and Submitted February 8, 2018 Pasadena, California
from the United States District Court for the Central
District of California D.C. No. 2:15-cv-07916-AB-GJS
André Birotte, Jr., District Judge, Presiding.
Brendan Hamme (argued), ACLU Foundation of Southern
California, Santa Ana, California; Kevin J. Minnick (argued),
Alexandra S. Rubow, Maximillian W. Hirsch, and Zachary
Faigen, Skadden Arps Slate Meagher & Flom LLP and
Affiliates, Los Angeles, California; Peter J. Eliasberg, ACLU
Foundation of Southern California, Los Angeles, California,
H. Chang (argued) Deputy Attorney General; Marc A.
LeForestier, Supervising Deputy Attorney; Douglas J. Woods,
Senior Assistant Attorney General; Xavier Becerra, Attorney
General; Office of the Attorney General, San Francisco,
California; for Defendant-Appellee.
Christopher E. Skinnell (argued) and Marguerite Mary Leoni,
Nielsen Merksamer Parrinello Gross & Leoni LLP, San
Rafael, California, for Intervenor-Defendant-Appellee.
Before: William A. Fletcher, Johnnie B. Rawlinson, [*] and John B. Owens,
panel reversed the district court's dismissal of an
action brought pursuant to 42 U.S.C. § 1983 by a
candidate for public office in California challenging the
California Elections Code, which mandates that the primary
ballot list his party preference as "None" when in
reality he prefers the Socialist Party USA.
permits a candidate's preference for a statutory defined
qualified political party to appear on election
ballots, but does not allow a candidate's preference for
a nonqualified political party to appear on ballots
and instead indicates the candidate's party preference in
such situations as "None." The Socialist Party USA
is not one of California's six qualified parties.
analyzing California's "Party Preference: None"
requirement, the panel determined that while the burden the
California statutes imposed on plaintiff's First and
Fourteenth Amendment rights, at least as pleaded, was not
severe, it was more than slight, warranting scrutiny that was
neither strict nor wholly deferential. The panel held that
California, at this very early stage of the litigation,
failed to demonstrate as a matter of law why its ballot must
describe plaintiff as having no party preference when in fact
he prefers the Socialist Party USA. The panel held that
although the primary purported justification for the
statutes-avoiding voter confusion-was an important government
interest, it was unclear how the requirement that plaintiff
be listed as having no party preference, advanced that goal.
The panel therefore reversed the district court's
dismissal of the action for failure to state a claim, and
remanded for proceedings consistent with its opinion.
in part, Judge Rawlinson stated that because any burden on
associational rights was slight and the restriction was
viewpoint neutral, she was persuaded that existing case
authority overwhelmingly militated in favor of upholding the
challenged California provision.
Soltysik is a candidate for public office in California. He
appeals from the district court's dismissal of his
challenge to the California Elections Code, which mandates
that the primary ballot list his party preference as
"None" when in reality he prefers the Socialist
Party USA. Because California, at this very early stage of
the litigation, has failed to demonstrate as a matter of law
why its ballot must describe Soltysik as having no party
preference when in fact he prefers the Socialist Party USA,
we reverse and remand for proceedings consistent with this
LEGAL, FACTUAL, AND PROCEDURAL BACKGROUND
California's "Party Preference: None" Ballot
California Elections Code defines "party"
narrowly-a house gathering with Kid 'n Play, a toga
get-together at the Delta House, or a climactic fight between
John Matrix and Bennett do not qualify.
California law, "party" means a "political
party or organization that has qualified for participation in
any primary or presidential general election." Cal.
Elec. Code § 338. A political body may qualify as a
"party" if, at least 135 days before a primary
election, (1) 0.33 percent or more of all voters registered
at least 154 days before the primary have declared the
political body as their partisan preference, or (2) a number
of voters equaling at least ten percent of all votes cast in
the most recent gubernatorial election sign and file a
petition declaring that they prefer the would-be party and
desire to have it participate in the upcoming primary
election. Id. § 5100(b)-(c). A political body
that does not satisfy either of these qualifications is not a
"party" for California election-law
purposes. Id. Six political bodies
currently qualify as "parties" in California: the
American Independent Party, the Democratic Party, the Green
Party, the Libertarian Party, the Peace and Freedom Party,
and the Republican Party. Qualified Political
Parties, Cal. Sec'y of State,
ified-political-parties/ (last visited Nov. 19, 2018).
2010, rather than a traditional party-nomination system,
California has used a "top two" open primary system
for "voter-nominated" offices, which include
governor, lieutenant governor, U.S. senator, member of the
U.S. House of Representatives, California state senator, and
the office Soltysik sought, member of the California State
Assembly. Cal. Const. art. II, § 5; Cal. Elec. Code
§ 359.5. Under this system, any candidate who has paid
the filing fee and submitted a declaration of candidacy with
the signed support of a specified number of registered-voter
nominators appears on the State's primary-election
ballot, regardless of political affiliation. Cal. Elec. Code
§§ 8020, 8040-41, 8062. Any voter, regardless of
political affiliation, may vote for any candidate. Cal.
Const. art. II, § 5(a). Political parties, qualified or
not, no longer nominate candidates to represent them on the
ballot. Cal. Elec. Code § 359.5(a). And a
candidate's statement that she prefers a particular
party, either in her declaration of candidacy or on the
ballot itself, does not make her an official nominee of that
party and does not constitute an endorsement by that party.
Id. § 8002.5(d). The two primary candidates
with the most votes, regardless of political affiliation,
proceed to compete in the general election. Id.
California has abandoned the traditional party-nomination
system for voter-nominated offices, it has not dropped party
labels from the primary ballot. Indeed, it provides
a space for a candidate for a voter-nominated office to
announce his preference for a particular party-but only if
that party is a qualified one. Cal. Elec. Code §§
8002.5, 13105(a). For example, if Arnold Schwarzenegger ran
as a Republican for a voter-nominated office, his name would
appear on the ballot as "Arnold Schwarzenegger Party
Preference: Republican." See id. §
13105(a)(1). Candidates like Soltysik, however, who do not
prefer a qualified political party-that is, who are
affiliated with a nonqualified political body or who
are not affiliated with any political body-receive the
designation "Party Preference: None" after their
names. Id. § 13105(a)(2). Candidates not
wishing to disclose a preference also receive this label.
clear, voter-nominated candidates themselves do not directly
choose which label-"Party Preference: [qualified
party]" or "Party Preference: None"-will
appear next to their names on the primary ballot. Rather, in
filling out the required declaration of candidacy, a
candidate must indicate her party preference as it appears on
her most recent voter-registration form. Cal. Elec. Code
§ 8002.5(a). If the candidate disclosed a preference on
that form for a qualified party, then she must check
the box for the "Party Preference: [qualified
party]" label, which will appear beside her name on the
ballot. Id. §§ 8002.5(a)(1), 13105(a)(1).
If the candidate disclosed a preference on the registration
form for a nonqualified party, or declined to
disclose any party preference, then she must check
the box for the "Party Preference: None" label,
which will appear beside her name on the
ballot. Id. §§ 8002.5(a)(2),
materials suggest that the California Legislature enacted
this party-preference regime primarily to lessen the costs of
printing primary ballots by, among other things, reducing the
language required to describe candidates' party
preferences and thereby shortening the ballots. See,
e.g., Cal. S. Rules Comm., Senate Floor Analysis of A.B.
1413, 2011-2012 Reg. Sess., at 4-5 (Jan. 23, 2012)
("This bill shortens the format in which a
candidate's party preference is displayed on the ballot .
. . to give county election officials greater flexibility to
format their ballots."); Cal. Assemb. Comm. on Elections
& Redistricting, Analysis of A.B. 1413, 2011-2012 Reg.
Sess., at 4 (Jan. 25, 2012) (same); id. at 3 (noting
testimony of county elections officials that "that
certain ballot printing requirements created an unnecessary
burden, and could significantly increase election
is the California State Chair and National Male Co-Chair of
the Socialist Party USA, which is not one of California's
six qualified parties. In 2014, Soltysik ran for the
California State Assembly and campaigned as a member of the
Socialist Party USA. But because the Socialist Party USA is
not a "qualified" party under California law, the
primary ballot listed "Party Preference: None" next
to his name. See Cal. Elec. Code § 13105(a)(2).
Soltysik told voters on the campaign trail that "Party
Preference: None" would accompany his name on the
ballot, but he alleges that the label nonetheless
"caused confusion among the limited number of voters to
whom he was able to speak and . . . countless more."
Soltysik did not proceed to the general election.
filed suit under 42 U.S.C. § 1983 against California
Secretary of State Alex Padilla and Los Angeles County
Registrar-Recorder/County Clerk Dean Logan in their official
capacities. Soltysik alleges that Sections 8002.5 and
13105 of the California Elections Code (the
"statutes") violate his (1) First and Fourteenth
Amendment rights to freedom of association and equal
protection; (2) First Amendment right to freedom from
viewpoint discrimination; and (3) First Amendment right to
freedom from compelled speech. He seeks a declaration that
the statutes are unconstitutional both facially and as
applied to him, and a permanent injunction against their
enforcement. Californians to Defend the Open Primary
("CADOP"), a nonprofit corporation that advocates
for California's open-primary system, intervened as a
defendant. Secretary Padilla and CADOP then filed motions to
dismiss Soltysik's lawsuit for failure to state a
district court applied the Anderson/Burdick
balancing test developed for constitutional challenges to
election laws and granted the motions to dismiss with
prejudice. See generally Anderson v. Celebrezze, 460
U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428
(1992). The court rejected Soltysik's contention that
Anderson/Burdick balancing is inherently
"fact-intensive" such that the court should allow
the parties to proceed to discovery.
Soltysik's associational claim, the district court
concluded as a matter of law that the statutes'
party-label restriction was not a "severe" burden,
reasoning that the statutes neither barred ballot access to
any candidate nor infringed on a candidate's ability to
associate with nonqualified political bodies. The court also
noted that candidates lack the right to use the ballot
"to convey a political message or even a voter
cue." The district court then considered the State's
purported interests in (1) "protecting the integrity,
fairness, and efficiency of [its] ballots and election
processes"; (2) "prevent[ing] 'frivolous or
fraudulent candidacies'"; (3) "establish[ing]
minimum qualifications for political parties to participate
in the election and to appear on the ballot to avoid
confusion, deception, and frustration of the democratic
process"; and (4) preventing "sloganeering
designations." The district court did not mention
election costs. The district court concluded that the
State's interests were, as a matter of law,
"sufficiently weighty to justify the slight burden that
the party designation restrictions . . . place[d] on
[Soltysik's] rights to association and equal
Soltysik's viewpoint-discrimination claim, the district
court rejected Soltysik's argument that the ballot is a
limited public forum such that strict scrutiny applies.
Applying the Anderson/Burdick balancing
test again, the court held that the statutes were
"viewpoint neutral" because the requirements of
Section 5100, which govern the difference between qualified
and nonqualified parties, regulated all parties regardless of
viewpoint and were thus themselves neutral. Concluding there
was no burden "by way of viewpoint discrimination,"
the district court did not consider the State's interests
the district court rejected Soltysik's compelled-speech
claim for two reasons. First, the court reasoned, the label
"Party Preference: None" was accurate in the
context of the California Elections Code, since
"party" refers only to a qualified party,
which the Socialist Party USA is not. Therefore, the court
said, "it is accurate to describe [Soltysik's]
'Party Preference' as 'None.'" Second,
the court continued, because ballots were not "candidate
speech," the party preference label was not
"compelled speech." And with no "restriction
on [Soltysik's] right to be free of compelled
speech," reexamination of the State's interests was,
in the court's view, unnecessary.
timely appealed. We have jurisdiction under 28 U.S.C. §
STANDARD OF REVIEW
review de novo a dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). Carlin v.
DairyAmerica, Inc., 705 F.3d 856, 866 (9th Cir. 2013).
We "accept the plaintiffs' allegations as true and
construe them in the light most favorable to plaintiffs"
and will reverse unless the complaint fails to "state a
claim to relief that is plausible on its face."
Id. at 866-67 (citations omitted).