United States v. Jordon Simmons

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 En Banc

December 16, 2014—Pasadena, California

2 CHULA VISTA CITIZENS V. NORRIS

Filed April 3, 2015

Before: Sidney R. Thomas, Chief Judge, and Stephen

Reinhardt, Barry G. Silverman, Susan P. Graber,

M. Margaret McKeown, William A. Fletcher, Ronald M.

Gould, Richard C. Tallman, Johnnie B. Rawlinson,

Consuelo M. Callahan, and N. Randy Smith, Circuit

Judges.

Opinion by Judge Reinhardt

SUMMARY*

Civil Rights

The en banc court affirmed the district court’s summary

judgment in an action brought under 42 U.S.C. § 1983

challenging two requirements that the State of California and

the City of Chula Vista, California, place on persons who

wish to sponsor a local ballot measure: (1) the requirement

that the official proponent of a ballot measure be an elector,

thereby disqualifying corporations and associations from

holding that position; and (2) the requirement that the official

proponent’s name appear on each section of the initiative

petition that is circulated to voters for their signature.

The en banc court held that the requirement that the

official proponent of an initiative be an elector, thereby

excluding corporations and associations from holding that

*

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

position, does not violate the plaintiffs’ First Amendment

rights to freedom of speech and association. The en banc

court also held that the requirement that the name of the

official proponent of an initiative be disclosed on the face of

the initiative petitions withstands exacting scrutiny under the

First Amendment.

COUNSEL

James Bopp, Jr. (argued), and Richard E. Coleson, Bopp Law

Firm, Terre Haute, Indiana; Charles H. Bell, Jr., and Brian T.

Hildreth, Bell, McAndrews & Hiltachk, Sacramento,

California; Gary D. Leasure, Workman Leasure, San Deigo,

California, for Plaintiffs-Appellants.

Charles A. Bird (argued), McKenna Long & Aldridge, San

Diego, California, for Defendants-Appellees.

George Waters (argued), Deputy Attorney General; Kamala

D. Harris, Attorney General; Douglas J. Woods, Senior

Assistant Attorney General; Peter A. Krause, Supervising

Deputy Attorney General, Sacramento, California, for

Intervenor-Defendant—Appellee.

Dennis J. Herrera, City Attorney; Christine Van Aken, Chief

of Appellate Litigation; Joshua S. White and Andrew Shen,

Deputy City Attorneys, San Francisco City Attorney’s Office,

San Francisco, California, for Amici Curiae League of

California Cities.

4 CHULA VISTA CITIZENS V. NORRIS

OPINION

REINHARDT, Circuit Judge:

The plaintiffs in this case bring a First Amendment

challenge to two requirements that the State of California and

the City of Chula Vista, California, place on persons who

wish to sponsor a local ballot measure: (1) the requirement

that the official proponent of a ballot measure be an elector,

thereby disqualifying corporations and associations from

holding that position (“the elector requirement”); and (2) the

requirement that the official proponent’s name appear on each

section of the initiative petition that is circulated to voters for

their signature (“the petition disclosure requirement”). We

hold, as did the district court, that both requirements are

plainly constitutional.

I.

This case arises from the plaintiffs’ efforts to place on the

ballot what ultimately became Proposition G, an initiative

prohibiting the City of Chula Vista from entering into Project

Labor Agreements. Such agreements require that contractors

hired by the city to build public works projects pay their

employees a prevailing wage. The plaintiffs consist of Chula

Vista residents Lori Kneebone and Larry Breitfelder; Chula

Vista Citizens for Jobs and Fair Competition (“CVC”), an

unincorporated association and a ballot measure committee;

and Associated Builders and Contractors of San Diego, Inc.

(“ABC”), an incorporated association of construction-related

businesses. ABC is CVC’s largest donor. CVC and ABC

wished to serve as the official proponents of Proposition G,

but because an official proponent must be an elector, they

asked two CVC members—Kneebone and Breitfelder—to

CHULA VISTA CITIZENS V. NORRIS 5

serve as proponents so that the measure might be accepted by

the city clerk. Kneebone and Breitfelder agreed. CVC and

ABC paid for all of the expenses associated with qualifying

the initiative for the municipal ballot.

A brief overview of the laws governing the qualification

of an initiative for the municipal ballot is in order. Section

903 of the Chula Vista City Charter provides that “[t]here are

hereby reserved to the electors of the City the powers of the

initiative and referendum and of the recall of municipal

elective officers.” Section 903 then adopts the provisions of

the California Elections Code governing municipal initiatives,

referenda, and recall elections “so far as such provisions of

the Elections Code are not in conflict with this Charter.” The

California Elections Code in turn provides a three-step

process that official proponents must follow in order to

qualify an initiative for the municipal ballot.

First, an official proponent must file a notice of intent to

circulate a petition with the city clerk. The notice must

include the text of the proposed measure and the signature of

at least one, but not more than three, official proponents. Cal.

Elec. Code § 9202(a).1 Within fifteen days of the filing of the

notice, the city attorney must prepare a ballot title and brief

summary of the initiative, which is provided to the official

proponents. Id. § 9203.

Next, the official proponent must publish in a local

newspaper of general circulation the notice of intent,

accompanied by the title and summary prepared by the city

1

Additionally, the notice “may be accompanied by a written statement

not in excess of 500 words, setting forth the reasons for the proposed

petition.” Cal. Elec. Code § 9202(a) (emphasis added).

6 CHULA VISTA CITIZENS V. NORRIS

attorney. Id. § 9205(a).2 The effect of this requirement is that

the official proponent’s name—by way of the required

signature on the notice of intent—is published. Proof of

publication must be provided to the city clerk within ten days

of publication. Id. § 9206.

Once publication occurs, the official proponent may begin

circulating the initiative petitions and collecting signatures

from registered voters. Id. § 9207. A petition typically is

circulated in sections in order to facilitate signature gathering.

Id. § 9201. “Each section of the petition shall bear a copy of

the notice of intention and the title and summary prepared by

the city attorney.” Id. § 9207. Thus, the official proponent’s

name must appear on the face of the circulated petitions,

again by way of the signed notice of intent. The official

proponent has 180 days from the date of receipt of the title

and summary to file the signed petitions with the city clerk.

Id. § 9208. The city clerk then verifies the signatures on the

petitions and notifies the official proponent whether there are

sufficient signatures to qualify the measure for the ballot. Id.

§§ 9210, 9114, 9115. If there are enough valid signatures, the

city council must either adopt the measure as is or place it on

the ballot. Id. §§ 9214, 9215.3

2

If there is no newspaper of general circulation in the city, the same

information must be published in a county newspaper of general

circulation and posted in three designated public places. Id. § 9205(b). If

there is no county newspaper of general circulation, either, then posting

in three designated public places suffices. Id. § 9205(c).

3

Depending on the number of valid signatures collected, the City

Council either orders a special election or places the measure on the ballot

during the next regularly scheduled election. Id. §§ 9214, 9215.

CHULA VISTA CITIZENS V. NORRIS 7

Kneebone and Breitfelder made two attempts to place

Proposition G on the municipal ballot, the first of which is the

subject of the instant litigation. During the first attempt,

Kneebone and Breitfelder properly filed a signed notice of

intent and complied with the publication requirements. After

circulating the petitions, they submitted to Chula Vista City

Clerk Donna Norris petitions bearing 23,285 signatures.

However, Norris rejected the petitions because Kneebone and

Breifelder had not included their names as the official

proponents on the circulated petitions. Kneebone and

Breitfelder objected that CVC and ABC were the true

proponents of the initiative, and that they had accordingly

printed CVC and ABC’s names on the circulated petitions

instead of their own names. When Norris responded that she

could not process the signatures because the petitions did not

comply with the Elections Code, Kneebone and Breitfelder

restarted the process, this time in compliance with all of the

statutory requirements. As a result of this second effort to

qualify the measure, Proposition G appeared on the June 8,

2010 municipal election ballot and was approved by the

Chula Vista voters.

The plaintiffs filed the instant suit under 42 U.S.C. § 1983

in the Southern District of California on April 28,

2009—after Norris refused to process the first initiative

petition but while the efforts to qualify the second petition for

the ballot were ongoing. The complaint alleged that the

requirements that an official proponent be an elector and that

his name appear on the face of the circulated petitions violate

the First and Fourteenth Amendments, both facially and as

8 CHULA VISTA CITIZENS V. NORRIS

applied.4 The plaintiffs sought declaratory and injunctive

relief.

On June 4, 2009, the plaintiffs moved for a preliminary

injunction and an expedited hearing. The State of California

intervened as a defendant to defend the constitutionality of

the state election laws adopted by Chula Vista’s City Charter.

The district court held a hearing on the motion for a

preliminary injunction on August 19, 2009. The next day, it

ordered supplemental briefing on whether state election law

requires an official proponent to be a natural person. On

March 8, 2010, the district court denied the preliminary

injunction as moot in light of the fact that the plaintiffs’

second attempt to qualify Proposition G for the ballot had

succeeded. It also stayed the case pending the Supreme

Court’s decision in Doe v. Reed, 561 U.S. 186 (2010). When

the stay was lifted, both sides filed cross-motions for

summary judgment. On March 22, 2012, the district court

denied the plaintiffs’ motion and granted summary judgment

to the defendants, upholding both the elector and disclosure

requirements—requirements that it held were imposed by

both the state elections code and the city’s municipal charter.

This appeal followed.

II.

The plaintiffs first assert that the requirement that an

official proponent be an elector violates their rights to

freedom of speech and association under the First

Amendment by preventing non-natural persons—that is,

corporations and associations—from serving as official

4

Under the Fourteenth Amendment, the First Amendment is applicable

to actions by the states. Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947).

CHULA VISTA CITIZENS V. NORRIS 9

proponents.5 We conclude that the State of California and the

City of Chula Vista do not violate the First Amendment by

requiring that an official proponent—a person seeking a

unique position in a quintessentially legislative process—be

an elector.

A.

As a preliminary matter, the plaintiffs dispute the source

of the requirement that the official proponent of a municipal

initiative be an elector and, therefore, a natural person.

According to the plaintiffs, it is merely Chula Vista’s

“enforcement policy” that prohibits non-natural persons from

serving as official proponents, rather than any provision of

state or local law, and this undercuts “any purported interest

supporting such a Requirement.” Appellants’ Br. 8;

Appellants’ Reply Br. 2. This argument has no merit.

The California Constitution provides that “[t]he initiative

is the power of the electors to propose statutes and

amendments to the Constitution and to adopt or reject

them,” Cal. Const. art. II, § 8(a) (emphasis added), and that

“[i]nitiative and referendum powers may be exercised by the

electors of each city or county under procedures that the

Legislature shall provide.” Cal. Const. art. II, § 11(a)

(emphasis added). The Chula Vista City Charter likewise

5

The plaintiffs’ briefs also assert in passing that the elector requirement

violates their right to petition the government, but they neither develop

this claim nor provide any legal authority to support it. Accordingly, our

analysis of the elector requirement focuses on the freedom of speech and

association claims. See Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.

1993) (explaining that an issue raised in a brief but not supported by

argument or citations to legal authority may be deemed abandoned unless

a failure to review the issue would result in manifest injustice).

10 CHULA VISTA CITIZENS V. NORRIS

provides that “[t]here are hereby reserved to the electors of

the City the powers of the initiative and referendum and of

the recall of municipal elective officers.” City of Chula Vista

Charter § 903 (emphasis added). State election law, which the

Chula Vista Charter adopts, then defines an “elector” as “any

person who is a United States citizen 18 years of age or older

and . . . is a resident of an election precinct at least 15 days

prior to an election.” Cal. Elec. Code § 321(a); see also

People v. Darcy, 139 P.2d 118, 123 (Cal. Ct. App. 1943)

(“An elector is one who has the qualifications to vote but may

not have complied with the legal requirements, that is, the

conditions precedent to the exercise of his right to vote.”),

disapproved on other grounds by Murgia v. Mun. Court,

540 P.2d 44, 54 n.11 (Cal. 1975).

These provisions mean what they say: only natural

persons (also known as human beings) who have the

qualifications to vote may undertake official roles in

California’s initiative process, including the role of official

proponent. The plaintiffs contend that the California

Constitution “merely says that electors ‘propose’ initiatives

by signing petitions in sufficient number to qualify them for

the ballot and then ‘adopt or reject’ them. It says nothing

about who may be proponents.” Appellants’ Br. 9–10. It is

obvious, however, that a “proponent” is one who “proposes,”

and that an official proponent exercises initiative powers. See

Webster’s New World Dictionary 1078 (3d Coll. ed. 1988).

Thus, both the California Constitution and the Chula Vista

City Charter plainly reserve to electors the right to be

proponents. See Cal. Const. art. II, §§ 8, 11; City of Chula

Vista Charter § 903. Nor do the plaintiffs offer any arguments

that would convince a reasonable jurist that these state and

local laws mean something other than their plain

meaning—that an official proponent must be an elector and

CHULA VISTA CITIZENS V. NORRIS 11

thus a natural person. See United States v. Gallegos, 613 F.3d

1211, 1214 (9th Cir. 2010) (“If the plain language of a statute

renders its meaning reasonably clear, [we] will not investigate

further unless its application leads to unreasonable or

impracticable results.” (alteration in original) (internal

quotation marks omitted)).6

6

The plaintiffs make two additional arguments in support of their claim

that the elector requirement is merely an “enforcement policy” of the city.

First, they point out that California Elections Code § 342, which defines

“[p]roponent or proponents of an initiative or referendum measure,” was

amended during the pendency of this case so that the proponent of a

statewide initiative is described as an “elector” while the proponent of

“other initiative . . . measures” is a “person.” (Previously, both statewide

and local proponents were described by the statute as a “person.”) They

assert that this distinction must be meaningful, and that “person” must be

broader than “elector” and must include non-natural persons. Second, the

plaintiffs point to a number of cases in which an association served as an

official proponent, or at least is described as a “proponent.” Neither of

these arguments succeeds in light of our holding that the California

Constitution and the Chula Vista City Charter each imposes the elector

requirement. See Domar Electric, Inc. v. City of Los Angeles, 885 P.2d

934, 938 (Cal. 1994) (“[T]he charter represents the supreme law of the

City, subject only to conflicting provisions in the federal and state

constitutions and to preemptive state law.”).

Additionally, our review of the legislative history of the amendment

to section 342 indicates that the change to the definition of “proponent”

was not intended to be substantive. See Sen. Rules Comm., Third Reading

Analysis, Assem. Bill 753 (2009–2010 Reg. Sess.), Sept. 3, 2009

(describing the legislation as a “code cleanup measure” sponsored by the

Secretary of State “to reorganize, update, and clarify” the elections code

provisions pertaining to statewide initiatives).

Finally, none of the cases cited by the plaintiffs addressed the

question whether an association or corporation may serve as an official

proponent. See United States v. City of Oakland, 958 F.2d 300 (9th Cir.

1992); Glendale Tenants Ass’n v. City of Glendale, No. B175160, 2005

WL 419409 (Cal. Ct. App. 2005) (unpublished); MHC Fin. Ltd. P’ship

12 CHULA VISTA CITIZENS V. NORRIS

Norris asserts as a fallback position that if we have any

doubt, we should exercise our discretion to abstain under the

doctrine announced in Railroad Commission of Texas v.

Pullman Co., 312 U.S. 496 (1941), and allow state courts to

resolve the matter. We do not do so for two reasons. First, we

do not find any such ambiguity; thus abstention would be

inappropriate. See City of Houston v. Hill, 482 U.S. 451,

467–68 (1987). Second, “[a]bstention is . . . the exception and

not the rule,” and it is strongly disfavored in First

Amendment cases. Id. at 467. “It is rarely appropriate for a

federal court to abstain under Pullman in a First Amendment

case, because there is a risk in First Amendment cases that the

delay that results from abstention will itself chill the exercise

of the rights that the plaintiffs seek to protect by suit.” Porter

v. Jones, 319 F.3d 483, 486–87 (9th Cir. 2003). “‘Indeed,

constitutional challenges based on the [F]irst [A]mendment

right of free expression are the kind of cases that the federal

courts are particularly well-suited to hear. That is why

abstention is generally inappropriate when [F]irst

[A]mendment rights are at stake.’” See id. at 492 (quoting J-R

Distribs., Inc. v. Eikenberry, 725 F.2d 482, 487 (9th Cir.

1984), overruled on other grounds by Brockett v. Spokane

Arcades, Inc., 472 U.S. 491 (1985)). We conclude that this

Two v. City of Santee, 23 Cal. Rptr. 3d 622 (Ct. App. 2005); Alliance for

a Better Downtown Millbrae v. Wade, 133 Cal. Rptr. 2d 249 (Ct. App.

2003); Save Stanislaus Area Farm Econ. v. Bd. of Supervisors, 16 Cal.

Rptr. 2d 408 (Ct. App. 1993); Citizens for Responsible Behavior v.

Superior Court, 2 Cal. Rptr. 2d 648 (Ct. App. 1991); Coal. for Fair Rent

v. Abdelnour, 165 Cal. Rptr. 685, 691 (Ct. App. 1980). We agree with the

district court that the fact that in some cities and counties associations may

have served as proponents in the past without being challenged says

nothing about the existence or validity of the elector requirement. See

Chula Vista Citizens for Jobs & Fair Competition v. Norris, 875 F. Supp.

2d 1128, 1137 n.9 (S.D. Cal. 2012).

CHULA VISTA CITIZENS V. NORRIS 13

case does not fall within the “‘extraordinary and narrow

exception to the duty of a . . . court to adjudicate a

controversy.’” Wolfson v. Brammer, 616 F.3d 1045, 1066 (9th

Cir. 2010) (brackets omitted) (quoting Canton v. Spokane

Sch. Dist. No. 81, 498 F.2d 840, 845 (9th Cir. 1974),

overruled on other grounds as recognized by Heath v. Cleary,

708 F.2d 1376, 1378 n.2 (9th Cir. 1983)). We now turn to the

merits of the plaintiffs’ claim that the elector requirement

violates the First Amendment.7

B.

“States allowing ballot initiatives have considerable

leeway to protect the integrity and reliability of the initiative

process, as they have with respect to election processes

generally.” Buckley v. Am. Constitutional Law Found., Inc.

(“ACLF”), 525 U.S. 182, 191 (1999). True, every state law

regulating elections, “whether it governs the registration and

qualifications of voters, the selection and eligibility of

candidates, or the voting process itself, inevitably affects—at

least to some degree—the individual’s right to vote and his

right to associate with others for political ends.” Anderson v.

Celebrezze, 460 U.S. 780, 788 (1983). States of course may

not adopt “voter qualifications which invidiously

discriminate,” Harper v. Va. State Bd. of Elections, 383 U.S.

663, 666 (1966), but “‘as a practical matter, there must be a

substantial regulation of elections if they are to be fair and

honest and if some sort of order, rather than chaos, is to

7

That the plaintiffs have successfully qualified Proposition G for the

ballot and the voters of Chula Vista have approved it does not moot this

case because it is “capable of repetition, yet evading review.” Fed.

Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007); see

also Davis v. Fed. Election Comm’n, 554 U.S. 724, 735 (2008).

14 CHULA VISTA CITIZENS V. NORRIS

accompany the democratic processes,’” Anderson, 460 U.S.

at 788 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).

As a result, “the rigorousness of our inquiry into the propriety

of a state election law depends upon the extent to which a

challenged regulation burdens First and Fourteenth

Amendment rights.” Burdick v. Takushi, 504 U.S. 428, 434

(1992); see also ACLF, 525 U.S. at 192 (“[N]o litmus-paper

test will separate valid ballot-access provisions from invalid

interactive speech restrictions . . . .” (internal quotations

marks omitted)).8 “[T]he state’s important regulatory interests

are generally sufficient to justify reasonable,

nondiscriminatory restrictions.” Anderson, 460 U.S. at 788.

The elector requirement does not impose any meaningful

burden on First Amendment rights. The plaintiffs seek a

legislative power and, as they conceded at oral argument,

many legislative and official political acts are properly

reserved to members of the electorate. For example,

corporations cannot vote. U.S. Const. amend. XXVI; Cal.

Const. art. II, § 2. Nor can they run for political office or be

appointed to fill vacancies. U.S. Const. art I, §§ 2–3; U.S.

Const. art. II, § 1; U.S. Const. amend. XII; U.S. Const.

amend. XXV; Cal. Const. art. IV, § 2; Cal. Const. art. V, § 2.

Under California law, they cannot sign initiative petitions,

Cal. Const. art. II § 8; Cal. Elec. Code § 9207, sign candidate

nominating papers, Cal. Elec. Code § 8060, or introduce

legislation, Standing Rules of the Senate, 2015–2016 Reg.

Sess., Rule 28.5; Standing Rules of the Assemb., 2015–2016

8

The defendants contend that the First Amendment has no application

to the elector requirement because it is a regulation of the legislative

process. We need not decide the question, as we conclude that in any

event the elector requirement survives First Amendment scrutiny.

CHULA VISTA CITIZENS V. NORRIS 15

Reg. Sess., Rule 47.9 The plaintiffs fail to provide any

reason—and we find none—that the state and city may not

similarly limit the exercise of the initiative power to members

of the relevant political community: electors.

The initiative power that California and the City of Chula

Vista have reserved to electors is indisputably a legislative

power. See Cal. Const. art. II, § 8; Cal. Const. art. II, § 11;

City of Chula Vista Charter § 903. The initiative system

reserves to “the voters of California the authority to directly

propose and adopt state constitutional amendments and

statutory provisions,” and the California Supreme Court

characterizes this as “essentially a legislative authority.”

Perry v. Brown, 265 P.3d 1002, 1016, 1027 (Cal. 2011); see

also Builders Ass’n of Santa Clara-Santa Cruz Cntys. v.

Superior Court, 529 P.2d 582, 586 (Cal. 1974) (explaining

that the initiative “represents an exercise by the people of

their reserved power to legislate”); Widders v. Furchtenicht,

84 Cal. Rptr. 3d 428, 439–40 (Ct. App. 2008) (“The initiative

process . . . is a method of enacting legislation . . . .”);

Carlson v. Cory, 189 Cal. Rptr. 185, 187 (Ct. App. 1983)

(“Our State Constitution clearly indicates that the power of

the initiative is the separate and distinct power of the people

to legislate[.]”). Much like a legislator who begins the

traditional legislative process by placing a bill in the hopper,

an official proponent commences the process of legislating by

initiative by asking voters to sign a petition to place an

initiative on the ballot. See Widders, 84 Cal. Rptr. 3d at 438.

Thus, by seeking to serve as official proponents, the plaintiffs

seek to wield a legislative power.

9

Available at http://tinyurl.com/CAlegSR4; http://tinyurl.com/CAHR1.

16 CHULA VISTA CITIZENS V. NORRIS

Not only do the corporate and associational plaintiffs wish

to participate in this legislative process, they assert that they

are entitled to serve as official proponents—a “unique role

. . . in the constitutional initiative process.” Perry, 265 P.3d

at 1006. Under California law, “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—with regard to the

initiative measure the proponents have sponsored.” Id. at

1017–18. After submitting the text of a proposed measure to

an elections official and notifying the public of the

commencement of the initiative process, Cal. Elec. Code

§§ 9202, 9205, “[t]he proponents [have] the direct

responsibility to manage and control the ballot-qualifying and

petition-filing process.” Perry, 265 P.3d at 1024. The official

proponent oversees the process of collecting signatures from

voters supporting the initiative, and only the official

proponent may authorize the filing of the signed initiative

petitions—the final step before a measure is placed on the

ballot. Cal. Elec. Code §§ 9207, 9210. The official proponent

then controls which arguments in support of the measure will

appear in the pamphlet printed and distributed to voters by the

elections official. Id. §§ 9282, 9287. Finally, if public

officials decline to defend a challenged voter-approved

initiative, under state law the official proponent may

intervene or appear as a real party in interest “in order to

assert the people’s and hence the state’s interest in the

validity of the measure.” Perry, 265 P.3d at 1006. But see

Hollingsworth v. Perry, 133 S. Ct. 2652, 2663–67 (2013)

(holding that official proponents of California’s Proposition

8 lacked federal constitutional standing). Thus, while all

California voters play a quasi-legislative role in the initiative

process, the official proponent is particularly akin to a

legislator—sponsoring legislation and shepherding it through

CHULA VISTA CITIZENS V. NORRIS 17

the legislative process. Indeed, like a legislator introducing

legislation, and unlike a mere lobbyist (the plaintiffs’

preferred characterization), an official proponent performs a

series of necessary steps for the people to exercise the power

to legislate by initiative.

We have no doubt that states and cities may, wholly

consistent with the First Amendment, require that those who

seek to propose legislation—and to play a special role with

unique responsibilities and powers in the legislative

process— be electors. The issue here is in some respects

analogous to that in Nevada Commission on Ethics v.

Carrigan, in which the Supreme Court held that a legislator

lacks a First Amendment right to cast a vote on any given

matter before the legislature: “a legislator has no [First

Amendment] right to use official powers for expressive

purposes.” 131 S. Ct. 2343, 2351 (2011). The Court explained

that a legislator’s vote “is a core legislative function” and that

“[t]his Court has rejected the notion that the First Amendment

confers a right to use governmental mechanics to convey a

message.” Id. at 2347, 2351 (internal quotation marks

omitted) (citing Timmons v. Twin Cities Area New Party,

520 U.S. 351 (1997)). Much like the recusal provision at

issue in Carrigan, the elector requirement in this case

restricts who may exercise official, legislative powers and, at

most, only incidentally burdens core political speech.

Therefore, in assessing “the character and magnitude of the

asserted injury to the rights protected by the First and

Fourteenth Amendments that the plaintiff[s] seek[ ] to

vindicate,” Anderson, 460 U.S. at 789, we conclude that, in

line with Carrigan, the State of California and the City of

Chula Vista may reserve the power to legislate to the people

by way of the elector requirement without posing anything

18 CHULA VISTA CITIZENS V. NORRIS

more than, at most, an incidental burden on First Amendment

rights.

We next “identify and evaluate the precise interests put

forward by the State as justifications for the burden imposed

by its rule” and assess “the extent to which those interests

make it necessary to burden the plaintiff[s’] rights.” Id. The

defendants assert an important interest—indeed, a compelling

one—in securing the people’s right to self-government. The

elector requirement operates to ensure that those who exercise

this unique legislative power are members of the political

community who will be bound by the proposed initiative

should it become law—those with the qualifications to vote.

The Supreme Court has repeatedly declared that states may

restrict the performance of official acts such as voting or

holding political office to members of the political

community—that is, to electors. “We recognize a State’s

interest in establishing its own form of government, and in

limiting participation in that government to those who are

within the basic conception of a political community. We

recognize, too, the State’s broad power to define its political

community.” Sugarman v. Dougall, 413 U.S. 634, 642–43

(1973) (internal quotation marks and citation omitted). For

example, bona fide residence requirements for voting

“preserve the basic conception of a political community, and

therefore could withstand [even] close constitutional

scrutiny.” Dunn v. Blumstein, 405 U.S. 330, 344 (1972).

The elector requirement in the instant case similarly

ensures that only members of the relevant political

community may hold an official position in the lawmaking

process. It should not be controversial that California and the

City of Chula Vista want civic-minded individuals with

knowledge of local affairs to be the initiators of local

CHULA VISTA CITIZENS V. NORRIS 19

legislation. Conversely, the elector requirement prevents

outsiders without ties to the community from officially

proposing legislation that will govern that community. We

agree with the district court that:

Permitting a corporation or association to be

a ballot initiative proponent could lead to

local laws being proposed by foreigners

unready to contribute to the city or bear the

responsibility of citizenship. Worse,

corporations with assets, operations, or

shareholders located outside the city, state, or

country might propose initiatives adversely

affecting the welfare of citizens of Chula

Vista, in order to gain a business advantage

elsewhere. Likewise, associations of people

who live and work in other locales, could

propose laws to their own advantage or the

disadvantage of Chula Vistans.

Chula Vista Citizens for Jobs & Fair Competition v. Norris,

875 F. Supp. 2d 1128, 1136 (S.D. Cal. 2012). The elector

requirement is an entirely appropriate mechanism for averting

those dangers and for reserving to the people the right of self-

government.10

10

The plaintiffs correctly point out that the elector requirement is not as

narrowly tailored to this interest as it might be. It applies to associations

like CVC, some of whose members are electors. Additionally, it is

somewhat redundant in that the requirement that a petition be signed by

a specified number of voters similarly ensures that the relevant political

community supports the initiative. The elector requirement need not,

however, be narrowly tailored to the state’s interest in light of the

negligible burden it imposes on core political speech. See ACLF, 525 U.S.

at 206 (Thomas, J., concurring in the judgment) (“To require that every

20 CHULA VISTA CITIZENS V. NORRIS

The history of the initiative system in California confirms

that the elector requirement is central to a functioning system

of direct democracy. California adopted the initiative system

in 1911 at a special election called by Governor Hiram

Johnson, a member of the Progressive Reform Movement, “in

light of the theory that all power of government ultimately

resides in the people.” Perry, 265 P.3d at 1016; Karl

Manheim & Edward P. Howard, A Structural Theory of the

Initiative Power in California, 31 Loy. L.A. L. Rev. 1165,

1187 n.162 (1998). There was “a widespread belief that the

people had lost control of the political process,” Perry,

265 P.3d at 1016, as the Southern Pacific Railroad had come

to dominate state politics at the turn of the century:

Virtually every California legislator and judge

owed his office to the Southern Pacific. . . .

One member of the legislature observed that

“[s]carcely a vote was cast in either house that

did not show some aspect of Southern Pacific

ownership, petty vengeance, or legislative

blackmail.” Indeed, “in the thirty years

following adoption of the 1879 constitution,

not a single bill opposed by the Southern

Pacific Railroad was enacted in Sacramento.”

. . . [T]he examples of the railroad’s

dominance in every nook and cranny of the

state [were] legion . . . .

voting, ballot, and campaign regulation be narrowly tailored to serve a

compelling interest ‘would tie the hands of States seeking to assure that

elections are operated equitably and efficiently.’” (quoting Burdick,

504 U.S. at 433)).

CHULA VISTA CITIZENS V. NORRIS 21

Manheim & Howard, supra, at 1184 (footnotes and paragraph

break omitted). See also Strauss v. Horton, 207 P.3d 48, 84

(Cal. 2009). The initiative system was designed as an antidote

to this capture of the legislature by a powerful

corporation—“one means of restoring the people’s rightful

control over their government.” Id. By allowing an individual

elector to assume the role of legislator, the initiative process

“enable[s] the people to amend the state Constitution or . . .

enact statutes when current government officials have

declined to adopt (and often have publicly opposed) the

measure in question.” Perry, 265 P.3d at 1006; see also

Samuel Issacharoff et al., The Law of Democracy: Legal

Structure of the Political Process 937 (4th ed. 2012)

(“Initiatives and referenda were touted [“at the turn of the

twentieth century”] as a means of overcoming the capture of

legislatures by special interests, such as the railroads, mining

companies, and other industries, and of circumventing the

power of ward-based political machines . . . .”). Thus, the

initiative system is, at its core, a mechanism to ensure that the

people, rather than corporations or special interests, maintain

control of their government. The elector requirement clearly

furthers this essential purpose of the initiative system.11

11

That the initiative process may not have served its purposes as well as

its original proponents hoped does not affect our decision here. There is

mounting evidence that corporations and ultra-wealthy individuals have

come to dominate the initiative process. See California Comm’n on

Campaign Financing, Democracy By Initiative: Shaping California’s

Fourth Branch of Government 264–74 (1992); Adam Winkler, Beyond

Bellotti, 32 Loy. L.A. L. Rev. 133, 137–39 (1998); Jamin B. Raskin,

Direct Democracy, Corporate Power and Judicial Review of

Popularly-Enacted Campaign Finance Reform, 1996 Ann. Surv. Am. L.

393, 395–99 (1996); John S. Shockley, Direct Democracy, Campaign

Finance, and the Courts: Can Corruption, Undue Influence, and

Declining Voter Confidence Be Found?, 39 U. Miami L. Rev. 377,

393–96 (1985); J. Skelly Wright, Money and the Pollution of Politics: Is

22 CHULA VISTA CITIZENS V. NORRIS

C.

The plaintiffs nonetheless contend that the elector

requirement triggers strict scrutiny and is impermissible

under Citizens United v. Federal Election Commission,

558 U.S. 310 (2010), for three reasons: (1) it is a direct ban

on core political speech; (2) it bans disfavored speakers’

speech; and (3) it requires speech by proxy. They are wrong.

As to the plaintiffs’ first point: advocating for an initiative

petition at the circulation stage is certainly core political

speech, see Meyer v. Grant, 486 U.S. 414, 421–22 (1988); see

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

(1995), but that is not what is at issue in this case. We repeat:

a corporation or association is banned from serving only as

an official proponent—a unique legislative position that may

properly be reserved to members of the political community.

Corporations and associations may still speak as much as they

wish in support of or opposition to an initiative. Indeed, ABC

and CVC were the sole financial backers of Proposition G.

By contrast, in Citizens United, the independent expenditure

ban at issue prohibited all electioneering communications by

corporations during the time preceding an election. See

the First Amendment an Obstacle to Political Equality?, 82 Colum. L.

Rev. 609, 622–25 (1982); see also Michael Hiltzik, On California

Initiatives, Money Talked, The Public Interest Walked, L.A. Times, Nov.

5, 2014, http://tinyurl.com/latimeshiltzik; Norimitsu Onishi, California

Ballot Initiatives, Born in Populism, Now Come from Billionaires, N.Y.

Times, Oct. 17, 2012, at A22; Ina Jaffe, Corporate Bucks Behind

‘Citizens’ Initiatives in Calif., Nat’l Public Radio, May 24, 2010,

http://tinyurl.com/nprjaffe. However, the State of California and the City

of Chula Vista are entitled to continue striving to guarantee self-

government to their citizens, notwithstanding these shortcomings of direct

democracy, and to improve the initiative process should they so desire.

CHULA VISTA CITIZENS V. NORRIS 23

558 U.S. at 337. In short, neither California nor the City of

Chula Vista prohibits corporations or associations from acting

as supporters or advocates for an initiative at any time, and

thus core political speech is burdened by the elector

requirement only incidentally, if it is burdened at all. Citizens

United plainly does not establish that every time an election

law incidentally affects a corporation—no matter how

indirectly and minimally—strict scrutiny is triggered and the

law invalidated.

Moreover, the plaintiffs fail to adduce any evidence that

the elector requirement in any way burdens the ability to

qualify measures for the ballot, reducing the total quantum of

political speech and triggering heightened scrutiny. See Angle

v. Miller, 673 F.3d 1122, 1132 (9th Cir. 2012) (explaining

that strict scrutiny applies only where a regulation of the

initiative process severely burdens speech by limiting the

number of voices that will convey the proponent’s message,

making it less likely that the matter will be placed on the

ballot and become the focus of public discussion); Prete v.

Bradbury, 438 F.3d 949, 961–63 (9th Cir. 2006) (same).

Indeed, the corporate and associational plaintiffs in this case

successfully located individual electors to serve as official

proponents for their initiative and, as explained infra in

Section III.A, California has one of the most active local

initiative systems in the country. Thus, plaintiffs have not

offered any evidence that would support their argument that

the elector requirement is a direct ban on core political

speech. See Angle, 673 F.3d at 1133–34 (holding that strict

scrutiny did not apply because the plaintiffs had failed to

meet their burden of demonstrating that the challenged

regulation of the initiative process “significantly inhibit[s] the

ability of initiative proponents to place initiatives on the

ballot”).

24 CHULA VISTA CITIZENS V. NORRIS

As to the plaintiffs’ second contention, the elector

requirement does not violate the “principle . . . that the

Government may not suppress political speech on the basis of

the speaker’s corporate identity.” Citizens United, 558 U.S.

at 365. That corporations have First Amendment rights does

not establish that those rights are coextensive with the rights

of electors. See, e.g., Thalheimer v. City of San Diego,

645 F.3d 1109, 1124–25 (9th Cir. 2011). Indeed, Citizens

United itself noted that “there are certain governmental

functions that cannot operate without some restrictions on

particular kinds of speech,” although those restrictions may

operate to the disadvantage of certain speakers. 558 U.S. at

341. In a similar vein, First National Bank of Boston v.

Bellotti explained that certain constitutional rights, “such as

the privilege against compulsory self-incrimination, are

unavailable to corporations and other organizations because

the ‘historic function’ of the particular guarantee has been

limited to the protection of individuals.” 435 U.S. 765, 778

n.14 (1978) (quoting United States v. White, 322 U.S. 694,

698–701 (1944)). Certainly no one would argue that Citizens

United and Bellotti extend so far as to grant to corporations

the right to vote or to hold public office (or even to sit on the

bench). The plaintiffs concede as much. We accordingly

refuse to extend Citizens United to grant to corporations and

associations the right to hold a distinct, official role in the

process of legislating, by initiative or otherwise.

As to the plaintiffs’ final attempt to expand Citizens

United, there is no problem here of requiring speech by

proxy. Corporations and associations simply cannot perform

official legislative functions directly or by proxy. The

avenues of expression guaranteed to corporations and

associations meanwhile are left fully open to them and are in

no way burdened. Cf. Citizens United, 558 U.S. at 337. The

CHULA VISTA CITIZENS V. NORRIS 25

mere fact that the corporate and associational plaintiffs must

rely on their members or other electors to serve as official

proponents does not violate the First Amendment or trigger

heightened scrutiny. Under the plaintiffs’ view of Citizens

United, the government could not exclude corporations or

associations from any position available to human beings

because to do so would impermissibly require speech by

proxy—an assertion that is clearly untenable.

Finally, we address briefly the plaintiffs’ claims

pertaining to freedom of association. The plaintiffs make two

arguments, both of which are foreclosed by our holding that

the elector requirement is otherwise valid under the First

Amendment. First, the plaintiffs contend that, “[e]ven if the

right to be an initiative proponent belonged solely to

‘electors,’ forbidding electors to associate to enhance their

advocacy directly and severely burdens the right to

associate.” Appellants’ Br. 19–20. Nothing in the California

or municipal law, however, prevents the members of CVC

and ABC from banding together to advocate for or against an

initiative as an association; they simply lack the right to

collectively serve as an official proponent. Second, the

plaintiffs contend that the elector requirement creates an

unconstitutional condition by forcing them to choose between

their First Amendment rights to engage in political speech as

official proponents and to privacy of association. Because we

find no First Amendment right of corporations or associations

to serve as official proponents, this argument is without merit.

Thus, the plaintiffs’ associational claims also fail, as do all of

their attempts to push Citizens United beyond what the Court

held in that case.

***

26 CHULA VISTA CITIZENS V. NORRIS

“In assessing the countervailing interests at stake in this

case, we must be mindful of the character of initiatives and

referenda. These mechanisms of direct democracy are not

compelled by the Federal Constitution. It is instead up to the

people of each State, acting in their sovereign capacity, to

decide whether and how to permit legislation by popular

action.” Reed, 561 U.S. at 212 (Sotomayor, J., concurring).

The elector requirement at issue in this case merely limits to

those qualified to vote the ability to serve as an official

proponent, a legislative role with unique powers and

responsibilities under state law. We hold that the First

Amendment does not prohibit the State of California and the

City of Chula Vista from reserving this legislative power to

electors in order to preserve the self-government of their

citizens.

III.

Next, the plaintiffs challenge the requirement that an

official proponent’s name appear on the face of the initiative

petitions circulated to voters. To recapitulate, California’s

statutory regime, as adopted by the Chula Vista City Charter,

requires an official proponent to disclose his identity on three

occasions: (1) the filing of a notice of intent to circulate an

initiative petition with the city clerk, which must be signed by

at least one and not more than three, proponents, Cal. Elec.

Code § 9202(a); (2) the publication of the signed notice of

intent in a newspaper of general circulation, id. § 9205; and

(3) the inclusion of the signed notice of intent on each section

of the circulated initiative petition, id. §§ 9202(a), 9207. The

plaintiffs in this case challenge only the last of these

requirements—the petition disclosure requirement. Applying

exacting scrutiny, we conclude that this disclosure does not

violate the First Amendment.

CHULA VISTA CITIZENS V. NORRIS 27

A.

As an initial matter, we reject the plaintiffs’ contention

that strict scrutiny applies. “[D]isclosure requirements may

burden the ability to speak, but they impose no ceiling on

campaign-related activities and do not prevent anyone from

speaking.” Citizens United, 558 U.S. at 366 (internal

quotation marks and citation omitted). For this reason, the

Supreme Court has consistently “subjected these

requirements to ‘exacting scrutiny,’ which requires a

‘substantial relation’ between the disclosure requirement and

a ‘sufficiently important’ governmental interest.” Id. at

366–67 (quoting Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976)

(per curiam)); see also Reed, 561 U.S. at 196–97; Family

PAC v. McKenna, 685 F.3d 800, 803 (9th Cir. 2012). The

public nature of an official proponent’s position and the

legislative character of an initiative petition inform this

analysis. In other words, that exacting scrutiny applies “is not

to say that the electoral context is irrelevant to the nature of

our First Amendment review. We allow States significant

flexibility in implementing their own voting systems,”

including the initiative process. Reed, 561 U.S. at 195, 197.

As we stated earlier, supra p. 23, strict scrutiny applies

only where the challenged law severely burdens the ability to

place an initiative on the ballot. See Angle, 673 F.3d at 1132;

Prete, 438 F.3d at 961–63. Contrary to the plaintiffs’

contention that strict scrutiny applies here, disclosure of the

identities of the official proponents of an initiative measure

places only a minimal burden on First Amendment rights, if

it imposes any burden at all. The petition disclosure

requirement simply provides for identification of the

initiative’s official proponents on the face of the initiative

petitions. An official proponent is prohibited from speaking

28 CHULA VISTA CITIZENS V. NORRIS

anonymously only within the four corners of the initiative

petition—an official election document. See S.F. Forty-

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

(“The initiative petition with its notice of intention is not a

handbill or campaign flyer—it is an official election

document . . . . It is the constitutionally and legislatively

sanctioned method by which an election is obtained on a

given initiative proposal.”). Nothing limits the quantity of

speech that a proponent or anyone else may otherwise engage

in to promote the initiative, and an initiative’s official

proponent may still engage in anonymous speech about the

proposed ballot measure or any other topic.

In asserting that strict scrutiny applies, the plaintiffs rely

upon cases that prohibit the disclosure of the identity of

petition circulators—a role distinct from that of an initiative

proponent or a petition signatory. Those cases found that the

overall quantity of speech would be reduced by identifying

petition circulators who engage in person-to-person voter

persuasion because it would expose circulators “to the risk of

‘heat of the moment’ harassment,” chilling speech. ACLF,

525 U.S. at 199–200, 204 (invalidating requirements that

circulators wear name badges and that names and addresses

of paid circulators be disclosed in monthly reports because

they “discourage[ ] participation in the petition circulation

process by forcing name identification without sufficient

cause”); see also Meyer, 486 U.S. at 423 (invalidating ban on

paid circulators because it “has the inevitable effect of

reducing the total quantum of speech on a public issue”);

(WIN) Wash. Initiatives Now v. Rippie, 213 F.3d 1132, 1137

(9th Cir. 2000) (invalidating disclosure of names and

addresses of paid circulators because “[t]here can be no doubt

that the compelled disclosure of this information chills

CHULA VISTA CITIZENS V. NORRIS 29

political speech”). The disclosure requirement in the instant

case, however, has no such chilling effect.

There is no indication that the petition disclosure

requirement operates to reduce the total quantum of speech

pertaining to ballot initiatives. More than sixty municipal

initiatives qualified for the ballot during calendar years

2009–2010, the time period during which the plaintiffs sought

to qualify Proposition G for the ballot. In fact, California is

known for having one of the most robust initiative systems in

the country. See L. Tobe Liebert, Researching California

Ballot Measures, 90 Law Libr. J. 27, 28 (1998) (“Since

[1911], the people of California have used the ballot measure

process more than any other state to create the laws by which

they are governed.”). It bears noting that the plaintiffs in this

case were not deterred from sponsoring Proposition G by the

petition disclosure requirement; rather, they simply would

have preferred to list CVC and ABC’s names. Indeed, they

have no objection to the two other required public disclosures

of their names.

Further distinguishing the cases on which the plaintiffs

rely, an official proponent plays a far different role from that

of a circulator and does not engage in direct voter contact as

part of his official duties as a proponent. Should he choose to

do so, there is no requirement that he reveal to the voter that

he is in fact the official proponent named on the petitions; the

proponent may choose to remain anonymous at the point of

voter contact just like any ordinary circulator.12 Thus, the

petition disclosure requirement in no way “restrict[s] one-on-

12

Of course, if the voter recognizes the proponent who is also acting as

a circulator, then the proponent has no claim that the petition disclosure

has deprived him of anonymity. He is already known.

30 CHULA VISTA CITIZENS V. NORRIS

one communication between petition circulators and voters.”

Angle, 673 F.3d at 1132.

In upholding disclosure requirements for lobbyists, the

Supreme Court explained that “[h]ypothetical borderline

situations are conjured up in which . . . persons choose to

remain silent . . . . The hazard of such restraint is too remote

to require striking down a statute which on its face is

otherwise plainly within the area of [legislative] power and is

designed to safeguard a vital [governmental] interest.” United

States v. Harriss, 347 U.S. 612, 626 (1954). So too, here the

hypothetical possibility that someone somewhere might be

deterred from proposing an initiative by the requirement that

the circulated petitions include his name—but not by the

requirements that his name be available to the public on file

in the city clerk’s office or that he publish his name in a

newspaper of general circulation—is too remote to warrant

the application of strict scrutiny. See Angle, 673 F.3d at 1134

(holding that the plaintiffs’ “assertions are too vague,

conclusory and speculative to create a triable issue that” the

challenged initiative regulation severely burdens protected

speech); Family PAC, 685 F.3d at 807 (“[A]lthough Family

PAC cites a survey conducted in six states (not including

Washington) purporting to show that people may ‘think

twice’ about contributing to ballot measure committees if

their names and addresses are to be publicly disclosed,

Family PAC has not presented evidence suggesting that

Washington’s disclosure laws actually and meaningfully deter

contributors.”). Given the absence of evidence that the

petition disclosure requirement has an effect on the total

quantum of speech pertaining to ballot measures and the

Supreme Court’s repeated application of exacting scrutiny to

disclosure requirements, we conclude that strict scrutiny is

inapplicable here.

CHULA VISTA CITIZENS V. NORRIS 31

B.

“‘To withstand [exacting] scrutiny, ‘the strength of the

governmental interest must reflect the seriousness of the

actual burden on First Amendment rights.’” Reed, 561 U.S.

at 196 (quoting Davis v. Fed. Election Comm’n, 554 U.S.

724, 744 (2008)). As explained supra, the actual burden

imposed on First Amendment rights by the petition disclosure

requirement is quite small. Meanwhile, two important

governmental interests justify the requirement: (1) an interest

in the integrity of the electoral process, and (2) an

informational interest. Although we conclude that the former

interest is sufficient in and of itself to justify the petition

disclosure requirement, we also address the latter interest

because it is inextricably linked to the former.

“The State’s interest in preserving the integrity of the

electoral process is undoubtedly important.” Reed, 561 U.S.

at 197; see also Timmons, 520 U.S. at 364 (“States certainly

have an interest in protecting the integrity, fairness, and

efficiency of their ballots and election processes as means for

electing public officials.”). This “interest in preserving

electoral integrity is not limited to combating fraud. . . . [It]

extends more generally to promoting transparency and

accountability in the electoral process . . . .” Reed, 561 U.S.

at 198. The requirement that an official proponent’s name

appear on the face of the petition circulated to voters serves

the government’s interest in electoral integrity in three ways:

First, because the official proponents are charged with

forthrightly and faithfully implementing the initiative process,

voters signing the petitions are entitled to know their

identities. Second, requiring an official proponent to publicly

associate his name with the measure he proposes helps ensure

that only initiatives with at least a modicum of local support

32 CHULA VISTA CITIZENS V. NORRIS

are presented to the voters. Third, requiring identification of

the official proponent serves to deter misleading or spoiler

initiatives.

At the petition circulation stage, an official proponent

resembles a candidate for public office, and the petition is

effectively the ballot used by voters to imbue him with

special legislative authority. As explained supra in Section

II.B, under California and Chula Vista law, an official

proponent plays a “distinct role” in the initiative process,

“involving both authority and responsibilities that differ from

other supporters of the [proposed ballot] measure.” Perry,

265 P.3d at 1017–18. There are a number of ways in which an

ineffective or dishonest proponent could scuttle an initiative’s

chances of becoming (or remaining) law: (1) a proponent

could fail to oversee the collection of the requisite number of

signatures; (2) he could decline to authorize the filing of the

signed petitions; (3) he could knowingly make weak

arguments in the ballot pamphlet distributed to voters by the

elections official; and (4) he could fail to defend the initiative

in court proceedings. Accordingly, when deciding whether to

sign a petition, the identity of the official proponent matters,

and voters need to know whom they are being asked to vest

with that authority. Certainly no one would argue that

candidates for elective office have a right to be anonymous on

the ballot. See, e.g., Buckley, 424 U.S. at 14–15 (“In a

republic where the people are sovereign, the ability of the

citizenry to make informed choices among candidates for

office is essential . . . .”); Griset v. Fair Political Practices

Comm’n, 884 P.2d 116, 125 (Cal. 1994) (“Griset does not

claim, nor could he, that a candidate for public office has a

CHULA VISTA CITIZENS V. NORRIS 33

legitimate interest in expressing the candidate’s views

anonymously.”).13 That principle is equally applicable here.

The petition disclosure requirement also furthers the

governmental interest in electoral integrity by ensuring that

initiatives have a modicum of genuine support in the relevant

political community. Just as the state has an interest in

“properly reserv[ing] the general election ballot for major

struggles, by conditioning access to that ballot on a showing

of a modicum of voter support,” Munro v. Socialist Workers

Party, 479 U.S. 189, 196 (1986) (internal quotation marks

and citation omitted), so too the State of California and the

City of Chula Vista may require that at least one local person

be willing to associate his name with a proposed initiative

before the initiative process is set in motion. True, the

petition signature requirement also ensures that initiatives

have local support, but as explained infra, exacting scrutiny

does not require the state to employ solely the single best

means of furthering its interests. Moreover, the petition

signature requirement screens for initiatives with local

support at a later stage in the process, whereas the petition

disclosure requirement ensures a modicum of local support

before the city expends resources in the preparation of a

ballot title and summary or in verifying the validity of

13

Additionally, because an official proponent resembles a candidate for

public office and voters need to be able to evaluate the proponent’s

suitability for the job, we reject the plaintiffs’ contention that the Supreme

Court’s admonition in McIntyre v. Ohio Elections Commission that

“[a]nonymity . . . provides a way for a writer who may be personally

unpopular to ensure that readers will not prejudge her message” is

applicable here. 514 U.S. at 342; see also ACLF, 525 U.S. at 203

(“Disclosure of the names of initiative sponsors . . . responds to [a]

substantial state interest.”).

34 CHULA VISTA CITIZENS V. NORRIS

signatures and ensures that voters are not asked to sign

frivolous petitions.

Finally, the requirement that at least one person be willing

to associate his name with the proposed initiative helps deter

spoiler legislation. Without such a requirement, there is

virtually no check on misleading or spoiler initiatives

(perhaps even measures known to the proponent to be

unconstitutional) that may stem from an ulterior motive, such

as a desire to subvert a legitimate initiative by confusing the

voters or cluttering the field and drawing away voter support

from an initiative that the official proponent is seeking to

defeat. See Issacharoff et al., supra, at 948 (noting that in one

election year the California ballot contained five different

initiatives on the same subject); see also Jaime Fuller, Why

Are Ballot Measures So Darn Confusing? Because They are

Supposed to Be, Wash. Post, Aug. 5, 2014.14

The governmental interest in ensuring the integrity of the

initiative process necessarily implicates the voter’s right to

information. Voters are entitled to know who is asking them

for distinct powers and duties in the initiative process. The

plaintiffs’ argument that the government has an interest in

ensuring that voters have enough information to make an

informed choice with respect to candidate elections—but not

with respect to ballot measures—is without merit. This court

has upheld disclosures in the initiative context both before

and after Citizens United, relying solely on the state’s

informational interest to sustain disclosures of an initiative’s

financial backers:

14

Available at http://tinyurl.com/wapofuller.

CHULA VISTA CITIZENS V. NORRIS 35

“Knowing which interested parties back or

oppose a ballot measure is critical, especially

when one considers that ballot-measure

language is typically confusing, and the long-

term policy ramifications of the ballot

measure are often unknown. At least by

knowing who backs or opposes a given

initiative, voters will have a pretty good idea

of who stands to benefit from the legislation.”

Family PAC, 685 F.3d at 808 (citation omitted) (quoting Cal.

Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1106 (9th

Cir. 2003)). That is, “[v]oters act as legislators in the ballot-

measure context . . . . We think Californians, as lawmakers,

have an interest in knowing who is lobbying for their vote,

just as members of Congress may require lobbyists to

disclose who is paying for the lobbyists’ services and how

much.” Getman, 328 F.3d at 1106 (citing Harriss, 347 U.S.

at 625); see also Human Life of Wash. Inc. v. Brumsickle,

624 F.3d 990, 1007 (9th Cir. 2010). The interest in disclosure

is even stronger with respect to an official proponent than

with respect to the financial backers of an initiative, as the

former is not just proposing legislation, like a lobbyist, but

also asking the electors for special responsibilities, like a

candidate for public office.15 The ability to decide whether to

15

This interest is also much stronger than the informational interest in

knowing the identity of ordinary pamphleteers which the courts rejected

in McIntyre, 514 U.S. 334, and ACLU v. Heller, 378 F.3d 979 (9th Cir.

2004). Those cases concerned extremely broad statutes requiring any

person publishing material relating to an election or ballot measure to

include his name on the face of the publication. See McIntyre, 514 U.S. at

338 n.3; Heller, 378 F.3d at 981–82. The instant case commands a

different balance between the interests of the speaker and the state: it

involves disclosure of an official proponent who seeks to perform official

36 CHULA VISTA CITIZENS V. NORRIS

afford an official proponent that authority is especially

important when electors face multiple initiatives with

differing official proponents on the same topic.16 Thus, the

government’s interests in electoral integrity and in providing

voters with information are inextricably linked in that

knowledge of the identity of an initiative’s official proponent

helps ensure that the measure will be faithfully processed, has

support in the political community, and is a bona fide

measure not designed to be misleading or to serve as a

spoiler. Together, and separately, they constitute a

“sufficiently important governmental interest” to which the

petition disclosure requirement bears a “substantial relation.”

Reed, 561 U.S. at 196.

C.

The plaintiffs’ argument for invalidating the petition

disclosure requirement relies heavily on the assertion that, in

light of the two earlier disclosures of the proponent’s name,

it is not “substantially related” to the government’s interests

in the integrity of the electoral process and in providing

voters with information necessary to make an informed

functions, not a mere advocate, and it involves disclosure on the face of

an initiative petition, an official election document, not on the face of a

non-governmental publication.

16

See, e.g., Karen Weise, A California Tax Plan Meets the Mungers,

Bloomberg Business, Oct. 25, 2012, http://tinyurl.com/bloombergprop38

(describing competing initiatives that would increase tax revenue for

schools); see also Brooks Barnes, Californians Face Rival Ballot

Initiatives That Would Raise Taxes and Aid Schools, N.Y. Times, Sept. 11,

2012, at A12; Chris Megerian, Democrats Out to Defeat Rival Tax

Initiative Prop. 38, L.A. Times, Oct. 6, 2012, http://tinyurl.com/

latimesprop38.

CHULA VISTA CITIZENS V. NORRIS 37

choice. See id. They contend that the other uncontested

disclosure requirements—the signed notice of intent available

upon request from the city clerk and the publication of the

signed notice of intent in a newspaper of general

circulation—are sufficient to fulfill the government’s

interests in disclosure of the official proponent’s identity. See

In their view, the petition disclosure requirement

impermissibly “compels personal name identification at the

precise moment when the [speaker’s] interest in anonymity is

greatest.” ACLF, 525 U.S. at 199. That is, the petition

disclosure requirement “operates when reaction to the . . .

message is immediate and may be the most intense,

emotional, and unreasoned . . . , expos[ing] the [speaker] to

the risk of ‘heat of the moment’ harassment.” Id. (internal

quotation marks and citation omitted).

True, “it 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.” ACLU v. Heller, 378 F.3d 979, 991 (9th Cir. 2004).

Here, however, this principle supports disclosure of the

identity of the official proponent on the face of the official

initiative petitions. The “how and when” of this disclosure is

indeed substantially related to the government’s important

interests in electoral integrity and in providing the voters with

official information regarding the initiative. Moreover, the

individual whose name is disclosed is not exposed to a risk of

“heat of the moment” harassment.

First, it is obvious that the public’s interest in disclosure

of the official proponent’s identity is greatest at the moment

electors are confronted with a petition to sign. “People have

jobs, families, and other distractions,” making it unlikely that

they will undertake independent efforts to determine the

38 CHULA VISTA CITIZENS V. NORRIS

identity of the measure’s official proponent. Getman,

328 F.3d at 1106. It is unreasonable to expect a voter who is

asked to sign a petition on the spot to first go to the clerk’s

office or to comb through old newspapers to locate the name

of the initiative’s official proponent. The plaintiffs’ “analysis

ignores the reality that citizens typically are asked to review

and sign initiative petitions on the spot, at a street corner or

shopping mall, where there is generally no opportunity for

further study. That is the moment when information about the

petition, including the identities of the people proposing it, is

most valuable . . . .” Amicus Brief of League of California

Cities 2.

Second, we repeat: the petition disclosure requirement

does not actually require an official proponent to identify

himself in person at the point of contact with voters—the

supposedly high-risk moment. The official proponent is

identified on the petition, which circulators proffer to voters.

If the official proponent chooses to also act as a circulator and

thus engages in direct voter contact, there is no requirement

that he tell voters who he is—a voter would normally simply

believe that he was an ordinary, anonymous circulator.

Otherwise, an official proponent does not confront the voter

at all, let alone at the moment that might, at least in theory,

expose him to harassment.

Third, exacting scrutiny is not a least-restrictive-means

test. See Brumsickle, 624 F.3d at 1013 (“[T]he Supreme Court

has made clear that exacting scrutiny, not strict scrutiny, is

applicable to . . . disclosure requirements. . . . The

government need not . . . employ the least restrictive means

to satisfy its interest in providing the electorate with

information . . . .” (citation omitted)). In applying exacting

scrutiny, the Supreme Court has rejected the argument that

CHULA VISTA CITIZENS V. NORRIS 39

the possibility of disclosure at another time undermines the

need for disclosure at the moment when disclosure is most

useful. Buckley, 424 U.S. at 68 n.82 (“Post-election

disclosure by successful candidates is suggested as a less

restrictive way of preventing corrupt pressures on

officeholders. Delayed disclosure of this sort would not serve

the equally important informational function played by

pre-election reporting.”). The plaintiffs rely on cases holding

that the proffered governmental interests in disclosing a

circulator’s identity did not warrant the burden of disclosure

at the point of contact with voters, but those cases expressly

noted that the government has a much stronger interest in

disclosing the name of an official proponent than a circulator,

stating that disclosures of the former are valid. See ACLF,

525 U.S. at 203 (“Through the disclosure requirements that

remain in place, . . . voters will be told ‘who has proposed [a

measure],’ and ‘who has provided funds for its circulation.’”);

WIN, 213 F.3d at 1139 & n.6 (same).

Finally, a comparison with the Supreme Court’s recent

decision in Reed confirms our conclusion that the petition

disclosure requirement passes constitutional muster. In that

case, the Court held that the disclosure of 137,000 petition

signatories did not violate the First Amendment. 561 U.S. at

192, 202. In the instant case, we affirm the disclosure of the

names of at most three people who chose to become the

official proponents of a ballot measure and whose names

would already have been disclosed to the public on two

occasions shortly prior to the challenged disclosure. Any

contrary ruling would be in serious tension with Reed,

rendering it facially constitutional to disclose the names of

petition signatories yet facially unconstitutional to disclose

the names of the same petition’s official proponents.

40 CHULA VISTA CITIZENS V. NORRIS

D.

We also reject the plaintiffs’ as-applied challenge to the

petition disclosure requirement. A disclosure “would be

unconstitutional as applied to an organization if there were a

reasonable probability that the group’s members would face

threats, harassment, or reprisals if their names were

disclosed.” Citizens United, 558 U.S. at 370; see also Reed,

561 U.S. at 201. The plaintiffs fail to establish any such

probability of a “bona fide threat of harassment or

retaliation.” Family PAC, 685 F.3d at 807. Aside from

conclusory statements that they feared that they might be

subject to harassment for proposing Proposition G, the only

“harassment” alleged was negative campaign literature

identifying one proponent, Breitfelder—who was

simultaneously campaigning for city councilman—as “an

anti-worker activist and . . . the spokesperson for the

discriminatory Yes on G [initiative] campaign.” Obviously

this was itself protected political speech and does not amount

to harassment simply because Breitfelder disliked it.

It also bears noting, although we do not base our decision

on it in any respect, that the interest of the proponents in

anonymity is especially weak given the facts of the instant

case. Both Kneebone and Breitfelder engaged in public

activities advocating passage of Proposition G beyond the

activities required of them as its official proponents, speaking

at televised public meetings and having their names used in

campaign materials provided to voters. Moreover, they

explained in depositions that they did not really desire

anonymity, but rather “wanted voters to know that the

‘correct’ sponsor of the ballot initiative was the Association

of Builders and Contractors, Inc. and the Chula Vista Citizens

for Jobs and Fair Competition.”

CHULA VISTA CITIZENS V. NORRIS 41

Further underscoring that this case is not really about

anonymity, the plaintiffs do not challenge the requirement

that their identities be disclosed in the notice of intent to

circulate an initiative petition filed with the city clerk; nor do

they challenge the requirement that they publish this notice of

intent identifying them in a newspaper of general circulation.

Rather, they wish to remain anonymous only at a particular

moment in time—indeed, at the moment when knowledge of

their identity is most useful to voters. The plaintiffs have

failed to make out a valid as-applied claim.

***

The challenged disclosure poses at the most a minimal

burden on First Amendment rights. It simply requires that

potential signatories be allowed to determine the name of an

official proponent when they are deciding whether to grant

him an official role in the legislative process. As such, a

proponent is akin to a candidate for public office and,

accordingly has no right to anonymity on the face of the

initiative petition. Disclosure of his identity on the petition is

substantially related to the government’s important interests

in the integrity of the electoral process and in providing

voters with official information regarding the initiative.

IV.

We hold that the requirement that the official proponent

of an initiative be an elector, thereby excluding corporations

and associations from holding that position, does not violate

the plaintiffs’ First Amendment rights to freedom of speech

and association. We also hold that the requirement that the

name of the official proponent of an initiative be disclosed on

42 CHULA VISTA CITIZENS V. NORRIS

the face of the initiative petitions withstands exacting scrutiny

under the First Amendment.

AFFIRMED.