Eggers v. Evnen

48 F.4th 561

Crista EGGERS; Nebraskans for Medical Marijuana, NMM, Plaintiffs - Appellees

v.Robert B. EVNEN, Defendant - Appellant

State of Arkansas ; State of Alabama ; State of Alaska ; State of Florida ; State of Idaho; State of Indiana; State of Louisiana; State of Missouri; State of Montana; State of North Dakota; State of Ohio; State of Oklahoma; State of South Carolina; State of Utah; State of West Virginia; Nebraska Agricultural Legal Foundation; Nebraska Cattlemen; Nebraska Corn Growers Association; Nebraska Farm Bureau Federation ; Nebraska Pork Producers Association ; Nebraska Soybean Association ; Nebraska State Dairy Association; Nebraska Wheat Growers Association ; We Support Agriculture, Amici on Behalf of Appellant(s)

Raise the Wage Nebraska; Anthony B. Schutz; Steven R. Dunbar; Nebraska Civic Engagement Table; Common Cause Nebraska, Amici on Behalf of Appellee(s)

No. 22-2268

United States Court of Appeals, Eighth Circuit.

Submitted: August 9, 2022

Filed: August 31, 2022

Counsel who represented the appellant was James A. Campbell, of Lincoln, NE., Jennifer A. Huxoll, of Lincoln, NE., and Justin J. Hall, of Lincoln, NE.

Counsel who represented the appellees was Mindy Rush Chipman, of Lincoln, NE., Jane Seu, of Lincoln, NE., Daniel J. Gutman, of Omaha, NE., and Regina E. Schneider, of Omaha, NE.

The following attorney appeared on the amicus brief of the States of Arkansas, Alabama, Alaska, Florida, Idaho, Indiana, Louisiana, Missouri, Montana, North Dakota, Ohio, Oklahoma, South Carolina, Utah and West Virginia; Dylan L. Jacobs, AAG, of Little Rock, AR.

The following attorneys appeared on the amicus brief of Raise the Wage Nebraska; Marnie A. Jensen, of Omaha, NE., and Sydney Hayes, of Omaha, NE.

The following attorney appeared on the amicus brief of Nebraska Farm Bureau Federation, Nebraska Agricultural Legal Foundation, Nebraska Cattlemen, Nebraska Pork Producers Association, Nebraska Soybean Association, Nebraska Wheat Growers Association, Nebraska Corn Growers Association, Nebraska State Dairy Association, and We Support Agriculture; Sheila A. Bentzen, of Lincoln, NE.

The following attorneys appeared on the amicus brief of Anthony B. Shutz, Steven R. Dunbar, Nebraska Civic Engagement Table and Common Cause Nebraska; Nathan D. Clark, of Lincoln, NE., and Megan N. Mikolajczyk, of Lincoln, NE.

Before GRUENDER, KELLY, and STRAS, Circuit Judges.

GRUENDER, Circuit Judge.

Crista Eggers and Nebraskans for Medical Marijuana ("NMM"), a registered Nebraska ballot campaign committee, challenged as contrary to the Equal Protection Clause a provision in the Nebraska constitution that establishes a signature requirement for ballot initiatives. The district court entered a preliminary injunction barring the Nebraska Secretary of State from enforcing the provision. The Secretary appeals, and we reverse.

I.

The Nebraska constitution gives voters the power directly to enact statutes and constitutional amendments placed on the general-election ballot. Neb. Const. art. III, § 2. To qualify for placement on the ballot, a proposed statute or constitutional amendment must satisfy two conditions. First, at least seven percent (in the case of a proposed statute) or ten percent (in the case of a proposed constitutional amendment) of registered voters must sign a ballot petition. Id. Second, the signatories must "be so distributed as to include five percent of the registered voters of each of two-fifths of the counties of the state." Id.

This case concerns the second requirement (the "signature distribution requirement"). On September 2, 2021, NMM initiated petitions to place proposals to legalize marijuana for medical and recreational purposes on the November 2022 ballot. Eggers is a paid contractor, volunteer, and sponsor of NMM. On May 16, 2022, Eggers and NMM sued the Nebraska Secretary of State in federal court. As relevant here, the plaintiffs claimed that the signature distribution requirement violated Eggers's rights under the Equal Protection Clause because it devalued her signature relative to the signatures of citizens in less populous counties. The plaintiffs sought a declaration that the signature distribution requirement is unconstitutional on its face and an injunction against its enforcement.

The same day they filed their complaint, the plaintiffs moved for injunctive relief. The district court granted the motion and entered a preliminary injunction barring the Secretary from enforcing the signature distribution requirement. Invoking this court's interlocutory jurisdiction under 28 U.S.C. § 1292(a)(1), the Secretary appealed. We granted the Secretary's request for a stay pending appeal and the plaintiffs’ request for expedited briefing, and we now turn to the merits of the appeal.

II.

We review the grant of a preliminary injunction for abuse of discretion, examining factual findings for clear error and legal conclusions de novo . Sleep Number Corp. v. Young , 33 F.4th 1012, 1016 (8th Cir. 2022). The factors that determine whether the movant is entitled to a preliminary injunction are "(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that the movant will succeed on the merits; and (4) the public interest." Id. (brackets omitted). The balance-of-harms and public-interest factors "merge when the Government"—or, in this case, a state official in his official capacity—"is the [nonmoving] party." See Nken v. Holder , 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (establishing this principle in the stay context); We the Patriots USA, Inc. v. Hochul , 17 F.4th 266, 295 (2d Cir. 2021) (applying the principle to preliminary injunctions); Roman v. Wolf , 977 F.3d 935, 940-41 (9th Cir. 2020) (same); Swain v. Junior , 961 F.3d 1276, 1293 (11th Cir. 2020) (same); Karem v. Trump , 960 F.3d 656, 668 (D.C. Cir. 2020) (same).

We begin with the probability-of-success factor. Ordinarily, the movant must show only a "fair chance" of success on the merits. Rodgers v. Bryant , 942 F.3d 451, 455 (8th Cir. 2019). But "where a preliminary injunction is sought to enjoin ... government action based on presumptively reasoned democratic processes," the movant must show that he "is likely to prevail on the merits." Planned Parenthood Minn., N.D., S.D. v. Rounds , 530 F.3d 724, 732-33 (8th Cir. 2008) (en banc). State and federal statutes are the output of "presumptively reasoned democratic processes." Id. at 732 & n.6. We need not decide here whether the same is true of the signature distribution requirement, a state constitutional provision, because the plaintiffs have not shown even a "fair chance" of success. See id. at 732-33 (characterizing the likely-to-prevail standard as "more rigorous" than the fair-chance standard).

An equal-protection challenge to a state law triggers rational-basis scrutiny unless the law "draw[s] a suspect classification or restrict[s] a fundamental right." Birchansky v. Clabaugh , 955 F.3d 751, 757 (8th Cir. 2020). The plaintiffs do not claim that the signature distribution requirement draws a suspect classification. But they do contend that the signature distribution requirement restricts a fundamental right.

The plaintiffs’ contention is foreclosed by circuit precedent. No right can qualify as "fundamental" for purposes of equal-protection analysis unless it is guaranteed by the U.S. Constitution. See id. at 756 (adopting for purposes of equal-protection analysis the definition of "fundamental right" in Washington v. Glucksberg , 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ); Glucksberg , 521 U.S. at 720-21, 117 S.Ct. 2258 (indicating that all rights satisfying this definition are guaranteed by the U.S. Constitution). And we have repeatedly stated that the right to place initiatives on the state ballot "is not a right guaranteed by the United States Constitution, but is a right created by state law." Miller v. Thurston , 967 F.3d 727, 737 (8th Cir. 2020) ; Dobrovolny v. Moore , 126 F.3d 1111, 1113 (8th Cir. 1997) ; accord Jones v. Markiewicz-Qualkinbush , 892 F.3d 935, 937-38 (7th Cir. 2018) ; Kendall v. Balcerzak , 650 F.3d 515, 523-24 (4th Cir. 2011) ; Molinari v. Bloomberg , 564 F.3d 587, 597 (2d Cir. 2009) ; Save Palisade FruitLands v. Todd , 279 F.3d 1204, 1210-11 (10th Cir. 2002) ; Biddulph v. Mortham , 89 F.3d 1491, 1500 (11th Cir. 1996) ; Taxpayers United for Assessment Cuts v. Austin , 994 F.2d 291, 296 (6th Cir. 1993) ; cf. John Doe No. 1 v. Reed , 561 U.S. 186, 212, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010) (Sotomayor, J., concurring) ("[Initiatives and referenda] are not compelled by the Federal Constitution. It is instead up to the people of each State ... to decide whether and how to permit legislation by popular action. States enjoy considerable leeway ... to specify the requirements for obtaining ballot access ...." (internal quotation marks omitted)). Contra Idaho Coal. United for Bears v. Cenarrusa , 342 F.3d 1073, 1077 & n.7 (9th Cir. 2003). In fact, we have applied this principle to the very provision at issue here, distinguishing the "right to vote in an election of political representatives," which we recognized is "fundamental," from the right burdened by the signature distribution requirement "to participate in [placing] initiatives and referenda" on the ballot, which we held is "state-created" and thus "nonfundamental." See Bernbeck v. Gale , 829 F.3d 643, 645, 648 n.4 (8th Cir. 2016) (citing Dobrovolny , 126 F.3d at 1113 ) (relying on this distinction to defend the court's jurisdictional holding).

Because the signature distribution requirement "does not draw a suspect classification or restrict a fundamental right," the plaintiffs must show that it cannot survive even rational-basis scrutiny. See Birchansky , 955 F.3d at 757. Rational-basis scrutiny is a "highly deferential" standard, DeCrow v. N.D....