UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 22, 2012
CHULA VIST CITIZENS FOR JOBS AND FAIR COMPETITION, ET AL., PLAINTIFFS,
DONNA NORRIS, ET AL., DEFENDANTS, AND STATE OF CALIFORNIA INTERVENOR.
The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT and GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case presents two questions of first impression. It asks whether the First Amendment grants a corporation or association the right to serve as the official proponent of a local ballot initiative. It also asks whether official proponents enjoy a First Amendment right to anonymity during the period when signatures are being gathered. Having considered the arguments and the evidence presented, this Court answers "no" to both questions. The plaintiffs also ask that certain statutory requirements governing ballot initiatives be declared void for vagueness. The Court finds those sections are sufficiently clear to pass constitutional muster.
The Plaintiffs are the Chula Vista Citizens for Jobs and Fair Competition (an unincorporated association), the Associated Builders & Contractors, Inc. (a corporation), Lori Kneebone and Larry Breitfelder (residents and registered voters of Chula Vista, California). The Defendants are Chula Vista city officials sued in their official capacities. The State of California has intervened to defend the constitutionality of California's elections laws.
Chula Vista Citizens and Associated Builders & Contractors, Inc., attempted to propose an initiative to be placed on the ballot in the City of Chula Vista, but it was rejected by the City Clerk. Then Kneebone and Breitfelder proposed an initiative and it was accepted and enough signatures collected to place the initiative on the ballot. The ballot measure, known as "Proposition G," passed on June 8, 2010 by a margin of 55.75% to 44.25%.*fn1
Plaintiffs filed their Complaint challenging state and municipal election laws as violating the First Amendment: (a) by preventing corporations and associations from serving as official proponents of Proposition G; and (b) by requiring the official proponents of Proposition G to disclose their names during the time of circulating Proposition G for signature gathering. Plaintiffs also challenge as too vague various terms in the statutes governing ballot initiatives.
Plaintiffs and Defendants have filed cross-motions for summary judgment on all counts of the Complaint.*fn2 There are no genuine issues of material fact present and the motions are ripe for decision. Having reviewed the evidence and arguments, the Court denies Plaintiffs' motion and grants Defendants' motion.
A. THE ELECTOR (OR NATURAL PERSON) REQUIREMENT
Only Electors May Be Official Proponents; Only Natural Persons May Be Electors The California Constitution provides that its citizenry may propose laws for popular consideration. Likewise, the City of Chula Vista Charter also permits its citizenry to propose ordinances for the ballot. To begin the process, both Chula Vista and California require a ballot initiative be officially and formally proposed by an "elector." See City of Chula Vista Charter § 903; Cal. Elec. Code § 342. Section 903 of the City Charter states in part, There are hereby reserved to the electors of the City the powers of the initiative and referendum and of the recall of municipal elective officers. (emphasis added). Chula Vista's Charter incorporates the California Elections Code. Under California Elections Code § 9202(a), to start the process a "proponent" must sign and file a notice of intention with the text of the ballot initiative.*fn3 For state-wide measures, California Elections Code § 342 defines an initiative proponent in terms of "electors,"
"Proponent or proponents of an initiative or referendum measure" means, for statewide initiative and referendum measures, the elector or electors who submit the text of a proposed initiative . . . (emphasis added). California Elections Code § 321 defines an "elector" to be a natural person and a resident,
"Elector" means any person who is a United States citizen 18 years of age or older and a resident of an election precinct at least 15 days prior to an election.
An "elector" may be a voter once he or she registers to vote. See Cal. Elec. Code § 359. Consequently, only a natural person may be an official initiative proponent because the privilege is restricted to "electors."
Plaintiffs do not disagree, but argue that the natural person
requirement offends the First Amendment to the United States
Constitution. Consequently, Plaintiffs ask this Court to
California Elections Code §§ 342 and 9202 unconstitutional*fn4
to the extent that they exclude corporations and
unincorporated associations from serving as official proponents of a
municipal ballot initiative.
Though Corporations and Associations Have First Amendment Rights, They
May Not Propose Legislation Through a California Ballot Initiative
Assuming that Plaintiffs have Article III standing,*fn5
their arguments are unpersuasive. The
main contention advanced by the Plaintiffs is that corporations and
associations have a First Amendment right to propose legislation in
the form of a qualifying ballot initiative.*fn6 Their
argument relies upon the Supreme Court's recent decision that "First
Amendment protection extends to corporations." Citizens United v. FEC,
130 S. Ct. 876, 899-900 (2010) ("The Court has thus rejected the
argument that political speech of corporations or other associations
should be treated differently under the First Amendment simply because
associations are not 'natural persons.'").*fn7
Plaintiffs' contention is both novel and breathtaking in its potential
application. As the City Defendants correctly point out, there is "no
record that anybody has ever attacked a state law similar to the
elector requirement before . . . . None of the cases cited in
plaintiffs' motion addresses the issue, even in dictum or by
implication." May a state or municipality constitutionally limit its
law-making machinery to natural person citizen electors? Or, must it
also allow associations and corporations to exercise law-making
functions? Plaintiffs view the question in terms of a corporation's
right to engage in protected political speech. Defendants, on the
other hand, view the question in terms of the rights of citizens to
Plaintiffs contend that the elector requirement impermissibly
prohibits associational speakers from speaking. The argument begins
with the well-accepted position that advocating for an initiative
petition is core political speech. It continues with the also
well-accepted idea that the circulation of a ballot initiative
involves core political speech. See Meyer v. Grant, 486 U.S. 414,
421-22 (1988). Plaintiffs then attempt to stretch the idea of
advocation and circulation to include the mechanics of initiation.
They argue that the act of proposing an initiative is also core
speech and that corporations and associations are banned*fn8
from speaking in that way. But the acts of ballot initiation
are qualitatively different than acts of engaging in the First
Amendment dialog of circulation or advocation. Angle v. Miller, __
F.3d __, 2012 WL 833901*7 & n.5 (9th Cir.
Mar. 14, 2012) (citing Meyer, 486 U.S. at 424-25) ("There is no First
Amendment right to place an initiative on the ballot.")
The Power of the Initiative Is Reserved to the People of California
"The power of the citizen initiative has, since its inception, enjoyed a highly protected status in California." Perry v. Schwarzenegger, 628 F.3d 1191, 1197 (9th Cir. 2011). Under California's constitutional form of government, "All political power is inherent in the people." Cal. Const. art. II, § 1; Schwarzenegger, 628 F.3d at 1196. While the state legislature passes most laws, the people of California have retained for themselves the power to pass laws and amend their Constitution. Cal. Const. art. IV, § 1; Schwarzenegger, 628 F.3d at 1196 ("the sovereign people's initiative power is considered to be a fundamental right."). The state constitution makes clear that this initiative power belongs to people. Neither corporations nor unincorporated associations are mentioned. Cf. Citizens United, 130 S. Ct. at 972 (Stevens, J., concurring and dissenting in part) ("Corporations . . . are not themselves members of 'We the People' by whom and for whom our Constitution was established."). "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt them or reject them." Cal. Const. art. II, § 8 (emphasis added); Schwarzenegger, 628 F.3d at 1196. The Supreme Court of California describes the initiative power held by California citizens:
The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900's. Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them.
Assoc. Home Builders etc., Inc. v. City of Livermore, 18 Cal. 3d 582, 591-92 (1976) (citations omitted); see also Costa v. Superior Court, 37 Cal. 4th 986, 1008-09 (2006) (describing the initiative power of California electors). Just last year, the California Supreme Court described the state's initiative power as a power distinctly reserved to "people" or "electors:"
Article II, section 1 of the California Constitution proclaims: "All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require." As this court noted in Strauss: "This provision originated in one of the initial sections of the Declaration of Rights contained in California's first Constitution (Cal. Const. of 1849, art. I, § 2), and reflects a basic precept of our governmental system: that the people have the constitutional right to alter or reform their government."
Although California's original 1849 Constitution declared that "all political power is inherent in the people," it was not until 60 years later - in 1911 - that the California Constitution was amended to afford the voters of California the authority to directly propose and adopt state constitutional amendments and statutory provisions through the initiative power.
Perry v. Brown, 52 Cal. 4th 1116 (2011) (emphasis in original) (citations omitted). That is not to say that corporations and associations may not promote, discuss, debate, underwrite, or advocate for or against a ballot measure. But the position of official initiative proponent is a special role springing from and confined by state law. As Perry points out, "[u]nder these and related statutory provisions, the official proponents of an initiative measure are recognized as having a distinct role - involving both authority and responsibilities that differ from other supporters of the measure . . . ." Id. (emphasis added).
For example, one would rightly expect the Governor and Attorney General to defend a California law passed by popular initiative vote. But if for some unforseen reason no public defense is mounted, it is only the official proponents who have standing to defend the initiative in court. Perry v. Brown, __ F.3d __, 2012 WL 372713 at *2, *9 (9th Cir. Feb. 7, 2012) ("we do know that California law confers on 'initiative sponsors' the authority 'to defend, in lieu of public officials, the constitutionality of initiatives made law of the State'") (quoting Perry v. Brown, 52 Cal. 4th 1116).
Like the State, the people of Chula Vista in adopting a governing charter, reserved to themselves, as electors, the power of the city ballot initiative. In view of the self-governance model adopted by the citizens of Chula Vista and of California, the elector requirement makes good public policy sense, since the act of proposing a ballot initiative is the first step in an act of law-making. The State argues, and Perry recognizes, that there are several legislation-related examples where the actors must be electors and thus natural persons. For example, only electors are allowed to vote. Only electors are allowed to run for office. Only electors may sign nominating papers necessary to qualify candidates for the ballot. Only electors (as elected legislators) are allowed to introduce bills to the legislature. Thus, it is entirely consistent that only a natural person elector may be an official ballot initiative proponent.
Plaintiffs do not come to terms with the idea that the natural person citizens of Chula Vista may constitutionally reserve to themselves the power to make law, for their argument overlooks the essence of self-government. Brown, 2012 WL 372713 at *10 ("The People of California are largely free to structure their system of governance as they choose."). Permitting a corporation or association to be a ballot initiative proponent could lead to local laws being proposed by foreigners unready to contribute to the city or bear the responsibility of citizenship. Worse, corporations with assets, operations, or shareholders located outside the city, state, or country might propose initiatives adversely affecting the welfare of citizens of Chula Vista, in order to gain a business advantage elsewhere. Likewise, associations of people who live and work in other locales, could propose laws to their own advantage or the disadvantage of Chula Vistans. Even harmless or well-meant initiatives, could drown out the legislative ideas of the City's citizens. By requiring proponents to be electors, Chula Vista protects its initiative process from becoming a tool of foreigners and artificial entities. That is a choice the people of the City of Chula Vista may freely make without running afoul of the First Amendment.
Proposing a Ballot Initiative is Part of a Legislative Process
The State of California points out in its brief that "the submission of an initiative petition is the first step in a legislative process." According to the State, "because an initiative petition is a legislative document, it is legitimately limited to members of the legislative body, in this case the electorate."*fn9 Id. The California Supreme Court underscores the distinction between an official proponent and all other supporters of a ballot measure. "[T]he official proponents of an initiative measure are recognized as having a distinct role - involving both authority and responsibilities that differ from other supporters of the measure." Perry, 52 Cal. 4th 1116; see also S.F. Forty-Niners v. Nishoika, 75 Cal. App. 4th 637, 648 (1999) ("The initiative petition with its notice of intention is not a handbill or campaign flyer -- it is an official election document . . . . It is the constitutionally and legislatively sanctioned method by which an election is obtained on a given proposal.").
States are allowed "significant flexibility" in designing their own initiative systems. Doe v. Reed, 130 S. Ct. 2811, 2818 (2010) ("To the extent a regulation concerns the effect of a particular activity in that process, the government will be afforded substantial latitude to enforce that regulation."). In this case, the elector requirement is a reasonable state restriction on who may officially energize the ballot initiative machinery. "These mechanisms of direct democracy are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action." Id. at 2827 (Sotomayor, J., concurring). "As the Court properly recognizes, each of these structural decisions inevitably affects -- at least to some degree -- the individual's right to speak about political issues and to associate with others for political ends." Id. at 2827-28 (citations and internal quotations omitted). "Regulations of this nature, however, stand a step removed from the communicative aspect of petitioning, and the ability of the States to impose them can scarcely be doubted." Id. (citations and internal quotations omitted). The elector (or natural person) requirement is premised upon the distinction between an elector who proposes a measure, and all other persons who may evaluate and advocate for or against its passage. It is a step removed from restrictions on speech and debate. It is a rational, reasonable, and constitutional choice by the people of Chula Vista acting in their sovereign capacity, to fashion rules for lawmaking by popular initiative. Consequently, the restriction does not trench on the Plaintiffs' First Amendment right to otherwise engage in core political speech.
Moreover, the elector requirement is not subject to strict scrutiny, as Plaintiffs assert. If Chula Vista Charter § 903 restricted core political speech, it would need a compelling interest and it would need to be narrowly tailored to achieve that interest. However, the preferred protections for core political speech are out of place in the context of ballot initiative mechanics. Serving in the position of an official ballot initiative proponent is not pure speech. It is a legislative act. But, even assuming for the sake of argument, that serving as an official proponent is speech to some degree, it is speech a large step removed from the core communicative aspect of circulating a petition and publicly advocating for its passage or defeat. It is speech much closer to the mechanics of the ballot initiative process.
"It is by no means necessary for a State to prove" that measures to control the mechanics of the ballot initiative process "are narrowly tailored to its interests." Reed, 130 S. Ct. at 2827 (Sotomayor, J., concurring) (citing Celebrezze, 460 U.S. at 788). "To require that every voting, ballot, and campaign regulation be narrowly tailored to serve a compelling interest 'would tie the hands of States seeking to assure that elections are operated equitably and efficiently.'" Buckley v. Am. Const. Law Found. ("Buckley II"), 525 U.S. 182, 206 (1999) (Thomas, J., concurring) (quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)). Thus, strict scrutiny is not the appropriate test for the elector requirement. Instead, it is a regulation for which the Supreme Court recognizes that states and municipalities are given leeway. It this case, the elector requirement is a rational, reasonable, and necessary measure to protect Chula Vista's form of self-government. But, it is not the end of the matter.
Plaintiffs offer another argument against the requirement that a proponent be a natural person, again relying on Citizens United. They argue that by not permitting corporations and associations to act as official proponents, the natural person requirement forces these non-natural persons to speak by proxy through the mouths of their members. The Achilles' heel of this contention is that the argument assumes in the first place that the First Amendment grants corporations and associations the right to officially propose a ballot initiative. As discussed above, however, Chula Vista and California reserve only to electors the power to engage the machinery of lawmaking by ballot initiative. Since an elector must be a natural person and resident, and since corporations and associations are not natural persons and may not be residents, the speech-by-proxy concept does not fit. An association may perhaps persuade one of its members or a corporation may persuade an employee to propose a ballot initiative. But ultimately it is the natural person's right and choice to be an official proponent.
Plaintiffs also argue that the elector requirement creates an impermissible unconstitutional condition by forcing corporations and associations to choose between two protected rights:
Chula Vista Citizens 'may either engage in the protected political speech inherent in initiative petitions by revealing one of their members as the proponent of their initiative, or they may allow their members to associate without being revealed to the government. They may not, however, exercise both their right to speak and their right to privacy in their associations.'
Like the ill-fitting speech-by-proxy argument, however, this argument also relies on the premise that an association has a right to officially propose a ballot initiative. Once again, however, that right is permissibly reserved to natural person electors. Neither corporations nor unincorporated associations have the right to engage in the "speech" of officially proposing a ballot measure.
To sum up, since California and Chula Vista utilize the ballot initiative as a method of making law, and each restrict law-makers to natural person electors rather than artificial person associations and corporations, this Court holds that the elector requirement is constitutional.
B. THE OFFICIAL PROPONENT NAME DISCLOSURE REQUIREMENT
During the process of proposing and qualifying an initiative for a Chula Vista election, the name of the official proponent is required to be disclosed at three times. First, at the filing of the Notice of Intent to Circulate a Petition. Second, during the newspaper publication of the Notice of Intent. Third, when the copies of the Notice of Intent are circulated for voter signatures. The Plaintiff proponents do not object to the disclosure requirement in the first two instances. Indeed, they have already disclosed their names in the process of qualifying Proposition G for the ballot.
Instead, Plaintiffs challenge the mandatory disclosure of their names as official proponents on the text of the proposition used by circulators to solicit voter signatures.*fn10 In so doing, Plaintiffs raise another question of first impression. They contend that the identity requirement defeats their First Amendment right to engage in anonymous political speech. Once again, this Court disagrees. The First Amendment right to speak anonymously is not absolute. In the context of a ballot initiative, the burden on speech is weighed against the People's need for disclosure. As will be discussed below, in this case, the burden on Plaintiffs' speech is slight and the interests of the government representing the People are substantial.
The individual Plaintiffs, Lori Kneebone and Larry Breitfelder, were the official proponents of Proposition G. They took the necessary steps to place their ballot initiative before the voters of the City of Chula Vista in a city-wide election. The individual Plaintiffs have the requisite Article III standing to challenge the proponent name disclosure requirement.*fn11
To understand Plaintiffs' argument, a review of the statutory scheme is helpful. Section 903 of the Chula Vista City Charter governs local ballot initiatives. It also incorporates provisions of the California Elections Code.*fn12 The California Elections Code, in turn, addresses in sections 9202, 9205, and 9207, the process by which a ballot initiative may be placed on the ballot. Election Code § 9202(a) describes the first step and requires a proponent to sign his or her name to a "Notice of Intent to Circulate Petition."*fn13 The next step requires publication of the Notice of Intent in a newspaper of general circulation. Cal. Elec. Code § 9205. The third step requires circulating copies of the Notice of Intent and gathering signatures from registered voters.*fn14
Anonymous Speech Under the First Amendment
Kneebone and Breitfelder argue that they enjoy a First Amendment right to engage in anonymous political speech. They contend the third step name disclosure requirement trenches on that right. Plaintiffs are correct that the First Amendment right to free speech includes a right to speak anonymously. This is especially true for political speech. The Supreme Court observes, Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation -- and their ideas from suppression -- at the hand of an intolerant society.
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995) (citations omitted). In that regard, the Ninth Circuit notes that protection for anonymous speech under the First Amendment "was first articulated a half-century ago in the context of political speech," if not earlier. In re Anonymous Online Speakers, 661 F.3d 1168, 1172 (9th Cir. 2011) (citing Talley v. California, 362 U.S. 60, 64-65 (1960)). Anonymous political speech in the United States actually goes back much farther than 50 years. "Undoubtedly the most famous pieces of anonymous American political advocacy are The Federalist Papers, penned by James Madison, Alexander Hamilton, and John Jay, but published under the pseudonym 'Publius.'" Id. at 1172-73 (citing McIntyre, 514 U.S. at 344 n.6). Nevertheless, the government may place limits on anonymous speech. "The right to speak, whether anonymously or otherwise, is not unlimited, however, and the degree of scrutiny varies depending on the circumstances and the type of speech at issue." Id. (citing Meyer v. Grant, 486 U.S. 414 (1988)).
For their part, Plaintiffs rely heavily on McIntyre and ACLU of Nev. v. Heller, 378 F.3d 979 (9th Cir. 2004). They argue that under McIntyre and Heller, the First Amendment protects their right to anonymously propose a ballot initiative. However, while both cases involved ballot initiatives, neither McIntyre nor Heller consider whether an official proponent of a ballot initiative enjoys a right to anonymity. McIntyre concerned "an individual leafleteer who, within her local community, spoke her mind, but sometimes not her name," and was fined $100 for omitting her name from her leaflets. 514 U.S. at 358 (Ginsburg, J., concurring). Heller, likewise concerned an organization whose members wished to distribute anonymous flyers about an existing ballot initiative. 378 F.3d 979; see also Hatchett v. Barland, __ F. Supp. 2d __, 2011 WL 4336740 (E.D. Wis. Sept. 14, 2011) (individual sanctioned for mailing anonymous postcards about existing ballot measures).
Neither McIntyre nor Heller address the question raised by this case:
whether a proponent of a ballot initiative may remove his or her name
from copies of the notice of intent circulated by signature gatherers,
and still qualify the measure for an election. Some cases have focused
on those who do the footwork of circulating petitions and gathering
signatures.*fn15 Other cases have
considered anonymous speech for ballot initiative signers.*fn16
And still other cases have evaluated disclosure requirements
for those who contribute money to a ballot initiative campaign and
those who spend money advocating for and against ballot
initiatives.*fn17 However, no decision cited by the
parties or found by this Court has recognized a First Amendment right
to anonymously propose a ballot measure or, having recognized such a
right weighed a state's competing interests in requiring the public
disclosure of the proponent's identity.
Plaintiffs next argue that the issue decided in Buckley v. Am. Const. Law Found. ("Buckley II"), 525 U.S. 182 (1999) and Washington Initiatives Now! v. Rippie ("WIN"), 213 F.3d 1132 (9th Cir. 2000) -- "whether government may ban anonymous petition circulation" -- is the same as in this case. But the issue is not the same. Buckley II and WIN deal with the rights of workers who gather initiative signatures. Circulators of ballot initiatives have a recognized First Amendment right to maintain their own anonymity at the point in time when a circulator engages in speech with a person whose signature he is soliciting. On this basis, Buckley II struck down a Colorado law that required circulators to wear a name badge. 525 U.S. at 198-99. Buckley II was troubled by the fact that a circulator was required to disclose his identity at a time "when reaction to the circulator's message is immediate and 'may be the most intense, emotional, and unreasoned.'" Id. at 199. The circulator was thus exposed to a "risk of 'heat of the moment' harassment." Id. WIN's facts are closer, but still concern only circulators.*fn18
But Plaintiffs Kneebone and Breitfelder are not circulators; they are the official proponents. As is common with ballot initiative campaigns, Plaintiffs hired professional circulators to gather signatures. As a result, these Plaintiffs were not exposed to the same risk of "heat of the moment" harassment faced by circulators in Buckley II. Since Plaintiffs here are not circulators, and the difference is significant, neither Buckley II nor WIN is controlling.
Limits on Anonymous Speech
The Ninth Circuit has said that "the right to speak, whether anonymously or otherwise, is not unlimited." In re Anonymous Online Speakers, 661 F.3d at 1173. It is important to point out that the proponent name disclosure requirement is not a prohibition on speech and does not criminalize speech. Instead, it requires Breitfelder and Kneebone to disclose their identity as official proponents of the legislation. As the Supreme Court observes, disclosure requirements "may burden the ability to speak [or not speak], but they . . . do not prevent anyone from speaking." Citizens United, 130 S. Ct. at 914 (citations omitted). For testing the constitutionality of a disclosure requirement, the government burden on speech must pass exacting scrutiny, "meaning that it is substantially related to a sufficiently important governmental interest." Human Life of Wash. v. Brumsickle, 624 F.3d 990, 1005 (9th Cir. 2010), cert. denied, 131 S. Ct. 1477 (2011); see also Reed, 130 S. Ct. at 2818 (exacting scrutiny applies where a statute imposes disclosure requirement rather than a prohibition on speech).
California argues that it has two important interests related to the disclosure requirement that outweigh a proponent's right to anonymity: (1) an electoral informational interest; and (2) an interest in preserving the integrity of the electoral process.*fn19
California's Informational Interest
In its brief, California describes its informational interest: "because the right to propose initiative legislation is limited to electors, there is an important interest in providing information as to who is formally proposing legislation." Much has been written recently about a state's informational interest in connection with ballot measure campaigns. Most recently, the Ninth Circuit observed, "[w]e have repeatedly recognized an important (and even compelling) informational interest in requiring ballot measure committees to disclose information about contributions." Family PAC v. McKeena, __ F.3d __, 2012 WL 266111 at *3 (9th Cir. Jan. 31, 2012) (emphasis added). In Human Life, the Ninth Circuit described at length the informational interests at play when it comes to ballot initiatives. 624 F.3d 990 passim. The Ninth Circuit explained, "[p]roviding information to the electorate is vital to the efficient functioning of the marketplace of ideas, and thus to advancing the democratic objectives underlying the First Amendment . . . . Thus, by revealing information about the contributors to and participants in public discourse and debate, disclosure laws help ensure that voters have the facts they need to evaluate the various messages competing for their attention." Id. at 1005. Human Life highlighted the need to know who is speaking during a ballot initiative election. The court remarked, "we have frequently reiterated . . . that in the cacophony of political communications through which California voters must pick out meaningful and accurate messages . . . being able to evaluate who is doing the talking is of great importance." Id. at 1006 (internal quotation marks and citations omitted). In this way, Human Life reiterates that a state's informational interest in "who is doing the talking" is substantial for a ballot measure campaign.
[C]itizens, acting as lawmakers, have an interest in knowing who is lobbying for their vote . . . . Indeed, the provision of this information is particularly critical in the ballot measure context, especially when one considers that ballot-measure language is typically confusing, and the long-term policy ramifications of the ballot measure are often unknown. If nothing else, knowing who backs or opposes a given initiative will give voters a pretty good idea of who stands to benefit from the legislation.
Id. at 1007-08 (internal quotation marks and citations omitted).
Human Life evaluated Washington's burden on ballot measure spending, rather than non-financial advocacy. While not directly on point, the case illustrates the notion that a state's informational interest may be just as strong in the context of a ballot measure campaign as it is in a candidate campaign for public office. As one court recently observed, "[t]he Ninth Circuit . . . has held that the informational interest applies even more strongly in the context of ballot initiatives." Justice v. Hosemann, __ F. Supp. 2d __, 2011 WL 5326057, at *10 (N.D. Miss. Nov. 3, 2011).
To reiterate, Plaintiffs argue that McIntyre should control and that the right to political anonymity outweighs California's informational interest. But, the Ninth Circuit has traveled down a parallel road before. In California Pro-Life Council v. Getman, the Ninth Circuit explained, "[l]ike the Court in McIntyre, [the plaintiff] asks us to disregard California's informational interest in disclosure and hold that ballot-measure advocacy is absolutely protected speech. We think McIntyre is distinguishable from the case at bar, as the McIntyre Court itself observed." 328 F.3d 1088, 1104 (9th Cir. 2003). Getman described California's informational interest:
Voters act as legislators in the ballot-measure context, and interest groups and individuals advocating a measure's defeat or passage act as lobbyists; both groups aim at pressuring the public to pass or defeat legislation. We think Californians, as lawmakers, have an interest in knowing who is lobbying for their vote, just as members of Congress may require lobbyists to disclose who is paying for the lobbyists' services and how much.
Id. at 1106 (citation omitted). California voters, as lawmakers, have a substantial informational interest in knowing the identity of those soliciting their votes. California voters, as lawmakers, also have a substantial interest in knowing the identity of the official sponsors of a ballot initiative who seek their signature approval to put the measure to a public vote. Cf. Cal. Pro-Life Council v. Randolph, 507 F.3d 1172, 1179 n.8 (9th Cir. 2007) ("We note that in the context of disclosure requirements, the government's interest in providing the electorate with information related to election and ballot issues is well-established."). It may be true, as Plaintiffs argue, that "the best test of truth is the power to get itself accepted in the competition of the market." See McIntyre, 514 U.S. at 347 n.11. And it may be that "[p]eople are intelligent enough to evaluate the source of an anonymous writing" and can "evaluate its anonymity along with its message." Id. But it is also true that, "[o]f course, the identity of the source is helpful in evaluating ideas." Id.
California has made its own decision. For purposes of ballot measure signature gathering, the State has decided that it is in the best interest of its voters (as petition signers) to know the name of a ballot measure's official proponent. California has a legitimate and substantial interest in fostering an informed and educated electorate. See Caruso v. Yamhill Cnty., 422 F.3d 848, 861 (9th Cir. 2005), cert. denied, 126 S. Ct. 1786 (2006). Section 9207, by requiring the circulated petition to bear a copy of the Notice of Intent, which in turn discloses the names of the official proponents, is directly related to that informational interest. Section 9207 thus plays a role by which California voters may inform themselves in exercising control of their government (i.e., determining whether an issue has enough merit to be placed on the election ballot). Because the disclosure requirement that the Plaintiffs identify themselves as official proponents during the gathering of signatures is substantially related to a sufficiently important governmental interest, the statutory scheme survives exacting scrutiny.
California's Interest In the Integrity of the Electoral Process
California also asserts an interest in preserving the integrity of the electoral process. The State explains that this interest is not limited to preventing fraud, but "extends more generally to promoting transparency and accountability in the electoral process." The interest is similar to Washington's interest recognized by the Supreme Court as important in Reed. Reed found, "[t]he State's interest in preserving the integrity of the electoral process is undoubtedly important." 130 S. Ct. at 2819; see also Buckley II, 525 U.S. at 191 ("States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process.").
Plaintiffs point out that questions as to whether the name of the proponent is fraudulent or authentic, could be answered by the first two required proponent name disclosures in the California scheme. But the disclosure requirement goes to preserving the electoral process in another way. As discussed previously, the right to act as an official proponent is limited to electors. An elector is a living natural person, residing within the political subdivision, and able to register to vote. By requiring a proponent's name to appear on the circulated copy of the ballot initiative, the local voters who consider the initiative may recognize whether the proponent qualifies as an elector. Thus, the disclosure requirement also serves the government interest in "promoting transparency and accountability in the electoral process." Reed, 130 S. Ct. at 2819-20.
Because California's informational interest and its interest in preserving the integrity of the electoral process is served by the proponent identity disclosure requirement on circulated petitions, and because the dual interests reflect the seriousness of the actual burden on the First Amendment rights of official proponents, the statutes survive exacting scrutiny on their face.
The Burden As Applied to Plaintiffs' Speech
Plaintiffs also attempt to demonstrate the burden as applied specifically to Kneebone and Breitfelder. Unfortunately, the evidence demonstrates only a slight burden on Kneebone's and Breitfelder's right to speak anonymously.
The Supreme Court explains that "those resisting disclosure can prevail under the First Amendment if they can show 'a reasonable probability that the compelled disclosure of personal information will subject them to threats, harassment, or reprisals from either Government officials or private parties.'" Reed, 130 S. Ct. at 2820 (quoting Buckley v. Valeo, 424 U.S. 1, 74 (1976)) (emphasis added); see also Family PAC, 2012 WL 266111 at *4 ("The Court explained that in an atypical case presenting a bona fide threat of harassment or retaliation, an aggrieved party could seek an exemption from compelled disclosure by making a sufficient evidentiary showing in an as-applied challenge.").
Plaintiffs offer scant support for their as-applied challenge. Both Kneebone and Breitfelder willingly disclosed their identity in two prior disclosures: on the initial Notice of Intent filing and later on the published copy of the Notice of Intent. Theses actions by Kneebone and Breitfelder undercut the claim of a severe burden on their right to anonymous speech. At the same time, absent is evidence of any actual threats or harassment. Complicating the evidentiary presentation is the fact that both Kneebone and Breitfelder were active in other public ways during the campaign.
Rather than maintaining a low public profile consistent with a desire for anonymity, both Kneebone and Breitfelder participated fully in public debate over Proposition G. For example, both proponents appeared before the Chula Vista City Council on two occasions to speak in support of the ballot initiative. Those meetings were broadcast on public television. Then, Kneebone and Breitfelder signed the "Rebuttal to the Argument Against Proposition G" that was printed in the pre-election Voter Information pamphlet. That pamphlet is mailed to all registered voters. Kneebone's name and photograph also appeared on two election mailers in support of the ballot initiative sent to residents of Chula Vista. And Kneebone and Breitfelder featured in a video in support of the ballot initiative that was posted on YouTube and on the "Yes on G" website. At the same time, Breitfelder was president of The Chula Vista Taxpayers Association which publicly supported Proposition G and sent out mailers to voters to that effect. As part of his own campaign for City Councilman he told the League of Women Voters that he was an advocate for Proposition
G. He also expressed his support for the ballot initiative on his campaign website and in his campaign literature.
For the as-applied challenge, the strongest evidence is Kneebone's own statement that she feared harassment. In her statement she says that she feared harassment from union members after revealing her name on the circulated petition. However, while she may have feared harassment, she has not shown instances of actual harassment. Without more, she is unable to show that there is a reasonable probability of future harassment. Even if she were able to show actual harassment, Plaintiffs would still have to draw a connection between the harassment suffered and the disclosure of her name on the circulated petition. That task would be complicated by Kneebone's various other public statements.
The as-applied showing for Breitfelder, though different, is no stronger. Breitfelder believes he was subjected to "reprisals" during his own campaign for City Councilman as a result of being identified as a proponent of the ballot initiative. Breitfelder, in more ways than Kneebone, placed himself in the middle of the public political discourse over Proposition G. Breitfelder was a candidate for public office. He identifies the "reprisals" as being negative election campaign literature highlighting his own candidacy as anti-union. The campaign literature*fn20 reads:
Pat's Opponent, Larry Breitfelder is: -An anti-worker activist and was the spokesperson for the discriminatory Yes on G campaign -Backed by anti-union contractors who are driving down workplace standards and benefits. Larry Breitfelder, The Anti-Union Candidate.
Rather than a "reprisal" in the sense Reed uses the term, this type of political advertisement is commonplace and core political speech. As detailed above, however, Breitfelder was active in supporting Proposition G in many ways, including tying his support to his own candidacy for office. Consequently, accurate speech by a candidate's political opponents does not qualify as a reprisal. And even if it did, it is not clearly tied to the proponent name disclosure requirement.
Further undercutting the as-applied challenge is the evidence that Kneebone and Breitfelder objected to disclosure based on reasons other than a desire to speak anonymously. They explained in depositions that the reason they did not want their names on the circulated petition was not a desire to maintain anonymity, or a desire that Proposition G be judged solely on its merits. Quite the opposite. They both explained that they wanted voters to know that the "correct" sponsor of the ballot initiative was the Association of Builders and Contractors, Inc. and the Chula Vista Citizens for Jobs and Fair Competition. For example, Kneebone testified,*fn21
Waters: My question there, Ms. Kneebone, is: It appears to me that you have taken numerous opportunities to make it public in Chula Vista that you support Proposition G. Why -- what is your objection to -- how is it that you want to remain anonymous?
Kneebone: I guess I would still have to go back to the point where I just felt it was more important that it be known that it was that Chula Vista Citizens group through the ABC than just me.
Waters: Okay. But would it be fair to say, then, it's not so much that you wanted to be anonymous, but you thought that somebody -- some other organization's name ought to be there than you?
Waters: And the other organizations would be ABC and Chula Vista
Kneebone: Yes. Similarly, Breitfelder testified,*fn22
Johnson: Okay. Would you have preferred that Chula Vista Citizens or ABC had been named proponent of Proposition G?
Breitfelder: At that point, yes.
Johnson: At what point are you referring to?
Breitfelder: During the petition phase, I believe that should have been the focus.
Johnson: So on the circulated version --
Breitfelder: Circulated version.
Johnson: -- you would have preferred the organizations that were the financial backers? . . .
Breitfelder: Yes. At that point in the process, I believe it would have been better and most important -- or most appropriate and most beneficial for the community for the Chula Vista organizations to have been identified.
This testimony suggests that Kneebone and Breitfelder were not interested in engaging in anonymous political speech so much as they were interested in voters being informed of the names of the organizational sponsors of Proposition G. Consequently, Plaintiffs have not made the particularized showing required for an as-applied challenge. Plaintiffs' hurdle is not high, but it is a hurdle. Reed, 130 S. Ct. at 2823 (Alito, J., concurring) (citations omitted) ("speakers must be able to obtain an as-applied exemption without clearing a high evidentiary hurdle"). Plaintiffs need show "only a reasonable probability that disclosure will lead to threats, harassment, or reprisals." Id. (citations omitted).
In other words, Plaintiffs could have presented specific evidence of past or present harassment, a pattern of threats or specific manifestations of public hostility, or an array of evidence to meet the standard. Id. (citations omitted). But Plaintiffs' evidence does not meet the standard. The one instance of a possible reprisal came in the form of a campaign advertisement describing Mr. Breitfelder as "anti-union" and a supporter of Proposition G. That evidence is ambiguous. The stances taken by Breitfelder in his role as a candidate for public office were publicized in a myriad of other ways and open to public comment.*fn23 In contrast, there is no evidence that one or more of the thousands of registered Chula Vista voters who were approached to sign the circulated petition saw the names of Breitfelder and Kneebone and threatened or harassed the proponents. In addition, the deposition testimony undercuts Plaintiffs' First Amendment claim that their desire for anonymity rested upon a desire that the public consider only the merits of the proposition without prejudgment. The deposition testimony shows that what the proponents really wanted is better disclosure so that the public would have more information with which to judge the merits of the proposition. In essence, Breitfelder and Kneebone wanted to satisfy the same informational interest identified by the government.
To sum up, the California disclosure requirement imposed only slight burdens on Plaintiffs' right to engage in anonymous political speech, as applied to them. Therefore, the as-applied challenge fails.
C. THE VAGUENESS CHALLENGES
Plaintiffs and the State also move for summary judgment on Plaintiffs' vagueness challenges in Counts 3, 4, and 5. "[W]e insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly . . . . [W]here a vague statute 'abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (citations omitted). Nevertheless, "'perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.'" United States v. Williams, 128 S. Ct. 1830, 1845 (2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)).
"Proponent" and "Publish" Are Not Vague Terms
In Count 3, Plaintiffs attack as unconstitutionally vague, the term "proponent" and "publish" as used in California Elections Code § 342. They argue that because a "proponent" is defined as "the person or persons who publish a notice or intention to circulate petitions," then an association may be a proponent when an association publishes the notice. They argue, that publishing means paying for the publication. They then contend that since Chula Vista Citizens actually paid for the publishing of the notice of intention for Proposition G, then Chula Vista Citizens may be the official proponent.
This Court discerns no such ambiguity or vagueness. A statute that implicates free speech rights "will survive a facial challenge so long as it is clear what the statute proscribes in the vast majority of its intended applications Humanitarian Law Project v. U.S. Treasury Dept., 578 F.3d 1133, 1146 (9th Cir. 2009) (citations omitted). Men of ordinary intelligence would understand that the general "proponent" language of the state provision dealing with local initiatives, is clarified by the specific "elector" language found in Chula Vista Charter § 903. In this way, the state statutes simply leave to each municipality to choose which persons may propose a local initiative. Read in context, California Elections Code 342 is not susceptible to Plaintiffs' reading that an association or incorporation may become an official proponent merely by paying for cost of publication. It is only by tearing the terms out of their overall context that ambiguity may be created. The terms are not unconstitutionally vague.
"Bear a Copy" Is Not a Vague Phrase
In Count 4, Plaintiffs attack as unconstitutionally vague the "bear a copy" requirement contained in California Elections Code § 9207. When the proponents of a ballot initiative begin the process of circulating the petitions, Section 9207 requires each section of the petition to "bear a copy of the notice of intention." They argue that § 9207 is not clear whether a copy must include the names of the official proponents. They argue that California Elections Code § 9202 permits the circulated copy to be less than an exact copy and that a substantially correct copy, but a copy without proponents names, should qualify.
Again, this Court discerns no such ambiguity or vagueness. Section 9202 contains language to be used for the introduction of the notice of intent. That introductory language need not be exact. Section 9202's leniency in the creation of the notice of intent cannot be reasonably imported into § 9207 and read as permitting something less than a complete copy of the notice of intent. Even if it could, it cannot be reasonably argued that the omission of the important element of the proponents' names would be in substantial compliance with the bear-a-copy language of § 9207. "A law is unconstitutionally vague if it fails to provide a reasonable opportunity to know what conduct is prohibited, or is so indefinite as to allow arbitrary and discriminatory enforcement." Human Life, 624 F.3d at 1019 (citations omitted). The phrase is not susceptible to arbitrary enforcement.
"In Substantially the Following Form" Is Not a Vague Phrase
In Count 5, Plaintiffs attack as unconstitutionally vague the phrase "in substantially the following form" requirement contained in California Elections Code § 9202.*fn24 Plaintiffs argue that people of reasonable intelligence cannot discern what is meant by the phrase "in substantially the following form." This Court discerns little ambiguity and none sufficient to find the statute void for vagueness. The statutory terms attacked by Plaintiffs as being vague ("proponent," "copy," and "substantially in the following form") are more precise than the sorts of terms that the Supreme Court has previously struck down as vague and they do not expose Plaintiffs to criminal or civil sanctions. Cf., Human Life, 624 F.3d at 1020 n.10 (disclosure law imposed civil penalties and criminal penalties). The Supreme Court explains, "[w]e have in the past struck down statutes that tied criminal culpability to whether the defendant's conduct was 'annoying' or 'indecent' -- wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings." Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2720 (2010) (citations omitted). Because the statutory terms at issue here are clear in their application to Plaintiffs' conduct and are not tied to criminal culpability, the vagueness challenges fail. Id.
The elector (or natural person) requirement to be an official ballot initiative proponent is a constitutionally permissible restriction for self-government. Likewise, the official proponent name disclosure requirement on the circulated petitions is a permissible burden on the right to anonymous speech. Finally, none of the statutory terms challenged are so vague as to offend the Constitution. Therefore, Plaintiffs' Motion for Summary Judgment is denied. Defendants' cross-motion for summary judgment is granted. Judgment shall be entered for the Defendants on all Counts.
IT IS SO ORDERED.