Jeffrey Short v. Edmund Brown, Jr.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY SHORT; TRINA T.R. HETER; No. 18-15775
SACRAMENTO VALLEY LINCOLN
CLUB, D.C. No.
Plaintiffs-Appellants, 2:18-cv-00421-
TLN-KJN
v.
EDMUND G. BROWN, JR.; ALEX OPINION
PADILLA, in his official capacity as
Secretary of State of California; JILL
LAVINE, in her official capacity as
Registrar of Voters for the County of
Sacramento; REBECCA MARTINEZ, in
her official capacity as Registrar of
Voters for the County of Madera;
GREGORY J. DIAZ, in his official
capacity as Registrar of Voters for
the County of Nevada,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted June 8, 2018
Pasadena, California
Filed June 22, 2018
2 SHORT V. BROWN
Before: Kermit V. Lipez, * Richard C. Tallman,
and John B. Owens, Circuit Judges.
Opinion by Judge Owens
SUMMARY **
Voting Law / Preliminary Injunction
The panel affirmed the district court’s denial of
plaintiffs’ request for an order preliminarily enjoining the
California Voter’s Choice Act (“VCA”).
California decided to adopt an all-mailed ballot election
system, and enacted the VCA. The VCA’s county-by-
county structure permits voters in some counties to receive a
ballot by mail automatically, while requiring voters in other
counties to register to receive a ballot by mail. Plaintiffs
alleged that the VCA violated the Fourteenth Amendment’s
Equal Protection Clause by restricting the fundamental right
to vote on the basis of county of residence without sufficient
justification; and sought a preliminary injunction against
enforcement of the VCA.
The panel held that the district court properly denied the
request for a preliminary injunction. The panel held that the
case did not raise “serious questions” under the Supreme
*
The Honorable Kermit V. Lipez, United States Circuit Judge for
the First Circuit, 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.
SHORT V. BROWN 3
Court’s Anderson/Burdick test for constitutional challenges
to state election laws, which provided that strict scrutiny
applied only where the burden on the fundamental right to
vote was severe. See Anderson v. Celebrezze, 460 U.S. 780(1983); Burdick v. Takushi, 504 U.S. 428 (1992). The panel
held that the VCA did not burden anyone’s right to vote, but
instead made it easier for some voters to cast their ballots by
mail. The panel further held that to the extent that having to
register to receive a mailed ballot could be viewed as a
burden, it was an extremely small one that did not demand
serious constitutional scrutiny. The panel also held that
given the slight burden for voters outside the all-mailed
ballot election system counties, California’s general interest
in increasing voter turnout and specific interest in
incremental election-system experimentation adequately
justified the VCA’s geographic distinction.
The panel held that even if the merits question were
close, the district court did not abuse its discretion in
weighing all four of the preliminary injunction factors in
Winters v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).
4 SHORT V. BROWN
COUNSEL
Jason Brett Torchinsky (argued), Holtzman Vogel Josefiak
Torchinsky PLLC, Warrenton, Virginia; Brian Hildreth, Bell
McAndrews and Hiltachk, Sacramento, California; for
Plaintiffs-Appellants.
Benjamin Matthew Glickman (argued), Deputy Attorney
General; Mark R. Beckington, Supervising Deputy Attorney
General; Thomas S. Patterson, Senior Assistant Attorney
General; Xavier Becerra, Attorney General; Office of the
Attorney General, Sacramento, California; for Defendants-
Appellees.
OPINION
OWENS, Circuit Judge:
Jeffrey Short, Trina T.R. Heter, and the Sacramento
Valley Lincoln Club (“appellants”) appeal from the district
court’s denial of their request for an order preliminarily
enjoining the California Voter’s Choice Act, S.B. 450,
2015–2016 Reg. Sess. (Cal. 2016) (“VCA”). We have
jurisdiction under 28 U.S.C. § 1292(a)(1), and we affirm. 1
1
The district court “assume[d] for purposes of [its] Order that the
[Sacramento Valley Lincoln] Club does not have standing.” Neither
party addresses this issue on appeal, and we need not reach it in the
posture of an appeal from the denial of a preliminary injunction. Cf. Am.
Motorcyclist Ass’n v. Watt, 714 F.2d 962, 965 (9th Cir. 1983).
SHORT V. BROWN 5
I. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
A. Voter Turnout and the VCA
In 2014, California voters made a poor showing at the
polls. Turnout was historically low: only 25% of registered
voters participated in the June 2014 primary, and only 42%
in the November 2014 general election. 2 To increase
voluntary participation in the democratic process—a right
that people around the world are willing to die for—
California enacted the VCA.
To solve the problem of California voters “mailing in”
recent elections, California decided to adopt an all-mailed
ballot election system. Under this system, which is modeled
after Colorado’s successful election system, 3 a ballot is
automatically mailed to every registered voter twenty-nine
days before the election date. Cal. Elec. Code
§ 4005(a)(8)(A). A voter may cast a completed ballot in one
of three ways: by (1) mailing it in; (2) depositing the ballot
at a designated “ballot dropoff location” (a large locked
mailbox); or (3) turning in the ballot at a “vote center” (a
voting-resource hub that replaces traditional polling places).
Id. at § 4005(a)(1)–(2). The voter may cast his ballot by mail
or at a dropoff location as soon as he receives it.
Rather than require all fifty-eight of California’s
counties to implement this new voting system immediately,
2
Cal. S. Comm. on Elections & Constitutional Amendments,
Analysis of S.B. No. 450, at 6 (Cal. Aug. 18, 2016) (“Senate Elections
Committee Report”).
3
Senate Elections Committee Report at 7.
6 SHORT V. BROWN
the VCA authorizes fourteen counties to opt in to the all-
mailed procedure on or after January 1, 2018. 4 Id. at
§ 4005(a). All other counties may opt in to the all-mailed
system on or after January 1, 2020. 5 Id. Within six months
of each election conducted under the all-mailed system, the
California Secretary of State must submit to the legislature a
detailed report assessing turnout and other metrics of
success. Id. at § 4005(g). The parties agree that in any given
county, election participation will be higher under the all-
mailed ballot election system than it would be under the
traditional polling-place system.
Even before the VCA’s enactment, California voters
could opt to vote by mail on an individual basis. 6 Id. at
4
The counties are Calaveras, Inyo, Madera, Napa, Nevada, Orange,
Sacramento, San Luis Obispo, San Mateo, Santa Clara, Shasta, Sierra,
Sutter, and Tuolumne. Cal. Elec. Code § 4005(a). Neither the legislative
history nor the record identifies why these fourteen counties were
selected. So far, five counties—Madera, Napa, Nevada, Sacramento,
and San Mateo—have opted in.
5
For Los Angeles County—the most populous in the state—the
VCA establishes an additional “vote center election” option, essentially
a hybrid between the traditional polling-place system and the new all-
mailed system. Los Angeles County may adopt that hybrid system on or
after January 1, 2020, for up to four years. After four years of using the
hybrid system, Los Angeles County must either adopt an all-mailed
ballot election system or revert to the traditional polling-place system.
Cal. Elec. Code § 4007.
6
A voter wishing to do so could: (1) submit a written application
for a vote-by-mail ballot on or before the seventh day before election
day; (2) submit an electronic request through the county election
official’s website; (3) request a vote-by-mail ballot by telephone; or
(4) request to be a permanent vote-by-mail voter (and thus to be
SHORT V. BROWN 7
§ 3003. Under the VCA, this option remains available to
individual voters whose home county has not opted in to the
all-mailed ballot election system. 7
B. This Lawsuit
At the end of February 2018, the appellants filed this
lawsuit, alleging that the VCA violated the Fourteenth
Amendment’s Equal Protection Clause by restricting the
fundamental right to vote on the basis of county of residence,
without sufficient justification. The appellants also sought a
preliminary injunction against enforcement of the VCA.
The district court rejected the request for a preliminary
injunction. While the district court thought that the
appellants had “raised serious questions on the merits,” it
concluded that they had not met their burden of showing that
a preliminary injunction would be in the public interest. This
timely appeal followed, and we granted the appellants’
unopposed motion to expedite it.
II. DISCUSSION
A. Standard of Review
Plaintiffs seeking a preliminary injunction must establish
that: (1) they are likely to succeed on the merits; (2) they are
likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in their
automatically mailed a ballot for every election). Cal. Elec. Code
§§ 3001, 3007.7, 3007.8, 3201, 3206.
7
Under the VCA, all vote-by-mail voters may cast their ballot by
mail or in person at any polling place, vote center, or dropoff location in
the state. Cal. Elec. Code § 3017(a).
8 SHORT V. BROWN
favor; and (4) an injunction is in the public interest. Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). The
Ninth Circuit weighs these factors on a sliding scale, such
that where there are only “serious questions going to the
merits”—that is, less than a “likelihood of success” on the
merits—a preliminary injunction may still issue so long as
“the balance of hardships tips sharply in the plaintiff’s
favor” and the other two factors are satisfied. Shell Offshore,
Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)
(quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1135 (9th Cir. 2011)).
When the preliminary relief sought would interfere with
state voting procedures shortly before an election, a court
considering such relief must weigh, “in addition to the harms
attendant upon issuance or nonissuance of an injunction,
considerations specific to election cases and its own
institutional procedures.” Purcell v. Gonzalez, 549 U.S. 1, 4
(2006) (per curiam). Of course, where a state election law
raises constitutional concerns, federal courts can and must
review it. Baker v. Carr, 369 U.S. 186, 199–200 (1962). But
the Supreme Court has warned us many times to tread
carefully where preliminary relief would disrupt a state
voting system on the eve of an election. See, e.g., Purcell,
549 U.S. at 4–6; Williams v. Rhodes, 393 U.S. 23, 35 (1968);
Reynolds v. Sims, 377 U.S. 533, 585 (1964).
We review for abuse of discretion a district court’s
decision to deny a preliminary injunction, but we review de
novo the conclusions of law underlying that decision. Shell
Offshore, 709 F.3d at 1286. We review findings of fact for
clear error. Id.
SHORT V. BROWN 9
B. The District Court Properly Denied the Request for a
Preliminary Injunction
The district court in this case believed that the appellants
had raised “serious questions on the merits,” but it denied the
preliminary injunction based on the fourth Winter factor.
The district court’s balancing of the Winter factors was not
an abuse of discretion. However, more fundamentally, we
do not think that this case raises “serious questions” under
the Supreme Court’s Anderson/Burdick test for
constitutional challenges to state election laws, and so we
agree that preliminary relief is not warranted here.
1. The Anderson/Burdick Framework
No one disputes that the right to vote is fundamental.
Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667
(1966). But not all election laws impose constitutionally
suspect burdens on that right. Anderson v. Celebrezze,
460 U.S. 780, 788 (1983). And states retain broad authority
to structure and regulate elections. Sugarman v. Dougall,
413 U.S. 634, 647 (1973). “[A]s 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.” Storer v. Brown,
415 U.S. 724, 730 (1974). An election regulation
“inevitably affects—at least to some degree—the
individual’s right to vote and his right to associate with
others for political ends. Nevertheless, the state’s important
regulatory interests are generally sufficient to justify
reasonable, nondiscriminatory restrictions.” Anderson,
460 U.S. at 788.
Accordingly, a court faced with a constitutional
challenge to a state election law “must first consider the
character and magnitude of the asserted injury to the rights
10 SHORT V. BROWN
. . . that the plaintiff seeks to vindicate.” Id. at 789; see also
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (“[T]he
rigorousness of our inquiry into the propriety of a state
election law depends upon the extent to which a challenged
regulation burdens First and Fourteenth Amendment
rights.”). Next, it “must identify and evaluate the precise
interests put forward by the State as justifications for the
burden imposed by its rule.” Anderson, 460 U.S. at 789.
Those interests must be “sufficiently weighty to justify the
limitation,” Norman v. Reed, 502 U.S. 279, 288–89 (1992)
(citation omitted), and there must be a means-ends fit
between the state’s proffered justification and the rule
employed, Pub. Integrity All., Inc. v. City of Tucson,
836 F.3d 1019, 1024 (9th Cir. 2016) (en banc). Under this
framework, strict scrutiny applies only where the burden on
the fundamental right to vote is severe. Id.
2. Anderson/Burdick In This Case
The appellants argue that the VCA’s county-by-county
structure—permitting voters in some counties to receive a
ballot by mail automatically, while requiring voters in other
counties to register to receive a ballot by mail—inequitably
“dilutes” votes in “disfavored” counties and therefore
warrants strict scrutiny. But this attempt to sidestep more
deferential review to reach strict scrutiny on the
Anderson/Burdick framework fails. As discussed, the
Constitution permits states to impose some burdens on
voters through election regulations, and it requires strict
scrutiny of those regulations only where the burden imposed
is severe. Id.The VCA does not burden anyone’s right to vote.
Instead, it makes it easier for some voters to cast their ballots
by mail, something that California voters already can do. As
for voters outside the counties that have opted in to the all-
SHORT V. BROWN 11
mailed system, their access to the ballot is exactly the same
as it was prior to the VCA’s enactment. To the extent that
having to register to receive a mailed ballot could be viewed
as a burden, it is an extremely small one, and certainly not
one that demands serious constitutional scrutiny. 8 Compare
Burdick, 504 U.S. at 438–39 (concluding that ban on write-
in voting “impose[d] only a limited burden” (citation
omitted)), and Crawford v. Marion Cty. Election Bd.,
553 U.S. 181, 203 (2008) (holding that photo identification
requirement imposed “a limited burden” (citation omitted)),
with Harper, 383 U.S. at 668–70 (invalidating poll tax as a
severe burden), and Ill. State Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 183–84 (1979) (finding a
severe burden where regulations effectively barred political
party from ballot).
To show a severe burden, the appellants rely on Obama
for America v. Husted, in which the Sixth Circuit affirmed
an order enjoining an Ohio statute that shortened the early-
voting period for the general population but not for military
personnel. 697 F.3d 423, 436–37 (6th Cir. 2012). But in
that case, the state effectively penalized one class while
preserving the favorable status quo for another. Moreover,
the plaintiffs “introduced extensive evidence that a
significant number of Ohio voters will in fact be precluded
from voting without the additional three days of in-person
early voting.” Id. at 431. Based on that evidence, the district
court found “that because early voters have
disproportionately lower incomes and less education than
election day voters, and because all evening and weekend
8
Indeed, by asking this court to enjoin the VCA’s operation in the
all-mailed ballot election system counties, the appellants seek to preserve
the very status quo now enjoyed by voters in the so-called “disfavored”
counties.
12 SHORT V. BROWN
voting hours prior to the final weekend were eliminated by
[Ohio law], thousands of voters who would have voted
during those three days will not be able to exercise their right
to cast a vote in person.” Id. (citation and internal quotation
marks omitted). The Sixth Circuit agreed this constituted a
moderate burden on the right to vote. Id. at 433 (“The
burden on non-military Ohio voters is not severe, but neither
is it slight.”).
The appellants, by contrast, have not even alleged—let
alone introduced evidence to demonstrate—that the VCA
will prevent anyone from voting. Nor have the appellants
cited any authority explaining how a law that makes it easier
to vote would violate the Constitution. Even assuming that
a state could convert the status quo into a burden by
facilitating the process for some but not all, the burden in
this case is much less substantial than the moderate one
alleged by the plaintiffs in Obama for America, and thus
certainly not “severe” enough to trigger strict scrutiny on the
Anderson/Burdick scale. Cf. id. at 429, 433.
Next, the appellants cite Gray v. Sanders and Reynolds
v. Sims to argue that treating citizens differently based on
their county of residence constitutes “vote dilution,” a severe
burden triggering strict scrutiny. But those cases stand for
something narrower: that a state may not allocate
representation differently based on a voter’s county of
residence.
In Gray, the Supreme Court invalidated Georgia’s
“county unit” vote-counting system, a sort of county-based
electoral college that selected statewide officials using a
majority of “county unit” votes. 372 U.S. 368, 370–72
(1963). These “county unit” votes were allocated to each
county out of proportion to population, thereby “weight[ing]
the rural vote more heavily than the urban vote and . . . some
SHORT V. BROWN 13
small rural counties heavier than other larger rural counties.”
Id. at 379. This disproportionate weighting, the Court held,
violated the core conception of political equality: “one
person, one vote.” Id. at 381; see also Evenwel v. Abbott,
136 S. Ct. 1120, 1130 (2016) (stating that the state election
system in Gray “contravene[d] the principles of both voter
and representational equality”).
In Reynolds, the Court invalidated a state legislative
apportionment scheme because it allocated state
representatives by county instead of by population, thereby
“diluting” the votes of citizens in more populous counties:
“Their right to vote is simply not the same right to vote as
that of those living in a favored part of the State. Two, five,
or 10 of them must vote before the effect of their voting is
equivalent to that of their favored neighbor.” 377 U.S. at
563; see also Whitcomb v. Chavis, 403 U.S. 124, 141 (1971)
(describing Reynolds as establishing that “apportionment
schemes which give the same number of representatives to
unequal numbers of constituents unconstitutionally dilute
the value of the votes in the larger districts” (citation and
internal quotation marks omitted)); Moore v. Ogilvie,
394 U.S. 814, 817–18 (1969) (“Reynolds . . . held that a State
in an apportionment of state representatives and senators
among districts and counties could not deprive voters in the
more populous counties of their proportionate share of
representatives and senators.”); Wesberry v. Sanders,
376 U.S. 1, 7–8 (1964) (requiring that congressional districts
be drawn with equal populations).
By contrast, the VCA does not allocate representation
differently among voters, so its distinction along county
lines does not trigger heightened scrutiny. Simply put, Gray
and Reynolds are nothing like this case.
14 SHORT V. BROWN
Perhaps the appellants are suggesting that the VCA’s
differential treatment of California counties reveals a
preference for some counties over others, and that this
preference constitutes unconstitutional discrimination. But
this confuses two separate strands of equal protection
doctrine: suspect classifications and fundamental rights.
The first strand bars a state from codifying a preference for
one class over another, but it prescribes heightened scrutiny
only where the classification is drawn from a familiar list—
race, gender, alienage, national origin. See City of Cleburne
v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). The
second strand bars a state from burdening a fundamental
right for some citizens but not for others. Absent some such
burden, however, legislative distinctions merit no special
scrutiny. See McDonald v. Bd. of Election Comm’rs of
Chicago, 394 U.S. 802, 806–08 (1969).
County of residence is not a suspect classification
warranting heightened scrutiny under the first strand.
Importantly, the appellants do not argue that the VCA’s
distinction along county lines is a proxy for some other form
of discrimination—that it is a racial or political gerrymander
disguised as a geographic distinction. Cf. Fortson v. Dorsey,
379 U.S. 433, 439 (1965) (cautioning that the Equal
Protection Clause would not tolerate a districting plan that
“designedly or otherwise . . . operate[d] to minimize or
cancel out the voting strength of racial or political elements
of the voting population”). And as discussed, the appellants
do not allege that the VCA severely burdens the right to vote
for citizens either within or outside the fourteen listed
counties. Accordingly, the VCA’s geographic distinction
does not warrant strict scrutiny.
SHORT V. BROWN 15
3. The VCA Survives Review
Given that the burden is so slight for voters outside the
all-mailed ballot election system counties, California’s
general interest in increasing voter turnout and specific
interest in incremental election-system experimentation
adequately justify the VCA’s geographic distinction. See
Burdick, 504 U.S. at 434, 439–40; cf. McDonald, 394 U.S.
at 809 (observing that under rational basis review, “a
legislature traditionally has been allowed to take reform ‘one
step at a time, addressing itself to the phase of the problem
which seems most acute to the legislative mind’” (quoting
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489
(1955))). We have observed that our democratic federalism
“permits states to serve ‘as laboratories for experimentation
to devise various solutions where the best solution is far from
clear.’” Pub. Integrity, 836 F.3d at 1028 (quoting Ariz. State
Legislature v. Ariz. Indep. Redistricting Comm’n, 135 S. Ct.
2652, 2673 (2015)). By phasing in a new election system
gradually, and by requiring reports on the new system’s
success, California is doing just that.
4. Preliminary Relief Is Not Warranted
In sum, the appellants’ reading of the Supreme Court’s
voting cases would essentially bar a state from implementing
any pilot program to increase voter turnout. Under their
theory, unless California foists a new system on all fifty-
eight counties at once, it creates “unconstitutional vote-
dilution” in counties that do not participate in the pilot plan.
Nothing in the Constitution, the Supreme Court’s controlling
precedent, or our case law suggests that we can
micromanage a state’s election process to this degree. To
the contrary, such an argument ignores the Supreme Court’s
repeated admonition that “States may, and inevitably must,
enact reasonable regulations of parties, elections, and ballots
16 SHORT V. BROWN
to reduce election- and campaign-related disorder.”
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358
(1997); Burdick, 504 U.S. at 433; Anderson, 460 U.S. at 788.
The appellants have not shown serious questions going to the
merits of their constitutional claim.
It follows that denying the request for an injunction was
not an abuse of discretion. And even if the merits question
were close, the district court did not abuse its discretion in
weighing all four Winter factors: California argues, citing
sworn affidavits, that an injunction of the VCA would
seriously disrupt the November 2018 general election due to
the significant time and resources that would be required to
reverse the extensive efforts already undertaken to
implement the new election system in the five opted-in
counties. For example, California asserts that Sacramento
County would be forced to locate 600 polling places and
3,000 poll workers, and expend $8 million to procure the
required equipment. California also maintains that changing
the voting system between the primary and general elections
would result in voter confusion and disenfranchisement.
The appellants have entirely failed to refute this. They argue
only that California has sufficient time between now and the
November 2018 election to make the necessary changes.
But they do not meaningfully dispute that these changes
would be exceedingly difficult, and would “themselves
result in voter confusion and consequent incentive to remain
away from the polls.” Purcell, 549 U.S. at 4–5. The district
court concluded that the appellants had failed to justify such
a disruptive injunction, see id. at 4, and we agree.
AFFIRMED.