Respondents Brief — Lion Raisins, Inc., et al., Petitioners v. Karen Ross

No. 21-1068

In the Supreme Court of the United States

LION RAISINS, INC. AND LION FARMS LLC,

Petitioners,

v.

KAREN ROSS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEAL OF CALIFORNIA,

THIRD APPELLATE DISTRICT

BRIEF IN OPPOSITION

April 4, 2022

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

ROBERT BYRNE

Senior Assistant Attorney General

AIMEE FEINBERG*

Deputy Solicitor General

RUSSELL HILDRETH

Supervising Deputy Attorney General

ANDREA KENDRICK

Deputy Attorney General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

1300 I Street

Sacramento, CA 95814

(916) 210-6003

Aimee.Feinberg@doj.ca.gov

*Counsel of Record

i

QUESTION PRESENTED

In Salyer Land Co. v. Tulare Lake Basin Water

Storage District, 410 U.S. 719 (1973), and Ball v.

James, 451 U.S. 355 (1981), this Court recognized an

exception to the one-person-one-vote principle for elections relating to special-purpose governmental entities whose activities disproportionately affect a

discrete segment of the population. The question presented is:

Whether that exception applies to a referendum

asking a State’s producers of one agricultural commodity whether to adopt a marketing order establishing research and promotional programs supporting

that specific product.

ii

TABLE OF CONTENTS

Page

Statement .................................................................... 1

A. Legal background ........................................... 1

B. Factual and procedural background .............. 4

Argument ................................................................... 11

Conclusion.................................................................. 23

iii

TABLE OF AUTHORITIES

Page

CASES

Associated Enters., Inc. v. Toltec

Watershed Improvement Dist.

410 U.S. 743 (1973) (per curiam) ......................... 13

Avery v. Midland County

390 U.S. 474 (1968) ........................................ 14, 15

Ball v. James

451 U.S. 355 (1981) ...................................... passim

Cecelia Packing Corp. v. United States

Dep’t of Agric./Agric. Marketing

Serv.

10 F.3d 616 (9th Cir. 1993) ...................... 16, 17, 20

City of Phoenix v. Kolodziejski

399 U.S. 204 (1970) .............................................. 14

Fumarolo v. Chicago Bd. of Educ.

566 N.E. 2d 1283 (Ill. 1990) ................................. 18

Gerawan Farming, Inc. v. Lyons

24 Cal. 4th 468 (2000) ............................................ 1

Kessler v. Grand Central Dist. Mgmt.

Ass’n

158 F.3d 92 (2d Cir. 1998)........................ 18, 21, 22

Kramer v. Union Free Sch. Dist. No. 15

395 U.S. 621 (1969) .............................................. 12

iv

TABLE OF AUTHORITIES

(continued)

Page

League of United Latin Am. Citizens

v. Edwards Aquifer Auth.

937 F.3d 457 (5th Cir. 2019) .............. 17, 18, 21, 22

People ex rel. Ross v. Raisin Valley

Farms LLC

240 Cal. App. 4th 1254 (2015) ............................... 2

Pittman v. Chicago Bd. of Educ.

64 F.3d 1098 (7th Cir. 1995) .................... 19, 20, 21

Polk County Bd. of Supervisors v. Polk

Commonwealth Charter Comm’n

522 N.W. 2d 783 (Iowa 1994) ............................... 20

Reynolds v. Sims

377 U.S. 533 (1964) ...................................... passim

Salyer Land Co. v. Tulare Lake Basin

Water Storage Dist.

410 U.S. 719 (1973) ...................................... passim

S. Cal. Rapid Transit Dist. v. Bolen

1 Cal. 4th 654 (1992) ...................................... 19, 21

State v. Frontier Acres Cmty. Dev. Dist.

Pasco County

472 So. 2d 455 (Fla. 1985) .............................. 18, 19

United States v. Rock Royal Co-op

307 U.S. 533 (1939) .......................................... 1, 16

v

TABLE OF AUTHORITIES

(continued)

Page

Voss v. Superior Court

46 Cal. App. 4th 900 (1996) ................................... 4

STATUTES

7 U.S.C.

§ 601 ........................................................................ 1

§ 608c ...................................................................... 1

vi

TABLE OF AUTHORITIES

(continued)

Page

Cal. Food & Agric. Code

§ 54401 .................................................................... 2

§ 58712 .................................................................... 2

§ 58741 .................................................................... 1

§ 58771 .................................................................... 2

§ 58773 .................................................................... 2

§ 58774 .................................................................... 2

§ 58782 .................................................................... 2

§ 58783 .................................................................... 2

§ 58786 .................................................................... 2

§ 58787 .................................................................... 2

§ 58813 .................................................................... 2

§ 58841 .................................................................... 2

§ 58842 .................................................................... 2

§ 58842.5 ................................................................. 2

§ 58843 .................................................................... 2

§ 58846 .................................................................... 2

§ 58889(a) ............................................................... 1

§ 58892 .................................................................... 1

§ 58892.1 ................................................................. 1

§ 58921 .................................................................... 1

§ 58924 .................................................................... 1

§ 58925 .................................................................... 1

§ 58926 .................................................................... 1

§ 58993(c) ................................................................ 3

§ 58994 .................................................................... 2

§ 58999 .......................................................... passim

§ 59082 .................................................................... 4

§ 59085 .................................................................... 4

vii

TABLE OF AUTHORITIES

(continued)

Page

OTHER AUTHORITIES

Cal. Dep’t of Food & Agriculture,

California Marketing Programs ............................ 1

Cal. Dep’t of Food & Agriculture,

Marketing Order for California

Raisins to be Terminated Based

Upon Outcome of Producer

Referendum (May 4, 2021) ............................. 10, 11

Cal. Dep’t of Food & Agriculture,

Policies for Marketing Programs

(5th ed. Oct. 2020) .................................................. 3

1

STATEMENT

A. Legal Background

The California Marketing Act and its federal counterpart, the Agricultural Marketing Agreement Act, 7

U.S.C. § 601 et seq., authorize the establishment of industry-specific programs that support the development and maintenance of robust markets for certain

agricultural products. See generally United States v.

Rock Royal Co-op, 307 U.S. 533 (1939); Gerawan

Farming, Inc. v. Lyons, 24 Cal. 4th 468 (2000). Both

acts provide for the adoption of “marketing orders,” a

form of regulation of producers or handlers of particular commodities. Cal. Food & Agric. Code § 58741; see

7 U.S.C. § 608c.

While early California marketing orders were directed primarily toward managing surpluses, commodity grading, and trade practices, today they focus

mainly on research and promotion. See Cal. Dep’t of

Food & Agriculture, California Marketing Programs

at 1. 1 Under California law, a marketing order may

establish “plans for advertising and sales promotion to

maintain present markets or to create new or larger

markets for any commodity that is grown in this

state[.]” Cal. Food & Agric. Code § 58889(a). An order

may also establish research programs regarding production and other issues relating to a commodity. Id.

§§ 58892, 58892.1. Authorized programs are funded

through mandatory assessments on producers covered

by the order. Id. § 58921; see also id. §§ 58924, 58925,

58926 (rate caps on assessments).

1 Available at https://tinyurl.com/2xsrexx9 (last visited March 31,

2022).

2

California marketing orders are administered by

the California Department of Food and Agriculture.

Cal. Food & Agric. Code § 58712. The Department appoints members of advisory boards to “assist” it with

those responsibilities. Id. § 58841; see also id. § 58846

(enumerating board duties). Advisory board members

generally must represent the industry affected by the

marketing order. Id. § 58842; see also id. § 58843 (allowing appointment of one public member). For marketing orders affecting raisin producers, the

Department must appoint one person to represent “cooperative bargaining associations,” id. § 58842.5,

which are farmer associations organized to “group bargain[] between [their] producer members” and handlers or processors, id. § 54401.

A marketing order may be adopted only with the

formal approval of both the Department and the affected producers. Pet. App. 7a-8a. When the Department believes that a proposed marketing order will

further the policies of the California Marketing Act, it

must provide notice to affected producers, hold a public hearing, consider relevant evidence, and make specific findings. Cal. Food & Agric. Code §§ 58771,

58773, 58774, 58782, 58783, 58813; see Pet. App. 7a8a.

If the Department makes the required findings, the

proposed marketing order must be approved by a supermajority of affected producers before it can take effect. People ex rel. Ross v. Raisin Valley Farms LLC,

240 Cal. App. 4th 1254, 1258 (2015); Pet. App. 8a.

State law provides that the Department may determine whether the proposed order has the requisite

support either by seeking written assents or through

a referendum. See Cal. Food & Agric. Code §§ 58786,

58787, 58994. For a proposed marketing order to be

3

implemented in a referendum, at least 40 percent of

eligible producers must vote. Id. § 58993(c). The implementation referendum must also “be approved by

either (1) at least 65 percent of the voters, representing not less than 51 percent of the total quantity of the

commodity produced for market, or (2) at least 51 percent of the voters, representing not less than 65 percent of the total quantity of the commodity produced

for market.” Pet. App. 8a; see Cal. Food & Agric. Code

§ 58993(c).

In determining whether a referendum has attained

sufficient support, the Department “shall consider the

approval of any nonprofit agricultural cooperative

marketing association, which is authorized by its

members so to assent, as being the assent, approval,

or favor of the producers that are members of, or stockholders in, that nonprofit agricultural cooperative

marketing association.” Cal. Food & Agric. Code

§ 58999. A cooperative marketing association may

“bloc-vote” under this provision only if it demonstrates

to the Department that its by-laws vest the association

with authority to vote on its members’ behalf. See Cal.

Dep’t of Food & Agriculture, Policies for Marketing

Programs 16 (5th ed. Oct. 2020). 2 Any association

that decides to bloc-vote in a particular referendum

must also provide the Department with a motion of its

board of directors approving that decision, the association’s position on the referendum, and the association’s decision regarding whether individual members

may vote outside the bloc. Id.

A marketing order may be terminated through procedures that are similar to—“and in some instances

Available at

March 31, 2022).

2

https://tinyurl.com/2p88upra

(last

visited

4

considerably more liberal” than—the “democratic

means” provided for adoption of an order. Voss v. Superior Court, 46 Cal. App. 4th 900, 919 (1996). For

example, the Department must discontinue a marketing order if termination is requested in writing by at

least 51 percent of the producers that are directly affected by the order, provided that those producers account for at least 51 percent of the volume of the

affected commodity. Cal. Food & Agric. Code § 59082;

see also id. § 59085 (requiring Department to hold

hearing any time it finds that a substantial number of

affected persons oppose a marketing order, and to either “terminate, suspend, or submit for amendment or

reapproval” the order or make finding of insufficient

opposition).

B. Factual and Procedural Background

1. a. In 1998, two associations of California raisin

producers proposed the adoption of a marketing order

to help increase demand for California raisins. Pet.

App. 10a. After a public hearing, the Department

found that the proposed order would further the objectives of the California Marketing Act, approved the order, and submitted it to a referendum of affected raisin

producers. Id. at 11a-12a.

In conducting that referendum, the Department

concluded that the two associations that had proposed

the order—the Raisin Bargaining Association (RBA)

and the Sun-Maid Growers of California—were entitled to vote on behalf of their members under Section 58999 of the Act. Pet. App. 12a. RBA is a

nonprofit agricultural cooperative association that

bargains with raisin packers and sells its members’

raisins to packers at the negotiated price. Id. at 29a30a. RBA’s bylaws “specifically authorize it to ‘assent

in writing or otherwise, on behalf of the members of

5

the RBA and all producers of products marketed or to

be marketed by the RBA, to any marketing order or

amendment thereto.’” Id. at 29a (alterations and ellipses omitted). Sun-Maid is an agricultural cooperative association that processes and markets its

members’ raisins. See id. at 10a.

In the 1998 referendum, both RBA and Sun-Maid

decided to vote on behalf of their respective members—but each also allowed its members to “‘opt out’”

and vote separately if they preferred to do so. Pet.

App. 12a. A sufficient number of California raisin producers favored the proposed order, and it was approved. Id.

Consistent with the terms of the marketing order,

the Department conducted continuation referenda in

2001, 2006, and every five years thereafter to determine if producers supported continuing the marketing

order. See infra p. 6; Pet. App. 12a. In 2001, neither

RBA nor Sun-Maid chose to vote on behalf of its members, and producers still overwhelmingly favored continuation of the order. Pet. App. 12a. In the 2006

referendum, both RBA and Sun-Maid voted on behalf

of their members, and the order was again approved

for continuation. Id. The order was approved for continuation in 2011 and 2016 as well.

b. The marketing order established research and

promotional programs for California raisins. Pet.

App. 90a-94a. The research programs included studies and analyses of production costs, harvesting technologies, pest control, and “the dietetic value of raisins

and products containing raisins,” among other topics.

Id. at 90a-91a. The promotional programs included

communications designed to inform the general public

about “the production, availability, uses, healthful

properties or other information regarding raisins.” Id.

6

at 91a-92a. The order required the Department to

conduct a new referendum every five years to determine whether producers wanted the programs to continue. Id. at 107a-108a; see also id. at 108a (providing

that order will continue if majority of voting producers

favor continuation).

The order also established the 15-member California Raisin Marketing Board to administer the terms

of the order “[s]ubject to the Department’s approval.”

Pet. App. 81a, 87a, 105a. The order required thirteen

of the Board members to represent producers’ interests, one to represent the largest cooperative bargaining association, and one to represent the general

public. Id. at 81a. It provided that the thirteen producer-members be nominated by cooperative marketing associations, cooperative bargaining associations,

and independent producers in proportion to the share

of raisins marketed by each of these three groups. Id.

at 11a, 82a-84a. In practice, this allocation resulted

in independent producers typically holding five to six

of the nonpublic member seats, Sun-Maid members

occupying three to four seats, RBA members holding

four to five seats, and RBA itself holding one seat. Id.

at 11a n.6.

The Board’s duties under the order included assisting the Department in collecting the data needed to

carry out the order, recommending administrative

rules relating to the order, and recommending a

budget and uniform assessment of no more than 4 percent of the value of a producer’s annual output. Pet.

App. 87a-88a, 99a-100a; see also id. 87a-89a (additional duties). The Department was tasked with fixing the assessment rate, after making a finding that it

was lawful, “proper[,] and equitable.” Id. at 100a-

7

101a. The Department was also responsible for reviewing acts of the Board that any producer believed

were “detrimental or adverse” to its interests, and for

declaring as “without force and effect” any act by the

Board that was unlawful or that implemented the

marketing order “in an unreasonably discriminatory,

unfair or inequitable manner[.]” Id. at 104a-105a.

2. Petitioners are two companies that produce and

market raisins. In 2002, they sued the Department’s

Secretary seeking declaratory and injunctive relief

against enforcement of the raisin marketing order and

a refund of assessments paid since the 1999-2000 crop

year. Pet. App. 3a, 13a. As amended, their complaint

alleged various claims under state and federal law, including that the Department’s decision to allow RBA

to bloc-vote conflicted with the California Marketing

Act and reflected an invalid exercise of the State’s police power. Id. at 14a.

a. After a bench trial, the state trial court initially

entered judgment for petitioners. Pet. App. 15a. The

court held that the marketing order was invalid under

state law because the record lacked evidence demonstrating that it was needed to address adverse economic conditions “so severe as to threaten the

continued viability of the industry.” Id. The state

court of appeal reversed, concluding that California

law required such a finding only for marketing orders

that restrict supply, and that the raisin marketing order contained no such restriction. See id. at 16a.

b. On remand, the trial court rejected petitioners’

remaining theories and entered judgment in favor of

the Department. Pet. App. 17a. With respect to petitioners’ challenge to the conduct of the referendum,

the court held that the Department had properly in-

8

terpreted state law in permitting RBA to vote on behalf of its members. Id. at 50a-58a. The court reasoned that RBA marketed members’ raisins and

therefore qualified as an “agricultural cooperative

marketing association” under Section 58999. Id. at

54a-58a. The court also rejected petitioners’ claim

that, by allowing RBA to vote on its members’ behalf,

the statute unconstitutionally favored growers who

joined the association. Id. at 58a-62a.

c. The state court of appeal affirmed. Pet. App. 1a45a. It first agreed with the trial court that RBA qualified as a “cooperative marketing association” entitled

to vote on behalf of its members under Section 58999.

Id. at 28a-30a.

Next, the court considered petitioners’ claim that

Section 58999 violates the Equal Protection Clause by

giving cooperative marketing associations the ability

to bloc-vote. Pet. App. 30a-38a. It observed that petitioners’ complaint did not use the term “‘equal protection’” and instead alleged “an improper exercise of the

police power.” Id. at 30a n.18. But the court “liberally

construe[d] the complaint to include a claim that the

statute is an invalid exercise of the police power because it violates the right to equal protection under

the law.” Id.

The court recognized that, under Reynolds v. Sims,

377 U.S. 533 (1964), each person’s vote in a representative election “must be approximately equal in

weight to that of any other person.” Pet. App. 32a.

The court further explained that in Salyer Land Co. v.

Tulare Lake Basin Water Storage District, 410 U.S.

719 (1973), and Ball v. James, 451 U.S. 355 (1981),

this Court identified an exception to that one-personone-vote requirement when an election relates to a

governmental entity performing specialized functions

9

that have a disproportionate effect on a definable subset of the population. Pet. App. 32a-34a; see Salyer,

410 U.S. at 728; Ball, 451 U.S. at 364-371. In such

cases, Reynolds’ “strict demands . . . do not apply[.]”

Pet. App. 32a (internal quotation marks omitted).

Applying these authorities, the court of appeal held

that petitioners’ challenge to Section 58999 was not

subject to strict scrutiny. Pet. App. 35a. Unlike elections for national, state, or local representatives, a referendum on a proposed agricultural marketing order

“involves the establishment of an advisory board,

which has limited authority and performs specialized

administrative functions generally related to the marketing, processing, distributing, or handling of agricultural commodities.” Id. “And the functions of the

Board at issue in this case are even more limited, relating only to the research and promotion of raisins.”

Id.

The court of appeal further explained that “there

are genuine differences in the interests of those enfranchised and those disenfranchised under the legislation.” Pet. App. 36a (footnote omitted). Although

petitioners had failed to discuss this part of the constitutional analysis in their opening brief in the court of

appeal, the court declined to treat the issue as forfeited, reasoning that the Department had fully addressed it in a supplemental brief. Id. at 36a n.22.

The court concluded that those primarily affected by

the order are raisin producers—who are enfranchised

under the scheme—and that those excluded from the

vote (such as handlers and other commodity producers) “are substantially less affected.” Id. at 36a (footnote omitted).

The court of appeal also addressed petitioners’ theory that strict scrutiny applied to their claim that

10

California law improperly dilutes the votes of independent producers. Pet. App. 37a. Petitioners did not

contend that the State’s decision to weight producers’

votes in part based on the quantity of raisins produced

reflected an impermissible departure from the oneperson-one-vote standard. Nor did they assert that

state law gives any greater weight to the votes of individual producers that choose to join a cooperative marketing association. Rather, petitioners’ theory was

that, by allowing cooperative marketing associations

to bloc-vote on behalf of their members, the State unconstitutionally diluted the voting strength of independent producers. See id. The court of appeal

rejected that theory, explaining that, under Salyer

and Ball, “when the strict demands of the ‘one person,

one vote’ principle do not apply, the apportionment of

voting power among the enfranchised is subject to rational basis review.” Id. Petitioners’ challenge failed

under that standard because Section 58999 is rationally related to the legitimate governmental purposes

of encouraging producers to join cooperative marketing associations, promoting orderly and efficient marketing of commodities, and reducing economic waste.

Id. at 37a-38a.

d. The California Supreme Court denied review.

Pet. App. 46a.

3. After briefing but before decision in the court of

appeal, the Department conducted another referendum to determine whether producers wanted the marketing order to continue in effect. A majority of

producers voted against continuation, and the order

was terminated effective July 31, 2021. See Cal. Dep’t

of Food & Agriculture, Marketing Order for California

11

Raisins to be Terminated Based Upon Outcome of Producer Referendum (May 4, 2021). 3

ARGUMENT

The state court of appeal properly applied this

Court’s settled precedents in concluding that one-person-one-vote principles applicable in representative

elections did not apply to referenda asking raisin producers whether they wanted to establish or continue

research and promotional programs to support the

state raisin industry. Petitioners assert that the decision below “exacerbated an open three-way split,”

Pet. 2, but the lower court’s holding does not conflict

with holdings of other courts. Indeed, as petitioners

eventually acknowledge, the only other appellate

court to address a similar challenge to bloc-voting in a

marketing order referendum reached the same conclusion. This would also be a poor vehicle to consider the

constitutional issues framed in the petition: The challenged marketing order has been terminated. And petitioners’ challenge to the bloc-voting procedures at

issue here is fundamentally different from a standard

vote-dilution claim that challenges a law assigning different weights to the votes of different individuals.

1. The court of appeal correctly applied this

Court’s precedents in rejecting petitioners’ equal protection challenge.

a. In Reynolds v. Sims, 377 U.S. 533 (1964), this

Court held that state legislative districts with unequal

populations violate the fundamental principle that

each person’s vote is entitled to equal weight in a representative election. State apportionment schemes

Available at

March 31, 2022).

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https://tinyurl.com/yybbsxkn

(last

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that deviate from this rule “receive close scrutiny.”

Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621,

626 (1969); see also id. at 627 (denial of franchise must

be “necessary to promote a compelling state interest”).

But the Court later clarified that Reynolds’ strict

rule of voting equality does not apply to governmental

entities with narrow, specialized functions that disproportionately affect a specific class of voters. In

Salyer Land Co. v. Tulare Lake Basin Water Storage

District, 410 U.S. 719 (1973), the Court considered the

constitutionality of rules governing the election of directors of a local water storage district that gave only

landowners the right to vote and that apportioned voting power among them according to the assessed valuation of each owner’s land. Id. at 724-725, nn. 5 & 6.

The Court explained that the water district, “although

vested with some typical governmental powers, ha[d]

relatively limited authority.” Id. at 728 (footnote omitted). The district provided no general public services

such as education, roads, housing, “or anything else of

the type ordinarily financed by a municipal body.” Id.

at 728-729. Rather, its primary purpose was to acquire, store, and distribute water for agricultural purposes. Id. at 728. In addition, the district’s actions

“disproportionately affect[ed] landowners.” Id. at 729.

Because the costs of district projects were assessed

against land, “there [was] no way that the economic

burdens of district operations [could] fall on residents

qua residents[.]” Id. Accordingly, the district, “by reason of its special limited purpose and of the disproportionate effect of its activities on landowners as a

group,” was an “exception to the rule laid down in

Reynolds[.]” Id. at 728.

The Court also held that weighting the vote according to land value complied with the Constitution’s

13

equal protection guarantee. Salyer, 410 U.S. at 733734. Under the system, several small landowners had

only one vote, while a large corporate landowner could

cast nearly 38,000. Id. at 733. This allocation of voting power did not offend the Constitution because the

Court could not say that it was “not rationally based.”

Id. at 734; see also Associated Enters., Inc. v. Toltec

Watershed Improvement Dist., 410 U.S. 743, 744-745

(1973) (per curiam) (rejecting similar equal protection

challenge to similar regime).

The Court reached a similar conclusion in Ball v.

James, 451 U.S. 355 (1981). That case addressed a

system for electing directors of an Arizona water reclamation district under which only landowners were

eligible to vote and their voting power was apportioned according to acres owned. Id. at 357. The Court

explained that the question in the case was “whether

the purpose of the District is sufficiently specialized

and narrow and whether its activities bear on landowners so disproportionately as to distinguish the District from those public entities whose more general

governmental functions demand application of the

Reynolds principle.” Id. at 362. The Court answered

the question in the affirmative. The district’s “relatively narrow” functions, which focused on storing and

delivering water to landowners, were not “the sort of

governmental powers that invoke the strict demands

of Reynolds.” Id. at 366-367. Moreover, the effect of

district operations on landowners was disproportionately greater than on others, because only landowners

committed capital to the district or were subject to

liens and to the district’s “acreage-based taxing

power.” Id. at 370-371. The “peculiarly narrow function” of the district and “the special relationship” between the district and “one class of citizens”

14

“release[d] it from the strict demands of the one-person, one-vote principle.” Id. at 357.

After reaching that conclusion, the Court analyzed

the challengers’ equal protection claim under the rational basis standard. See Ball, 451 U.S. at 371. The

challenged voting system satisfied that standard “because it [bore] a reasonable relationship to its statutory objectives.” Id. Arizona could “rationally make

the weight of [landowners’] vote dependent upon the

number of acres they own[ed], since that number reasonably reflect[ed] the relative risks they incurred as

landowners and the distribution of the benefits and

the burdens of the District’s water operations.” Id.

(footnote omitted).

b. Applying these precedents, the intermediate

court of appeal correctly held that the raisin marketing order involved the kind of special-purpose functions especially affecting a defined segment of the

community that are not subject to Reynolds’ one-person-one-vote command. Pet. App. 35a-36a.

To begin with, the marketing order referenda did

not involve general governmental powers such as

maintaining streets, operating schools, or providing

for residents’ health and welfare. See Ball, 451 U.S.

at 366. It involved a “peculiarly narrow” question, id.

at 357, of whether to adopt producer-funded research

and marketing programs to promote the sale of California raisins. It did not resemble the kinds of elections to which this Court has held that the one-personone-vote principle applies. See, e.g., City of Phoenix v.

Kolodziejski, 399 U.S. 204, 205-206, 209-212 (1970)

(referendum to issue general obligation bonds to finance city sewer system, parks, police buildings, and

libraries, among other municipal improvements);

Avery v. Midland County, 390 U.S. 474, 476, 484-485

15

(1968) (election of officials with authority to, inter alia,

adopt county budget, administer welfare services, establish jail, and build roads and bridges).

Petitioners emphasize that the marketing order is

a form of regulation and that it authorized the imposition of mandatory assessments on producers. See

Pet. 33-35. But the order’s regulatory reach extended

to establishing and implementing research and marketing programs for the raisin industry. Supra pp. 57. It did not impose any quantity, quality, or other

similar controls on raisin growers, see Pet. 34, or regulate the public at large. And while the order provided

for mandatory assessments on producers, this Court

has recognized that “the power to levy and collect special assessments” does not itself “create . . . general

governmental authority” that requires conformance

with one-person-one-vote requirements. Ball, 451 U.S.

at 366 n.11; see also id. at 359-360 (special district authorized “to raise money through an acreage-proportionate taxing power”).

In addition, the marketing order disproportionately affected raisin producers. The order’s research

and marketing activities benefited state raisin growers; and those growers were the only entities subject

to assessments. See Salyer, 410 U.S. at 729 (operations of special district primarily affected land and

cost of district projects assessed against landowners).

Petitioners do not dispute that raisin producers as

a class were especially affected by the raisin marketing order referenda. They argue instead that the court

of appeal was required to apply strict scrutiny because

the order did not disproportionately impact the cooperative marketing associations that were permitted to

bloc-vote in the referenda on whether to implement or

16

continue the marketing order. See Pet. 3-5, 35. As explained above, however, both Salyer and Ball applied

rational basis review to claims that a voting system

allocated unequal weight to a portion of the enfranchised class. See Salyer, 410 U.S. at 734; Ball, 451 U.S.

at 371. The strict standard adopted in Reynolds did

not apply to either claim because the activities of the

challenged water districts especially affected the class

of eligible landowners and the districts exercised limited, specialized functions. See Salyer, 410 U.S. at

728-730; Ball, 451 U.S. at 366-371. The Court thus

“proceeded to inquire simply whether the statutory

voting scheme based on land valuation at least bore

some relevancy to the statute’s objectives.” Ball, 451

U.S. at 364 (discussing Salyer) (footnote omitted). 4

2. Petitioners likewise do not identify any conflict

of authority warranting this Court’s review.

As petitioners eventually acknowledge (see Pet. 29),

the only other appellate court to have considered a

one-person-one-vote challenge to bloc-voting in marketing order referenda reached the same conclusion.

In Cecelia Packing Corp. v. United States Department

of Agriculture/Agricultural Marketing Service, 10

F.3d 616 (9th Cir. 1993), the court of appeals applied

Salyer and Ball and held that a federal marketing or-

4 The court of appeal correctly declined to apply strict scrutiny to

petitioners’ vote-dilution claim; but in any event, any requirement that the referendum disproportionately affect cooperative

marketing associations would be satisfied. This Court has previously recognized that cooperative marketing associations have “a

vital interest in the establishment of an efficient marketing system.” United States v. Rock Royal Co-op, 307 U.S. 533, 559

(1939); cf. Pet. App. 56a-57a (RBA takes title to members’ raisins

and then sells them to packers).

17

der referendum for the orange industry was not subject to one-person-one-vote requirements. Id. at 624625. The court reasoned that the orange marketing

order involved “relatively limited authority,” and that

“voting in a referendum concerning a marketing order

is not a bedrock of our political system like voting in

an election for national, state or local legislative representatives.” Id. at 624 (internal quotation marks

omitted). Like the court below, it applied the rational

basis standard and rejected the constitutional challenge. Id. at 624-625.

The other cases cited by petitioners, moreover, do

not reflect an “entrenched three-way” conflict in the

lower courts. See Pet. 16. To begin with, none of the

other cases involved bloc-voting or any other similar

form of proxy voting. Nor do petitioners assert that

those cases create a square conflict on whether any

particular type of election must conform to the oneperson-one-vote standard. Rather, petitioners contend that courts have taken different analytical approaches to evaluating vote-dilution claims. Id. at 2127. But even that argument overlooks significant differences in the voting structures at issue and the constitutional challenges advanced in the cases on which

the petition relies.

Petitioners first argue that a handful of courts

have analyzed one-person-one-vote claims by considering whether a challenged election scheme “‘disproportionately benefit[ed] those granted the weighted

vote.’” Pet. 21; see id. at 21-23 (collecting cases).

Those cases generally involved elections in which all

residents were eligible to vote but voting power was

unevenly distributed among them. For example, in

League of United Latin American Citizens v. Edwards

Aquifer Authority, 937 F.3d 457 (5th Cir. 2019), an

18

election for directors of a conservation and reclamation district was open to all voters, but the challenged

law gave less weight to the votes cast by residents in

a particular county. Id. at 461-462. Likewise, in Kessler v. Grand Central District Management Ass’n, 158

F.3d 92 (2d Cir. 1998), the challenged scheme granted

property owners and nonowner-residents alike the

right to vote for directors of a local business district,

but guaranteed owners majority representation. Id.

at 97; see also Fumarolo v. Chicago Bd. of Educ., 566

N.E. 2d 1283 (Ill. 1990) (nonparents’ votes diluted in

some school council elections). 5 In those cases, plaintiffs argued that the malapportionment violated oneperson-one-vote requirements, and the courts addressed those claims by determining whether the differential voting power could be justified by the

governmental entity’s specialized functions and especial effect on those with the weighted vote.

Petitioners argue that those cases stand in contrast with another category of decisions in which

courts considered “the differences in interest between

‘those enfranchised and those excluded by a given voting scheme,’ but not voting inequalities among those

with a vote.” Pet. 25; see id. at 25-27. But the decisions that petitioners describe as falling in that category involved different types of election structures and

different sorts of challenges. In State v. Frontier Acres

Community Development District Pasco County, 472

So. 2d 455 (Fla. 1985), for example, the law restricted

the vote to landowners and allotted votes among them

5 In

Fumarolo, nonparents were denied the franchise in some

school council elections. 566 N.E. 2d at 1290-1291. But the court

applied the same analysis in considering whether the dilution of

some nonparents’ votes and the denial of other nonparents’ votes

complied with equal protection guarantees. See id. at 1294-1299.

19

on a per-acre basis. Id. at 456-457. The court considered whether the exclusion of nonowner-residents

complied with the Constitution, but it never addressed

a claim (like those at issue in petitioners’ first category

of cases) that the scheme unlawfully diluted votes

within the enfranchised class. See id. at 457.

In Southern California Rapid Transit District v.

Bolen, 1 Cal. 4th 654 (1992), the court considered a

challenge to an election to establish a transit-related

assessment district in which only commercial property

owners were eligible to vote and the votes were distributed according to the assessed value of their property. Id. at 660. The court held that the law could

properly exclude those without the vote because the

assessment district lacked general governmental powers and its activities disparately affected commercial

property owners. Id. at 669-670, 673-675. As petitioners note (Pet. 26), the court considered a challenge to

the method for weighing votes among the enfranchised after deciding to apply rational basis review.

See Bolen, 1 Cal. 4th at 665-675. But it appears that

the court was not asked to apply strict scrutiny based

on the claimed malapportionment. See Intervenors’

Opposing Br. on Merits at 16, 1990 WL 10029735 (Oct.

15, 1990) (arguing that dilution claim is subject to rational basis review).

Petitioners are also mistaken in discerning another distinctive category of cases (listed as their

“second” category), under which courts halt the constitutional analysis “if they find . . . that the vote concerns a body with limited, special-purpose powers,”

without ever evaluating whether those functions disproportionately impact those with electoral advantage.

Pet. 23; see id. at 23-25. In one of the cited cases,

Pittman v. Chicago Board of Education, 64 F.3d 1098

20

(7th Cir. 1995), the court did consider whether the

challenged election system disparately affected the

parents whose votes were accorded greater weight. Id.

at 1102 (considering argument that “education affects

everybody”); id. at 1103 (“interest of the public at

large” is “attenuated”). The court considered those

facts as part of its analysis of whether the challenged

local school councils were specialized governmental

bodies. Id. at 1101. But that simply reflects that the

two inquiries overlap—as this Court has recognized,

see Ball, 451 U.S. at 370. It does not reflect any sort

of deviation in approach that would warrant this

Court’s intervention.

Petitioners also describe Polk County Board of Supervisors v. Polk Commonwealth Charter Commission,

522 N.W. 2d 783 (Iowa 1994), as falling in their “second” category; but that case likewise does not support

their arguments. The court there expressly acknowledged that Salyer and Ball call for consideration of

whether the governmental body’s “activities disproportionately affect a specific group of individuals.” Id.

at 788. And the court’s ultimate holding appeared to

rest, at least in part, on what it regarded as a distinct

“threshold determination of whether the body performs governmental functions” at all. Id.; see also id.

(court considers Salyer-Ball exception “[i]f the entity

at issue does hold governmental power”). In that case,

the challenged commission’s “quiddity [was] advisory,” id. at 789, and not subject to one-person-onevote requirements, see id. at 790. 6

6 Petitioners also cite Cecelia Packing, 10 F.3d 616.

See Pet. 2324. As explained above, the holding in that case is consistent

with the decision below. Supra pp. 16-17.

21

Apart from their split allegations, petitioners highlight language from a few lower-court decisions expressing uncertainty about the application of Salyer

and Ball. Pet. 20. But the quoted excerpts addressed

how to identify whether a particular entity exercises

general governmental authority as opposed to limited

or specialized authority. See Kessler, 158 F.3d at 103;

Pittman, 64 F.3d at 1102; Bolen, 1 Cal. 4th at 668-669.

Those concerns are not relevant here because petitioners do not dispute that the State could properly restrict the franchise to raisin producers; instead they

centrally complain about the distribution of voting

power within that limited, specialized class.

3. Petitioners do not identify any other persuasive

basis for plenary review in this case. As the petition

recognizes (at 15), the challenged raisin marketing order is no longer in effect. Supra pp. 10-11. Accordingly, even if petitioners are correct that a live

Article III controversy remains, neither they nor any

other raisin producer in California faces any ongoing

assessments or any other purported harm from the research and promotional programs that were established under the now-terminated order.

This would be a poor case for considering the

broader constitutional issues raised in the petition for

other reasons as well. Petitioners did not reference

the Equal Protection Clause in their complaint, Pet.

App. 30a n.18, and their later-developed theory does

not resemble a typical vote-dilution claim. In a typical

vote-dilution case, the malapportionment is prescribed in the challenged scheme itself, such as a system that awards votes based on assessed value of

property, county of residence, or property ownership.

See, e.g., Salyer, 410 U.S. at 725 (allotting votes according to assessed land valuation); LULAC, 937 F.3d

22

at 461-462 (allocating seats on regional board by

county); Kessler, 158 F.3d at 97-98 (creating voting

classes based on property ownership). Here, in contrast, the votes of independent producers are given the

same weight as those of producers that choose to join

a cooperative marketing association. The purported

misallocation is not based on unequally weighted votes,

but rather on a procedural mechanism that allows eligible voters to make the voluntary decision to give

their proxy to a cooperative marketing association by

voluntarily becoming a member of that association.

See supra p. 3; cf. Salyer, 410 U.S. at 733 (discussing

availability of proxy-voting in water district election

scheme).

Petitioners contend that the constitutionality of

bloc-voting with respect to marketing order referenda

in California is significant in and of itself because of

the number of agricultural commodities subject to the

California Marketing Act. Pet. 28. In the Department’s experience, however, bloc-voting occurs in relatively few state marketing order referenda because

most agricultural commodity products affected by a

California marketing order lack cooperative marketing associations of significant member size. And with

respect to the referenda at issue here, involving

whether to adopt or continue research and promotional programs to support the state raisin industry,

this Court’s settled precedents make clear that the

strict demands of Reynolds do not apply.

23

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

ROBERT BYRNE

Senior Assistant

Attorney General

AIMEE FEINBERG

Deputy Solicitor General

RUSSELL HILDRETH

Supervising Deputy

Attorney General

ANDREA KENDRICK

Deputy Attorney General

April 4, 2022