and potentially to subject circulators to

harassment at the apex of face-to-face political advocacy.

Similarly, in McIntyre, the Supreme Court struck down an

Ohio ban on handbills that failed to identify the name of the

advocate, because the public’s informational interest in

knowing the identity of the advocate “means nothing more

than the provision of additional information that may either

buttress or undermine the argument in a document.” 514 U.S.

at 348. Beyond expressing concerns over fear of harassment

that could chill political speech, the Court noted that

disclosure of the advocates’ identity at the point of contact

with voters could weaken the effectiveness of the speech:

60 CHULA VISTA CITIZENS V. NORRIS

“[A]n advocate may believe her ideas will be more persuasive

if her readers are unaware of her identity.” Id. at 342; see

also ACLU of Nev. v. Heller, 378 F.3d 979, 994 (9th Cir.

2004) (“[F]ar from enhancing the reader’s evaluation of a

message, identifying the publisher can interfere with that

evaluation by requiring the introduction of potentially

extraneous information at the very time the reader encounters

the substance of the message.”).

We have adopted the Court’s skepticism of an

informational interest in the identity of the advocate at the

point of contact with voters. See Heller, 378 F.3d at 995

(holding that an informational interest in allowing the public

to evaluate the advocacy document is not sufficiently

important to sustain compelled disclosure of an advocate’s

identity on the document itself); (WIN) Wash. Initiatives Now

v. Rippie, 213 F.3d 1132, 1140 (9th Cir. 2000) (holding that

an informational interest is not sufficiently important to

sustain compelled disclosure of advocates’ identities during

the circulation period).

But this doctrine does not apply here for two reasons.

First, the statute is directed toward the government’s interest

in preserving the integrity of elections, an interest that the

Supreme Court has recognized as sufficient to support

mandated disclosure of identity. Doe, 130 S. Ct. at 2820.

Second, the proponent of a California initiative is asking

voters to allow her to serve an official public role and to

allow her to act on the voters’ behalf in the legislative

process, not just recounting an idea as an advocate, and a

petition is an official legislative form, not a pamphlet or

advocacy document. See Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 363 (1997) (holding that the First

Amendment does not provide “a right to use the ballot itself

CHULA VISTA CITIZENS V. NORRIS 61

to send a particularized message”). Here, the disclosure

regime seeks to disclose the identity not of an advocate, but

of an individual who serves as an official proponent and

representative of the signers in the lawmaking process—a

role akin to a candidate for office and recognized explicitly as

distinct from that of an advocate under California law. See

Perry, 265 P.3d at 1017–18 (holding that “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”). The

government’s interest in alerting potential signatories to the

official proponent’s identity, as a representative of the

initiative, is markedly different than the interests at stake in

McIntyre, Citizens United, and ACLF—that is, knowing the

identity of a mere advocate in order to evaluate an argument.

The Individual Plaintiffs respond that the state’s interest

is satisfied, or lessened, by two other required points of

disclosure—at the points of application and publication in a

newspaper of general circulation. Cal. Elec. Code §§ 9202,

9205. That argument fails to recognize that the signing of a

petition in this context is not simply agreeing to the content

of an initiative; it also is an expression of support for that

particular official proponent. If the name of the official

proponent is not printed on the petition, every elector who is

considering whether to sign would be required to match the

petition with public records or newspaper publications in

order to glean whom the elector is designating as the official

proponent. The two earlier points of disclosure identified by

the Individual Plaintiffs would provide no identifying

information whatsoever to an elector who is approached on

the street with a petition; the elector would lack sufficient

information to allow for an informed decision whether to

62 CHULA VISTA CITIZENS V. NORRIS

sign. Such a disclosure scheme clearly would fail to satisfy

the government’s interest in any meaningful or realistic sense.

By analogy, if ballots listed only the platforms of

candidates for an office, but not the candidates’ names,

undoubtedly we would not find it sufficient that voters were

able to access the names and platforms of candidates from

public records or from local media in order to guide voting

choices. We do not permit federal candidates for public

office to remain anonymous at the point of contact with

voters, nor do we force voters to support federal candidates

without knowing the candidates’ identities. So too here, we

should uphold the decision by the citizens of Chula Vista to

prohibit anonymous candidates for an official legislative role.

Finally, the Supreme Court has allowed those resisting

disclosure to mount a successful First Amendment challenge

where “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.” Doe, 130 S. Ct. at

2820 (internal quotation marks and brackets omitted). The

Individual Plaintiffs, however, have provided no evidence

that shows a likelihood of harassment, and they have

effectively conceded that they experienced no harassment in

response to their service as official proponents to Chula Vista

Measure G. Moreover, given the public role that an official

proponent serves in the lawmaking process, some public

pressure must be expected in order to hold that official

proponent accountable to a good faith performance of his

duties. Accordingly, Plaintiffs have failed to show that the

compelled disclosure would subject them to threats,

harassment, or unreasonable reprisals from government

officials or the public.

CHULA VISTA CITIZENS V. NORRIS 63

In sum, I would hold that the disclosure regime survives

exacting scrutiny because it is substantially related and

narrowly tailored to the government’s interest in preserving

the integrity and transparency of the electoral process by

providing voters with the identity of the official proponent.

Accordingly, I respectfully dissent from Part IV. I would

affirm the judgment in full.