On March 6, the Ninth Circuit ruled that the plaintiffs in Los Angeles County Libertarian Party v Bowen have standing to challenge the residency requirement for petition circulators. The nine-page opinion, by Judge Susan Graber, reverses the U.S. District Court, which had said the plaintiffs do not have standing because the Secretary of State says the residency requirement for circulators is not enforced.
This is the first time a minor party has won a case in the Ninth Circuit, except for instances at which the major parties were also in the lawsuit, since 2003. The opinion does not address the constitutionality of the residency requirement for circulators, and it remands the case back to the U.S. District Court to make a decision on the law’s constitutionality. Because the state has already said it doesn’t enforce the law, it is obvious that either the U.S. District Court will now strike down the law, or else the legislature will repeal the residency requirement and the case will be moot. Senate Bill 213, introduced last month, repeals all petitioner residency requirements.
Ironically, on February 8, 2013, a U.S. District Court in Alaska had ruled that a professional petitioner who wants to circulate in Alaska, but who lives in Wisconsin, lacks standing to challenge Alaska’s ban on out-of-state circulators for initiatives. That case is now in the 9th circuit and is Raymond v Fenumiai, 13-35090.
Good to see the court distinguish the Supreme Court’s recent decision in Clapper, which stated that pre-enforcement challenges must be supported by proof that the government’s action is “certainly imminent.” Clapper is a terrible decision for ballot access.
Clapper v Amnesty International was decided by the U.S. Supreme Court on February 26, 2013. It was a 5-4 decision that said Amnesty International didn’t have standing to challenge the Foreign Intelligence Surveillance Act, because (the decision said) Amnesty International can’t show that it is harmed by that act, which permits the federal government to eavesdrop on telephone and e-mail communications of persons outside the U.S.
The reason Clapper is important to ballot access is because taken literally it gives states a stronger ripeness defense. Parties and candidates attempting to litigate ballot restrictions are often faced with “lack of ripeness” claims, as well as “lack of standing” (as was the case in the Ninth Circuit case. Clapper’s “certainly immminent” standard feeds both and makes it harder on plaintiffs in pre-enforcement challenges. The Ninth Circuit (correctly in my view) distinguished Clapperr. But beware in future cases. It is going to be raised by states from here on out.
Election cases are like cases dealing with pregnancy; they are in a special category, unlike the situation in Clapper.
On the far side, yes. They are capable of repetition yet evading review. But not necessarily on the front side, where the claim is based on ripeness. In most ballot cases I have litigated the state has argued a lack of ripeness. I have always prevailed on the matter, but Clapper will make that harder.