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Sharron E. Angle; Citizens In v. Ross Miller

March 14, 2012

SHARRON E. ANGLE; CITIZENS IN CHARGE; KENNETH R. BLACKMAN; TONY BADILLO; JACK LIPSMAN; ALMAURICE; PEST COMMITTEE, PLAINTIFFS-APPELLANTS,
v.
ROSS MILLER, SECRETARY OF STATE, DEFENDANT-APPELLEE.



D.C. No. 2:09-cv-01969-JCM-LRL Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

The opinion of the court was delivered by: Fisher, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted September 1, 2011-San Francisco, California

Before: Raymond C. Fisher and Johnnie B. Rawlinson, Circuit Judges, and Richard Mills, District Judge.*fn1

OPINION

Nevada permits direct legislation through ballot initiatives. To qualify an initiative for the ballot, proponents must obtain signatures from a number of registered voters equal to 10 percent of the votes cast in the previous general election in each of the state's congressional districts. The district court held that this geographic distribution requirement, which requires proponents to collect signatures from each of the state's congressional districts, violates neither the Equal Protection Clause nor the First Amendment. We affirm.

I. Background

The Nevada Constitution authorizes the citizens of Nevada to enact statutes and amend the Nevada Constitution through the initiative process. See Nev. Const. art. 19, § 2. To place an initiative on the ballot, proponents must obtain signatures from a number of registered voters equal to 10 percent of the votes cast in the previous general election. See id.

This signature requirement is also subject to a geographic distribution requirement known as the All Districts Rule.*fn2

Adopted in 2009, the All Districts Rule requires initiative proponents to meet the 10 percent signature threshold in each of the state's congressional districts. See Act of June 17, 2011, ch. 501, 2011 Nev. Laws, § 64 (to be codified at Nev. Rev. Stat. § 295.012) ("A petition for initiative or referendum that proposes a constitutional amendment or statewide measure must be proposed by a number of registered voters from each petition district in the State that is at least equal to 10 percent of the voters who voted in that petition district at the last preceding general election."); Act of June 13, 2011, ch. 320, 2011 Nev. Laws, § 1 (to be codified at Nev. Rev. Stat. § 293.069) ("'Petition district' means a district . . . for the election of Representatives in Congress.").

Nevada had three congressional districts at the time the state adopted the All Districts Rule and at the time the plaintiffs filed this lawsuit. The First and Third Districts were located within Clark County, which is situated in the southeast corner of the state and includes Las Vegas. The Second District included each of the state's other 16 counties, including all of northern Nevada, as well as portions of Clark County not included in the First and Third Districts. Nevada will have four congressional districts once the 2010 reapportionment and redistricting processes are completed. The state's congressional districts have equal populations, as the federal Constitution requires. See Karcher v. Daggett, 462 U.S. 725, 730 (1983).

This action presents a facial challenge to the All Districts Rule. The plaintiffs are five individuals and two organizations, each of which opposes the All Districts Rule. Second Am. Compl. ¶¶ 17-26. The defendant is Ross Miller, Nevada's Secretary of State, who is sued solely in his official capacity. Id. at 1. We refer to the plaintiffs collectively as "plaintiffs" and to the defendant as "the state."

The plaintiffs seek an order declaring the All Districts Rule unconstitutional and enjoining the state from enforcing it. As relevant here, they raise two claims. First, they contend that the All Districts Rule violates the Equal Protection Clause by allowing a minority of the state's population to veto the wishes of the majority with regard to ballot initiatives, making the votes of some citizens more influential than those of others. Second, they contend that the All Districts Rule violates the First Amendment by significantly increasing the burdens and expenses placed upon individuals seeking to quality initiatives for the ballot.

The parties filed cross motions for summary judgment and the district court rejected the plaintiffs' claims in a published opinion. See Angle v. Miller, 722 F. Supp. 2d 1206 (D. Nev. 2010).*fn3 The plaintiffs timely appealed. We have jurisdiction under 28 U.S.C. § 1291, we review de novo, see City of L.A. v. San Pedro Boat Works, 635 F.3d 440, 446 (9th Cir. 2011), and we affirm.

II. Equal Protection

[1] "Voting is a fundamental right subject to equal protection guarantees under the Fourteenth Amendment." Idaho Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1076 (9th Cir. 2003). A state "may decline to grant a right to legislate through ballot initiatives." Id. at 1077 n.7. "All procedures used by a State as an integral part of the election process," however, "must pass muster against the charges of discrimination or of abridgment of the right to vote." Moore v. Ogilvie, 394 U.S. 814, 818 (1969). Thus, when a state chooses to give its citizens the right to enact laws by initiative, "it subjects itself to the requirements of the Equal Protection Clause." Idaho Coalition, 342 F.3d at 1077 n.7.

Here, the plaintiffs argue that the All Districts Rule violates equal protection for three reasons: (1) that it results in vote dilution under the principle of Moore v. Ogilvie, 394 U.S. 814 (1969); (2) that it results in vote dilution under a principle articulated in Gray v. Sanders, 372 U.S. 368, 381 & n.12 (1963), and Gordon v. Lance, 403 U.S. 1, 4-5 (1971); and (3) ...


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