709 F.3d 867
9th Cir.2013Background
- California requires nomination papers with signatures; circulators must be voters in the candidate’s district.
- Sections 8066 and 8451 mandate circulators be district voters and serve only in that district.
- Plaintiffs (Libertarian Party of LA County, Brown, Agrella) sue Secretary Bowen under 42 U.S.C. § 1983 for pre-enforcement relief seeking to enjoin the residency requirement.
- Plaintiffs fear enforcement and criminal penalties, and seek to gather signatures across districts; they have refrained from doing so.
- Court held plaintiffs have standing; they reversed and remanded for merits, noting credible threats and concrete plans to violate the rule demonstrate injury in fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do plaintiffs have standing to challenge the residency requirement? | Agrella and others have concrete plans to violate the rule. | No immediate enforcement history; no concrete threat established. | Yes, plaintiffs have standing due to concrete plan and credible threat. |
| Did the Secretary convey a specific threat of enforcement? | Secretary's instructions about circulator qualifications create a credible threat. | Instructions alone do not prove enforcement threat. | Yes, explicit instructions and historical context show a specific enforcement threat. |
| Is past enforcement history required to sustain standing? | Non-enforcement does not defeat standing given other factors. | Past enforcement history is a factor but not dispositive. | Not dispositive; standing remains based on concrete plan and threat. |
| Does the self-censorship injury from chilling First Amendment rights support standing? | Chilling effect constitutes injury when fear of prosecution exists. | Not necessary if other factors show injury. | Court recognizes self-censorship as a valid injury supporting standing. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires injury in fact; credible threat satisfies injury)
- Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (1979) (standing where there is a credible threat of injury)
- Human Life of Washington Inc. v. Brumsickle, 624 F.3d 990 (9th Cir. 2010) (self-censorship as cognizable First Amendment injury)
- McCormack v. Hiedeman, 694 F.3d 1004 (9th Cir. 2012) (three-factor test to evaluate threat of enforcement)
- Thomas v. Anchorage Equal Rights Comm., 220 F.3d 1134 (9th Cir. 2000 (en banc)) (vagueness of intent to violate as insufficient for standing absent concrete plan)
- ACLU of Nev. v. Heller, 378 F.3d 979 (9th Cir. 2004) (adequate standing where plan to circulate measures is concrete)
- Poe v. Ullman, 367 U.S. 497 (1961) (standing and pre-enforcement challenges)
- Dem. Cent. Comm. v. Eu, 826 F.2d 814 (9th Cir. 1987) (constitutional/standing context for political suffering)
- Allen v. Wright, 468 U.S. 737 (1984) (standing requires injury in fact and causation)
- Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002 (9th Cir. 2003) (standing in First Amendment challenges)