Montana Green Party v. Christi Jacobsen ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONTANA GREEN PARTY; DANIELLE No. 20-35340
BRECK; CHERYL WOLFE; HARRY C.
HOVING; DOUG CAMPBELL; STEVE D.C. No.
KELLY; ANTONIO MORSETTE; 6:18-cv-00087-
TAMARA R. THOMPSON; ADRIEN BMM
OWEN WAGNER,
Plaintiffs-Appellants,
OPINION
v.
CHRISTI JACOBSEN, in her official
capacity as Secretary of State for the
State of Montana,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Brian M. Morris, District Judge, Presiding
Argued and Submitted May 6, 2021
Portland, Oregon
Filed November 8, 2021
2 MONTANA GREEN PARTY V. JACOBSEN
Before: William A. Fletcher and Michelle T. Friedland,
Circuit Judges, and Frederic Block,* District Judge.
Opinion by Judge W. Fletcher
SUMMARY**
Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment in favor of the Montana Secretary
of State in an action brought by the Montana Green Party and
eight registered voters seeking declaratory and injunctive
relief against certain provisions of Montana’s primary ballot
access scheme.
Montana law offers two methods for a political party to
qualify to hold a primary election. First, a party shall hold a
primary to nominate its candidates if, for any statewide office
in one of the last two elections, it received votes totaling 5%
or more of the total votes for the last successful gubernatorial
candidate. Alternatively, a political party may qualify for a
primary if it submits a petition to the Secretary of State that
is signed by a number of registered voters equal to 5% or
more of the total votes cast for the successful candidate for
governor at the last general election or 5,000 electors,
*
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MONTANA GREEN PARTY V. JACOBSEN 3
whichever is less. The number must include the registered
voters in at least one-third of the legislative districts equal to
5% or more of the total votes cast for the successful candidate
for governor at the last general election in those districts or
150 electors in those districts, whichever is less. The
geographic distribution requirement is tied to the 100 districts
of Montana’s House of Representatives and requires a
minimum number of signatures from at least 34 districts.
The panel first held that amendments to Montana’s
election law while the case was on appeal did not render the
appeal moot because the amended law disadvantaged
plaintiffs to a slightly greater degree than the previous law
and did not fundamentally change either the challenged
provisions or the applicable legal analysis.
The panel affirmed the district court’s grant of summary
judgment to the Secretary with respect to plaintiffs’ claims of
right of association and right to cast an effective vote under
the First and Fourteenth Amendments. Citing Jennes v.
Fortson, 403 U.S. 431, 438 (1971), the panel held that
plaintiffs had not shown that the burden imposed by
Montana’s ballot access scheme was severe. Montana’s
statewide signature requirement of 5,000 was only 0.97% of
the total statewide vote for President in 2016 and only 0.72%
of the total registered voters in that year. Other aspects of
Montana’s ballot access scheme, including the filing
deadline, and the geographic distribution requirement,
similarly imposed relatively minor burdens. As to the
geographic distribution requirement, the panel held that
plaintiffs failed to introduce concrete and specific evidence
showing that the distribution requirement imposed a severe
burden. If anything, evidence showed that the requirement
was not burdensome. The panel accepted Montana’s
4 MONTANA GREEN PARTY V. JACOBSEN
argument that its ballot access scheme served the interest of
ensuring that a new party has broad-based support and that
only nonfrivolous parties appear on the ballot.
The panel held that the part of the distribution
requirement indexed to 5% of the votes for the previous
gubernatorial winner in each house district violated the “one
person, one vote” principle in the Equal Protection Clause of
the Fourteenth Amendment. The panel held that Montana’s
approach resulted in a significant disparity in how much each
signature was worth in its house districts. Because Montana’s
distribution requirement arbitrarily diluted the value of the
signatures of voters in house districts with a large number of
supporters of the most recent gubernatorial winner, and
because the resulting variation from district to district was so
significant, the panel applied strict scrutiny. The panel
concluded that the State provided no reason, much less a
compelling reason, for requiring far more signatures in some
equal-population districts than in others. Nor had the State
explained why the number of signatures required should be
indexed to votes for the last successful gubernatorial
candidate, a rule that arbitrarily devalued the signatures of
voters in house districts that most strongly supported the
current governor. The panel reversed the district court’s
holding that the challenged provisions did not violate the
right to equal protection under the Fourteenth Amendment.
MONTANA GREEN PARTY V. JACOBSEN 5
COUNSEL
James C. Linger (argued), James Carter Linger Law Offices,
Tulsa, Oklahoma; Quentin M. Rhoades, Rhoades Siefert &
Erickson PLLC, Missoula, Montana; for Plaintiff-Appellant.
Hannah E. Tokerud (argued) and Patrick M. Risken, Assistant
Attorneys General; Austin Knudsen, Attorney General;
Attorney General’s Office, Helena, Montana; for Defendant-
Appellee.
OPINION
W. FLETCHER, Circuit Judge:
The Montana Green Party (“Green Party”) and eight
registered Montana voters (collectively, “Plaintiffs”) brought
suit against the Montana Secretary of State1, seeking
declaratory and injunctive relief against certain provisions of
Montana’s primary ballot access scheme. See Mont. Code
Ann. § 13-10-601(2)(a), (b), (c), & (d) (2007). The district
court granted summary judgment to the Secretary, holding
that the challenged provisions of the scheme (1) do not
violate the right of association and the right to cast an
effective vote under the First and Fourteenth Amendments,
and (2) do not violate the right to equal protection under the
Fourteenth Amendment.
1
When the district court issued the decision below, Corey Stapleton
occupied the office of the Secretary of State of Montana. On January 4,
2021, Christi Jacobsen was sworn into the position. We GRANT the joint
motion (DE 32) to substitute her as defendant.
6 MONTANA GREEN PARTY V. JACOBSEN
We affirm as to the first holding, but reverse as to the
second.
I. Mootness
While this case was on appeal, Montana amended its
election law, changing in some respects the provisions
challenged by Plaintiffs. See 2021 Mont. Laws, ch. 399 (S.B.
350). We asked the parties to submit supplemental briefs
addressing whether the amendments mooted Plaintiffs’
appeal. Plaintiffs contend that the amendments have not
rendered their appeal moot. In Northeastern Florida Chapter
of Associated General Contractors of America v. City of
Jacksonville, 508 U.S. 656 (1993), a challenged ordinance
was amended during the course of litigation, lessening the
burden imposed on the challengers. The Court held that the
amendment did not render the challenge moot, writing, “The
new ordinance may disadvantage [the challengers] to a lesser
degree than the old one, but . . . it disadvantages them in the
same fundamental way.” Id. at 662. In the case before us,
the amended law disadvantages the Plaintiffs to a slightly
greater degree than the previous law. The amendments do
not fundamentally change either the challenged provisions or
the applicable legal analysis. We therefore conclude that the
amendments do not render Plaintiffs’ appeal moot.
II. Background
Montana law offers two methods for a political party to
qualify to hold a primary election. First, a party shall hold a
primary to nominate its candidates if, for any statewide office
in one of the last two elections, it received votes totaling 5%
or more of the total votes for the last successful gubernatorial
candidate. Mont. Code Ann. § 13-10-601(1) (2021). (This
MONTANA GREEN PARTY V. JACOBSEN 7
provision was not changed by the 2021 amendment.) As of
2018 (the relevant date when this case was presented to the
district court), the last successful gubernatorial candidate had
been Steve Bullock, who had received 255,933 votes in the
2016 election. The five-percent threshold required a minor
party to have received 12,797 votes statewide in order to
qualify for a primary. Neither the Green Party nor any other
minor party qualified for a primary under this provision in
2018. Indeed, no minor party has qualified for a primary
under this provision since 2004, when the Green Party held a
primary by virtue of its strong showing in the 2000 election.
Alternatively, a political party may qualify for a primary
if it submits a petition to the Secretary of State that is:
signed by a number of registered voters equal
to 5% or more of the total votes cast for the
successful candidate for governor at the last
general election or 5,000 electors, whichever
is less. The number must include the
registered voters in at least one-third of the
legislative districts equal to 5% or more of the
total votes cast for the successful candidate
for governor at the last general election in
those districts or 150 electors in those
districts, whichever is less.
2021 Mont. Laws, ch. 399 (S.B. 350), § 1(2) (emphasis
added). (The only change effected by the 2021 amendment
was to replace “more than” with “at least.” See Mont. Code
Ann. § 13-10-601(2)(b) (2009).) The petition alternative is
used only by minor political parties such as the Green Party.
8 MONTANA GREEN PARTY V. JACOBSEN
The petition provision has two requirements. First, the
total number of petition signatures statewide must be at least
the lesser of: (a) 5,000, or (b) 5% of the total votes cast for
the most recent successful gubernatorial candidate. Because
the most recent operative 5% threshold in 2018 (based on the
2016 election) was 12,797, the lesser number of 5,000
satisfied the requirement. Second, the provision includes a
geographic distribution requirement tied to the 100 districts
of Montana’s House of Representatives. The district
boundaries were redrawn after the 2010 Census, and will be
redrawn again in light of the 2020 Census. The populations
in each district are very close to equal immediately after
redistricting in the wake of a census, but can become less
equal in the subsequent ten years due to population
movement. A petition complies with the distribution
requirement if, for 34 of the 100 house districts, it includes
signatures numbering the lesser of (a) 150, or (b) 5% of the
votes cast in that district for the most recent successful
gubernatorial candidate.
Because the distribution requirement is tied to the votes
cast in each house district for the winner of the gubernatorial
race, the required number depends on the political orientation
of a district, and varies substantially from one district to
another. This may be illustrated by a comparison of the votes
received in 2016 in House District (“HD”) 35, a rural district
on the border with North Dakota, with those received in HD
100, a district in downtown Missoula.2 In HD 35, Steve
Bullock, the Democratic gubernatorial candidate, received
1,085 votes, while Greg Gianforte, the Republican candidate,
2
Mont. Sec. of State, 2016 Statewide General Election Canvass by
House District, at 16, 19, https://sosmt.gov/wp-content/uploads/attachm
ents/2016StatewideHD.pdf.
MONTANA GREEN PARTY V. JACOBSEN 9
received 3,577 votes. In HD 100, Bullock received 4,916
votes, while Gianforte received 894 votes. As a result, the
“votes cast for the successful candidate for governor at the
last general election” in these districts varied dramatically—
from 1,085 in HD 35 to 4,916 in HD 100. HD 35 therefore
required only 55 petition signatures, while HD 100 required
150 signatures (the ceiling number). In the lead-up to the
2018 election, 21 house districts required between 55 and 99
petition signatures, 53 house districts required between 100
and 140 signatures, and 26 house districts required 150
signatures.
When Montana first adopted its distribution requirement
in 1981, the signature requirement in each district could only
be satisfied by 5% of the votes for the previous gubernatorial
winner. See Mont. Code Ann. § 13-10-601 (1997). In 1999,
the legislature added the 150-signature ceiling as a
disjunctive option. See Mont. Code Ann. § 13-10-601(1999). Montana has no petition distribution requirement for
statewide independent candidates or independent presidential
candidates.
Under the law in effect for the 2018 election, a political
party had to present the signed petitions and accompanying
affidavits to the relevant county election administrators no
later than 92 days before the date of the primary. Mont. Code
Ann. § 13-10-601(2)(c), (2)(d) (2009). Election
administrators were required to verify the signatures and
forward petitions to the Secretary of State no later than
85 days before the primary. Id. If a party qualified for listing
in a primary, the Secretary approved the petition and certified
the party for the primary. If a party did not qualify, voters
remained free to write in a vote for a candidate from that
party. Id. § 13-10-211.
10 MONTANA GREEN PARTY V. JACOBSEN
Sections 13-10-601(2)(c) and (2)(d) were modified by the
2021 amendment. Petitions now must be submitted to county
administrators no later than 123 days before the election.
Petitions and accompanying affidavits must be submitted to
the relevant county officials “no later than 4 weeks before the
final date for filing the petition with the secretary of state as
provided in [section 4(2)].” Section 4(2) requires election
administrators to verify the signatures and forward petitions
to the Secretary “at least 95 days before the date of the
primary.” 2021 Mont. Laws, ch. 399 (S.B. 350), §§ 1(3),
4(2).
In 2018, the deadline for filing petitions was March 5.
Before that date, the Green Party had submitted 10,160
signatures to county election administrators, collected from
at least 38 house districts. (As will be discussed in a moment,
the signatures from eight of those districts were challenged.
The record reveals the identity of those districts. The record
does not reveal the identity of the other 30 districts.) Of the
10,160 signatures, 699 were collected by the Green Party and
its representatives. The other 9,461 were obtained by a
Nevada political consulting organization called Advanced
Micro Targeting (“AMT”). Larson v. State, 434 P.3d 241,
248 & n.2 (Mont. 2019). AMT collected these signatures by
employing thirteen signature-gatherers working for three
weeks in four populous counties: Cascade, Missoula, Lewis
and Clark, and Yellowstone. Id. at 248. It is not clear in the
record who hired AMT. According to a stipulation filed in
the district court:
The Green Party was aware of the theory that
AMT was trying to get the Party on the ballot
to affect the United States Senate race in
Montana. The Green Party never spoke with
MONTANA GREEN PARTY V. JACOBSEN 11
AMT, did not hire AMT, and did not
appreciate AMT’s “assistance” because it
threw the Green Party into “politics-as-usual”
game-playing instead of convincing voters of
the merits of the Party’s ideals.
After verifying 7,386 signatures on the petitions, county
administrators timely forwarded the petitions to the Secretary
of State. On March 12, Secretary Stapleton concluded that
the Green Party had satisfied the petition requirements,
including the geographic distribution requirement in 38 house
districts. He approved the Green Party for the ballot.
The Montana Democratic Party and three voters filed suit
in state court challenging some of the petition signatures.
The court invalidated 87 signatures from eight house districts
after finding signature irregularities such as a lack of a
printed name or a false affidavit by the signature gatherer.
Larson, 434 P.3d at 250. The Montana Supreme Court
affirmed. Id. at 247. As a result, the Green Party met the
distribution requirement in only thirty districts, and the
Secretary of State decertified the Green Party from the 2018
ballot. With just thirteen additional valid signatures in four
of the districts, the Green Party would have met the
distribution requirement.
III. Procedural Background
On August 13, 2018, the Green Party and eight registered
Montana voters brought suit in federal district court against
the Secretary of State in his official capacity. Three of the
voter-plaintiffs had signed 2018 petitions: Danielle Breck, of
Missoula; Harry C. Hoving of Billings; and Antonio Morsette
of Box Elder.
12 MONTANA GREEN PARTY V. JACOBSEN
Plaintiffs argued that Montana’s primary ballot access
scheme—in particular, the combined effect of the signature
requirement, the filing deadline, and the distribution
requirement—violated their rights of association and
effective voting under the First and Fourteenth Amendments,
and violated their right to equal protection under the
Fourteenth Amendment. Both parties moved for summary
judgment.
On February 28, 2020, the magistrate judge recommended
that the district court grant summary judgment to the
Secretary. On March 20, the district court adopted the
findings and recommendations of the magistrate judge and
entered judgment for the Secretary. Plaintiffs timely
appealed. We have jurisdiction under 28 U.S.C. § 1291.
IV. Analysis
We review de novo a grant of summary judgment.
Kaahumanu v. Hawaii, 682 F.3d 789, 796 (9th Cir. 2012).
A. Right of Association and Right to Cast an Effective
Vote
Ballot access restrictions potentially burden two different
rights: “the right of individuals to associate for the
advancement of political beliefs, and the right of qualified
voters, regardless of their political persuasion, to cast their
votes effectively.” Anderson v. Celebrezze, 460 U.S. 780,
787 (1983) (quoting Williams v. Rhodes, 393 U.S. 23, 30
(1968)). These rights are protected by the First Amendment,
as incorporated into the Fourteenth Amendment.
MONTANA GREEN PARTY V. JACOBSEN 13
In determining the constitutionality of election laws, we
analyze a ballot access scheme as a whole. Ariz. Libertarian
Party v. Reagan, 798 F.3d 723, 730 (9th Cir. 2015). We
weigh “the character and magnitude of the asserted injury”
against “the precise interests put forward by the State as
justifications for the burden imposed by its rule.” Burdick v.
Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson,
460 U.S. at 789). Plaintiffs bear the burden of making a
factual showing of injury. Democratic Party of Haw. v.
Nago, 833 F.3d 1119, 1123–24 (9th Cir. 2016). When
plaintiffs’ rights are subject to “severe” restrictions, the law
must be “narrowly drawn to advance a state interest of
compelling importance.” Burdick, 504 U.S. at 434. When a
law imposes only “reasonable, nondiscriminatory
restrictions” on voters’ rights, the State’s “important
regulatory interests are generally sufficient to justify” the law.
Id. (quoting Anderson, 460 U.S. at 788); see Dudum v. Arntz,
640 F.3d 1098, 1114 (9th Cir. 2011) (noting that narrow
tailoring is not required).
Plaintiffs have not shown that the burden imposed by
Montana’s ballot access scheme is severe. In Jenness v.
Fortson, 403 U.S. 431, 438 (1971), the Supreme Court upheld
a Georgia law requiring independent candidates to file a
nominating petition signed by at least 5% of the number of
registered voters in the last general election for the office in
question. Montana’s scheme is far less burdensome. Its
statewide signature requirement of 5,000 was only 0.97% of
the total statewide vote for President in 2016 and only 0.72%
of the total registered voters in that year. See Ariz.
Libertarian Party v. Hobbs, 925 F.3d 1085, 1092 (9th Cir.
2019) (noting that courts consider the percentage of the total
“available pool” of signers).
14 MONTANA GREEN PARTY V. JACOBSEN
Other aspects of Montana’s ballot access scheme
similarly impose relatively minor burdens. See Jenness,
403 U.S. at 438 (emphasizing that Georgia’s law imposed no
“suffocating restrictions” on petitions). In 2018, petitions had
to be submitted to county administrators 92 days before the
primary. See Mont. Code Ann. § 13-10-601(2)(c), (2)(d)
(2009). Under the 2021 amendments, petitions must be
submitted 123 days before the primary. See 2021 Mont.
Laws, ch. 399 (S.B. 350), §§ 1(3), 4(2). Both deadlines
afford signature gatherers more time than deadlines that we
have upheld in other cases. See, e.g., Ariz. Green Party v.
Reagan, 838 F.3d 983, 987, 992 (9th Cir. 2016) (upholding a
filing deadline 180 days before the primary). While
collecting signatures might be difficult during Montana
winters, signatures may be gathered at any time before the
deadline. Montana also allows write-in votes, so voters may
vote for their preferred candidates even when their preferred
party does not qualify for a primary. See Mont. Code Ann.
§ 13-10-211. In 2018, several of the voter-plaintiffs availed
themselves of this opportunity.
At first glance, Montana’s geographic distribution
requirement may appear significantly burdensome. While we
have described distribution requirements as “commonplace,”
most other States base their distribution requirements on
federal congressional districts rather than on state legislative
districts. See Angle v. Miller, 673 F.3d 1122, 1130–31 (9th
Cir. 2012) (upholding a distribution requirement based on
active registered voters in each of Nevada’s three
congressional districts); see also, e.g., Ohio Rev. Code Ann.
§ 3517.01(A)(1)(b)(ii) (requiring 500 signatures from each of
8 of Ohio’s 15 congressional districts). Montana’s rule is
based on house districts—a far smaller unit—and requires a
minimum number of signatures from at least 34 districts.
MONTANA GREEN PARTY V. JACOBSEN 15
Plaintiff Breck testified that it is difficult as a practical matter
to decide which districts a minor party should target for
obtaining signatures. Because house district lines are not the
same as county lines, organizers who have collected
signatures from several districts may have to turn in the
petitions to multiple county election officials. In some cases,
it may be unclear to signature gatherers in which house
district a voter resides, making it difficult to determine
whether the voter’s signature qualifies for the targeted
district.
However, Plaintiffs did not introduce concrete and
specific evidence showing that the distribution requirement
imposed a severe burden. See Ariz. Green Party, 838 F.3d
at 990; Ariz. Libertarian Party, 798 F.3d at 731. They failed
to introduce evidence showing how many people were
collecting signatures, when they began collecting signatures,
how long it took for them to collect the signatures, or the cost
of collecting signatures. See Ariz. Green Party, 838 F.3d
at 990 (characterizing the burden as “purely speculative”
because of similar evidentiary failures). If anything, evidence
now in the record shows that the requirement is not
burdensome. The Green Party (with the “assistance” of
AMT) very nearly complied with the distribution requirement
in 2018, missing the threshold by “a mere 13 petition
signatures.” Given that Montana house districts are small and
have roughly equal populations, many districts are in and
around the populous areas of the State. As a result, the
distribution requirement does not require petition gatherers to
spend significant efforts collecting signatures in far-flung,
sparsely populated areas. We note, for example, that AMT
collected its 9,461 signatures in only four populous counties.
Finally, past experience suggests that the burden of
Montana’s ballot access laws is not severe. See Storer v.
16 MONTANA GREEN PARTY V. JACOBSEN
Brown, 415 U.S. 724, 742 (1974). Minor parties have
satisfied the petition requirement at least seven times since
1982.
Because Plaintiffs have not shown a severe burden on
ballot access, Montana may justify its election scheme by
pointing to “important regulatory interests.” Burdick,
504 U.S. at 434 (quoting Anderson, 460 U.S. at 788). States
have an important interest in requiring that a party make
“some preliminary showing of a significant modicum of
support” so the state can “avoid[] confusion, deception, and
even frustration of the democratic process.” Jenness,
403 U.S. at 442. A distribution requirement may be justified
by the interest of ensuring that a party has more than
“localized support.” Angle, 673 F.3d at 1135. Where the
burden imposed on ballot access is not severe, we generally
do not require “a particularized showing” of a State’s
justifications. Hobbs, 925 F.3d at 1094 (quoting Munro v.
Socialist Workers Party, 479 U.S. 189, 194 (1986)).
We accept Montana’s argument that its ballot access
scheme serves the interest of “ensuring that a new party has
broad-based support and that only nonfrivolous parties appear
on the ballot.” Similarly, we conclude that the 128-day filing
deadline is justified on the ground that election administrators
need time to perform the many required tasks after a party
submits its petitions to county officials.
Where the burden is not severe, a ballot access scheme
need not be narrowly tailored. See Dudum, 640 F.3d at 1114.
While Montana’s house districts are small, they are not an
unreasonable basis for the distribution requirement. In 2018,
Montana could not base its requirement on congressional
districts, as it then had only one. As of the 2022 election,
MONTANA GREEN PARTY V. JACOBSEN 17
Montana will have two congressional districts, but that will
not fundamentally change the analysis. We note that
Montana has not imposed a distribution requirement for
statewide independent candidates or for independent
presidential candidates, which suggests that it is not equally
concerned about all candidates who may be “frivolous” or
who lack “broad-based support.” But this differential
treatment makes little difference at a low level of scrutiny.
We therefore affirm the district court’s grant of summary
judgment to the Secretary with respect to Plaintiffs’ claims of
right of association and right to cast an effective vote under
the First and Fourteenth Amendments.
B. Right to Equal Protection
Plaintiffs also argue that the distribution requirement tied
to 5% of the votes for the most recent gubernatorial winner
violates the “one person, one vote” principle in the Equal
Protection Clause of the Fourteenth Amendment. See
Reynolds v. Sims, 377 U.S. 533 (1964). We agree with
Plaintiffs.
1. Article III Standing
As a preliminary matter we address Article III standing.
We agree with the Secretary that the Green Party lacks
Article III standing to challenge the 5% alternative
requirement under the Equal Protection Clause. Compared to
the previous flat per-district requirement of 150 signatures,
the later-enacted 5% requirement advantages the Green Party
in house districts where it results in a requirement of less than
150 signatures.
18 MONTANA GREEN PARTY V. JACOBSEN
The Secretary has not argued that the individual plaintiffs
lack Article III standing, but we are obliged to raise the issue
sua sponte. See Chapman v. Pier 1 Imps. (U.S.) Inc.,
631 F.3d 939, 954 (9th Cir. 2011) (en banc). At least one of
the individual plaintiffs has standing. While the record does
not reveal in which house districts the voter-plaintiffs reside,
one of the three who signed a petition (Breck) is a resident of
Missoula. We take judicial notice of maps and official
election results from the Montana Department of State
website.3 See Dudum, 640 F.3d at 1101 n.6 (taking judicial
notice of official election results); Fed. R. Evid. 201(b)(2), (d)
(explaining that courts may take judicial notice, “at any stage
of the proceeding,” of a fact “not subject to reasonable
dispute because it . . . can be accurately and readily
determined from sources whose accuracy cannot reasonably
be questioned”). In 2018, the greater Missoula area
encompassed eleven house districts: HDs 89, 90, 91, 92, 94,
95, 96, 97, 98, 99, and 100. Official 2016 gubernatorial
results in these districts indicate that these eleven house
districts had signature requirements between 138 and 150,
significantly more than the requirements in many of the other
districts. Because Breck’s signature on the petition was
weighted substantially less than those of voters in those other
districts, and will do so in the future, the inequality caused,
and will cause, her injury in fact.
3
See Mont. Sec. of State, Montana Legislative Districts for Elections
Held in 2014-2022, https://sosmt.gov/Portals/142/Elections/Documents/
Legislative-Map.pdf; Mont. Sec. of State, 2016 Statewide General
Election Canvass by House District, at 19, https://sosmt.gov/wp-conten
t/uploads/attachments/2016StatewideHD.pdf.
MONTANA GREEN PARTY V. JACOBSEN 19
2. One Person, One Vote
The “one person, one vote” principle extends to
signatures on nominating petitions because such petitions are
“an integral part of [an] elective system.” Moore v. Ogilvie,
394 U.S. 814, 818 (1969). In Moore, the Supreme Court
struck down an Illinois statute that required an independent
candidate to collect signatures of 200 voters from each of at
least 50 of the state’s 102 counties. Id. at 815. The statute
violated “one person, one vote” because the counties had
disparate populations, and the statute applied “a rigid,
arbitrary formula to sparsely settled counties and populous
counties alike.” Id. at 818. The Court held that the statute
was not justified by the state’s purported goal of “requir[ing]
statewide support for launching a new political party rather
than support from a few localities.” Id.We apply strict scrutiny to “state laws treating nomination
signatures unequally on the basis of geography.” Idaho
Coalition United for Bears v. Cenarrusa, 342 F.3d 1073,
1077 (9th Cir. 2003). In Idaho Coalition, we struck down an
Idaho statute requiring initiative petitions to include
signatures from 6% of the population in each of 22 of the
state’s 44 counties. Id. at 1076–77. Because 60% of Idaho’s
population resided in just nine of its 44 counties, the rule
“favor[ed] voters in sparsely populated areas over those in
more densely populated areas.” Id. at 1075. We concluded
that Idaho’s goals—“preventing a long and confusing list of
initiatives from appearing on the ballot, protecting against
fraud, informing the electorate, ensuring the ‘integrity’ of the
ballot process, and promoting ‘grassroots direct legislation
efforts’”—could be advanced “as effectively and efficiently”
by a system treating voters equally in the various counties.
Id. at 1079.
20 MONTANA GREEN PARTY V. JACOBSEN
In ACLU of Nevada v. Lomax, 471 F.3d 1010, 1020–21
(9th Cir. 2006), Nevada’s “13 Counties Rule” required
initiative proponents to gather signatures of 10% of the
registered voters who voted in the last general election, in
each of 13 of the State’s 17 counties. Because Nevada’s
counties had unequal populations, we applied strict scrutiny
and struck down the Rule. But we later upheld Nevada’s
distribution requirement after the State revised it to rely on
equally populated congressional districts. See Angle,
673 F.3d 1122. Nevada’s new “All Districts Rule” required
the signatures of 10% of the registered voters who had voted
in the last general election in each of the State’s
congressional districts. Applying rational basis review, we
upheld this requirement because it “grant[ed] equal political
power to congressional districts having equal populations.”
Id. at 1129 (emphasis omitted). The parties in Angle did not
mention the fact that the congressional districts inevitably
would have had at least slightly different numbers of
registered voters who had voted in the last general election.
In our decision, we did not mention or consider the potential
significance of this difference.
The Montana signature requirement—like Nevada’s All
Districts Rule, which we upheld in Angle—applies to equally
populated districts. However, for two reasons, Montana’s
requirement—unlike Nevada’s All Districts Rule—does not
“grant[] equal political power” to those districts. Id. First,
the signature requirement in Nevada turned on the total
number of people who voted in the most recent election. By
contrast, the requirement in Montana turns on the number of
people who voted for the winner of that election. By tying
the signature requirement to the partisan character of each
district rather than to the total number of votes cast, the
Montana scheme applies a non-neutral criterion that results in
MONTANA GREEN PARTY V. JACOBSEN 21
substantial partisan-based variation from district to district.
Second, the distribution requirement in Angle was tied to
federal congressional districts. By contrast, the Montana
requirement is tied to much smaller state house districts, with
the result that there is potential for even greater variation
from district to district.
Montana’s approach results in a significant disparity in
how much each signature is “worth” in its house districts. In
2018, the highest signature requirement in Montana
(150 signatures) was 2.73 times the lowest requirement
(55 signatures). In effect, the signature of a voter in a district
with the lowest requirement counted nearly three times more
than the signature in a district with the highest requirement.
We note that the variation in Angle—which the attorneys in
that case did not bring to our attention, and which we did not
consider—was significantly less. According to the website
of the Nevada Secretary of State, the congressional district
with the greatest number of actual voters when Angle was
being litigated (District 3, with 423,674 voters) had
1.44 times more active voters than the district with the fewest
active voters (District 1, with 293,814 voters).4 Because
Montana’s distribution requirement arbitrarily dilutes the
value of the signatures of voters in house districts with a large
number of supporters of the most recent gubernatorial winner,
and because the resulting variation from district to district is
so significant, we apply strict scrutiny.
The 5% provision of Montana’s distribution requirement
fails strict scrutiny. The State has provided no reason, much
4
Nev. Sec. of State, Voter Registration Statistics, January 2010,
https://www.nvsos.gov/sos/elections/voters/voter-registration-statistics/
2010-statistics/voter-registration-statistics-jan-2010-congress.
22 MONTANA GREEN PARTY V. JACOBSEN
less a compelling reason, for requiring far more signatures in
some equal-population districts than in others. Nor has the
State explained why the number of signatures required should
be indexed to votes for the last successful gubernatorial
candidate, a rule that arbitrarily devalues the signatures of
voters in house districts that most strongly supported the
current governor.
The out-of-circuit cases cited by the Secretary do not
compel a contrary conclusion. In Libertarian Party v. Bond,
764 F.2d 538, 544 (8th Cir. 1985), the Eighth Circuit upheld
a Missouri distribution requirement that mandated signatures
equal to a certain percentage of the total votes in each
congressional race in the gubernatorial race. In Semple v.
Griswold, 934 F.3d 1134, 1137 (10th Cir. 2019), the Tenth
Circuit upheld a ballot initiative requiring initiative
proponents to collect signatures from 2% of registered voters
in each of Colorado’s 35 senate districts. Both the total
number of prior votes cast, as in Bond and Angle, and the
total number of registered voters, as in Semple, are neutral
criteria, unrelated to partisan considerations. Moreover, as
the court in Bond observed, the “‘percentage of votes’
formula is a reasonable method of measuring the number of
potential petition signers in each district.” Bond, 764 F.2d
at 544. The same is true of the registered voters formula in
Semple. By contrast, Montana’s formula is linked to the
partisan composition of the different house districts, and is
not a reasonable approximation of the number of potential
petition signers in each district.
We note, in addition, that the formulae in Bond and
Semple resulted in relatively minor differences among
districts. The largest signature threshold in Bond was only
1.25 times that of the smallest, and the largest in Semple was
MONTANA GREEN PARTY V. JACOBSEN 23
just 1.64 times that of the smallest. See Bond, 764 F.2d
at 540, 544; Semple, 934 F.3d at 1138. These differences are
much less than in Montana in 2018, when, as we noted above,
one person’s signature counted as much as 2.73 times as that
of another person.
We hold that the part of the distribution requirement
indexed to 5% of the votes for the previous gubernatorial
winner in each house district violates equal protection. We
therefore reverse the district court’s grant of summary
judgment to the Secretary with respect to Plaintiffs’ claim
under the Equal Protection Clause of the Fourteenth
Amendment. Neither party has addressed the question
whether the invalid distribution requirement is severable from
the rest of Montana’s primary ballot access scheme.
Conclusion
On the First and Fourteenth Amendment claims, we
affirm the district court’s grant of summary judgment. On the
Fourteenth Amendment equal protection claim, we reverse
the district court. We remand for proceedings consistent with
this opinion. The parties shall bear their own costs.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.