Emidio Soltysik v. Alex Padilla

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMIDIO SOLTYSIK, No. 16-55758
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-07916-
AB-GJS
ALEX PADILLA, official capacity as
Secretary of State; DEAN LOGAN,
official capacity as Registrar- OPINION
Recorder/County Clerk of the
County of Los Angeles,
Defendants-Appellees,
and
CALIFORNIANS TO DEFEND THE OPEN
PRIMARY,
Intervenor-Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
André Birotte, Jr., District Judge, Presiding
Argued and Submitted February 8, 2018
Pasadena, California
Filed December 3, 2018
2 SOLTYSIK V. PADILLA
Before: William A. Fletcher, Johnnie B. Rawlinson, *
and John B. Owens, Circuit Judges.
Opinion by Judge Owens;
Partial Dissent by Judge Rawlinson
SUMMARY **
Civil Rights
The panel reversed the district court’s dismissal of an
action brought pursuant to 42 U.S.C. § 1983 by a candidate
for public office in California challenging the California
Elections Code, which mandates that the primary ballot list
his party preference as “None” when in reality he prefers the
Socialist Party USA.
California permits a candidate’s preference for a
statutory defined qualified political party to appear on
election ballots, but does not allow a candidate’s preference
for a nonqualified political party to appear on ballots and
instead indicates the candidate’s party preference in such
situations as “None.” The Socialist Party USA is not one of
California’s six qualified parties.
*
Judge Rawlinson was drawn to replace Judge Reinhardt on the
panel following his death. Ninth Circuit General Order 3.2h. Judge
Rawlinson has read the briefs and reviewed the record.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SOLTYSIK V. PADILLA 3
In analyzing California’s “Party Preference: None”
requirement, the panel determined that while the burden the
California statutes imposed on plaintiff’s First and
Fourteenth Amendment rights, at least as pleaded, was not
severe, it was more than slight, warranting scrutiny that was
neither strict nor wholly deferential. The panel held that
California, at this very early stage of the litigation, failed to
demonstrate as a matter of law why its ballot must describe
plaintiff as having no party preference when in fact he
prefers the Socialist Party USA. The panel held that
although the primary purported justification for the
statutes—avoiding voter confusion—was an important
government interest, it was unclear how the requirement that
plaintiff be listed as having no party preference, advanced
that goal. The panel therefore reversed the district court’s
dismissal of the action for failure to state a claim, and
remanded for proceedings consistent with its opinion.
Dissenting in part, Judge Rawlinson stated that because
any burden on associational rights was slight and the
restriction was viewpoint neutral, she was persuaded that
existing case authority overwhelmingly militated in favor of
upholding the challenged California provision.
COUNSEL
Brendan Hamme (argued), ACLU Foundation of Southern
California, Santa Ana, California; Kevin J. Minnick
(argued), Alexandra S. Rubow, Maximillian W. Hirsch, and
Zachary Faigen, Skadden Arps Slate Meagher & Flom LLP
and Affiliates, Los Angeles, California; Peter J. Eliasberg,
ACLU Foundation of Southern California, Los Angeles,
California, for Plaintiff-Appellant.
4 SOLTYSIK V. PADILLA
Peter H. Chang (argued) Deputy Attorney General; Marc A.
LeForestier, Supervising Deputy Attorney; Douglas J.
Woods, Senior Assistant Attorney General; Xavier Becerra,
Attorney General; Office of the Attorney General, San
Francisco, California; for Defendant-Appellee.
Christopher E. Skinnell (argued) and Marguerite Mary
Leoni, Nielsen Merksamer Parrinello Gross & Leoni LLP,
San Rafael, California, for Intervenor-Defendant-Appellee.
OPINION
OWENS, Circuit Judge:
Emidio Soltysik is a candidate for public office in
California. He appeals from the district court’s dismissal of
his challenge to the California Elections Code, which
mandates that the primary ballot list his party preference as
“None” when in reality he prefers the Socialist Party USA.
Because California, at this very early stage of the litigation,
has failed to demonstrate as a matter of law why its ballot
must describe Soltysik as having no party preference when
in fact he prefers the Socialist Party USA, we reverse and
remand for proceedings consistent with this opinion.
I. LEGAL, FACTUAL, AND PROCEDURAL
BACKGROUND
A. California’s “Party Preference: None” Ballot
Requirement
The California Elections Code defines “party”
narrowly—a house gathering with Kid ’n Play, a toga get-
together at the Delta House, or a climactic fight between
John Matrix and Bennett do not qualify.
SOLTYSIK V. PADILLA 5
Under California law, “party” means a “political party or
organization that has qualified for participation in any
primary or presidential general election.” Cal. Elec. Code
§ 338. A political body may qualify as a “party” if, at least
135 days before a primary election, (1) 0.33 percent or more
of all voters registered at least 154 days before the primary
have declared the political body as their partisan preference,
or (2) a number of voters equaling at least ten percent of all
votes cast in the most recent gubernatorial election sign and
file a petition declaring that they prefer the would-be party
and desire to have it participate in the upcoming primary
election. Id. § 5100(b)–(c). A political body that does not
satisfy either of these qualifications is not a “party” for
California election-law purposes. 1 Id. Six political bodies
currently qualify as “parties” in California: the American
Independent Party, the Democratic Party, the Green Party,
the Libertarian Party, the Peace and Freedom Party, and the
Republican Party. Qualified Political Parties, Cal. Sec’y of
State, http://www.sos.ca.gov/elections/political-parties/qual
ified-political-parties/ (last visited Nov. 19, 2018).
Since 2010, rather than a traditional party-nomination
system, California has used a “top two” open primary system
for “voter-nominated” offices, which include governor,
lieutenant governor, U.S. senator, member of the U.S. House
of Representatives, California state senator, and the office
Soltysik sought, member of the California State Assembly.
Cal. Const. art. II, § 5; Cal. Elec. Code § 359.5. Under this
system, any candidate who has paid the filing fee and
submitted a declaration of candidacy with the signed support
1
Section 5100 provides a third means for a political body to qualify
as a “party,” but it applies only to already-qualified parties seeking to
maintain their qualified status. See Cal. Elec. Code § 5100(a). It is thus
irrelevant to Soltysik’s challenge.
6 SOLTYSIK V. PADILLA
of a specified number of registered-voter nominators appears
on the State’s primary-election ballot, regardless of political
affiliation. Cal. Elec. Code §§ 8020, 8040–41, 8062. Any
voter, regardless of political affiliation, may vote for any
candidate. Cal. Const. art. II, § 5(a). Political parties,
qualified or not, no longer nominate candidates to represent
them on the ballot. Cal. Elec. Code § 359.5(a). And a
candidate’s statement that she prefers a particular party,
either in her declaration of candidacy or on the ballot itself,
does not make her an official nominee of that party and does
not constitute an endorsement by that party. Id. § 8002.5(d).
The two primary candidates with the most votes, regardless
of political affiliation, proceed to compete in the general
election. Id. § 359.5(a).
Although California has abandoned the traditional party-
nomination system for voter-nominated offices, it has not
dropped party labels from the primary ballot. Indeed, it
provides a space for a candidate for a voter-nominated office
to announce his preference for a particular party—but only
if that party is a qualified one. Cal. Elec. Code §§ 8002.5,
13105(a). For example, if Arnold Schwarzenegger ran as a
Republican for a voter-nominated office, his name would
appear on the ballot as “Arnold Schwarzenegger Party
Preference: Republican.” See id. § 13105(a)(1). Candidates
like Soltysik, however, who do not prefer a qualified
political party—that is, who are affiliated with a
nonqualified political body or who are not affiliated with any
political body—receive the designation “Party Preference:
None” after their names. Id. § 13105(a)(2). Candidates not
wishing to disclose a preference also receive this label. Id.
To be clear, voter-nominated candidates themselves do
not directly choose which label—“Party Preference:
[qualified party]” or “Party Preference: None”—will appear
SOLTYSIK V. PADILLA 7
next to their names on the primary ballot. Rather, in filling
out the required declaration of candidacy, a candidate must
indicate her party preference as it appears on her most recent
voter-registration form. Cal. Elec. Code § 8002.5(a). If the
candidate disclosed a preference on that form for a qualified
party, then she must check the box for the “Party Preference:
[qualified party]” label, which will appear beside her name
on the ballot. Id. §§ 8002.5(a)(1), 13105(a)(1). If the
candidate disclosed a preference on the registration form for
a nonqualified party, or declined to disclose any party
preference, then she must check the box for the “Party
Preference: None” label, which will appear beside her name
on the ballot. 2 Id. §§ 8002.5(a)(2), 13105(a)(2).
Legislative materials suggest that the California
Legislature enacted this party-preference regime primarily
to lessen the costs of printing primary ballots by, among
other things, reducing the language required to describe
candidates’ party preferences and thereby shortening the
ballots. See, e.g., Cal. S. Rules Comm., Senate Floor
Analysis of A.B. 1413, 2011–2012 Reg. Sess., at 4–5 (Jan.
23, 2012) (“This bill shortens the format in which a
candidate’s party preference is displayed on the ballot . . . to
give county election officials greater flexibility to format
their ballots.”); Cal. Assemb. Comm. on Elections &
Redistricting, Analysis of A.B. 1413, 2011–2012 Reg. Sess.,
at 4 (Jan. 25, 2012) (same); id. at 3 (noting testimony of
county elections officials that “that certain ballot printing
2
Candidates for voter-nominated offices also must provide a ten-
year history of their party affiliation, as shown on their current and past
voter-registration documents, in their declaration for candidacy. Cal.
Elec. Code § 8040(a).
8 SOLTYSIK V. PADILLA
requirements created an unnecessary burden, and could
significantly increase election costs”).
B. Soltysik
Soltysik is the California State Chair and National Male
Co-Chair of the Socialist Party USA, which is not one of
California’s six qualified parties. In 2014, Soltysik ran for
the California State Assembly and campaigned as a member
of the Socialist Party USA. But because the Socialist Party
USA is not a “qualified” party under California law, the
primary ballot listed “Party Preference: None” next to his
name. See Cal. Elec. Code § 13105(a)(2). Soltysik told
voters on the campaign trail that “Party Preference: None”
would accompany his name on the ballot, but he alleges that
the label nonetheless “caused confusion among the limited
number of voters to whom he was able to speak and . . .
countless more.” Soltysik did not proceed to the general
election.
C. Procedural Background
Soltysik filed suit under 42 U.S.C. § 1983 against
California Secretary of State Alex Padilla and Los Angeles
County Registrar-Recorder/County Clerk Dean Logan in
their official capacities. 3 Soltysik alleges that Sections
8002.5 and 13105 of the California Elections Code (the
“statutes”) violate his (1) First and Fourteenth Amendment
rights to freedom of association and equal protection;
(2) First Amendment right to freedom from viewpoint
3
Jennifer McClellan, a member of the Socialist Party USA’s
National Committee, former Vice Chair of the party’s Ventura Local
Chapter, and former California State Assembly candidate, was also a
plaintiff in this action, but she did not appeal the district court’s judgment
and is thus no longer a party to the case.
SOLTYSIK V. PADILLA 9
discrimination; and (3) First Amendment right to freedom
from compelled speech. He seeks a declaration that the
statutes are unconstitutional both facially and as applied to
him, and a permanent injunction against their enforcement.
Californians to Defend the Open Primary (“CADOP”), a
nonprofit corporation that advocates for California’s open-
primary system, intervened as a defendant. Secretary Padilla
and CADOP then filed motions to dismiss Soltysik’s lawsuit
for failure to state a claim. 4
The district court applied the Anderson/Burdick
balancing test developed for constitutional challenges to
election laws and granted the motions to dismiss with
prejudice. See generally Anderson v. Celebrezze, 460 U.S.
780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). The
court rejected Soltysik’s contention that Anderson/Burdick
balancing is inherently “fact-intensive” such that the court
should allow the parties to proceed to discovery.
As to Soltysik’s associational claim, the district court
concluded as a matter of law that the statutes’ party-label
restriction was not a “severe” burden, reasoning that the
statutes neither barred ballot access to any candidate nor
infringed on a candidate’s ability to associate with
nonqualified political bodies. The court also noted that
candidates lack the right to use the ballot “to convey a
political message or even a voter cue.” The district court
then considered the State’s purported interests in
(1) “protecting the integrity, fairness, and efficiency of [its]
ballots and election processes”; (2) “prevent[ing] ‘frivolous
4
Los Angeles Registrar-Recorder/County Clerk Logan filed
statements of non-opposition to the Secretary and CADOP’s motions to
dismiss. Though he remains a defendant-appellee to this appeal, he has
not participated in the proceedings in this court.
10 SOLTYSIK V. PADILLA
or fraudulent candidacies’”; (3) “establish[ing] minimum
qualifications for political parties to participate in the
election and to appear on the ballot to avoid confusion,
deception, and frustration of the democratic process”; and
(4) preventing “sloganeering designations.” The district
court did not mention election costs. The district court
concluded that the State’s interests were, as a matter of law,
“sufficiently weighty to justify the slight burden that the
party designation restrictions . . . place[d] on [Soltysik’s]
rights to association and equal protection.”
As to Soltysik’s viewpoint-discrimination claim, the
district court rejected Soltysik’s argument that the ballot is a
limited public forum such that strict scrutiny applies.
Applying the Anderson/Burdick balancing test again, the
court held that the statutes were “viewpoint neutral” because
the requirements of Section 5100, which govern the
difference between qualified and nonqualified parties,
regulated all parties regardless of viewpoint and were thus
themselves neutral. Concluding there was no burden “by
way of viewpoint discrimination,” the district court did not
consider the State’s interests again.
Finally, the district court rejected Soltysik’s compelled-
speech claim for two reasons. First, the court reasoned, the
label “Party Preference: None” was accurate in the context
of the California Elections Code, since “party” refers only to
a qualified party, which the Socialist Party USA is not.
Therefore, the court said, “it is accurate to describe
[Soltysik’s] ‘Party Preference’ as ‘None.’” Second, the
court continued, because ballots were not “candidate
speech,” the party preference label was not “compelled
speech.” And with no “restriction on [Soltysik’s] right to be
free of compelled speech,” reexamination of the State’s
interests was, in the court’s view, unnecessary.
SOLTYSIK V. PADILLA 11
Soltysik timely appealed. We have jurisdiction under
28 U.S.C. § 1291.
II. STANDARD OF REVIEW
We review de novo a dismissal for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). Carlin v.
DairyAmerica, Inc., 705 F.3d 856, 866 (9th Cir. 2013). We
“accept the plaintiffs’ allegations as true and construe them
in the light most favorable to plaintiffs” and will reverse
unless the complaint fails to “state a claim to relief that is
plausible on its face.” Id. at 866–67 (citations omitted).
III. DISCUSSION
“[G]overnment must play an active role in structuring
elections,” but any election system “inevitably affects—at
least to some degree—the individual’s right to vote and his
right to associate with others for political ends.” Burdick,
504 U.S. at 433 (quoting Anderson, 460 U.S. at 788). Thus,
“the Supreme Court [has] developed a balancing test to
resolve the tension between a candidate’s First Amendment
rights and the state’s interest in preserving the fairness and
integrity of the voting process.” Rubin v. City of Santa
Monica, 308 F.3d 1008, 1014 (9th Cir. 2002). “This is a
sliding scale test, where the more severe the burden, the
more compelling the state’s interest must be, such that ‘a
state may justify election regulations imposing a lesser
burden by demonstrating the state has important regulatory
interests.’” Ariz. Green Party v. Reagan, 838 F.3d 983, 988
(9th Cir. 2016) (quoting Ariz. Libertarian Party v. Reagan,
798 F.3d 723, 729–30 (9th Cir. 2015)). A regulation
imposing “severe” restrictions, at the far end of the scale, is
subject to strict scrutiny. See Burdick, 504 U.S. at 434.
12 SOLTYSIK V. PADILLA
Our court has applied this test to a wide variety of
challenges to ballot regulations and other state-enacted
election procedures. See, e.g., Chamness v. Bowen, 722 F.3d
1110, 1116–19 (9th Cir. 2013) (applying framework to
California law requiring independent candidates to be
described as having “No Party Preference”); Dudum v.
Arntz, 640 F.3d 1098, 1106–17 (9th Cir. 2011) (applying
framework to San Francisco’s “instant runoff” voting
system); Matsumoto v. Pua, 775 F.2d 1393, 1396–98 (9th
Cir. 1985) (applying framework to city charter provision
barring recalled elected officials from participating in future
elections for two years). And when employing this test, we
have stressed that its application “rests on the specific facts
of a particular election system, not on strained analogies to
past cases,” as “[a]nalogy and rhetoric are no substitute for
evidence.” Ariz. Green Party, 838 F.3d at 990 (internal
quotation marks and alterations omitted). Indeed, “[t]he
Supreme Court and our sister circuits have emphasized the
need for context-specific analysis in ballot access cases.” Id.
(collecting cases).
In analyzing California’s “Party Preference: None”
requirement, we agree with the Secretary of State that the
burden the California statutes impose on Soltysik’s First and
Fourteenth Amendment rights, at least as Soltysik has
pleaded it, is not severe. The statutes do not, for instance,
bar Soltysik from office or the ballot altogether, see, e.g.,
Libertarian Party of Ill. v. Scholz, 872 F.3d 518, 524–25 (7th
Cir. 2017); Matsumoto, 775 F.2d at 1397; prohibit the
Socialist Party USA or other minority parties from
campaigning for Soltysik or endorsing him as a “standard
bearer who best represents the party’s ideologies and
preferences,” Eu v. S.F. Cty. Democratic Cent. Comm.,
489 U.S. 214, 224 (1989) (citation omitted); or suffocate
“core political speech” by, for instance, banning Soltysik
SOLTYSIK V. PADILLA 13
from communicating his preference for the party’s ideology
or platform in the public square, see, e.g., Nader v. Brewer,
531 F.3d 1028, 1035–38 (9th Cir. 2008). We therefore
decline to apply strict scrutiny. Burdick, 504 U.S. at 433–
34.
Our inquiry, however, does not end there. Ballot
regulations “that impose a lesser burden on speech rights”
still must be “reasonably related to achieving the state’s
‘important regulatory interests.’” Chamness, 722 F.3d at
1116 (quoting Rubin, 308 F.3d at 1014). While the burden
here “is not severe enough to warrant strict scrutiny review,”
it nonetheless “is serious enough to require an assessment of
whether alternative methods would advance the proffered
governmental interests.” Dudum, 640 F.3d at 1114 n.27; see
also Ariz. Green Party, 838 F.3d at 988 (observing that the
analysis looks for “means-end fit”).
A few features of the “Party Preference: None” regime
persuade us that while the burden it imposes on Soltysik’s
rights is not severe, it is more than “slight,” warranting
scrutiny that is neither strict nor wholly deferential. Most
obviously, as applied to Soltysik and other candidates who
prefer nonqualified parties, California’s party-preference
regime is potentially misleading in at least two ways. First,
“Party Preference: None” suggests that Soltysik, an avowed
Socialist, has no political preferences, affiliations, or beliefs,
which is simply untrue. Second, even if we assume that a
reasonable California voter is aware that the Elections Code
defines “party” to mean “qualified party,” the phrase “Party
Preference: None” suggests that Soltysik has no preference
as among the six qualified parties, which may or may not be
true. Stated differently, the “Party Preference: None” label
suggests that Soltysik, and other candidates like him, have
affirmatively chosen to eschew the views of all six qualified
14 SOLTYSIK V. PADILLA
parties, regardless of any actual ideological overlap. Cf.
Chamness, 722 F.3d at 1117 (noting possibility that “‘No
Party Preference’ might . . . evoke a neutral or even negative
view—that the candidate is apathetic to the views of the
other parties; i.e., while he does not identify with them, he
does not reject them.”).
These two suggestions are not only factually misleading.
Given the potential power of the party-preference label as a
signal to voters of a candidate’s ideological bona fides, a
label suggesting affirmative dissociation from any political
ideology is also a potentially significant handicap “at the
climactic moment of choice” in the voting booth. Rosen v.
Brown, 970 F.2d 169, 175 (6th Cir. 1992); see also Tashjian
v. Republican Party of Conn., 479 U.S. 208, 220 (1986) (“To
the extent that party labels provide a shorthand designation
of the views of party candidates on matters of public
concern, the identification of candidates with particular
parties plays a role in the process by which voters inform
themselves for the exercise of the franchise.”). In light of
these potential distortions, we cannot agree with the
Secretary that, as a matter of law, the statutes impose at worst
a “slight” burden on candidates like Soltysik.
The burden of the misleading party-preference label,
moreover, falls entirely on candidates like Soltysik who
happen to prefer a nonqualified party. This court has tended
to uphold election regulations that are “generally applicable,
even-handed, politically neutral, and which protect the
reliability and integrity of the election process.” Rubin,
308 F.3d at 1014; see also Anderson, 460 U.S. at 788 n.9
(“We have upheld generally-applicable and evenhanded
restrictions that protect the integrity and reliability of the
electoral process itself.”). But the California statutes here
grant an accurate party label—and thus the benefit of a
SOLTYSIK V. PADILLA 15
potentially powerful voting cue—to candidates who affiliate
with a qualified party, while denying that label and that
benefit to candidates who do not. “A burden that falls
unequally on new or small political parties or on independent
candidates impinges, by its very nature, on associational
choices protected by the First Amendment” and
“discriminates against those candidates and—of particular
importance—against those voters whose political
preferences lie outside the existing political parties.”
Anderson, 460 U.S. at 793–94. The California statutes
impose just this kind of unequal burden. And in light of the
potential value of a party label as a voting cue, we are
persuaded that this relative disadvantage, as pleaded, is
“serious enough” to warrant more exacting review. 5 Dudum,
640 F.3d at 1114 n.27; see also Marcellus v. Va. State Bd. of
Elections, 849 F.3d 169, 177 (4th Cir. 2017) (citing Rosen,
970 F.2d at 171) (“Of course, if a law gives some candidates
for the Senate a party identifier, but not other candidates for
the Senate, it would impose a burden on the associational
rights of the candidates left unidentified, even though no
candidate has an absolute right to be so identified.”). Thus,
we conclude that the burden on candidates like Soltysik is
neither severe nor minimal.
That the statutes permit Soltysik to convey his political
preferences to voters outside the ballot is not enough to
neutralize the burden the misleading party-preference label
allegedly imposes. Soltysik avers that when he told voters
5
As we discuss below, Soltysik’s allegations regarding the impact
of party labels on voter behavior will be subject to proof on remand. Cf.,
e.g., Chamness, 722 F.3d at 1117–18 (rejecting argument for requiring
alternative party label because on summary judgment plaintiff “failed to
provide any evidence that the two phrases are actually likely to be
understood by voters to convey these different meanings, and, if they do,
that the distinction would tend to affect the way voters cast their votes”).
16 SOLTYSIK V. PADILLA
on the campaign trail that the “Party Preference: None” label
would appear beside his name on the primary ballot, voters
questioned the authenticity of his affiliation with the
Socialist Party USA. If these allegations are true—and at
this stage of the litigation we must assume they are—then
his ability to promote his views through other means was
meaningless. To borrow another court’s phrasing, “the
absence of a label for a candidate”—or in this case, the use
of a misleading one—“gives rise to mistrust and negative
inferences” and denies a candidate “the identification he had
worked to establish at the crucial moment of choice in the
election campaign.” Rosen, 970 F.2d at 173.
Having established the extent of the burden Soltysik has
pleaded, we turn now to the other side of the scale. Without
factual support at this early stage, the Secretary’s arguments
for the “Party Preference: None” requirement do not warrant
dismissal of Soltysik’s claims. The Secretary and CADOP’s
primary purported justification for the statutes—avoiding
voter confusion—is an important government interest.
Chamness, 722 F.3d at 1118. Yet we struggle to understand
how this regime—which requires Soltysik, the National
Male Co-Chair and California State Chair of the Socialist
Party USA, to be listed as having no “party preference”—
advances that goal. Indeed, it seems self-evident that this
regime has precisely the opposite consequence.
Nor is it clear why less burdensome (and less
misleading) alternatives would not accomplish the goal of
reducing voter confusion or, as the Secretary and CADOP
also assert, preventing candidates from disguising political
slogans or commercial advertisements as party-preference
labels or from circumventing California’s ban on “status
designations.” See Cal. Elec. Code § 13107(a). For
example, the Secretary could place an asterisk by the name
SOLTYSIK V. PADILLA 17
of any candidate who does not affiliate with one of the six
qualified parties, directing the voter to a short and clear
explanation that the candidate is not so affiliated. Or the
ballot could list the political body with which a candidate
identifies (such as the Socialist Party USA), and, again using
an asterisk, specify that that body does not qualify as a
“party” under California law. These techniques may
accommodate whatever continued interests California may
have in maintaining the distinction between qualified and
nonqualified groups, see Chamness, 722 F.3d at 1118–19 &
n.5, while avoiding mischaracterizations of candidates
affiliated with the latter. 6
Of course, there may be other (and better) ways of
accommodating California’s interests without the potentially
misleading “Party Preference: None” designation. But
without any factual record at this stage, we cannot say that
the Secretary’s justifications outweigh the constitutional
burdens on Soltysik as a matter of law. A fully developed
evidentiary record will permit a court to evaluate whether the
“Party Preference: None” requirement is a constitutionally
permissible means of combatting voter confusion, or
whether there are more precise ways to accomplish this goal
6
We are skeptical of the Secretary’s argument that the party-
preference labeling system is necessary to avoid fraudulent attempts to
split an opposing party’s vote—i.e., “party raiding.” As to the
Secretary’s concern that a candidate may self-designate as preferring,
say, the “Replublican Party,” the district court is free to consider on
remand whether a rule forbidding designations that “would mislead the
voter,” as California has in place for ballot occupational designations,
Cal. Elec. Code § 13107(e)(1), and applications to qualify as a “party,”
id. § 5100(a), could be a more precise means of preventing fraud while
avoiding onerously misleading party-preference labels in cases like
Soltysik’s.
18 SOLTYSIK V. PADILLA
that do not falsely describe the preferences of candidates like
Soltysik.
Our decision in Chamness, which featured a similar (but
meaningfully different) California ballot requirement,
illustrates why a remand for further factual development is
warranted here. The version of the California Elections
Code then in effect required the ballot to describe Chamness
as having “No Party Preference,” but Chamness wanted the
ballot to list his party preference as “Independent.” 722 F.3d
at 1113, 1115. Reviewing the grant of summary judgment
in the Secretary’s favor, our court rejected Chamness’s First
and Fourteenth Amendments claim because he “failed to
provide any evidence that the two phrases are actually likely
to be understood by voters to convey . . . different meanings,
and, if they do, that the distinction would tend to affect the
way voters cast their votes.” Id. at 1117–18 (emphasis
added).
Here, because the district court dismissed his complaint,
Soltysik never had the opportunity to develop such evidence,
and on the record before us we cannot say as a matter of law
that the “Party Preference: None” designation is a
sufficiently unobtrusive means of clarifying to voters that
Soltysik’s preferred political body does not qualify as a
“party” under California election law. See, e.g., Duke v.
Cleland, 5 F.3d 1399, 1405–06 & n.6 (11th Cir. 1993)
(vacating dismissal of ballot-regulation challenge and
remanding for further proceedings because “[d]iscovery has
not commenced” and “[t]he existence of a state interest . . .
is a matter of proof”); Wood v. Meadows, 117 F.3d 770, 776
(4th Cir. 1997) (reversing grant of summary judgment and
remanding “for further factual development both as to the
burdens . . . upon independent candidates and their
supporters, and as to the interests of the [government] in
SOLTYSIK V. PADILLA 19
imposing that [burden]” because the record was “virtually
barren of any evidence of the strength or legitimacy of the
[government’s] interests, administrative or otherwise”);
Rosen, 970 F.2d at 172–73, 176 (reviewing evidence
supporting plaintiff’s challenge to Ohio ballot law, including
affidavits of three experts). Nor can we conclude as a matter
of law that a factually misleading label like the one next to
Soltysik’s name would not “tend to affect the way voters cast
their votes.” Chamness, 722 F.3d at 1118.
We disagree with the dissent’s assertion that “in the
absence of a severe burden to constitutional rights, no
tailoring of election provisions is required.” Post at 43
(opinion of Rawlinson, J.). Our cases establish that “there
may be ‘instances where a burden is not severe enough to
warrant strict scrutiny review but is serious enough to
require an assessment of whether alternative methods would
advance the proffered governmental interests.’” Ariz.
Libertarian Party, 798 F.3d at 732 n.11 (quoting Dudum,
640 F.3d at 1114 n.27). Given the potential distortive effects
of the “Party Preference: None” label when applied to
candidates like Soltysik—effects which, as we have
resolved, are not severe but are more than minimal—we are
persuaded that this case is one of those instances.
We also disagree with the notion that a state is
categorically “not required to make an evidentiary showing
of its interests.” Post at 42. We acknowledge, as we must,
that a state need not offer “elaborate, empirical verification”
that voter confusion in fact occurs, Timmons, 520 U.S. at
364, particularly where the burden a challenged regulation
imposes on a plaintiff’s associational rights is slight or
minimal. But we cannot agree that “[e]ven a speculative
concern of voter confusion is sufficient” as a matter of law
to justify any regulation that burdens a plaintiff’s rights, post
20 SOLTYSIK V. PADILLA
at 27 (bracket omitted) (quoting Stone v. Bd. of Election
Comm’rs, 750 F.3d 678, 685 (7th Cir. 2014)), especially
where that burden is more than de minimis. If the
Anderson/Burdick framework is to remain a sliding-scale,
“means-end fit analysis,” Pub. Integrity All., Inc. v. City of
Tucson, 836 F.3d 1019, 1024 (9th Cir. 2016) (en banc), that
from time to time “require[s] an assessment of whether
alternative methods would advance the proffered
governmental interests,” Dudum, 640 F.3d at 1114 n.27, then
a state must sometimes be required to offer evidence that its
regulation of the political process is a reasonable means of
achieving the state’s desired ends. See, e.g., Ariz. Green
Party, 838 F.3d at 990 (“Analogy and rhetoric are no
substitute for evidence . . . .”); cf., e.g., Latta v. Otter,
771 F.3d 456, 469 (9th Cir. 2014) (refusing to take
legislative justifications at face value when applying
heightened scrutiny to policies that “implicate constitutional
rights”). Permitting a state to justify any non-severe voting
regulation with a merely “speculative concern of voter
confusion,” post at 27 (bracket omitted) (quoting Stone, 750
F.3d at 685), would convert Anderson/Burdick’s means-end
fit framework into ordinary rational-basis review wherever
the burden a challenged regulation imposes is less than
severe. We have already rejected such an approach. Pub.
Integrity All., 836 F.3d at 1024–25.
We note finally that unlike this case, most of the
decisions to which the dissent refers either arose from
summary-judgment proceedings; held the burden on the
plaintiff to be minimal as a matter of law and thus accorded
the broadest deference to the government’s asserted
justifications for imposing that burden; or both. See, e.g.,
Timmons, 520 U.S. at 355 (arising from summary
judgment); Munro v. Socialist Workers Party, 479 U.S. 189,
192–93 (1986), rev’g 765 F.2d 1417, 1418 (9th Cir. 1985)
SOLTYSIK V. PADILLA 21
(arising from summary judgment); Jenness v. Fortson,
403 U.S. 431, 432–33 (1971) (arising from summary
judgment and pre-dating Anderson/Burdick framework);
Ariz. Libertarian Party, 798 F.3d at 728, 730–31 (arising
from summary judgment and holding burden to be minimal);
Dudum, 640 F.3d at 1103, 1105–14 (arising from summary
judgment and holding burden to be minimal); Lightfoot v.
Eu, 964 F.2d 865, 867–73 (9th Cir. 1992) (holding burden,
if any, to be minimal); Socialist Workers Party v. Eu,
591 F.2d 1252, 1256, 1259–62 (9th Cir. 1978) (arising from
summary judgment, pre-dating Anderson/Burdick
framework, and applying ordinary rational-basis review). In
fact, one case the dissent cites, Dart v. Brown, 717 F.2d
1491, 1497 (5th Cir. 1983), arose from a judgment following
a full trial. Given the very different posture of these cases,
and in light of our determination that Soltysik has adequately
pleaded that the “Party Preference: None” label imposes
more than a minimal burden, these cases support, rather than
undermine, our conclusion that further factual development
is necessary and appropriate in this case.
Because we remand this case for further factual
development, the district court is free to reapply the
Anderson/Burdick framework, and thus reassess Soltysik’s
freedom-of-association, viewpoint-discrimination, and
compelled-speech arguments, with the benefit of a complete
evidentiary record regarding both the burden on Soltysik and
the interests of the State. 7 Duke, 5 F.3d at 1405–06 (“We
7
Although Soltysik requests application of traditional First
Amendment jurisprudence to his viewpoint-discrimination and
compelled-speech claims, each is folded into the Anderson/Burdick
inquiry. See, e.g., Dudum, 640 F.3d at 1106 n.15 (noting that Supreme
Court has addressed election-law challenges arising under separate
constitutional provisions “using a single analytic framework”); Rubin,
308 F.3d at 1014 (rejecting argument that fora analysis applies to ballot
22 SOLTYSIK V. PADILLA
take no position as to the ultimate merits of the plaintiffs’
claims. . . . Upon a clear determination of [the State’s]
interests, the district court must weigh them against the
purported burden upon the plaintiffs’ constitutional rights
. . . .”). The court may, for instance, consider the increased
cost, if any, of alternatives to the current “Party Preference:
None” designation when performing the balancing test. See,
e.g., Dudum, 640 F.3d at 1116 (discussing evidence that
government’s preferred voting method would save money, a
legitimate state interest); Weber v. Shelley, 347 F.3d 1101,
1106 (9th Cir. 2003) (recognizing a state’s interest in saving
money). Ballot-length and -design obstacles may figure into
that inquiry. The court may also wish to consider whether
California’s interest in policing the qualified-nonqualified
distinction remains vital under the current top-two regime
and thus whether that interest justifies the burden the statutes
impose. 8 See Chamness, 722 F.3d at 1118 n.5 (observing
that the holding of Libertarian Party v. Eu, 620 P.2d 612,
and applying Anderson/Burdick). As our analysis here indicates,
whether and to what extent the statutes improperly discriminate on the
basis of viewpoint or compel candidate speech is relevant under that
standard to assessing the burden they impose on candidates like Soltysik.
See Rubin, 308 F.3d at 1015 (considering whether “regulation is
viewpoint neutral” in applying Anderson/Burdick test); Chamness,
722 F.3d at 1118 (same); Caruso v. Yamhill Cty. ex rel. Cty. Comm’r,
422 F.3d 848, 854–62 (9th Cir. 2005) (rejecting application of
compelled-speech cases to ballot regulation in favor of
Anderson/Burdick balancing).
8
To the extent the Secretary’s purported justifications are not
reflected in the statutes’ legislative history, we reject Soltysik’s
argument that our decision in Public Integrity Alliance, Inc. v. City of
Tucson, 836 F.3d at 1025, prohibits consideration of such unstated
rationales. Cf. Timmons, 520 U.S. at 366 n.10 (relying on state interest
apparently articulated for first time at oral argument in Supreme Court);
Dudum, 640 F.3d at 1116 n.28 (similarly interpreting Timmons).
SOLTYSIK V. PADILLA 23
618 (Cal. 1980), that “the distinction between qualified and
nonqualified parties serves a compelling state interest” no
longer controls because it relied “on conditions that no
longer obtain—namely, the use of party primaries conducted
by the state”).
We refrain from prejudging whether California’s statutes
will survive further scrutiny under the Anderson/Burdick
framework once both sides have developed their evidence.
We decide only that at this juncture, judgment in the
Secretary’s favor is premature. Lacking any evidence
showing the true extent of the burden on candidates like
Soltysik and the weightiness of California’s interests in
imposing that burden, “we find ourselves in the position of
Lady Justice: blindfolded and stuck holding empty scales.”
Ariz. Libertarian Party, 798 F.3d at 736 (McKeown, J.,
concurring).
REVERSED AND REMANDED.
RAWLINSON, Circuit Judge, dissenting in part:
I respectfully dissent from that portion of the majority
opinion characterizing as less than severe, but more than
slight, the burden placed on Plaintiff Emidio Soltysik
(Soltysik) by the California statute governing the content of
election ballots.
I also part company with my colleagues’ conclusions that
a remand is warranted, that the statute is discriminatory, that
the existence of alternative means of communication is
irrelevant to our analysis, and that the open primary context
is relevant to our analysis.
24 SOLTYSIK V. PADILLA
I start from the premise that the purpose of a ballot is to
effectuate the votes of the citizenry, and not as a means of
communication for politicians seeking office. See Timmons
v. Twin Cities Area New Party, 520 U.S. 351, 365 (1997);
see also Rubin v. City of Santa Monica, 308 F.3d 1008, 1016
(9th Cir. 2002), quoting Timmons, 520 U.S. at 365 (“A ballot
is a ballot, not a bumper sticker. Cities and states have a
legitimate interest in assuring that the purpose of a ballot is
not transformed from a means of choosing candidates to a
billboard for political advertising.”) (alterations omitted).
In addition, we must keep in mind that the states have
substantial discretion to regulate the time, place, and manner
of elections conducted within their borders. See Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983) (“[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. . . .”)
(citation omitted); see also Rubin, 308 F.3d at 1014 (same);
Schrader v. Blackwell, 241 F.3d 783, 790 (6th Cir. 2001)
(“[S]tates have significant authority to regulate the
formation of political parties and the identification of
candidates on the ballot. . . .”) (citations omitted); Field v.
Bowen, 199 Cal. App. 4th 346, 356 (2011) (“States may, and
inevitably must, enact reasonable regulations of parties,
elections, and ballots to reduce election-and-campaign-
related disorder . . .”) (quoting Timmons, 520 U.S. at 358)
(alteration omitted).
Those challenging ballot regulations face a steep
challenge. State and federal courts agree that this burden is
a heavy one. See Rubin, 308 F.3d at 1017 (“[A] party
challenging [a ballot] regulation bears a heavy constitutional
burden. . . .”) (citation and internal quotation marks
omitted); see also Field, 199 Cal. App. 4th at 729 (same).
SOLTYSIK V. PADILLA 25
Generally, absent a severe burden on the rights of association
and expression implicit in the act of casting a ballot, the
State’s known regulatory interests will suffice to justify
reasonable ballot restrictions. See Timmons, 520 U.S. at 358(“[A] State’s important regulatory interests will usually be
enough to justify reasonable, nondiscriminatory
restrictions. . . .”) (citations and internal quotation marks
omitted); see also Anderson, 460 U.S. at 788 (“[T]he state’s
important regulatory interests are generally sufficient to
justify reasonable, nondiscriminatory [ballot] restrictions.”)
(footnote reference omitted); Burdick v. Takushi, 504 U.S.
428, 434 (“[W]hen a state election law provision imposes
only reasonable, nondiscriminatory restrictions upon the
First and Fourteenth Amendment rights of voters, the State’s
important regulatory interests are generally sufficient to
justify the restrictions. . . .”) (citations and internal quotation
marks omitted); Dudum v. Arntz, 640 F.3d 1098, 1106 (9th
Cir. 2011) (“Where non-severe, lesser burdens on voting are
at stake, we apply less exacting review, and a State’s
important regulatory interests will usually be enough to
justify reasonable, nondiscriminatory restrictions.”)
(quoting Timmons, 520 U.S. at 358) (parallel citation,
footnote reference, and internal quotation marks omitted);
Rubin, 308 F.3d at 1017 (same); Arizona Libertarian Party
v. Reagan, 798 F.3d 723, 730 (9th Cir. 2015), as amended
(“A state may justify election regulations imposing a [less
than severe] burden by demonstrating the state has important
regulatory interests.”) (citation, alteration, and internal
quotation marks omitted); Field, 199 Cal. App. 4th at 356
(same). It almost goes without saying that the process of
gaining entry onto a ballot is not required to be free of
hurdles. See Timmons, 520 U.S. at 367 (“States need not
remove all of the many hurdles third parties face in the
American political arena today.”).
26 SOLTYSIK V. PADILLA
The United States Supreme Court, United States Courts
of Appeal and the California appellate courts have
consistently upheld ballot restrictions similar to those
involved in this case, further demonstrating the difficulty of
successfully challenging election laws.
Soltysik complains that he is unable to designate himself
as a member of the Socialist Party USA on the ballot.
Because that party is not a qualified party under California
law, the ballot describes Soltysik as having no (qualified)
party preference.
I agree with the majority that “a state may justify election
regulations imposing a lesser burden by demonstrating the
state has important regulatory interests.” Arizona Green
Party v. Reagan, 838 F.3d 983, 988 (9th Cir. 2016) (citation
omitted). However, I disagree with the majority’s
application of that standard, including identification of the
state’s important interests.
It is important to note that in identifying the state’s
important interests, the court is not limited to those interests
articulated in legislative history. See Ariz. Libertarian
Party, 798 F.3d at 732 (“In evaluating the constitutionality
of [election] statutes, we may look to any conceivable
interest promoted by the challenged procedures . . .”)
(citation and internal quotation marks omitted) (emphasis
added). And no evidentiary showing on the part of the state
is required. See Timmons, 520 U.S. at 364 (noting that
“elaborate, empirical verification of the weightiness of the
State’s asserted justifications” is not required) (citation
omitted); see also Munro v. Socialist Workers Party,
479 U.S. 189, 196 (1986) (“To require States to prove actual
voter confusion, ballot overcrowding, or the presence of
19reasonable ballot access restrictions would invariably lead
to endless court battles over the sufficiency of the evidence
SOLTYSIK V. PADILLA 27
marshaled by a State to prove the predicate. . . . Legislatures,
we think, should be permitted to respond to potential
deficiencies in the electoral process with foresight.”)
(internal quotation marks omitted); Stone v. Bd. of Election
Cmr’s, 750 F.3d 678, 685 (7th Cir. 2014) (“[L]egislatures do
not need to make a particularized showing of the existence
of voter confusion, ballot overcrowding, or the presence of
frivolous candidacies prior to the imposition of reasonable
restrictions on ballot access.”) (quoting Munro, 479 U.S. at194–95) (internal quotation marks omitted). “Even a
speculative concern [of] voter confusion is sufficient.” Id.(citation and internal quotation marks omitted). 1
In the context of a ballot restriction that is less than
severe, no tailoring of the regulation is generally required.
See Timmons, 520 U.S. at 365 (“[B]ecause the burdens the
[statute] imposes on the party’s associational rights are not
severe, the State need not narrowly tailor the means it
chooses to promote ballot integrity. The Constitution does
not require that [the State] compromise the policy choices
embodied in its ballot-access requirements to accommodate
the [party] . . .”) (citations omitted); see also Dudum,
640 F.3d at 1114 (“[W]hen a challenged rule imposes only
limited burdens on the right to vote, there is no requirement
that the rule is the only or best way to further the proffered
interests.”) (citations omitted); Pest Committee v. Miller,
626 F.3d 1097, 1110 (9th Cir 2010) (concluding that the
district court “was not obliged to consider whether [the
1
The majority disagrees with this precept. See Majority Opinion, p.
19–20. But a mere few months ago, we reiterated this point in a matter-
of-fact-manner. See Allied Concrete & Supply Co. v. Baker, 904 F.3d
1053, 1065 (9th Cir. 2018) (“A legislative choice may be based on
rational speculation unsupported by evidence or empirical data.”),
quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315 (1993)
(alterations omitted).
28 SOLTYSIK V. PADILLA
State’s] system could or should be more narrowly tailored”)
(citation omitted); Ariz. Libertarian Party, 798 F.3d at 732
(“[W]e need not determine whether the interests served by
[the statute] can be better served by other means . . .”).
However, the existence of alternative means of
communicating a candidate’s message weighs in favor of a
finding of constitutionality. See Jenness v. Fortson, 403
U.S. 431, 438 (1971) (noting that despite the election
restrictions, “independent candidates and members of small
or newly formed political organizations are wholly free to
associate, to proselytize, to speak, to write, and to organize
campaigns for any school of thought they wish”); see also
Munro, 479 U.S. at 198 (same) (quoting Jenness, 403 U.S.
at 438); Timmons, 520 U.S. at 363 (observing that “[t]he
party retains great latitude in its ability to communicate ideas
to voters and candidates through its participation in the
campaign, and party members may campaign for, endorse,
and vote for their preferred candidate even if he is listed on
the ballot as another party’s candidate”) (citations omitted);
Rubin, 308 F.3d at 1016 (explaining that the candidate’s
ability to submit a “Candidate’s Statement” in a “Voter
Information Pamphlet” served to “greatly decrease[] the
burden imposed by the ballot restriction [on the designation
of one’s occupation]”) (citing Timmons, 520 U.S. at 362–
63).
Finally, and importantly, we have ruled that the public
forum analysis is not applicable in the ballot restriction
context. See id. at 1014 (“As we see it, the issue is not
whether a ballot is some sort of public forum, but whether,
applying Supreme Court election law, California’s ballot
regulations constitute “severe burdens” on free speech
rights.”) (citing Timmons, 520 U.S. at 358).
SOLTYSIK V. PADILLA 29
As stated, Soltysik’s action is predicated on the
California election statute that precludes a candidate from
designating a party on the ballot if that party is not a qualified
party as defined by California election code provisions. See
Cal. Elec. Code § 5100 (defining a qualified party as one that
received at least 2% of the vote for the office during the last
gubernatorial primary, or .33 percent of registered voters, or
petition signatories equal to 10 percent of the votes cast
during the last gubernatorial election).
Courts throughout the country have universally
acknowledged that states have a recognized interest in
requiring a certain level of support before granting official
recognition to a political party. See Jenness, 403 U.S. at 442(“There is surely an important state interest in requiring
some preliminary showing of a significant modicum of
support before printing the name of a political organization’s
candidate on the ballot—the interest, if no other, in avoiding
confusion, deception, and even frustration of the democratic
process at the general election. . . .”); see also Munro,
479 U.S. at 193 (“[I]t is now clear that States may condition
access to the general election ballot by a minor-party . . .
upon a showing of a modicum of support among the
potential voters for the office. . . .”); Timmons, 520 U.S. at
366 (“The State surely has a valid interest in making sure
that minor and third parties who are granted access to the
ballot are bona fide and actually supported, on their own
merits, by those who have provided the statutorily required
petition or ballot support.”) (citing Anderson, 460 U.S. at788 n.9 and Storer v. Brown, 415 U.S. 724, 733 (1974));
Schrader, 241 F.3d at 790 (same); Dart v. Brown, 717 F.2d
1491, 1502 (5th Cir. 1983) (same); Lightfoot v. Eu, 964 F.2d
865, 871 (9th Cir. 1992), as amended (“The State’s interest
in requiring that a candidate demonstrate a modicum of
support is significant enough to justify not only refusing to
30 SOLTYSIK V. PADILLA
place a candidate on the ballot, but also refusing to designate
a candidate on the ballot as Libertarian. In the latter case,
the 1% threshold serves to avoid voter confusion by
requiring that a candidate have sufficient support from
within a party before his or her name will be associated with
that party on the ballot. . . .”)
It is this very modicum of support requirement that
prevents Soltysik from being listed on the ballot as a member
of the Socialist Party USA. And various courts have
convincingly rejected similar challenges.
In Jenness, the United States Supreme Court addressed a
challenge to a Georgia statute that prohibited the printing of
a candidate’s name on an election ballot unless the candidate
had won a party’s primary or had garnered at least 5% of the
votes cast in the last general election for the office. See
403 U.S. at 432. In concluding that there was no
constitutional violation, the Court noted that the
associational rights of candidates and voters remained intact.
See id. at 439. The Court ruled that the election statute
“ha[d] insulated not a single potential voter from the appeal
of new political voices within [Georgia’s] borders.” Id. at
442.
In Timmons, the Supreme Court resolved a challenge to
a Minnesota statute that “prohibit[ed] a candidate from
appearing on the ballot as the candidate of more than one
party.” 520 U.S. at 353–54. The Court rejected a
constitutional challenge to this “fusion” prohibition. See id.The Court observed that “the supposed benefits of fusion to
minor parties do not require that Minnesota permit it.” Id. at
362. The Court acknowledged the argument that the
prohibition burdened the right of the party “to communicate
its choice of nominees on the ballot on terms equal to those
offered other parties, and the right of the party’s supporters
SOLTYSIK V. PADILLA 31
and other voters to receive that information.” Id.Nevertheless, the Court found no First Amendment violation
or denial of equal protection, remaining “unpersuaded, . . .
by the party’s contention that it has a right to use the ballot
itself to send a particularized message, to its candidate and
to the voters, about the nature of its support for the
candidate.” Id. at 362–63, 370. The court summed up its
ruling by reasoning that “Minnesota’s laws do not restrict the
ability of the [party] and its members to endorse, support, or
vote for anyone they like. The laws do not directly limit the
party’s access to the ballot. . . . [The laws] only . . . rul[e] out
those few individuals who . . . have already agreed to be
another party’s candidate . . .” Id. at 363.
The Court ultimately ruled that the burden imposed by
Minnesota’s fusion ban was “justified by correspondingly
weighty valid state interests in ballot integrity and political
stability.” Id. at 369–70 (footnote reference and internal
quotation marks omitted).
In Socialist Workers Party v. Eu, 591 F.2d 1252, 1254
(9th Cir. 1979), we upheld as constitutional a California
statute “specif[ying] that candidates of political parties
qualified to participate in the state’s primary election shall
be designated by party affiliation on the general election
ballot while any candidate qualifying for the ballot through
the independent petition procedure shall be identified on the
general election ballot solely as ‘Independent. . . .’”
This provision precluded any party designation on the
ballot for a candidate who qualified as “an independent
nominee to a partisan office.” Id. at 1255. Rather, the
nominee had the option of including a three-word statement
“designating the principal professions, vocations or
occupations of the candidate.” Id. (citation and internal
quotation marks omitted).
32 SOLTYSIK V. PADILLA
Although we recognized that the election law had
“possible effects on both associational and voting rights,” we
nonetheless concluded that the law “placed no
unconstitutional restrictions on ballot access.” Id. at 1260–
61. Instead, it “merely limit[ed] an indication of party
affiliation to those parties that have qualified.” Id. at 1261(emphasis added). We rejected the argument that “to list
candidates as ‘Independent’ who affiliate themselves with a
non-qualified political party leads to voter confusion.” Id.(emphasis added). We reasoned that the term “Independent”
has an established meaning under California law, and that a
state may choose such a term of art “to categorize its
candidates without impermissibly burdening their rights or
the rights of those who vote for or associate with them.” Id.The fact that some voters might misinterpret the term did not
render the law unconstitutional because the label “accurately
explain[ed] the presence of the candidate’s name on the
ballot” and was “a legitimate description indicating the
reason a name is on the ballot.” Id. We concluded that the
challenged provision did not “constitute an invidious or
arbitrary classification,” and was “rationally related to the
state’s legitimate interest in regulating its electoral process.”
Id. at 1262.
Our analysis in Socialist Workers’ Party is readily
transferable to the remarkably similar facts of this case.
Substitute the phrase “Party Preference: None” in the case
before us for the term “Independent” in Socialist Workers’
Party and the parallel is apparent. Nor does the fact that
California later adopted an open primary system alter this
analysis because cases rejecting similar challenges have
involved an open primary system. See, e.g., Munro,
479 U.S. at 191 (addressing a blanket primary); Dart,
717 F.2d at 1494 (involving an open primary); and Field,
199 Cal. App. 4th at 359–60 (concluding that the same
SOLTYSIK V. PADILLA 33
analysis applies to ballot labels whether the system is a
partisan primary or an open primary). The Field case is
particularly persuasive because it is a California case
interpreting California law.
In Lightfoot, 964 F.2d at 866, 869, the candidate
complained that a California ballot restriction “infringed on
. . . the freedom to associate” because the candidate was
prevented from being designated as a Libertarian due to
failure to garner “1 percent of all votes cast for the office at
the last preceding general election.” The Libertarian Party
was therefore not a “qualified party” under California law,
and no candidates could be designated on the ballot as
“Libertarian.” Id. at 870. We described this burden four
times as “slight.” Id. at 870–72. We explained that the
“1% threshold serves to avoid voter confusion.” Id. at 871.
We concluded that because this 1% threshold imposed only
a slight burden and because the State’s interest in
minimizing voter confusion was compelling, there was no
violation of the First Amendment right of association. See
id.Dart, a case we cited with approval in Rubin, 308 F.3d
at 1016, involved facts virtually identical to those in this
case, including an open primary. Dart was a registered
member of the Libertarian Party, but the Libertarian party
was not a recognized party under Louisiana law. See
717 F.2d at 1492. As a consequence, the party designation
space on the primary ballot was left blank, although Dart’s
four opponents were designated as “Democrats.” Id. at
1493.
Rejecting Dart’s constitutional challenge, the Fifth
Circuit observed that because the candidate of the
Libertarian Party was on the ballot, there was no denial of
access, despite the lack of designation of party under Dart’s
34 SOLTYSIK V. PADILLA
name. See id. at 1499. The Fifth Circuit reasoned that
Libertarian Party members could fully associate with,
campaign for, and support a candidate who was committed
to advancing their political beliefs. See id. The Fifth Circuit
characterized any injury to First Amendment rights as “at
most indirect, attenuated and slight.” Id. at 1505. The Fifth
Circuit explained that “the ballot’s omission of the
designation ‘Libertarian’ by Dart’s name, while listing
‘Democrat’ by the name of each of his four opponents,
resulted not from any invidious or irrational discrimination,
but rather from neutral criteria of general and evenhanded
application . . .” Id. at 1504. The Fifth Circuit added that
this “neutral criteria” of a showing of a prescribed measure
of support in the most recent election had been established
by Supreme Court precedent as “rationally and legitimately
related to distinctions which the state may make between
political parties . . . on the basis of success in prior
elections.” Id. (citations and parentheses omitted). The
Fifth Circuit clarified that:
[I]f candidate political party affiliation is to
be designated on the ballot, the potential
exists for voter confusion or deception unless
there are some restrictions on what
constitutes a political party . . . For the state’s
ballot to represent that a candidate is
affiliated with a particular political party,
when in fact there is no such party in the
commonly understood sense of the word, has
the obvious potential for causing voter
deception and confusion. . . . [J]ust as an
unrestricted proliferation of candidate names
on the ballot may engender confusion or
deception, so may an unrestricted
proliferation of party names. And, requiring
SOLTYSIK V. PADILLA 35
some preliminary showing of a significant
modicum of support for a party before a
candidate’s affiliation with it is designated on
the ballot is necessary to further the state’s
strong and legitimate interest in minimizing
ballot confusion and deception . . .
Id. at 1508–09.
The Fifth Circuit concluded that although the state of
Louisiana “treats the Libertarian Party differently from some
other parties, it does so solely on the basis of neutral, even-
handed criteria of general applicability. It is not required to
treat things that are different as though they were exactly
alike.” Id. at 1510 (citations and internal quotation marks
omitted). The court held that the criteria underlying the
modicum of support requirement “and the treatment
resulting from their application” are reasonably calculated
and important to the furtherance of strong and legitimate
interests of the State. Id.In Schrader, another case cited with approval in Rubin,
308 F.3d at 1015, the Sixth Circuit similarly addressed a
challenge from the Libertarian Party in Ohio that “had not
met the requirements to be recognized as a political party”
due to failure to garner at least five per cent of the vote
during the last regular election. 241 F.3d at 784. Applying
the balancing test set forth in Anderson, the Sixth Circuit
held that the state’s “interest in making sure that minor and
third parties who are granted access to the ballot are bona
fide and actually supported,” outweighed the burden of not
having a party “cue” on the ballot and “survive[d]
constitutional challenge.” Id. at 790–91.
California courts, interpreting California law, have
issued similar rulings. In Libertarian Party of California v.
36 SOLTYSIK V. PADILLA
Eu, 28 Cal. 3d 535 (1989) (in bank), the California Supreme
Court was tasked with determining “the constitutionality of
section 10210 of the Elections Code insofar as it requires that
persons qualifying for the ballot by the procedure of
independent nominations be designated on the ballot as
Independent.” Id. at 538 (internal quotation marks omitted).
The Libertarian Party challenged the law, arguing that its
candidates were denied due process and equal protection of
the law when they were listed as “Independent” rather than
members of the Libertarian Party. Id. at 540.
The California Supreme Court started from the premise
that “the California Constitution vests the Legislature with
plenary power over the conduct of elections” in California.
Id. The court observed that, “[p]ursuant to this grant of
power, the Legislature determined that . . . ‘party’ [is] a
political organization that has ‘qualified for participation in
any primary election.’” Id.A party could qualify as a party under the California
Election Code in one of two ways: 1) voter registration of
affiliated members in a number equal to 1 percent of the
voters in the most recent gubernatorial election, or 2) filing
of a petition signed by voters in a number equal to 10 percent
of the statewide vote for the most recent gubernatorial
election. See id. at 540–41. For parties that failed to qualify
under either of these procedures, the court explained:
The Legislature also recognizes that an
individual may have significant public
support and yet not be affiliated with a
qualified party. To permit such persons to
appear on the general election ballot, the
Legislature has provided the special
procedure of “independent nomination,” i.e.,
nominations by petition. . . . If a candidate
SOLTYSIK V. PADILLA 37
qualifies for a general election by means of
such an “independent nomination,” the word
“Independent” is printed on the ballot after
his name instead of a party designation . . .
Id. at 541–42 (citations omitted).
The court was not persuaded by the Libertarian Party’s
argument that “denying its candidates the right to be listed
on the ballot as Libertarian” was unconstitutional. Id. at 542(internal quotation marks omitted). The court concluded that
the challenged provision “imposes an insubstantial burden
on the rights to associate and to vote and that the statute
serves a compelling state interest to protect the integrity and
stability of the electoral process in California.” Id. (footnote
reference omitted).
The court elucidated that the challenged provision
“necessarily” treats candidates differently depending on
whether or not they are affiliated with a qualified party. Id.
at 544. The California Legislature has determined that only
those candidates affiliated with a qualified party are entitled
to a party affiliation designation on the ballot. See id.According to the court’s analysis, “it is not inaccurate to
describe candidates who qualify for the ballot by the
independent nomination method as independents, for such
candidates are independent of the qualified political parties.”
Id. (emphasis in the original). Designating a candidate who
qualified under the independent nominating process as a
party candidate “would be misleading,” and the state has a
vital interest in eliminating misleading information from a
voter’s ballot. Id. at 544–45 (quoting Jenness, 403 U.S. at
442). The California Supreme Court surmised that this vital
state interest would be “subvert[ed] . . . if nonqualified
parties could achieve ballot status simply by having their
38 SOLTYSIK V. PADILLA
candidates add a wholly unauthorized party designation to
their independent nomination papers.” Id. at 546 (footnote
reference omitted). The court clarified that “[i]t was by just
this device, however, that the Libertarian Party sought to
appear qualified when it was not.” Id.The precepts set forth in Libertarian Party were
faithfully followed by the California Court of Appeal in the
more recent Field decision. Once again, a California court
interpreting California law upheld an election provision
limiting party designation on a ballot to qualified parties.
See 199 Cal. App. 4th at 350. Importantly, the Court of
Appeal described the constitutional issue as “essentially the
same as the one rejected in Libertarian Party.” Id. The
Field case and the Libertarian Party case were considered
“essentially the same” despite the fact that the Field case
arose following California’s adoption of the open primary
system, and despite the fact that the challenged designation
in Field was “No Party Preference” rather than
“Independent” for candidates of non-qualified political
parties. Id. at 350–51, 354. The Court of Appeal adopted
the California Supreme Court’s reasoning that the
challenged provision “imposes an insubstantial burden on
the rights to associate and to vote and that the statute serves
a compelling state interest to protect the integrity and
stability of the electoral process in California.” Id. at 357
(quoting Libertarian Party, 28 Cal. 3d at 542). The Court of
Appeal reiterated that “the Libertarian Party is in no way
restricted in its associational activities or in its publication of
the affiliation of its candidates. It is only proscribed, so long
as it remains unqualified, from designating the affiliation on
the ballot.” Id. (quoting Libertarian Party, 28 Cal. 3d at
545).
SOLTYSIK V. PADILLA 39
The Court of Appeal was persuaded that important state
interests outweighed the insubstantial burden imposed by the
election statute. The court explained that “maintenance of
the integrity of the distinction between qualified and non-
qualified parties serves a compelling state interest and the
restriction of party designation on the ballot set forth in [the
statute] furthers that interest without substantially impairing
the rights of political association and voting.” Id. (citation
and alteration omitted). The court stated in no uncertain
terms that “[a]llowing nonqualified parties to be listed on the
ballot would cause deception, and even frustration of the
democratic process in California.” Id. at 358 (citation and
internal quotation marks omitted). Stressing the importance
of the party qualification process, the court added: “Until a
party becomes qualified, it is not a party whose access to the
ballot is secured under the provisions for nomination of
qualified party candidates, and it would be misleading to
designate the candidate of that political group as a political
party candidate on the ballot. . . .” Id. (citation and internal
quotation marks omitted) (emphases in the original).
The Court of Appeal explicitly rebuffed the contention
that Libertarian Party was inapplicable because that case
addressed a closed primary system and Field was
challenging an election statute governing an open primary
system. See id. at 359–60. In the process of reaching its
conclusions, the court relied on Timmons and Schrader,
cases upon which our decisions have also relied, as discussed
above. The court characterized Libertarian Party as
“directly on point.” Id. at 362.
Finally, and most persuasively, we recently decided a
remarkably similar case in a way that is decidedly unfriendly
to the majority’s analysis. See Chamness v. Bowen, 722 F.3d
1110, 1119 (9th Cir. 2013) (concluding that the “No Party
40 SOLTYSIK V. PADILLA
Preference” listing or blank space imposed a “slight” burden
outweighed by state interests).
In Chamness, we once more addressed the argument that
the California election statute prohibiting candidates of
unqualified parties from listing party affiliation violated the
First Amendment. See id. at 1116. We were not persuaded,
and “uph[e]ld the constitutionality of the statute as
reasonably related to furthering the state’s important interest
in efficiently regulating elections.” Id. We characterized the
statute as “viewpoint neutral” because it applied to all
candidates equally, and “has no viewpoint implications.” Id.
at 1118. We observed that the statute served to prevent
“electoral confusion,” id., and twice described any burden as
“slight.” Id. at 1118–19.
The majority’s conclusion that the “No Party
Preference” listing imposes a “serious” or “more than slight”
burden, Majority Opinion, p. 13, is not only inconsistent
with our determination in Chamness that this burden is
“slight,” 722 F.3d at 1118–19, it also bumps heads with
various other cases with similar facts describing comparable
statutes as involving a “slight” or “minimal” burden. See
Lightfoot, 964 F.2d at 870–72 (describing the burden as
“slight” four times); Burdick, 504 U.S. at 439 (characterizing
a prohibition on write-in votes as “slight” even though the
prohibition directly denied voters the right to cast their votes
as desired); Timmons, 520 U.S. at 363 (noting that provisions
prohibiting candidates from associating with more than one
party “limit, slightly, the party’s ability to send a message to
the voters and to its preferred candidates”); Dudum, 640 F.3d
at 1113 (identifying the burdens imposed by San Francisco’s
runoff system as “minimal at best”); Arizona Libertarian
Party, 798 F.3d at 732 (characterizing a voter registration
form limiting party affiliation to the two major parties and
SOLTYSIK V. PADILLA 41
“other” as imposing a “de minimis” burden and a “slight”
burden).
In contrast to this consistent and congruent line of cases,
the majority cites no cases describing similar election
restrictions as “serious” or “more than slight.” The cases
cited by the majority do not contain such a description. In
fact, the Dudum case described the challenged provision as
imposing a burden that was “minimal at best.” 640 F.3d at
1113. Similarly, in Arizona Green Party, 838 F.3d at 991,
we concluded that the challenged filing deadline “imposes
no more than a de minimis burden on the Green Party
constitutional rights.”
Existing precedent also refutes the majority’s conclusion
that the challenged provision precluding the listing of
unqualified parties results in a misleading ballot. As
discussed, cases at all levels have reached exactly the
opposite conclusion: allowing unqualified parties to be
listed on the ballot would be misleading and confusing. Our
recent Chamness decision is most powerfully persuasive, as
it addressed virtually the same provision challenged in this
case. Rejecting the same constitutional challenge made by
Soltysik, we reasoned that the “slight speech burdens”
imposed by the “No Party Preference” requirement was not
only “viewpoint neutral,” but justified by the State’s interest
in “preventing misrepresentation and electoral confusion”
that would otherwise result. 722 F.3d at 1118–19.
Perhaps recognizing that our recent decision in
Chamness militates toward a different outcome, the majority
seeks to distinguish this precedent on the basis that we
pointed to a lack of evidence from Chamness. Majority
Opinion, pp. 18–19. The majority takes the position that
Soltysik never had the opportunity to develop evidence in
support of his argument. See id. at 18. However, in context,
42 SOLTYSIK V. PADILLA
the language relied on by the majority does not carry the
import conveyed by the majority. Indeed, the panel in
Chamness was simply musing regarding a “possible
difference” between the phrases “Independent” and “No
Party Preference,” and potential evocations from the
respective phrases. In the course of that musing, the panel
included the “no evidence” statement without elaboration.
722 F.3d at 1118. In any event, the majority’s argument
elides the plethora of cases that have rejected similar
arguments as a matter of law. See, e.g., Jenness, 403 U.S. at
439, 442; Socialist Workers Party, 591 F.2d at 1254, 1261–
62; Lightfoot, 964 F.2d at 869–72; Dart, 717 F.2d at 1504;
Schrader, 241 F.3d at 790–91. This argument also ignores
cases, including from the United States Supreme Court, that
the state is not required to make an evidentiary showing of
its interests. See Timmons, 520 U.S. at 364; see also Munro,
479 U.S. at 196; Ariz. Libertarian Party, 798 F.3d at 732;
Stone, 750 F.3d at 685.
The majority describes the precedent cited in this dissent
as “most[ly]” arising from summary judgment rulings.
Majority Opinion, p. 20. But “mostly” is not all, and some
of the more compelling cases did not arise from summary
judgment rulings. See Rubin, 308 F.3d at 1013 (“reviewing
a 12(b)(6) dismissal”); Field, 199 Cal. App. 4th at 352
(motion for a preliminary injunction); Stone, 750 F.3d at 680
(dismissal for failure to state a claim); Storer, 415 U.S. at
728 (complaints dismissed by “three-judge District Court”);
Libertarian Party, 28 Cal.3d at 538 (writ of mandate). In
any event, it does not strengthen the majority’s position that
even after considering the best evidence the challengers
could muster in the light most favorable to the challengers,
courts have rejected similar challenges as a matter of law.
See Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir.
2011) (reciting summary judgment standard); see also, e.g.,
SOLTYSIK V. PADILLA 43
Ariz. Libertarian Party, 798 F.3d at 733–34 (rejecting a
similar challenge following summary judgment review).
One final point of disagreement—the majority’s
discussion of alternatives. See Majority Opinion, pp. 16–19.
The majority would have the state explain “why less
burdensome (and less misleading) alternatives would not
accomplish the goal of reducing voter confusion.” Id. at 16.
However, as discussed, precedent is crystal clear that, in the
absence of a severe burden to constitutional rights, no
tailoring of election provisions is required. See Timmons,
520 U.S. at 364 (“[T]he state need not narrowly tailor the
means it chooses to promote ballot integrity . . .”); see also
Dudum, 640 F.3d at 1114 (“[T]here is no requirement that
the [challenged] rule is the only or best way to further the
proffered interests.”) (citations omitted); Pest Committee,
626 F.3d at 1110 (“The district court . . . was not obligated
to consider whether Nevada’s system could or should be
more narrowly tailored.”) (citation omitted); Ariz.
Libertarian Party, 798 F.3d at 732 (“[W]e need not
determine whether the interests served by [the Arizona
statute] can be better served by other means . . .”);
Democratic National Committee v. Reagan, 904 F.3d 686,
703 (9th Cir. 2018) (noting that the state is not necessarily
“required to show that its system . . . is the one best tailored
to achieve its purposes”) (citation omitted).
The majority’s contrary approach suggests that it is
actually applying strict scrutiny. See Burdick, 504 U.S. at440 n.10 (concluding that the dissent in that case, like the
majority in this case, “actually employ[ed] strict scrutiny” as
evidenced by the argument “that the State could adopt a less
drastic means”); see also Democratic National Committee,
904 F.3d at 703 (relying on Dudum to note that narrow
tailoring is not necessarily a required showing).
44 SOLTYSIK V. PADILLA
Nevertheless, the alternative means of communication that
do exist weigh in favor of a finding of constitutionality. See
Jenness, 403 U.S. at 438; see also Munro, 479 U.S. at 198;
Timmons, 520 U.S. at 363; Rubin, 308 F.3d at 1016.
In sum, considering the fact that a ballot is a means of
gathering votes rather than a means of communication, the
State of California acted within its considerable discretion in
requiring a modicum of voter support before listing a party
on its ballots. Because any burden on associational rights
was slight and the restriction was viewpoint neutral, I am
persuaded that existing case authority overwhelmingly
militates in favor of upholding the challenged provision.
I would affirm the district court’s judgment dismissing
the action.