Aclu of Nevada v. Heller

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN CIVIL LIBERTIES 
UNION OF NEVADA; SHARON BRUNE;
CARRIE RENEE CHAMBERLAIN;
KATHERINE CHAMBERLAIN;
COMMITTEE TO REGULATE AND
CONTROL MARIJUANA; DANIELLE
HALDERMAN; JENNIFER KNIGHT; No. 04-17033
MARIJUANA POLICY PROJECT;
D.C. No.

GUITANA LEE MATRACIA; DANIEL
WISNOSKY, CV-04-01035-
Plaintiffs-Appellees, JCM/LRL
v. OPINION
LARRY LOMAX,
Defendant,
and
DEAN HELLER,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
July 26, 2006—San Francisco, California
Filed December 8, 2006
Before: Procter Hug, Jr., Andrew J. Kleinfeld, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez
19287
19290 ACLU OF NEVADA v. HELLER
COUNSEL
Brian Sandoval, Attorney General, and Victoria Thimmesch
Oldenburg, Senior Deputy Attorney General, Carson City,
Nevada, for the defendant-appellant.
Allen Lichtenstein, ACLU of Nevada, Las Vegas, Nevada, for
the plaintiffs-appellees.
Matthew D. Brinckerhoff and Sarah Netburn, Emery Celli
Brinckerhoff & Abady, LLP, New York, New York, for the
plaintiffs-appellees.
ACLU OF NEVADA v. HELLER 19291
OPINION
PAEZ, Circuit Judge:
The citizens of Nevada reserved to themselves the power to
legislate by initiative. NEV. Const. art. 19, § 2(1). By way of
the state’s petition process, Nevada citizens may place quali-
fied initiatives, which propose to create or amend statutes, or
amend the constitution, on a statewide general election ballot.
Id. If a constitutional initiative obtains voter approval in two
consecutive general elections, the initiative is adopted, and the
Nevada Constitution is amended. NEV. CONST. art. 19, § 2(4).
In anticipation of the 2004 General Election, Plaintiffs1
(collectively “the Committee”) circulated a petition to place
the Regulation of Marijuana Initiative (“the initiative”), a con-
stitutional initiative, on the ballot. After the Committee sub-
mitted the petition to Defendant Dean Heller, Nevada’s
Secretary of State (“the Secretary”), the Secretary determined
that the initiative did not qualify for the ballot because the
petition failed to garner the requisite number of valid signa-
tures. Thousands of signatures were disqualified because they
did not satisfy two non-signature requirements, as contained
in the Dual Affidavit and Deemed Registered Rules. As a
result of these disqualifications, the Secretary determined that
the initiative petition failed to comply with two signature
rules—the Statewide Rule, which requires that at least 10% of
Nevada’s eligible voters sign the petition, and the 13 Counties
Rule, which requires that the initiative proponents obtain sig-
natures from at least 10% of the eligible voters in at least 13
of the 17 Nevada counties.
1
Plaintiffs included the following parties: the American Civil Liberties
Union of Nevada; Sharon Brune; Carrie Renee Chamberlain; Katherine
Chamberlain; the Committee to Regulate and Control Marijuana; Danielle
Halderman; Jennifer Knight; the Marijuana Policy Project; Guitana Lee
Matracia; and Daniel Wisnosky.
19292 ACLU OF NEVADA v. HELLER
The Committee challenged the 13 Counties, Dual Affidavit,
and Deemed Registered Rules in district court, and moved for
a preliminary injunction against the enforcement of these
requirements. The Committee alleged that the 13 Counties
Rule violated the Equal Protection Clause of the Fourteenth
Amendment because it treats more favorably the votes of resi-
dents of sparsely populated counties than the votes of resi-
dents of densely populated counties, thereby diluting the votes
of the latter. The court granted permanent injunctive relief
with respect to the 13 Counties and Dual Affidavit Rules,
only the former of which is before this court on appeal. The
Secretary argues that the district court erred in enjoining
enforcement of the 13 Counties Rule because the court did not
undertake the requisite strict scrutiny review, the rule survives
this exacting review, and the case on which the district court
primarily relied does not control the present case.
The 2004 General Election has long passed, and the Com-
mittee’s initiative did not appear on the ballot. Although the
parties do not challenge the justiciability of this case, we ini-
tially consider two justiciability issues: standing and moot-
ness. First, we hold that the Committee had standing to bring
its constitutional challenges in federal court. Although the ini-
tiative failed to meet the Statewide Rule, which the Commit-
tee did not challenge, it would have done so had the
Committee prevailed on its three challenges. The Commit-
tee’s injury was therefore redressable when the Committee
filed suit. Second, we hold that this case fits within the “capa-
ble of repetition, yet evading review” exception to the moot-
ness doctrine. As in the other election cases we have decided,
the challenged action here is too short in duration to enable
full litigation on the merits, and there is a reasonable expecta-
tion that the Committee will again be subject to the chal-
lenged 13 Counties Rule.
Finally, we examine the merits of the Secretary’s appeal,
i.e. whether the 13 Counties Rule passes muster under strict
scrutiny review. We agree with the district court that the 13
ACLU OF NEVADA v. HELLER 19293
Counties Rule is unconstitutional. The 13 Counties Rule vio-
lates the equal protection tenet of “one person, one vote,” and
is not narrowly tailored. The rule is indistinguishable from a
similar rule that this court struck down in Idaho Coalition
United for Bears v. Cenarrussa, 342 F.3d 1073 (9th Cir.
2003). Accordingly, we affirm the district court’s grant of a
permanent injunction.
I. Background
During the petition cycle for Nevada’s 2004 General Elec-
tion, the Committee sought to place the Regulation of Mari-
juana Initiative on the ballot. The initiative sought to amend
the Nevada Constitution to direct the state legislature to regu-
late the manufacture, taxation, and sale of marijuana. On Feb-
ruary 18, 2004, the Committee filed a copy of the initiative
petition with the Secretary. After it gathered 66,135 signatures
in favor of the initiative, the Committee submitted the circu-
lated petition to the various county clerks on June 14, 2004.
On July 13, 2004, the Secretary announced that the initiative
failed to qualify for the ballot. The Secretary concluded that
the initiative did not satisfy the Statewide and 13 Counties
Rules.
The 13 Counties Rule requires that “[a]n initiative petition
. . . shall be proposed by a number of registered voters equal
to 10 percent or more of the number of voters who voted at
the last preceding general election in not less than 75 percent
of the counties [or 13 of the 17 counties] in the state.” NEV.
CONST. art. 19, § 2(2). Because the 13 Counties Rule is not
based on county population, but rather on a fixed percentage
of signatures from a fixed percentage of counties, it dilutes
the vote of residents of densely populated counties, such as
Washoe County, which includes Reno, and Clark County,
which includes Las Vegas.2 In addition to this signature
2
In 2004, Clark and Washoe Counties comprised approximately 87% of
Nevada’s population. The other 15 counties contained the remaining 13%
of the population. See Nevada Workforce Informer, http://www.nevada
workforce.com/cgi/databrowsing/?PAGEID=4&SUBID=143 (last visited
November 29, 2006).
19294 ACLU OF NEVADA v. HELLER
requirement, under Nevada’s Statewide Rule, “the total num-
ber of registered voters signing the initiative petition shall be
equal to 10 percent or more of the voters who voted in the
entire state at the last preceding general election.” NEV.
CONST. art. 19, § 2(2). In the 2002 General Election, 513,370
people voted. Therefore, to satisfy the Statewide Rule, an ini-
tiative petition for the 2004 General Election must have con-
tained at least 51,337 valid signatures. Because the
Committee’s initiative met the 10% threshold in only 12
counties, and only 34,947 of the 66,135 statewide signatures
were validated, as alleged in the complaint, the Secretary con-
cluded that it did not qualify for the ballot.
In making this determination, the Secretary, and the Clark
County Election Department, invalidated thousands of signa-
tures based on the Dual Affidavit and Deemed Registered
Rules. The Dual Affidavit Rule requires that an initiative peti-
tion contain an affidavit from one of the signers averring that
“all of the signatures are genuine and that each individual who
signed such document was at the time of signing a registered
voter in the county of his or her residence.” NEV. CONST. art.
19, § 3(1). The Secretary invalidated 19,830 signatures from
Clark and Washoe Counties because they did not comply with
this rule. On the basis of these two counties’ signature verifi-
cation rates, 15,120 of these disqualified signatures would
have been verified had the Dual Affidavit Rule not been
enforced.
The Deemed Registered Rule establishes that a citizen is
“deemed to be registered” to vote, a prerequisite to signing an
initiative petition, when he or she submits a voter registration
form to the county clerk. NEV. REV. STAT. § 293.5235. In a
random 5% sample of the signatures gathered, the Clark
County Election Department disqualified 102 signatures
based on this rule.
On July 27, 2004, the Committee filed suit against the Sec-
retary and the Clark County Registrar in district court pursu-
ACLU OF NEVADA v. HELLER 19295
ant to 42 U.S.C. § 1983, alleging that the 13 Counties, Dual
Affidavit, and Deemed Registered Rules violated the First and
Fourteenth Amendments. The Committee claimed that the 13
Counties Rule deprived residents of densely populated coun-
ties equal protection under the law; and curtailed their right to
free speech and association, and their right to petition the gov-
ernment for redress of grievances.3 On that same day, the
Committee also filed a motion for a temporary restraining
order and preliminary injunction, asking the court to enjoin
the Secretary from applying the 13 Counties and Dual Affida-
vit Rules, and to enjoin the Clark County Registrar from
applying the Deemed Registered Rule to the signatures on the
initiative petition. On August 2, the district court granted the
motion for a temporary restraining order, and scheduled a
hearing on the motion for a preliminary injunction for August
13, 2004.
At the hearing, the district court informed the parties that,
like the rule that the Ninth Circuit invalidated in Idaho Coali-
tion, the 13 Counties Rule violated the constitutional tenet of
“one person, one vote” due to its unequal impact on voters
from the various counties. The court posited that instead of
requiring signatures from 10% of the voters in 75% of the
counties, Nevada could require those same percentages in leg-
islative districts, presumably state legislative districts, which
are more equi-populous than are counties. The court quoted
an excerpt from Idaho Coalition and stated that it was “giving
away [its] thinking on this . . . but it seems . . . that the 13
County Rule is unconstitutional under the Idaho Coalition
case.” The court concluded that under Idaho Coalition, the 13
Counties Rule violated the Equal Protection Clause of the
Fourteenth Amendment. At the hearing, the parties also
agreed to convert the proceeding to a permanent injunction
hearing pursuant to Rule 65(a)(2) of the Federal Rules of
Civil Procedure.
3
Only the Fourteenth Amendment claim is at issue on appeal.
19296 ACLU OF NEVADA v. HELLER
Consistent with the views it expressed at the hearing, the
court issued an order on August 20, 2004 declaring the 13
Counties Rule unconstitutional and permanently enjoining the
Secretary from enforcing it when considering whether the
Committee’s initiative qualified for the ballot. The district
court issued the same ruling with respect to the Dual Affidavit
Rule, enjoining the Clark County Registrar in addition to the
Secretary. The court, however, denied the Committee’s
request to enjoin enforcement of the Deemed Registered Rule,
which this court affirmed in an unpublished disposition. Com-
mittee to Regulate and Control Marijuana, et al. v. Lomax,
No. 04-16626. The Secretary timely appealed the court’s
order enjoining enforcement of the 13 Counties Rule.
II. Jurisdiction
Although neither party raises the justiciability issues of
standing and mootness on appeal, we have an “independent
obligation” to consider them sua sponte. Dittman v. Califor-
nia, 191 F.3d 1020, 1025 (9th Cir. 1999) (mootness); RK Ven-
tures, Inc. v. City of Seattle, 307 F.3d 1045, 1056 (9th Cir.
2002) (standing).
A.
[1] Standing is an “essential component” of the case or con-
troversy requirement of Article III, § 2 of the United States
Constitution. Carroll v. Nakatani, 342 F.3d 934, 940 (9th Cir.
2003). The “irreducible constitutional minimum of standing”
contains three parts: (1) injury in fact; (2) causation; and (3)
likelihood that the injury will be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992); Schneider v. Chertoff, 450 F.3d 944, 959 (9th Cir.
2006). When evaluating whether these three elements are
present, we must look at the facts “as they exist at the time the
complaint was filed.” Lujan, 504 U.S. at 569 n.4 (internal
quotation marks omitted); Clark v. City of Lakewood, 259
F.3d 996, 1006 (9th Cir. 2001) (“Standing is determined by
ACLU OF NEVADA v. HELLER 19297
the facts that exist at the time the complaint is filed.”). The
injury must not be conjectural or hypothetical; “the plaintiff
must demonstrate a real or immediate threat of an irreparable
injury.” Cole v. Oroville Union High Sch. Dist., 228 F.3d
1092, 1100 (9th Cir. 2000).
[2] It is clear that the Committee suffered a real or immedi-
ate threat of an irreparable injury, namely the failure of its ini-
tiative to qualify for the ballot. It is also clear that the
enforcement of the challenged rule caused this injury. The
injury was also redressable when the Committee filed suit.
Had the Committee succeeded on all three of its claims, the
initiative would have qualified for the ballot. Although the
initiative failed to satisfy the Statewide Rule, which the Com-
mittee did not challenge, the Statewide Rule did not constitute
an independent ground upon which the initiative was rejected.
Rather, the initiative failed to meet the 10% statewide thresh-
old precisely because thousands of signatures were disquali-
fied based on violations of the three challenged rules. In other
words, the enforcement of the latter rules prevented the initia-
tive from satisfying the former, uncontested rule.
[3] In determining redressability, courts “assume that plain-
tiff’s claim has merit.” Bonnichsen v. United States, 367 F.3d
864, 873 (9th Cir. 2004) (“The question in deciding whether
a plaintiff’s injury is redressable is not whether a favorable
decision is likely but whether a favorable decision likely will
redress a plaintiff’s injury.”). Assuming then, as we must, that
the Committee succeeded on each of the three challenges it
brought, the initiative would have obtained the requisite per-
centage of statewide signatures.4 Thus, we cannot say that at
4
The record before the district court contained the following relevant
information:
According to the Committee, the Secretary validated 34,947 signatures
in the raw count, which was 16,390 short of satisfying the Statewide Rule.
Had the Secretary not enforced the Dual Affidavit Rule, 15,120 of the
19,830 disqualified signatures would have been verified, based on the ver-
19298 ACLU OF NEVADA v. HELLER
the time the Committee filed suit, its injury was not redress-
able. Although the district court ultimately rejected the Com-
mittee’s challenge to the Deemed Registered Rule, that event
did not deprive the Committee of standing to file its complaint
in federal court. Because the initiative would have satisfied
the Statewide Rule, and qualified for the ballot, had the Com-
mittee prevailed on all of its challenges, i.e. because the dis-
trict court had the power to prevent the injury at the time the
complaint was filed, the Committee’s injury was redressable.
ification rates of Clark and Washoe Counties, bringing the signature total
to 50,067. Had the Clark County Registrar not enforced the Deemed Reg-
istered Rule, 2,039 additional signatures, based on an extrapolation from
the 102 disqualified signatures in a 5% sample, would have counted. The
Registrar contends that there would have been only 1,600 additional signa-
tures because only 80 of the 102 signatures would have been reinstated.
Either way, these additional signatures bring the total to at least 51,667,
which is 330 signatures over the 10% threshold.
The Secretary did not contest standing in district court. However, in his
opposition to the Committee’s preliminary injunction motion (“opposition
brief”), he provided data that differed from that provided by the Commit-
tee. According to the Secretary, there were 36,596 valid signatures in the
raw count. Because the Dual Affidavit Rule was struck down in an unre-
lated state court proceeding during the 2004 initiative qualification period,
the Secretary reinstated the 19,830 raw signatures that had been invali-
dated. Based on the verification rates of Clark and Washoe Counties,
13,492 of the 19,830 raw signatures would have been verified, bringing
the signature count to 50,088. The additional 1600 signatures, based on the
Deemed Registered Rule, bring the total to 51,688, which surpasses the
10% requirement.
Although the Secretary’s numbers differ slightly from those of the
Committee, regardless of which data set we employ, the initiative would
have satisfied the Statewide Rule if the Committee had succeeded on all
three of its challenges. In fact, in his opposition brief, the Secretary stated
that “for Plaintiffs to prevail, the Court must find Nevada’s 13 County
Rule unconstitutional,” thereby suggesting that the Statewide Rule would
not prevent the initiative from qualifying for the ballot. Additionally, in
the Clark County Registrar’s opposition brief, the Registrar acknowledged
that if all of the challenged rules were invalidated, the initiative would sat-
isfy the Statewide Rule.
ACLU OF NEVADA v. HELLER 19299
See Ry. Labor Executives Ass’n v. Dole, 760 F.2d 1021, 1023
(9th Cir. 1985) (holding that plaintiffs’ injury was not redress-
able because, even if the court granted the requested injunc-
tive relief, the injury would continue to occur). We therefore
hold that the Committee had standing to challenge the 13
Counties Rule.
B.
[4] Like standing, the case or controversy requirement of
Article III, § 2 also underpins the mootness doctrine. Clark,
259 F.3d at 1006. Whereas standing is evaluated by the facts
that existed when the complaint was filed, “[m]ootness inqui-
ries, however, require courts to look to changing circum-
stances that arise after the complaint is filed.” Id. If a “live”
controversy no longer exists, the claim is moot. City of Erie
v. Pap’s A.M., 529 U.S. 277, 287 (2000); Dream Palace v.
County of Maricopa, 384 F.3d 990, 999-1000 (9th Cir. 2004)
(“The question of mootness focuses upon whether we can still
grant relief between the parties.” (internal quotation marks
omitted)). Although the 2004 General Election has passed, the
Committee’s case is not moot. See, e.g., Padilla v. Lever, 463
F.3d 1046, 1049 (9th Cir. 2006) (en banc) (holding that plain-
tiff’s challenge to an election law is not rendered moot by the
passing of an election); Alaska Right to Life Comm. v. Miles,
441 F.3d 773, 779 (9th Cir. 2006) (same); Schaefer v. Town-
send, 215 F.3d 1031, 1033 (9th Cir. 2000) (same). Rather, the
Committee’s claim remains justiciable because it falls com-
fortably within the “capable of repetition, yet evading review”
exception to the mootness doctrine. See Padilla, 463 F.3d at
1049.
[5] The “capable of repetition, yet evading review” excep-
tion applies when (1) the challenged action is too short in
duration to allow full litigation before it ceases, and (2) there
is a reasonable expectation that the plaintiffs will again be
subject to the same action. First Nat’l Bank of Boston v. Bel-
lotti, 435 U.S. 765, 774 (1978); Padilla, 463 F.3d at 1049.
19300 ACLU OF NEVADA v. HELLER
Turning to the first element, a challenged action evades
review if it is “almost certain to run its course before either
this court or the Supreme Court can give the case full consid-
eration.” Miller ex rel. NLRB v. Cal. Pac. Med. Ctr., 19 F.3d
449, 454 (9th Cir. 1994). We have held that “[e]lection cases
often fall within this exception, because the inherently brief
duration of an election is almost invariably too short to enable
full litigation on the merits.” Porter v. Jones, 319 F.3d 483,
490 (9th Cir. 2003); see also Padilla, 463 F.3d at 1049. This
is certainly the case here. In Nevada, county clerks must file
constitutional initiatives with the Secretary, who determines
whether they qualify for the ballot, 90 days before the general
election is held. NEV. CONST. art. 19, § 2(4). Therefore, the
Committee had a maximum of 90 days to bring its lawsuit and
make its way to this court.5 Supreme Court precedent, and our
own, makes clear that this deadline is insufficient to allow full
review. See, e.g., Meyer v. Grant, 486 U.S. 414, 417 n.2
(1988) (the chances of 6 months being a sufficient amount of
time for complete review are “slim at best”); Bellotti, 435
U.S. at 774 (18 months is too short a period of time for com-
plete judicial review); Padilla, 463 F.3d at 1049-50 & n.1
(same for 4 months); Greenpeace Action v. Franklin, 14 F.3d
1324, 1329-30 (9th Cir. 1992) (same for 1 year); Alaska Ctr.
for the Env’t v. U.S. Forest Serv., 189 F.3d 851, 855 (9th Cir.
1999) (same for 2 years). We therefore conclude that, in the
election context, the 13 Counties Rule evades review.6
5
In practice, this ephemeral time frame was even shorter. The Secretary
determined that the initiative did not qualify for the ballot on July 13,
2004. According to the Secretary, printing of the ballots began on or about
August 15, 2004. Therefore, the Committee had only one month to obtain
full litigation on the merits in the district court and the court of appeals.
Moreover, because it prevailed in district court with respect to the 13
Counties Rule, the Committee could not initiate the appellate process;
rather it had to wait for the Secretary to appeal the district court’s order.
The Secretary waited the maximum 30-days before filing its notice of
appeal, and did not request expedited review.
6
Although, in extraordinary cases, discretionary procedures for expedit-
ing appeals arising out of an election dispute may be available, the possi-
ACLU OF NEVADA v. HELLER 19301
[6] To satisfy the second element of the “capable of repeti-
tion, yet evading review” exception, the Committee “need
only show that it is reasonable to expect that [the Secretary]
will engage in conduct that will once again give rise to the
assertedly moot dispute.” Miller, 19 F.3d at 454 (internal quo-
tations marks omitted). The Committee has done so. Through-
out this litigation, the Secretary has expressed a clear desire
to enforce the 13 Counties Rule, insisting that the rule passes
constitutional muster and furthers the interests of Nevada.
Therefore, if we do not hear this case, and the injunction is
vacated, there is a reasonable expectation that this precise
issue will repeat itself.7
[7] In sum, we conclude that the Committee’s challenge,
although premised on an election that has long passed, is “ca-
pable of repetition, yet evading review.” We therefore hold
bility of expedited review does not render this case moot. See Padilla, 463
F.3d at 1050; Joyner v. Mofford, 706 F.2d 1523, 1527 (9th Cir. 1983)
(“ ‘Evading review’ for the purpose of the exception need not mean that
review is impossible. It only means that in the ordinary course of affairs
it is very likely to escape review.”). Because the appellate process is “fre-
quently too slow to process appeals before an election,” we apply this
mootness exception to enable the Secretary to obtain complete judicial
review. See Porter, 319 F.3d at 490 (internal quotation marks omitted).
Moreover, even if the Secretary had appealed immediately and
requested expedited review, it is highly unlikely that full appellate review
would have been accomplished in 30 days. On the same day the district
court issued its order, the Committee filed a notice of appeal with respect
to the court’s ruling on its challenge to the Deemed Registered Rule.
Although the appeal was promptly assigned to a motions panel and an
expedited briefing schedule was ordered, the judgment from this court did
not become final until October 20, 2004—two months after the appeal was
filed.
7
At oral argument, the Secretary informed us that several initiative peti-
tions have been placed on the 2006 General Election ballot, even though
they do not satisfy the 13 Counties Rule. Therefore, according to the par-
ties, there is a reasonable possibility if the injunction is vacated that the
federal courts will be faced with the precise constitutional question that
this case presents.
19302 ACLU OF NEVADA v. HELLER
that the case is justiciable,8 and proceed to examine the merits
of the Secretary’s appeal of the district court’s ruling on the
13 Counties Rule.
III. The 13 Counties Rule
A.
This court reviews for abuse of discretion a district court’s
order granting permanent injunctive relief. Ashker v. Cal.
Dep’t of Corr., 350 F.3d 917, 921 (9th Cir. 2003). However,
we review “any determination underlying the grant of an
injunction by the standard that applies to that determination.”
Ting v. AT&T, 319 F.3d 1126, 1134-35 (9th Cir. 2003). We
conduct a de novo review of legal determinations. Id. at 1135.
The Secretary argues that the district court’s decision to
permanently enjoin enforcement of the 13 Counties Rule was
flawed for two related reasons. First, the Secretary asserts that
because the Committee challenged the 13 Counties Rule as a
violation of the Equal Protection Clause of the Fourteenth
Amendment, the district court was required to undergo a strict
scrutiny review of the rule in determining whether the rule
was constitutional. Rather than doing so, the Secretary asserts
that the district court blindly followed this court’s decision in
Idaho Coalition United for Bears v. Cenarrussa, 342 F.3d
1073 (9th Cir. 2003), which, according to the Secretary, does
not control the present case. Second, the Secretary argues that
the 13 Counties Rule survives strict scrutiny review. We dis-
agree on both counts.
[8] As the transcripts of the preliminary injunction hearing
show, the district court engaged in a careful strict scrutiny
analysis of the constitutionality of the 13 Counties Rule.9
8
We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).
9
In addition to the court’s oral statements at the preliminary injunction
hearing, the court’s subsequent written order cited directly to Idaho Coali-
tion. Although brief, the court’s order further shows that the court adopted
the analysis and reasoning of that case.
ACLU OF NEVADA v. HELLER 19303
After the Secretary presented his argument, the court reasoned
that the effect “of the 13 County Rule is to violate one-man,
one-vote,” which was the “vice that [the court in Idaho Coali-
tion] found,” because it favored voters in sparsely populated
areas. The court also noted that the 13 Counties Rule could be
changed so that the more equally-apportioned electoral dis-
tricts, rather than counties, are the units of interest, which
would alleviate some of the disparate impact caused by the
current rule. Finally, the court concluded that the 13 Counties
Rule “violates the equal protection clause and the rationale
that I rely on for that is the Idaho Coalition case.”
[9] In light of the record, we cannot say that the district
court relied on Idaho Coalition without engaging in the requi-
site strict scrutiny analysis. The record reflects that the district
court did not simply import the end-result of Idaho Coalition
to the present case, nor did it apply the reasoning of Idaho
Coalition blindly. Instead, the court applied the rationale of
Idaho Coalition only after it correctly determined that the
present case is governed by Idaho Coalition, as explained
below.
B.
[10] We agree with the district court that Idaho Coalition
controls. Like Nevada, the Idaho Constitution permits its citi-
zens to propose and enact laws through the initiative process.
Idaho Coalition, 342 F.3d at 1074. Idaho had an initiative rule
similar to the 13 Counties Rule—to qualify as a ballot initia-
tive, a proposed law had to receive signatures of support from
at least 6% of the qualified voters in the state, including 6%
of the qualified voters in at least 50% of the state’s 44 coun-
ties. Id. Also like Nevada, the population of Idaho’s counties
is unevenly distributed—60% of the population resides in just
9 counties. Id. at 1075. Therefore, Idaho’s signature require-
ment, like the 13 Counties Rule, favored residents of sparsely
populated counties over residents of heavily populated coun-
ties. Id.
19304 ACLU OF NEVADA v. HELLER
In determining the constitutionality of Idaho’s signature
requirement, we looked to the Supreme Court’s decision in
Moore v. Ogilvie, 394 U.S. 814 (1969), for guidance. 342
F.3d at 1076. In Moore, the Supreme Court, applying the prin-
ciple of “one person, one vote” to the petition context, invali-
dated an Illinois statute that required nominees of newly
formed political parties to collect at least 25,000 signatures,
which had to include 200 signatures of qualified voters from
each of at least 50 of the 102 counties in the state. 394 U.S.
at 815. Recognizing that “[a]ll procedures used by a State as
an integral part of the election process must pass muster
against the charges of discrimination or of abridgment of the
right to vote,” id. at 818, the Supreme Court struck down the
statute because it discriminated in favor of residents of less-
populous rural counties in violation of the Fourteenth Amend-
ment, id. at 819. Although the Supreme Court did not
expressly engage in a strict scrutiny analysis,10 this court in
Idaho Coalition concluded that “under Moore, strict scrutiny
applies.” 342 F.3d at 1077.
[11] Because of the Idaho rule’s unfavorable treatment of
urban residents, we concluded that the signature requirement
violated the Equal Protection Clause of the Fourteenth
Amendment. Id. at 1079. We rejected Idaho’s argument that
the policy served a compelling state interest “in requiring a
modicum of statewide support in the direct legislation con-
text,” and further determined that even if this and other pur-
ported state interests were compelling, the rule was not
narrowly tailored. Id. at 1078 (internal quotation marks omit-
ted). Contrary to the Secretary’s argument that the import of
Idaho Coalition is limited to its use of strict scrutiny review,
its holding—an initiative qualification rule that requires a
10
To survive strict scrutiny review, “the policy in question [must] be
narrowly tailored to achieve a compelling state interest.” Parents Involved
in Cmty. Schs. v. Seattle Sch. Dist., No. 1, 426 F.3d 1162, 1172 (9th Cir.
2005) (en banc), cert. granted, ___ U.S. ___, 126 S.Ct. 2351 (U.S. June
05, 2006) (No. 05-908).
ACLU OF NEVADA v. HELLER 19305
fixed percentage of petition signatures from a fixed percent-
age of counties in a state with a substantially uneven geo-
graphic distribution pattern, which favors residents of sparely
populated areas over residents of densely populated areas,
violates the Equal Protection Clause of the Fourteenth
Amendment—controls.
The Secretary’s attempts to distinguish Idaho Coalition are
unavailing. The Secretary argues that because Nevada, as
compared to Idaho, requires a larger percentage of statewide
signatures, 10% compared to 6%, and a higher percentage of
county support, 75% compared to 50%, a different result is
compelled in this case. Although we did suggest that Idaho
could achieve some of its objectives “by simply increasing the
statewide percentage of signatures required,” id. at 1079, we
posited the statewide percentage increase in lieu of, rather
than in conjunction with, a county-based requirement. We
suggested that an increase in the percentage of signatures
required might help the state achieve its objectives of prevent-
ing voter confusion and fraud; we did not suggest that an
increase in the required percentage of signatures would elimi-
nate concerns regarding the constitutionality of the state’s
efforts to ensure that voter initiatives had significant statewide
support by allocating equal power to counties of unequal pop-
ulations. A general statewide increase of the fixed percentage
requirement does not resolve the constitutional infirmities
resulting from a system that dilutes the power of some votes
by providing more sparsely populated counties with the same
total power as densely populated counties.11
11
In searching for ways to differentiate Idaho’s rule, the Secretary omits
a distinguishing fact—the definition of “eligible voters” is not the same
for the Idaho and Nevada rules. Whereas the Idaho rule required the signa-
tures of at least 6% of registered voters, Nevada requires the signatures of
at least 10% of people who voted in the last election. In other words,
despite requiring a larger percentage of signatures, the signature pool that
the 13 Counties (and Statewide) Rule establishes is more limited than that
established by the Idaho rule.
19306 ACLU OF NEVADA v. HELLER
[12] Further, in light of our determination that Idaho’s rule
was not sufficiently distinct from the Illinois rule at issue in
Moore, the facial distinctions between the Idaho rule and the
13 Counties Rule, which the Secretary highlights, also do not
compel a different result. Whereas the Illinois rule involved
voter support for candidates and required a fixed number of
signatures regardless of a county’s population, the Idaho rule
involved voter support for initiatives and required a fixed per-
centage of signatures of a county’s qualified voters. Further,
whereas 93.4% of Illinois’s registered voters resided in 49 of
its 102 counties, 60% of Idaho’s population reside in 9 of its
44 counties. Despite these differences, this court concluded
that “[b]oth the Idaho and Illinois requirements violate the
Equal Protection Clause, because they allocate equal power to
counties of unequal population.” Idaho Coalition, 342 F.3d at
1078. In other words, the common diluting impact of both
rules outweighed all of their distinctions. Because Nevada’s
13 Counties Rule also dilutes the votes of urban residents, and
is more similar to the Idaho rule than was the Illinois rule—
the 13 Counties rule regulates voter support for initiatives and
requires a fixed percentage of a county’s qualified voters—the
district court correctly determined that Idaho Coalition con-
trols.12
[13] As previously noted, we have rejected the precise
compelling state interest that the Secretary has put forth. See
Idaho Coalition, 342 F.3d at 1078.13 Moreover, even assum-
ing that ensuring statewide support of a ballot initiative is a
12
Another district court in the Ninth Circuit recently invoked Idaho
Coalition to invalidate a Montana signature requirement similar to the one
at issue in Idaho and the present case. See Mont. Pub. Interest Research
Group v. Johnson, 361 F. Supp. 2d 1222, 1228 (D. Mont. 2005) (finding
that Idaho Coalition controls where the state population is unevenly dis-
tributed and an initiative petition law required signatures from at least 5%
of the qualified voters statewide, including at least 5% of the qualified vot-
ers in at least 50% of the 56 counties).
13
The Supreme Court also rejected this state interest. See Moore, 394
U.S. at 818-819 (“It is no answer to the argument under the Equal Protec-
ACLU OF NEVADA v. HELLER 19307
compelling state interest, the 13 Counties Rule remains
unconstitutional because it is not narrowly tailored. Nevada
could base the 13 Counties Rule on legislative districts, as the
district court noted. Because Nevada could advance its prof-
fered interest while alleviating unconstitutional vote dilution,
the 13 Counties Rule, as the district court correctly deter-
mined, does not survive strict scrutiny review.
IV. Conclusion
The Committee challenged the 13 Counties Rule and two
other Nevada laws concerning the initiative process. Had the
Committee succeeded on each of its challenges, its initiative
would have qualified for placement on the ballot. In light of
the short time frame and the reasonable expectation that the
Committee will again be subject to this challenged rule, it is
“capable of repetition, yet evading review.” We therefore hold
that this case is justiciable—the Committee had standing to
bring this challenge and the case is not moot.
We further hold that the 13 Counties Rule is unconstitu-
tional. Like the rule in Idaho Coalition, the 13 Counties Rule
dilutes the votes of residents of densely populated counties in
violation of the Equal Protection Clause. Therefore, the dis-
trict court properly granted the Committee permanent injunc-
tive relief.
AFFIRMED.
tion Clause that this law was designed to require statewide support for
launching a new political party rather than support from a few localities.
. . . The idea that one group can be granted greater voting strength than
another is hostile to the one man, one vote basis of our representative gov-
ernment.”).