BRIAN MECINAS; CAROLYN VASKO; DNC SERVICES CORPORATION, DBA Democratic National Committee; DSCC; PRIORITIES USA; PATTI SERRANO v. KATIE HOBBS, the Arizona Secretary of State
No. 20-16301
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Filed April 8, 2022
D.C. No. 2:19-cv-05547-DJH
Plaintiffs-Appellants,
v.
Defendant-Appellee.
OPINION
Appeal from the United States District Court for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted January 14, 2022
Pasadena, California
Before: Johnnie B. Rawlinson and Paul J. Watford, Circuit Judges, and Jed S. Rakoff,* District Judge.
Opinion by Judge Rakoff
Civil Rights
The panel reversed the district court‘s dismissal of a complaint challenging Arizona‘s Ballot Order Statute,
Plaintiffs, three Arizona voters and three organizations, including the Democratic National Committee, brought this action against the Arizona Secretary of State alleging that the Ballot Order Statute violates the First and Fourteenth Amendments because it gives candidates the benefit of appearing first on the ballot, not on the basis of some politically neutral ordering (such as alphabetically or by lot), but on the basis of political affiliation. Plaintiffs allege that, for most of the elections that have occurred in Arizona since the Ballot Order Statute was enacted, the Republican Party‘s candidates have appeared in the top position in the great majority of Arizona‘s general election ballots solely as a result of their political affiliation. Plaintiffs allege that the candidate whose name appears first on a ballot in a contested race receives the benefit resulting from a recognized psychological phenomenon known as “position bias” or the “primacy effect.”
The panel held that plaintiffs’ claims did not present a nonjusticiable political question and that the district court overlooked the narrow scope of the Supreme Court‘s decision in Rucho v. Common Cause, 139 S. Ct. 2484, 2491 (2019). Adjudicating a challenge to a ballot order statute did not present the sort of intractable issues that arise in partisan gerrymandering cases.
The panel rejected the Secretary‘s argument that the district court‘s dismissal could be affirmed on the alternative ground that she was not the proper defendant under Article III or the Eleventh Amendment. Finally, the panel held that plaintiffs had stated a claim sufficient to survive a motion to dismiss. The magnitude of the asserted injury was a function of the “primacy effect,” presenting factual questions that could not be resolved on a motion to dismiss.
Abha Khanna (argued), Elias Law Group LLP, Seattle, Washington; Marc Elias, Elisabeth C. Frost, and John M. Geise, Elias Law Group LLP, Washington, D.C.; for Plaintiffs-Appellants.
Kristen Michelle Yost (argued), Coppersmith Brockelman LLP, Phoenix, Arizona; Kara M. Karlson, Assistant Attorney General; Linley Wilson, Deputy Solicitor General; Office of the Attorney General, Phoenix, Arizona; for Defendant-Appellee.
RAKOFF, District Judge:
OPINION
In Arizona the state‘s Ballot Order Statute,
Without addressing the merits of Plaintiffs’ argument, the district court dismissed their complaint at the pleading stage based on jurisdictional challenges raised by the Secretary, viz., that Plaintiffs lack standing and that the complaint presents a nonjusticiable political question. Plaintiffs now appeal, arguing that the district court erred in dismissing their suit on these grounds. We agree. Specifically, we hold that at least one of the plaintiffs—the DNC—has standing to bring this suit and that Plaintiffs’ claims do not present a nonjusticiable political question. We also reject the Secretary‘s argument that the district court‘s dismissal can be affirmed on the alternative ground that she is not the proper defendant under Article III or the Eleventh Amendment. Finally, we hold that Plaintiffs have stated a claim sufficient to survive a motion to dismiss. We therefore reverse the dismissal of the complaint and remand for further proceedings.
BACKGROUND
In 1979, the Arizona legislature enacted
Under this statutory organization scheme, the candidates of the political party that received the most votes in the most recent gubernatorial election in that county appear first in all races and on all ballots in that county. According to Plaintiffs’ complaint, the result of these rules has been that in all but a handful of general elections since the statute was enacted the vast majority of Arizona‘s voting population received a ballot with the Republican Party‘s candidates in the top position. The complaint further alleges that a candidate whose name appears first on a ballot in a contested race receives an unfair electoral advantage based on political affiliation—specifically, the benefit resulting from a recognized psychological phenomenon known as “position bias” or the “primacy effect.”
Plaintiffs filed this action on November 1, 2019. Shortly thereafter, Plaintiffs amended their complaint and moved for a preliminary injunction in advance of the November 2020 election in Arizona. The Secretary opposed the preliminary injunction motion and filed a separate motion to dismiss.
In March 2020, the district court held a two-day evidentiary hearing on Plaintiffs’ preliminary injunction motion—at which Plaintiffs’ two experts, Dr. Jonathan Rodden and Dr. Jon Krosnick, and the Secretary‘s expert, Mr. Sean Trende, testified regarding the statistical modeling of the “primacy effect“—and heard oral argument on both the motion for preliminary injunction and the motion to
On June 25, 2020, the district court granted the motion to dismiss with prejudice, holding that Plaintiffs lack standing and, independently, that their claims present nonjusticiable political questions. The court did not reach the merits of Plaintiffs’ claims.
Plaintiffs timely noticed an appeal and moved for an injunction pending appeal, which the district court denied. With the 2020 election approaching, Plaintiffs moved this Court for an emergency injunction pending appeal. That motion was denied by the motions Panel in a brief order. Briefing and oral argument on Plaintiffs’ appeal followed.
STANDARD OF REVIEW
“We review de novo dismissal for lack of subject matter jurisdiction and may affirm on any basis supported by the record.” Zuress v. Donley, 606 F.3d 1249, 1252 (9th Cir. 2010).1 When “deciding standing at the pleading stage, and for purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.”
It is true that there is an exception to this general rule where the defendant brings a motion under
Here, the Secretary‘s motion was based solely on the allegations in Plaintiffs’ amended complaint. It thus did not convert the motion to dismiss into a factual motion. And while the district court held an evidentiary hearing on the Plaintiff‘s preliminary injunction, there is nothing in the record to indicate that the court, sua sponte, converted it into
DISCUSSION
A. Standing
Article III of the U.S. Constitution limits federal court jurisdiction to “Cases” and “Controversies.”
To have standing, plaintiffs must establish (1) that they have suffered an injury in fact, (2) that their injury is fairly traceable to a defendant‘s conduct, and (3) that their injury would likely be redressed by a favorable decision. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Each of these elements must be supported “with the manner and degree of evidence required at the successive stages of the
The district court held that none of Plaintiffs has standing to mount a facial attack on the Ballot Order Statute. Plaintiffs do not appeal the district court‘s holding that the individual voters lack standing, arguing only that the organizational plaintiffs—that is, the DNC, the DSCC, and Priorities—have standing. In a suit with multiple plaintiffs, generally only one plaintiff need have standing for the suit to proceed. See Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993). We find that the DNC has sufficiently established standing to proceed beyond the pleading stage. We do not address the standing of the other plaintiffs.
1. Injury in Fact
To meet the first element of standing, a plaintiff‘s “injury in fact” must be “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. Of particular relevance here is the requirement that the injury be “particularized,” rather than a “generalized grievance.” Id. at 560, 575. “The fact that a harm is widely shared does not necessarily render it a generalized grievance.” Sisley v. U.S. Drug Enf‘t Admin., 11 F.4th 1029, 1034 (9th Cir. 2021). “Rather, a grievance too ‘generalized’ for standing purposes is one characterized by its abstract and indefinite nature—for example, harm to the common concern for obedience to law.” Id.
Plaintiffs argue that the DNC has satisfied injury in fact on the basis of its “competitive standing,” explaining that the Ballot Order Statute “frustrat[es] its mission and efforts to elect Democratic Party candidates” by allegedly diverting
We first recognized the doctrine of competitive standing in Owen v. Mulligan, 640 F.2d 1130 (9th Cir. 1981). In that case, a candidate and “Republic[an] Committee members” sued the U.S. Postal Service for giving an opponent a cheaper mailing rate, in violation of its own regulations and a previous injunction. Id. at 1132–33. The Postal Service argued that the “potential loss of an election” was “too remote, speculative, and unredressable to confer standing.” Id. at 1132. Rejecting that argument, we recognized both the candidate‘s and the party officials’ standing to sue “to prevent their opponent from gaining an unfair advantage in the election process through abuses of mail preferences which arguably promote his electoral prospects.” Id. at 1133.
We next addressed competitive standing in Drake v. Obama, 664 F.3d 774, 778 (9th Cir. 2011), a case involving a challenge to President Obama‘s eligibility to serve as President brought by a group of plaintiffs that included Presidential candidates. There, we reaffirmed Owen‘s holding that, as relevant to this case, the “potential loss of an election [is] an injury-in-fact sufficient to give ... party officials standing” to challenge an offending election regulation. Id. at 783. Ultimately, we held that the candidate-plaintiffs lacked standing because, by the time they had filed their suit, the election had already passed and they were thus no longer candidates. Id. at 783-84. However, we distinguished the facts of that case from one in which a plaintiff—like Plaintiffs here—challenged “an ongoing practice that would have produced an unfair advantage in the next election.” Id. at 783 n.3.
Citing Owen and Drake, Plaintiffs argue that, like the party committee members in Owen, the DNC, as the
This principle is neither novel nor unique to the realm of the electoral. Competitive standing recognizes the injury that results from being forced to participate in an “illegally structure[d] competitive environment,” Shays v. Fed. Election Comm‘n, 414 F.3d 76, 87 (D.C. Cir. 2005), a type of harm that we have identified in a variety of different contexts, see, e.g., City of Los Angeles v. Barr, 929 F.3d 1163, 1173 (9th Cir. 2019) (“[The] inability to compete on an even playing field constitutes a concrete and particularized injury.“); Preston v. Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984) (“[W]hen challenged agency conduct allegedly renders a person unable to fairly compete for some benefit, that person has suffered a sufficient ‘injury in fact’ and has standing....“). Accordingly, a number of our sister Circuits have come to the same conclusion as we do here in similar cases involving ballot order statutes. See Pavek v. Donald J. Trump for President, Inc., 967 F.3d 905, 907 (8th Cir. 2020) (per curiam) (political committees, including the
Contrary to these established principles, the district court rejected the DNC‘s competitive standing theory, relying principally on our decision in Townley v. Miller, 722 F.3d 1128 (9th Cir. 2013). In that case, the Nevada Republican Party, along with other plaintiffs, challenged a statute mandating the appearance of a “none of these candidates” (“NOTC“) option on the ballot, which the Party alleged would cause its candidates to receive fewer votes and thus harm its chances in an election. Id. at 1135. “Assuming without deciding” that the Republican Party had satisfied “standing‘s injury-in-fact requirement” on the basis of its alleged competitive harm, we held that standing failed for the separate reason that the “causation/traceability and redressability requirements” were not met. Id. at 1135–36. The reason was simple: The Party did not challenge the appearance of the NOTC option on the ballot (which it conceded was legal) but only that votes for that option were given no legal effect. Id. at 1136. Because the alleged siphoning effect would give rise to injury regardless of whether the option was given legal effect or not, the challenged aspect of the statute was “immaterial to plaintiffs’ alleged competitive injury.” Id.
Further, because the injury is the burden of being forced to compete under the weight of a state-imposed disadvantage, we reject the Secretary‘s argument that “Plaintiffs must show“—or rather, allege, given the current procedural posture—“that the primacy effect has changed (or will imminently change) the actual outcome of a partisan election.” The Secretary suggests that, absent the allegation of a changed outcome, “Plaintiffs’ purported injury remains ‘conjectural’ or ‘hypothetical,‘” citing in support the Supreme Court‘s decision in Gill v. Whitford, 138 S. Ct. 1916 (2018). But Gill offers no support for that position. In that case, the Supreme Court held that, in order to establish standing to challenge an allegedly unconstitutional gerrymander on the basis of a voter-dilution theory, a voter-plaintiff must show that he or she resides in a gerrymandered district, explaining that absent such a showing the voter lacks a sufficiently “particularized” injury. Id. at 1926, 1934. It
We thus conclude that the DNC has sufficiently pled an injury in fact.
2. Traceability and Redressability
The Secretary also argues that even if Plaintiffs could demonstrate an injury in fact, they cannot meet the two elements of standing not addressed by the district court—traceability and redressability. See Lujan, 504 U.S. at 560-61. “[T]he ‘fairly traceable’ and ‘redressability’ components for standing overlap and are ‘two facets of a single causation requirement.‘” Washington Env‘t Council v. Bellon, 732 F.3d 1131, 1146 (9th Cir. 2013) (quoting Allen, 468 U.S. at 753 n.19). However, they are distinct in that traceability “examines the connection between the alleged misconduct and injury, whereas redressability analyzes the connection between the alleged injury and requested relief.” Id.
To establish traceability, “there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Lujan, 504 U.S. at 560. The Secretary argues that Plaintiffs cannot establish traceability because neither the challenged section of the Ballot Order Statute,
However, while the county supervisors print the ballots under
Redressability is satisfied so long as the requested remedy “would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.” Renee v. Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012). Because, as noted above, the Secretary is statutorily delegated the authority to “prescribe rules” for “producing [and] distributing” ballots in accordance with the Statute,
Thus, at least with regard to the DNC, Plaintiffs have satisfied all three elements of standing.
B. Political Question
In addition to dismissing for lack of standing, the district court held that Plaintiffs’ suit was nonjusticiable under the
In finding Plaintiffs’ challenge to the Ballot Order Statute nonjusticiable for lack of manageable standards, the district court—adopting the Eleventh Circuit‘s reasoning in Jacobson, 974 F.3d at 1260-63—invoked the Supreme Court‘s recent decision in Rucho v. Common Cause, 139 S. Ct. 2484, 2491 (2019), a case involving challenges to two states’ congressional districting maps as unconstitutional partisan gerrymanders. There, the Court concluded that, given its precedent allowing legislatures “to take partisan interests into account when drawing district lines,” adjudicating just “how much” partisan gerrymandering “is too much” presents questions of “fairness” not suitable for judicial resolution. Id. at 2497, 2500–01. Relying on this language, the district court held that the present case was similarly nonjusticiable, characterizing Plaintiffs’ complaint
But, in so holding, the district court overlooked the narrow scope of the Rucho decision, which the Supreme Court explicitly linked to its “struggle[] without success over the past several decades to discern judicially manageable standards for deciding” partisan gerrymandering claims. Id. at 2491. The Court explicitly distinguished partisan gerrymandering claims as “more difficult to adjudicate” than other election-related challenges, namely districting challenges grounded in “one-person, one-vote” violations and racial discrimination. Id. at 2497. As such, “[n]othing about the Court‘s language ... suggests that the holding in Rucho is applicable outside the context of partisan gerrymandering claims.” Nelson, 12 F.4th at 387.6
Indeed, adjudicating a challenge to a ballot order statute does not present the sort of intractable issues that arise in partisan gerrymandering cases. While cases like Rucho require “reallocating power and influence between political parties” through complicated exercises in (literal) line-
More particularly, there is no reason to conclude that the Supreme Court‘s Rucho opinion “call[s] into question the use of the Anderson[-]Burdick framework,” the constitutional test that “[c]ourts regularly [use to] evaluate and adjudicate disputes regarding the lawfulness of state
As reflected in the Supreme Court‘s use of Anderson-Burdick to adjudicate claims that state election laws unconstitutionally burden political parties’ rights, the test provides precisely the sort of judicially manageable standard that renders a case such as the instant one amenable to adjudication. See, e.g., Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357–64 (1997) (applying test to Minnesota law prohibiting candidates from appearing on ballot as candidate of more than one political party). Because the Anderson-Burdick test is available to review Plaintiffs’ constitutional challenges, we conclude that we can “comfortably employ[] judicially manageable standards” in adjudicating the merits of the claims at issue here. Pavek, 967 F.3d at 907.
We therefore hold that the political question doctrine does not render the merits of this case nonjusticiable.8
C. Eleventh Amendment
The Secretary further argues that even if we disagree with both of the district court‘s jurisdictional holdings, we can nevertheless affirm the dismissal on the ground that Plaintiffs’ suit is barred by Eleventh Amendment immunity. The Eleventh Amendment has been “construed to prohibit federal courts from entertaining suits brought by a state citizen against the state or its instrumentality in the absence of consent.” Culinary Workers Union, Loc. 226 v. Del Papa, 200 F.3d 614, 619 (9th Cir. 1999). However, under Ex parte Young, 209 U.S. 123 (1908), this immunity is subject to an exception for “actions for prospective declaratory or injunctive relief against state officers in their official capacities for their alleged violations of federal law” so long as the state officer has “some connection with enforcement of the act.” Coal. To Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012) (quoting Ex parte Young, 209 U.S. at 157).
The question of whether there is the requisite “connection” between the sued official and the challenged law implicates an analysis that is “closely related—indeed overlapping“—with the traceability and redressability inquiry already discussed. Culinary Workers, 200 F.3d at 619 (quoting Okpalobi v. Foster, 190 F.3d 337, 347 (5th Cir. 1999)); see also Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir. 2004) (noting that the two inquiries share a “common denominator“). Accordingly,
The decision in Mi Familia Vota, however, was premised on a finding that an injunction against the Texas Secretary of State would still leave local officials with enough discretion to prevent meaningful relief, see id. at 467–68, whereas in Arizona, in contrast, the Secretary has clear duties to oversee ballot production, including, as already discussed, through the promulgation of the Manual, which the county officials have no discretion to disregard,
Having decided that Plaintiffs’ suit against the Secretary presents a justiciable case or controversy, we now turn to the merits.
The right to vote is “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). As such, voting is accorded “the most fundamental significance under our constitutional structure.” Burdick, 504 U.S. at 433. But, “[o]n the other hand, the Constitution assigns to the States the duty to regulate elections, and election laws ‘invariably impose some burden upon individual voters.‘” Arizona Democratic Party v. Hobbs, 18 F.4th 1179, 1186 (9th Cir. 2021) (quoting Burdick, 504 U.S. at 433). Moreover, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Id. at 1186–87 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
To balance these competing concerns, the Supreme Court “devised [the Anderson-Burdick test as] a ‘flexible standard’ for assessing laws that regulate elections.” Id. at 1187 (quoting Burdick, 504 U.S. at 434). “This is a sliding scale test, where the more severe the burden, the more compelling the state‘s interest must be.” Soltysik, 910 F.3d at 444. “A law that imposes a ‘severe’ burden on voting rights must meet strict scrutiny.” Hobbs, 18 F.4th at 1187 (quoting Burdick, 504 U.S. at 434). “Lesser burdens, however, trigger less exacting review, and a State‘s ‘important regulatory interests’ will usually be enough to justify ‘reasonable, nondiscriminatory restrictions.‘” Timmons, 520 U.S. at 358 (quoting Burdick, 504 U.S. at 434).
In assessing Plaintiffs’ challenge to the Ballot Order Statute, the first step, as already noted, is to consider “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the
The Secretary urges us to deem “any burden” imposed by the Statute as “negligible” and thus justified by the state‘s interest in “establish[ing] a manageable ballot layout.” But the magnitude of the asserted injury is a function of the “primacy effect,” presenting factual questions that cannot be resolved on a motion to dismiss. See Soltysik, 910 F.3d at 449. For example, the complaint alleged that in the 2020 election cycle, more than “80% of Arizona‘s voters [would] be presented with ballots in which the names of Republican candidates [were] listed first for every single partisan race.” And, as noted, the Arizona Supreme Court has characterized the “distinct advantage” arising from a candidate‘s name appearing at the head of a ballot as a “well-known fact.” Kautenberger, 85 Ariz. at 131. Moreover, even if the burden imposed is, as the Secretary contends, “not severe,” that is
Accordingly, we reverse the district court‘s order and judgment dismissing Plaintiffs’ claims with prejudice and remand for further proceedings consistent with this Opinion.
REVERSED AND REMANDED.