Brian Mecinas v. Katie Hobbs ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN MECINAS; CAROLYN VASKO; No. 20-16301
DNC SERVICES CORPORATION, DBA
Democratic National Committee; D.C. No.
DSCC; PRIORITIES USA; PATTI 2:19-cv-05547-
SERRANO, DJH
Plaintiffs-Appellants,
v. OPINION
KATIE HOBBS, the Arizona Secretary
of State,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Argued and Submitted January 14, 2022
Pasadena, California
Filed April 8, 2022
Before: Johnnie B. Rawlinson and Paul J. Watford, Circuit
Judges, and Jed S. Rakoff, * District Judge.
Opinion by Judge Rakoff
*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 MECINAS V. HOBBS
SUMMARY **
Civil Rights
The panel reversed the district court’s dismissal of a
complaint challenging Arizona’s Ballot Order Statute,
A.R.S. § 16-502, which requires that, in each county,
candidates affiliated with the political party of the person
who received the most votes in that county in the last
gubernatorial race be listed first on the general election
ballot.
Plaintiffs, three Arizona voters and three organizations,
including the Democratic National Committee, brought this
action against the Arizona Secretary of State alleging that the
Ballot Order Statute violates the First and Fourteenth
Amendments because it gives candidates the benefit of
appearing first on the ballot, not on the basis of some
politically neutral ordering (such as alphabetically or by lot),
but on the basis of political affiliation. Plaintiffs allege that,
for most of the elections that have occurred in Arizona since
the Ballot Order Statute was enacted, the Republican Party’s
candidates have appeared in the top position in the great
majority of Arizona’s general election ballots solely as a
result of their political affiliation. Plaintiffs allege that the
candidate whose name appears first on a ballot in a contested
race receives the benefit resulting from a recognized
psychological phenomenon known as “position bias” or the
“primacy effect.”
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MECINAS V. HOBBS 3
The district court dismissed the complaint on the basis
that plaintiffs lack standing and that the complaint presented
a nonjusticiable political question. The panel held that the
district court erred in dismissing the suit on these grounds.
Specifically, the panel held at least one of the plaintiffs—the
DNC—had standing to bring this suit. The panel held that:
(1) the DNC satisfied the injury in fact requirement on the
basis of its competitive standing; (2) the challenged law was
traceable to the Secretary; and (3) having shown that an
injunction against the Secretary would significantly increase
the likelihood of relief, plaintiffs met their burden as to
redressability.
The panel held that plaintiffs’ claims did not present a
nonjusticiable political question and that the district court
overlooked the narrow scope of the Supreme Court’s
decision in Rucho v. Common Cause, 139 S. Ct. 2484, 2491
(2019). Adjudicating a challenge to a ballot order statute did
not present the sort of intractable issues that arise in partisan
gerrymandering cases.
The panel rejected the Secretary’s argument that the
district court’s dismissal could be affirmed on the alternative
ground that she was not the proper defendant under Article
III or the Eleventh Amendment. Finally, the panel held that
plaintiffs had stated a claim sufficient to survive a motion to
dismiss. The magnitude of the asserted injury was a function
of the “primacy effect,” presenting factual questions that
could not be resolved on a motion to dismiss.
4 MECINAS V. HOBBS
COUNSEL
Abha Khanna (argued), Elias Law Group LLP, Seattle,
Washington; Marc Elias, Elisabeth C. Frost, and John M.
Geise, Elias Law Group LLP, Washington, D.C.; for
Plaintiffs-Appellants.
Kristen Michelle Yost (argued), Coppersmith Brockelman
LLP, Phoenix, Arizona; Kara M. Karlson, Assistant
Attorney General; Linley Wilson, Deputy Solicitor General;
Office of the Attorney General, Phoenix, Arizona; for
Defendant-Appellee.
OPINION
RAKOFF, District Judge:
In Arizona the state’s Ballot Order Statute, A.R.S. § 16-
502, requires that, in each county, candidates affiliated with
the political party of the person who received the most votes
in that county in the last gubernatorial race be listed first on
the general election ballot. In 2019, three Arizona voters,
Brian Mecinas, Carolyn Vasko, and Patti Serrano, and three
organizations, the Democratic National Committee (the
“DNC”), the Democratic Senatorial Campaign Committee
(the “DSCC”), and Priorities USA (“Priorities”), a political
action committee (collectively, the “Plaintiffs”), brought this
action against Katie Hobbs, in her official capacity as the
Arizona Secretary of State (the “Secretary”), claiming that
the Ballot Order Statute violates the First and Fourteenth
Amendments because it gives candidates the benefit of
appearing first on the ballot, not on the basis of some
politically neutral ordering (such as alphabetically or by lot),
but on the basis of political affiliation. Specifically, Plaintiffs
MECINAS V. HOBBS 5
allege that, for most of the elections that have occurred in
Arizona since the Ballot Order Statute was enacted, the
Republican Party’s candidates have appeared in the top
position in the great majority of Arizona’s general election
ballots solely as a result of their political affiliation.
Without addressing the merits of Plaintiffs’ argument,
the district court dismissed their complaint at the pleading
stage based on jurisdictional challenges raised by the
Secretary, viz., that Plaintiffs lack standing and that the
complaint presents a nonjusticiable political question.
Plaintiffs now appeal, arguing that the district court erred in
dismissing their suit on these grounds. We agree.
Specifically, we hold that at least one of the plaintiffs—the
DNC—has standing to bring this suit and that Plaintiffs’
claims do not present a nonjusticiable political question. We
also reject the Secretary’s argument that the district court’s
dismissal can be affirmed on the alternative ground that she
is not the proper defendant under Article III or the Eleventh
Amendment. Finally, we hold that Plaintiffs have stated a
claim sufficient to survive a motion to dismiss. We therefore
reverse the dismissal of the complaint and remand for further
proceedings.
BACKGROUND
In 1979, the Arizona legislature enacted A.R.S. § 16-
502, the Ballot Order Statute. The Ballot Order Statute
establishes the order in which candidates appear on the ballot
in general elections in each of Arizona’s fifteen counties.
The statute mandates a tiered system of organizing the
names on the ballot. First, names of candidates are listed
according to their political party, “in descending order
according to the votes cast for governor for that county in the
most recent general election for the office of governor.” Id.
§ 16-502(E). Next, candidates affiliated with political parties
6 MECINAS V. HOBBS
that did not have candidates on the ballot in the last general
election are “listed in alphabetical order below the parties
that did have candidates on the ballot in the last general
election.” Id. Third are the names of candidates who were
nominated but are not registered with a recognized political
party. Id. A space for write-in candidates is listed last. Id
§ 16-502(G).
Under this statutory organization scheme, the candidates
of the political party that received the most votes in the most
recent gubernatorial election in that county appear first in all
races and on all ballots in that county. According to
Plaintiffs’ complaint, the result of these rules has been that
in all but a handful of general elections since the statute was
enacted the vast majority of Arizona’s voting population
received a ballot with the Republican Party’s candidates in
the top position. The complaint further alleges that a
candidate whose name appears first on a ballot in a contested
race receives an unfair electoral advantage based on political
affiliation—specifically, the benefit resulting from a
recognized psychological phenomenon known as “position
bias” or the “primacy effect.”
Plaintiffs filed this action on November 1, 2019. Shortly
thereafter, Plaintiffs amended their complaint and moved for
a preliminary injunction in advance of the November 2020
election in Arizona. The Secretary opposed the preliminary
injunction motion and filed a separate motion to dismiss.
In March 2020, the district court held a two-day
evidentiary hearing on Plaintiffs’ preliminary injunction
motion—at which Plaintiffs’ two experts, Dr. Jonathan
Rodden and Dr. Jon Krosnick, and the Secretary’s expert,
Mr. Sean Trende, testified regarding the statistical modeling
of the “primacy effect”—and heard oral argument on both
the motion for preliminary injunction and the motion to
MECINAS V. HOBBS 7
dismiss. While both motions were still pending, the district
court, on June 2, 2020, ordered the parties to submit a joint
letter as to whether they would agree to deem the preliminary
injunction hearing to also constitute a trial on the merits.
Shortly thereafter, on June 8, 2020, the parties submitted a
responsive letter stating that they would not so agree.
On June 25, 2020, the district court granted the motion
to dismiss with prejudice, holding that Plaintiffs lack
standing and, independently, that their claims present
nonjusticiable political questions. The court did not reach the
merits of Plaintiffs’ claims.
Plaintiffs timely noticed an appeal and moved for an
injunction pending appeal, which the district court denied.
With the 2020 election approaching, Plaintiffs moved this
Court for an emergency injunction pending appeal. That
motion was denied by the motions Panel in a brief order.
Briefing and oral argument on Plaintiffs’ appeal followed.
STANDARD OF REVIEW
“We review de novo dismissal for lack of subject matter
jurisdiction and may affirm on any basis supported by the
record.” Zuress v. Donley, 606 F.3d 1249, 1252 (9th Cir.
2010). 1 When “deciding standing at the pleading stage, and
for purposes of ruling on a motion to dismiss for want of
standing, both the trial and reviewing courts must accept as
true all material allegations of the complaint, and must
construe the complaint in favor of the complaining party.”
1
Unless otherwise specified, all internal quotation marks, citations,
omissions, emphases, and alterations are omitted from all sources cited
herein.
8 MECINAS V. HOBBS
Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172,
1178 (9th Cir. 2000).
It is true that there is an exception to this general rule
where the defendant brings a motion under Rule 12(b)(1)
challenging subject matter jurisdiction as a factual—rather
than facial—matter. See White v. Lee, 227 F.3d 1214, 1242
(9th Cir. 2000). “Once the moving party has converted the
motion to dismiss into a factual motion by presenting
affidavits or other evidence properly brought before the
court, the party opposing the motion must furnish affidavits
or other evidence necessary to satisfy its burden of
establishing subject matter jurisdiction.” Savage v. Glendale
Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003).
At that point, the court may resolve any factual disputes
concerning the existence of jurisdiction. See Augustine v.
United States, 704 F.2d 1074, 1077 (9th Cir. 1983).
“However, where the jurisdictional issue and substantive
issues are so intertwined that the question of jurisdiction is
dependent on the resolution of factual issues going to the
merits, the jurisdictional determination should await a
determination of the relevant facts on either a motion going
to the merits or at trial.” Id.Here, the Secretary’s motion was based solely on the
allegations in Plaintiffs’ amended complaint. It thus did not
convert the motion to dismiss into a factual motion. And
while the district court held an evidentiary hearing on the
Plaintiff’s preliminary injunction, there is nothing in the
record to indicate that the court, sua sponte, converted it into
MECINAS V. HOBBS 9
a hearing on standing. As such, we properly consider this
motion based solely on the allegations in the complaint. 2
DISCUSSION
A. Standing
Article III of the U.S. Constitution limits federal court
jurisdiction to “Cases” and “Controversies.” U.S. Const. art.
III, § 2, cl. 1. As the Supreme Court has explained, “the
‘case or controversy’ requirement defines with respect to the
Judicial Branch the idea of separation of powers on which
the Federal Government is founded.” Allen v. Wright,
468 U.S. 737, 750 (1984). “[S]everal doctrines [] have
grown up to elaborate that requirement,” including
“mootness, ripeness, political question, and the like,” but
“standing . . . is perhaps the most important of these
doctrines.” Id.To have standing, plaintiffs must establish (1) that they
have suffered an injury in fact, (2) that their injury is fairly
traceable to a defendant’s conduct, and (3) that their injury
would likely be redressed by a favorable decision. See Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Each of
these elements must be supported “with the manner and
degree of evidence required at the successive stages of the
2
In its answering brief, the Secretary asserts that the district court
properly resolved any necessary factual disputes and that it was
“Plaintiffs’ burden below ‘to furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject matter
jurisdiction.’” This misstates the law. To the extent the district court
purported to resolve factual disputes relating to subject matter
jurisdiction on the basis of the preliminary injunction hearing, this would
be error, particularly insofar as those evidentiary issues are intertwined
with the merits.
10 MECINAS V. HOBBS
litigation.” Id. at 561. At the pleading stage, “general factual
allegations of injury resulting from the defendant’s conduct
may suffice.” Id.The district court held that none of Plaintiffs has standing
to mount a facial attack on the Ballot Order Statute. Plaintiffs
do not appeal the district court’s holding that the individual
voters lack standing, arguing only that the organizational
plaintiffs—that is, the DNC, the DSCC, and Priorities—
have standing. In a suit with multiple plaintiffs, generally
only one plaintiff need have standing for the suit to proceed.
See Leonard v. Clark, 12 F.3d 885, 888 (9th Cir. 1993). We
find that the DNC has sufficiently established standing to
proceed beyond the pleading stage. We do not address the
standing of the other plaintiffs.
1. Injury in Fact
To meet the first element of standing, a plaintiff’s “injury
in fact” must be “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.” Lujan, 504 U.S.
at 560. Of particular relevance here is the requirement that
the injury be “particularized,” rather than a “generalized
grievance.” Id. at 560, 575. “The fact that a harm is widely
shared does not necessarily render it a generalized
grievance.” Sisley v. U.S. Drug Enf’t Admin., 11 F.4th 1029,
1034 (9th Cir. 2021). “Rather, a grievance too ‘generalized’
for standing purposes is one characterized by its abstract and
indefinite nature—for example, harm to the common
concern for obedience to law.” Id.Plaintiffs argue that the DNC has satisfied injury in fact
on the basis of its “competitive standing,” explaining that the
Ballot Order Statute “frustrat[es] its mission and efforts to
elect Democratic Party candidates” by allegedly diverting
MECINAS V. HOBBS 11
more votes to Republicans than Democrats, thereupon
giving the Republican Party an unfair advantage.
We first recognized the doctrine of competitive standing
in Owen v. Mulligan, 640 F.2d 1130 (9th Cir. 1981). In that
case, a candidate and “Republic[an] Committee members”
sued the U.S. Postal Service for giving an opponent a
cheaper mailing rate, in violation of its own regulations and
a previous injunction. Id. at 1132–33. The Postal Service
argued that the “potential loss of an election” was “too
remote, speculative, and unredressable to confer standing.”
Id. at 1132. Rejecting that argument, we recognized both the
candidate’s and the party officials’ standing to sue “to
prevent their opponent from gaining an unfair advantage in
the election process through abuses of mail preferences
which arguably promote his electoral prospects.” Id. at 1133.
We next addressed competitive standing in Drake v.
Obama, 664 F.3d 774, 778 (9th Cir. 2011), a case involving
a challenge to President Obama’s eligibility to serve as
President brought by a group of plaintiffs that included
Presidential candidates. There, we reaffirmed Owen’s
holding that, as relevant to this case, the “potential loss of an
election [is] an injury-in-fact sufficient to give . . . party
officials standing” to challenge an offending election
regulation. Id. at 783. Ultimately, we held that the candidate-
plaintiffs lacked standing because, by the time they had filed
their suit, the election had already passed and they were thus
no longer candidates. Id. at 783–84. However, we
distinguished the facts of that case from one in which a
plaintiff—like Plaintiffs here—challenged “an ongoing
practice that would have produced an unfair advantage in the
next election.” Id.at 783 n.3.
Citing Owen and Drake, Plaintiffs argue that, like the
party committee members in Owen, the DNC, as the
12 MECINAS V. HOBBS
operational arm of the Democratic Party, see 52 U.S.C.
§ 30101(14), has standing to sue based on the ongoing,
unfair advantage conferred to their rival candidates by the
Ballot Order Statute. We agree. If an allegedly unlawful
election regulation makes the competitive landscape worse
for a candidate or that candidate’s party than it would
otherwise be if the regulation were declared unlawful, those
injured parties have the requisite concrete, non-generalized
harm to confer standing. 3
This principle is neither novel nor unique to the realm of
the electoral. Competitive standing recognizes the injury that
results from being forced to participate in an “illegally
structure[d] competitive environment,” Shays v. Fed.
Election Comm’n, 414 F.3d 76, 87 (D.C. Cir. 2005), a type
of harm that we have identified in a variety of different
contexts, see, e.g., City of Los Angeles v. Barr, 929 F.3d
1163, 1173 (9th Cir. 2019) (“[The] inability to compete on
an even playing field constitutes a concrete and
particularized injury.”); Preston v. Heckler, 734 F.2d 1359,
1365 (9th Cir. 1984) (“[W]hen challenged agency conduct
allegedly renders a person unable to fairly compete for some
benefit, that person has suffered a sufficient ‘injury in fact’
and has standing . . . .”). Accordingly, a number of our sister
Circuits have come to the same conclusion as we do here in
similar cases involving ballot order statutes. See Pavek v.
Donald J. Trump for President, Inc., 967 F.3d 905, 907 (8th
Cir. 2020) (per curiam) (political committees, including the
3
That both a candidate and a candidate’s political party can assert
standing based on their shared interest in “fair competition,” see Drake,
664 F.3d at 782, follows not only from our decision in Owen, which held
as much, see 640 F.2d at 1132, but also from the fact that typically, and
as Plaintiffs alleged here, “after the primary election, a candidate steps
into the shoes of his party, and their interests are identical,” Texas
Democratic Party v. Benkiser, 459 F.3d 582, 588 (5th Cir. 2006).
MECINAS V. HOBBS 13
DSCC, had standing to challenge Minnesota’s ballot order
statute “insofar as it unequally favors supporters of other
political parties”); Green Party of Tenn. v. Hargett, 767 F.3d
533, 544 (6th Cir. 2014) (political parties had standing to
challenge ballot order statute because they were “subject to
the ballot-ordering rule” and supported candidates “affected
by” the law); see also Nelson v. Warner, 12 F.4th 376, 384
(4th Cir. 2021) (candidate had standing to challenge ballot
order statute that “allegedly injure[d] his chances of being
elected”).
Contrary to these established principles, the district court
rejected the DNC’s competitive standing theory, relying
principally on our decision in Townley v. Miller, 722 F.3d
1128 (9th Cir. 2013). In that case, the Nevada Republican
Party, along with other plaintiffs, challenged a statute
mandating the appearance of a “none of these candidates”
(“NOTC”) option on the ballot, which the Party alleged
would cause its candidates to receive fewer votes and thus
harm its chances in an election. Id. at 1135. “Assuming
without deciding” that the Republican Party had satisfied
“standing’s injury-in-fact requirement” on the basis of its
alleged competitive harm, we held that standing failed for
the separate reason that the “causation/traceability and
redressability requirements” were not met. Id. at 1135–36.
The reason was simple: The Party did not challenge the
appearance of the NOTC option on the ballot (which it
conceded was legal) but only that votes for that option were
given no legal effect. Id. at 1136. Because the alleged
siphoning effect would give rise to injury regardless of
whether the option was given legal effect or not, the
challenged aspect of the statute was “immaterial to
plaintiffs’ alleged competitive injury.” Id.
14 MECINAS V. HOBBS
The district court characterized the Townley decision as
“narrow[ing] the scope of competitive standing,” stating that
this Court “declined to find competitive standing” on the
ground that the “inclusion of an ‘NOTC’ was not the
[impermissible] inclusion of a candidate on the ballot.” This
was in error. Rather than narrowing competitive standing as
a basis for injury in fact, Townley reasserted this Court’s
long-held position that the “potential loss of an election”
may give rise to standing. 722 F.3d at 1135–36 (quoting
Drake, 664 F.3d at 783–84). 4
Further, because the injury is the burden of being forced
to compete under the weight of a state-imposed
disadvantage, we reject the Secretary’s argument that
“Plaintiffs must show”—or rather, allege, given the current
procedural posture—“that the primacy effect has changed
(or will imminently change) the actual outcome of a partisan
election.” The Secretary suggests that, absent the allegation
of a changed outcome, “Plaintiffs’ purported injury remains
‘conjectural’ or ‘hypothetical,’” citing in support the
Supreme Court’s decision in Gill v. Whitford, 138 S. Ct.
1916 (2018). But Gill offers no support for that position. In
that case, the Supreme Court held that, in order to establish
standing to challenge an allegedly unconstitutional
gerrymander on the basis of a voter-dilution theory, a voter-
plaintiff must show that he or she resides in a gerrymandered
district, explaining that absent such a showing the voter lacks
a sufficiently “particularized” injury. Id. at 1926, 1934. It
4
In any case, Townley could not have narrowed the doctrine adopted
in Owen (and reaffirmed in Drake) because it was the decision of a three-
judge panel. See Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001)
(“Once a panel resolves an issue in a precedential opinion, the matter is
deemed resolved, unless overruled by the court itself sitting en banc, or
by the Supreme Court.”).
MECINAS V. HOBBS 15
thus left undisturbed the distinct and established competitive
standing doctrine. See id. at 1937–38 (Kagan, J., concurring)
(“Everything said so far relates only to suits alleging that a
partisan gerrymander dilutes individual votes. That is the
way the Court sees this litigation.”).
We thus conclude that the DNC has sufficiently pled an
injury in fact.
2. Traceability and Redressability
The Secretary also argues that even if Plaintiffs could
demonstrate an injury in fact, they cannot meet the two
elements of standing not addressed by the district court—
traceability and redressability. See Lujan, 504 U.S. at 560–
61. “[T]he ‘fairly traceable’ and ‘redressability’ components
for standing overlap and are ‘two facets of a single causation
requirement.’” Washington Env’t Council v. Bellon,
732 F.3d 1131, 1146 (9th Cir. 2013) (quoting Allen, 468 U.S.
at 753 n.19). However, they are distinct in that traceability
“examines the connection between the alleged misconduct
and injury, whereas redressability analyzes the connection
between the alleged injury and requested relief.” Id.To establish traceability, “there must be a causal
connection between the injury and the conduct complained
of—the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the independent
action of some third party not before the court.” Lujan,
504 U.S. at 560. The Secretary argues that Plaintiffs cannot
establish traceability because neither the challenged section
of the Ballot Order Statute, A.R.S. § 16-502(E), nor the
provision that directs the board of supervisors in Arizona’s
counties to prepare and print ballots, A.R.S. § 16-503,
mentions the Secretary. See Jacobson v. Fla. Sec’y of State,
974 F.3d 1236, 1253–54 (11th Cir. 2020) (plaintiff failed to
16 MECINAS V. HOBBS
plead an injury traceable to the Florida Secretary of State
where the challenged ballot order statute “tasks the
Supervisors, independently of the Secretary, with printing
the names of candidates on ballots in the order prescribed by
the ballot statute”). Similarly, the Secretary argues that
Plaintiffs’ claims and relief sought fail for lack of
redressability because “[a]n injunction ordering the
Secretary not to follow the ballot statute’s instructions for
ordering candidates cannot provide redress, for neither she
nor her agents control the order in which candidates appear
on the ballot.” Id. at 1254.
However, while the county supervisors print the ballots
under A.R.S. § 16-503, they have no discretion in ordering
candidate names. Rather they are bound to follow the Statute
and the Election Procedures Manual, which is promulgated
by the Secretary as a matter of Arizona law. See A.R.S. § 16-
452(C) (“A person who violates any rule adopted [by the
Secretary in the Manual] is guilty of a class 2
misdemeanor.”). The Manual, which contains detailed
instruction on ballot design and expressly requires counties
to order candidates’ names on ballots in accordance with the
Statute, is promulgated by the Secretary in the context of her
role as Arizona’s “chief state election officer,” A.R.S. § 16-
142(A)(1), who is tasked with “prescrib[ing] rules to achieve
and maintain the maximum degree of correctness,
impartiality, uniformity and efficiency on the procedures for
early voting and voting, and of producing, distributing,
collecting, counting, tabulating and storing ballots,” A.R.S.
§ 16-452(A). 5 Indeed, relying on the Secretary’s role in
5
Because the Secretary has a role in overseeing the ballots, in
contrast to the Florida Secretary of State, who “is responsible only for
certifying” the nominees, the Eleventh Circuit’s Jacobson decision is
inapposite. 974 F.3d at 1253.
MECINAS V. HOBBS 17
“promulgat[ing] rules . . . applicable to and mandatory for
the statewide . . . elections,” we have previously held that a
challenged Arizona election law was traceable to the
Secretary. Arizona Libertarian Party, Inc. v. Bayless,
351 F.3d 1277, 1281 (9th Cir. 2003). The same holds true
here.
Redressability is satisfied so long as the requested
remedy “would amount to a significant increase in the
likelihood that the plaintiff would obtain relief that directly
redresses the injury suffered.” Renee v. Duncan, 686 F.3d
1002, 1013 (9th Cir. 2012). Because, as noted above, the
Secretary is statutorily delegated the authority to “prescribe
rules” for “producing [and] distributing” ballots in
accordance with the Statute, A.R.S. § 16-452(A), the
counties would have no choice but to follow a mandate from
her directing them to order the ballots pursuant to a court’s
injunction. The Secretary does not dispute this point.
Instead, she argues that her ability to adhere to a court’s
injunction may be stymied by the governor or the attorney
general, both of whom must approve the Manual before it
can go into effect. See id. § 16-452(B). But this is of no
moment. “Plaintiffs need not demonstrate that there is a
‘guarantee’ that their injuries will be redressed by a
favorable decision.” Renee, 686 F.3d at 1013. Having shown
that an injunction against the Secretary would
“significant[ly] increase” the likelihood of relief, Plaintiffs
have met their burden as to redressability. Id.
Thus, at least with regard to the DNC, Plaintiffs have
satisfied all three elements of standing.
B. Political Question
In addition to dismissing for lack of standing, the district
court held that Plaintiffs’ suit was nonjusticiable under the
18 MECINAS V. HOBBS
political question doctrine. In general, a federal court “has a
responsibility to decide cases properly before it, even those
it ‘would gladly avoid.’” Zivotofsky ex rel. Zivotofsky v.
Clinton, 566 U.S. 189, 194 (2012) (quoting Cohens v.
Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)). To this rule,
the political question doctrine operates as only a “narrow
exception.” Id. Accordingly, the Supreme Court has limited
its application to those few cases where there is either “a
textually demonstrable constitutional commitment of the
issue to a coordinate political department” or “a lack of
judicially discoverable and manageable standards for
resolving it.” Nixon v. United States, 506 U.S. 224, 228,
(1993) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)).
As we have explained, “courts should undertake a
discriminating case-by-case analysis to determine whether
[a] question posed lies beyond judicial cognizance” under
this doctrine. Alperin v. Vatican Bank, 410 F.3d 532, 545
(9th Cir. 2005).
In finding Plaintiffs’ challenge to the Ballot Order
Statute nonjusticiable for lack of manageable standards, the
district court—adopting the Eleventh Circuit’s reasoning in
Jacobson, 974 F.3d at 1260–63—invoked the Supreme
Court’s recent decision in Rucho v. Common Cause, 139 S.
Ct. 2484, 2491 (2019), a case involving challenges to two
states’ congressional districting maps as unconstitutional
partisan gerrymanders. There, the Court concluded that,
given its precedent allowing legislatures “to take partisan
interests into account when drawing district lines,”
adjudicating just “how much” partisan gerrymandering “is
too much” presents questions of “fairness” not suitable for
judicial resolution. Id. at 2497, 2500–01. Relying on this
language, the district court held that the present case was
similarly nonjusticiable, characterizing Plaintiffs’ complaint
MECINAS V. HOBBS 19
as calling on the court to decide what constitutes a “fair”
ballot ordering system.
But, in so holding, the district court overlooked the
narrow scope of the Rucho decision, which the Supreme
Court explicitly linked to its “struggle[] without success over
the past several decades to discern judicially manageable
standards for deciding” partisan gerrymandering claims. Id.
at 2491. The Court explicitly distinguished partisan
gerrymandering claims as “more difficult to adjudicate” than
other election-related challenges, namely districting
challenges grounded in “one-person, one-vote” violations
and racial discrimination. Id. at 2497. As such, “[n]othing
about the Court’s language . . . suggests that the holding in
Rucho is applicable outside the context of partisan
gerrymandering claims.” Nelson, 12 F.4th at 387. 6
Indeed, adjudicating a challenge to a ballot order statute
does not present the sort of intractable issues that arise in
partisan gerrymandering cases. While cases like Rucho
require “reallocating power and influence between political
parties” through complicated exercises in (literal) line-
6
Contrary to the suggestion of the district court, our decision in
Juliana v. United States, 947 F.3d 1159 (9th Cir. 2020), did not extend
Rucho’s reasoning to find claims related to climate change nonjusticiable
under the political question doctrine. See id. at 1174 n.9 (“we do not find
this to be a political question”). Rather, in that case, we found that the
plaintiffs could not satisfy the redressability element of standing because
the relief sought—“a comprehensive scheme to decrease fossil fuel
emissions and combat climate change”—was inconsistent with the
limited remedial authority of federal courts siting in equity. Id. at 1171–
73; see also Guar. Tr. Co. of N.Y. v. York, 326 U.S. 99, 105 (1945)
(“Equitable relief in a federal court is of course subject to restrictions,”
including that “the suit must be within the traditional scope of equity as
historically evolved in the English Court of Chancery[.]”). That issue is
not present here.
20 MECINAS V. HOBBS
drawing, 139 S. Ct. at 2502, there is no comparable difficulty
in constructing a ballot ordering scheme that lists candidates
on a basis other than political party affiliation. Whether it be
at random, through the sort of rotation system required in
Arizona’s primary election, see A.R.S. § 16-502(H), or by
some other method, “[a]ny system that orders candidates on
a basis other than party affiliation remedies the constitutional
concern,” Jacobson, 974 F.3d at 1301 (Pryor, Jill, J.,
dissenting). It is thus no surprise that, in contrast to the
Court’s persistent struggle to address partisan
gerrymandering claims, federal courts—as well as state
courts 7—have adjudicated the merits of ballot order disputes
for decades. See Nelson, 12 F.4th at 387 (collecting cases).
Notably, this includes the U.S. Supreme Court, which, in a
summary affirmance over an objection premised on the
political question doctrine, upheld a district court’s finding
that an incumbent-favoring ballot order policy was a
“purposeful and unlawful invasion of [the] plaintiffs’
Fourteenth Amendment right to fair and evenhanded
treatment.” Mann v. Powell, 314 F. Supp. 677, 679 (N.D. Ill.
1969), aff’d, 398 U.S. 955 (1970).
More particularly, there is no reason to conclude that the
Supreme Court’s Rucho opinion “call[s] into question the
use of the Anderson[-]Burdick framework,” the
constitutional test that “[c]ourts regularly [use to] evaluate
and adjudicate disputes regarding the lawfulness of state
7
For example, in Kautenberger v. Jackson, 85 Ariz. 128, 129
(1958), the Arizona Supreme Court considered a challenge under the
state constitution to a law that required rotating candidates’ names on
paper ballots in primary elections but maintained a fixed ballot order on
machine ballots. The court held that Arizona’s constitution required
name rotation due to the “well-known fact” that “where there are a
number of candidates for the same office, the names appearing at the
head of the list have a distinct advantage.” Id. at 131.
MECINAS V. HOBBS 21
[election] statutes, including ballot-order statutes.” Nelson,
12 F.4th at 387; Soltysik v. Padilla, 910 F.3d 438, 444 (9th
Cir. 2018) (“Our court has applied [the Anderson-Burdick]
test to a wide variety of challenges to ballot regulations and
other state-enacted election procedures.”). Under the
Anderson-Burdick test, a court identifies the “character and
magnitude of the asserted injury to the rights protected by
the First and Fourteenth Amendments that the plaintiff seeks
to vindicate” and then weighs the 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); see Anderson v. Celebrezze, 460 U.S. 780,
789 (1983).
As reflected in the Supreme Court’s use of Anderson-
Burdick to adjudicate claims that state election laws
unconstitutionally burden political parties’ rights, the test
provides precisely the sort of judicially manageable standard
that renders a case such as the instant one amenable to
adjudication. See, e.g., Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 357–64 (1997) (applying test to
Minnesota law prohibiting candidates from appearing on
ballot as candidate of more than one political party). Because
the Anderson-Burdick test is available to review Plaintiffs’
constitutional challenges, we conclude that we can
“comfortably employ[] judicially manageable standards” in
adjudicating the merits of the claims at issue here. Pavek,
967 F.3d at 907.
We therefore hold that the political question doctrine
does not render the merits of this case nonjusticiable. 8
8
The district court further erred insofar as it based its finding of
nonjusticiability on its determination that, as a factual matter, Plaintiffs
22 MECINAS V. HOBBS
C. Eleventh Amendment
The Secretary further argues that even if we disagree
with both of the district court’s jurisdictional holdings, we
can nevertheless affirm the dismissal on the ground that
Plaintiffs’ suit is barred by Eleventh Amendment immunity.
The Eleventh Amendment has been “construed to prohibit
federal courts from entertaining suits brought by a state
citizen against the state or its instrumentality in the absence
of consent.” Culinary Workers Union, Loc. 226 v. Del Papa,
200 F.3d 614, 619 (9th Cir. 1999). However, under Ex parte
Young, 209 U.S. 123 (1908), this immunity is subject to an
exception for “actions for prospective declaratory or
injunctive relief against state officers in their official
capacities for their alleged violations of federal law” so long
as the state officer has “some connection with enforcement
of the act.” Coal. To Defend Affirmative Action v. Brown,
674 F.3d 1128, 1134 (9th Cir. 2012) (quoting Ex parte
Young, 209 U.S. at 157).
The question of whether there is the requisite
“connection” between the sued official and the challenged
law implicates an analysis that is “closely related—indeed
overlapping”—with the traceability and redressability
inquiry already discussed. Culinary Workers, 200 F.3d
at 619 (quoting Okpalobi v. Foster, 190 F.3d 337, 347 (5th
Cir.1999)); see also Planned Parenthood of Idaho, Inc. v.
Wasden, 376 F.3d 908, 919 (9th Cir. 2004) (noting that the
two inquiries share a “common denominator”). Accordingly,
“did not meet their burden” of establishing “the existence of any ballot
order effect in Arizona.” Because the existence of such an effect is
unquestionably an issue intertwined with the merits, the district court
was not permitted to resolve this question of fact on a motion to dismiss.
See Augustine, 704 F.2d at 1077.
MECINAS V. HOBBS 23
the Secretary argues, as she did in connection to standing,
that she lacks sufficient connection to the Ballot Order
Statute because she is merely the chief state election officer,
not the one who prints the ballots. In support of this position,
the Secretary cites the Fifth Circuit’s decision in Mi Familia
Vota v. Abbott, 977 F.3d 461, 468–69 (5th Cir. 2020), in
which the court held that a claim challenging a prohibition
against the use of paper ballots did not fall within the Ex
parte Young exception as applied to the Texas Secretary of
State because county officials, and not the Secretary of State,
were statutorily responsible for printing ballots.
The decision in Mi Familia Vota, however, was premised
on a finding that an injunction against the Texas Secretary of
State would still leave local officials with enough discretion
to prevent meaningful relief, see id. at 467–68, whereas in
Arizona, in contrast, the Secretary has clear duties to oversee
ballot production, including, as already discussed, through
the promulgation of the Manual, which the county officials
have no discretion to disregard, A.R.S. §§ 16-452(A), (C).
The “connection” required under Ex parte Young demands
merely that the implicated state official have a relevant role
that goes beyond “a generalized duty to enforce state law or
general supervisory power over the persons responsible for
enforcing the challenged provision.” Planned Parenthood,
376 F.3d at 919. Here, given the Secretary’s role in
promulgating the Election Procedures Manual, that modest
requirement is far exceeded. The Secretary is thus properly
named as a defendant under Ex parte Young.
Having decided that Plaintiffs’ suit against the Secretary
presents a justiciable case or controversy, we now turn to the
merits.
24 MECINAS V. HOBBS
D. The Merits
The right to vote is “preservative of all rights.” Yick Wo
v. Hopkins, 118 U.S. 356, 370 (1886). As such, voting is
accorded “the most fundamental significance under our
constitutional structure.” Burdick, 504 U.S. at 433. But,
“[o]n the other hand, the Constitution assigns to the States
the duty to regulate elections, and election laws ‘invariably
impose some burden upon individual voters.’” Arizona
Democratic Party v. Hobbs, 18 F.4th 1179, 1186 (9th Cir.
2021) (quoting Burdick, 504 U.S. at 433). Moreover, “as a
practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic
processes.” Id. at 1186–87 (quoting Storer v. Brown,
415 U.S. 724, 730 (1974)).
To balance these competing concerns, the Supreme
Court “devised [the Anderson-Burdick test as] a ‘flexible
standard’ for assessing laws that regulate elections.” Id.
at 1187 (quoting Burdick, 504 U.S. at 434). “This is a sliding
scale test, where the more severe the burden, the more
compelling the state’s interest must be.” Soltysik, 910 F.3d
at 444. “A law that imposes a ‘severe’ burden on voting
rights must meet strict scrutiny.” Hobbs, 18 F.4th at 1187
(quoting Burdick, 504 U.S. at 434). “Lesser burdens,
however, trigger less exacting review, and a State’s
‘important regulatory interests’ will usually be enough to
justify ‘reasonable, nondiscriminatory restrictions.’”
Timmons, 520 U.S. at 358 (quoting Burdick, 504 U.S.
at 434).
In assessing Plaintiffs’ challenge to the Ballot Order
Statute, the first step, as already noted, is to consider “the
character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the
MECINAS V. HOBBS 25
plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789.
Here, Plaintiffs assert a cognizable injury resulting from the
“primacy effect,” which Plaintiffs allege is so substantial so
as to give “Republican candidates . . . a significant, state-
mandated advantage, up and down the slate of partisan
races,” violating the First and Fourteenth Amendments by
diluting votes for candidates whose party the Statute
disfavors and conferring an unfair political advantage on
certain candidates solely because of their partisan affiliation.
See, e.g., McLain v. Meier, 637 F.2d 1159, 1165–67 (8th Cir.
1980) (incumbent-first statute “burden[ed] the fundamental
right to vote possessed by supporters of the last-listed
candidates” and violated equal protection); Sangmeister v.
Woodard, 565 F.2d 460, 467 (7th Cir. 1977) (policy of
awarding first position on the ballot to the incumbent party
violated equal protection); Mann, 314 F. Supp. at 679
(favoring incumbents when breaking ballot order ties
violated “Fourteenth Amendment right to fair and
evenhanded treatment”), aff’d, 398 U.S. 955.
The Secretary urges us to deem “any burden” imposed
by the Statute as “negligible” and thus justified by the state’s
interest in “establish[ing] a manageable ballot layout.” But
the magnitude of the asserted injury is a function of the
“primacy effect,” presenting factual questions that cannot be
resolved on a motion to dismiss. See Soltysik, 910 F.3d
at 449. For example, the complaint alleged that in the 2020
election cycle, more than “80% of Arizona’s voters [would]
be presented with ballots in which the names of Republican
candidates [were] listed first for every single partisan race.”
And, as noted, the Arizona Supreme Court has characterized
the “distinct advantage” arising from a candidate’s name
appearing at the head of a ballot as a “well-known fact.”
Kautenberger, 85 Ariz. at 131. Moreover, even if the burden
imposed is, as the Secretary contends, “not severe,” that is
26 MECINAS V. HOBBS
not the end of our inquiry. Soltysik, 910 F.3d at 445. Even a
ballot measure “not severe enough to warrant strict scrutiny”
may well be “serious enough to require an assessment of
whether alternative methods would advance the proffered
governmental interests.” Id. at 450. And given that Arizona’s
asserted interest in a manageable ballot could seemingly be
effectuated through a nondiscriminatory ordering system,
“judgment in the Secretary’s favor is premature” at this
juncture. Id.
Accordingly, we reverse the district court’s order and
judgment dismissing Plaintiffs’ claims with prejudice and
remand for further proceedings consistent with this Opinion.
REVERSED AND REMANDED.