The following is a guest post by Emily Hogin. Hogin is a second-year law student at Harvard Law School, where she is an editor on the Harvard Law Review.
On December 16, the en banc Ninth Circuit will hear oral arguments in Chula Vista Citizens for Jobs and Fair Competition v. Norris. The panel had struck down California’s law requiring initiative proponents to identify themselves on official petitions. The case presents new and thorny First Amendment questions about the right to anonymous speech on the one hand and the value of government transparency on the other — and it might be headed to the Supreme Court. See below for an overview of the legal issues involved.
Overview of First Amendment Issues: Chula Vista Citizens for Jobs and Fair Competition v. Norris
In Doe v. Reed,[1] the Supreme Court held that the First Amendment applied to a law requiring disclosure of the names of persons who sign official ballot initiative petitions.[2] In so holding, the Court rejected the idea that the act of signing an initiative petition falls outside the freedom of speech.[3] The following year, in Nevada Commission on Ethics v. Carrigan,[4] the Court distinguished between the sort of “inherently expressive act” that Doe had found to be covered by the First Amendment and a “governmental act,” which is not covered.[5] In application, Carrigan’s line between “expressive” and “governmental” acts is obscured in states that empower citizens to enact legislation by initiative.
In Chula Vista Citizens for Jobs and Fair Competition v. Norris,[6] a Ninth Circuit panel examined two California laws regulating local ballot initiatives: (1) a law requiring that official proponents[7] of ballot initiatives be “electors,” defined as natural persons and residents of the election precinct, and (2) a law requiring that official proponents identify themselves on the official petitions used to gather the signatures necessary to qualify the initiative for the ballot. The panel upheld the elector requirement but invalidated the disclosure requirement. In upholding the elector requirement, the panel characterized serving as an official initiative proponent as a “legislative act,” but in striking down the disclosure requirement, the court assumed that circulating official signature petitions is an “expressive act.”[8] On October 7, 2014, the Ninth Circuit invalidated the panel decision and agreed to rehear the case en banc.[9] The Supreme Court has not yet articulated a clear test delineating expressive and legislative acts, and Chula Vista presents facts demonstrating that guidance is needed. A test consistent with Supreme Court precedents would find any regulation of the exercise of constitutionally delegated legislative power to fall outside the First Amendment — and recognize that power can be delegated not only to legislators but also to qualified initiative proponents. Such a test would also serve the interest of promoting government transparency.
In 2008, Chula Vista Citizens for Jobs and Fair Competition and Associated Builders and Contractors of San Diego, Inc., (the Associations) attempted to propose a ballot initiative in the City of Chula Vista.[10] Under the City’s Charter,[11] a ballot initiative must be proposed by an “elector,”[12] and the accompanying petition for signatures must disclose the names of official proponents.[13] Chula Vista Citizens asked two of its members, Lori Kneebone and Larry Breitfelder, to serve as proponents.[14] After an attempt to qualify as official proponents failed, the Associations, Kneebone, and Breitfelder filed a § 1983 suit alleging that the elector and disclosure requirements violated the First Amendment facially and as applied.[15]
Judge Benitez of the United States District Court for the Southern District of California upheld both laws.[16] The district court first examined the elector requirement and found that serving as an official ballot initiative proponent is not “pure speech” but is instead “a legislative act.”[17] The court held that “the elector requirement is a rational, reasonable, and necessary measure to protect [the City’s] form of self-government.”[18] Turning to the disclosure requirement, the district court acknowledged that while there is a First Amendment right to speak anonymously, that right is “not absolute.”[19] Because mandatory disclosure does not prohibit speech but only “burden[s] the ability to speak,”[20] the relevant constitutional test is “exacting scrutiny”: the disclosure requirement must be “substantially related to a sufficiently important governmental interest.”[21] Applying exacting scrutiny, the court found that the disclosure requirement passed constitutional muster as applied to the plaintiffs.[22] First, the requirement was substantially related to California’s sufficiently important interests in providing voters with information regarding who is formally proposing legislation and in promoting transparency and accountability in the electoral process.[23] Second, it burdened Kneebone and Breitfelder only slightly because they had elsewhere already disclosed their identities[24] and because, as official proponents, they were “not exposed to the same risk of ‘heat of the moment’ harassment”[25] faced by circulators of petitions.[26]
A Ninth Circuit panel affirmed in part and reversed in part. Writing for the panel, Judge O’Scannlain[27] first analyzed the elector requirement[28] and rejected the Associations’ characterization of their “alleged injury,” explaining that it rested on the faulty assumption that “serving as an official proponent is a form of ‘speech’ protected by the First Amendment.”[29] Instead, Judge O’Scannlain noted that the unique legal authority and responsibilities of official initiative proponents amounted to “legislative power,”[30] and, under Carrigan, “legal authority attaching to a legislative office is not an aspect of the freedom of speech protected by the First Amendment.”[31] Accordingly, the majority upheld the constitutionality of the elector requirement.[32]
Turning to the disclosure requirement, the panel began by assuming, without deciding, that “an official proponent’s decision to disclose his identity on the face of an initiative petition constitutes political speech” and is therefore subject to First Amendment protection.[33] The majority agreed with the district court that the level of scrutiny for mandatory disclosure requirements is “exacting scrutiny.”[34] The court found that, even assuming that California’s informational and electoral integrity interests are sufficiently important, those interests did not bear a substantial relation to the disclosure requirement[35] given the existence of less burdensome alternatives[36] and the “importance of anonymity at the point of contact with voters.”[37] Accordingly, the Ninth Circuit reversed the district court’s grant of summary judgment to Norris, invalidating California’s disclosure requirement.[38]
Judge Bea concurred, but regarding the majority’s decision to uphold the elector requirement, he concurred only in the judgment.[39] He disagreed with the majority’s determination that the requirement does not implicate the First Amendment.[40] He first explained that the majority employed an “incorrect test”[41] — distinguishing between “the activities of an official proponent”[42] and “serving as an official proponent”[43] — to determine whether serving as an official ballot proponent is a legislative or expressive act. Instead, Judge Bea would “ask[] whether the individual — here the ballot initiative proponent — is exercising his own power, as does a ballot initiative signatory (Doe), or is exercising a governmental power that has been democratically apportioned to him, as does a legislator voting in a legislature (Carrigan).”[44] Applying the Doe-Carrigan framework, Judge Bea concluded that acting as an official ballot proponent “is an expressive act, despite its legislative effect, and is protected by the First Amendment.”[45] However, to Judge Bea, the elector requirement would survive exacting scrutiny on the strength of California’s interest in ensuring that “only civic-minded locals, who presumably would have knowledge of local affairs and would themselves be affected by the referendum . . . participate in the initiative process” and was therefore constitutional.[46]
Judge Graber concurred in part and dissented in part.[47] She agreed with the majority’s assessment of the elector requirement, but disagreed with its determination that the disclosure requirement was unconstitutional.[48] Judge Graber first emphasized that official proponents have “special duties beyond those of ordinary supporters of an initiative” such that “the California Supreme Court has equated the role of a proponent to that of an elected legislator to whom the people have delegated lawmaking power.”[49] Although following the majority’s assumption that the First Amendment applied, Judge Graber argued that, given official proponents’ “central role” in lawmaking by initiative, they have a limited interest, if any, in anonymity.[50] By contrast, to Judge Graber, California’s interest in preserving the integrity of the electoral process was sufficiently important and substantially related to the disclosure requirement to withstand any level of scrutiny.[51]
The parties’ pleadings prevented the Chula Vista court from reaching the important threshold question of whether circulating an official initiative petition is constitutionally protected political speech or unprotected legislative activity. Without a clear dividing line from Doe and Carrigan, the Chula Vista parties’ position before the court — that circulating an official signature petition is expressive speech — is inconsistent with Supreme Court precedent. A test that is consistent with that precedent would look to whether the challenged law regulates constitutionally delegated power — and would recognize that, by assuming the mantle of an official proponent, citizens exercise such delegated power.
The Supreme Court has not articulated a clear line between legislative activity and First Amendment–covered expressive speech. In one line of cases, the Court has held that making campaign promises[52] and canvassing for signatures on official petitions[53] are covered under the First Amendment. But in Timmons v. Twin Cities Area New Party,[54] the Court determined that the First Amendment does not protect appearing on the ballot as a candidate of more than one political party.[55] In Doe v. Reed, the Court held that signing an official petition is expressive speech (albeit with legal effect) because it involves the articulation of “a political view.”[56] Later, in Carrigan, the fact that a legislator’s vote may express a political view was insufficient to invite First Amendment scrutiny.[57]
The Chula Vista panel was unable to formulate and apply a test distinguishing between legislative and expressive activity. In upholding the elector requirement, the majority drew a distinction between serving as an official proponent and performing the obligations of an official proponent.[58] In striking down the disclosure requirement, the majority treated the act of circulating official signature petitions as expressive. However, the court did not offer an explanation for why the “expressive”[59] character of official proponents’ activities was distinguished from Carrigan, which held that even if legislative activities express a political view, “a legislator has no [First Amendment] right to use official powers for expressive purposes.”[60] Judge Bea argued that serving as an official proponent is expressive by differentiating between expressive acts that are “personal to the actor” and those that are exercised “through democratic delegation of governmental power.”[61] But that test, which gives dispositive weight to the fact that official proponents are “neither . . . elected nor democratically appointed,”[62] cannot explain Twin Cities, where the political parties affected by Minnesota’s regulations for candidates appearing on ballots had been neither elected nor democratically appointed and yet had no “right to use the ballot itself to send a particularized message.”[63]
Instead, the en banc court could articulate a constitutional delegation test that is consistent with Supreme Court precedent and serves the value of government transparency. Such a test would look to the state’s constitution for a delegation of lawmaking power and would recognize that in California, both official proponents and legislators exercise delegated power. Under the California Constitution, laws can be enacted in one of two ways: (1) a duly elected legislator may propose a bill to her fellow legislators, or (2) an elector may propose an initiative to her fellow voters.[64] The constitution requires that those who take up the mantle to exercise these delegated powers — legislators and official proponents — be “electors,”[65] and the California statute upheld in Chula Vista defines “elector” as a natural person and resident.[66] Thus, under the delegation test, the fact that the elector requirement regulates who may exercise legislative authority delegated by the constitution would mean that it is not subject to First Amendment scrutiny.[67]
The constitutional delegation test would also mean that the disclosure requirement falls outside the First Amendment. A legislator who wishes to exercise his delegated powers to make laws introduces a bill and discloses his name at the top of the printed bill.[68] That bill is then circulated to the legislator’s colleagues, whose votes will determine if the bill advances.[69] Likewise, a citizen exercising her delegated powers to make law in California must introduce official signature petitions; those petitions are circulated among her fellow citizens, whose signatures will determine if the measure advances.[70] Because they are part of the mandated legislative process by which ideas become law, the official signature petitions are much more like a proposed bill in the legislature than a nonbinding petition to, for example, end the war in Afghanistan. The latter is unquestionably covered by the First Amendment and may be circulated anonymously; the former is not covered by the First Amendment. Thus, understanding a delegation test to include official proponents would mean that the disclosure requirement falls outside the scope of First Amendment speech and should have been upheld. Understanding a delegation test to be broader than election and appointment also accounts for the holding in Twin Cities that political parties have no First Amendment “right to use the ballot itself to send a particularized message”[71] because the Minnesota Constitution delegates the power to elect representatives to the ballot process.[72]
The U.S. Constitution recognizes that the people do not delegate power unconditionally — citizens are able to monitor their government because legislators do not anonymously run for office or vote. In its delegation of lawmaking powers, the Constitution requires publishing of congressional votes by name when requested, and proceedings in the House of Representatives have been open to the public from the start and in the Senate since the mid-1790s.[73] The Chula Vista litigants erred in assuming that the First Amendment shields California’s single-purpose legislators — voters who take up the responsibilities and obligations of being official proponents of ballot initiatives — from the same obligations of transparency imposed on all other legislators in the state.
[5] Id. at 2351. For example, voting as a citizen in a straw poll is inherently expressive while voting as a legislator on a proposed bill is not. Id. at 2351 n.5.
[6] 755 F.3d 671 (9th Cir. 2014).
[7] Under California law, official proponents take on unique privileges and responsibilities that differentiate them from citizens who merely support an initiative. Official proponents write the text of the initiative that will be put before the voters, may choose which arguments in favor of the proposal appear on the ballot, and may intervene to defend the initiative in state court. See Cal. Elec. Code §§ 9202(a), 9287 (West 2003); Chula Vista, 755 F.3d at 679.
[8] See Chula Vista, 755 F.3d at 690 (Bea, J., concurring). The parties assumed that the disclosure requirement regulated expressive acts and thus did not raise the threshold question of whether the requirement implicated First Amendment speech. Id. at 682–83 (majority opinion).
[9] Chula Vista Citizens for Jobs & Fair Competition v. Norris, 768 F.3d 1081 (9th Cir. 2014)
[10] Chula Vista, 755 F.3d. at 673 (majority opinion). The initiative would have prohibited the City from funding or contracting for public work projects where there was a requirement to hire only union labor. Id.
[11] The charter incorporates parts of the California Elections Code governing initiatives. See id.
[13] See id. §§ 9202(a), 9207.
[14] Chula Vista, 755 F.3d at 673.
[15] The suit was brought against Chula Vista city officials in their official capacities, and the State of California intervened to defend the constitutionality of its election code. Id. at 671, 674.
[16] See Chula Vista Citizens for Jobs and Fair Competition v. Norris, 875 F. Supp. 2d 1128, 1149–50 (S.D. Cal. 2012). Although the ballot measure had since qualified for the ballot, the case was not deemed moot given “the exception for Constitutional injuries which are capable of repetition while evading judicial review.” Id. at 1132 n.1.
[18] Id. The court applied a reasonableness standard, in which restrictions on legislative activities are reviewed for whether the “State’s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). In particular, the court emphasized that the City of Chula Vista’s elector requirement “protects its initiative process from becoming a tool of foreigners and artificial entities.” Chula Vista, 875 F. Supp. 2d at 1137.
[19] Id. at 1139; see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“[A]n author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment.”).
[20] Chula Vista, 875 F. Supp. 2d at 1142 (quoting Citizens United v. FEC, 130 S. Ct. 876, 914 (2010)).
[22] The plaintiffs had described their suit as both a facial and an as-applied challenge to the disclosure requirement, but the court treated it as an as-applied challenge only. See id. at 1139 n.10.
[24] Id. at 1145. Official proponents are required to disclose their identities at three distinct moments in the ballot initiative process: the filing of the initial notice of intent, the publication of the notice in a newspaper, and the inclusion of the notice on the circulated initiative petitions. See Cal. Elec. Code §§ 9202, 9207 (West 2003); id. § 9205 (West 2003 & Supp. 2014). Kneebone and Breitfelder challenged only the final disclosure requirement. See Chula Vista, 875 F. Supp. 2d at 1139.
[25] Chula Vista, 875 F. Supp. 2d at 1142.
[26] Cf. Buckley v. Am. Constitutional Law Found., Inc. (ACLF), 525 U.S. 182 (1999) (holding that Colorado statutes requiring that initiative circulators be registered voters, that circulators wear identification badges, and that official proponents report names and addresses of all paid circulators and amount paid to each circulator violated the First Amendment).
[27] Judge Bea joined Judge O’Scannlain’s opinion except for its treatment of the elector requirement. Judge Graber joined Judge O’Scannlain’s opinion except for its treatment of the disclosure requirement.
[28] Chula Vista, 755 F.3d at 676–81. The court rejected defendants’ argument that it should abstain from ruling because doing so might require the court to settle an unresolved question of state law, noting that abstention is disfavored in the First Amendment context because of a possible chilling effect. Id. at 675–76.
[29] Id. at 677 (emphasis added).
[33] Id. at 683. In making this assumption, the court noted that the parties did not dispute that “an initiative petition is political speech.” Id. at 682 n.11 (quoting Answering Brief of Appellee State of California at 34, Chula Vista, 755 F.3d 671 (No. 12-55726))(internal quotation marks omitted).
[34] Id. at 683 (quoting Doe v. Reed, 130 S. Ct. 2811, 2818 (2010)) (internal quotation marks omitted); see also Chula Vista Citizens for Jobs and Fair Competition v. Norris, 875 F. Supp. 2d 1128, 1142 (S.D. Cal. 2012).
[35] Chula Vista, 755 F.3d at 685–88.
[36] Specifically, “[v]oters who wish to know the identities of official proponents need only make a trip to the City Clerk’s office or search for the publication of the petition in their newspapers.” Id. at 687.
[37] Id. at 685. Relying on McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), and Buckley v. ACLF, 525 U.S. 182 (1999), the court explained that, at the point of contact with signatories, “reaction to the circulator’s message is immediate and may be the most intense, emotional, and unreasoned.” Chula Vista, 755 F.3d at 685 (quoting ACLF, 525 U.S. at 199) (internal quotation mark omitted). Thus, “an advocate may believe her ideas will be more persuasive if her readers are unaware of her identity.” Id. (quoting McIntyre, 514 U.S at 342) (internal quotation marks omitted).
[38] Chula Vista, 755 F.3d at 689–90.
[39] Id. at 690(Bea,J.,concurring).
[42] Id. at 693 (quoting id. at 679 (majority opinion)) (internal quotation marks omitted).
[43] Id. (quoting id. at 679 (majority opinion)) (internal quotation mark omitted).
[45] Id. Judge Bea relied on Doe to argue that the elector requirement should be subject to exacting scrutiny under the First Amendment, as opposed to the less deferential strict scrutiny, because it is a burden imposed on political expression while the state and local governments are “implementing their own voting systems.” Id. at 695 (quoting Doe v. Reed, 130 S. Ct. 2811, 2819 (2010)) (internal quotation marks omitted).
[47] Id. at 696 (Graber,J.,concurring in part and dissenting in part).
[50] Id. at 699. Judge Graber added that “[o]ther circuits have recognized that candidates for public office have no First Amendment interest in anonymity by virtue of their voluntary undertaking of a public role.” Id. (citing Majors v. Abell, 317 F.3d 719, 722 (7th Cir. 2003)).
[51] Id. at 698. Judge Graber explained that voters needed identifying information about official proponents because “[a]n ineffective official proponent” could sabotage the initiative’s chance of success. Id. at 699. The majority criticized Judge Graber for relying on “the legislative character of an initiative petition” but then applying exacting scrutiny as if legislators had a right to speak anonymously. Id. at 688 (majority opinion).
[52] See Brown v. Hartlage, 456 U.S. 45 (1982). See generally Republican Party of Minn. v. White, 536 U.S. 765 (2002) (invalidating Minnesota canon of judicial conduct prohibiting candidates for a judicial office from announcing their views on disputed legal or political issues).
[53] See Buckley v. Am. Constitutional Law Found., Inc. (ACLF), 525 U.S. 182 (1999); Meyer v. Grant, 486 U.S. 414 (1988).
[55] Id. at 362–63 (finding that a political party had no First Amendment right “to use the ballot itself to send a particularized message,” id. at 363).
[56] 130 S. Ct. 2811, 2817 (2010).
[57] Nev. Comm’n on Ethics v. Carrigan, 131 S. Ct. 2343, 2351 (2011) (“It is one thing to say that an inherently expressive act remains so despite its having governmental effect, but it is altogether another thing to say that a governmental act becomes expressive simply because the governmental actor wishes it to be so.”).
[58] See Chula Vista, 755 F.3d at 679–81.
[60] Carrigan, 131 S. Ct. at 2351.
[61] Chula Vista, 755 F.3d at 692 (Bea, J., concurring).
[63] Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997).
[64] See Cal. Const. art. IV, § 1; id. art. II, § 8.
[65] See id. art. IV, § 2(c); id. art. II, § 8(a).
[66] See Cal. Elec. Code § 321 (West 2003 & Supp. 2014); Chula Vista, 755 F.3d at 673, 681.
[67] Cf. Chula Vista, 755 F.3d at 680(upholding the electorr equirement because serving as an official proponent confers “legislative authority”).
[68] Answering Brief of Appellee State of California, supra note 31, at 38.
[69] See Cal. Const. art. IV, § 8(b).
[70] See id. art. II, § 8(b); Cal. Elec. Code § 9207 (West 2003).
[71] Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997).
[72] See Minn. Const. art. VII, § 5. This test also accounts for First Amendment protections for campaign statements and promises, see Republican Party of Minn. v. White, 536 U.S. 765 (2002); Brown v. Hartlage, 456 U.S. 45 (1982), which do not take place as part of official procedures such as ballots and signature petitions and therefore are an exercise of the candidates’ personal First Amendment rights rather than constitutionally delegated power. Thus, official proponents would still be able to exercise their First Amendment right to speak anonymously in favor of the initiative in, for example, pamphlets, TV ads, or nonbinding petitions — just not on the official petitions that, when enough signatures are gathered, put the initiative on the ballot.
[73] See Chesa Boudin, Note, Publius and the Petition: Doe v. Reed and the History of Anonymous Speech, 120 Yale L.J. 2140, 2161–62 (2011).