Petition for Writ of Certiorari — Oregon, Petitioner v. Committee to Recall Dan Holladay, et al.
Supreme Court briefMar 21, 2025
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No.
IN THE
Supreme Court of the United States
_____________
STATE OF OREGON,
v.
Petitioner,
COMMITTEE TO RECALL DAN HOLLADAY; JEANA
GONZALES; ADAM MARL,
Respondents.
_____________
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
_____________
PETITION FOR WRIT OF CERTIORARI
_____________
DAN RAYFIELD
Attorney General of Oregon
BENJAMIN GUTMAN
Solicitor General
Counsel of Record
1162 Court Street NE
Salem, Oregon 97301
(503) 378-4402
benjamin.gutman@
doj.oregon.gov
QUESTION PRESENTED
When a neutral, procedural requirement burdens
voters’ advancement of direct-democracy measures to
the ballot, does that requirement affect any interest
protected by the First Amendment?
i
PARTIES TO THE PROCEEDING
The parties to the proceeding are the State of Oregon, the Committee to Recall Dan Holladay, Jean Gonzales, Adam Marl, and Jakob Wiley in his official capacity as City Recorder of the City of Oregon City. Former City Recorder Kattie Riggs was named as a defendant in her official capacity in the district court.
RELATED PROCEEDINGS
Committee to Recall Dan Holladay v. Wiley, No.
3:20-cv-01631-YY, United States District Court for the
District of Oregon, judgment entered January 10,
2023.
Committee to Recall Dan Holladay v. Wiley, No. 2335107, United States Court of Appeals for the Ninth
Circuit, rehearing denied October 23, 2024.
ii
TABLE OF CONTENTS
Page(s)
QUESTION PRESENTED ........................................... i
PARTIES TO THE PROCEEDING ............................ ii
RELATED PROCEEDINGS........................................ ii
TABLE OF CONTENTS............................................. iii
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................................... 1
INTRODUCTION ........................................................ 2
STATEMENT OF THE CASE..................................... 3
REASONS FOR GRANTING THE PETITION .......... 7
A. This case implicates an entrenched circuit split on
an important question of First Amendment law... 7
B. The Ninth Circuit is on the wrong side of the
circuit split. ........................................................... 11
C. This case is an unusually good vehicle to resolve
the circuit split. .................................................... 15
CONCLUSION .......................................................... 17
APPENDIX
iii
TABLE OF AUTHORITIES
Cases
Pages(s)
Angle v. Miller,
673 F.3d 1122 (9th Cir. 2012) 4, 5, 6, 7, 8, 11, 12, 13
Biddulph v. Morham,
89 F.3d 1491 (11th Cir. 1996) ................................ 10
Dobrovolny v. Moore,
126 F.3d 1111 (8th Cir. 1997) ................................ 11
State ex rel. Lemon v. Gale,
721 N.W.2d 347 (Neb. 2006) .................................. 10
Fair Maps Nevada v. Cegavske,
463 F. Supp. 3d 1123 (D. Nev. 2020) ................. 6, 14
Initiative and Referendum Institute v. Walker,
450 F.3d 1082 (10th Cir. 2006) ................................ 9
Jones v. Markiewicz-Qualkinbush,
892 F3d 935 (7th Cir. 2018) ..................................... 8
Little v. Reclaim Idaho,
140 S. Ct. 2616 (2020) .......................... 2, 6, 7, 11, 15
Marijuana Policy Project v. United States,
304 F.3d 82 (D.C. Cir. 2002) .................................. 10
Meyer v. Grant,
486 U.S. 414 (1988) .......................................... 12, 13
Molinari v. Bloomberg,
564 F.3d 587 (2d Cir. 2009)...................................... 9
Morgan v. White,
964 F3d 649 (7th Cir. 2020) ..................................... 8
iv
People Not Politicians Oregon v. Clarno,
472 F. Supp. 3d 890 (D. Or. 2020),
stay granted, 141 S. Ct. 206,
remanded, 826 F. App’x 581 (9th Cir. 2020) ........... 6
Reclaim Idaho v. Little,
469 F. Supp. 3d 988 (D. Idaho),
stay granted, 140 S. Ct. 2616,
remanded, 826 F. App’x 592 (9th Cir. 2020) ..... 6, 14
SawariMedia, LLC v. Whitmer,
963 F.3d 595 (6th Cir. 2020), ................................. 10
SD Voice v. Noem,
60 F.4th 1071 (8th Cir. 2023) ................................ 11
Thompson v. DeWine,
959 F3d 804 (6th Cir. 2020) ................................... 10
Constitutional and Statutory Provisions
U.S. Const., Amend I…………… .................................. .
.................... 2, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16
U.S. Const., Amend. XI.......................................... 5, 15
US Const,. Amend XIV ................................................ 1
28 U.S.C. § 1254(1) ...................................................... 1
28 U.S.C. § 1331........................................................... 4
Or. Const., Art. II, § 18 ................................................ 3
Or. Rev. Stat. § 249.875(1) .............................. 1, 3, 4, 8
Other Authorities
National Conference of State Legislatures,
Initiative and Referendum Processes (2024) ........... 3
National Conference of State Legislatures,
Recall of State Officials (2021) ................................ 3
v
OPINIONS BELOW
The opinion of the Ninth Circuit (App. 72a–108a)
denying en banc review is reported at 120 F.4th 590.
The panel’s opinion (App. 2a–9a) is not published but
available at 2024 WL 1854286. The opinion of the district court (App. 10a–12a) is not published but available at 2023 WL 144140. The report and recommendation of the magistrate judge (App. 13a–71a) is not published but available at 2022 WL 17658171.
JURISDICTION
The Ninth Circuit denied en banc review on October 23, 2024. On January 17, 2025, Justice Kagan
granted the state’s application (24A699) to extend the
time to file a petition for a writ of certiorari until
March 22, 2025. This Court has jurisdiction under 28
U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The full text of the First Amendment to the United
States Constitution, Section 1 of the Fourteenth
Amendment, Article II, section 18, of the Oregon Constitution, and Or. Rev. Stat. § 249.875(1) are set forth
at App. 109a–111a.
2
INTRODUCTION
This case implicates an entrenched circuit split on
a First Amendment question: “[W]hat does the Free
Speech Clause have to say about the neutral rules
that States may place on direct democracy initiatives,”
such as rules requiring the proponents of a measure
to obtain a certain number of signatures from voters
within a certain period of time for the measure to appear on the ballot? App. 82a (Bumatay, J., dissenting).
The Second, Seventh, Tenth, Eleventh, and D.C. Circuits have held that those neutral rules do not implicate the First Amendment. The Sixth, Eighth, and
Ninth Circuits have reached the opposite conclusion.
The upshot is that in some circuits, states are free to
require any number of signatures and any timeframe,
even if that effectively makes it impossible to place the
measure on the ballot, but in other circuits, states are
prohibited from imposing signature requirements or
timeframes that make it difficult to do so. In this case,
over a dissent from denial of rehearing en banc, the
Ninth Circuit declined to revisit its approach. App.
73a (Bumatay, J., dissenting).
Four Justice have previously identified that circuit
split as worthy of this Court’s review because it presents “an important issue of election administration.”
Little v. Reclaim Idaho, 140 S. Ct. 2616, 2616 (2020)
(Roberts, C.J., concurring, joined by Alito, Gorsuch,
and Kavanaugh, JJ.). As the dissent below explained,
this case presents an ideal vehicle to resolve the circuit split. App. 79a–80a (Bumatay, J., dissenting).
This Court should grant review.
3
STATEMENT OF THE CASE
1. About half of the states, including most western
states, allow the public to vote directly on legislative
measures or constitutional amendments. National
Conference of State Legislatures, Initiative and Referendum Processes (2024), at https://www.ncsl.org/
elections-and-campaigns/initiative-and-referendumprocesses (last visited February 6, 2025). The most familiar forms of direct democracy are citizen initiatives, which approve or reject voter-written laws, and
popular referenda, which approve or repeal an act of
the legislature. Id. Nineteen states also allow voters
to decide whether to remove an elected state official
from office before the term ends through a recall election; in many more states local officials are subject to
recall. National Conference of State Legislatures, Recall of State Officials (2021), available at
https://www.ncsl.org/elections-and-campaigns/recallof-state-officials (last visited February 6, 2025). To
place a recall measure on the ballot, proponents typically must gather a certain number of voter signatures
on a petition within a certain period of time. Id.
Oregon is among the states that allow the voters to
recall elected officials. The proponent of a recall election has 90 days to collect signatures from 15 percent
of the number of electors who voted in the previous
gubernatorial election. Or. Const., Art. II, § 18; Or.
Rev. Stat. § 249.875(1). If the proponent submits a recall petition with the required number of signatures,
a special election is held within 35 days to determine
whether to recall the officer. Or. Const., Art. II, § 18.
A successful recall vote results in the office becoming
4
vacant, after which it will be filled in the same manner
as any other vacancy. Id.
2. Plaintiffs here organized a successful recall
campaign against the mayor of Oregon City, Oregon.
App. 16a–17a. They nonetheless maintained their suit
against the city elections official for nominal damages
and prospective relief, arguing that that the 90-day
limit on gathering the required signatures for a recall
petition violates the First Amendment. App. 17a–18a.
Their First Amendment claim relied on Angle v. Miller, 673 F.3d 1122, 1133 (9th Cir. 2012), in which the
Ninth Circuit held that laws governing placement of
direct-democracy measures on the ballot are subject to
strict scrutiny if they “significantly inhibit” the proponents’ ability to place the measures on the ballot,
meaning that “reasonably diligent” campaigns cannot
“normally” qualify for the ballot. Plaintiffs alleged
that under that test, the 90-day time limit in Or. Rev.
Stat. § 249.875(1) is unconstitutional because most recall campaigns in Oregon fail largely “due to lack of
adequate time to gather signatures.” App. 80a (quoting complaint). The complaint invoked the district
court’s federal-question jurisdiction under 28 U.S.C.
§ 1331. Although the suit was against a city official,
the state intervened to defend the constitutionality of
the law. App. 14a.
The district court concluded that plaintiffs’ facial
First Amendment claim was justiciable because at
least one plaintiff planned to participate in organizing
future recall petitions. App. 43a. On the merits, the
court applied Angle but concluded that plaintiffs’ allegations failed to state a claim because they had “not
5
pleaded the requisite facts to show that ‘reasonably
diligent’ petitions cannot ‘normally’ qualify for a recall
election.” App. 67a. The court denied plaintiffs permission to replead on the ground that it would be futile to do so. App. 11a.1
The Ninth Circuit vacated in part and remanded.
A three-judge panel agreed with the district court that
the complaint as currently pleaded did not state a
claim under the Angle test, because its factual allegations were too conclusory to trigger strict scrutiny and
the law survived less exacting review. App. 5a–7a. But
the panel held that the district court abused its discretion in denying leave to amend, because that court
did not adequately explain why plaintiffs would be unable to satisfy the Angle test by alleging facts showing
that most recall petitions fail because of the 90-day
time limit. App. 7a–9a.
3. The state sought rehearing en banc, urging the
Ninth Circuit to overrule Angle. The court denied the
petition over a lengthy dissent from Judge Bumatay,
joined by Judges Bennett, Nelson, and Vandyke. App.
73a.
The dissent explained that, as noted above, laws
requiring a minimum number of signatures collected
within a specific timeframe are “commonplace.” App.
75a (Bumatay, J., dissenting). Nevertheless, Angle
subjects those laws to “exacting judicial scrutiny” if
1 The district court dismissed plaintiffs’ separate state constitu-
tional claim based on Eleventh Amendment immunity. App. 57a.
The Ninth Circuit reversed, App. 3a, and the state does not seek
review of the Eleventh Amendment issue.
6
they make it “too difficult” for proponents to succeed
in placing the measure on the ballot. Id. (emphasis in
original). As a result, under the guise of applying Angle, district courts within the Ninth Circuit “have
taken it upon themselves to rewrite the neutral, nondiscriminatory state procedures that structure ballot
initiatives and the like to give proponents a better
shot.” Id. at 77a–78a (citing Fair Maps Nevada v.
Cegavske, 463 F. Supp. 3d 1123 (D. Nev. 2020) (extending signature deadline for proposed constitutional amendment); Reclaim Idaho v. Little, 469 F.
Supp. 3d 988 (D. Idaho 2020) (requiring Idaho to either lower signature threshold or eliminate in-person
signature requirement for legislative initiative), Little, stay granted, 140 S. Ct. 2616, remanded, 826 F.
App’x 592 (9th Cir. 2020); People Not Politicians Oregon v. Clarno, 472 F. Supp. 3d 890 (D. Or. 2020) (lowering threshold for signature requirement to amend
the Oregon Constitution), stay granted, 141 S. Ct. 206,
remanded, 826 F. App’x 581 (9th Cir. 2020)).
The dissent emphasized that “[n]othing in the text,
history, and tradition of the First Amendment supports this expansion of judicial power over state ballot
initiatives and other direct democracy petitions.” Id.
at 76a. Rather, neutral procedural rules generally
govern the petition process: “How many signatures
must a proponent collect in support of his initiative?
By what date?” Id. at 77a. But “once the game gets
going,” those laws do not restrict voters’ communications with one another in any way, and “that makes
all the difference” in whether the First Amendment
requires heightened scrutiny. Id. That is because the
First Amendment “protect[s] citizens’ interactive, one-
7
on-one communications that take place during advocacy—it doesn’t guarantee any level of success for that
advocacy.” Id. According to the dissent, Angle’s contrary rule “would be grounds for federal courts to intrude on all sorts of state political activity, like state
supermajority rules and veto rules, and may discourage these direct democracy petitions.” Id. at 79a.
The dissent also noted that the Ninth Circuit’s approach is an “outlier” among the federal courts of appeal—“a host of other circuits have refused to read the
First Amendment right as broadly as we have”—and
that four Justices have expressed “doubts about Angle.” Id. at 77a–78a. The circuit split is significant because it involves a “fundamental question of state policy and the finetuning of the democratic process.” Id.
at 79a. And, the dissent pointed out, this case is an
ideal opportunity to address that split because it is
“[s]afe from the pressures of a political battle”: “Here,
no hot-button proposal looms over the case. No election awaits right around the corner. No emergency
stay hangs over the parties. Nothing forces us to expedite consideration of the matter.” Id. at 79a.
REASONS FOR GRANTING THE PETITION
A. This case implicates an entrenched circuit
split on an important question of First
Amendment law.
As four Members of this Court recently noted, “the
Circuits diverge in fundamental respects when presented with challenges to the sort of state laws at issue here.” Little, 140 S. Ct. at 2616 (Roberts, C.J., concurring). Some have held that legal requirements for
8
voter-initiated measures are not subject to scrutiny
under the First Amendment; they need only satisfy
the rational-basis test that applies to all legislation.
Others have held that those laws are subject to heightened scrutiny if they make it difficult for voters to succeed in placing measures on the ballot. The Ninth Circuit’s denial of rehearing en banc here confirms that
it will remain firmly on the latter side of the split.
The Ninth Circuit’s ruling here conflicts most
squarely with a Seventh Circuit ruling, Morgan v.
White, 964 F.3d 649 (7th Cir. 2020) (per curiam). Here,
the Ninth Circuit reversed the district court’s judgment based on its understanding that Or. Rev. Stat.
§ 249.875(1) would be subject to strict scrutiny if
plaintiffs alleged facts showing that the 90-day deadline “significantly inhibits the ability of recall proponents to place a recall on the ballot.” App. 5a (cleaned
up). But in Morgan, the Seventh Circuit rejected a
similar challenge to the time limit for collecting signatures for initiatives, noting that even if the requirements made it impossible to place a measure on the
ballot, “there is no federal problem.” 964 F.3d at 652.
In so holding, Morgan cited Judge Easterbrook’s opinion in Jones v. Markiewicz-Qualkinbush, 892 F.3d 935
(7th Cir. 2018), which held that when a law regulating
ballot measures does not “distinguish by viewpoint or
content,” its constitutionality depends on whether it
“has a rational basis, not on the First Amendment.”
Id. at 938.
The Ninth Circuit’s Angle test also cannot be reconciled with the First Amendment tests applied by the
Second, Tenth, Eleventh, and D.C. Circuits, all of
9
which—like the Seventh Circuit—have held that neutral, procedural regulations for putting a measure on
the ballot do not implicate the First Amendment. Although the specific regulations at issue in those cases
differ from the one the Ninth Circuit addressed here,
the contrast in basic First Amendment analysis is
stark.
The most extensive discussion of the issue is in the
Tenth Circuit’s en banc decision in Initiative and Referendum Institute v. Walker, 450 F.3d 1082, 1085
(10th Cir. 2006) (en banc). By a 10-1 vote, the Tenth
Circuit rejected a First Amendment challenge to a
provision of the Utah Constitution that required a
two-thirds vote to enact initiatives related to wildlife.
The court distinguished between “laws that regulate
or restrict the communicative conduct of persons advocating a position in a referendum, which warrant
strict scrutiny, and laws that determine the process
by which legislation is enacted, which do not.” Id. at
1100. And it rejected the argument that a “structural
feature of government that makes some political outcomes less likely than others—and thereby discourages some speakers from engaging in protected
speech—violates the First Amendment.” Id.
The Second Circuit adopted the Tenth Circuit’s
distinction in Molinari v. Bloomberg, 564 F.3d 587,
600–01 (2d Cir. 2009), holding that a law allowing the
legislature to repeal measures adopted by initiative
did not implicate the First Amendment. The Eleventh
Circuit similarly rejected a First Amendment
challenge to Florida laws requiring that a
constitutional amendment be limited to a single
10
subject and have a non-misleading title, holding that
it would not “subject a state’s initiative process to
heightened First Amendment scrutiny simply because
the process is burdensome to initiative proposal
sponsors.” Biddulph v. Morham, 89 F.3d 1491, 1497
(11th Cir. 1996) (per curiam). The D.C. Circuit applied
analogous reasoning in rejecting a First Amendment
challenge to a federal law that prohibited the District
of Columbia from using the initiative process to
legalize marijuana. Marijuana Policy Project v.
United States, 304 F.3d 82, 83 (D.C. Cir. 2002). And at
least one state supreme court has reached the same
conclusion. State ex rel. Lemon v. Gale, 721 N.W.2d
347, 360 (Neb. 2006) (holding that a law prohibiting
resubmission of rejected initiatives does not implicate
the First Amendment because “it is analogous to
constitutional requirements regarding the number of
signatures required to place an initiative measure on
the ballot”).
On the other side of the circuit split, in addition to
the Ninth Circuit, are the Sixth and Eighth Circuits.
In SawariMedia, LLC v. Whitmer, 963 F.3d 595, 596–
97 (6th Cir. 2020), for example, the Sixth Circuit refused to stay an injunction against Michigan’s signature requirement for initiatives because the requirement imposed a “severe” burden. Although Sixth Circuit judges have repeatedly criticized its approach, the
court has stated that it will continue subjecting laws
that impose severe burdens to heightened scrutiny
until that court “sitting en banc takes up the question.” Thompson v. DeWine, 959 F3d 804, 808 n 2 (6th
Cir. 2020) (per curiam). More recently, the Eighth Circuit struck down a South Dakota law that effectively
11
set a one-year time limit for gathering signatures for
initiatives, concluding that the time limit implicated
the First Amendment because it burdened voters’ ability to express a position on political matters by signing
a petition. SD Voice v. Noem, 60 F.4th 1071, 1079 (8th
Cir. 2023).2
The circuit split is already deep and shows no signs
of going away. The Ninth Circuit’s denial of rehearing
en banc confirms that the court will continue to adhere to Angle, and the Eighth Circuit’s recent decision
to join the Ninth Circuit further entrenches the disagreement about an “an important issue of election administration.” Reclaim Idaho, 140 S. Ct. at 2616 (Roberts, C.J., concurring).
B. The Ninth Circuit is on the wrong side of the
circuit split.
This Court’s review is also warranted because the
Ninth Circuit’s approach conflicts with basic principles of First Amendment jurisprudence and the limited role of federal courts in reviewing state election
laws. The Angle test is an extraordinary intrusion on
states’ choices about how to organize their political
processes. It effectively means that, if states allow
2 The dissent below viewed the Eighth Circuit as falling on the
other side of the circuit split, based on the statement in
Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997), that
“the difficulty of the process alone is insufficient to implicate the
First Amendment, as long as the communication of ideas
associated with the circulation of petitions is not affected.” App.
106a. But SD Voice clarifies that the Eight Circuit applies First
Amendment scrutiny to laws that go beyond merely regulating
communications.
12
voter initiatives or recall elections at all, they cannot
limit those mechanisms to extraordinary circumstances but rather must make them available as routine parts of the political landscape. Worse, it gives
federal courts license to rewrite state laws governing
the preconditions for invoking those mechanisms,
such as signature requirements and time limits. Under Angle, most states’ election laws are vulnerable to
free-ranging challenges. Nothing in the First Amendment requires that result.
The First Amendment does not confer “a right to
use governmental mechanics to convey a message.”
Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 127
(2011). Yet the Ninth Circuit’s approach does just
that: It requires strict scrutiny merely because a law
“make[s] it less likely that proponents will be able to
garner the signatures necessary to place an initiative
on the ballot,” on the theory that such a law “limit[s]
their ability to make the matter the focus of statewide
discussion.” Angle, 673 F.3d at 1132. The First
Amendment of course protects the speech used to
gather signatures. In Meyer v. Grant, 486 U.S. 414,
421–22 (1988), this Court struck down a Colorado law
making it a felony to pay petition circulators to collect
signatures for a proposed constitutional amendment,
holding that it limited “core political speech” by prohibiting those who received pay from circulating petitions. But the right to speak is not a right to use ballot
access to convey a message or enact legislation. As the
dissent below put it, the Ninth Circuit has “extrapolate[d] a right to put an issue on the ballot from the
right to advocate for an issue. That’s simply incorrect.”
App. 74a (Bumatay, J., dissenting).
13
The Ninth Circuit went wrong by misreading a single line from Meyer, which noted that a ban on paid
petition circulators “has the inevitable effect of reducing the total quantum of speech on a public issue.” 486
U.S. at 423. In Angle, the Ninth Circuit treated that
line as though it were a freestanding holding that requires strict scrutiny any time a state law has that effect. 673 F.3d at 1133. But Meyer “didn’t recognize an
independent First Amendment protection against
state rules that somehow diminish the ‘total quantum
of speech.’” App. 100a (Bumatay, J., dissenting). Angle
mistook an offhand observation for a legal test.
Recall elections like those at issue in this case are
good examples of why such a test makes no sense.
Public officials have time-bound terms and must
stand for election regularly. The focused discussion
created by a recall election is one that can be expected
to take place in general elections no matter how the
law might restrict the recall process specifically. At
most, laws that restrict additional recall elections
channel discussion about those officials’ performance
into a predictable election calendar. That does not implicate the First Amendment any more than laws that
limit an official’s term to four years rather than two,
or two years rather than one. Predictable terms of several years promote the stability of government, and
regularly scheduled elections promote voter participation. The First Amendment does not require the federal or state government to adopt shorter terms to increase political discourse about public officials’ performance. The Ninth Circuit erred in suggesting otherwise. App. 5a (concluding that the First Amendment
14
is implicated by laws that affect the timing or frequency of elections).
Recall elections are usually meant to be extraordinary measures, a safety valve for extreme situations
where ordinary scheduled elections are insufficient to
reflect the democratic will. The First Amendment does
not require states to make recall elections—or other
direct-democracy mechanisms, like initiatives—routine or easy to mount when a state chooses otherwise.
Decisions within the Ninth Circuit bear out how
unworkable its approach is. District courts have
wielded circuit precedent to rewrite basic state elections laws, requiring this Court to intervene on an
emergency basis multiple times. For example, during
the Covid-19 pandemic a district court reduced the Oregon Constitution’s requirement for a proposed state
constitutional amendment from 149,360 signatures to
58,789 signatures. People Not Politicians Oregon 472
F. Supp. 3d at 893. Other district courts similarly
have ordered states to extend the deadlines or otherwise relax the requirements for collecting signatures
for ballot measures. See, e.g., Reclaim Idaho, 469
F. Supp. 3d at 1002–03; Fair Maps Nevada, 463
F. Supp. 3d at 1150 (invalidating the statutory signature deadline for a proposed constitutional amendment; Nevada did not appeal).
Members of this Court properly have questioned
the Ninth Circuit’s approach. Even assuming that
“neutral regulations on ballot access” implicate the
First Amendment at all, “reasonable, nondiscretionary restrictions are almost certainly justified by the
important regulatory interests,” including “ensuring
15
that ballots are not cluttered with initiatives that
have not demonstrated sufficient grassroots support.”
Little, 140 S. Ct. at 2617 (Roberts, C.J., concurring).
As the dissent below concluded, the Ninth Circuit’s total-quantum-of-speech test “is as limitless as it is hard
to understand.” App. 107a (Bumatay, J., dissenting).
Even without a square circuit split, that would be reason enough to grant review here.
C. This case is an unusually good vehicle to
resolve the circuit split.
The procedural posture of this appeal makes it an
uncommonly good vehicle for the Court to decide how
the First Amendment applies to content-neutral laws
governing direct democracy. Many appeals involving
that question, like elections appeals generally, arise
in the context of preliminary injunctions tied to a fastapproaching election, and those appeals frequently go
moot if not decided in a matter of weeks. See, e.g., Reclaim Idaho, 826 F. App’x at 594 (noting that this
Court’s stay meant that the case would shortly go
moot); People Not Politicians Oregon, 826 F. App’x at
582 (same). This Court typically must effectively decide the merits in the context of a stay motion. And
because the defendants typically are state officials,
Eleventh Amendment immunity frequently precludes
all but prospective relief, which often causes a case to
go moot once the election passes.
This case is different. The election at issue was
over long before the district court ruled, but plaintiffs’
request for nominal damages from a local official who
lacks Eleventh Amendment immunity prevent their
facial First Amendment claim from going moot. App.
16
5a. The district court also found that one plaintiff’s allegations satisfy the mootness exception for claims
that are capable of repetition and likely to evade review in the future. App. 43a. This Court therefore can
address the merits without having to proceed on an
expedited basis, and because the claim is facial rather
than as-applied, it presents a clean legal vehicle for
deciding the First Amendment question in general rather than as tethered to a particular set of facts. (App.
79a–80a (Bumatay, dissenting)).
To be sure, the stakes are somewhat lower at this
stage of the litigation than they have been in other
cases. Plaintiffs—who succeeded in their recall efforts—thus far have been unable to state a claim even
under Ninth Circuit precedent, and they may be unable to do so on remand. But if laws like the 90-day
deadline at issue here do not trigger First Amendment
scrutiny at all, there is no need for a remand. And although this case involves a recall election rather than
the voter initiatives at issue in many of the other cases
in the circuit split, the logic of the Ninth Circuit’s test
applies equally to both. App. 5a. Precisely because “no
hot-button proposal looms over the case,” there is “no
better opportunity” to address the issue than here.
App. 79a. (Bumatay, J., dissenting).
17
CONCLUSION
This Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
DAN RAYFIELD
Attorney General of
Oregon
BENJAMIN GUTMAN
Solicitor General
Counsel of Record
1162 Court Street NE
Salem, OR 97301
(503) 378-4402
benjamin.gutman
@doj.oregon.gov
APPENDIX
TABLE OF CONTENTS
Page(s)
APPENDIX A – Court of Appeals Opinion ............... 2a
APPENDIX B – District Court Order ................... ..11a
APPENDIX C – Magistrate Judge’s Findings and
Recommendations .............................................. 14a
APPENDIX D – Order Denying En Banc Review... 74a
APPENDIX E – Constitutional and Statutory
Provisions .......................................................... 111a
ii
2a
APPENDIX A- Court of Appeals Opinion
Filed April 29, 2024
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COMMITTEE TO RECALL DAN HOLLADAY; et al.,
Plaintiffs-Appellants,
v.
JAKOB WILEY, City Recorder for the City of Oregon
City, in his official capacity,
Defendant-Appellee,
STATE OF OREGON,
Intervenor-Defendant-Appellee.
No. 23-35107
D.C. No. 3:20-cv-01631-YY
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted April 4, 2024
Portland, Oregon
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
*
3a
Before: OWENS and FRIEDLAND, Circuit Judges,
and RAYES,** District Judge.
Plaintiffs Jeana Gonzales, Adam Marl, and the
Committee to Recall Dan Holladay (collectively,
“Plaintiffs”) appeal the dismissal of their lawsuit
challenging under the federal and Oregon
constitutions the 90-day signature-gathering deadline
for Oregon recall petitions imposed by Oregon Revised
Statute § 249.875(1). Although the Complaint fails to
state a claim under federal law, the district court’s
reasons for denying leave to amend on that claim were
erroneous, as were its reasons for holding that it lacked
jurisdiction over the state law claim and the federal
claim for nominal damages and declaratory relief. We
therefore remand for the district court to reconsider
whether to grant leave to amend on the federal claim,
whether to exercise supplemental jurisdiction over the
state law claim, and whether to certify any question
related to Plaintiffs’ state law claim to the Oregon
Supreme Court.
1. Defendant, the City Recorder of Oregon City, is not
entitled to sovereign immunity under the Eleventh
Amendment or Pennhurst State School & Hospital v.
Halderman, 465 U.S. 89 (1984). Local government
officials are not ordinarily entitled to sovereign
immunity. See Lake Country Ests., Inc. v. Tahoe Reg’l
Plan. Agency, 440 U.S. 391, 401 (1979). Neither party
contends that the City is an arm of the state under
** The Honorable Douglas L. Rayes, United States District Judge
for the District of Arizona, sitting by designation.
4a
Kohn v. State Bar of California, 87 F.4th 1021 (9th Cir.
2023) (en banc), cert petition docketed, No. 23-6922
(Mar. 7, 2024), or any other test, so Defendant cannot
benefit from the sovereign immunity accorded to arms
of the state.
Nor do any of the other cases upon which Defendant
relies show that Defendant has sovereign immunity.
The test articulated in McMillian v. Monroe County,
520 U.S. 781 (1997), analyzes whether a municipal
official was acting as a final policymaker for the state
or the municipality for the purposes of determining
whether to hold the official’s local government
employer liable for that official’s actions under Monell
v. Department of Social Services of the City of New
York, 436 U.S. 658 (1978). See McMillian, 520 U.S. at
784-86; see also, e.g., Weiner v. San Diego County, 210
F.3d 1025, 1028 (9th Cir. 2000). Even assuming
Defendant is correct that our court has expanded this
test to the sovereign immunity context, that would
simply mean that a person acting as a final
policymaker for the state is entitled to sovereign
immunity. Here, no party argues that Defendant was
acting as a final policymaker, either for the State or the
City, when applying the 90-day deadline. Neither
Oregon Revised Statute § 249.875(1) nor Oregon City
Charter Chapter VI, § 26 suggests that the City
Recorder had any discretion in this context. See
Pembaur v. City of Cincinnati, 475 U.S. 469, 483
(1986).
5a
The test in Buffin v. California, 23 F.4th 951 (9th Cir.
2022), also does not show that Defendant has sovereign
immunity. In Buffin, we articulated a test to determine
whether a state could be held liable for attorneys’ fees
under 42 U.S.C. § 1988 and did not apply that test to
determine whether any official was entitled to
sovereign immunity. Id. at 960, 963 n.5. Our court has
never subsequently applied that test to determine
whether an official was entitled to sovereign immunity.
2. Because Defendant is not entitled to sovereign
immunity and because Plaintiffs have requested
nominal damages in addition to declaratory and
injunctive relief, this case is not moot as to any claim
by any Plaintiff. See Uzuegbunam v. Preczewski, 141 S.
Ct. 792, 802 (2021).
3. Plaintiffs have failed to state a claim under the First
Amendment. We have treated the test in Angle v.
Miller, 673 F.3d 1122 (9th Cir. 2012), as binding in
previous election cases. See Pierce v. Jacobsen, 44 F.4th
853, 860-66 (9th Cir. 2022); Chula Vista Citizens for
Jobs and Fair Competition v. Norris, 782 F.3d 520, 534,
536 (9th Cir. 2015) (en banc). The logic underlying the
Angle test applies equally to laws regulating recall
petitions as to laws regulating initiatives, so the same
test should apply to both contexts. Recall elections
affect the total quantum of speech on a particular issue
by affecting the timing and context of an election—
therefore causing voters to focus on different topics—
as well as by increasing the number of elections in
many situations.
6a
Plaintiffs have not alleged facts sufficient to subject the
90-day deadline to strict scrutiny under the Angle test
because their allegations fail to show that the deadline
“significantly inhibit[s] the ability of [recall]
proponents to place [a recall] on the ballot.” Angle, 673
F.3d at 1133. Plaintiffs would need to show that, “in
light of the entire statutory scheme regulating ballot
access, ‘reasonably diligent’” recall proponents cannot
“normally gain a place on the ballot,” and instead “will
rarely succeed in doing so.” Id. (quoting Nader v.
Brewer, 531 F.3d 1028, 1035 (9th Cir. 2008)). But the
facts alleged in the Second Amended Complaint show
only that Plaintiffs faced significant barriers to
collecting enough signatures within the 90-day
deadline under the specific circumstances they faced at
the time— during the COVID-19 pandemic, under
emergency orders that limited public gatherings and
required social distancing—which is insufficient to
support their facial challenge. See Wash. State Grange
v. Wash. State Republican Party, 552 U.S. 442, 449
(2008) (explaining that “a plaintiff can only succeed in
a facial challenge by ‘establishing that no set of
circumstances exists under which the Act would be
valid,’ i.e., that the law is unconstitutional in all of its
applications” (cleaned up) (quoting United States v.
Salerno, 481 U.S. 739, 745 (1987))). Plaintiffs’
conclusory allegations that “it is well-established that
most recall campaigns fail to obtain the requisite
number of petition signatures,” and “[t]his is, in large
(and obvious) part, due to lack of adequate time to
gather signatures” are also insufficient to allow
7a
Plaintiffs to survive a motion to dismiss. See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009).
The 90-day deadline survives “less exacting review”
because it “furthers ‘an important regulatory interest.’”
Angle, 673 F.3d at 1132, 1135 (quoting Prete v.
Bradbury, 438 F.3d 949, 961, 969 (9th Cir. 2006)).
Whether a law furthers an important regulatory
interest is a question that may be decided at the motion
to dismiss stage. See, e.g., Rubin v. City of Santa
Monica, 308 F.3d 1008, 1012, 1017-19 (9th Cir. 2002);
see also Caruso v. Yamhill County ex rel. Cnty.
Comm’r, 422 F.3d 848, 861-62 (9th Cir. 2005).
The 90-day deadline serves the important regulatory
interest of ensuring that the recall effort has sufficient
grassroots support before holding a recall election. See
Angle, 673 F.3d at 1135. The 90-day deadline serves
this purpose by ensuring that there are enough people
at some given time who support recalling the official.
The 90-day deadline also serves the important
regulatory interest of preventing abuse of the recall
process. See John Doe No. 1 v. Reed, 561 U.S. 186, 197
(2010). Without the deadline, recall proponents could
collect signatures and then wait to submit them, either
to use them as a threat against the official or to time
the recall election to manipulate the outcome.
4. The district court abused its discretion in denying
leave to amend. See AE ex rel. Hernandez v. County of
Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (holding that
8a
a district court abuses its discretion by denying leave
to amend “unless amendment would be futile or the
plaintiff has failed to cure the complaint’s deficiencies
despite repeated opportunities” and explaining that
“[a] district court also abuses its discretion when it
commits an error of law”).
Two of the district court’s reasons for holding that
amendment would be futile—sovereign immunity and
mootness—were legally erroneous. As we have
explained, Defendant is not entitled to sovereign
immunity, and this case is not moot as to any claim by
any Plaintiff.
The district court’s reliance on the letter sent from
Plaintiffs’ counsel to Defendant during the signaturegathering period was also erroneous. The fact that
Plaintiffs were confident, given the levels of public
support for their particular recall effort, that they
would be able to gather the signatures under nonCOVID conditions does not render it impossible for
Plaintiffs to allege facts showing that recall proponents
in general will not normally be able to collect enough
signatures because of the 90-day deadline.1 See Angle,
673 F.3d at 1133.
1 The district court was permitted to consider the letter because it
was attached to the complaint and is therefore treated as part of
the complaint. See Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th
Cir. 2007) (per curiam); Hal Roach Studios, Inc. v. Richard Feiner
and Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).
9a
The district court’s only other reason, that the data
Plaintiffs would add “would not establish the link
between failed petitions and the alleged severe burden
of the 90-day time restriction,” was also an abuse of
discretion. Because Plaintiffs asserted that their data
would show such a link, this is not a ground on which
we can affirm the denial of leave to amend absent
explanation from the district court, which was
lacking.2 We therefore vacate the denial of leave to
amend and remand for further proceedings in which
the district court should either grant leave to amend
on the federal claim or provide a clear explanation for
not doing so.
As we explained above, the district court’s dismissal of
the state law claims on Pennhurst grounds was
erroneous. But whether the district court will
ultimately exercise supplemental jurisdiction over the
state law claim may depend on whether it grants leave
to amend on the federal claim or, if so, dismisses the
federal claim again after amendment. See 28 U.S.C. §
1367(c)(3). On remand, the district court should
therefore first reconsider whether to grant leave to
amend on the federal claim, then determine whether to
exercise supplemental jurisdiction over the state law
claim in light of that decision, and, if so, whether to
certify Plaintiffs’ state law question to the Oregon
Supreme Court.
2 Plaintiffs also have not been given repeated chances to amend
their complaint to cure the current deficiency.
10a
For the foregoing reasons, we AFFIRM dismissal of
the Second Amended Complaint but VACATE the
denial of leave to amend and REMAND for further
proceedings.
11a
APPENDIX B- District Court Order
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
No. 3:20-cv-01631-YY
COMMITTEE TO RECALL DAN HOLLADAY; et al.,
Plaintiffs,
v.
JAKOB WILEY,
Defendant,
Intervenor.
STATE OF OREGON,
MOSMAN, J.,
On August 25, 2022, Magistrate Judge Youlee Yim You
issued her Findings and Recommendation (“F&R”)
[ECF 52] recommending that I grant the State of
Oregon’s and Defendant’s respective Motions to
Dismiss [ECF 21, 23] and deny Plaintiffs’ Motion for
Certification of a Question to the Oregon Supreme
Court [ECF 43]. Plaintiffs filed objections to the F&R
[ECF 56], to which the State of Oregon and Defendant
replied [ECF 57, 58]. Upon review, I agree with Judge
You and write further to explain denying leave to
amend the complaint. I GRANT the Motions to Dismiss
and DENY the Motion for Certification of a Question
to the Oregon Supreme Court.
12a
LEGAL STANDARD
The magistrate judge makes only recommendations to
the court, to which any party may file written
objections. The court is not bound by the
recommendations of the magistrate judge, but retains
responsibility for making the final determination. The
court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an
objection is made. 28 U.S.C. § 636(b)(1)(C). However,
the court is not required to review, de novo or under
any other standard, the factual or legal conclusions of
the magistrate judge as to those portions of the F&R to
which no objections are addressed. See Thomas v. Am,
474 U.S. 140,149 (1985); United States v. Reyna-Tapia,
328 F.3d 1114,1121 (9th Cir. 2003). While the level of
scrutiny under which I am required to review the F&R
depends on whether or not objections have been filed,
in either case, I am free to accept, reject, or modify any
part of the F&R. 28 U.S.C. § 636(b)(1)(C).
DISCUSSION
I adopt Judge You’s F&R in full and write further to
expand on the decision to dismiss the complaint rather
than grant leave to amend. “A district court acts within
its discretion to deny leave to amend when amendment
would be futile . . . .” Chappel v. Lab. Corp. of Am., 232
F.3d 719, 725-26 (9th Cir. 2000). Here, amendment
would be futile for several reasons. Plaintiffs’ counsel’s
statement on the ease of obtaining signatures in a
13a
setting not affected by COVID-19 clearly contradicts
Plaintiffs’ First Amendment claim. Further, Plaintiffs’
proposed amendment to include data on the fact that
most recall petitions fail would not establish the link
between failed petitions and the alleged severe burden
of the 90-day time restriction. More importantly,
because sovereign immunity and mootness apply, any
amendment to the complaint to cure its deficiencies
would be futile. Therefore, dismissal is appropriate.
CONCLUSION
Upon review, I agree with Judge You’s
recommendation, and I ADOPT the F&R [EVF 52] as
my own opinion. The Motions to Dismiss [ECF 21, 23]
are GRANTED, and the Motion for Certification of a
Question to the Oregon Supreme Court [ECF 43] is
DENIED.
IT IS SO ORDERED.
DATED this 10th day of January, 2023.
/s/ MW Mosman
MICHAEL W. MOSMAN
Senior United States District Judge
14a
APPENDIX C- Magistrate Judge’s Findings and
Recommendations
UNITED STATE DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3:20-CV-01631-YY
COMMITTEE TO RECALL DAN HOLLADAY,
JEANA GONZALES, and ADAM MARL,
Plaintiffs,
v.
JAKOB WILEY, City Recorder for Oregon City, in his
official capacity,
Defendant,
and
STATE OF OREGON,
Intervenor.
August 25, 2022, Filed
FINDINGS AND RECOMMENTDATIONS
YOU, Magistrate Judge.
15a
FINDINGS
The plaintiffs in this case—the Committee to Recall
Dan Holladay, Jeana Gonzales, and Adam Marl—bring
this action against defendant Jakob Wiley in his
official capacity as the City Recorder for Oregon City.1
Plaintiffs allege that defendant’s enforcement of O.R.S.
§ 249.875, a state statute mandating a 90-day period
for recall proponents to collect a sufficient number of
signatures, violated their rights to free speech and
political expression under the First and Fourteenth
Amendments to the U.S. Constitution, as well as their
right to recall state officials under Article II, Section 18
of the Oregon Constitution. See Second Am. Compl. ¶¶
51-58, ECF 42. In addition to the parties above, the
State of Oregon (“the state”) has successfully moved to
intervene in this dispute. See ECF 18, 30. This court
has federal question jurisdiction over plaintiffs’ First
and Fourteenth Amendment claims and supplemental
jurisdiction over the state law claims. See 28 U.S.C. §
1331, 28 U.S.C. § 1367.
The state has filed a motion to dismiss plaintiffs’
claims. State Mot. Dismiss, ECF 21. Defendant joined
in the state’s motion and also filed a separate motion
to dismiss. Def. Corrected Mot. Dismiss, ECF 23. In
response to standing and mootness-related questions
from the court, the parties filed supplemental briefing,
1 The original defendant to this action was Kattie Riggs, who, at
the commencement of this lawsuit, served as City Recorder for
Oregon City. Riggs has since departed the office, and Wiley succeeded her as City Recorder. See Not. Subs. Party, ECF 37; FED.
RULE CIV. P. 25(d).
16a
and as part of that supplemental briefing, plaintiffs
proffered a Proposed Second Amended Complaint
(ECF 36-1). See Pl. First Supp. Br., ECF 36; State First
Supp. Br., ECF 38; Def. First Supp. Br., ECF 39.
On March 22, 2022, the undersigned advised the
parties that it appeared the Pullman abstention
doctrine applied, and requested that plaintiffs formally
file their Second Amended Complaint in the record to
allow for efficient resolution. In response, plaintiffs
asked for the opportunity to file a motion to certify a
question to the Oregon Supreme Court, which would
present an alternative to dismissing the state law
claims pursuant to Pullman abstention.
Plaintiffs formally filed their Second Amended
Complaint, see ECF 42, and subsequent briefing on
plaintiffs’ motion to certify followed. See Mot. Cert.,
ECF 43; State Opp. Mot. Cert., ECF 44; Def. Opp. Mot.
Cert., ECF 45; Pl. Reply Mot. Cert., ECF 46. As agreed
to by the parties in their Joint Motion for a Case
Management Order, ECF 40, and the related
Scheduling Order, ECF 41, the court applies “the
previously-filed Motion to Dismiss for Lack of
Jurisdiction[, ECF] 21 and Motion to Dismiss and
Joinder[, ECF] 23 and all briefing, supplemental
briefing, and exhibits that have been filed regarding
those motions.” Finally, in response to abstentionrelated questions from the court, the parties filed
additional supplemental briefing in July and August
2022. See State Second Supp. Br., ECF 49; Def. Second
Supp. Br., ECF 50; Pl. Second Supp. Br., ECF 51.
17a
For the reasons stated herein, the state and
defendant’s respective motions to dismiss (ECF 21, 23)
should be GRANTED. Specifically, plaintiffs’ state law
claims should be dismissed because they are either
moot or the Pennhurst doctrine applies, preventing this
federal court from conferring any form of relief.
Plaintiffs’ claims under federal law should be
dismissed because they are either moot or fail to
demonstrate a First Amendment violation under
relevant caselaw. Additionally, plaintiffs’ motion for
certification of a question to the Oregon Supreme
Court (ECF 43) should be DENIED.
I. Factual and Procedural Background
This dispute arises from a legal challenge surrounding
Oregon’s recall laws. Article II, Section 18 of the
Oregon Constitution allows for the recall of “[e]very
public officer in Oregon,” and proscribes procedures for
the recall process. As relevant to this case, the Oregon
Constitution requires that to initiate a recall election,
a petitioner must receive support (often in the form of
a signature) from at least fifteen percent of the official’s
constituency. Id. Crucially, this provision of the Oregon
Constitution is silent regarding the amount of time a
petitioner has to collect a sufficient number of
signatures. However, a state statute O.R.S. §
249.875—imposes a deadline of 90 days for a petitioner
to collect the requisite number of signatures. Plaintiffs
challenge the legality of this statute, arguing that the
90-day deadline unconstitutionally infringes upon the
recall authority contained in the Oregon Constitution
and free speech and political expression rights
protected by the U.S. Constitution.
18a
The specific events in this dispute began on June 22,
2020, when plaintiffs filed a petition seeking to collect
signatures for the prospective recall of then-Oregon
City Mayor Dan Holladay. Second Am. Compl. ¶ 18,
ECF 42. The next day, then-City Recorder Kattie Riggs
accepted the petition, issued signature collection
forms, and established a threshold of 2,400 valid
signatures for plaintiffs to meet. Id. ¶ 20. Riggs also
established, in accordance with O.R.S. § 249.875(1), a
90-day period for plaintiffs to collect signatures, thus
requiring that plaintiffs meet the signature threshold
by September 21, 2020, to trigger a recall election. Id.
¶ 21.
On August 14, 2020 (the 52nd day of the period),
plaintiffs requested that Riggs withdraw the
September 21, 2020 signature collection deadline,
alleging the collection period was unconstitutional on
its face or as-applied during a public health crisis. Id.
¶ 22. Six days later, on August 20, 2020, Riggs refused
plaintiffs’ request. Id. ¶ 23. Plaintiffs commenced this
suit on September 18, 2020, three days before the end
of their signature collection period. ECF 1. On
September 21, 2020, the deadline for signature
collection, plaintiffs submitted over 3,400 raw
signatures to Riggs for verification. Second Am. Compl.
¶ 25, ECF 42. Riggs subsequently certified that 3,037
valid signatures were submitted and set a special
recall election for November 10, 2020. Id. ¶ 26. The
election was ultimately successful, and Holladay was
removed from office on November 30, 2020. Id. ¶ 27.
19a
Plaintiffs have continued pursuing this lawsuit despite
their successful recall effort. They ask this court to find
that O.R.S. § 249.875, the statute that requires the
signatures to be collected within 90 days to trigger a
recall election, is either facially unconstitutional or
unconstitutional as applied in light of the public health
crisis created by the COVID-19 pandemic and
destructive summer wildfires. See Second Am. Compl.
¶¶ 51-58, ECF 42. Plaintiffs seek declaratory and
injunctive relief, nominal damages of one dollar, and
litigation expenses. Id.
II. Legal Standards
A. Rule 12(b)(1): Subject Matter Jurisdiction
A party may move to dismiss a claim for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1). Federal courts are courts of limited
jurisdiction and are “presumed to lack jurisdiction in a
particular case unless the contrary affirmatively
appears.” Stock W., Inc. v. Confederated Tribes of the
Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.
1989). “[T]hose who seek to invoke the jurisdiction of
the federal courts must satisfy the threshold
requirement imposed by Article III of the Constitution
by alleging an actual case or controversy.” City of Los
Angeles v. Lyons, 461 U.S. 95, 101 (1983). “[T]he core
component of standing is an essential and unchanging
part of the case-or-controversy requirement of Article
III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). To show standing, a plaintiff must demonstrate
(1) an injury-in-fact that is (2) fairly traceable to
defendant’s conduct and that (3) the court may
20a
adequately redress. Id. at 560-61. “The party invoking
federal jurisdiction bears the burden of establishing
[standing].” Id.
B. Rule 12(b)(6): Failure to State a Claim
To state a claim for relief, a pleading must contain “a
short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2).
This standard “does not require `detailed factual
allegations,’ but does demand “more than an
unadorned,
the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell AtL Corp. v. Twombly, 550 U.S. 544, 555
(2007)). “A pleading that offers `labels and conclusions’
or `a formulaic recitation of the elements of a cause of
action will not do.’ Id. (quoting Twombly, 550 U.S. at
555).
A Rule 12(b)(6) motion tests whether there is a
cognizable legal theory or sufficient facts to support a
cognizable legal theory. Taylor v. Yee, 780 F.3d 928,
935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion,
“the complaint must allege `enough facts to state a
claim to relief that is plausible on its face.’ Id. (quoting
Twombly, 550 U.S. at 570). In evaluating a motion to
dismiss, the court must accept all well-pleaded
material facts alleged in the complaint as true and
construe them in the light most favorable to the nonmoving party. Wilson v. Hewlett-Packard Co., 668 F.3d
1136, 1140 (9th Cir. 2012).
21a
III. State Sovereign Immunity—Declaratory
Relief and Damages
The state2 argues that plaintiffs’ request for
declaratory relief and damages must be dismissed
because defendant possesses state sovereign immunity
under the Eleventh Amendment. State Mot. Dismiss
14-15, ECF 21. Generally, state officials cannot be sued
for damages in their official capacities under 42 U.S.C.
§ 1983 because they are not considered “persons”
within the meaning of the statute. Will v. Michigan
Dep’t. of State Police, 491 U.S. 58, 71 (1989)
(“Obviously, state officials literally are persons. But a
suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit
against the official’s office.”).3 The Eleventh
Defendant has joined in the state’s motion to dismiss. Thus,
when these findings and recommendations note that “the state”
has alleged something, that includes both the state (the intervenor) and defendant. See, e.g., Def. Corrected Mot. Dismiss & Joinder in State Mot. Dismiss, ECF 23; Def. Reply & Joinder in State’s
Reply, ECF 29; Def. Supp. Br. and Joinder in State Supp. Br., ECF
39; Def. Opp. Mot. Cert. & Joinder in State Opp. Mot. Cert., ECF
45; Def. Joinder in State’s Second Supp. Br., ECF 50. Defendant
has stated that he does not necessarily agree with all of the state’s
arguments in the state’s opposition to certification, see Def. Opp.
Mot. Cert. 2 n.1, ECF 45, but that nuanced clarification is not dispositive to these findings and recommendations.
3 There exists an important exception to this rule: parties are allowed to seek prospective relief against state officials (in their official capacities) under § 1983 because “official-capacity actions for
prospective relief are not treated as actions against the State.”
Will v. Michigan Dep’t. of State Police, 491 U.S. 58, 71 n.10 (1989)
(citing Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); Ex
parte Young, 209 U.S. 123, 159-60 (1908)). This exception preserves plaintiffs’ claims for prospective and future injunctive relief
2
22a
Amendment also bars federal courts from enforcing a
declaratory judgment against state officials for prior
conduct. Green v. Mansour, 474 U.S. 64, 73-74 (1985)
(denying petitioners’ request for declaratory judgment
after a change in federal law rendered their complaint
moot). Thus, if defendant is entitled to state sovereign
immunity, this court cannot award plaintiffs with
either declaratory relief or any damages associated
with Riggs’ imposition of the 90-day deadline pursuant
to O.R.S. § 249.875(1).
Defendant, as the City Recorder for Oregon City, is a
local official. However, any “officer, be he state or local,
is acting as a state official, i.e., a state agent” “when a
state statutory regime comprehensively directs” his
actions. Buffin v. California, 23 F.4th 951, 962 (9th Cir.
2022) (citing Echols v. Parker, 909 F.2d 795, 799 (5th
Cir. 1990)). Here, as the state observes, state law
directs defendant’s actions during the recall process:
[Oregon’s] Legislative Assembly established the 90day deadline for recall petitions. In addition, the
Secretary of State specifically instructs local officials to
follow the 90-day deadline. Oregon Secretary of State
Recall
Manual
at
4,
https://sos.oregon.gov/elections/Documents/RecallMan
ual.pdf (adopted as a rule by OAR 165- 014-0005)
(“Signatures are due no later than 5 pm 90 days after
a prospective petition is filed with the elections
official.”). The City Recorder must follow the Secretary
of State’s directions. See City of Eugene v. Roberts, 91
Or. App. 1, 3, aff’d, 305 Or. 641 (1988) (holding that the
for purposes of Eleventh Amendment immunity, although they ultimately do not survive, as discussed later.
23a
Secretary of State, as the State’s “chief election officer”
under ORS 246.110, may direct a local election official
not to place a measure on the ballot in violation of state
law).
State Mot. Dismiss 13, ECF 21.
Plaintiffs oppose this characterization and argue that
“Riggs was not a state actor; rather, she was following
the Oregon City Charter when she imposed and
enforced the 90-day signature gathering deadline.” Pl.
Opp. Mots. Dismiss 22, ECF 26. Plaintiffs allege that
Oregon cities are not required to follow O.R.S. §
249.875 because (1) the right of recall in the state
Constitution is self-executing and not dependent on
legislative statutes, (2) the text of O.R.S. § 249.875
does not reference local recall elections, and (3) any
state action that requires a city to follow O.R.S. §
249.875 would violate that city’s “home-rule authority
to draft and amend its own charter.” Id. 13-16. Thus,
according to plaintiffs, cities are free to establish any
election regulations that they see fit, and Oregon City’s
decision to “adopt Oregon’s statewide election laws by
reference” in its charter makes defendant’s
enforcement of those statewide election laws a
municipal action, not one that is mandated by a state
statutory regime. Id.
Plaintiffs’ home rule argument overlooks a bedrock
principle that is perpetually tied to local governance:
the state’s authority to preempt municipal affairs.
While home rule authority allows cities to engage in
self-governance without seeking the state’s approval, it
does not offer unfettered authority or immunity from
state legislation. The doctrine of preemption provides
24a
that “a general law addressed primarily to substantive
social, economic, or other regulatory objectives of the
state prevails over contrary policies preferred by some
local governments if it is clearly intended to do so[.]”
City of La Grande v. Public Employees Retirement Bd.,
281 Or. 137, 156 (1978). The 90-day signature
collection deadline described in O.R.S. § 249.875
clearly addresses the state’s regulatory objectives
surrounding election administration. Otherwise
stated, if a city attempted to establish a different
signature collection period, state law would preempt
its application and require the use of the 90-day period
in O.R.S. § 249.875.
Other portions of plaintiffs’ theory are similarly
unconvincing. For example, plaintiffs allege that the
self-executing nature of Oregon’s constitution
eliminates the need to consult state legislation
involving its provisions. Pl. Opp. Mots. Dismiss 28,
ECF 26. But Article II, Section 8 of the Oregon
Constitution, titled “[R]egulation of [E]lections,”
provides that “[t]he Legislative Assembly shall enact
laws to . . . prescrib[e] the manner of regulating and
conducting elections.” Plaintiffs also allege that the
text of O.R.S. § 249.875 does not reference Oregon
cities. Pl. Opp. Mots. Dismiss 13, ECF 26. But that does
not mean cities can ignore the statute—especially
considering the statute does not reference any public
entity whatsoever.
In short, plaintiffs’ theory does not dislodge the
existence of a state statutory regime that
“comprehensively directs” an election official’s
handling of a recall petition. Buffin, 23 F.4th at 962.
25a
Thus, despite being a local official, Riggs was acting as
a state agent when she enforced the 90-day deadline
contained in O.R.S. § 249.875, and is therefore entitled
to state sovereign immunity. Accordingly, plaintiffs
cannot recover a declaratory judgment or money
damages related to Riggs’ service as City Recorder.
IV. Standing and Mootness
The motions to dismiss from the state and defendant
both allege problems involving standing and mootness.
See generally State Mot. Dismiss, ECF 21; Def.
Corrected Mot., ECF 23. “The doctrine of standing
generally assesses whether that interest exists at the
outset, while the doctrine of mootness considers
whether it exists throughout the proceedings.”
Uzuegbunam v. Preczewski, 141 S. Ct. 792, 796 (2021).
While the concepts are commonly intertwined,
divorcing them in this case is necessary to
comprehensively analyze the presented issues. Of
course, plaintiffs must demonstrate both standing and
the absence of, or exception to, mootness, to maintain
subject-matter jurisdiction. United States Parole
Comm ‘n v. Geraghty, 445 U.S. 388, 397 (1980) (“The
requisite personal interest that must exist at the
commencement of the litigation (standing) must
continue throughout its existence (mootness).”).
A. Standing
1. Legal Standard
Federal courts are courts of limited jurisdiction. See
Hollingsworth v. Perry, 570 U.S. 693, 693 (2013)
(“Article III of the Constitution confines the judicial
26a
power of federal courts to deciding actual `Cases’ or
`Controversies.”) (quoting U.S. CONST. art. III, § 2).
An “essential element” of this limited jurisdiction is
that “any person invoking the power of a federal court
must demonstrate standing to do so.” Id. (citing Lujan,
504 U.S. at 560-61). The “irreducible constitutional
minimum of standing” requires the invoking party to
establish three elements:
First, the plaintiff must have suffered an injury in
fact—an invasion of a legally protected interest which
is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical. Second,
there must be a causal connection between the injury
and the conduct complained of—the injury has to be
fairly traceable to the challenged action of the
defendant, and not the result of the independent action
of some third party not before the court. Third, it must
be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
Lujan, 504 U.S. at 560-61 (internal citations, ellipses,
and quotation marks omitted). These are “not mere
pleading requirements but rather an indispensable
part of the plaintiff’s case [and] each element must be
supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with
the manner and degree of evidence required at the
successive stages of the litigation.” Id. at 561 (citations
omitted). “[T]he plaintiff bears the burden of proof’ that
these elements exist. Id.
27a
2. Analysis
Plaintiffs allege that Riggs’ enforcement of O.R.S.
§ 249.875 “shaped” their signature gathering effort and
strategy to be “more expensive, more difficult, and
more likely to fail than it would have been had it not
been burdened by a 90-day signature gathering
deadline.” Second Am. Compl. ¶ 28, ECF 42. After
being asked to clarify the expenses incurred to comply
with the statute during the pandemic, plaintiffs
submitted that they hired, at a cost of $8,000, a printand-mail house to create and mail signature collection
packets to over 11,000 voting households in Oregon
City. Id. ¶ 29. Plaintiffs also claim that to facilitate the
expeditious return of signature sheets, they
established a business reply mail account with the
United States Postal Service at a cost of “hundreds of
dollars.” Id.
The state does not dispute the existence of an injuryin-fact associated with plaintiffs’ costs and efforts, nor
does it dispute that the efforts and expenditures are
sufficiently traceable to Riggs’ actions. Instead, the
state alleges that plaintiffs lack standing because of
two redressability-related issues. First, the state
argues that any injunction granted at the time this
lawsuit was filed would not have redressed any
expenditures or efforts that plaintiffs had already
undertaken to improve their signature collection effort.
State First Supp. Br. 3-4, ECF 38. Indeed, an
injunction on the date of filing would not have
redressed the efforts and costs that plaintiffs had
already expended.
28a
Second, the state claims that injunctive relief was
unnecessary at the time plaintiffs filed suit because
they were already on track to successfully trigger a
recall election. Id. at 4. This argument rests on two
facts in plaintiffs’ Second Amended Complaint: first,
that on the 60th day of the 90-day period, the campaign
had collected “approximately 1,961 raw signatures,”
and second, that the signature collection packets,
which were mailed to voters around the 70th day of the
period, added “over 1,000 raw signatures” to the
campaign’s total. Second Am. Compl. 30, 35-36, ECF
42. The state uses these alleged facts to suggest that
by the time plaintiffs filed suit, on the 87th day of the
90-day period, “it was already clear that the petition
was not likely to fail.” State First Supp. Br. 4, ECF 38
(quotation marks removed). Put differently, the state’s
argument is that an injunction would have offered no
redress because Riggs was unlikely to enforce the
statute anyway.
This argument is unpersuasive on two grounds. First,
as a practical matter, Riggs began enforcing the
statute on June 23, 2020—the date she certified
plaintiffs’ petition and established, in accordance with
state law, the 90-day period to collect signatures.4
4 This conclusion is bolstered by Riggs’ August 20, 2020 letter in
which she declined the campaign’s request to waive the deadlines,
and confirmed she would continue to enforce the statute and its
90-day collection period:
I do not believe that I have the authority to unilaterally
waive the applicable 90-day time limit for gathering of signatures as set forth in state law. Therefore, the deadline to
submit the required 2,400 valid signatures for the petition
is 5:00 p.m. on Monday, September 21, 2020 . . .
Second Am. Compl., Ex. 5, ECF 42-5.
29a
Second, the argument ignores the possibility that
plaintiffs’ signature collection effort could have failed.
It is undisputed that on August 14, 2020, the 52nd day
of the 90-day period, plaintiffs informed Riggs that
they were “on track to reach their goal of 3,100 raw
signatures.” See Second Am. Compl., Ex. 4 at 2, ECF
42-4. It is also undisputed that plaintiffs ultimately
submitted over 3,400 raw signatures at the end of the
90-day period. Second Am. Compl. ¶ 25, ECF 42. But
the relevant inquiry is not the number of raw
signatures the plaintiffs collected, but rather, the
number of valid signatures they possessed.5 That
figure was unknown to plaintiffs at the time they filed
suit. And while plaintiffs ultimately exceeded their
signature collection goal (an internal metric that
accounted for an “estimated typical signature
invalidity rate” of 20 to 25%), a slightly higher
invalidity rate of 30% would have doomed their
petition.6 Second Am. Compl. ¶ 34 n.5, ECF 36-1. Thus,
at the time plaintiffs initiated this lawsuit, they
possessed a well-established fear that their petition
could fail, and an injunction against Riggs would have
redressed that injury. Accordingly, plaintiffs have
demonstrated that they possessed standing at the
commencement of this litigation.
An elections office can invalidate petition signatures for any
number of reasons, including duplicative signatories, signatures
from ineligible persons (such as nonresidents and nonregistered
voters), and fictitious signatories or addresses.
6 A hypothetical signature invalidity rate of 30% (5% above plaintiffs’ estimated signature invalidity rate) would have invalidated
1,020 of the roughly 3,400 signatures submitted, leaving plaintiffs
with 2,380 valid signatures—a figure that is just under the 2,400signature threshold.
5
30a
B. Mootness
The state also contends that the dispute is moot
because plaintiffs succeeded in recalling Holladay in
November 2021. State Reply Mot. Dismiss 3, ECF 27.
Plaintiffs disagree, arguing that (1) their claim for
nominal damages to remedy Riggs’ alleged
constitutional violation prevents mootness, and (2) in
any event, their facial and as-applied challenges fall
under the “capable of repetition, yet evading review”
exception to mootness. Pl. Opp. Mots. Dismiss 6-16,
ECF 26. As discussed below, plaintiff Gonzales’ facial
challenge qualifies for the “capable of repetition, yet
evading review” exception to mootness; however,
plaintiff Marl’s facial challenge and all of plaintiffs’ asapplied challenges are moot.
1. Legal Standard
For a federal court to retain Article III jurisdiction, “an
actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.”
Arizonans for Official English v. Arizona, 520 U.S. 43,
67 (1997) (internal citation omitted). “The doctrine of
mootness, which is embedded in Article III’s case or
controversy requirement, requires that an actual,
ongoing controversy exist at all stages of federal court
proceedings.” Bayer v. Neiman Marcus Grp., Inc., 861
F.3d 853, 862 (9th Cir. 2017) (citation omitted). A case
becomes moot “when the issues presented are no longer
live or the parties lack a legally cognizable interest in
the outcome.” Murphy v. Hunt, 455 U.S. 478, 481
(1982) (per curiam) (internal quotation marks
omitted).
31a
“The basic question in determining mootness is
whether there is a present controversy as to which
effective relief can be granted.” Northwest
Environmental Defense Center v. Gordon, 849 F.2d
1241, 1244 (9th Cir. 1988). “An action `becomes moot
only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.’”
Bayer, 861 F.3d at 862 (quoting Chafin v. Chafin, 568
U.S. 165, 172 (2013)). In other words, the plaintiff must
show he is “realistically threatened by a repetition of
the violation.” Gest v. Bradbury, 443 F.3d 1177 (9th
Cir. 2006) (emphasis in original) (citation omitted).
Plaintiffs have raised both facial and as-applied
challenges to defendant’s enforcement of O.R.S.
§ 249.875. “[A] facial challenge is a challenge to an
entire legislative enactment or provision.” Hoye v. City
of Oakland, 653 F.3d 835, 857 (9th Cir. 2011). In
contrast, “a paradigmatic as-applied attack . . .
challenges only one of the rules in a statute, a subset
of the statute’s applications, or the application of the
statute to a specific factual circumstance.” Id.
Importantly, these rules apply if and when a court
reviews the substantive merits of plaintiffs’ challenges.
The mootness inquiry addresses an a priori question of
whether this court has subject matter jurisdiction to
consider plaintiffs’ challenges.
2. Nominal
Immunity
Damages
and
State
Sovereign
Plaintiffs acknowledge that they succeeded in recalling
Holladay, but allege that their “prayer for nominal
32a
damages for a completed violation of a legal right
prevents this case from becoming moot.” Pl. First Supp.
Br. 4 n.4, ECF 36; see also Pl. Opp. Mots. Dismiss 1012, ECF 26. But, as discussed above, state sovereign
immunity prevents any damages from being assessed
against defendant. “[S]tate sovereign immunity
protects state officer defendants sued in federal court
in their official capacities from liability in damages,
including nominal damages.” Platt v. Moore, 15 F.4th
895, 910 (9th Cir. 2021) (emphasis added).7
Plaintiffs cite to the Supreme Court’s recent ruling in
Uzuegbunam, 141 S. Ct. 792, in support of their
mootness argument. Uzuegbunam involved a public
university student who distributed religious literature
and interacted with passersby at an on-campus plaza.
Id. at 796. After being threatened with disciplinary
action, the student sued the university for alleged First
and Fourteenth Amendment violations, and sought a
declaratory judgment and nominal damages. Id. at
797. During litigation, the university eliminated the
challenged policies and then alleged the case was moot.
Id. Despite these actions, the Supreme Court ruled
that the request for nominal damages prevented the
7 As the state suggests, this finding is also bolstered, in an alter-
native sense, when examined in the context of Monell liability. See
State Supp. Br. 4, ECF 38. Under Monell, the court’s task is to
“identify those officials or governmental bodies who speak with
final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation.” Jett v. Dallas Independent School
Dist., 491 U.S. 701, 737 (1989); see also McMillian v. Monroe Cty.,
Ala., 520 U.S. 781, 785 (1997). In this case, Riggs possessed no
“final policymaking authority”; the policy she was directed to adhere to was created by state officials.
33a
case from being mooted because the “prevailing rule,
well established at common law, was that a party
whose rights [were] invaded [could] always recover
nominal damages without furnishing any evidence of
actual damage.” Id. at 800 (quotation marks omitted).
Simply put, Uzuegbunam provides that even if an
allegedly unconstitutional policy is eliminated during
litigation, the constitutional challenge is not rendered
moot because an award of nominal damages could still
redress the past injury.
Here, the alleged violation began when Riggs set the
90-day period for signature collection. And the
violation is not “complete” because the state law that
requires the 90-day collection period remains in effect.
But that being said, Uzuegbunam offers little value to
this dispute: while Uzuegbunam allows disputes to
avoid mootness through the possibility of nominal
damages, state sovereign immunity prevents any
nominal damages from being assessed against
defendant. Plaintiffs’ claims are therefore moot, unless
subject to the exception for being capable of repetition
yet evading review, which is discussed next.
3. Exception to Mootness: Capable of Repetition
Yet Evading Review
Plaintiffs allege that even if their challenge is moot,
their claims remain live under the “capable of
repetition, yet evading review” (“CRER”) exception to
mootness. The CRER exception applies only when (1)
the duration of the challenged action is too short to
allow for full litigation before the action ceases, and (2)
there is a reasonable expectation that a plaintiff will
34a
face it again. Johnson v. Rancho Santiago Cmty. Coll.
Dist., 623 F.3d 1011, 1019 (9th Cir. 2010). To establish
that a case is capable of repetition, a plaintiff must
show that there is a “‘reasonable expectation’ or a
`demonstrated probability’ that the same controversy
will recur involving the same complaining party.”
Murphy, 455 U.S. at 482 (quoting Weinstein v.
Bradford, 423 U.S. 147, 149 (1975) (per curiam)).
a. First Prong: Duration of the Challenged
Action
The “duration of a challenged action is `too short’ and
satisfies the first prong of the CRER exception when
the action “is almost certain to run its course before
either [the Ninth Circuit] or the Supreme Court can
give the case full consideration.” Johnson, 623 F.3d at
1019 (quoting Biodiversity Legal Found. v. Badgley,
309 F.3d 1166, 1173 (9th Cir. 2002)). The state notes
that the doctrine “applies only in exceptional
situations.” State Mot. Dismiss 10, ECF 21 (quoting
Hamamoto v. Ige, 881 F.3d 719, 722 (9th Cir. 2018)).
But a closer examination of the term “exceptional
situations” reveals that it tests whether the dispute is
temporal in nature:
Controversies that are not of inherently limited
duration do not create “exceptional situations”
justifying the rule’s application, because, even if a
particular controversy evades review, there is no risk
that future repetitions of the controversy will
necessarily evade review as well. As we have
explained, “[t]he exception was designed to apply to
situations where the type of injury involved inherently
35a
precludes judicial review, not to situations where . . .
[review is precluded as a] practical matter.”
Protectmarriage.com-Yes on 8 v. Bowen, 752 F.3d 827,
837 (9th Cir. 2014) (quoting Matter of Bunker Ltd.
P’ship, 820 F.2d 308, 311 (9th Cir. 1987)).
Cases related to elections “often fall within” the first
prong of the CRER exception “because the inherently
brief duration of an election is almost invariably too
short to enable full litigation on the merits.” Porter v.
Jones, 319 F.3d 483, 490 (9th Cir. 2003). The parties do
not dispute that the duration of the challenged action
is 90 days—the period plaintiffs had to collect a
sufficient number of valid signatures. And the Ninth
Circuit has made clear that “a maximum of 90 days to
bring [a] lawsuit and make its way” through the
judicial process “is insufficient to allow full review.”
Am. C.L. Union of Nevada v. Lomax, 471 F.3d 1010,
1017 (9th Cir. 2006); see also Meyer v. Grant, 486 U.S.
414, 417 (1988) (finding that a six-month period for
proponents of an initiative to collect signatures
satisfies the first prong because “the likelihood that a
proponent could obtain a favorable ruling within that
time, much less act upon such a ruling in time to obtain
the needed signatures, is slim at best.”). Therefore,
plaintiffs’ facial and as-applied challenges satisfy the
first prong of the CRER exception.
b. Second Prong, Facial Challenge: Likelihood
of Repetition
The second prong of the CRER exception requires
plaintiffs to demonstrate that “there is a reasonable
36a
expectation that [they] will be subjected to [the
challenged action] again.” Biodiversity Legal Found.,
309 F.3d at 1173 (quoting Greenpeace Action v.
Franklin, 14 F.3d 1324, 1329 (9th Cir. 1993)). “[T]he
plaintiffs have the burden of showing that there is a
reasonable expectation that they will once again be
subjected to the challenged activity.” Lee v. SchmidtWenzel, 766 F.2d 1387, 1390 (9th Cir. 1985). Once a
plaintiff shows “that there is a reasonable expectation
that they will once again be subjected to the challenged
activity,” the burden shifts to the defendant “to show
that there is no reasonable expectation that the
plaintiffs will be subjected to the same action again.”
Id.; Johnson, 623 F.3d at 1020.
In their First Amended Complaint, plaintiffs Gonzales
and Marl suggested that continued enforcement of the
90-day collection period would affect their intent “to
participate in future recall petition campaigns at the
local, county, regional, and state levels.” First Am.
Compl. ¶¶ 34, ECF 19. When asked to further explain
these plans, plaintiff Gonzales informed the court of
her intent “to file a recall petition against an elected
Oregon City official in 2022, or as soon as this litigation
is concluded.” Pl. First Supp. Br. 7, ECF 36; see also
Second Am. Compl. ¶ 10, ECF 42.8 Meanwhile, plaintiff
Marl, who is an elected official, stated his intent to
participate in a “2022 Oregon recall effort” in a
professional or volunteer capacity, but declined to
identify a specific official or that official’s level of
government (local, state, or federal) to preserve his
8 Plaintiff Gonzales also alleged that she will seek the recall of
non-Oregon City-affiliated officials, including two Clackamas
County commissioners. See Second Am. Compl. ¶ 10, ECF 36-1.
37a
existing working relationships. See Second Am. Compl.
¶ 11, 11 n.4, ECF 42. Plaintiffs posit that this
clarification is sufficient to demonstrate a “reasonable
expectation that the same complaining party [will] be
subjected to the same action again.” Pl. First Supp. Br.
7, ECF 36 (quoting Meyer, 486 U.S. at 417 n.2).
The state counters with three arguments. First, the
state alleges that plaintiffs “fail[] to adequately allege
that they will suffer any particularized injury in [any
future] petition effort.”
State First Supp. Br. 6, ECF 38. However, the second
prong of the CRER analysis only requires that “the
same complaining party [] be subjected to the same
action again.” Weinstein, 423 U.S. at 149. Here,
plaintiffs Gonzales and Marl have plausibly alleged
their respective intentions to participate in an Oregon
recall effort in 2022 or at the conclusion of this
litigation.9 Pl. First Supp. Br. 7, ECF 36; see also
Second Am. Compl. ¶¶ 10-11, 11 n.4, ECF 42.
Defendant has not given any indication that he will
refrain from applying the 90-day signature collection
period that is the subject of this constitutional
challenge. Thus, plaintiffs Gonzales and Marl hold a
reasonable expectation that their recall plans will be
subjected to the same challenged activity—the
imposition of the 90-day signature collection period.
Second, the state relies on a quote from SchmidtWenzel to argue that the court “must consider whether
9 While plaintiff Marl’s intent to recall an unspecified Oregon of-
ficial survives this analysis, his claim, as discussed below, does
not otherwise qualify for the CRER exception.
38a
the anticipated future litigation will involve the same
defending party as well as the same complaining
party.” State Mot. Dismiss 8-9, ECF 21 (quoting
Schmidt-Wenzel, 766 F.2d at 1390); see also State First
Supp. Br. 6 n.3, ECF 38 (alleging the same). More
specifically, the state alleges that any future injury
related to the enforcement of a 90-day deadline “cannot
be traced to defendant Riggs nor is it redressable
through a judgment against her.” Id. at 9 (emphasis
added).
But the Schmidt-Wenzel quote offered by the state does
not support such a proposition. The pertinent portion
of the opinion states:
The exception to mootness for those actions that are
capable of repetition, yet evading review, usually is
applied to situations involving governmental action
where it is feared that the challenged action will be
repeated. The defending party being constant, the
emphasis is on continuity of identity of the complaining
party. When the litigation is between private parties, we
must consider whether the anticipated future litigation
will involve the same defending party as well as the
same complaining party. In order to apply the “capable
of repetition” doctrine to private parties, there must be
a reason to expect that there will be future litigation of
the same issue between a present complaining party
and a present defending party.
Schmidt-Wenzel, 766 F.2d at 1390 (emphasis added).
When the quoted language is read in its proper context,
Schmidt-Wenzel
advances
the
incontrovertible
principle that a dispute between private parties should
39a
involve identical complainants and defendants to be
capable of repetition, yet evading review.10 Id.
Importantly, the panel distinguished a private dispute
from one involving governmental actors, suggesting
that CRER challenges against government action do
not require the exact same official because the
defending party, i.e., the government entity, remains
“constant.” Id. Thus, at a minimum, plaintiff Gonzales’
dispute meets the second prong of the CRER exception,
as she plans to recall an Oregon City official and thus
would face the same defending party, the City Recorder
of Oregon City.
Third, the state alleges that any intentions to recall
non-Oregon City officials, such as Clackamas County
Commissioners, cannot be considered CRER because
the presumed injury—an imposition of a 90-day
signature collection deadline—would be inflicted by
elections offices that are absent from the present
dispute. See State Reply Mot. Dismiss 6, ECF 27
Indeed, Schmidt-Wenzel involved a dispute between private
parties—specifically, members of a private bank’s board of directors. 766 F.2d at 1388. The dispute arose when a majority of a
quorum of directors attending a meeting (but not a majority of the
total number of directors) filled all the vacant seats on the board.
Id. at 1388-89. Three disgruntled directors filed suit, alleging that
the new directors were improperly appointed because they lacked
approval from a majority of all existing directors. Id. at 1389. Over
the course of litigation, the new directors were judicially restrained from taking any action and then agreed to step down,
thus mooting the dispute. Id. In declining to apply the CRER doctrine to revive the dispute, the Schmidt-Wenzel court noted that
it was highly unlikely that a similar scenario involving the same
private defendants (who chose to press forward in filling board
seats) would happen again. Id. at 139091. These facts are completely different and distinguishable from the current dispute.
10
40a
(listing cases suggesting that remedies can only be
imposed on specific parties to the action). Plaintiffs
counter this argument by offering three Ninth Circuit
cases suggesting, but not definitively holding, that a
dispute is capable of repetition “even when the future
hypothetical elections officer is unknown.” Pl. First
Supp. Br. 8, ECF 36.
In the absence of a dispositive case on this specific
issue, the existing caselaw provides the state with the
upper hand. First, Schmidt-Wenzel suggests that the
CRER exception is often granted in litigation against
governmental entities because “[t]he defending party
[is] constant.” 766 F.2d at 1390. That principle
expressly relies on the continuity of a particular
elections office; ergo, that continuity disappears when
other elections offices that are not involved in the
present action are implicated in a future action.
Second, a future injunction in this matter could only
bind the actions of the named defendants—in this case,
the City Recorder of Oregon City. See Commonwealth
of Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)
(“If a case for preventive relief be presented, the court
enjoins, in effect, not the execution of the statute, but
the acts of the official, the statute notwithstanding.”).
Conversely, a hypothetical threat of future injury by a
non-party—for example, the individual who runs
elections in Clackamas County—could not be
redressed by an injunction in the present case. Both of
these reasons caution against finding that a dispute is
capable of repetition, yet evading review when the
hypothetical threat of repeated injury comes from a
completely different governmental entity.
41a
The three cases plaintiffs offer do not dislodge this
principle. While plaintiffs posit that the cases
demonstrate the CRER exception can exist “even when
the future hypothetical elections offer is unknown,”
each of the defending parties in those cases held
enforcement authority over the action that was
allegedly capable of repetition. Pl. First Supp. Br. 8,
ECF 36. In Wolfson v. Brammer, a candidate for
judicial office challenged the constitutionality of
certain sections of the Arizona Code of Judicial
Conduct (“ACJC”). 616 F.3d 1045, 1051-52 (9th Cir.
2010). The named defendants either enforced or were
involved in the enforcement of the ACJC, and thus
offered a constant defending party on which a CRER
exception could be based. Id. at 1051. Similarly, in
International Organization of Masters, Mates & Pilots
v. Brown, a plaintiff challenged the union’s denial of
his request to send campaign literature to voters before
a union election. 498 U.S. 466, 469-71 (1991). The
union, which was named as defendant, ran the very
election that the plaintiff wished to participate in. Id.
at 469. And in Schaefer v. Townsend, a prospective
congressional
candidate
challenged
the
constitutionality of a state statute that required
candidates to reside in the district they sought election
in at the time they filed nomination papers. 215 F.3d
1031, 1032 (9th Cir. 2000). One of the named
defendants was the California Secretary of State, an
official who was tasked with overseeing all federal and
state elections within the state. Id. In short, all of
plaintiffs’ cases are consistent with the state’s
interpretation, which disqualifies plaintiff Gonzales’
intention to recall Clackamas County Commissioners
and plaintiff Marl’s unspecified intentions of
42a
participating in Oregon recall elections from the CRER
exception.
Thus, only plaintiff Gonzales’ intention “to file a recall
petition against an elected Oregon City official in 2022,
or as soon as this litigation is completed” satisfies the
second CRER prong. Second Am. Compl. ¶ 10, ECF 42.
As such, her facial challenge qualifies for the “capable
of repetition, yet evading review” exception to
mootness. Schmidt-Wenzel, 766 F.2d at 1390; see also
Fed. Election Comm’n v. Wis. Right To Life, Inc., 551
U.S. 449, 463-64 (2007) (finding that plaintiff had a
“reasonable expectation” of self-censorship because it
“credibly claimed” that it planned to perform
“materially similar” actions in the future and there
was “no reason to believe that [the defendant] would
refrain from” similar prosecution) (quotation marks
omitted).
c. Second
Prong,
As-Applied
Likelihood of Repetition
Challenge:
On the other hand, all of plaintiffs’ as-applied
challenges do not meet the CRER exception’s second
prong because they have not demonstrated a
reasonable expectation that circumstances materially
similar to those that spurred this lawsuit will recur. To
be clear, a plaintiff alleging an as-applied challenge
does not need to demonstrate that the same
controversy will recur “down to the last detail.” Wis.
Right to Life, 551 U.S. at 463. But a plaintiff does need
to prove that “there is a reasonable expectation or a
demonstrated probability that `materially similar’
circumstances will recur.” People Not Politicians
43a
Oregon v. Fagan, No. 6:20-CV-01053-MC, 2021 WL
2386118, at *1 (D. Or. June 10, 2021) (quoting id.).
Plaintiffs’ as-applied challenges arise from a
combination of “the public health emergency created
by the COVID-19 pandemic” and the “impacts of the
September 2020 regional fires, smoke, and related
evacuations.” Second Am. Compl. ¶¶ 53, 57, ECF 42.
Plaintiffs offer two points to justify their “reasonable
expectation” that this unfortunate combination will
recur. Pl. First Supp. Br. 10. ECF 8. First, they suggest
that in a pandemic where “the only certainty is
uncertainty,” the burden of proof ought to be shifted “to
defendant to prove that COVID-19 will not negatively
impact” their intended recall efforts. Id. at 10-11
(emphasis in original). Second, they argue that “almost
all recent modeling indicates that more of Oregon will
burn in the coming years,” and point to projections
suggesting a continued statewide increase in summer
temperatures and large wildfires through 2050. Id. at
11.
Plaintiffs’ arguments do not create a reasonable
expectation that their future recall efforts “will be
subject to the same action again.” Wis. Right to Life,
551 U.S. at 463 (quotation omitted) (emphasis added).
Of course, there always is a possibility “that the unique
convergence of factors that led to [p]laintiffs’ initial
challenge could recur.” Fagan, 2021 WL 2386118 at *3
(emphasis in original). But facts in the public record
render plaintiffs’ claim highly speculative.
Although the exact specifics surrounding the future of
the pandemic are uncertain, recent public health
44a
measures, including a significant increase in
vaccination rates and the lifting of the statewide mask
mandate, suggest that the COVID-related difficulties
that existed during plaintiffs’ first signature collection
effort will not recur in 2022.11 And while wildfires will
likely continue to affect Oregon summers for decades
to come, plaintiffs’ evidence does not sufficiently
demonstrate that the time, location, and severity of
any destructive wildfires would undermine their
future attempts to recall Oregon City officials. While
plaintiffs ask the court to foresee a scenario where
signature collection is significantly hampered by both
devastating wildfires and crippling restrictions from
the COVID-19 pandemic, this court declines to serve as
“an oracle of speculation.” Id. at *1. Accordingly,
plaintiffs’ as-applied challenges are not capable of
repetition and remain moot.
In sum, plaintiff Gonzales’ facial challenge relating to
her intent to recall an Oregon City official qualifies for
the “capable of repetition, yet evading review”
exception to mootness, while plaintiff Marl’s facial
challenge and all of plaintiffs’ as-applied challenges
are moot.
11 Moreover, plaintiffs’ awareness of the pandemic and wildfire-
related restrictions places them in a different position when preparing for a future recall election cycle (as compared to the 2020
elections cycle). With roughly two years of experience in the pandemic, plaintiffs are far better positioned to employ alternative
signature-collecting methods to collect a sufficient number of signatures and trigger a recall election.
45a
V. Alternatives to Review on the Merits:
Pullman Abstention and Certification to the
Oregon Supreme Court
The parties have also offered alternatives to
adjudicating the merits of plaintiff Gonzales’ surviving
claim. The state argues that Pullman abstention is
warranted. State Mot. Dismiss 15, ECF 21. Plaintiffs
originally did not dispute that Pullman abstention was
appropriate as a matter of law. See Pl. Opp. Mots.
Dismiss 17, ECF 26 (“[T]he State, in suggesting a
Pullman stay, is not entirely wrong. Plaintiffs’ state
court claims would be appropriate[ly] resolved by an
Oregon state court.”) (emphasis in original). Instead,
they initially opposed abstention for two reasons: (1)
they alleged the state’s request for Pullman was
improperly raised, and (2) they argued that certifying
the underlying constitutional question to the Oregon
Supreme Court is a superior alternative to abstention.
Id. After the court informed the parties of its concern
regarding invoking Pullman abstention in disputes
involving the First Amendment, see ECF 47, plaintiffs
updated their position to include the general rule that
“Pullman abstention is inappropriate in First
Amendment cases.” Pl. Second Supp. Br. 7, ECF 51.
For reasons described below, neither the state’s
request for Pullman abstention nor plaintiffs’ request
for certification to the Oregon Supreme Court are
appropriate here.
46a
A. Appropriateness of Request for Pullman
Abstention
Plaintiffs allege the state, as a procedural matter, has
“inappropriately” requested Pullman abstention. Pl.
Opp. Mots. Dismiss 17, ECF 26. First, they remark
that “the State filed a motion to dismiss, not a motion
to stay.” Id. This argument is unpersuasive for a
number of reasons. First, as a technical matter,
Pullman abstention requires both a dismissal and a
stay: when the court applies Pullman abstention, it
stays any questions under federal law and dismisses
the state law questions for disposition in state court.
See Columbia Basin Apartment Ass ‘n v. City of Pasco,
268 F.3d 791, 807 (9th Cir. 2001) (remanding to
dismiss state law claims on Pullman abstention
grounds). Second, while the state’s request for
abstention was preceded by nearly fifteen pages of
argument seeking dismissal for lack of subject-matter
jurisdiction, that prerequisite must be met before the
court even contemplates abstention. See generally
State Mot. Dismiss 1-15, ECF 21. And third, plaintiffs’
argument ignores the state’s forthright explanation of
the procedure within its motion:
When a plaintiff brings challenges under the U.S. and
a state constitution, the federal court should ... stay[]
its hand while the parties repair[] to the state courts
for a resolution of their state constitutional questions.”
Reetz, 397 U.S. at 87 (citing Railroad Comm’n of Texas
v. Pullman Co., 312 U.S. 496 (1941) (“Pullman”)).
Id. at 15-16. Thus, it is appropriate for the court to
consider the state’s request for Pullman abstention.
47a
Plaintiffs also claim that the state and defendant
violated this court’s conferral obligations by failing to
disclose its argument involving Pullman. Pl. Opp.
Mots. Dismiss 23, ECF 26. Local Rule 7-1(a) requires
all parties to confer and “discuss each claim, defense,
or issue” that is the subject of a dispositive motion.
Counsel
for
the
state
disputes
plaintiffs’
representation, recalling that during their first
conversation, he “discussed multiple abstention
doctrines, including Pullman.” Marshall Decl. ¶ 2, ECF
28.
The parties’ submissions suggest the Pullman
argument has been properly raised. The exhibits
demonstrate that at a minimum, the state disclosed an
intent to plead an argument involving abstention
during its first conferral meeting, held on February 19,
2020. Id. at 3-4 (plaintiffs’ counsel alleging that the
state’s attorney mentioned Thibodeaux abstention, but
not Pullman abstention, during their first conferral).
Roughly two weeks after that meeting, the state filed
an answer that asserted both Pullman and Thibodeaux
as affirmative defenses. See State Ans. ¶¶ 9-10, ECF
18-1. The parties then attempted to confer again on
March 24, 2020, but their phone call was hampered by
poor cell service experienced by the state’s counsel.
When asked by the state’s counsel if “there was more
to talk about,” plaintiffs’ counsel wrote:
No worries, I know the cell service [at the attorney’s
location] is awful. I’m surprised we got to talk for as
long as we did without the line going dead. Anyway, I
think you’ve fulfilled your conferral requirement. I’m
48a
sure we could geek out ad nauseam about these issues,
but you’re on spring break and I have deadlines to
meet. ;)
Marshall Decl., Ex. 1 at 6-7, ECF 28-1. These exhibits
demonstrate that even if the state’s counsel failed to
disclose the possibility of Pullman abstention during
their first meeting, plaintiffs’ counsel declined to seek
further elaboration after their second meeting, which
occurred after the state filed an affirmative response
invoking Pullman. Thus, the state met its conferral
obligations in disclosing the potential of a Pullman
abstention argument.
B. Pullman Abstention: Legal Standard and
Analysis
“Pullman abstention is an extraordinary and narrow
exception to the duty of a district court to adjudicate a
controversy.” Courthouse News Serv. v. Planet, 750
F.3d 776, 783 (9th Cir. 2014) (quoting Wolfson, 616
F.3d at 1066). Abstention under Pullman is
appropriate only when:
(1) the case touches on a sensitive area of social policy
upon which the federal courts ought not enter unless
no alternative to its adjudication is open, (2)
constitutional adjudication plainly can be avoided if a
definite ruling on the state issue would terminate the
controversy, and (3) the proper resolution of the
possible determinative issue of state law is uncertain.
Id. at 783-84 (quoting Porter, 319 F.3d at 492).
Moreover, the Supreme Court has emphasized that
49a
Pullman abstention “is not to be ordered unless the
[state] statute is of an uncertain nature, and is
obviously susceptible of a limiting construction.” Id.
Thus, for Pullman abstention to be warranted, there
must be an ambiguity in state law and it must be of a
type that a clarifying construction could eliminate the
need to reach a constitutional issue, or at least alter it
substantially. Trees v. Serv. Emps. Intl Union Loc. 503,
No. 6:21-CV-468-SI, 2021 WL 5829017, at *7 (D. Or.
Dec. 8, 2021).
Here, it is undisputed that the latter two factors are
easily met. The parties agree that if a state court found
that the 90-day signature deadline violated the state
constitution, a court would not need to reach the
federal constitutional issue. The parties also agree that
no Oregon court has determined whether the 90-day
deadline violates the state Constitution, and thus
plaintiffs’ challenge presents “novel and uncertain
questions of state law.” Columbia Basin, 268 F.3d at
806. But the first factor is on less firm ground: while
this case implicates the right of recall within the
Oregon Constitution—a right enshrined to Oregonians
with no parallel or analogous provision within the U.S.
Constitution—it features rights associated with the
circulation of petitions, an act described as “core
political speech . . . protected by the First Amendment.”
Prete v. Bradbury, 438 F.3d 949, 961 (9th Cir. 2006).
The state also alleges that this dispute involves
another issue that warrants abstention: “Pullman [] is
appropriate [when] the state’s constitution contains a
provision unlike any in the federal constitution[,] and
state court construction of its unclear or ambiguous
50a
clause might make a federal ruling unnecessary.” Ellis
v. City of La Mesa, 990 F.2d 1518, 1522 (9th Cir. 1993)
(citing Reetz v. Bozanich, 397 U.S. 82, 90 (1970)). In
other words, “abstention is particularly appropriate”
when a case “implicates a state constitution provision
that differs significantly from” a federal constitutional
provision. Columbia Basin, 268 F.3d at 806 (citing
Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 237 n.4
(1984)).
It is true that plaintiffs’ suit implicates Article II,
Section 18 of the Oregon Constitution. That provision,
which sets out methods for removing Oregon officials,
is clearly not the “parallel state constitutional
provision” of the First Amendment, which generally
protects the right to free speech and political
expression. Midkiff; 467 U.S at 237 n.4. But the target
of plaintiffs’ suit is O.R.S. § 249.875, which is a state
statute, not a provision of the Oregon Constitution.
Moreover, the state has not explained the existence of
any “unclear or ambiguous clause” in either Article II,
Section 18 of the Oregon Constitution or O.R.S. §
249.875; if anything, it concedes that the state “statute
is clear that recall petitions must be submitted within
90 days.” Ellis, 990 F.2d at 1522; State Second Supp.
Br. 7, ECF 49. Thus, the state’s proffered justifications
for Pullman abstention are, at best, quite murky.
Additionally, “Pullman abstention ‘is generally
inappropriate when First Amendment rights are at
stake.’ Planet, 750 F.3d at 784 (quoting Wolfson, 616
F.3d at 1066). A thorough examination of the Ninth
Circuit’s jurisprudence reveals three independent
reasons for this. First, the Pullman requirement that
51a
necessitates “a sensitive area of social policy upon
which the federal courts ought not enter” is “almost
never” satisfied in First Amendment cases “because
the guarantee of free expression is always an area of
particular federal concern.” Ripplinger v. Collins, 868
F.2d 1043, 1048 (9th Cir. 1989). Second, “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, 319 F.3d at 487. And third, “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.” Id.
(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)).
Of course, the Ninth Circuit’s rule is a “general[]” one,
and “there is no absolute rule against abstention in
[F]irst [A]mendment cases.” Planet, 750 F.3d at 784
(quoting Wolfson, 616 F.3d at 1066); Almodovar v.
Reiner, 832 F.2d 1138, 1140 (9th Cir. 1987). But
examples of successful deviation are few and far
between. As the Porter panel recognized, “the only
First Amendment case in which [the Ninth Circuit has]
found that Pullman abstention was appropriate”—the
aforementioned Almodovar case—“involved an
unusual procedural setting; the issue in question was
already before the state supreme court.” 319 F.3d at
493-94. That particular facet of Almodovar made
Pullman abstention palatable because it rendered the
“delay that is particularly pernicious in First
Amendment cases [] not an issue.” Id. at 494; see also
Almodovar, 832 F.2d at 1140 (“[T]he litigants need not
52a
undergo the expense or delay of a full state court
litigation because other parties are already presenting
the issue to the California Supreme Court.”); Lomma
v. Connors, 539 F. Supp. 3d 1094, 1100-01 (D. Haw.
2021) (“Here, [the litigants] are parties to [a similar
proceeding in state court], which is currently before the
[Hawai’i Intermediate Court of Appeals], rendering
abstention particularly compelling.”). Such a situation
is not present here, as the parties have not informed
this court of any ongoing state court litigation, and for
reasons explained below, certification of an underlying
constitutional question to the Oregon Supreme Court
is inappropriate in this case.
The analysis thus reduces to a straightforward
question: do plaintiffs allege a violation of the First
Amendment related to free expression? The answer is
yes. See Second Am. Compl., ECF 42, at ¶¶ 48-50
(invoking First Amendment protections associated
with speech and political expression); ¶¶ 54-58 (specific
claims alleging facial and as-applied violations of the
First and Fourteenth Amendments). And while the
state may argue that the central dispute in this case is
rooted within Oregon’s values concerning selfgovernance, “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.” Porter, 319 F.3d at 487. Moreover,
the nature of plaintiffs’ lawsuit is tied to the First
Amendment, as “the circulation of a petition involves
the type of interactive communication concerning
political change that is appropriately described as ‘core
political speech’”—“an area of public policy where
protection of robust discussion is at its zenith.” Meyer,
53a
486 U.S. at 421-22, 425 (quoting Grant v. Meyer, 828
F.2d 1446, 1456-57 (10th Cir. 1987), aff’d, id.); see also
Prete, 438 F.3d at 961 (quotation marks omitted)
(“[T]he circulation of initiative and referendum
petitions involves core political speech, and is,
therefore, protected by the First Amendment.”).
Plaintiffs’ federal claims also require resolution in this
court, as opposed to abstention, to avoid “the delay that
results from abstention[, which] chill[s] the exercise of
the rights that the plaintiffs seek to protect by suit.”
Porter, 319 F.3d at 487. One district court has
described this aspect of the Ninth Circuit’s
jurisprudence as the “animating reason behind courts’
reluctance to abstain in cases implicating First
Amendment rights.” Olson v. Bynum, No.
220CV2481TLNKJNPS, 2022 WL 2052696, at *7 (E.D.
Cal. June 7, 2022). And while the court in Olson found
that the “animating reason” was not present for a
plaintiff who conditioned her as-applied challenge with
a stipulation that “she has no impending plans to seek
public office,” it certainly exists for plaintiff Gonzales’
remaining facial challenge, as she plans “to file a recall
petition against an elected Oregon City official in 2022,
or as soon as this litigation is completed.” Id.; Second
Am. Compl. ¶ 10, ECF 42.
The state objects to this analysis and offers numerous
responses in support of Pullman abstention. First, it
argues that “[p]laintiffs seek a right to govern, not a
right to speak,” and thus, “nothing about this case
would discourage” the exercise of their First
Amendment rights. State Second Supp. Br. 2-3, ECF
49. But regardless of how the state wishes to
54a
characterize plaintiffs’ motives, the circulation of
petitions is “protected by the First Amendment.” Prete,
438 F.3d at 961. And while this case does indeed
“concern recalls, which are creatures of state law and
to which there is no federal constitutional right,” State
Second Supp. Br. 4, ECF 49, and there is no explicit
“First Amendment right to place an initiative on the
ballot,” Angle v. Miller, 673 F.3d 1122, 1133 (9th Cir.
2012) (noting that there is no explicit “First
Amendment right to place an initiative on the ballot”),
the right to circulate initiatives is protected as core
political speech. Meyer, 486 U.S. at 422 (recognizing
that the “circulation of a petition involves the type of
interactive communication concerning political change
that is appropriately described as `core political
speech”).
Second, the state, citing Smelt v. Cnty. of Orange, 447
F.3d 673 (9th Cir. 2006), argues that “when a plaintiff’s
First Amendment claim is doubtful, the Ninth Circuit
has overcome its reluctance to abstain.” State Second
Supp. Br. 33, ECF 49. It is true that the Smelt panel
chose to abstain despite the plaintiffs’ claim that the
“case touche[d] upon First Amendment issues.” 447
F.3d at 681 n.22. But the Smelt panel made this
decision with the combination of two factors in mind:
(1) “it is difficult, or impossible, to see a true speech
problem . . . [a]ll that is involved here is the failure to
issue a marriage license,” and (2) “state litigation on
the issues is already well underway.” Id. Neither of
these considerations are present here, as the
circulation of petitions is far closer to the First
Amendment than the issuance of a marriage license,
55a
and there is no ongoing state litigation for the issues
raised in this suit.
Third, the state frames the dispute as “fundamentally
an election law case, not a free expression case.” State
Second Supp. Br. 4, ECF 49 (citing Badham v. U.S.
Dist. Ct. for N. Dist. of California, 721 F.2d 1170, 1172
(9th Cir. 1983)). While the consequence of plaintiffs’
suit may implicate an election, that does not
necessarily make it an election law case. Rather, the
central remaining claim is one involving the right of
citizens to engage in “core political speech” by
circulating petitions with fellow residents. Prete, 438
F.3d at 961; John Doe No. 1 v. Reed, 561 U.S. 186, 195
(2010) (“Petition signing remains expressive even
when it has legal effect in the electoral process.”).
Fourth, the state attempts to distinguish the instant
case from the facts in Chula Vista Citizens for Jobs &
Fair Competition v. Norris, 782 F.3d 520 (9th Cir.
2015), a ballot access case where the Ninth Circuit
rejected the use of Pullman abstention. State Second
Supp. Br. 4 n.5, ECF 49. At issue there was whether
city laws requiring that (1) proponents of a ballot
measure be natural persons and (2) the name of
proponents appear on petitions circulated to voters,
violated the First Amendment. Chula Vista, 782 F.3d
at 524. As the state notes, the Chula Vista panel
declined Pullman abstention for two reasons: (1) the
enforcement of the challenged state statute was not
ambiguous, and (2) abstention is “strongly disfavored
in First Amendment cases.” Id. at 528. Yet both of
those reasons are present here: the state itself has
acknowledged that O.R.S. § 249.875(1) is “clear that
56a
recall petitions must be submitted within 90 days,”
State Second Supp. Br. 7, ECF 49, and plaintiffs’
claims, at minimum, invoke protections associated
with core political speech.
Lastly, the state suggests that the present situation is
distinct because plaintiffs “assert a separate state
constitutional claim which, if successful, would
terminate the controversy.” State Second Supp. Br. 5,
ECF 49. It is indeed true that in such situations,
Pullman abstention is favorable to give state courts the
first attempt at resolving such an issue. But
“abstention [is] inappropriate in a [F]irst Amendment
case, even where the state court had not had an
opportunity” to weigh in and potentially narrow or
strike the issue altogether. Ripplinger, 868 F.2d at
1049. Said otherwise, a “possibility that [a state] court
might render adjudication of the federal question
unnecessary does not require Pullman abstention.”
Polykoff v. Collins, 816 F.2d 1326, 1334 (9th Cir. 1987).
Given all these concerns, particularly plaintiffs’
invocation of an action protected by the First
Amendment, Pullman abstention is not appropriate
here.
C. Certification to the Oregon Supreme Court
Plaintiffs suggest that instead of abstaining under
Pullman, the court should certify the underlying state
law constitutional question to the Oregon Supreme
Court. Specifically, plaintiffs seek to certify the
following question:
57a
ORS 249.875(1) contains a 90-day limitation for
gathering recall petition signatures. Is that statute
facially invalid under the Oregon Constitution, and
particularly Article II, section 18?
Pl. Mot. Cert. i, ECF 43. Plaintiffs offer two
justifications for this approach: first, “[d]irect
certification would avoid the potential[] years of delay
and expense” associated with Pullman abstention, and
second, the Oregon Supreme Court is the “best
qualified” entity to answer the parties’ “purely legal
question.” Pl. Opp. Mots. Dismiss 18, ECF 26.
But this court must first determine whether it has the
authority to even certify plaintiff’s requested question
to the Oregon Supreme Court. Notably, the Eleventh
Amendment and the Supreme Court’s decision in
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89 (1984), provides a significant obstacle to plaintiffs’
motion for certification. As the Supreme Court wrote
in Pennhurst:
This need to reconcile competing [federal and state]
interests is wholly absent, however, when a plaintiff
alleges that a state official has violated state law. . . .
A federal court’s grant of relief against state officials
on the basis of state law, whether prospective or
retroactive, does not vindicate the supreme authority
of federal law. On the contrary, it is difficult to think of
a greater intrusion on state sovereignty than when a
federal court instructs state officials on how to conform
their conduct to state law. Such a result conflicts
directly with the principles of federalism that underlie
the Eleventh Amendment.
58a
Pennhurst, 465 U.S. at 106. Plaintiffs’ remaining state
law claim, in essence, asks this court to provide relief
that
Pennhurst
expressly
cautions
against:
“instruct[ing] a state official[] on how to conform their
conduct to state law.” Id.
Three core questions must be addressed before
applying Pennhurst: (1) did defendant properly raise
Pennhurst; (2) is defendant a “state official”; and (3)
does Pennhurst require that a state law claim be
dismissed rather than having an underlying
constitutional question certified to a state’s highest
court? All three questions are answered in the
affirmative here.
On the first question, plaintiffs allege that the state
“improperly” used its opposition to their motion for
certification to “bolster its arguments in favor of
dismissal” instead of “address[ing] the merits of the
certification motion.” Pl. Reply Mot. Cert. 1-2, ECF 46.
But the state asserted Pennhurst against plaintiffs’
state law claims in its prior briefing. See State’s Mot.
Dismiss 24-25, ECF 21; State Reply Mot. Dismiss 21,
ECF 27; State’s Supp. Br. 8, ECF 38. And in any event,
this court has “an `independent obligation to examine
[its] own jurisdiction’ even if an issue is not raised by
the parties. United States v. McIntosh, 833 F.3d 1163,
1173 (9th Cir. 2016) (quoting United States v. Hays,
515 U.S. 737, 742 (1995)); Charley’s Taxi Radio
Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869,
873 n.2 (9th Cir. 1987) (“The Eleventh Amendment
may be described as either creating an immunity for
states or establishing a jurisdictional limitation on
59a
federal courts. . . . Like a jurisdictional bar and unlike
a traditional immunity, however, the effect of the
Eleventh Amendment must be considered sua sponte
by federal courts.”).
The second question—whether defendant or his
predecessor are considered “state officials” for
purposes of Pennhurst—is also answered in the
affirmative. As discussed earlier in the context of state
sovereign immunity, Riggs was acting as a state official
when she enforced the 90-day deadline contained in
O.R.S. § 249.875. Ante at 6-9; see, e.g., Weiner v. San
Diego Cty., 210 F.3d 1025, 1029-31 (9th Cir. 2000)
(holding that California district attorneys are
considered state officers when deciding to prosecute an
individual). Thus, this court, under Pennhurst, cannot
instruct defendant or his predecessor “on how to
conform their conduct to state law,” as doing so
“conflicts directly with the principles of federalism that
underlie the Eleventh Amendment.” 465 U.S. at 106. It
is for this reason that the court also cannot exercise
supplemental jurisdiction over plaintiffs’ remaining
state law claim, as “neither pendent jurisdiction nor
any other basis of jurisdiction may override the
Eleventh Amendment.” Id. at 121.
Finally, the remaining question is whether Pennhurst,
which strips this court of jurisdiction to enforce state
law claims against defendant, prevents this court from
certifying a question of state law based on that claim
to the Oregon Supreme Court. The answer is yes: “[i]f
jurisdiction is lacking at the outset, the district court
has no power to do anything with the case except
dismiss.” Morongo Band of Mission Indians v.
60a
California State Bd. of Equalization, 858 F.2d 1376,
1380 (9th Cir. 1988); see also Arizona State Bldg. &
Constr. Trades Council v. Brnovich, No. CV-17-04446PHX-ROS, 2019 WL 1130005, at *4 (D. Ariz. Mar. 12,
2019) (“Certification is not appropriate, however, when
a court lacks jurisdiction to hear the claim at issue.”);
Mascheroni v. Bd. of Regents of Univ. of California, 28
F.3d 1554, 1557 (10th Cir. 1994) (concluding that
because “the Eleventh Amendment bars [plaintiff’s]
state law claims in federal court . . . [the Tenth Circuit
panel] and the district court lack jurisdiction . . . to
certify this question to the New Mexico Supreme
Court”).12 This court has no authority to certify a
question that stems from a state law claim over which
it has no jurisdiction. Accordingly, plaintiffs’ motion to
certify a question to the Oregon Supreme Court must
be denied.
To summarize the analysis so far: plaintiffs originally
brought suit alleging facial and as-applied violations of
the First and Fourteenth Amendments and the Oregon
Constitution, and sought declaratory and injunctive
relief, nominal damages of one dollar, and litigation
expenses. Plaintiffs, however, can only obtain future
12 Two of these cases, Brnovich and Mascheroni, appeared in the
state’s opposition to plaintiff’s motion for certification; plaintiffs
ask the court to not evaluate these cases because they fail to address “the merits of the certification motion.” Pl. Reply Mot. Cert.
1-2, ECF 46. But as stated earlier, this court has an independent
obligation to check for jurisdiction throughout the litigation process. In any event, even if the court was somehow barred from
considering these cases, it would still rule the same way based on
the Ninth Circuit’s decision in Morongo Band of Mission Indians
v. California State Bd. of Equalization, 858 F.2d 1376 (9th Cir.
1988).
61a
injunctive relief, as a declaratory judgment and money
damages against defendant are unavailable because of
state sovereign immunity. Moreover, because plaintiffs
ultimately succeeded in qualifying for a special
election, their claims for relief are moot; only plaintiff
Gonzales’ facial challenge qualifies for the capable-ofexception, yet evading review exception to mootness.
As an alternative to analyzing plaintiff Gonzales’ facial
challenges, the state suggests that Pullman abstention
is proper, while plaintiffs recommend certifying an
underlying state law question to the Oregon Supreme
Court. But Pullman abstention is not advisable in
cases involving core First Amendment rights, and
Pennhurst forces this court to dismiss the remaining
state law claims, preventing any certification to the
Oregon Supreme Court. The analysis now proceeds on
the sole remaining claim: plaintiff Gonzales’ facial
challenge, based on the First and Fourteenth
Amendments, to the enforcement of O.R.S. § 249.875.
VI.Facial Challenge, First Amendment
Plaintiffs allege that “the 90-day signature gathering
limitation contained in ORS 249.875(1) unduly
burdens core political speech and is facially invalid
under the First and Fourteenth Amendments.” Second
Am. Compl. ¶ 55, ECF 42. As a reminder, the
Fourteenth Amendment claim is not a standalone
argument, but rather, a means of incorporating the
First Amendment’s protections to state and local
governments. Nordyke v. Santa Clara Cty., 110 F.3d
707, 710 (9th Cir. 1997).
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A. Legal Standard
The parties disagree on what legal standard plaintiff
Gonzales’ First Amendment claim should be analyzed
under. In their Second Amended Complaint, plaintiffs
invoke a pair of overlapping federal frameworks: the
Anderson-Burdick sliding scale test and the Ninth
Circuit’s Angle framework. Second Am. Compl. ¶ 50,
ECF 42. The state argues that the Angle framework is
not “the correct legal standard” and that “[r]ecent case
law has further undermined” its use, but does not
clearly offer an alternative standard (instead implicitly
suggesting the automatic use of rational basis review).
State Reply 18, ECF 27.
To start, there exists “an inevitable tension between a
state’s authority and need to regulate its elections and
the First and Fourteenth Amendment rights of voters,
candidates, and political parties.” Arizona Libertarian
Party v. Hobbs, 925 F.3d 1085, 1090 (9th Cir. 2019)
(citing Storer v. Brown, 415 U.S. 724, 729-30 (1974)).
Federal courts balance these competing interests by
employing a “flexible standard” (“Anderson—Burdick”)
established in Anderson v. Celebrezze, 460 U.S. 780
(1983), and refined in Burdick v. Takushi, 504 U.S. 428
(1992), for reviewing such challenges. Burdick, 504
U.S. at 434. When applying the Anderson-Burdick
standard, courts weigh the character and magnitude of
the asserted injury to the plaintiff’s First Amendment
rights against the interests offered by the state as
justifications for the burden imposed by the rule, while
also considering the extent to which the state’s
interests make it necessary to burden the plaintiff’s
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rights. Id. The Ninth Circuit has characterized this
approach as a “sliding scale”:
[T]he more severe the burden imposed, the more
exacting our scrutiny; the less severe, the more relaxed
our scrutiny. To pass constitutional muster, a state law
imposing a severe burden must be narrowly tailored to
advance “compelling” interests. On the other hand, a
law imposing a minimal burden need only reasonably
advance important interests.
Hobbs, 925 F.3d 1085, 1090 (9th Cir. 2019) (citations
and quotation marks omitted).
Roughly two decades after the Supreme Court’s
Burdick decision, the Ninth Circuit suggested the
existence of a limited variation to the sliding scale
analysis: the Angle framework. The plaintiffs in Angle
argued that Nevada’s All Districts Rule, which
required initiative proponents to obtain signatures
equal to 10% of the votes cast in the previous general
election in each of the state’s federal Congressional
districts to qualify for the ballot, was facially
unconstitutional under the First Amendment. 673 F.3d
at 1126-27. However, instead of employing AndersonBurdick, the Angle court opted for a slightly different
approach, acknowledging that there existed “no First
Amendment right to place an initiative on the ballot,”
and thus, “[r]egulations that make it more difficult to
qualify an initiative for the ballot . . . do not necessarily
place a direct burden on First Amendment rights.” Id.
at 1133 (emphasis added). At the same time, the panel
recognized that ballot access restrictions “may
indirectly impact core political speech” and thus
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“reduc[e] the quantum of speech on a public issue.” Id.
(quoting Meyer, 486 U.S. at 423).
To resolve this paradox, the Angle court offered the
following solution: “we assume that ballot access
restrictions place a severe burden on core political
speech, and trigger strict scrutiny, when they
significantly inhibit the ability of initiative proponents
to place initiatives on the ballot.” Id. (emphasis added).
The panel likened this standard to the one used to
evaluate restrictions on a potential candidate’s access
to the ballot: the “burden on plaintiffs’ rights should be
measured by whether, in light of the entire statutory
scheme regulating ballot access, `reasonably diligent’
candidates can normally gain a place on the ballot, or
whether they will rarely succeed in doing so.” Id.
(quoting Nader v. Brewer, 531 F.3d 1028, 1035 (9th Cir.
2008)). The Angle panel also identified two scenarios
“in which restrictions . . . can severely burden core
political speech”: (1) “regulations can restrict one-onone communication between petition circulators and
voters,” and (2) “regulations can make it less likely that
proponents will be able to garner the signatures
necessary to place an initiative on the ballot, thus
limiting their ability to make the matter the focus of
statewide discussion.” Id. at 1132 (citations and
quotation marks omitted). Using this test, the court
found that neither scenario applied to the Angle
plaintiffs, and applied rational basis review in the
absence of a “severe burden” on core political speech.
Id. at 1134-35.
The state disputes that Angle is appropriate here, but
neither of its justifications for deviating from the
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framework are particularly persuasive. The state
suggests that the Angle standard should be limited to
the context of initiative petitions, and not applied to
laws regulating recall petitions, because (1) “there is
no right to recall under the federal Constitution” and
(2) applying similar standards to “qualify for the ballot
at a regularly scheduled election and to trigger a recall
is nonsensical.” State Mot. 19-20, ECF 21. But the first
reason is not unique to recall petitions: there is also no
explicit “First Amendment right to place an initiative
on the ballot.” Angle, 673 F.3d at 1133. As for the
second reason, while the state may disparage Angle’s
application to the recall context as “nonsensical,”
courts have found that the Angle framework “is most
analogous” to recall petition challenges. Fight for
Nevada v. Cegayske, 460 F. Supp. 3d 1049, 1057 (D.
Nev. 2020).
The state also characterizes the Angle framework as
“dicta” and a “hypothesized standard” that has never
been affirmed by the Ninth Circuit or any other court.
State Reply 18, ECF 27; State Mot. 18-19, ECF 21.
Central to the state’s argument is the Angle panel’s
phrasing of the standard: “we assume that ballot access
restrictions place a severe burden on core political
speech, and trigger strict scrutiny, when they
significantly inhibit the ability of initiative proponents
to place initiatives on the ballot.” 673 F.3d at 1133
(emphasis added). The state seizes upon the “assume”
term and argues that everything that follows,
including the framework itself, is simply an analytical
exercise based on a hypothetical assumption. But it is
fairly easy to read the phrasing in Angle as a
conditional standard: if a plaintiff shows that a ballot
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access restriction significantly inhibits the ability of
proponents to qualify for the ballot (i.e, by showing a
substantial burden), then strict scrutiny applies;
otherwise, as was the case in Angle, rational basis
review is employed. Id. at 1134-35.
Crucially, other courts—the Supreme Court among
them—have recognized Angle as the standard of
review for ballot access litigation in the Ninth Circuit.
To be sure, as the state notes, these courts have
signaled that the Angle framework is on shaky ground.
For example, in his concurrence to the Supreme
Court’s granting of a stay in Little v. Reclaim Idaho,
Chief Justice Roberts (joined by three other sitting
justices) suggested “there is a fair prospect that the
Court will set aside the District Court order” that
applied Angle, noting that “[e]ven assuming that the
state laws at issue implicate the First Amendment,
such reasonable, nondiscretionary restrictions are
almost certainly justified by the important regulatory
interests in combating fraud and ensuring that ballots
are not cluttered with initiatives that have not
demonstrated sufficient grassroots support.” 140 S. Ct.
2616, 2617 (2020) (Roberts, C.J., concurring). The
Chief Justice observed that at least three circuits have
adopted a different approach from Angle and “have
held that regulations that may make the initiative
process more challenging do not implicate the First
Amendment so long as the State does not restrict
political discussion or petition circulation.” Id. at 2616
(collecting cases from the Seventh, Eighth, and Tenth
Circuits). However, in the very same paragraph, the
Chief Justice also recognized that the position
espoused in Angle—that “the First Amendment
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requires scrutiny of the interests of the State whenever
a neutral, political regulation inhibits a person’s ability
to place an initiative on the ballot,” is the standard in
the Sixth and Ninth Circuits. Id. (“Yet the Circuits
diverge in fundamental respects . . . [a]ccording to the
Sixth and Ninth Circuits . . .”). And while Chief Justice
Roberts recognized that the Supreme “Court is
reasonably likely to grant certiorari to resolve the
split” in the future, Angle remains the recognized
framework that this court, which is bound by Ninth
Circuit caselaw, must follow absent instruction to the
contrary.
B. Analysis
As a reminder, the Angle panel outlined a two-pronged
path for evaluating whether a state’s ballot regulations
survive constitutional muster. On the one hand,
“election ‘regulations imposing severe burdens on
plaintiffs’ rights must be narrowly tailored and
advance a compelling state interest.’” Angle, 673 F.3d
at 1132 (emphasis in original) (quoting Prete, 438 F.3d
at 961). On the other hand, “[l]esser burdens . . . trigger
less exacting review, and a State’s important
regulatory interests will usually be enough to justify
reasonable, nondiscriminatory restrictions.” Id. The
Angle court then identified “two ways in which
restrictions . . . can severely burden core political
speech”: (1) those that “restrict one-on-one
communication between petition circulators and
voters,” and (2) those that “make it less likely that
proponents will be able to garner the signatures
necessary to place an initiative on the ballot, thus
limiting their ability to make the matter the focus of
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statewide discussion.” Id. (citations and quotation
marks omitted).
Plaintiff Gonzales’ facial challenge fails to demonstrate
a severe burden on a First Amendment right under
either scenario.13 First, O.R.S. § 249.875 places no
restriction on a petitioner’s ability to communicate,
one-on-one, with potential voters. See Meyer, 486 U.S.
at 424 (invaliding a Colorado statute that barred
payment for petition circulators because the law
“restricts access to the most effective, fundamental,
and perhaps economical avenue of political discourse[:]
direct one-on-one communication”); Reclaim Idaho v.
Little, 469 F. Supp. 3d 988, 999 (D. Idaho 2020),
enforcement granted in part, denied in part, No. 1:20CV-00268-BLW, 2020 WL 6559401 (D. Idaho June 30,
2020) (finding that the first Angle scenario did not
apply to Idaho’s initiative restrictions because “the
management of the spread of COVID-19,” not the
statutory restrictions themselves, had “foreclosed inperson one-on-one communication between [plaintiff’s]
petition circulator volunteers and voters.”).
Second, plaintiffs’ submissions fail to demonstrate that
O.R.S. § 249.875 imposes a severe burden such that
proponents will not “be able to garner the signatures
necessary to place an initiative on the ballot.” Angle,
673 F.3d at 1132. The Ninth Circuit has advised that
when analyzing this scenario, “the burden on plaintiffs’
rights should be measured by whether, in light of the
13 As a reminder, only plaintiff Gonzales’ facial challenge (and not
any as-applied challenges) is relevant here because it is the only
claim that qualifies for the “capable of repetition, yet evading review” exception to mootness.
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entire statutory scheme regulating ballot access,
reasonably diligent candidates can normally gain a
place on the ballot, or whether they will rarely succeed
in doing so.” Id. at 1133 (quotation marks omitted)
(quoting Nader, 531 F.3d at 1035). And to be sure,
plaintiff represents, ipse dixit, that even without a
pandemic or wildfires, “the 90-day deadline is so short,
so unrealistic, and so burdens the recall power, that it
impermissibly infringes on the peoples’ right to recall
their elected officials.” Second Am. Compl. ¶ 4, ECF 42.
But the factual submissions that underpin plaintiffs’
suit paint the exact opposite picture: in a letter to
Riggs, plaintiffs declared that “there is little doubt
that, during non-COVID-19 times, the campaign could
easily obtain well over 2,400 valid signatures during
the statutory 90-day signature gathering period.”
Second Am. Compl., Ex. 4 at 2, ECF 42-4 (emphasis
added). Otherwise said, plaintiffs have not pleaded the
requisite facts to show that “reasonably diligent”
petitioners cannot “normally” qualify for a recall
election.14 Angle, 673 F.3d at 1133 (quotation marks
omitted) (quoting Nader, 531 F.3d at 1035); see also id.
at 1134 (“The plaintiffs have presented only
speculation, without supporting evidence, that the
[statute] imposes a severe burden on the First
Amendment rights of initiative proponents.”); Fight for
14 It is for this reason (a failure to demonstrate a severe burden)
that if, somehow, the Anderson-Burdick test was employed instead of the Angle framework, plaintiffs’ challenge would still fail.
Under the sliding-scale test, “a law imposing a minimal burden
need only reasonably advance important interests.” Hobbs, 925
F.3d 1085, 1090 (9th Cir. 2019) (citations and quotation marks
omitted). And as discussed below, O.R.S. § 249.875 easily passes
muster under this rational basis review standard.
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Nevada, 460 F. Supp. 3d at 1058 (finding that on a
factual level, the plaintiff had not “met its showing to
demonstrate that the signature requirements of
[Nevada laws and directives] impose[d] a severe
burden on core political speech.”).
Without a demonstrated “severe burden” on First
Amendment rights, the analysis shifts to “less exacting
review,” where “a State’s important regulatory
interests will usually be enough to justify reasonable,
nondiscriminatory restrictions.” Id. at 1132. First,
Oregon undeniably has an important regulatory
interest in making sure that a recall petition “has
sufficient grass roots support to be placed on the
ballot.” Meyer, 486 U.S. at 425-26; see also Reclaim
Idaho, 140 S. Ct. at 2617 (Roberts, C.J., concurring)
(“[E]ven assuming that [] state laws [] implicate the
First Amendment, such reasonable, nondiscretionary
restrictions are almost certainly justified by the
important regulatory interests in combatting fraud
and ensuring that ballot are not cluttered with
initiatives.”). And second, the First Amendment
permits states “considerable leeway” in regulating the
electoral process, provided their choices do not produce
“undue hindrances to political conversations and the
exchange of ideas.” Buckley v. Am. Const. L. Found.,
Inc., 525 U.S. 182, 191-92 (1999).
Guidance from the Oregon Attorney General’s Office
indicates that O.R.S. § 249.875 “was designed to
prevent” abuse of the recall power. 37 Op. Atty Gen.
Ore. 1399, 1402 (1972).
Specifically:
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It is possible that a recall petition, based upon good
grounds or not, may be circulated, and then when
completed or nearly completed, be put in “cold storage”
to await a more convenient opportunity for a sudden
assault upon the officer involved. And, whether or not
the petitions were originally circulated with this end in
view, there are cases in which the uncertainty of the
officer’s position has been thus continued for a
considerable period of time. A plan of securing
petitions and holding them indefinitely, to be filed at
the whim of a few wire pullers, is absurd. Such a
program could be employed to bully and control
officials. No little group of men should be permitted to
hold such petitions in their hands, to be used as a
means of influencing affairs at the city hall. No more
dangerous program could be introduced into municipal
or other government.
Id. (quoting J.D. BARNETT, OPERATION OF INITIATIVE,
REFERENDUM AND RECALL IN OREGON 211 (1915). And
a state’s “interest in preserving the integrity of the
electoral process is undoubtedly important.” John Doe
No. 1, 561 U.S. at 197. Indeed, “[s]tates enjoy
considerable leeway to choose the subjects that are
eligible for placement on the ballot and to specify the
requirements for obtaining ballot access (e.g., the
number of signatures required, the time for
submission, and the method of verification). Id. at 212
(Sotomayor, J., concurring) (quotation marks omitted)
(emphasis added). Simply put, “the state’s important
regulatory interests are generally sufficient to justify
reasonable, nondiscriminatory restrictions.” Anderson,
460 U.S. at 788. The development and enaction of
O.R.S. § 249.875 encompasses just that; accordingly,
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defendant’s enforcement of the statute does not violate
the First Amendment, and plaintiff Gonzales’
remaining facial challenge fails.
RECOMMENDATIONS
The state and defendant’s respective motions to
dismiss (ECF 21, 23) should be GRANTED.
Specifically, plaintiffs’ state law claims should be
dismissed because they are either moot or the
Pennhurst doctrine applies, preventing this federal
court from conferring any form of relief. Plaintiffs’
claims under federal law should be dismissed because
they are either moot or fail to demonstrate a First
Amendment violation under relevant caselaw.
Additionally, plaintiffs’ motion for certification of a
question to the Oregon Supreme Court (ECF 43)
should be DENIED.
SCHEDULING ORDER
These Findings and Recommendations will be referred
to a district judge. Objections, if any, are due Friday,
September 09, 2022. If no objections are filed, then the
Findings and Recommendations will go under
advisement on that date.
If objections are filed, then a response is due within 14
days after being served with a copy of the objections.
When the response is due or filed, whichever date is
earlier, the Findings and Recommendations will go
under advisement.
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NOTICE
These Findings and Recommendations are not an
order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any Notice of Appeal
pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of a
judgment.
DATED August 25, 2022.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge
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APPENDIX D- Order Denying En Banc Review
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 23-35107
D.C. No. 3:20-cv-01631-YY
COMMITTEE TO RECALL DAN HOLLADAY,
JEANA GONZALES, and ADAM MARL,
Plaintiffs-Appellants,
v.
JAKOB WILEY, City Recorder for Oregon City, in his
official capacity,
Defendant-Appellee,
STATE OF OREGON,
Intervenor-Defendant-Appellee.
October 23, 2024, Filed
ORDER
Before: John B. Owens and Michelle T. Friedland,
Circuit Judges, and Douglas L. Rayes,* District
Judge.
Order;
Dissent by Judge Bumatay
* The Honorable Douglas L. Rayes, United States District Judge
for the District of Arizona, sitting by designation.
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ORDER
Judge Owens and Judge Friedland have voted to deny
Appellee’s petition for rehearing en banc and Judge
Rayes so recommends.
The full court has been advised of the petition for
rehearing en banc. A judge of the court requested a
vote on en banc rehearing. The majority of the active
judges have voted to deny rehearing the matter en
banc. Fed. R. App. P. 35(f). Judge Forrest and Judge
H.A. Thomas did not participate in the deliberations or
vote in this case.
The petition for rehearing en banc is DENIED. Judge
Bumatay’s dissent from the denial of en banc rehearing
is filed concurrently herewith.
BUMATAY, Circuit Judge, joined by BENNETT, R.
NELSON, and VANDYKE, Circuit Judges, dissenting
from the denial of rehearing en banc:
The right to speak out is not a right to prevail. While
the First Amendment guarantees freedom of speech,
nothing in that constitutional provision means that a
person’s position on an issue must become law or even
be voted on. A dissenting opinion, like this one,
provides a fitting example of this principle. I called this
case en banc because I thought our court needed to
reconsider our decision in Angle v. Miller, 673 F.3d
1122 (9th Cir. 2012). In that case, the Ninth Circuit
held that the First Amendment requires that we apply
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strict scrutiny to any regulation that “significantly
inhibit[s]” the placement of voter initiatives on the
ballot. Id. at 1133. Angle needs to be revisited because
it departs from the text and historical understanding
of the First Amendment.
But a majority of my colleagues disagree. Because
there weren’t enough “yes” votes to rehear this case en
banc, Angle remains the binding law of this circuit.
While our failure to jettison this precedent was wrong,
no one would seriously contend that my inability to
prevail on an en banc vote means that I was unable to
effectively address the legal issues brought before our
court. That my views are relegated to a dissental
doesn’t mean that my judicial role was inhibited or that
our en banc rules need fixing. The same goes for free
speech. Having strong views on a political issue doesn’t
equate to a right to have the issue voted on by the
people. But this is the slippery slope that Angle creates.
It extrapolates a right to put an issue on the ballot from
the right to advocate for an issue. That’s simply
incorrect.
In our republican system, States are under no
obligation to allow their citizens to legislate directly.
See id. at 1133. Yet, throughout history, States have
done so. States have long experimented with direct
democracy—granting their citizens the opportunity to
vote directly, rather than through their elected
representatives, on discrete policy issues. These
opportunities come in several forms: ballot initiatives
(citizens vote to enact state laws or state constitutional
amendments), recall elections (citizens vote to remove
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their state representatives), or referenda (citizens vote
to “veto” a state law). See Henry Noyes, Direct
Democracy as a Legislative Act, 19 Chap. L. Rev. 199,
200 (2016). Often, States enact reasonable,
nondiscretionary regulations governing these direct
democracy petitions. Take commonplace petitioning
requirements. They generally require the collection of
a minimum number of supporting signatures within a
specific timeframe before an issue may take a spot on
the ballot or a recall election may be set.
Into this realm of direct democracy, the Ninth Circuit
has inserted itself and the First Amendment’s free
speech right. Angle subjects any ballot access rule to
exacting judicial scrutiny if the regulation makes it too
difficult for the direct democracy petition to succeed.
This applies even if the rules are neutral, procedural
regulations. Under the guise of protecting “political
speech,” Angle requires strict scrutiny for all
regulations that “significantly inhibit the ability of
initiative proponents to place initiatives on the ballot.”
673 F.3d at 1133. This is measured from the
perspective of the so-called “hypothetical reasonably
diligent initiative proponent.” Pierce v. Jacobsen, 44
F.4th 853, 861 n.3 (9th Cir. 2022). The reasoning goes
that if a ballot petition fails, fewer people talk about its
proposal—the “total quantum of speech” in society on
that topic is diminished—and that’s enough to justify
a federal court’s intervention under the Free Speech
Clause. Angle, 673 F.3d at 1133. Less burdensome
regulations, meanwhile, are subject to more relaxed
scrutiny and need only further “an important
regulatory interest.” Id. at 1135. While the First
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Amendment establishes a right to advocate for an idea,
Angle goes much further and mandates strict scrutiny
anytime a law merely “make[s] it less likely that
proponents will be able to garner the signatures
necessary to place an initiative on the ballot.” Id. at
1132.
Nothing in the text, history, and tradition of the First
Amendment supports this expansion of judicial power
over state ballot initiatives and other direct democracy
petitions. Throughout our history, when States have
permitted citizens to participate directly in democracy,
they have also significantly limited their say on which
issues got put to a vote. That was as much true with
Georgia’s Founding-era initiative process as with the
bevy of States during Reconstruction that allowed the
people to vote directly on constitutional amendments.
The modern ballot initiatives and referenda that began
at the turn of the century are no different. At no point
did the people think the free speech right had anything
to say on the neutral rules governing the operation of
these direct democracy petitions. Absent evidence to
the contrary, this lack of any First Amendment
regulation of citizen-driven petitions over the last two
centuries suggests that they fall outside the Free
Speech Clause’s scope.
And nothing in Supreme Court precedent requires the
Angle regime. To be sure, the Court has recognized
that the First Amendment protects against regulations
that burden citizens’ “interactive,” “one-on-one
communication” supporting initiatives or that limit
petition circulation. See Meyer v. Grant, 486 U.S. 414,
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422, 424 (1988) (invalidating a state law making it a
felony to pay petition circulators).
Advocating to a fellow citizen “that [a] matter is one
deserving of the public scrutiny and debate” is “core
political speech.” Id. at 421–22. State laws that prevent
citizens from expressing their views on the worthiness
of a ballot initiative should be subject to heightened
scrutiny.
But this logic runs out when it comes to the neutral
laws that structure the petitioning process itself—the
hoops that proponents must jump through to get their
proposal on the ballot. After all, “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., 525
U.S. 182, 191 (1999). How many signatures must a
proponent collect in support of his initiative? By what
date? Must the signatories all live in Portland? The
answers to these questions will set the baseline rules
of the game. But once the game gets going, these laws
don’t restrict citizens’ political communications with
others or limit who can spread political messages. And
for the First Amendment, that makes all the
difference. Meyer and its progeny protect citizens’
interactive, one-on-one communications that take
place during advocacy—it doesn’t guarantee any level
of success for that advocacy. And so, unless a state
regulation restricts citizens’ ability to speak out on an
issue of political change, the Court’s free speech
jurisprudence doesn’t require heightened scrutiny for
80a
neutral rules that lay out the prerequisites for ballot
qualification.
The Ninth Circuit’s outlier position on the scope of the
First Amendment has been noticed. Four Justices of
the Supreme Court have expressed their doubts about
Angle. See Little v. Reclaim Idaho, 140 S. Ct. 2616,
2617 (2020) (Roberts, C.J., joined by Justices Alito,
Gorsuch, and Kavanaugh, concurring) (doubting a
First Amendment challenge to “the most typical sort of
neutral regulations on ballot access”). And a host of
other circuits have refused to read the First
Amendment right as broadly as we have. See, e.g.,
Dobrovolny v. Moore, 126 F.3d 1111, 1112–13 (8th Cir.
1997); Marijuana Pol’y Project v. United States, 304
F.3d 82, 86 (D.C. Cir. 2002); Initiative & Referendum
Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir. 2006)
(en banc); Molinari v. Bloomberg, 564 F.3d 587, 599–
600 (2d Cir. 2009); Jones v. Markiewicz-Qualkinbush,
892 F.3d 935, 938 (7th Cir. 2018). But see Thompson v.
DeWine, 959 F.3d 804, 808 (6th Cir. 2020) (per curiam).
A member of our court has also cast doubt on Angle,
urging en banc review. See People Not Politicians Or.
v. Clarno, 826 F. App’x 581, 584 (9th Cir. 2020) (R.
Nelson, J., dissenting).
Ultimately, it’s federalism that suffers. Following
Angle and its progeny, courts within the Ninth Circuit
have taken it upon themselves to rewrite the neutral,
nondiscriminatory state procedures that structure
ballot initiatives and the like to give proponents a
better shot. See, e.g., Fair Maps Nevada v. Cegavske,
463 F. Supp. 3d 1123 (D. Nev. 2020) (extending
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signature deadline for proposed constitutional
amendment); Reclaim Idaho v. Little, 469 F. Supp. 3d
988 (D. Idaho 2020) (requiring Idaho to either lower
signature threshold or eliminate in-person signature
requirement for legislative initiative), stay granted,
140 S. Ct. 2616, remanded, 826 F. App’x 592 (9th Cir.
2020); People Not Politicians Oregon v. Clarno, 472 F.
Supp. 3d 890 (D. Or. 2020) (lowering threshold for
signature requirement to amend the Oregon
Constitution), stay granted, 141 S. Ct. 206, remanded,
826 F. App’x 581 (9th Cir. 2020).
Absent content- or viewpoint-based restriction of
political speech, States should be free to experiment
with ballot initiatives, recall elections, and referenda
as they see fit. These decisions involve fundamental
questions of state policy and the finetuning of the
democratic process. As part of the least democratic
branch of the federal government, we must tread
lightly here. Indeed, if the First Amendment protected
against rules that make some political outcomes less
likely, that would be grounds for federal courts to
intrude on all sorts of state political activity, like state
supermajority rules and veto rules, and may
discourage these direct democracy petitions. Since
Angle has no support in history and tradition or
Supreme Court precedent, and comes at a great price
to federalism, we should have reconsidered it en banc.
And there was no better opportunity to reconsider
Angle. Here, no hot-button proposal looms over the
case. No election awaits right around the corner. No
emergency stay hangs over the parties. Nothing forces
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us to expedite consideration of the matter. In fact, the
plaintiffs here got all the signatures they needed for
their recall petition and the recall succeeded. The
controversy only remains live because the plaintiffs
seek nominal damages, declaratory relief, and
injunctive relief for future petitions. See Comm. to
Recall Dan Holladay v. Wiley, No. 23-35107, 2024 WL
1854286, at *2 (9th Cir. 2024). And overruling Angle
would have put these issues to rest. Safe from the
pressures of a political battle, we should have
reconsidered Angle when we could give it our best
attention.
I.
Background
Let’s begin with some background on this case. Like
many States, Oregon permits its citizens to recall their
elected officials. Citizens who wish to recall a public
official can circulate a petition for signatures. If the
petition receives the signatures of 15% of the
electorate, then the public official must stand for a
recall election. Or. Const. Art. II, § 18. Proponents of
the recall election have 90 days to collect and submit
these signatures. Or. Rev. Stat. § 249.875(1).
Plaintiffs Jeana Gonzalez, Adam Marl, and the
Committee to Recall Dan Holladay organized a recall
campaign against the mayor of Oregon City, Dan
Holladay. They collected the requisite number of
signatures in the 90-day timeframe. But they brought
this suit for nominal damages, declaratory relief, and
prospective relief to challenge Oregon’s 90-day limit on
recall petitions under the First Amendment. Their
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argument? Most recall campaigns in Oregon fail
largely “due to lack of adequate time to gather
signatures,”
making
the
90-day
limit
an
unconstitutional, severe burden on their First
Amendment right under Angle. Plaintiffs sued the city
recorder, Jakob Wiley, in his official capacity, and the
State of Oregon intervened to defend the
constitutionality of the 90-day limit.
The district court held that Plaintiffs had standing to
bring their facial First Amendment challenge because
at least one plaintiff planned to organize future recall
petitions. On the merits, the district court ruled that
they failed to state a claim under Angle because they
failed to show that “reasonably diligent” proponents
couldn’t “normally” qualify for a recall election. The
district court also refused Plaintiffs permission to
amend their complaint.
On appeal, a panel of this court reversed in part. After
satisfying itself that the case was justiciable, the panel
turned to the merits. See Committee to Recall, No. 2335107, 2024 WL 1854286, at *2. Critically, the panel
rejected any argument to narrow Angle. It reasoned
that “[r]ecall elections affect the total quantum of
speech on a particular issue by affecting the timing and
context of an election,” and thus the “logic underlying
the Angle test applies equally to laws regulating recall
petitions.” Id.
Analyzing the case under Angle’s framework, the panel
held that Plaintiffs failed to allege “facts sufficient to
subject the 90-day deadline to strict scrutiny.” Id.
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That’s because Plaintiffs’ allegations failed to show
that the deadline “significantly inhibits the ability of
recall proponents to place a recall on the ballot.” Id.
(simplified). And the 90-day deadline survived lessexacting review because it “serves the important
regulatory interest[s]” of ensuring that the recall effort
“has sufficient grassroots support before holding a
recall election” and “preventing abuse of the recall
process.” Id. at *3.
But the panel also held that the district court abused
its discretion in denying Plaintiffs leave to amend their
Angle claim. Id. at *4. The panel noted that the district
court’s decision was based on an erroneous
justiciability analysis and on an impermissible
assumption that Plaintiffs could not produce data to
support their allegations. See id. at *3. The panel thus
vacated the denial of leave to amend and remanded for
further proceedings in which the district court could
either grant leave to amend on the Angle claim or
provide a clearer explanation for not doing so. See id.
at *4.
The State of Oregon sought en banc review. Rather
than expanding Angle, on en banc review, we should
have discarded it completely.
II.
The History of the First Amendment and Direct
Democracy Initiatives
The Free Speech Clause of the First Amendment
provides that “Congress shall make no law . . .
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abridging the freedom of speech.” U.S. Const. amend.
I. This case asks— what does the Free Speech Clause
have to say about the neutral rules that States may
place on direct democracy initiatives?
In considering the Free Speech Clause’s impact on
these ballot access rules, “we can consider its history
and tradition.” Vidal v. Elster, 602 U.S. 286, 301
(2024); see also Randy E. Barnett & Lawrence B.
Solum, Originalism after Dobbs, Bruen, and Kennedy:
The Role of History and Tradition, 118 Nw. U. L. Rev.
433, 446 (2023) (explaining that, at a minimum,
history and tradition can serve as “[e]vidence of the
original public meaning of the constitutional text”). As
the Court recently held, a regulation’s “longstanding
coexistence” with the First Amendment suggests that
the constitutional provision requires no “heightened
scrutiny” of the regulation. Vidal, 602 U.S. at 300.
As a matter of history, direct democracy was generally
disfavored at the Founding. Its few manifestations
around the ratification of the First Amendment were
limited. Direct democracy became more common in
state constitutional amendment procedures around
Reconstruction and the ratification of the Fourteenth
Amendment. During this period, state governments
determined which issues made it onto the ballot—
despite state and federal free speech rights. And when
ballot initiatives, referenda, and recall votes gained
traction at the turn of the 20th century, the Free
Speech Clause still did little to override state
restrictions imposed on them. Absent evidence to the
contrary, the lack of any First Amendment regulation
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of neutral citizen-driven ballot restrictions over the
last two centuries supports that they fall outside the
Free Speech Clause’s scope.
In other words, from the Founding to well into the 20th
century, reasonable procedural restrictions on what
may appear on the ballot have “always coexisted with
the First Amendment” and its state equivalents. See
id. at 295. And this “longstanding coexistence”
indicates that neutral limitations on direct democracy
initiatives have never “been a cause for constitutional
concern.” See id. at 295–96. Thus, this historical
understanding shows that procedural ballot access
regulations,
like
Oregon’s
signature-gathering
timeframe, are “compatible with the First
Amendment” and need not be evaluated under
“heightened scrutiny.” See id. at 301.
A.
Founding-Era History
The Constitution was in many ways designed to place
representatives between the people and discrete policy
decisions. See, e.g., Julian N. Eule, Judicial Review of
Direct Democracy, 99 Yale L. J. 1503, 1523 (1990); see
also The Federalist No. 10 (Madison) (arguing that “a
pure democracy . . . can admit of no cure for the
mischiefs of faction,” and advocating for “a republican
remedy for the diseases most incident to republican
government”); Arizona State Legislature v. Arizona
Indep. Redistricting Comm’n, 576 U.S. 787, 793 (2015)
(“Direct lawmaking by the people was virtually
unknown when the Constitution of 1787 was drafted.”
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(simplified)). Experiments with direct democracy at
this time were rare.
According to some historians, what drove the
constitutional convention in Philadelphia was not the
weakness
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