FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEST COMMITTEE; TONY BADILLO; 

JACK LIPSMAN; AL MAURICE; KENNY

BLACKMAN; WE THE PEOPLE No. 09-17002 NEVADA; CITIZENS IN CHARGE,

Plaintiffs-Appellants, D.C. No.  2:08-cv-01248-

v. RLH-GWF

ROSS MILLER, in his official OPINION capacity as Secretary of State for

the State of Nevada,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, Chief District Judge, Presiding

Argued and Submitted

November 5, 2010—San Francisco, California

Filed December 1, 2010

Before: Arthur L. Alarcón, Pamela Ann Rymer, Circuit

Judges, and Matthew F. Kennelly, District Judge.*

Opinion by Judge Alarcón

*The Honorable Matthew F. Kennelly, United States District Judge for

the Northern District of Illinois, sitting by designation. 

19037
COUNSEL

Kermitt L. Waters, Law Offices of Kermitt L. Waters, Las

Vegas, Nevada, for the plaintiffs-appellants.

C. Wayne Howle, Solicitor General, Office of the Nevada

Attorney General, Carson City, Nevada, for the defendant-appellee.

Joseph W. Brown, Matthew T. Milone and Bradley Scott

Schrager, Jones Vargas, Las Vegas, Nevada, for the Amici

Curiae Las Vegas Chambers of Commerce, Reno-Sparks

Chamber of Commerce, Nevada Mining Association, Inc.,

and Nevada Taxpayers’ Association.

OPINION

ALARCÓN, Circuit Judge:

This appeal arises from the unsuccessful efforts by a group

of organizations and individuals who desire to use Nevada’s

initiative and referendum process to effectuate changes in

Nevada law by placing initiatives on the Nevada ballot. These

groups brought suit in federal court, asserting that certain of

Nevada’s statutory requirements for ballot initiatives and referenda violate federal constitutional rights. The district court

granted summary judgment in favor of Defendant Ross Miller, the Secretary of State for the state of Nevada. It determined that Nevada’s statutory single-subject, description-ofeffect, and pre-election challenge provisions do not impose a

PEST COMMITTEE v. MILLER 19041
severe burden on First Amendment rights, are permissible

regulations of the state’s electoral process, and are not unconstitutionally vague. We affirm because we conclude that the

district court did not err in dismissing Appellants’ claims.

I

Both before the district court and on appeal, the parties

agree that the relevant facts in this case are undisputed. The

salient uncontroverted facts are summarized here.

The Nevada Constitution provides that “the people reserve

to themselves the power to propose, by initiative petition, statutes and amendments to statutes and amendments to this Constitution, and to enact or reject them at the polls.” Nev. Const.

art. 19, § 2, cl. 1. The Nevada Constitution also authorizes the

legislature to “provide by law for procedures to facilitate the

operation” of the initiative process. Nev. Const. art. 19, § 5.

Statutory provisions set out the procedures for placing initiatives and referenda on the ballot. Nev. Rev. Stat. 295.009-

295.061. 

Before an initiative or referendum petition can be circulated, a copy of the petition must be filed with the Secretary

of State; after circulation, it must be returned to the Secretary

of State for signature verification. Nev. Const. art. 19, § 1, cl.

2; § 2, cl. 3. The Nevada Constitution sets time lines to qualify petitions. The time line differs depending on the type of

petition. For example, if an initiative petition proposes a statute or a statutory amendment, it must be filed with the Secretary of State “not earlier than January 1 of the year preceding

the year in which a regular session of the Legislature is held.”

Id. § 2, cl. 3. After circulation, it must be filed with the Secretary of State for signature verification “not less than 30 days

prior to any regular session of the Legislature.” Id. If an initiative petition proposes a constitutional amendment, it may be

filed with the Secretary of State “not earlier than September

1 of the year before the year in which the election is to be

19042 PEST COMMITTEE v. MILLER
held.” Id. § 2, cl. 4. After circulation, it must be filed with the

Secretary of State for verification “not less than 90 days

before any regular general election.” Id.

The statutory requirements for having an initiative placed

on a Nevada ballot require that initiative sponsors gather signatures from registered voters in a number equal to 10% of

the votes cast in the last general election. Nev. Rev. Stat.

295.012. In 2005, the Nevada legislature enacted Section

295.009, which sets out single-subject and description-ofeffect requirements for initiatives and referenda:

1. Each petition for initiative or referendum must: 

(a) Embrace but one subject and matters necessarily

connected therewith and pertaining thereto; and

(b) Set forth, in not more than 200 words, a description of the effect of the initiative or referendum if the

initiative or referendum is approved by the voters.

The description must appear on each signature page

of the petition.

2. For the purposes of paragraph (a) of subsection 1,

a petition for initiative or referendum embraces but

one subject and matters necessarily connected therewith and pertaining thereto, if the parts of the proposed initiative or referendum are functionally

related and germane to each other in a way that provides sufficient notice of the general subject of, and

of the interests likely to be affected by, the proposed

initiative or referendum.

Nev. Rev. Stat. 295.009 (emphases added). A related provision permits pre-election challenges to an initiative or referendum as to whether it satisfies the single-subject and

description-of-effect requirements:

PEST COMMITTEE v. MILLER 19043
1. Except as otherwise provided in subsection 3,

whether an initiative or referendum embraces but

one subject and matters necessarily connected therewith and pertaining thereto, and the description of

the effect of an initiative or referendum required pursuant to NRS 295.009, may be challenged by filing

a complaint in the First Judicial District Court not

later than 15 days, Saturdays, Sundays and holidays

excluded, after a copy of the petition is placed on file

with the Secretary of State pursuant to NRS 295.015.

All affidavits and documents in support of the challenge must be filed with the complaint. The court

shall set the matter for hearing not later than 15 days

after the complaint is filed and shall give priority to

such a complaint over all criminal proceedings.

Nev. Rev. Stat. 295.061(1) (emphases added); see also Nev.

Rev. Stat. 295.061(3) (“If a description of the effect . . . is

challenged successfully . . . and such description is amended

in compliance with the order of the court, the amended

description may not be challenged.”). In 2007, the legislature

added a provision stating that, if a petition or description of

effect is amended after the petition is placed on file with the

Secretary of State, “[a]ny signatures that were collected on the

original petition before it was amended are not valid.” Nev.

Rev. Stat. 295.015(2)(b). 

The PEST Committee asserts,1 and the Secretary of State

1Plaintiffs-Appellants are collectively referred to as “the PEST Committee” in this opinion. However, they are, in fact, a collection of organizations and individuals whose roles the district court succinctly summarized

in its order granting summary judgment in favor of the Secretary of State.

Plaintiff-Appellant the PEST Committee is a Nevada ballot advocacy

group organized to pass the Prevent Employers from Seizing Tips ballot

initiative (“PEST initiative”). The PEST initiative sought to amend a section of a Nevada statute to prohibit an employer from requiring employees

to share their tips with their supervisors. Tony Badillo is the chairman of

19044 PEST COMMITTEE v. MILLER
does not dispute, that 10 of the 15 initiative petitions filed by

citizen groups in the 2008 Nevada election cycle were challenged, and not one of the challenged initiatives qualified for

the ballot. The PEST Committee and We the People were

among the groups that filed ballot initiatives to which private

parties brought pre-election challenges pursuant to Section

295.061.1 during the 2008 election cycle.

Rather than defend the lawsuit against it, We the People

withdrew its petition, redrafted its description of the effect of

the proposed initiative to address the claims made by the challengers, and submitted its petition under a new title. Nonetheless, the opponents brought another challenge to the redrafted

petition, again alleging that it contained a misleading description of effect. The parties subsequently reached an agreement

on the description-of-effect language. We the People again

withdrew its petition and refiled it with the revised description

of effect. The district court summarized the subsequent history of We the People’s petition: 

Following litigation, We the People had less than

three months to circulate the petition and gather the

required number of signatures before the verification

deadline in May. After We the People failed to submit their petition in proper format by the deadline,

they sued the Secretary of State, arguing the May

deadline violated the Nevada Constitution. The

Nevada Supreme Court agreed, invalidated NRS

the PEST Committee, and Al Maurice and Jack Lipsman are its other

organizers. Kenny Blackman is a former dealer at Wynn Resorts who led

an effort to overturn Wynn’s policy of requiring its dealers to share their

tips with supervisors. Plaintiff-Appellant We the People is a ballot advocacy group that has attempted to place a property tax initiative, similar to

California’s Proposition 13, on the Nevada ballot. Plaintiff-Appellant Citizens in Charge is a national foundation based in Virginia that works to

protect and expand the initiative and referendum process throughout the

United States. 

PEST COMMITTEE v. MILLER 19045
295.056(3) as amended in 2007, and ordered the

Secretary of State to accept the signatures submitted

by the June deadline set in the prior version of the

statute. See We the People Nev. ex rel. Angle v. Miller, 192 P.3d 1166 (Nev. 2008). Notwithstanding

this decision, opponents again challenged the initiative in court for problems with the affidavits accompanying the signatures. The district court held that

the problems with the affidavits invalidated the petition and enjoined the Secretary of State from including the initiative on the ballot. The Nevada Supreme

Court affirmed. See We the People Nev. v. Nev. State

Educ. Ass’n, No. 52390 (Nev. S. Ct. filed Oct. 21,

2008). Consequently, the Property Tax Reform Initiative for Nevada did not appear on the ballot.

Aug. 13, 2009 Order at 7-8.

The PEST Committee, the Nevada ballot advocacy group

organized to pass the Prevent Employers from Seizing Tips

ballot initiative (“the PEST Initiative”), filed an initiative with

the Secretary of State on January 16, 2008. Opponents of the

PEST Committee’s initiative sued in state court, alleging the

PEST Initiative violated the single-subject and description-ofeffect requirements, improperly proposed administrative

details, and violated the Nevada Constitution. The challengers

also alleged that if the proposed initiative was enacted, it

would violate the Equal Protection Clause of the United

States Constitution. The PEST Committee removed the action

to federal court based on the opponents’ federal equal protection claim. After extensive briefing, on July 15, 2008, the

United States District Court held that, “because the opponents’ federal claim was premised on a wholly uncertain condition — namely, that the PEST Initiative would be passed by

the voting public — the issue was not ripe for judicial

review.” Id. at 8. Holding that it lacked a basis for exercising

federal jurisdiction, the district court remanded the case to the

state court. Id. (citing Nev. Rest. Ass’n v. Miller, No. 3:08-cv19046 PEST COMMITTEE v. MILLER
00118-BES-VPC (D. Nev. filed July 15, 2008)). On July 28,

2008, the opponents filed a motion to recover the attorney

fees they incurred as a result of the removal. The PEST Committee then agreed to withdraw the initiative in exchange for

the opponents’ promise to withdraw their motion for attorney

fees. On August 6, 2008, the PEST Committee withdrew its

initiative. Aug. 13, 2009 Order at 8. 

This litigation commenced on September 18, 2008, when

the PEST Committee, Tony Badillo, Jack Lipsman, and Al

Maurice filed a complaint in the United States District Court

for the District of Nevada. On September 29, 2008, the PEST

Committee filed an Amended Complaint, adding Kenny

Blackman, We the People, and Citizens in Charge as plaintiffs. Count One of the Amended Complaint alleged Nev.

Rev. Stat. 295.009 and 295.061 were vague and overbroad,

constituted a prior restraint, and chilled free speech in violation of the First and Fourteenth Amendments pursuant to 42

U.S.C. § 1983. Count Two challenged, as violative of the

First, Fifth, and Fourteenth Amendments, statutory provisions

requiring circulators of ballot initiatives to submit a notarized

affidavit attesting that all signatures collected are of registered

voters.

On January 16, 2009, the PEST Committee moved for partial summary judgment on the First Amendment claim (Count

One). On April 27, 2009, the Secretary of State filed a

response to that motion and filed a cross motion for summary

judgment. On August 13, 2009, the district court ruled in

favor of the Secretary of State and dismissed Count One.2 The

2

In the same order, the district court denied a motion to intervene filed

by the Las Vegas Chamber of Commerce, the Reno-Sparks Chamber of

Commerce, the Nevada Mining Association, and the Nevada Taxpayers’

Association, Inc. These same groups filed an Amicus Brief in support of

the Secretary of State of Nevada in connection with this appeal. The district court denied the motion to intervene on the ground that the proposed

intervenors’ interests were adequately represented by the Secretary of

State. Aug. 13, 2009 Order at 11-14. 

PEST COMMITTEE v. MILLER 19047
parties subsequently stipulated to dismiss Count Two of the

Amended Complaint without prejudice. The district court

entered final judgment on September 15, 2009. The district

court had jurisdiction to hear the PEST Committee’s claims

alleging violations of the United States Constitution. 28

U.S.C. §§ 1331, 1343. This Court has jurisdiction over this

timely appeal pursuant to 28 U.S.C. § 1291.

II

A

The PEST Committee’s primary argument on appeal is that

the district court erred in applying a flexible balancing test,

and in concluding that the challenged statutory provisions

governing ballot initiatives and referenda do not violate the

federal Constitution. The PEST Committee contends that

Nevada’s single-subject and description-of-effect requirements, together with its pre-election challenge provision, burden core political speech or otherwise heavily burden First

Amendment rights and, as such, must be subjected to strict

scrutiny and narrowly tailored to serve a compelling state

interest. According to the PEST Committee, strict scrutiny

must be applied to challenges presented “in the context of ballot initiative restrictions.” Appellants’ Br. at 29. The PEST

Committee also asserts, without citation to authority, that the

district court erred “because strict scrutiny is warranted where

the evidence demonstrates that the statutes have enabled powerful opponents of ballot initiatives to undermine the ability

of the people to bring a ballot question to a vote, a right guaranteed by the Nevada Constitution.” Appellants’ Br. at 31.

Finally, the PEST Committee urges that the district court

erred in determining that neither the single-subject nor the

description-of-effect requirement is unconstitutionally vague.

It also argues that these requirements are unconstitutionally

overbroad. 

This Court reviews a district court’s ruling on cross

motions for summary judgment de novo. Travelers Prop. Cas.

19048 PEST COMMITTEE v. MILLER
Co. of Am. v. Conocophillips Co., 546 F.3d 1142, 1145 (9th

Cir. 2008). Additionally, “constitutional questions of fact

(such as whether certain restrictions create a ‘severe burden’

on an individual’s First Amendment rights) are reviewed de

novo.” Prete v. Bradbury, 438 F.3d 949, 960-61 (9th Cir.

2006).

B

The district court concluded that neither the single-subject

nor the description-of-effect requirement severely burden

speech “because, on their face, they are content neutral and do

not restrict the overall quantum of speech.” Aug. 13, 2009

Order at 15. The district court upheld the constitutionality of

the requirements as reasonable, non-discriminatory means of

furthering the important state interest of protecting the integrity of Nevada’s election process, e.g., by preventing voter

confusion and promoting informed decision making. Id. at 16-

17. The district court separately considered the PEST Committee’s challenge to the pre-election challenge procedure. It

explained that the pre-election challenge provision does not

create a private right of action to bring pre-election challenges

where none had previously existed; rather, the pre-election

challenge provision “is a ‘procedural mechanism for asserting

challenges to a measure based on the single-subject requirement and the description of effect.’ ” Id. at 18 (quoting Las

Vegas Taxpayer Accountability Comm. v. City Council of the

City of Las Vegas, 208 P.3d 429, 438 (Nev. 2009)). The district court also stated that the pre-election challenge provision

imposes no burden on political speech:

Properly understood, NRS 295.061 does not burden

Plaintiffs’ First Amendment rights — it protects

them. It is not, as Plaintiffs suggest, an underhanded

attempt by the Legislature to thwart the initiative

process by allowing political opponents to bring

legal challenges to stall petition circulation. Rather,

NRS 295.009 protects initiative proponents’ speech

PEST COMMITTEE v. MILLER 19049
rights by ensuring that any legal challenge based on

the single-subject and description-of-effect requirements are brought — and resolved — early. NRS

295.061 also furthers this important interest by providing a safe haven, after a petition has been challenged. This safe haven prevents repeat challenges to

a petition based on its description of effect if the

petition is amended in compliance with a court

order. Accordingly, NRS 295.061 is a permissible

and constitutional election regulation.

Id. at 19.3 However, the district court did not expressly consider or rule on whether the challenged aspects of Nevada’s

statutory scheme burden core political speech.

In his Answering Brief, the Secretary of State maintains

that the district court did not err in applying a flexible balancing test and determining that the challenged statutory provisions are not unduly burdensome and, instead, that they serve

important state interests. However, the Secretary of State’s

argument proceeds from the premise that “[a]t its root,

PEST’s challenge is an assault on the single subject rule.”

Appellee’s Answering Br. at 3. 

3The district court went on to point out some of the practical problems

with the PEST Committee’s position: 

The Court is conscientious [sic] that Plaintiffs have invested significant time and resources to advocate for the passage of their

proposed initiatives. The Court is also cognizant that Nevada’s

initiative and referendum regulations provide fertile ground for

opponents to file preelection legal challenges that can trip up the

unprepared initiative proponent. But the Constitution does not

require Nevada “to structure its initiative process in the most efficient, user-friendly way possible.” See Biddulph [v. Mortham],

89 F.3d [1491,] 1500-01 [(11th Cir. 1996)]. Further, in the

Court’s view, Plaintiffs would be wise in the future to avoid

repeatedly withdrawing and refiling their petitions, thereby

allowing their opponents to bring repeat legal challenges. 

Id. at 19. 

19050 PEST COMMITTEE v. MILLER
In support of the Secretary of State’s position, Amici

Curiae, the Las Vegas Chamber of Commerce, the RenoSparks Chamber of Commerce, the Nevada Mining Association, and the Nevada Taxpayers’ Association, Inc., argue that

no United States Court of Appeals has ever found a singlesubject rule violative of First Amendment rights and explain

that both the Eleventh Circuit and the Tenth Circuit have

found single-subject rules to be “perfectly valid exercises of

the state’s prerogative to structure its election processes in the

manner it considers best suited to maintaining and preserving

its integrity.” Amicus Br. at 3. Amici also maintain that the

judges of Nevada’s First Judicial District Court in Carson

City, Nevada (the court in which all such challenges must be

brought initially) “have heard a number of such challenges in

the five years since the enactment of the single subject rule,

and the decisions . . . are very surely building a body of precedent in interpreting and applying N.R.S. 295.009 — the very

same process that any rule, any law, undergoes.” Id. at 10.

Responding to the PEST Committee’s concerns about “potential misuses of pre-election challenges by erstwhile ‘political

opponents[,]’ ” Amici note that “in the context of the Nevada

Code generally, granting citizens such rights to participate [is]

unremarkable, commonplace, and constitutional.” Id. at 12-13

(citing Nevada Election Code provisions creating rights of

action to: demand and receive a recount of the vote for a ballot question, Nev. Rev. Stat. 293.403(2); contest the election

of any candidate, Nev. Rev. Stat. 293.407(1); challenge the

qualifications of political candidates on the grounds that the

candidate fails to meet any qualification required for the

office, Nev. Rev. Stat. 293.182 and Nev. Rev. Stat. 293C.186;

challenge the legal sufficiency of a petition to recall an

elected official, Nev. Rev. Stat. 306.040(5); and challenge, in

court, the qualifications of a minor political party, Nev. Rev.

Stat 293.174).

The gravamen of the PEST Committee’s argument is that

the pre-election challenge provision, which permits private

parties to bring suit in state court to challenge initiative and

PEST COMMITTEE v. MILLER 19051
referendum petitions as failing to satisfy the single-subject or

description-of-effect requirements, must be subjected to strict

scrutiny because it either (a) burdens core political speech or

(b) otherwise imposes severe burdens on political speech protected by the First Amendment.

III

[1] “The protection given speech and press was fashioned

to assure unfettered interchange of ideas for the bringing

about of political and social changes desired by the people.”

Roth v. U.S., 354 U.S. 476, 484 (1957). “Of course, core political speech need not center on a candidate for office. The

principles enunciated in Buckley [v. Valeo, 424 U.S. 1 (1976)]

extend equally to issue-based elections . . . .” McIntyre v.

Ohio Elections Comm’n, 514 U.S. 334, 347 (1995).

[2] The precise contours of what constitutes “core political

speech” are less than perfectly clear. In Meyer v. Grant, 486

U.S. 414 (1988), the Supreme Court explained that “the circulation of a petition . . . is appropriately described as ‘core

political speech’ ” because it involves “interactive communication concerning political change.” Id. at 421-22 (applying

strict scrutiny to Colorado’s prohibition on paying petition

circulators). In Buckley v. American Constitutional Law

Foundation, 525 U.S. 182 (1999), the Supreme Court applied

heightened scrutiny to Colorado’s name badge and reporting

requirements for petition circulators, concluding that the “restrictions in question significantly inhibit communication with

voters about proposed political change” because the one-onone communication involved in petition circulation requires

circulators to “endeavor to persuade electors to sign the petition.” Id. at 192, 199.

Concurring in Buckley, Justice Thomas considered the distinction between regulations affecting core political speech

and those regulating “mechanics of the electoral process”:

19052 PEST COMMITTEE v. MILLER
When core political speech is at issue, we have ordinarily applied strict scrutiny without first determining that the State’s law severely burdens speech.

Indeed, in McIntyre v. Ohio Elections Comm’n, 514

U.S. 334, 115 S. Ct. 1511, 131 L. Ed.2d 426 (1995),

the Court suggested that we only resort to our

severe/lesser burden framework if a challenged election law regulates “the mechanics of the electoral

process,” not speech. Id., at 345, 115 S. Ct. 1511; but

see Eu v. San Francisco County Democratic Central

Comm., 489 U.S. 214, 222-223, 109 S. Ct. 1013, 103

L. Ed.2d 271 (1989) (first determining that California’s prohibition on primary endorsements by the

official governing bodies of political parties burdened speech and association and then applying

strict scrutiny). I suspect that when regulations of

core political speech are at issue it makes little difference whether we determine burden first because

restrictions on core political speech so plainly

impose a “severe burden.”

Buckley, 525 U.S. at 207-08 (Thomas, J. concurring); see also

Campbell v. Buckley, 203 F.3d 738, 745 (10th Cir. 2000)

(attempting to synthesize Supreme Court case law regarding

when the application of strict scrutiny is required and concluding that “strict scrutiny is employed where the quantum

of speech is limited due to restrictions on campaign expenditures, . . . the available pool of circulators or other supporters

of a candidate or initiative, . . . or the anonymity of such supporters . . . .”). In Rubin v. City of Santa Monica, this Court

considered a challenge to a city’s refusal to permit a political

candidate to designate on the ballot his occupation as “peace

activist.” 308 F.3d 1008, 1011 (9th Cir. 2002). Acknowledging that the restriction burdened the candidate’s speech, the

Court went on to explain that “[c]ourts 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.” Id. at 1014.

PEST COMMITTEE v. MILLER 19053
[3] In Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006), we

summarized the general rule for determining the appropriate

level of scrutiny for First Amendment challenges to state election laws:

As discussed infra, the circulation of initiative and

referendum petitions involves “core political

speech,” and is, therefore, protected by the First

Amendment. See Meyer v. Grant, 486 U.S. 414, 421-

22, 108 S. Ct. 1886, 100 L. Ed.2d 425 (1988).

The First Amendment does not, however, prohibit

all restrictions upon election processes: “States may,

and inevitably must, enact reasonable regulations of

parties, elections, and ballots to reduce election- and

campaign-related disorder.” Timmons v. Twin Cities

Area New Party, 520 U.S. 351, 358, 117 S. Ct. 1364,

137 L. Ed.2d 589 (1997). Indeed, the U.S. Supreme

Court has recognized “States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they

have with respect to election processes generally.”

Buckley, 525 U.S. at 191, 119 S. Ct. 636 (1999).

For purposes of determining whether a state election law violates an individual’s First Amendment

rights, we “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. 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.” Arizona Right to

Life Political Action Comm. [v. Bayless], 320 F.3d

19054 PEST COMMITTEE v. MILLER
[1002,] 1007-08 [(9th Cir. 2003)] (quoting Timmons,

520 U.S. at 358, 117 S. Ct. 1364) (emphases added

and internal quotation marks omitted). The U.S.

Supreme Court has counseled against establishing

any bright-line rule in this field: “no litmus-paper

test will separate valid ballot-access provisions from

invalid interactive speech restrictions; we have come

upon no substitute for the hard judgments that must

be made.” Buckley, 525 U.S. at 192, 119 S. Ct. 636

(internal quotation marks omitted).

Id. at 961; see also Nader v. Brewer, 531 F.3d 1028, 1034-35

(9th Cir. 2008) (considering challenge to Arizona election

laws related to the circulation of nomination petitions to place

independent candidates on the ballot and explaining that, in

the leading case in our circuit, Libertarian Party of Washington v. Munro, 31 F.3d 759 (9th Cir. 1994), “[w]e held that the

burden on plaintiffs’ rights should be measured by whether,

in light of the entire statutory scheme regulating ballot access,

‘reasonably diligent’ candidates can normally gain a place on

the ballot, or whether they will rarely succeed in doing so”).

[4] When strict scrutiny is applied to a law that burdens

core political speech or that imposes severe burdens on plaintiff’s rights, the law must be narrowly tailored to serve a compelling government interest. See Buckley, 525 U.S. at 207

(“When a State’s election law directly regulates core political

speech, we have always subjected the challenged restriction to

strict scrutiny and required that the legislation be narrowly

tailored to serve a compelling governmental interest.”).

A

The district court did not err in concluding that neither the

single-subject nor description-of-effect requirement constitutes a direct regulation of core political speech or imposes a

severe burden on the PEST Committee’s First Amendment

rights. 

PEST COMMITTEE v. MILLER 19055
[5] The Nevada requirements are prerequisites to the circulation of initiative and referendum petitions. They do not

implicate protections for core political speech because they do

not directly affect or even involve one-on-one communications with voters. See Nevadans for the Protection of Property

Rights, Inc. v. Heller, 141 P.3d 1235, 1243 (Nev. 2006)

(“Nevada’s single-subject requirement does not prevent petitioners from addressing multiple subjects and thereby restrict

the quantum of speech. It simply requires petitioners to

address separate subjects in separate petitions.”). Instead, the

district court correctly concluded that the requirements

advance Nevada’s important interests in avoiding confusion,

promoting informed decision-making, and preventing “logrolling.”4

 The provisions represent a permissible regulation of the

mechanics of the electoral process. They do not, in and of

themselves, have the effect of limiting the overall quantum of

speech available to the electorate.

As Amici point out in their brief, both the Tenth Circuit and

the Eleventh Circuit have upheld the constitutionality of

single-subject requirements. Amicus Br. at 3. In Biddulph v.

Mortham, 89 F.3d 1491 (11th Cir. 1996), the Eleventh Circuit

explained:

We hold that a state’s broad discretion in administering its initiative process is subject to strict scrutiny

only in certain narrow circumstances. We obviously

would be concerned about free speech and freedomof-association rights were a state to enact initiative

regulations that were content based or had a disparate impact on certain political viewpoints. We also

would be troubled were a state to apply facially neu4The Nevada Supreme Court has defined “logrolling” as the use of initiatives that lead petition signators and voters to “sign[ ] or vot[e] for a

multifaceted petition in order to effect at least one element of change.”

Nevadans for the Protection of Property Rights, Inc. v. Heller, 141 P.3d

1235, 1251 (Nev. 2006). 

19056 PEST COMMITTEE v. MILLER
tral regulations in a discriminatory manner. See Taxpayers United for Assessment Cuts v. Austin, 994

F.2d 291, 297 (6th Cir.1993) (holding that the First

Amendment Free Speech Clause does not constrain

a state’s ability to regulate its own initiative process

as long as the state does not elect or enforce initiative procedures in a discriminatory or content-based

manner). Nor, as Meyer [v. Grant, 486 U.S. 414

(1988)] held, could a state impermissibly burden the

free exchange of ideas about the objective of an initiative proposal. Most restrictions a state might

impose on its initiative process would not implicate

First Amendment concerns.

The restriction at issue in this case is not subject

to strict scrutiny. . . . Rather, Biddulph solely contends that Florida’s process is burdensome because

it is unpredictable and imposes unnecessary costs on

initiative sponsors. But the Constitution does not

require Florida to structure its initiative process in

the most efficient, user-friendly way possible.

Id. at 1500-01 (footnotes omitted). Similarly, in Campbell, the

Tenth Circuit determined that Colorado’s single-subject and

other “title setting” requirements were not subject to strict

scrutiny because

the balancing test is a general approach our court and

the Supreme Court have employed in deciding the

constitutionality of content-neutral regulation of the

voting process. A balancing test takes account of the

Supreme Court’s recognition that, as 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. 

Strict or exacting scrutiny has been employed in

circumstances not presented in the pending case. The

PEST COMMITTEE v. MILLER 19057
cases discussed above [e.g., McIntyre, Meyer, and

Buckley] which applied strict scrutiny do not lend

themselves to a simple synthesis. As we read them,

however, strict scrutiny is applied where the government restricts the overall quantum of speech available to the election or voting process. More

particularly, strict scrutiny is employed where the

quantum of speech is limited due to restrictions on

campaign expenditures, as in Valeo, the available

pool of circulators or other supporters of a candidate

or initiative, as in ACLF and Meyer, or the anonymity of such supporters, as in ACLF, Valeo, and McIntyre v. Ohio Elections Comm’n.

Campbell, 203 F.3d at 745 (internal quotation marks omitted).

[6] Nevada’s single-subject and description-of-effect

requirements are content neutral. The PEST Committee has

failed to demonstrate that they are applied in a discriminatory

manner. Accordingly, the district court did not err in applying

the more flexible balancing test to those requirements and

determining that they serve important state interests. See, e.g.,

Las Vegas Taxpayer Accountability Comm. v. City Council of

the City of Las Vegas, 208 P.3d 429, 436-37 (Nev. 2009)

(“[T]he single-subject requirement helps both in promoting

informed decisions and in preventing the enactment of unpopular provisions by attaching them to more attractive proposals

or concealing them in lengthy, complex initiatives (i.e., logrolling).”).

B

[7] The district court’s analysis of the pre-election challenge provision presents a somewhat closer question because

the PEST Committee did present evidence tending to show

that challenges by opponents have tied initiative petitions up

in litigation for extended periods of time or that, in some

cases, they have left the proponents without sufficient time to

19058 PEST COMMITTEE v. MILLER
gather signatures in advance of the filing deadlines for a particular election cycle. Although it is the actual circulation process (and the attendant one-on-one communication with

potential voters) that has been determined to be “core political

speech,” the fact that the pre-election challenges may, in some

cases, prevent petitions from being placed on the ballot could

be viewed as implicating core political speech concerns.

However, the PEST Committee has not established that

Nevada’s process for preparing an initiative or referendum

petition for circulation constitutes, or otherwise directly

affects, the type of “interactive communication concerning

political change” that is properly considered core political

speech. The pre-election challenge procedure does not involve

one-on-one communication with voters, and the PEST Committee has not argued or demonstrated that initiative or referendum proponents have, or should have, a right to engage in

one-on-one communication with voters about their political

ideas before Nevada’s single-subject and description-of-effect

requirements are satisfied. Accordingly, the pre-election challenge procedure does not implicate core political speech, and

the remaining inquiry is whether it imposes a severe burden

on speech by restricting the overall quantum of speech available to Nevada’s electorate. 

[8] Assuming that pre-election challenges may burden

First Amendment rights in that they may delay or, in some

cases, prevent the circulation of initiative or referendum petitions in a particular election cycle, the PEST Committee identifies no basis for determining that permitting political

opponents to vet petitions for compliance with the singlesubject and description-of-effect requirements functions in

anything other than a content-neutral and non-discriminatory

manner. In any event, whatever burden there may be was not

created by the statute. Section 295.061 does not create a new

right of action. As the district court explained:

In Herbst Gaming, Inc. v. Heller, the Nevada

Supreme Court reiterated that Nevada courts — like

PEST COMMITTEE v. MILLER 19059
the majority of jurisdictions — are authorized to hear

pre-election challenges that allege that a petition violates procedural requirements or includes inappropriate subject matter. 122 Nev. 877, 141 P.3d 1224,

1228 (2006). Thus for example, in the 2006 case of

Nevadans for Property Rights v. Heller, Nevada

courts properly heard a legal challenge based on

NRS 295.009’s single-subject requirement even

though the single-subject requirement was not

brought within the ambit of NRS 295.061 until a

year later. 122 Nev. 894, 141 P.3d 1235, 1245

(2006); 2007 Nev. Stat. 1251. . . . Consequently,

Plaintiffs’ asserted interpretation-that NRS 295.061

creates a private right of action-is inconsistent with

the widespread practice in Nevada courts of hearing

pre-election challenges where no specific statute

authorizes such challenges.

Aug. 13, 2009 Order at 17-18 (footnotes omitted). Rather, the

pre-election challenge provision codifies and, in fact, imposes

limits on, the use of the existing common law writ process.

See Appellee’s Br. at 33 (“The provision limiting pre-petition

challenge to 15 days is a rule to establish an orderly process

in place of the alternative, which would be an undefined writ

petition process.”). Additionally, as the district court

observed, the choices and the conduct of ballot initiative proponents appear to have played a role in preventing at least

some petitions from ultimately being placed on the ballot.

Aug. 13, 2009 Order at 18 (suggesting that initiative proponents “would be wise in the future to avoid repeatedly withdrawing and refiling their petitions, thereby allowing their

opponents to bring repeat legal challenges”). Stated otherwise, the PEST Committee has not demonstrated that, in light

of Nevada’s entire statutory scheme regulating ballot access,

taken separately or together, the single-subject, descriptionof-effect, and pre-election challenge provisions prevent reasonably diligent ballot initiative and referenda proponents

from gaining a place on the ballot. The district court did not

19060 PEST COMMITTEE v. MILLER
err in applying a flexible balancing test to the pre-election

challenge provision and, as such, was not obliged to consider

whether Nevada’s system could or should be more narrowly

tailored. Cf. Buckley, 525 U.S. at 191-92 (“As the Tenth Circuit recognized . . . States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the

initiative process, as they have with respect to election processes generally.” (citing Biddulph, 89 F.3d at 1494, 1500-

01)).

IV

The PEST Committee also asserts that the district court

erred in not finding that the single-subject and description-ofeffect requirements are both vague and unconstitutionally

overbroad. The PEST Committee characterizes its vagueness

and overbreadth arguments as “as applied” challenges. 

The district court addressed and rejected the PEST Committee’s challenge to the single-subject requirement as unconstitutionally vague. The PEST Committee also challenged

Nevada’s single-subject requirement, in its motion for partial

summary judgment, as overbroad and the description-ofeffect requirement as both vague and overbroad. The district

court did not address those issues in its August 13, 2009

order. Although the district court did not address these arguments, they are preserved for appeal. See In re E.R. Fegert,

Inc., 887 F.2d 955, 957 (9th Cir. 1989) (explaining that appellate courts may consider an argument “raised sufficiently for

the trial court to rule on it”). 

The district court rejected the PEST Committee’s vagueness argument in connection with the single-subject requirement for two reasons. First, “single-subject requirements have

been upheld by several other jurisdictions.” Aug. 13, 2009

Order at 16 (citing Campbell, 203 F.3d 738 (10th Cir. 2000);

Biddulph, 89 F.3d 1491 (11th Cir. 1996); and Wasson v. Oregon, 2005 WL 711683 (D. Or. 2005)). Second, the district

PEST COMMITTEE v. MILLER 19061
court explained that “although courts are generally concerned

that vague laws will chill constitutionally protected speech, a

single-subject requirement, even if strictly enforced, is

unlikely to chill speech. Rather, it forces proponents to bring

multiple initiatives in order to legislate on multiple issues.”

Id. at 16-17 (internal citations omitted). 

[9] The constitutionality of a state law that operates in the

area of First Amendment freedoms may be attacked as overbroad or vague:

First, the overbreadth doctrine permits the facial

invalidation of laws that inhibit the exercise of First

Amendment rights if the impermissible applications

of the law are substantial when judged in relation to

the statute’s plainly legitimate sweep. Second, even

if an enactment does not reach a substantial amount

of constitutionally protected conduct, it may be

impermissibly vague because it fails to establish

standards for the police and public that are sufficient

to guard against the arbitrary deprivation of liberty

interests.

City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (emphasis

added) (internal citations and quotation marks omitted) (outlining standards for facial challenges); see also Kolender v.

Lawson, 461 U.S. 352, 358 n.8 (1983) (noting that the

Supreme Court has “traditionally viewed vagueness and overbreadth as logically related and similar doctrines”).

A

In connection with its vagueness challenge, the PEST Committee argues that: (a) the statutory provision defining the

term “one subject” to mean that “the parts of the proposed initiative” are “functionally related and germane to each other”

is unconstitutionally vague because it provides insufficient

guidance to proponents of ballot initiatives as well as to courts

19062 PEST COMMITTEE v. MILLER
that interpret them; and (b) the description-of-effect requirement similarly provides “[n]o additional guidance” for the

terms used in that section. Appellants’ Opening Br. at 40-47.

[10] A statute challenged for vagueness may be “judged on

an as-applied basis.” Maynard, 486 U.S. at 361. “To determine whether a statute is unconstitutionally vague as applied,

a two-part test is used: a court must first determine whether

the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider

whether the law provides explicit standards for those who

apply it.” U.S. v. Strauss, 999 F.2d 692, 697-98 (2d Cir. 1993)

(internal citations, quotations, and alterations omitted). “Objections to vagueness . . . rest on the lack of notice, and hence

may be overcome in any specific case where reasonable persons would know that their conduct is at risk.” Maynard v.

Cartwright, 486 U.S. 356, 361 (1988). “[W]here a statute

imposes criminal penalties, the standard of certainty is

higher.” Kolender, 461 U.S. at 358 n.8. 

[11] Here, the district court did not err in determining that

Nevada’s single-subject requirement is not impermissibly

vague as applied. The terms “single subject” and “description

of effect” are not in and of themselves “so lacking in meaning

as to be invalid.” Cf. Textile Workers Pension Fund v. Standard Dye & Finishing Co., 725 F.2d 843, 855-56 (2d Cir.

1984) (subjecting statutes governing economic regulation to

less stringent vagueness tests than those governing constitutionally protected rights). Section 295.009(2) includes a definition of “single subject” that provides comprehensible

guidance about the nature and purpose of the term. Nev. Rev.

Stat 295.009(2) (“[A] petition . . . embraces but one subject

and matters necessarily connected therewith and pertaining

thereto, if the parts of the proposed initiative or referendum

are functionally related and germane to each other in a way

that provides sufficient notice of the general subject of, and

of the interests likely to be affected by, the proposed initiative

or referendum.”). 

PEST COMMITTEE v. MILLER 19063
[12] The mere fact that some initiative and referenda petitions have been successfully challenged as violative of the

single-subject or description-of-effect provisions does not

establish that individuals or courts are unable to discern what

is required or that the provisions are “so standardless that

[they] authorize[ ] or encourage[ ] seriously discriminatory

enforcement.” U.S. v. Williams, 553 U.S. 285, 304-05 (2008)

(citing Hill v. Colorado, 530 U.S. 703, 732 (2000)). Although

Nevada’s courts have not yet reached a perfectly uniform

approach to analyzing the application of the single-subject

and description-of-effect requirements, the lack of “perfect

clarity and precise guidance” is not a sufficient basis for

declaring the provisions unconstitutionally vague. Id. (quoting

Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)).

Stated otherwise, evidence that some ballot petitions have

been successfully challenged does not demonstrate that the

language of either the single-subject or the description-ofeffect requirement is insufficient to provide persons of ordinary intelligence a reasonable opportunity to understand what

is required for ballot initiatives and referenda, and the language of the statutory requirements provides sufficiently

explicit standards for judges charged with reviewing their

application.

B

In connection with its overbreadth challenge, the PEST

Committee asserts that the application of the single-subject

and description-of-effect requirements “ha[s] acted to chill the

legitimate speech of those who sought to take advantage of

their constitutional right to bring ballot initiatives before the

public.” Appellants’ Br. at 50.

[13] Where a law’s broad sweep inhibits the exercise of

protected First Amendment rights, it is deemed overbroad;

and it will be struck down in its entirety if its overbreadth is

“not only . . . real, but substantial as well, judged in relation

to the statute’s plainly legitimate sweep.” Broadrick v. Okla19064 PEST COMMITTEE v. MILLER
homa, 413 U.S. 601, 615 (1973). “In addressing . . . a facial

overbreadth challenge, a court’s first task is to ascertain

whether the enactment reaches a substantial amount of constitutionally protected conduct.” Boos v. Barry, 485 U.S. 312,

329 (1988). The Supreme Court has explained that the doctrine of overbreadth

seeks to strike a balance between competing social

costs. Virginia v. Hicks, 539 U.S. 113, 119-120, 123

S. Ct. 2191, 156 L. Ed.2d 148 (2003). On the one

hand, the threat of enforcement of an overbroad law

deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas.

On the other hand, invalidating a law that in some of

its applications is perfectly constitutional . . . has

obvious harmful effects. In order to maintain an

appropriate balance, we have vigorously enforced

the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.

Williams, 553 U.S. at 292-93 (2008); see also Virginia v.

Hicks, 539 U.S. 113, 122 (2003) (explaining that the overbreadth doctrine applies where the challenged law or policy

“taken as a whole, is substantially overbroad judged in relation to its plainly legitimate sweep” and that “[t]he overbreadth claimant bears the burden of demonstrating, from the

text of the law and from actual fact, that substantial overbreadth exists”) (internal quotations, citations, and alterations

omitted).

[14] Read in the context of Nevada’s legitimate interests

and the statute’s plainly legitimate sweep, each challenged

statutory provision “communicates its reach in words of common understanding.” Boos, 485 U.S. at 332. Any purported

“overbreadth” inherent in the single-subject and the

description-of-effect requirements cannot reasonably be said

to be “substantial” in any absolute sense or in relationship to

PEST COMMITTEE v. MILLER 19065
Nevada’s interest in regulating its electoral process, because

the requirements do not have the effect of thwarting all

attempts to place initiatives and referenda before the voters.

See C & C Plywood Corp. v. Hanson, 583 F.2d 421, 425 (9th

Cir. 1978) (declaring unconstitutional a Montana law that prohibited all corporate contributions in support of or opposition

to ballot issues, explaining that “[i]t is not minimally regulatory but totally prescriptive and therefore overbroad”). We are

persuaded that the PEST Committee has not demonstrated

that Nevada’s single-subject or description-of-effect requirements are unconstitutionally overbroad.

Conclusion

We affirm the district court’s grant of summary judgment

in favor of the Secretary of State because the district court did

not err in applying the more flexible balancing test that is

appropriate for challenges to state election laws that impose

a less severe burden on First Amendment rights, and in concluding that the single-subject and description-of-effect

requirements, Nev. Rev. Stat. 295.009, are not unconstitutionally vague or overbroad.

AFFIRMED.

19066 PEST COMMITTEE v. MILLER