Jeffrey Short v. Edmund Brown, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY SHORT; TRINA T.R. HETER; No. 18-15775

SACRAMENTO VALLEY LINCOLN

CLUB, D.C. No.

Plaintiffs-Appellants, 2:18-cv-00421-

TLN-KJN

v.

EDMUND G. BROWN, JR.; ALEX OPINION

PADILLA, in his official capacity as

Secretary of State of California; JILL

LAVINE, in her official capacity as

Registrar of Voters for the County of

Sacramento; REBECCA MARTINEZ, in

her official capacity as Registrar of

Voters for the County of Madera;

GREGORY J. DIAZ, in his official

capacity as Registrar of Voters for

the County of Nevada,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted June 8, 2018

Pasadena, California

Filed June 22, 2018

2 SHORT V. BROWN

Before: Kermit V. Lipez, * Richard C. Tallman,

and John B. Owens, Circuit Judges.

Opinion by Judge Owens

SUMMARY **

Voting Law / Preliminary Injunction

The panel affirmed the district court’s denial of

plaintiffs’ request for an order preliminarily enjoining the

California Voter’s Choice Act (“VCA”).

California decided to adopt an all-mailed ballot election

system, and enacted the VCA. The VCA’s county-by-

county structure permits voters in some counties to receive a

ballot by mail automatically, while requiring voters in other

counties to register to receive a ballot by mail. Plaintiffs

alleged that the VCA violated the Fourteenth Amendment’s

Equal Protection Clause by restricting the fundamental right

to vote on the basis of county of residence without sufficient

justification; and sought a preliminary injunction against

enforcement of the VCA.

The panel held that the district court properly denied the

request for a preliminary injunction. The panel held that the

case did not raise “serious questions” under the Supreme

*

The Honorable Kermit V. Lipez, United States Circuit Judge for

the First Circuit, sitting by designation.

**

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

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

SHORT V. BROWN 3

Court’s Anderson/Burdick test for constitutional challenges

to state election laws, which provided that strict scrutiny

applied only where the burden on the fundamental right to

vote was severe. See Anderson v. Celebrezze, 460 U.S. 780

(1983); Burdick v. Takushi, 504 U.S. 428 (1992). The panel

held that the VCA did not burden anyone’s right to vote, but

instead made it easier for some voters to cast their ballots by

mail. The panel further held that to the extent that having to

register to receive a mailed ballot could be viewed as a

burden, it was an extremely small one that did not demand

serious constitutional scrutiny. The panel also held that

given the slight burden for voters outside the all-mailed

ballot election system counties, California’s general interest

in increasing voter turnout and specific interest in

incremental election-system experimentation adequately

justified the VCA’s geographic distinction.

The panel held that even if the merits question were

close, the district court did not abuse its discretion in

weighing all four of the preliminary injunction factors in

Winters v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20

(2008).

4 SHORT V. BROWN

COUNSEL

Jason Brett Torchinsky (argued), Holtzman Vogel Josefiak

Torchinsky PLLC, Warrenton, Virginia; Brian Hildreth, Bell

McAndrews and Hiltachk, Sacramento, California; for

Plaintiffs-Appellants.

Benjamin Matthew Glickman (argued), Deputy Attorney

General; Mark R. Beckington, Supervising Deputy Attorney

General; Thomas S. Patterson, Senior Assistant Attorney

General; Xavier Becerra, Attorney General; Office of the

Attorney General, Sacramento, California; for Defendants-

Appellees.

OPINION

OWENS, Circuit Judge:

Jeffrey Short, Trina T.R. Heter, and the Sacramento

Valley Lincoln Club (“appellants”) appeal from the district

court’s denial of their request for an order preliminarily

enjoining the California Voter’s Choice Act, S.B. 450,

2015–2016 Reg. Sess. (Cal. 2016) (“VCA”). We have

jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm. 1

1

The district court “assume[d] for purposes of [its] Order that the

[Sacramento Valley Lincoln] Club does not have standing.” Neither

party addresses this issue on appeal, and we need not reach it in the

posture of an appeal from the denial of a preliminary injunction. Cf. Am.

Motorcyclist Ass’n v. Watt, 714 F.2d 962, 965 (9th Cir. 1983).

SHORT V. BROWN 5

I. FACTUAL BACKGROUND AND PROCEDURAL

HISTORY

A. Voter Turnout and the VCA

In 2014, California voters made a poor showing at the

polls. Turnout was historically low: only 25% of registered

voters participated in the June 2014 primary, and only 42%

in the November 2014 general election. 2 To increase

voluntary participation in the democratic process—a right

that people around the world are willing to die for—

California enacted the VCA.

To solve the problem of California voters “mailing in”

recent elections, California decided to adopt an all-mailed

ballot election system. Under this system, which is modeled

after Colorado’s successful election system, 3 a ballot is

automatically mailed to every registered voter twenty-nine

days before the election date. Cal. Elec. Code

§ 4005(a)(8)(A). A voter may cast a completed ballot in one

of three ways: by (1) mailing it in; (2) depositing the ballot

at a designated “ballot dropoff location” (a large locked

mailbox); or (3) turning in the ballot at a “vote center” (a

voting-resource hub that replaces traditional polling places).

Id. at § 4005(a)(1)–(2). The voter may cast his ballot by mail

or at a dropoff location as soon as he receives it.

Rather than require all fifty-eight of California’s

counties to implement this new voting system immediately,

2

Cal. S. Comm. on Elections & Constitutional Amendments,

Analysis of S.B. No. 450, at 6 (Cal. Aug. 18, 2016) (“Senate Elections

Committee Report”).

3

Senate Elections Committee Report at 7.

6 SHORT V. BROWN

the VCA authorizes fourteen counties to opt in to the all-

mailed procedure on or after January 1, 2018. 4 Id. at

§ 4005(a). All other counties may opt in to the all-mailed

system on or after January 1, 2020. 5 Id. Within six months

of each election conducted under the all-mailed system, the

California Secretary of State must submit to the legislature a

detailed report assessing turnout and other metrics of

success. Id. at § 4005(g). The parties agree that in any given

county, election participation will be higher under the all-

mailed ballot election system than it would be under the

traditional polling-place system.

Even before the VCA’s enactment, California voters

could opt to vote by mail on an individual basis. 6 Id. at

4

The counties are Calaveras, Inyo, Madera, Napa, Nevada, Orange,

Sacramento, San Luis Obispo, San Mateo, Santa Clara, Shasta, Sierra,

Sutter, and Tuolumne. Cal. Elec. Code § 4005(a). Neither the legislative

history nor the record identifies why these fourteen counties were

selected. So far, five counties—Madera, Napa, Nevada, Sacramento,

and San Mateo—have opted in.

5

For Los Angeles County—the most populous in the state—the

VCA establishes an additional “vote center election” option, essentially

a hybrid between the traditional polling-place system and the new all-

mailed system. Los Angeles County may adopt that hybrid system on or

after January 1, 2020, for up to four years. After four years of using the

hybrid system, Los Angeles County must either adopt an all-mailed

ballot election system or revert to the traditional polling-place system.

Cal. Elec. Code § 4007.

6

A voter wishing to do so could: (1) submit a written application

for a vote-by-mail ballot on or before the seventh day before election

day; (2) submit an electronic request through the county election

official’s website; (3) request a vote-by-mail ballot by telephone; or

(4) request to be a permanent vote-by-mail voter (and thus to be

SHORT V. BROWN 7

§ 3003. Under the VCA, this option remains available to

individual voters whose home county has not opted in to the

all-mailed ballot election system. 7

B. This Lawsuit

At the end of February 2018, the appellants filed this

lawsuit, alleging that the VCA violated the Fourteenth

Amendment’s Equal Protection Clause by restricting the

fundamental right to vote on the basis of county of residence,

without sufficient justification. The appellants also sought a

preliminary injunction against enforcement of the VCA.

The district court rejected the request for a preliminary

injunction. While the district court thought that the

appellants had “raised serious questions on the merits,” it

concluded that they had not met their burden of showing that

a preliminary injunction would be in the public interest. This

timely appeal followed, and we granted the appellants’

unopposed motion to expedite it.

II. DISCUSSION

A. Standard of Review

Plaintiffs seeking a preliminary injunction must establish

that: (1) they are likely to succeed on the merits; (2) they are

likely to suffer irreparable harm in the absence of

preliminary relief; (3) the balance of equities tips in their

automatically mailed a ballot for every election). Cal. Elec. Code

§§ 3001, 3007.7, 3007.8, 3201, 3206.

7

Under the VCA, all vote-by-mail voters may cast their ballot by

mail or in person at any polling place, vote center, or dropoff location in

the state. Cal. Elec. Code § 3017(a).

8 SHORT V. BROWN

favor; and (4) an injunction is in the public interest. Winter

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The

Ninth Circuit weighs these factors on a sliding scale, such

that where there are only “serious questions going to the

merits”—that is, less than a “likelihood of success” on the

merits—a preliminary injunction may still issue so long as

“the balance of hardships tips sharply in the plaintiff’s

favor” and the other two factors are satisfied. Shell Offshore,

Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)

(quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d

1127, 1135 (9th Cir. 2011)).

When the preliminary relief sought would interfere with

state voting procedures shortly before an election, a court

considering such relief must weigh, “in addition to the harms

attendant upon issuance or nonissuance of an injunction,

considerations specific to election cases and its own

institutional procedures.” Purcell v. Gonzalez, 549 U.S. 1, 4

(2006) (per curiam). Of course, where a state election law

raises constitutional concerns, federal courts can and must

review it. Baker v. Carr, 369 U.S. 186, 199–200 (1962). But

the Supreme Court has warned us many times to tread

carefully where preliminary relief would disrupt a state

voting system on the eve of an election. See, e.g., Purcell,

549 U.S. at 4–6; Williams v. Rhodes, 393 U.S. 23, 35 (1968);

Reynolds v. Sims, 377 U.S. 533, 585 (1964).

We review for abuse of discretion a district court’s

decision to deny a preliminary injunction, but we review de

novo the conclusions of law underlying that decision. Shell

Offshore, 709 F.3d at 1286. We review findings of fact for

clear error. Id.

SHORT V. BROWN 9

B. The District Court Properly Denied the Request for a

Preliminary Injunction

The district court in this case believed that the appellants

had raised “serious questions on the merits,” but it denied the

preliminary injunction based on the fourth Winter factor.

The district court’s balancing of the Winter factors was not

an abuse of discretion. However, more fundamentally, we

do not think that this case raises “serious questions” under

the Supreme Court’s Anderson/Burdick test for

constitutional challenges to state election laws, and so we

agree that preliminary relief is not warranted here.

1. The Anderson/Burdick Framework

No one disputes that the right to vote is fundamental.

Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667

(1966). But not all election laws impose constitutionally

suspect burdens on that right. Anderson v. Celebrezze,

460 U.S. 780, 788 (1983). And states retain broad authority

to structure and regulate elections. Sugarman v. Dougall,

413 U.S. 634, 647 (1973). “[A]s 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 accompany the democratic processes.” Storer v. Brown,

415 U.S. 724, 730 (1974). An election regulation

“inevitably affects—at least to some degree—the

individual’s right to vote and his right to associate with

others for political ends. Nevertheless, the state’s important

regulatory interests are generally sufficient to justify

reasonable, nondiscriminatory restrictions.” Anderson,

460 U.S. at 788.

Accordingly, a court faced with a constitutional

challenge to a state election law “must first consider the

character and magnitude of the asserted injury to the rights

10 SHORT V. BROWN

. . . that the plaintiff seeks to vindicate.” Id. at 789; see also

Burdick v. Takushi, 504 U.S. 428, 434 (1992) (“[T]he

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.”). Next, it “must identify and evaluate the precise

interests put forward by the State as justifications for the

burden imposed by its rule.” Anderson, 460 U.S. at 789.

Those interests must be “sufficiently weighty to justify the

limitation,” Norman v. Reed, 502 U.S. 279, 288–89 (1992)

(citation omitted), and there must be a means-ends fit

between the state’s proffered justification and the rule

employed, Pub. Integrity All., Inc. v. City of Tucson,

836 F.3d 1019, 1024 (9th Cir. 2016) (en banc). Under this

framework, strict scrutiny applies only where the burden on

the fundamental right to vote is severe. Id.

2. Anderson/Burdick In This Case

The appellants argue that the VCA’s county-by-county

structure—permitting voters in some counties to receive a

ballot by mail automatically, while requiring voters in other

counties to register to receive a ballot by mail—inequitably

“dilutes” votes in “disfavored” counties and therefore

warrants strict scrutiny. But this attempt to sidestep more

deferential review to reach strict scrutiny on the

Anderson/Burdick framework fails. As discussed, the

Constitution permits states to impose some burdens on

voters through election regulations, and it requires strict

scrutiny of those regulations only where the burden imposed

is severe. Id.

The VCA does not burden anyone’s right to vote.

Instead, it makes it easier for some voters to cast their ballots

by mail, something that California voters already can do. As

for voters outside the counties that have opted in to the all-

SHORT V. BROWN 11

mailed system, their access to the ballot is exactly the same

as it was prior to the VCA’s enactment. To the extent that

having to register to receive a mailed ballot could be viewed

as a burden, it is an extremely small one, and certainly not

one that demands serious constitutional scrutiny. 8 Compare

Burdick, 504 U.S. at 438–39 (concluding that ban on write-

in voting “impose[d] only a limited burden” (citation

omitted)), and Crawford v. Marion Cty. Election Bd.,

553 U.S. 181, 203 (2008) (holding that photo identification

requirement imposed “a limited burden” (citation omitted)),

with Harper, 383 U.S. at 668–70 (invalidating poll tax as a

severe burden), and Ill. State Bd. of Elections v. Socialist

Workers Party, 440 U.S. 173, 183–84 (1979) (finding a

severe burden where regulations effectively barred political

party from ballot).

To show a severe burden, the appellants rely on Obama

for America v. Husted, in which the Sixth Circuit affirmed

an order enjoining an Ohio statute that shortened the early-

voting period for the general population but not for military

personnel. 697 F.3d 423, 436–37 (6th Cir. 2012). But in

that case, the state effectively penalized one class while

preserving the favorable status quo for another. Moreover,

the plaintiffs “introduced extensive evidence that a

significant number of Ohio voters will in fact be precluded

from voting without the additional three days of in-person

early voting.” Id. at 431. Based on that evidence, the district

court found “that because early voters have

disproportionately lower incomes and less education than

election day voters, and because all evening and weekend

8

Indeed, by asking this court to enjoin the VCA’s operation in the

all-mailed ballot election system counties, the appellants seek to preserve

the very status quo now enjoyed by voters in the so-called “disfavored”

counties.

12 SHORT V. BROWN

voting hours prior to the final weekend were eliminated by

[Ohio law], thousands of voters who would have voted

during those three days will not be able to exercise their right

to cast a vote in person.” Id. (citation and internal quotation

marks omitted). The Sixth Circuit agreed this constituted a

moderate burden on the right to vote. Id. at 433 (“The

burden on non-military Ohio voters is not severe, but neither

is it slight.”).

The appellants, by contrast, have not even alleged—let

alone introduced evidence to demonstrate—that the VCA

will prevent anyone from voting. Nor have the appellants

cited any authority explaining how a law that makes it easier

to vote would violate the Constitution. Even assuming that

a state could convert the status quo into a burden by

facilitating the process for some but not all, the burden in

this case is much less substantial than the moderate one

alleged by the plaintiffs in Obama for America, and thus

certainly not “severe” enough to trigger strict scrutiny on the

Anderson/Burdick scale. Cf. id. at 429, 433.

Next, the appellants cite Gray v. Sanders and Reynolds

v. Sims to argue that treating citizens differently based on

their county of residence constitutes “vote dilution,” a severe

burden triggering strict scrutiny. But those cases stand for

something narrower: that a state may not allocate

representation differently based on a voter’s county of

residence.

In Gray, the Supreme Court invalidated Georgia’s

“county unit” vote-counting system, a sort of county-based

electoral college that selected statewide officials using a

majority of “county unit” votes. 372 U.S. 368, 370–72

(1963). These “county unit” votes were allocated to each

county out of proportion to population, thereby “weight[ing]

the rural vote more heavily than the urban vote and . . . some

SHORT V. BROWN 13

small rural counties heavier than other larger rural counties.”

Id. at 379. This disproportionate weighting, the Court held,

violated the core conception of political equality: “one

person, one vote.” Id. at 381; see also Evenwel v. Abbott,

136 S. Ct. 1120, 1130 (2016) (stating that the state election

system in Gray “contravene[d] the principles of both voter

and representational equality”).

In Reynolds, the Court invalidated a state legislative

apportionment scheme because it allocated state

representatives by county instead of by population, thereby

“diluting” the votes of citizens in more populous counties:

“Their right to vote is simply not the same right to vote as

that of those living in a favored part of the State. Two, five,

or 10 of them must vote before the effect of their voting is

equivalent to that of their favored neighbor.” 377 U.S. at

563; see also Whitcomb v. Chavis, 403 U.S. 124, 141 (1971)

(describing Reynolds as establishing that “apportionment

schemes which give the same number of representatives to

unequal numbers of constituents unconstitutionally dilute

the value of the votes in the larger districts” (citation and

internal quotation marks omitted)); Moore v. Ogilvie,

394 U.S. 814, 817–18 (1969) (“Reynolds . . . held that a State

in an apportionment of state representatives and senators

among districts and counties could not deprive voters in the

more populous counties of their proportionate share of

representatives and senators.”); Wesberry v. Sanders,

376 U.S. 1, 7–8 (1964) (requiring that congressional districts

be drawn with equal populations).

By contrast, the VCA does not allocate representation

differently among voters, so its distinction along county

lines does not trigger heightened scrutiny. Simply put, Gray

and Reynolds are nothing like this case.

14 SHORT V. BROWN

Perhaps the appellants are suggesting that the VCA’s

differential treatment of California counties reveals a

preference for some counties over others, and that this

preference constitutes unconstitutional discrimination. But

this confuses two separate strands of equal protection

doctrine: suspect classifications and fundamental rights.

The first strand bars a state from codifying a preference for

one class over another, but it prescribes heightened scrutiny

only where the classification is drawn from a familiar list—

race, gender, alienage, national origin. See City of Cleburne

v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). The

second strand bars a state from burdening a fundamental

right for some citizens but not for others. Absent some such

burden, however, legislative distinctions merit no special

scrutiny. See McDonald v. Bd. of Election Comm’rs of

Chicago, 394 U.S. 802, 806–08 (1969).

County of residence is not a suspect classification

warranting heightened scrutiny under the first strand.

Importantly, the appellants do not argue that the VCA’s

distinction along county lines is a proxy for some other form

of discrimination—that it is a racial or political gerrymander

disguised as a geographic distinction. Cf. Fortson v. Dorsey,

379 U.S. 433, 439 (1965) (cautioning that the Equal

Protection Clause would not tolerate a districting plan that

“designedly or otherwise . . . operate[d] to minimize or

cancel out the voting strength of racial or political elements

of the voting population”). And as discussed, the appellants

do not allege that the VCA severely burdens the right to vote

for citizens either within or outside the fourteen listed

counties. Accordingly, the VCA’s geographic distinction

does not warrant strict scrutiny.

SHORT V. BROWN 15

3. The VCA Survives Review

Given that the burden is so slight for voters outside the

all-mailed ballot election system counties, California’s

general interest in increasing voter turnout and specific

interest in incremental election-system experimentation

adequately justify the VCA’s geographic distinction. See

Burdick, 504 U.S. at 434, 439–40; cf. McDonald, 394 U.S.

at 809 (observing that under rational basis review, “a

legislature traditionally has been allowed to take reform ‘one

step at a time, addressing itself to the phase of the problem

which seems most acute to the legislative mind’” (quoting

Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489

(1955))). We have observed that our democratic federalism

“permits states to serve ‘as laboratories for experimentation

to devise various solutions where the best solution is far from

clear.’” Pub. Integrity, 836 F.3d at 1028 (quoting Ariz. State

Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct.

2652, 2673 (2015)). By phasing in a new election system

gradually, and by requiring reports on the new system’s

success, California is doing just that.

4. Preliminary Relief Is Not Warranted

In sum, the appellants’ reading of the Supreme Court’s

voting cases would essentially bar a state from implementing

any pilot program to increase voter turnout. Under their

theory, unless California foists a new system on all fifty-

eight counties at once, it creates “unconstitutional vote-

dilution” in counties that do not participate in the pilot plan.

Nothing in the Constitution, the Supreme Court’s controlling

precedent, or our case law suggests that we can

micromanage a state’s election process to this degree. To

the contrary, such an argument ignores the Supreme Court’s

repeated admonition that “States may, and inevitably must,

enact reasonable regulations of parties, elections, and ballots

16 SHORT V. BROWN

to reduce election- and campaign-related disorder.”

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358

(1997); Burdick, 504 U.S. at 433; Anderson, 460 U.S. at 788.

The appellants have not shown serious questions going to the

merits of their constitutional claim.

It follows that denying the request for an injunction was

not an abuse of discretion. And even if the merits question

were close, the district court did not abuse its discretion in

weighing all four Winter factors: California argues, citing

sworn affidavits, that an injunction of the VCA would

seriously disrupt the November 2018 general election due to

the significant time and resources that would be required to

reverse the extensive efforts already undertaken to

implement the new election system in the five opted-in

counties. For example, California asserts that Sacramento

County would be forced to locate 600 polling places and

3,000 poll workers, and expend $8 million to procure the

required equipment. California also maintains that changing

the voting system between the primary and general elections

would result in voter confusion and disenfranchisement.

The appellants have entirely failed to refute this. They argue

only that California has sufficient time between now and the

November 2018 election to make the necessary changes.

But they do not meaningfully dispute that these changes

would be exceedingly difficult, and would “themselves

result in voter confusion and consequent incentive to remain

away from the polls.” Purcell, 549 U.S. at 4–5. The district

court concluded that the appellants had failed to justify such

a disruptive injunction, see id. at 4, and we agree.

AFFIRMED.