Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Soltysik v. Padilla

United States Court of Appeals, Ninth Circuit

December 3, 2018

Emidio Soltysik, Plaintiff-Appellant,
v.
Alex Padilla, official capacity as Secretary of State; Dean Logan, official capacity as Registrar-Recorder/County Clerk of the County of Los Angeles, Defendants-Appellees, and Californians to Defend the Open Primary, Intervenor-Defendant-Appellee.

          Argued and Submitted February 8, 2018 Pasadena, California

          Appeal 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, for Plaintiff-Appellant.

          Peter 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, Circuit Judges.

         SUMMARY[**]

         Civil Rights

         The 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.

         California 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.

         In 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.

         Dissenting 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.

          OPINION

          OWENS, CIRCUIT JUDGE.

         Emidio 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 opinion.

         I. LEGAL, FACTUAL, AND PROCEDURAL BACKGROUND

         A. California's "Party Preference: None" Ballot Requirement

         The 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.

         Under 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.[1] 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, http://www.sos.ca.gov/elections/political-parties/qual ified-political-parties/ (last visited Nov. 19, 2018).

         Since 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. § 359.5(a).

         Although 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. Id.

         To be 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.[2] Id. §§ 8002.5(a)(2), 13105(a)(2).

         Legislative 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 costs").

         B. Soltysik

         Soltysik 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.

         C. Procedural Background

         Soltysik 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.[3] 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 claim.[4]

         The 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.

         As to 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 protection."

         As to 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 again.

         Finally, 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.

         Soltysik timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

         II. STANDARD OF REVIEW

         We 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).

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.