The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER (AMENDED)
The following Memorandum Decision and Order replaces the Court's Order dated April 19, 2010 (Docket No. 39). The amendments are not substantive and the Court's analysis and conclusions are unchanged.
Currently before the Court are Defendant's Motion for Summary Judgment (Docket No. 28) and Plaintiff's Motion for Summary Judgment (Docket No. 29). Both parties have consented to proceed before a United States Magistrate Judge. (Docket No. 19). The Court has carefully reviewed the record; considered the oral argument of counsel at the January 7, 2010 hearing; and now enters the following Order.
A. Factual and Procedural Background
The facts are sparse, but undisputed and sufficient in their scope for the Court to enter judgment on the cross motions. Plaintiff, Donald N. Daien, is an Arizona resident and past supporter of independent presidential candidate Ralph Nader, who wants to gather nominating petition signatures to secure ballot access for a yet unknown, independent presidential candidate, "specifically Ralph Nader or other similarly-minded persons." Declaration of Donald Daien ("Daien Declaration"), ¶¶ 3, 5 (Docket No. 29-3). Defendant, Ben Ysursa, is a constitutional officer of the State of Idaho, elected to the position of Secretary of State of Idaho (hereinafter "Ysursa" or the "Secretary"), and is responsible thereby for enforcing Idaho's election laws. Complaint, ¶ 11 (Docket No. 1).
Daien challenges two Idaho statutes regulating ballot access for independent presidential candidates. First, Daien argues that Idaho Code § 34-1807, which provides in part that only Idaho residents may circulate and verify signatures on a nominating petition, violates his First Amendment rights, because the requirement effectively prevents persons like him, who are non-residents, from circulating petitions in Idaho. Second, Daien argues that Idaho Code § 34-708A, which requires that independent candidates for president must secure 6,550 signatures in order to be placed on the 2012 Idaho general election ballot, violates the equal protection clause of the United States Constitution, because independent candidates for statewide office only need obtain 1,000 signatures to gain a place on the same, statewide ballot, I.C. § 34-708(2). Daien further argues that the disparate burden placed on independent presidential candidates, whomever such candidates might be, also violates his First Amendment rights.
Idaho law provides different paths for candidates to secure general election ballot access, depending upon whether a candidate has been nominated by a political party or is independent of party affiliation. Candidates who file a declaration of candidacy through a political party must win that party's primary election in order to appear on the general election ballot. See I.C. § 34-704. In contrast, independent candidates must file a declaration of candidacy with a petition containing a minimum specified number of signatures from qualified electors ("nominating petition"). See I.C. §§ 34-708, 34-708A.
The path to the Idaho ballot then branches again, in the different numbers of nominating signatures needed for independent candidates to obtain ballot access, depending upon the office sought. An independent candidate for a statewide office (the executive branch officers, such as the governor, lieutenant-governor, secretary of state and so on) must obtain 1,000 signatures, I.C. § 34-708(2). An independent candidate for president, in contrast, must obtain the signatures of at least one percent of the votes cast in Idaho for presidential electors at the previous general election in which a president was elected, I.C. § 34-708A. For the 2012 presidential election, that number of signatures is 6,550. See Affidavit of the Hon. Ben Ysursa, Secretary of State of the State of Idaho ("Ysursa Affidavit"), ¶ 3 (Docket No. 28-5).
The deadline for filing a nominating petition also varies, depending upon the office sought, with a later deadline for independent presidential candidates. Independent presidential candidates must file their declarations of candidacy with nominating petitions by August 25 before the general election in order to appear on the ballot. Id. In contrast, independent candidates for statewide office must declare their candidacy and submit their nominating petitions "on the tenth Friday preceding the primary election." I.C. § 34-704. In order to appear on the 2012 ballot, this deadline was March 16, 2012. See Defendant's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment, p. 16 (Docket No. 30).
Signatures on all nominating petitions must be verified in the manner prescribed by Idaho Code § 34-1807. See I.C. §§ 34-708(3), 34-708A. Section 34-1807 contains three requirements that qualify someone to circulate a nominating petition:
1. The person circulating the petition must be a resident of the State of Idaho;
2. The person circulating the petition must be at least 18 years old; and
3. The person circulating the petition must verify, by affidavit, the following: "That I am a resident of the State of Idaho and at least eighteen (18) years of age: [sic] that every person who signed this sheet of the foregoing petition signed his or her name thereto in my presence: [sic] I believe that each has stated his or her name, post-office address and residence correctly, that each signer is a qualified elector of the State of Idaho, and a resident of the county of . . . ."
The statute then imposes a duty on the part of the county clerk, who must verify the signatures with a certificate addressed to the Idaho Secretary of State stating substantially the following: "I . . . hereby certify that . . . signatures on this petition are those of qualified electors." Id. The independent candidate then submits the verified nominating petition to the Idaho Secretary of State, I.C. § 34-705, in order to support a declaration of candidacy, I.C. § 34-708A.
Violations of these statutes carry severe consequences. For the potential candidate, a petition with signatures obtained "by a person not a resident of the state of Idaho and at least eighteen (18) years of age" is deemed void. I.C. § 34-1807. For the individual circulating the petition, a violation of the requirements of Section 1807, as with any violation of the election statutes, is a criminal act under Idaho law, carrying maximum penalties of up to two years in prison and a fine of up to $5,000. I.C. § 34-1822.
Secretary Ysursa contends that Daien's claims are not justiciable, because Daien lacks standing to bring suit and his claims are not ripe for review. Memorandum in Support of Defendant's Motion for Summary Judgment, p. 2(Docket No. 28-3). Both standing and ripeness, inter alia, are key components of justiciability, a constitutional requirement for federal court jurisdiction.
Article III of the Constitution limits federal court jurisdiction to actual "cases" and "controversies." See U.S. Constn. Art. III § 1; see also Allen v. Wright, 468 U.S. 737, 750 (1984); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009). The "case or controversy" requirement "defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded." Allen v. Wright, 468 U.S. at 750. Both standing and ripeness are doctrines that stem directly from this constitutional requirement and involve "constitutional limitations on federal court jurisdiction and prudential limitations on its exercise." Warth v. Seldin, 422 U.S. 490, 498 (1975); see also Alaska Right to Life Political Action Comm. v. Feldman 504 F.3d 840, 848 (9th Cir. 2007). These constitutional and prudential limitations reflect "concern about the proper--and properly limited--role of the courts in a democratic society." Warth, 422 U.S. at 498.
Daien has the burden of demonstrating his standing. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir. 2000). "As an aspect of justiciability, the standing question is whether the plaintiff has 'alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Id. at 498-99 (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). The standing doctrine prohibits the Court from determining the constitutionality of a statute "except as it is called upon to adjudge the legal rights of litigants in actual controversies." Baker v. Carr, 369 U.S. at 204 (quotations and citations omitted).
To satisfy Article III standing requirements, Daien must show (1) he has suffered an injury in fact to a legally protected interest that is (a) concrete and particularized and (b) actual or imminent (as opposed to conjectural or hypothetical); (2) the injury is fairly traceable to the challenged statute; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). Nonetheless, "the injury required for standing need not be actualized." Davis v. Federal Election Com'n, 552 U.S. ----, 128 S.Ct. 2759, 2769 (2008). See also Steffel v. Thompson, 415 U.S. 452, 459 (1974) (holding plaintiff need not "first expose himself to actual arrest or prosecution," in order to obtain relief). Rather, a plaintiff may bring a suit based on a prospective injury provided that the threat of enforcement is sufficiently "real, immediate, and direct." Davis v. Federal Election Com'n, 552 U.S. at ----, 128 S.Ct. at 2769.
In addition to these constitutional requirements for standing, the Court must also consider the prudential components of standing:
[P]rudential standing concerns require that we consider, for example, whether the alleged injury is more than a 'mere generalized grievance,' whether the plaintiff is asserting her own rights or the rights of third parties, and whether the claim 'falls within the zone of interests to be protected or regulated by the constitutional guarantee in question.'
Alaska Right to Life, 504 F.3d at 848-49 (citing Johnson v. Stuart, 702 F.2d 193, 196 (9th Cir.1983). However, generally "[p]rudential standing is satisfied unless [the party's] 'interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that [the legislature] intended to permit the suit.'" Ocean Advocates v. U.S. Army Corps of Eng'rs, 402 F.3d 846, 861 (9th Cir. 2005) (quoting Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399 (1987)).
The Secretary argues that Daien lacks standing, because he cannot demonstrate that he has suffered an injury-in-fact. Memorandum in Support of Defendant's Motion for Summary Judgment, pp. 4-5 (Docket No. 28-3). According to the Secretary, Daien cannot meet this requirement, because neither Daien nor anyone else knows whether any independent candidates for President will attempt to qualify for the 2012 Idaho ballot. Id.
"The difference between an abstract question and a 'case and controversy' is one of degree, of course, and is not discernible by any precise test." Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 297 (1979) ("Farm Workers"). "[W]hen plaintiffs seek to establish standing to challenge a law or regulation that is not presently being enforced against them, they must demonstrate 'a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement.'" LSO, Ltd., 205 F.3d at 1154 (quoting Farm Workers, 442 U.S. at 298). This may be established by a variety of factors, including "the likelihood that the complainant will disobey the law, the certainty that such disobedience will take a particular form, any present injury occasioned by the threat of prosecution, and the likelihood that a prosecution will actually ensue." Blanchette v. Connecticut Gen. Ins. Coprs., 419 U.S. 102, 143 n. 29 (1974).
As the Ninth Circuit has more recently described, "[i]t is sufficient for standing purposes that the plaintiff intends to engage in 'a course of conduct arguably affected with a constitutional interest' and that there is a credible threat that the challenged provision will be invoked against the plaintiff." LSO, Ltd., 205 F.3d at 1154-55 (quoting Farm Workers, 442 U.S. at 298). Other courts specifically examining a claimant's stated desire to engage in a course of conduct with a constitutional interest find standing where there is proof that the plaintiff: (1) has engaged in the type of speech affected by the challenged government action, (2) indicates a desire to engage in such speech in the future, and (3) has made a plausible claim that he will not do so because of a credible threat that the challenged regulation will be enforced. See Marijuana Policy Project v. Miller, 578 F.Supp.2d 1290, 1301 (D. Nev. 2008); Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en banc).
1. Standing to Challenge Idaho Code § 34-1807
Here, the record supports a finding that Daien has standing to challenge the residency requirement set forth in Idaho Code § 34-1807. First, Daien has actively supported independent presidential candidates in the past. See Nader v. Brewer, 531 F.3d 1028 (9th Cir. 2008)*fn1 . There is no evidence that his past support included gathering ballot-access signatures; however, there is evidence in the record reflecting Daien's involvement in legal challenges to perceived impediments to his political activities or the candidacies of his preferred candidate. Thus, Daien has demonstrated more than a passing fancy about supporting independent presidential candidates, making his assertion that he intends to circulate petitions all the more plausible.
Second, Daien states a present desire "to circulate petitions for ballot access on behalf of Presidential candidates in the next Presidential cycle." Daien Declaration, ¶ 3 (Docket No. 29-3). Daien resides in a western state, of relatively close proximity to Idaho, and there is nothing on the face of his claimed intentions in their full context that would seem to discredit his stated plans.
Third, Daien states that he "will not circulate ballot-access petitions under existing Idaho law," because it is illegal. Id. at ¶¶ 4-5. This threat of prosecution for violating Idaho Code § 34-1807 is not an empty concern, because Daien is an Arizona resident and would subject himself to criminal prosecution if he circulated petitions in Idaho. See I.C. § 34-1822. Further, Ysursa does not argue that Daien would not face criminal penalties as a non-resident circulating petitions, and there is evidence in the record that the State recently has prosecuted others for ...