Soltysik v. Padilla

910 F.3d 438

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,andCalifornians to Defend the Open Primary, Intervenor-Defendant-Appellee.

No. 16-55758

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 8, 2018 Pasadena, California

Filed December 3, 2018

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.

Partial Dissent by Judge Rawlinson

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/qualified-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 non qualified 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 non qualified 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, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) ; Burdick v. Takushi , 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (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...