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JERRY RUBIN, Plaintiff-Appellant,
v.
CITY OF SANTA MONICA; MARIA M. STEWART, City Clerk;
DOES 1-5, inclusive, Defendants-Appellees,
BILL JONES, Secretary of State, Defendant-Appellee.
No. 01-56091
United States Court of Appeals for the Ninth Circuit
D.C. No. CV-00-09544-JSL
Appeal from the United States District Court for the Central
District of California J. Spencer Letts, District Judge, Presiding.
Argued and Submitted June 6, 2002--Pasadena, California. Before:
Cynthia Holcomb Hall, Barry G. Silverman and Johnnie B. Rawlinson,
Circuit Judges.
COUNSEL
James H. Fosbinder, Fosbinder & Fosbinder, Kahului,
Hawaii, for the plaintiff-appellant.
Rhonda M. Fosbinder, Fosbinder & Fosbinder, Kahului,
Hawaii, for the plaintiff-appellant.
Bill Lockyer, Attorney General, Sacramento, California,
for defendant-appellee Secretary of State.
Pamela Smith-Steward, Chief Assistant Attorney General,
Sacramento, California, for defendant-appellee Secretary of State.
Andrea Lynn Hoch, Acting Supervising Deputy Attorney
General, Sacramento, California, for defendant-appellee Secretary
of State.
Kenneth R. Williams, Supervising Deputy Attorney General,
Sacramento, California, for defendant-appellee Secretary of State.
David M. Verhey, Deputy Attorney General, Sacramento,
California, for defendant-appellee Secretary of State.
Marsha Jones Moutrie, City Attorney, Santa Monica, California,
for defendant-appellee City of Santa Monica.
Lance S. Gams, Deputy City Attorney, Santa Monica, California,
for defendant-appellee City of Santa Monica.
Filed October 17, 2002
SILVERMAN, Circuit Judge:
I. Overview
We are asked to decide whether the City of Santa Monica's
refusal to permit a candidate for the City Council to designate
his occupation as "peace activist" on the city election
ballot violates the candidate's rights of free speech and equal
protection. Because the ballot regulation prohibiting "status"
designations is politically neutral and the City offers alternative
channels of communication, we hold that the regulation does not
severely burden a candidate's First Amendment rights. The City's
interest in preserving the simplicity of its ballot is an important
one, and the regulation is not unreasonable.
II. Factual Background
Jerry Rubin was qualified to run as a candidate for
the Santa Monica City Council in the 2000 election. On August
11, 2000, Rubin hand-delivered his nomination papers for candidacy
to the Santa Monica City Clerk, Maria Stewart. His filing included
his "Candidate's Statement" and his optional ballot
designation of "peace activist."
A Candidate's Statement is a statement of 200 words
or less published by the City of Santa Monica and dispersed to
voters at the City's expense, in which a candidate may describe
his or her background, education, and qualification for the position
sought.
A "ballot designation" may take one of three
forms under California Elections Code § 13107:
(1) Words designating the elective city, coun
ty, district, state, or federal office which the candidate
holds at the time of filing the nomination documents to which
he or she was elected by vote of the people, or to which he or
she was appointed, in the case of a superior or municipal court
judge.
(2) The word "incumbent" if the candidate
is
a candidate for the same office which he or she holds at the
time of filing the nomination papers, and was elected to that
office by a vote of the people, or, in the case of a superior
or municipal court judge, was appointed to that office.
(3) No more than three words designating ei
ther the current principal professions, vocations, or occupations
of the candidate, or the principal professions, vocations, or
occupations of the candidate during the calendar year immediately
preceding the filing of nomination documents.
Cal. Elec. Code § 13107(a)(1)-(3).
The statute further mandates that "[n]either the
Secretary of State nor any other election official shall accept
a designation [that] . . . would mislead the voter." Cal.
Elec. Code § 13107(b)(1).
To implement these standards, the Secretary of State
promulgated specific Ballot Designation Regulations. These regulations
define "occupation" as
the employment in which one regularly engages
or follows as the means of making a livelihood. Examples of
an acceptable designation of an "occupation" as defined
in Elections Code § 13107, subdivision (a)(3), include,
but are not limited to, "rancher," "restaurateur,"
"retail salesperson," "manual laborer," "construction
worker," "computer manufacturing executive," "military
pilot," "secretary" and "police officer."
2 Cal. Code Reg. § 20713(a)(3).
The Regulations further categorize certain designations
as "unacceptable:"
(a) The Secretary of State shall reject as un
acceptable any proposed ballot designation which fails to
comply with, or is otherwise inappropriate pursuant to, Elections
Code § 13107, subdivision (a); is prohibited pursuant to
Elections Code § 13107, subdivision (b); is misleading .
. .
(b) The following types of activities are dis
tinguished from professions, vocations, and occupations and
are not acceptable as ballot designations pursuant to Elections
Code § 13107, subdivision (a)(3):
. . .
(3) Statuses: A status is a state, condition, social
position, or legal relation of the candidate to another person,
persons, or the community as a whole. A status is generic in
nature and generally fails to identify with any particular specificity
the manner by which the candidate earns his or her livelihood
or spends the substantial majority of his or her time. Examples
of a status include, but are not limited to, philanthropist,
activist, patriot, taxpayer, concerned citizen, husband, wife,
and the like.
2 Cal. Code Reg. § 20716.
Although the City of Santa Monica is not required to
follow the State's regulations for its local elections, it chooses
to do so. When City Clerk Maria Stewart accepted Rubin's nomination
papers, she informed him that he could not designate himself
a "peace activist" because the phrase constituted an
impermissible "status" designation under California's
election regulations. Stewart asked Rubin to supply her with
an alternative ballot designation, but Rubin declined.
On September 7, 2000, Rubin filed a complaint in federal
court against the City of Santa Monica, City Clerk Stewart, and
Secretary of State Bill Jones, alleging both statutory and constitutional
violations. He simultaneously filed a motion for a temporary
restraining order (TRO) and a preliminary injunction to force
the City of Santa Monica to accept his "peace activist"
ballot designation. Rubin's application for a TRO and motion
for a preliminary injunction were both denied.
Secretary of State Bill Jones moved to dismiss the case
against him on the grounds that the complaint failed to state
a claim, that the court lacked jurisdiction, and that Rubin lacked
standing. On January 17, 2001, the district court issued a Minute
Order granting Jones' Motion to Dismiss. The court soon thereafter
issued a written order granting Jones' motion and sua sponte issued
an "Order to Show Cause Why Entire Case Should Not Be Dismissed"
as respects the city defendants. After additional briefing, the
district court issued its final order dismissing the case, holding
that (1) the term "peace activist" is not a profession,
occupation, or vocation as defined by the relevant regulations,
and (2) the ballot designation restrictions do not impose severe
burdens on Rubin's First Amendment rights, and that the restrictions
are justified by the City's important regulatory interests. Although
the Court noted that the City presented substantial evidence
to the effect that Rubin did not earn his living as a "peace
activist," it assumed for the purpose of its decision that
he did.
III. Standard of Review
We review de novo the constitutionality of a state statute.
Montana Chamber of Commerce v. Argenbright, 226 F.3d 1049,
1054 (9th Cir. 2000).
We also review de novo the dismissal of a party under
Federal Rule of Civil Procedure 12(b)(6). Zimmerman v. City
of Oakland, 255 F.3d 734, 737 (9th Cir. 2001). When reviewing
a 12(b)(6) dismissal, the facts set forth in a plaintiff's complaint
are to be interpreted liberally and taken as true for the purpose
of determining whether or not a basis for the plaintiff's complaint
exists. Hishon v. King & Spalding, 467 U.S. 69, 73
(1984). A dismissal may be affirmed on any proper ground, even
if the district court did not reach the issue or relied on different
grounds or reasoning. Oscar v. Univ. Students Co-op
Ass' n, 965 F.2d 783, 785 (9th Cir. 1992).
IV. Jurisdiction and Mootness
We have jurisdiction over the district court's final
order of dismissal pursuant to 28 U.S.C. § 1291.
The City of Santa Monica argues that, because the November
7, 2000 election "has long since come and gone," the
issues Rubin raises on appeal are moot. Generally, a case is
rendered moot "when the issues presented are no longer '
live' or the parties lack a legally cognizable interest in the
outcome." Schaefer v. Townsend, 215 F.3d 1031, 1033
(9th Cir. 2000) (citations omitted). However, a court is not
precluded from exercising jurisdiction over an otherwise moot
case where, as here, the case is "capable of repetition,
yet evading review." Id.
Although the City of Santa Monica's 2000 election has
passed, Rubin's claims are capable of repetition because future
city election overseers would deny him the ability to use the
designation "peace activist" on the ballot. "The
short span of time between the filing deadline and the election
makes such a challenge evasive of review." Id. (candidate's
claim that residency requirements denied him the right to file
a declaration of candidacy not rendered moot upon passing of
election). As we have previously noted, "[i]f [election
law] cases were rendered moot by the occurrence of an election,
many constitutionally suspect laws . . . could never reach appellate
review." Id. (quoting Joyner v. Mofford, 706 F.2d
1523, 1527 (9th Cir. 1983)) (alteration in the original). We
accordingly exercise jurisdiction over Rubin's appeal.
V. Analysis
A. California Elections Code § 13107(a) and 2
California Code of Regulations § 20716 do not violate
Rubin's freedom of speech.
1. Election Regulation and the First Amendment
Rubin contends that, because California Elections Code
§ 13107 and 2 California Code of Regulations § 20716
prevent him from designating himself a "peace activist"
on the election ballot, the laws violate his freedom of speech
and are unconstitutional both facially and as applied to him.
Rubin and the City of Santa Monica analyze this case
under the public forum principles announced in Perry Educ. Ass'
n v. Perry Local Educators' Ass' n, 460 U.S. 37 (1983). Rubin
argues that a ballot is a limited public forum requiring strict
scrutiny, while the City says that a ballot is a non-public forum
requiring only rational basis review. 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.
See Timmons v. Twin Cities Area New Party, 520 U.S. 351,
358 (1997).
In election regulation cases, the Supreme Court 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. When deciding
whether a state election law violates First and Fourteenth Amendment
speech rights, courts are to "weigh the character and magnitude
of the burden the State's rule imposes on those rights against
the interests the State contends justify that burden, and consider
the extent to which the State's concerns make the burden necessary."
Id. (quoting Burdick v. Takushi, 504 U.S. 428, 434
(1992) (citations and internal quotations omitted). "Regulations
imposing severe burdens on plaintiffs' rights must be narrowly
tailored and advance a compelling state interest. Lesser burdens,
however, trigger less exacting review, and a State's ' important
regulatory interests' will usually be enough to justify reasonable,
nondiscriminatory restrictions." Id. (citations omitted).
The cases reiterate that "[n]o bright line separates permissible
election-related regulation from unconstitutional infringements
on First Amendment freedoms," and that courts are required
to make "hard judgments" given the interests involved.
Id.
2. The election regulations do not impose a severe burden
on Rubin's right of free speech.
There is little question but that Rubin's speech is
burdened by the restriction placed on how he may designate his
occupation on the ballot. It is the severity of that burden, however,
that determines the standard of review by which we judge the
state's interest and, accordingly, decide whether the restriction
is unconstitutional. See id.
Courts will uphold as "not severe" restrictions
that are generally applicable, even-handed, politically neutral,
and which protect the reliability and integrity of the election
process. See Hussey v. City of Portland, 64 F.3d 1260,
1265 (9th Cir. 1995). This is true even when the regulations
"have the effect of channeling expressive activities at
the polls." Timmons, 520 U.S. at 369 (upholding city's
"anti-fusion law" prohibiting candidates from appearing
as the candidate of more than one party on the ballot) (citation
omitted). See also Burdick, 504 U.S. at 438 (upholding
prohibition of write-in votes on election day where it was otherwise
easy for candidates to appear on the ballots). Recognizing that
"there must be a substantial regulation of elections if
they are to be fair and honest," Storer v. Brown,
415 U.S. 724, 730 (1974), the Supreme Court recently noted the
propriety of "requirements as to procedure and safeguards
which experience shows are necessary to ensure the fundamental
right involved." Cook v. Gralike, 531 U.S. 510, 524
(2001) (citation omitted).
A restriction is particularly unlikely to be considered
severe when a candidate is given other means of disseminating
the desired information. In Timmons, for example, the
United States Supreme Court upheld a law prohibiting candidates
from listing more than one party affiliation on the ballot, in
part because the party retained great latitude in its ability
to communicate its support for that candidate notwithstanding
the minor ballot prohibition. Timmons, 520 U.S. at 363.
In Burdick, the Supreme Court upheld a Hawaii law prohibiting
voters from writing in names of candidates on election day, citing
as justification the ease of access candidates otherwise have
to Hawaii's ballots. Burdick, 504 U.S. at 436-437 (1992).
Similarly, in Schrader v. Blackwell, the Sixth Circuit
upheld the constitutionality of a regulation that prohibited
unrecognized party designations, such as "Libertarian,"
because reasonable means existed for a party to become recognized.
Schrader, 241 F.3d 783 (6th Cir. 2001).
Courts will strike down state election laws as severe
speech restrictions only when they significantly impair access
to the ballot, stifle core political speech, or dictate electoral
outcomes. For example, Cook, 531 U.S. at 510, overturned
a law requiring ballots to contain notations describing whether
or not the candidate supports term limits, holding that it punishes
candidates on the basis of core political speech and dictates
electoral outcomes. Buckley v. American Constitutional
Law Foundation, Inc., 525 U.S. 182 (1999), similarly overturned
a requirement that petition circulators wear badges and publish
identifying information, because the regulation hinders core
political speech. In Eu v. San Francisco County Democratic
Central Committee, 489 U.S. 214 (1989), the United States Supreme
Court struck a regulation prohibiting official governing bodies
of political parties from giving endorsements to candidates,
holding that the law burdened core political speech. Likewise,
in Rosen v. Brown, 970 F.2d 169 (6th Cir. 1992),
the Sixth Circuit invalidated a regulation prohibiting the political
party designation of "Independent" while permitting
"Republican" or "Democrat" designations,
holding that party labels designate the views of party candidates
and the regulations therefore hinder "core political speech."
Applying these principles to the case at hand, we hold
that the City of Santa Monica's prohibition of status designations
such as "activist" does not severely burden a candidate's
First Amendment rights.
First, the regulation is viewpoint neutral. Any use
of the term "activist" is banned from the ballot whether
used alone or with any additional description. Peace activists
and defense activists are treated the same. So are Right to Life
Activists and Pro-Choice Activists. The City's viewpoint neutrality
distinguishes the case before us from Rosen, in which
the Sixth Circuit held that prohibiting the designation "Independent"
was unconstitutional where the regulations allowed for other
political party designations. Rosen, 970 F.2d at 176-77.
As the Schrader court noted, "party labels provide
a shorthand designation of the views of party candidates on matters
of public concern." Schrader, 241 F.3d at 789. The
regulation therefore affects core political speech.
Second, even though the regulation prevents Rubin from
communicating his status as a peace activist on the ballot, it
does not infringe on "core political speech," or favor
one type of political speech over another. The regulation does
not prevent Rubin from supporting or discussing political issues,
it merely limits how he may describe his occupation on the ballot.
In this way, the California law stands in stark contrast to the
statute in Cook. In Cook, the Supreme Court struck down
a Missouri law requiring "DISREGARDED VOTERS' INSTRUCTION
ON TERM LIMITS" or "DECLINED TO PLEDGE TO SUPPORT TERM
LIMITS" to be placed on the ballot next to the names of
certain candidates. Cook, 531 U.S. at 514-15.
Third, the City of Santa Monica's regulations provide
Rubin with an ample channel for communicating his peace activities
to the public. California Elections Code § 13307 allows
the candidate to submit a "Candidate's Statement,"
in which the candidate may describe his background, education,
and qualifications in up to 200 words. The Statements are published
by the City, at the City's expense, in a Voter Information Pamphlet
and distributed prior to the election to all registered voters
within Santa Monica. Rubin does not deny that he could have used
those 200 words to describe his peace activism to the public
at the city's expense. This device greatly decreases the burden
imposed by the ballot restriction. See, e.g., Timmons,
520 U.S. at 362-63 (upholding law prohibiting candidates from
listing more than one party affiliation on the ballot, in part,
because the party retains great latitude in its ability to communicate
its support for that candidate notwithstanding the minor ballot
prohibition).
Rubin argues that the Candidate's Statement does not
cure the problem caused by the ballot restriction because the
"ballot designation is the last thing they see as they punch
their ballots." See Anderson v. Martin, 375 U.S.
399, 402 (1964). While there is no denying the importance of
a ballot, the Supreme Court has recognized that "[b]allots
serve primarily to elect candidates, not as forums for political
expression." Timmons, 520 U.S. at 363. 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 "transform[ed]
. . . from a means of choosing candidates to a billboard for
political advertising." Id. at 365.
Finally, Rubin emphasizes that City officials are given
great discretion in determining what is an "occupation."
Far from being "unbridled," City of Santa Monica election
officials are required to follow the comprehensive set of regulations
contained in 2 California Code of Regulations § 20716 et
seq., as to what constitutes acceptable ballot designations.
Moreover, Rubin has not demonstrated that the officials use what
discretion they do have in a manner that burdens his speech any
more than do the regulations themselves, for example, by using
their discretion to favor particular viewpoints or politics.
This is not a case where the right to vote or access
to the ballot is at issue. This is not a case where the regulation
permits certain types of political speech but prohibits others.
The only issue is whether a "status" may be designated
in the same manner as an "occupation." The California
laws at issue here are much less intrusive than restrictions
upheld by our sister circuits. See, e.g., McLaughlin v. North
Carolina Bd. of Elections, 65 F.3d 1215 (4th Cir. 1995)
(upholding as constitutional North Carolina's requirement that
a candidate of a new political party gather certain support in
the general election for that party to remain on the ballot);
Dart v. Brown, 717 F.2d 1491 (5th Cir. 1983) (upholding
as constitutional regulation which permitted the political party
affiliation of recognized party candidates to be printed on the
ballot, but required the space be left blank for candidates not
affiliated with recognized political parties); Schrader v. Blackwell,
241 F.3d 783 (6th Cir. 2001) (same); Rainbow Coalition
v. Oklahoma State Election Bd., 844 F.2d 740 (10th Cir. 1988)
(finding constitutional Oklahoma's election scheme that authorizes
candidates of recognized parties to be automatically identified
on the ballot, but requires unrecognized parties to file petitions
bearing 5% of total votes cast in last election before allowing
party designation); Libertarian Party v. Florida, 710
F.2d 790 (11th Cir. 1983) (upholding as constitutional an election
law under which a minor political party may not run a candidate
in a local election without satisfying 3% petition requirement).
Accordingly, we hold that the burden imposed by California
Elections Code § 13107(a) and 2 California Code of Regulations
§ 20716 on Rubin's free speech right is not "severe."
We therefore apply a "less exacting" standard of review
to the regulations at issue. Timmons, 520 U.S. at 358.
That less exacting standard requires us now to turn to whether
the interest the City seeks to advance by its ballot designation
rules is "important" and whether the restriction is
"reasonable" and "non-discriminatory." Anderson
v. Celebrezze, 460 U.S. 780, 788 (1983).
3. The City of Santa Monica has a sufficiently important
regulatory interest in preventing misrepresentation and reducing
voter confusion by regulating the ballot designations.
"[S]tates have significant authority to regulate
. . . the identification of candidates on the ballot." Schrader,
241 F.3d at 790 (citations omitted). Historically, a state's
interest in preventing confusion, deception, and frustration
in the general election process has been regarded as an "important
state interest." See, e.g., Timmons, 520 U.S. at 364;
Eu, 489 U.S. at 226; Jenness v. Fortson, 403 U.S. 431,
442 (1971).
Because "the State's important regulatory interests
are generally sufficient to justify reasonable, nondiscriminatory
restrictions," Anderson, 460 U.S. at 788, a party
challenging such a regulation bears a "heavy constitutional
burden." Schraeder, 241 F.3d at 790-91. A primary
purpose of the California Election Code "is to insure the
accurate designation of the candidate upon the ballot in order
that an informed electorate may intelligently elect one of the
candidates." Salinger v. Jordan, 61 Cal.2d 824, 826
(1964). The specific provision at hand, California Elections
Code § 13107(b)(1), prohibiting designations that "would
mislead the voter," "seeks to prevent ' creative' misuse
of ballot designations by candidates." Andrews v. Valdez,
40 Cal. App. 4th 492, 494 (1995) (citation omitted). To this
end, the City of Santa Monica has limited the ballot designation
to one of three topics: the office the candidate currently holds,
a statement of incumbency if the candidate holds the same office,
or a short, relatively generic, non-partisan, non-political three
word statement of the candidate's profession, occupation, or
vocation. These nondiscriminatory regulations are reasonably
related to the legitimate goal of achieving a straightforward,
neutral, non-confusing ballot.
Rubin argues that, even if the regulation is facially
constitutional, it is unconstitutional as applied to him because
his "occupation," as that term is defined in the regulation,
is "peace activist," and he would therefore not deceive
or mislead voters by using the phrase.
First, we reject Rubin's premise that a factual finding
that he spends the majority of his workday and makes money in
activities that can be described as those of an "activist"
compels the conclusion that his "occupation" is that
of a "peace activist" for election purposes. By definition,
"activist" is a "status" rather than an "occupation."
2 Cal. Code Reg. § 20716(b). A "status" is defined
as "a state, condition, social position or legal relation
of the candidate to another person, persons, or the community
as a whole." Id. The regulation prohibits "status"
designations because "a status is generic in nature and
generally fails to identify with any particular specificity the
manner by which the candidate earns his or her livelihood or
spends the substantial majority of his or her time." Id.
The word "activist" is specifically listed as an example
of an impermissible status designation. Id. Thus, even
if a person were to spend the substantial majority of his or
her time promoting peace, the designation "peace activist"
would still be improper because it is "generic," and
"generally fails to identify with any particular specificity
the manner" in which the candidate spends his time. Cf.
Luke v. Superior Court, 199 Cal.App.3d 1360 (1985) (holding
that a Commissioner who spent the majority of her time serving
as a judge pro tempore could not list her occupation as "Judge--
Los Angeles County (Acting)" because the designation would
mislead voters).
Second, we believe that Rubin has misapprehended the
import of California's judgment that the term "activist"
is inappropriate as a designation of an occupation. As the discussion
of the "generic" nature of a status designation indicates,
the regulations do not reflect the judgment that a person can
never spend the substantial majority of his time or earn a livelihood
in activities that can be described as those of an activist.
Rather, it is misleading in the sense that it provides too little
information and permits the electorate to engage in too varied
a set of inferences, many of which will inevitably be inaccurate.
In this connection, we note that the term "activist"
does not designate a well-defined set of activities or how such
activities relate specifically to making a livelihood. Instead,
terms such as "peace activist" highlight a candidate's
connection to a state, idea, or social position which is difficult
to verify and could be manipulated by the candidate to foster
a favorable image. Moreover, adding the word "peace"
to the word "activist" does nothing to remedy these
concerns although it makes the designation superficially somewhat
more specific. Quite the opposite: while it does nothing to specify
how Rubin's status as an "activist" relates to his
time or earning a living, it connects his name to an idea which
is popular but which can be used to describe a wide range of
ideologies.
Finally, Santa Monica has an additional important regulatory
interest in predictable and administrable election rules that
must be weighed against the burden to Rubin. Even assuming that
the term "activist" is not always misleading as a description
of an occupation, determining when this might be the case would
require nuanced judgments about the way that the term is generally
understood by the public as well as the types of circumstances
in which it may fairly be said that a candidate makes a living
as an activist rather than doing some other possibly related
activity such as selling items displaying political slogans.
The regulations exist to provide guidance in determining what
qualifies for an occupation and limit the discretion of election
officials by providing relatively concrete standards. Rubin would
have election officials use their discretion to essentially ignore
this guidance where they could make a judgment that the term
actually is not misleading considering the totality of the circumstances.
Asking election officials to make such open-ended and ultimately
subjective determinations would inevitably introduce additional
uncertainty and bias into the approval process as well as invite
additional judicial intervention. Cf. Luke, 199 Cal.App.3d
at 1363.
The City of Santa Monica gave Rubin the option to provide
voters with another, less generic term to describe his occupation
on the ballot, but Rubin declined. We agree with the district
court that Santa Monica may apply the California Election Code
and accompanying regulations to prevent Rubin from using the
designation "peace activist" on the ballot, even if
Rubin spends the majority of his time in peace activism.
In summary, we hold that Santa Monica's regulations
further an important governmental interest, that they are non-discriminatory,
are viewpoint-neutral, and that they do not severely limit a
candidate's First Amendment rights. Therefore, they are not unconstitutional
on their face or as applied.
B. The election regulations do not violate Rubin's right of
Equal Protection.
Rubin argues that the election regulations violate his
right to Equal Protection, because they are biased toward current
office holders and those with prominent positions with respect
to the right to free speech.
In election cases, free speech and equal protection
analyses generally work in tandem. An election restriction is
subject to heightened scrutiny on Equal Protection grounds only
if it burdens a suspect class or a fundamental right. See San
Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17
(1973). Neither "non-incumbents" nor "peace activists"
is a suspect class. Therefore, rational basis review is appropriate
unless the restriction unconstitutionally burdens a fundamental
right, here, the right to free speech. Because we conclude that
the restrictions do not unconstitutionally burden Rubin's right
of free speech, we find that neither do they violate his Equal
Protection right.
C. The district court correctly dismissed Defendant Secretary
of State Bill Jones.
Finally, Rubin claims that the district court erred
in dismissing California Secretary of State Bill Jones from the
lawsuit for lack of standing.
To have a justiciable claim, a litigant must meet three
constitutional standing requirements: (1) he must have directly
suffered an injury in fact, (2) the injury must be fairly traceable
to the defendant's conduct, and (3) a favorable court decision
must be likely to redress the injury. See, e.g., Northeastern
Florida Contractors v. Jacksonville, 508 U.S. 656, 663 (1993).
Rubin initially argues that he has standing to sue California's
Secretary of State because the City would not have voluntarily
chosen to exclude "peace activist" from the ballot
had the State's election regulations not existed. The problem
is that he cannot establish that Bill Jones caused the injury,
or that enjoining the Secretary of State from enforcing the election
regulations would stop the City of Santa Monica from following
them in the future. The City of Santa Monica is not required
to follow California's election regulations. To the contrary,
under California Code of Regs. tit. 2, § 20710 (e), the
California State election regulation Rubin challenges is expressly
inapplicable to municipal elections. Because Secretary of State
Jones neither required nor encouraged the City of Santa Monica
to follow the guidelines, Rubin cannot establish that his conduct
caused the constitutional injury he claims.
Moreover, Rubin cannot establish redressability: even
if the Court were to enjoin Jones from enforcing the state regulations
in state elections, that injunction would have no effect on their
use in local elections. Just as the City of Santa Monica voluntarily
chose to adopt the State's regulations for its elections, so
could it choose to follow the guidelines even if the State no
longer adhered to them. A "purely speculative" favorable
outcome will not suffice to establish the redressability prong.
See Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973)
(finding no standing based on lack of redressability because
the prospect that prosecuting deadbeat dads would result in payment
of child support was only speculative).
Rubin next argues that he has standing to challenge
the state election law because, as a voter and a citizen, his
right to receive desired information about candidates is impaired
by the regulation. This theory fails to establish an injury sufficient
to establish standing. The Supreme Court has described the injury
requirement for standing as an "injury in fact" that
is "distinct and palpable," and not "hypothetical"
or "abstract." See Allen v. Wright, 468 U.S.
737, 751 (1987). To establish standing, however, the injury must
be more than a generalized grievance common to all members of
the public. See Schlesinger v. Reservists Comm. to Stop the
War, 418 U.S. 208, 216-27 (1974). Alleging simply that "as
a voter and a citizen" he should be able to hear whatever
three words a candidate wishes to say about himself or herself,
Rubin has alleged no more than an abstract interest common to
all members of the public. Thus, Rubin cannot establish standing
on that ground.
VI. Conclusion
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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