Miracle v. Hobbs, CV-19-04694-PHX-SRB

427 F.Supp.3d 1150

Jessica MIRACLE, et al., Plaintiffs,

v.Katie HOBBS, in her official capacity as Arizona Secretary of State, Defendant.

No. CV-19-04694-PHX-SRB

United States District Court, D. Arizona.

Signed December 16, 2019

Elisabeth C. Frost, Uzoma N. Nkwonta, Pro Hac Vice, Perkins Coie LLP, Washington, DC, Sarah Rae Gonski, Perkins Coie LLP, Phoenix, AZ, for Plaintiffs.

Joseph Eugene LaRue, Kara Karlson, Office of the Attorney General, Phoenix, AZ, for Defendant.

ORDER

Susan R. Bolton, United States District Judge

The Court now considers Plaintiffs'¹ Motion for Preliminary Injunction (Doc. 9 ("MPI")) and Defendant Katie Hobbs ("Defendant")'s Motion to Dismiss (Doc. 16 ("MTD")). Because Plaintiffs' Motion for Preliminary Injunction and Defendant's Motion to Dismiss contain overlapping factual allegations and arguments, the Court considers them together.

I. BACKGROUND

A. Factual Background

The background of this case was summarized in the Court's Order dated September 20, 2019, and is incorporated herein:

The Arizona Constitution confers the right to initiative upon its citizens. Ariz. Const. art IV, pt. 1 § 1. This case concerns the constitutionality of A.R.S. § 19-118(E) (the "Strikeout Law"), which Plaintiffs believe impermissibly burdens that right. (See Doc. 1, Compl. at 1; id. ¶ 4.) The Strikeout Law requires Defendant Arizona Secretary of State ("Defendant") to strike all signatures gathered by an initiative petition circulator if the circulator is subpoenaed to provide evidence in an action regarding petition circulation and fails to appear in court or produce the required documents. A.R.S. § 19-118(E) ; (see Compl. ¶ 1). On July 11, 2019, Plaintiffs filed their Complaint, seeking declaratory and injunctive relief against Defendant. (See Compl.) According to Plaintiffs, "[t]he Strikeout Law abridges and denies [the] core constitutional rights of political speech and association, along with the right to vote or participate meaningfully in the political process," thereby violating the First and Fourteenth Amendments of the U.S. Constitution. (Id. ¶ 1; see id. ¶¶ 79–119.) Plaintiffs argue that "[t]he right to initiative is ingrained in the very core of Arizonans' political rights," and the Strikeout Law improperly conditions the validity of an initiative on the individual circulator's ability to comply with a subpoena. (See id. ¶¶ 2, 5.)

(Doc. 27, 09/20/19 Order at 1–2 (footnotes omitted).)

B. Procedural Background

Plaintiffs filed a Motion for Preliminary Injunction on July 18, 2019. (See MPI.) Defendant filed her Response on August 23. (See Doc. 17, Def.'s Resp. Opposing Pls.' MPI ("MPI Resp.").) Also on August 23, Defendant filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (See MTD; id. at 1.) Plaintiffs filed their Response on September 6. (See Doc. 22, Pls.' Resp. in Opp'n to Def.'s MTD ("MTD Resp").) The Court heard oral argument on Plaintiffs' Motion for Preliminary Injunction and Defendant's Motion to Dismiss on September 25. (See Doc. 28, Minute Entry.)

II. MOTION TO DISMISS

A. Legal Standard

Rule 12(b)(6) dismissal for failure to state a claim can be based on either: (1) the lack of a cognizable legal theory; or (2) insufficient facts to support a cognizable legal claim. Conservation Force v. Salazar , 646 F.3d 1240, 1242 (9th Cir. 2011). In determining whether an asserted claim can be sustained, "[a]ll of the facts alleged in the complaint are presumed true, and the pleadings are construed in the light most favorable to the nonmoving party." Bates v. Mortg. Elec. Registration Sys., Inc. , 694 F.3d 1076, 1080 (9th Cir. 2012). "[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and unlikely.’ " Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Scheuer v. Rhodes , 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) ). Nevertheless, "for a complaint to survive a motion to dismiss, the nonconclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). In other words, the complaint must contain enough factual content "to raise a reasonable expectation that discovery will reveal evidence" of the claim. Twombly , 550 U.S. at 556, 127 S.Ct. 1955.

B. Analysis

1. First Amendment Claim

Citing Meyer v. Grant² and Buckley v. American Constitutional Law Foundation, Inc. ,³ Plaintiffs argue that since circulation of initiative petitions constitutes "core political speech," the Strikeout Law violates the First Amendment. (See MPI at 7–9.) Urging the application of strict scrutiny, Plaintiffs maintain that the State must prove that the Strikeout Law "furthers a compelling interest and is narrowly tailored to achieve that interest." (Id. at 8.) Defendant, however, contends that because the Strikeout Law does not regulate "circulation or advocacy," it does not implicate the First Amendment. (MTD at 8.) Defendant emphasizes that First Amendment jurisprudence "recognizes a crucial distinction" between laws that regulate the communicative conduct of persons advocating a particular message and laws that regulate the procedures by which legislation is enacted. (Id. ) The Strikeout Law, per Defendant, falls into the latter category. Unlike the laws at issue in Meyer and Buckley , which restricted the communicative conduct of petition circulators, Defendant maintains that the Strikeout Law regulates only non-communicative conduct. (See id. at 9.) The Court considers both Meyer and Buckley in its initial determination of whether the Strikeout Law implicates the First Amendment.

The Colorado statute at issue in Meyer permitted a "proposed state constitutional amendment to be placed on a general election ballot if its proponents [ ] obtain[ed] the signatures of at least five percent of the total number of qualified voters on an ‘initiative petition’ within a 6-month period, but [made] it a felony to pay petition circulators." 486 U.S. at 414, 108 S.Ct. 1886 (1988). The Supreme Court held that the statutory prohibition against paid circulators violated the First and Fourteenth Amendments because it restricted "access to the most effective, fundamental, and perhaps economical avenue of political discourse, direct one-on-one communication." Id. at 424, 108 S.Ct. 1886. In so holding, the Supreme Court concluded that such petition circulation constituted " ‘core political speech’ because it involves ‘interactive communication concerning political change.’ " Buckley , 525 U.S. at 186, 119 S.Ct. 636 (quoting Meyer , 486 U.S. at 422, 108 S.Ct. 1886 ). The Supreme Court rejected the state's claim that the prohibition was justified by its interest in ensuring that an initiative had sufficient grassroots support to make it on to the ballot, and noted that existing provisions adequately addressed the risk of improper conduct in petition circulation. Meyer , 486 U.S. at 427, 108 S.Ct. 1886.

In Buckley , the Supreme Court upheld the Tenth Circuit's invalidation of three Colorado petition-circulation laws. First, the Supreme Court held that a requirement that petition circulators be registered voters drastically reduced the number of individuals available to circulate petitions, resulting in an impermissible speech diminution akin to Meyer . See Buckley , 525 at 194–95, 119 S.Ct. 636. Second, the Supreme Court held that the "badge requirement" for paid petition circulators was invalid insofar as the requirement compelled circulators to display their names. See id. at 197–200, 119 S.Ct. 636. Colorado's interest in identifying petitioners who engaged in misconduct was adequately addressed by existing laws requiring circulators to disclose their names and addresses on affidavits submitted alongside petition sections. See id. at 198, 119 S.Ct. 636. Finally, the Supreme Court upheld the invalidation of a requirement that ballot-initiative proponents file a final report upon submission of a petition insofar as that report demanded disclosure of each paid circulator's name, address, and total compensation.⁴ See id. at 201–04, 119 S.Ct. 636.

In both Meyer and Buckley , the statutes at issue regulated the communicative conduct of petition circulators. Plaintiffs claim that the Strikeout Law does the same, in three ways. First, the law shrinks the pool of prospective circulators, thereby "limiting the overall quantum of political speech." (MPI at 9.) Second, the law reduces the ability of initiative proponents to gather the requisite number of signatures for ballot access for reasons unrelated to actual voter support. (Id. at 10.) Third, the law "impermissibly regulates speech based on the content of the speech and the identity of the speaker." (Id. ) The Court considers each argument in turn.

a. Impact on the Pool of Potential Circulators

Plaintiffs argue that the Strikeout Law restricts the pool of potential circulators because initiative proponents must either recruit volunteer circulators, or only hire those paid circulators who can guarantee future compliance with a potential subpoena. (See id. at 9.) Initiative proponents are therefore reluctant to recruit paid circulators from outside the Phoenix metro area. (Id. ) Plaintiffs emphasize that "[c]ourts have repeatedly found laws with similar consequences unconstitutional," citing Chandler v. City of Arvada, Colorado ,⁵ Nader v. Brewer ,⁶ and Buckley in support. (Id. at 9–10.) Defendant does not distinguish Chandler or Nader , but does distinguish Buckley , arguing that unlike the Strikeout Law, the law at issue in Buckley implicated the First Amendment because it significantly hindered communication with voters by compelling paid petition circulators to display their names. (See MTD at 9...