F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C H U L A V I S T A C I T I Z E

N S F O R J O B S
A N D F A I R C O M P E T I T I O N ; L O R I K N E E B O N E ; L A R

R Y B R E I T F E L D E R ; A S S O C I A T E D B U I L D E R S A N D C O N T R A C T O R S O F S A

N D I E G O , I

N C

. , Plaintiffs-Appellants

,

v

.

D O N N A N O R R I S ; M A Y O R C H E R

Y L C O X ; P A M E L

A B E N S O U S S A

N ; S T E V E C A S T A N E D A ; J O H

N M C C A

N N , in his official capacity

as Member of the Chula Vista City

Council; R U D Y RA M I R E Z , J R ., in his official Capacity as Member of the Chula Vista City Council,

Defendants-Appellees

,

S T A T E O F C A L I F O R

N I A , Intervenor-Defendant—Appellee

. N o. 12-55726

D.C. No. 3:09-cv-00897- B EN-J MA

OPI NI ON

Appeal from the United States District Court for the Southern District of California Rog er T. B enitez , District J u dg e, Presiding

Arg ued and Submitted En B anc D ecember 16, 2014—Pasadena, CaliforniaC H U L A V I S T A C I T I Z E

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F iled April 3, 2015

B efore: Sidney

R. Thomas, Chief J udg e, and Stephen Reinhardt, B arry G. Silverman, Susan P. Graber, M. Marg aret McKeown, W illiam A. F letcher, Ronald M. Gould, Richard C. Tallman, J o hnnie B . Rawlinson, Consuelo M. Callahan, and N. Randy Smith, Circuit J udg es.

Opinion by

J udg e Reinhardt

SUMMARY *

Civil Rights

The e n banc court affirmed the d istrict court’s summ a r y judg ment in an action broug ht u nder 42 U.S.C. § 1983 challeng ing two requirements that the State of California a nd the City o f Chula Vista, California, place on persons w ho wish to sponsor a local ballot measure: (1) the r e q u i rement that the official proponent of a ballot me a s u re be an elector, thereby disqualify ing corporations and associations from holding that position; and (2) the requirement that the official
pro p o n ent’s name appear on each section of the initiative petition that is circulated to voters for their sig nature.

The en b anc court held that the re q u irement that the official proponent of an initiative be an e l e ctor, thereby

ex c ludin g corporations and associations from holding that

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.C H U L A V I S T A C I T I Z E

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p o sition, does not violate the plaintiffs’ F irst Amendmen t rig hts to freedom of s p ee c h a nd association. The en banc
court also h eld that t h e r e quirement that the name of the official proponent of an initiative b e disclosed on the face o f the initiative petitions withstands e x acting scrutiny u nder the F irst Amendment.

COUNSEL

J ames B opp, J r. (arg

ued), and Richard E. Coleson, B opp L aw F irm, Terre H aute, I ndiana; Charles H. B ell, J r., and B rian T. Hildret h, B ell, McAndrews & Hiltachk, Sacramento, California; Gary

D. L easure, W orkman L easure, San Deig o, California, for Plaintiffs-Appellants.

Charles A. B ird (arg

ued), McKenna L ong & A l d ridg e, San Dieg o, California, for Defendants-Appellees.

Georg e Waters (arg

u e d ), Deputy A ttorney General; Kamala D. Harris, Attorney Genera l ; Doug las J

. W oods, Senior Assistant Attorney General; Peter A. Krause, Supervising Deputy A ttorney General, Sacramento, California, for I ntervenor-Defendant—Appellee.

Dennis J

. Herrera, City Attorney ; Christine Van Aken, Chief of Appellate L itig ation; J oshua S. W hite and Andrew S h en , Deputy City Attorney s, San F rancisco City Attorney ’s Office, San F rancisco, California, for Amici Curiae L e a g ue o f California Cities.C H U L A V I S T A C I T I Z E

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OP INION

REI NHARDT, Circuit J udg e:

The plaintiffs in this case b r ing a F irst Ame ndment challeng e to two requirements that the State o f California a nd the City o f Chula Vista, California, place on persons w ho wish to sponsor a l o c al ballot measure: (1) the r equirement that the official proponent o f a b allot measure be an elector, thereby disqualify ing corporations and associations from holding that position (“the elector requirement”); and ( 2) the requirement that the official p roponent’s n a me appear on e ach section of the initiative petition that is circulated to voters for
t heir sig nature (“the petition disclosure requirement”). W e h o l d, as d id the district c ourt, that both requirement s a r e plainly constitutional.

I.

This case arises from the plaintiffs’ efforts to place on the ballot what ultimately became Proposi t i on G, an initiative prohibiting the City of Chula Vista from entering into Project L abor Ag r eements. Such ag reements require that contractors hired by the city to build public works projects pay their employ e es a prevailing wag e. T he plaintiffs c onsist o f Chula Vista residents L ori Kneebone a n d L a r ry B reitfelder; Chula Vista C itiz ens for J o bs a nd F air Competition (“CVC”), an unincorporated association and a b allot measure committee; and Associated B uilders and C o n tractors of San D ieg o, I nc. (“AB C”), an incorporated association of construction-related businesses. AB C is CVC’s l a r ge st donor. CVC and AB C wished to serve a s the official proponents o f P r oposition G
, but because an official p r o p o n e nt must be an elector, they asked two CVC m e m b ers—Kneebone and B reitfelder—toC H U L A V I S T A C I T I Z E

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serve as proponents so that the measure mig ht be accepted b y the city clerk. Kneebone and B reitfelder ag r eed. CVC a nd AB C paid for all of the ex pense s a ssociated with q ualify ing the initiative for the municipal ballot.

A brief overview of the laws g overning the qualification of an initiative for the municipal ballot is in order. Section 903 o f the Chula Vista City Charter p rovides that “[ t] h ere a re he re b y r e s erved to the electors of the City the powers of the initiative a n d referendum a nd of the recall of municipal elective officers.” Section 903 then adopts the p r o v isions o f th e C a l i f o r n i a E l e c t i o n s C o de g o verning municipal initiatives, referenda, and recall elections “ so far as such provisions o f the Elections Code are not in conflict with this Charter.” The California Elections Code in turn provides a three-step
process that official p roponen t s m ust follow in order to qualify an initiative for the municipal ballot.

F irst, an official proponent must file a notice of intent to circulate a petition w ith the city cler k. The notice must include the tex t of the p roposed measure and the sig nature o f
at least one, b ut not more than three, official proponents. Cal. Elec. Code § 9202(a). 1 W ithin fifteen day s o f the filing of the notice, the c ity at t o r n ey must prepare a ballot title and brief
summary o f the in i t iative, which is provided to the official proponents. Id. § 9203.

Nex t, the official proponent must publish in a local
newspaper of g eneral circulation the notice of intent, accompanied by the title and summary prepared by t h e city

1 A d d i tio n ally , th e n o tice “ ma y b e acco m

pan ied b y a w ritten statem en t

n o t in ex cess of 5 0 0 w o rd s , settin g f o rth th e reaso n s f

o r th e p ro po s ed
p etitio n .” Cal. Elec. Co d e § 9 2 0 2 (a) (em p h asis ad d ed ).C H U L A V I S T A C I T I Z E

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attorney

. Id. § 9205(a). 2 The effect of this requirement is that the official proponent’s n ame—by way of the r equired sig nature on the notice o f intent—is published. P r oof o f publication must be provided to the city clerk within ten day s of publication. Id. § 9206.

Once publication o ccurs, t h e o f ficial proponent may beg in circulating the initiative petitions and collecting sig natures from reg ister e d voters. Id. § 9207. A petition ty pically is circulated in sections in order to facilitate sig nature g athering

. Id. § 9201. “Each section of the petition shall bear a copy of the notice of intention and the title and summary prepared b y the city attorney .” Id. § 9207. Thus, the official proponent’s

name must appear on the face of the circulated p etitions,
ag ain by way of the sig ned notice o f i n t ent. The official
pr o p o n ent has 180 day s from the date of receipt o f the title and sum m a r y t o file the sig ned p etitions with the city clerk. Id. § 9208. The c ity clerk then verifies the sig natures on the petitions and notifies the official proponent whether there a re sufficient sig n atures to qualify the measure for the ballot. Id. §§ 9210, 9114, 9115. I f there are enoug h valid sig natures, the city council must either adopt the measure a s is or place it on the ballot. Id. §§ 9214, 9215. 3

2 If th ere is n o n e w s p a p e r o f g e n eral circu latio n in th e city

, t h e sam e in f o rm at i o n m

u s t b e p u

b lish ed in a co un ty n ew sp ap er o f g en eral circu latio n an d p o sted in t h ree d esig n ated p u

b lic p laces. Id

. § 9 2 0 5 (b ). If th e r e is n o co un ty n ew sp ap er o f g en eral circu latio n , eith er, th en p o stin g in th ree d esig n ated

p u b lic p laces su f

f ices. Id

. § 9 2 0 5 (c).

3 D e p en d in g o n th e n

u m ber o f v alid sig n atu res co llected

, th e Ci t y Co un cil eith er o rd ers a sp ecial electio n o r p l aces t h e m easu re o n th e b allo t d urin g th e n ex t reg u larly

sch ed u led electio n

. Id

. § § 9 2 1 4 , 9 2 1 5

.C H U L A V I S T A C I T I Z E

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Kneebone and B reitfelder made two attempts t o p l ace Proposition G on the municipal ballot, the first of which is the subject of the instant litig ation. During the f irst attempt, Kneebone and B reitfelder properly filed a sig ned notice o f intent and complied with the publication requirements. After circulating the petitio n s , they submitted to Chula Vista City Clerk Donna Norris p etitions bearing 2 3
, 285 sig natures. However, Norris rejected the petitions because Kneebone a nd B reifelder had n o t included their n ames a s the o fficial proponents on th e circulated petitions. Kneebone a nd B reitfelder o bjected that CVC a nd AB C were the true proponents of the initiative, and that they had according ly printed CVC a n d AB C’s names on the circulated p e titions instead of their own names. W hen Norris responded that she could not process the sig n atures b ecause the petitions did not comply with the Elections Code

, Kn eebone and B reitfelder restarted the p roce s s , t h is time in c ompliance with all of the statutory requirements. As a result of this second e f fort to qualify the measure, Proposition G appe a r e d on the J une 8, 2 0 1 0 m unicipal election ballot and was approved by the Chula Vista voters.

The plaintiffs filed the instant suit under 42 U.S.C. § 1983 in the Southern District o f Californi a o n A pril 28, 2009—after Norris refused to process the f ir s t initiative petition but while the efforts to qualify the second petition for the ballot w ere ong oing

. T he complaint alleg ed that the requirements that an o fficial proponent be an e lector and that his name a

ppear on the face of the circulated petitions violate the F irst and F ourteenth Amendments, both faciall y a nd a sC H U L A V I S T A C I T I Z E

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applied. 4 T he p l a i ntiffs soug ht declaratory and injunctive relief.

On J une 4, 2009, the p l a i n tiffs moved for a preliminary injunction and an ex p edited hearing

. T he State of California intervened as a defendant to defend the constitution ality o f the state election laws adopted by Chula Vista’s City Charter. The dist r ict c ourt h eld a hearing on the motion for a preliminary injunction on Aug ust 1 9, 2009. The nex t day

, it ordered su p plemental briefing on w hether state election law requires an official proponent t o b e a natural person. On March 8, 2010, the district court denied the preliminary injunction a s moo t i n lig ht of the fact that the plaintiffs’ second attempt to qualify Proposition G for t h e b allot h ad succeeded. I t also s t ay ed the case pending the Supreme Court’s decision in Doe v. Reed

, 561 U.S. 186 (2010). W h en the stay was lifted, b oth sides f i led cross-motions for
summary judg ment. On March 22, 2012, t h e district court denied the plaintiffs’ motion and g ranted summary judg ment to the defendants, upholding both the elec t or and disclosure require m e n t s—requirements that it held were imposed b y both the state elections code and the city ’s municipal charter. This appeal followed.

II.

The pla i n t iffs first assert that the requirement that an official proponent be an elector violates their rig hts to freedom of speech and assoc i a t i o n under the F irst Amendment by preventing n on- natural persons—that is, corporations and associ ations—from serving a s official

4 U n d er th e F o urteen th A m en d m en t , th e First A m en d m en t is ap p licab le
to actio n s b y

th e states. Everso n v. Bd . o f Ed u c. , 3 3 0 U.S. 1 , 8 (1 9 4 7 ).C H U L A V I S T A C I T I Z E

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proponents. 5 W e conclude that the State of California and the City of Chula Vista d o not violate the F irst Amendment b y requiring that an o f

f icial proponent—a person seeking a unique position in a quintessentially leg islative process—be an elector.

A.

As a preliminary

matter, the plaintiffs dispute the source of the requirement that the official proponent of a municipal initiative be an elector and, therefore, a natu r a l person. Accordi n g to the plaintiffs, it is merely Chula Vista’s “enforcement policy ” that p rohibits n on-natural persons from serving as o f

f i c ial p roponents, rather than any provision o f
state or local law, and this undercuts “any purported interest supporting such a Requirement.” Appellants ’ B r. 8; Appellants’ Reply B r. 2. This argument has no merit.

The California Constitution provides that “[ t] he initiative is the power of the e lectors to propose statutes a nd amendments to the C o n stitution a nd to adopt or reject them,” Cal. Const. art. I I
, § 8(a ) ( e m phasis a dded), a nd that “[ i] nitiative and referendum powers may be ex ercised by the electors of each city o r county u nder proce d u r e s that the L egislature shall provide.” Cal. Const. art. I I
, § 11(a) (emphasis added). The C h u l a V ista City Charter likewise

5 T h e p lain tif

f s’ b rief s also assert in p assin g t

h at th e electo r req u irem en t

v io lates th eir rig h t to p etitio n th e g ov ern m en t, bu t th ey n e i t he r d ev elo p th is claim n o r p ro v id e an y

leg al au th ority to su

p p o rt it. A cco rd in g ly , o u

r

an aly sis o f th e electo r req u i rem en t f o cu ses o n th e f

reed o m o f sp eech an d

asso ciatio n claim s. S

ee Aco sta -Hu erta v. Estelle

, 7 F.3 d 1 3 9, 1 4 4 (9 th Cir. 1 9 9 3 ) (ex p lain in g th at an issu e raised in a b rief b u t n o t su p p o r t e d b y arg u m en t o r citatio n s to leg al au t h o rity m ay b e d eem ed ab an d o n ed un less a f ailure to rev iew

th e issu e w o u ld resu lt in

m an if est in j u stice).C H U L A V I S T A C I T I Z E

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provides that “[ t] here are h ereby r eserved to the electors o f the City the powers of the initiat i v e a n d referendum a nd o f the recall of municipal elective officers.” City of Chula Vista Charter § 903 (emphasis added). State election law, w hich the Chula Vista Charter adopts, then defines an “elector” as “any
person who is a United States c itiz en 1 8 y ears of ag e or older and

. . . is a resident of an election p recinct a t l e as t 1 5 d a y s prior to an election.” Cal. Elec. Code § 3 21(a); see also People v. D arcy , 139 P.2d 118, 123 (Cal. Ct. Ap p

. 1 9 4 3 ) (“An e lector is one w ho has the qualifications to vote but may not hav e complied with the leg al requirements, that is, the conditions precedent to the ex ercise o f hi s r i gh t to vote.”), disapproved on other grounds by Murgia v. Mun. Court
, 540 P.2d 44, 54 n.11 (Cal. 1975).

These provisions mean what they say : only natural
persons ( also known as human being s) who have the qualifications to vote may undertake off icial roles in California’ s initiative p rocess, including the role of official proponent. T h e plaintiffs contend that the California Constitution “merely say s that electors ‘propose’ initiatives by sig ning petitions in sufficient number to qualify them for the ballot and then ‘adopt or r e j ect’ them. I t say s nothing about who may b e proponents.” Appellants’ Br. 9–10. I t is obvious, however, that a “proponent” is o ne who “proposes,” and that an official proponent ex ercises initiative powers. See W e b ster ’ s New W orld Dictionary 1078 (3d Coll. ed. 1988). Thus, b oth the California Cons t itution and the Chula Vista City Charter p l a inly reserve to electors the rig ht to be proponents. See Cal. Const. art. I I
, §§ 8
, 11; City o f C h ula Vista Charter § 903. N or do the plaintiffs offer any arg uments that would convince a reasonable jurist th a t these state a nd l ocal laws mean something other than their plain

m e aning

— that an official p roponent must be an elector a n dC H U L A V I S T A C I T I Z E

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thus a natural p erson. See United States v. Gallegos

, 613 F .3d 1211, 1214 (9th Cir. 2010) (“I f the plain lang uag e of a statute renders its meaning reasonably clear, [ we] will not investig ate further unless its application leads to unreasonable o r impracticable results.” (a l teration in orig inal) (internal quotation marks omitted)). 6

6 T h e plain tif

f s m ak e tw o ad d itio n al arg u m en ts in su p p o rt o f th eir claim th at th e electo r req u irem en t is m erely an “ en f o rcem en t p o licy ” of t

h e city

. First, th ey

p o in t o u t th at Calif

o rn ia Electio n s Co d e § 3 4 2 , w h ichd ef in es

“ [p ]ro p o n en t o r p ro po n en ts o f an in itiativ e o r ref eren du m m easu re,” w as

am en d ed d u

rin g th e p en d en c y o f t h is case so th at th e pro p o n en t o f a statew id e in itiativ e is d escrib ed as an “ electo r” w h ile th e p ro p o n en t of

“ oth er in i tiativ e

. . . m easu res” is a “ perso n .” (P rev io u sly , b o th s tatew id e

an d l o cal pro p o n en ts w e r e d e scrib ed b y t h e statu te as a “ p erso n .”) T h ey assert th at th is distin ctio n m u st b e m ean in g f

u l

, an d th at “ p erso n ” m

u st b e b ro ad er th an “ electo r” an d m u st in clu d e n o n

- n atu ral p erso n s. Seco n d, th e p lain tif f s p o in t to a n

u m b er o f cases in w

h i ch an asso ciatio n serv ed as an

o f f icial p ro p o n en t, o r at least is d escrib ed as a “ p ro p o n en t.” Neith er of th es e arg u m en ts su cceed s in l ig h t o f o u r h o ld in g th at th e C alif

o rn ia Co n s t i t u t i o n an d th e Ch

u la Vista City Ch arter each im p o ses th e electo r req u irem en t. S

ee Do ma r Electr i c , I

n c. v. City o

f Lo s An g eles

, 8 8 5 P .2 d 9 3 4
, 9 3 8 (Cal. 1 9 9 4 ) (“ [T ]h e ch arter rep resen ts th e su p r e m e law of th e C i ty , su b j ect on ly to co n f

lictin g p ro v i sio n s in th e f ed eral an d s t a t e

co n stitu tio n s an d to p reem

p tiv e state law .”).

A d ditio n ally , o u

r rev iew o f th e leg islativ e h isto ry o f th e am en d m en t to sectio n 3 4 2 in d i c a t e s t h at th e ch an g e t o th e d ef in itio n o f “ p ro p o n en t”

w as n o t in ten d ed to be su

b stan tiv e. S

ee Sen

. Ru les Co m

m ., T h ird Read in g A n a l y s i s, A ssem

. B ill 75 3 (2 0 0 9 –2 0 10 Reg

. Sess.), Sep t. 3
, 2 0 0 9 (d escrib in g th e leg islatio n as a “ co d e clean u p m easu re” sp o n so red b y th e Secretary o f

State “ to reo rg an ize, up d ate, an d clarif y ” th e electio n s co d e p ro v isio n s p ertain in g to sta tewid e in itiativ es).

Fin ally

, n o n e o f th e cases ci t e d b y th e plain t if f s ad d ressed th e q u estio n w

h eth er an asso ciatio n o r co rp o ratio n m ay serv e as an o f f icial
p ro p on en t. S

ee Un ited S ta tes v. City o f Oa kla n d

, 9 5 8 F.2 d 3 0 0 (9 th Cir. 1 9 9 2 ); Glen d

a le Ten a n ts Ass’n v. City o f Glen d a le

, No

. B 1 75 1 60
, 2 0 0 5 W L 41 9 4 0 9 (Cal. Ct. A

p p

. 2 00 5 ) (u n

pu b lish ed ); MHC Fin

. Ltd

. P’sh ipC H U L A V I S T A C I T I Z E

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Norris asserts as a f

allback p osition that if we h ave any doubt, we should ex ercise o ur discretion to abstain under the doctrine announc e d in Railroad Commission of Texas v

. Pullman Co.

, 3 12 U.S. 496 (1941), and allow state courts to resolve the matter. W e do not d o so for two reasons. F irst, we d o not find any such ambig uity ; thus abstention would be inappropriate. See City of Ho u s t o n v. Hill

, 4 82 U.S. 451, 467–68 (1987). Second, “[ a ] bstention is

. . . the ex ception a nd
not the rule,” an d i t is strong ly disfavored in F irst Amendment cases. Id. at 467. “I t i s rarely appropriate for a federal c ourt to abstain under Pullman in a F irst A mendment
case, because there is a risk in F irst Amendment cases that the delay that results from abstention will itself chill the ex ercise of the rig hts that the p laintiffs seek to protect by suit.” P orter

v. Jones
, 319 F

. 3 d 483, 486–87 (9t h C i r

. 2003). “‘I ndeed, constitutional challeng es based o n the [ F ] i r s t [ A] mendment rig ht of free ex pression a re the k ind of cases that the federal
courts are particularly well-suited to hear. That is why

a b s t e n t i o n i s ge n e r a l l y i n a p p r o p r i a t e w h e n [ F] i r s t [ A] mendment rig hts are at stake.’” See id. at 492 ( quoting J-R Distribs., I

n c. v. Eikenberry

, 725 F .2d 482, 487 (9th Cir. 1984), o verruled on other grounds by B rockett v

. S p okane Arcades, Inc.
, 472 U.S. 491 (1985))

. W e conclude that this

Two v. City o

f S an tee , 2 3 Cal. Rp tr. 3d 6 22 (Ct. A p p

. 20 0 5 ); Allia n ce f

o r

a B e tter D o wn to wn Millb ra e v. W a d e , 1 3 3 Cal. Rp tr. 2 d 2 4 9 (Ct. A p p

. 2 0 0 3 ); S a ve S ta n isla u s Area Fa rm Eco n

. v. B d

. o f Su p erviso rs , 1 6 Cal. Rp tr. 2 d 4 0 8 (Ct. A

p p

. 1 9 9 3 ); Citizen s fo r Resp o n sib le Beh a vio r v. S u p erio r Co u rt , 2 Cal. Rp tr. 2 d 6 4 8 (Ct. A pp

. 1 9 9 1 ); Co a l. f

or Fa ir Ren t

v. Ab d eln o u r , 1 6 5 Cal. Rp tr. 6 8 5
, 6 9 1 (Ct. A p p. 1 9 8 0 ). W e ag ree w ith th e d istrict co urt th at t

h e f act th at i n so m e cities an d co un ties asso ciatio n s m ay h av e serv ed as p ro po n en ts i n t h e p ast w i t h o u t b ein g ch allen g ed say s

n o th in g ab o u t th e ex isten ce o r v alid ity o f th e electo r req u irem e n t

. S e e Ch u l a Vista Citizen s fo r Jo b s & Fa ir Co mp etitio n v. No rris
, 8 7 5 F. Su p p

. 2 d 1 1 28 , 1 1 3 7 n .9 (S.D. Cal. 2 0 1 2).C H U L A V I S T A C I T I Z E

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case d oes not fall within the “ ‘ex traordi nary and narrow

ex c e ption to the duty of a

. . . cou rt to adjudicate a controversy .’” W

olfson v. Bramm e r , 616 F .3d 1045, 1066 (9th Cir. 2010) (brackets o mitted) (quoting Canton v. S p o k a ne Sch. D ist. No. 81
, 498 F .2d 840, 8 4 5 ( 9th Cir. 1974), overruled on other grounds as recognized by Heath v. Cleary

, 708 F .2d 1376, 1378 n.2 (9th Cir. 1 983)). W e now turn to the merits of the plaintiffs’ claim that the elector r equirement violates the F irst Amendment. 7

B.

“ S tates a llowing ballot initiatives have considerable leeway to protect the integ r ity and reliability of the initiative
process, as they have w ith respect to election processes g enerally

. ” Buckley v. Am. Constitutional L aw Found., Inc. ( “ACLF”)

, 525 U .S. 182, 191 (1999). True, every state law
reg ulating elections, “whether it g overns the reg istration a nd qualifications of voters, the selection and elig ibility o f candidates, or the voting p rocess itself, inevitably affects—at least to some deg ree—the individual’ s r ig ht to vote and his rig ht to associate with o thers for political ends.” Anderson v

. Celebrezze

, 4 60 U.S. 780, 788 (1983 )

. S t a t es of course may

n o t a d o p t “ v o t e r q u a l i f i c a t i o n s wh i c h i n v i d i o u s l y discriminate,” Harper v

. Va. State Bd. of Elections

, 383 U.S. 663, 666 ( 1966), but “‘as a practical matter, there must be a substantial reg ulation o f elections if they are to b e f a i r a nd honest and if some sort o f ord er , rather than chaos, is to

7 T h at th e p lain tif

f s h av e su ccessf

ul ly q u alif

ied P ro p o sitio n G f

or th e b allo t an d th e v o ters o f Ch u la Vista h av e ap p ro v ed it d oes n o t m o o t th is

c a s e b ecau se i t is “ cap ab le o f rep etitio n , y et ev ad in g rev i ew .” F e d

. Electio n C

o mm’n v. W

is. Rig h t to L ife, In c. , 5 5 1 U.S. 4 4 9
, 4 6 2 (2 0 0 7 ); see

a lso Da vis v. Fed . Electio n Co mm’n , 5 5 4 U.S. 7 2 4 , 7 3 5 (2 00 8 ).C H U L A V I S T A C I T I Z E

N S V

. N O R

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accompany the democratic processes,’” And e rson , 460 U.S. at 788 (quoting Storer v. Brown , 415 U.S. 724, 730 (1974)). As a result, “the rig o rousness of our inquiry into the propriety

o f a state election law depends upon the ex tent to whi c h a challeng ed r eg ulation burdens F irst and F ourteenth A m e n d ment rig hts.” Burdick v. Takushi

, 504 U.S. 428, 434 (1992); see also ACLF, 525 U.S. at 192 (“[ N] o litmus-paper test will separate valid ballot-access provisions from invalid in t e r a ctive speech restrictions

. . . .” (internal quotations marks omitted)). 8 “[ T] he state’s importa n t r e g u l a t o ry interests

a r e g e n e r a l l y s u f

f i c i e n t t o j u s t i f

y r e a s o n a b l e , nondiscriminatory

restrictions.” Anderson , 460 U.S. at 788.

The e lector requirement d oes not impose any meaning f ul burden on F irst Amendm en t rig hts. The p laintiffs seek a leg islative power and, as they conc e d e d at o ral arg ument, many leg islative and official politi cal acts are properly reserved t o members of the e lectorate. F or ex ample, corporations cannot vote. U.S. Const. amen d

. X XVI ; Cal. Const. art. I I
, § 2

. Nor can they run for political office or be appointed to fill vacancies. U.S. Con s t

. art I
, §§ 2–3; U.S. C onst. art. I I
, § 1; U.S. Const. amend. XI I ; U.S

. C o n s t

. amend. XXV; Cal. Const. a rt. I V, § 2; Cal. Const. art. V, § 2. Under California law, t h e y cannot sig n initiative p etitions, Cal. Const. art. I I § 8; Cal. E lec. Code § 9207, sig n candidate nominating papers, Cal

. E lec. Code § 8060, or introduce leg islation, Standing Rules of the Senate, 2 015–2016 Reg

. Sess., Rule 28.5; Standing Rules of the Assemb., 2015–2016

8 T h e d ef en d an ts co n ten d th at th e First A m en d m en t h as n o ap p licatio n t o t h e electo r req u irem en t b ecau s e it is a reg u latio n o f th e leg isla t i v e p ro cess. W e n eed n o t d e c i d e t h e q u estio n , as w e co n clu d e th at in an y

ev en t th e electo r req u irem en t su rv i v es First A m en d m en t

scru tin y

.C H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 15

R eg

. Sess., Rule 47. 9 The plaintiffs fail to provide an y reason—and w e find n one—that the state and city may not similarly limit the ex ercise of the initiative power to members of the relevant political community : electors.

The initiative power that California and the City of Chula Vista have reser

v e d t o electors is indisputably a leg islative
power. S e e C a l

. C onst. art. I I
, § 8; Cal. Const. art. I I
, § 11; City of Chula Vista Charter § 903. The initiative sy stem

reserves to “the voters of California the autho r ity to directly
propose a

nd adopt state constitutio n al amendments a nd
statuto ry provisions,” and the California Supreme Court characteriz es thi s as “ essentially a leg islative authority

. ” Perry v. B rown , 265 P.3d 1002, 1016, 1027 (Cal. 2011); see also Builders Ass’n of Santa Clara-Santa Cruz Cntys. v

. Superior Court
, 529 P.2d 582, 586 ( C al. 1974) (ex plaining that the initiative “represents an ex ercise by the people o f their reserved power to leg islate”); W idders v. Furchtenicht

, 84 Cal. Rptr. 3d 428, 439–40 (Ct. App. 2008) ( “The initiative
process

. . . is a method of enacting leg i s lation

. . . .”); Carlson v. Cory
, 189 Cal. Rptr. 1 85, 187 (Ct. A p p

. 1 983) (“Our State Constitution clearly i n d icates that the power o f the initiative is the separate and distinct power of the people
t o leg islate[ .] ”). Much like a leg islator who beg ins t h e traditional leg islative process b y placing a bill in the hopper,

an official p roponent commences the process of leg islating b y initiative by a sking voters to s i gn a petition to place an initiative o n the ballot. See W idders

, 84 Cal. Rptr. 3d a t 438. Thus, by seeking to serve as official proponents, the plaintiffs seek to wield a leg islative power.

9 A v ailab le at h t tp ://tin

y url.co m /CA leg SR4 ; h ttp ://tin

y url.co m /CA HR1

.C H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 16

Not only do the corporate and associa t i onal plaintiffs wish
to participate in this leg islative process, they assert that they

are entitled to serve as o ffici a l p r oponents—a “unique role

. . . in the constitutiona l initiative process.” Perry
, 265 P.3d
at 1 006. Under California law, “the official proponents of an initiative m e a s ure are recog niz e d as having a d istinct role—involving both authority and responsibilities that differ from other supporters of the measure—with r e ga rd to the initiative measure the propo n e n ts have sponsored.” I d. at 1017–18. After submitting the tex t o f a p roposed measure to

an elections official and notify ing t he public of the

commenc e m e n t of the initiative process, Cal. Elec. Code §§ 9202, 9205, “[ t] he proponents [ have] the direct responsibility to manag e a nd control the ballot-qualifying a nd petition-filing process.” Perry
, 265 P.3d at 1024. The official proponent oversees the process of collecting sig natures from
voters supporting the initiative, and only the official proponent may a

uthoriz e the filing of the sign e d i n itiative petitions—the final step before a measu r e is placed on the ballot. Cal. Elec. Code §§ 9207, 9 210. The official proponent then controls which arg uments in support of the measure will
appear in the pamphlet printed and distributed to voters by the elections official. Id. §§ 9282, 9287. F in a lly

, if public officials de c l i ne to defend a challeng ed voter-approved initiative, under state law the off i c i a l proponent may intervene or a ppear as a r eal party in interest “in order to assert the people’s a

n d hence the state’s inte rest in the validity of the measure.” Perr y , 2 65 P.3d at 1006. But see Hollingsworth v. Perry
, 133 S. Ct. 26 5 2
, 2663–67 (2013) (holding that official proponents of C alifornia’s Proposition 8 lacked federal constituti o n a l standing ). Thus, while all California voters play a quasi-leg islative role in the initiative
process, the official proponent is particularly a kin t o a leg islator—sponsoring leg islation and shepherding it throug hC H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 17

the leg islative process. I n deed, like a leg islator introducing leg islation, and unlike a mere lobby ist (the p l a intiffs’ preferred characteriz a tion), an official proponent performs a series of necessary steps for the people to ex ercise the power to leg islate by initiative.

W e have no d oubt tha t states and cities may , wholly consistent with the F irst Amendment, require that those w ho seek to propo s e l e gislation—and to play a special role with unique responsibilities and powers in the leg islative
process— be electors. The issue here is in some respects analog ous to that in Nevada Commis s i o n o n Ethics v

. Ca r r igan
, in which the Supreme Court held that a leg islator lacks a F irst Amendment rig ht to cast a vote on any g iven
matter before the leg islature: “a leg islato r has n o [ F irst Amendment] rig ht to use of ficial powers for ex pressive purposes.” 131 S. Ct. 2343, 2351 (2011). The Court ex p lained that a leg islator’s vote “ is a core leg islative function” and that “[ t] his Court h as rejected the notion that the F irst A mendment confers a r ig ht to use g overnmental mechanics to convey a messag e.” Id. at 23 4 7, 2351 (internal quotation marks

om i t t ed ) (citing Timmons v. Twin Cities Area New P a rty , 520 U.S. 351 (1997)). Much like the recusal provisi on at issue in Car r i

g a n , the elector requirement in this case restricts who may ex ercise official, leg islative p owers and, at most, only incidentally burdens core polit i c a l speech. Therefore, in asse s sing “the character and mag nitude of the asserted i n

j u ry to the rig hts protected by the F irst a nd F ourteent h A m endments that the plaintiff[ s] seek[ ] to vindicate

, ” Anderson

, 460 U.S. at 789, we conclude that, in line w i t h Carrigan
, the State of California and the City o f Chula Vista may reserve the power to leg islate to the people by way o f the elector r equirement without posing a ny thingC H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 18

more than, at most, an incidental burden on F irst A mendment rig hts.

W e nex t “ identify and evaluate the precise interes t s p ut forward b y the State a s justifications for the burden imposed by its rule” and assess “the ex tent to w hich those i n t e rests make it n ecessary to burden the plaintiff[ s’] r i ghts.” Id. The defendants a ssert an important interest—in d e e d

, a c o m pelling one—in securing the people’s rig ht to self-g overnment. The elector requirement o p e rates to ensure that those who ex ercise this unique leg islative power are members of the political

c o m m unity who will b e bound b y the proposed initiati v e should it become law—those with the qualifications to vote. The Supreme Court has repeatedly d e c l a r ed that states may

r e s trict the p erformance of official acts such as v oti n g o r holding political office to me m b e rs of the political community

—that is, to electors. “ W e recog n iz e a State’s interest in establishing its own f orm o f g ove r n m e n t, and in limiting participation in that g overnme n t to those who a re within the b asic conception of a political c ommunity

. W e recog niz e, too, the State’s broad power to define its political community .” Sugarman v. Doug a l l

, 413 U.S. 634, 642–43 (1973) (internal quotation m a r ks and citation omitted). F o r

ex ample, bona f

i d e residence requirements for voting “preserve the basic conception of a political community

, a nd therefore c o u l d w ithstand [ even] close constitutional scrutiny .” D unn v. Blumstein , 405 U.S. 330, 344 (1972).

The elector requirement in the instant case similarly

ensures that o n ly members of the relevant political community may hold an official position in the lawmaking
process. I t should not be controversial that California and the City of Chula Vista w ant civic-minded i ndividuals with knowledg e of local a ffairs t o b e the initiators of localC H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 19

leg islation. Convers el y , the e lector requirement prevents outsiders wi t h o u t ties to the community from officially proposing leg islation t h a t will g overn that community

. W e ag ree with the district court that:

Permitting a corporation or associati on to be

a ballot initi ative proponent could lead to local laws being prop o sed by foreig ners unready t o contribute to the city or bear the

r e s p o n s i b i l i t y o f c i t i z e n s h i p

. W o r s e , corporations w ith assets, o perations, o r shareholders located outside the city

, state, o r country mig ht pr o p o se initiatives adversely affecting the welfare of citiz e n s of Chula Vis t a , in order to g a in a business advantag e elsewhere. L ikewise, associations of people who live and work in other locales, could
propose laws to their o wn ad vantag e or the disadvantag e of Chula Vistans.

Chula Vista Citizens for Jobs & Fair Competition v. Norris
, 875 F

. Supp. 2d 1128, 1136 ( S.D. Cal. 2012). The e l e ctor requirement is an entirely appropriate mechanism f or averting those dang ers and f

or reserving to the p eople the rig ht of selfg overnment. 1 0

10 T h e plain tif

f s co rrectly p o i n t o u t th at th e electo r req u irem en t is n o t as

n arro w ly tailo red to th is in terest as it m ig h t b e. It ap p lies to asso ciatio n s lik e CVC, s o m e o f w

h o se m e m

b e r s are electo rs. A d d itio n ally

, it is

so m ew h at red un dan t in th at th e req u irem en t th at a p etitio n b e sig n ed b y

a s pecif ied n u m b er o f v o t ers s im ilarly e n s ures th at th e relev an t p o litical

co m m un ity su pp o rts t h e in itiativ e. T h e electo r req u irem en t n eed n o t, h o w ev er, b e n arro w ly tailo red to th e state’ s in terest in lig h t o f t h e

n eg lig ib le b urd en it i m

p o ses o n co re p o litical sp eech

. S ee ACLF
, 5 25 U .S.
at 2 0 6 (T h o m as, J
., co n cu rrin g i n th e j u dg m e n t ) (“ T o req u ire th at ev eryC H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 20

The history of the initiative sy stem in California confirms that the elector requirement is central to a functioning sy stem of direct democracy

. California adopted the initiative sy stem in 1911 at a special election called by Governor Hiram J ohnson, a member of the Prog ressive Reform Movement, “in lig ht o f the theory th a t a ll p o wer of g overnment ultimately

r e s i d es in the people.” Perry
, 265 P.3d at 1016; Kar l Manheim & E dward P. Howa rd, A Structural Theory of the Initiative Power in California

, 31 L oy

. L .A. L

. R e v

. 1165, 1187 n.162 (1998). There was “a widespread belie f t hat the people had lost control of the political process,” Perry
, 265 P.3d at 1 016, as the Southern Pacific Railroad h ad come to dominate state politics at the turn of the century :

Virtually every California leg islator a nd judg e owed his office to the Southern Pacific.

. . . One m ember of the leg islature observed that “[ s] carcely a vote was c ast in either house that did not show some aspect of Southern Pacific

owners hip, petty v eng eance, or leg islative blackmail.” I ndeed, “in the thirty y ears following adopti o n of the 1879 constitution,
not a sing le bill opposed by the Southern Pacific Railroad was enacted in Sacramento.”

. . . [ T] he ex amples o f t he r ailroad’s domin an ce in every nook and c ranny of the state [ were] leg ion . . . .

v o tin g , b allo t, an d cam

p aig n reg u latio n b e n arro w ly tailo red to serv e a

c o m p e l lin g i n terest ‘ w ou ld tie th e h an d s o f States seek in g to assu re th at electio n s are o pera t e d eq u itab ly an d ef f icien tly .’ ” (q u o tin g Bu rd ick

, 5 0 4 U.S. at 4 3 3 )).C H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 21

Manheim & Howard, supra , a t 1184 (footnotes a nd p arag raph break omitted). See also Strauss v

. Ho r ton , 207 P.3d 48, 84 (Cal. 2009). T he initiative sy stem was desig ned a s an a ntidote
to this c apture of the legi s lature by a powerful corporation—“one means o f restoring the p eople’s rig htful control over their g overnment.” I d

. B y allowing an individual elector to assume the role of leg islator, the initiative process “enable[ s] the people to amend the sta te Constitution or

. . . enact statutes wh en c urrent g overnment officials have declined to adopt (and often have publicly opposed) t h e

measure in question.” Perry
, 265 P.3d at 1006; see also Samuel I ssacharoff e t al., The Law o f Democracy: Leg al Structure of the Political Process 937 (4th ed. 2 012) (“Initiative s and referenda were touted [ “at the turn of the twentieth c entury ”] as a means of overcoming the capture o f leg islatures by special interests, such as the railroads, mining companies, a

nd other industries, and of circumventing the
power of ward-based p olitical machines

. . . . ” )

. Thus, the initiative sy stem is, at its core, a mechanism to ensure that the people, rather than corporations or special interests, maintain control of their g overnment. The elector requirement clearly furthers this essential purpose of the initiative sy stem. 1 1

11 T h at th e in i tiativ e p ro cess m ay n o t h av e s erv ed its p urp o s es as w ell as its o rig in al p ro p o n en ts h o p ed d o es n o t af f ect o u r d ecisio n h ere. T h ere is

m o u n tin g ev i d en ce th at co rp o ratio n s an d u ltra- w ealth y in d iv id u als h a v e

c o m e to d om in ate th e in itiativ e p ro cess. S ee Calif o rn ia Co m

m ’ n o n Cam p aig n Fin an cin g , Demo cra cy B y In itia t ive: S

h a p in g C a lifo rn ia ’s Fo u r th Bra n ch of Go vern men t 2 6 4– 7 4 (1 9 9 2 ); A d am Win k ler, Beyo n d B ello tti, 3 2 L o y

. L .A. L. Rev

. 1 3 3
, 1 3 7

– 39 (1 9 9 8 ); J am in B

. Rask in

, Direct Demo cr a cy, Co rp o ra t e Po wer a n d Ju d icia l Review o f Po p u la rly-En a cted Ca mp a i g n Fin a n ce Refo rm , 1 9 9 6 A n n

. Su rv

. A m

. L

. 3 9 3
, 3 9 5

– 99 (1 9 96 ); Jo h n S. Sh o ck ley

, Direct Demo cra cy, Ca mp a i g n Fin a n ce, an d t h e C

o u r ts: Ca n Co rru

p tio n , Un d

u e In flu en ce, a n d Declin i ng Vo ter Co n

f id en ce B e F

o u n d ?
, 3 9 U. Miam i L

. Rev

. 3 7 7
, 3 9 3

– 9 6 (1 9 8 5 ); J

. Sk elly W rig h t, Mo n ey a n d th e Po l lu tio n of Po litics: IsC H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 22

C.

The p laintiffs n one theless contend that the e lector requirement trig g ers strict scrutiny and is impermissible under Citizens United v

. Federal E l ec tion Commission
, 5 5 8 U .S. 310 ( 2010), f

o r three reasons: (1) it is a dire c t b a n

on core political speech; (2) it bans disfavored sp e ak e r s’ speech; and (3) it r equires speech by prox y

. They are wrong

.

As to the plaintiffs’ first point: advocating for an initiative petition at the circulation stag e is certainly co r e p olitical speech, see Meyer v. Grant
, 486 U.S. 414, 421–22 (1988); see also McIntyre v. Ohio Elections Comm’n
, 514 U.S. 334, 347 (1995), but that is not what is at issue in this case. W e r epeat:

a corporation or association is banned from serving o n l y as

an official proponent

—a unique leg islative p o sition that may properly be reserved to members of the p olitical community

. Corporations and associations may still speak as much as they wish in support of or opposition to an initiative. I ndeed, AB C and CVC were the sole financial backers of Proposition G

. B y contrast, in Citizens United

, the independent ex penditure ban at issue prohibited all electioneering communications b y corpora t i o n s d

uring the time p receding an e lection. See

th e First Amen d

men t a n Ob sta cle to Po l itica l Eq u a l i t y?
, 8 2 Co lu m

. L

. R e v

. 6 0 9
, 6 2 2

– 25 (1 98 2 ); see a lso Mich ael Hiltzik

, On Ca lifo rn i a In itia tives, M

on ey Ta lked

, Th e Pu blic In t erest W

a lked

, L .A

. T im es, No v

. 5
, 2 0 1 4
, h ttp : //tiny

url.co m /latim esh i ltzik ; No rim itsu On ish i

, Ca lifo rn ia Ba llo t In itia t ives, Bo rn in Po pu lism, No w Co me fro m Billio n aires , N.Y. T im es, Oct. 1 7
, 2 0 1 2
, at A 2 2; In a J af f e, Co rp o r

a te Bu cks Beh i n d ‘Citizen s ’ In itia t ives in Ca l if.

, Nat’ l Pu b lic Rad io

, May 2 4
, 2 0 1 0
, h ttp ://tin y url.co m /n p rj af f e. Ho w ev er, th e State of Calif o rn ia an d t

h e City

o f Ch u la Vista are en titled to co n tin u e striv in g to g u aran tee self

g o v ern m en t to th eir citizen s, n o tw ith stan d i n g t h ese sh o rtco m in g s o f d i rect d em ocracy , an d to im

p ro v e th e in itiativ e p ro cess sh o u l d th ey so d esire.C H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 23

5 5 8 U

. S

. at 337. I n short, neither California nor the City o f Chula Vista prohibits corporat i o n s o r a s s o c i ations from acting

as supporters o r advocates for an initiative a t a n y time, a nd thus core p olitical speec h i s b urdened by the e lector requirement only incidentally

, if it is burdened at all. Citizens United p lainly does not e stablish that every time an election law incidentally affects a c orporat ion—no matter h ow indirectly and minimally

—strict scrutiny is trig g ered and the law invalidated.

Moreover, the plaintiffs fail t o adduce any evidence that the elector requirement in any w a y b urdens the ability to qualify measures for the b allot, reducing the total quantum o f political speech and trig g ering heig htened scrutiny

. S ee A n gle

v. Miller

, 673 F .3d 1122, 1132 (9th Cir. 20 1 2 ) (ex plaining that strict scrutiny applies only w here a reg ulatio n o f t h e initiative process severely b urdens speec h by limiting the number of voices that w ill convey the proponent’s messag e , making it less likely that the matter will b e placed on the ballot and become the focus of public d i s c u ssion); Prete v

. Bradbury

, 438 F .3d 949, 961–63 ( 9th Cir. 2006) (same). I ndeed, the corporate and a ssociational plaintiffs in this case successfully located individual electors to serve a s official proponents for their initiative an d

, as ex plained infra in Section I I I .A, California has one of the most active local initiative s y s t e ms in the country

. Thus, plaintiffs have not offered any eviden ce that would support their arg ument that the elector requirement is a direct ban on core p olitical speech. See A n g l e , 673 F .3d at 1133–34 (holding that strict scrutiny d i d n o t apply because the plaintiffs had failed to meet their burden o f d e m o n strating that the challeng ed
reg ulation of the initiative process “ sig nificantly inhibit[ s] the ability o f initiative proponents to p l a ce i nitiatives on the ballot”).C H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 24

As to the plaintiffs’ second contention, the e lector

r e q u i rement does not violate the “principle

. . . that t h e Government may not suppress political speech on the basis o f th e speaker’s corporate identity .” Citizens United

, 558 U.S. at 365. That corporations have F irst Amendment r ig hts does
not establish that those rig hts a re coex tensive with the rig hts of e l e c t ors. See, e.g. , Thalheimer v. City of San Diego
, 645 F

. 3 d 1109, 1124–25 (9th Cir. 2011). I ndeed, Citizens United it s elf noted that “ there are certain g overnmental functions that cannot o perate without some restr i c t i o ns on particular kinds of speech, ” a lthoug h those restrictions may operate to the disadva n t a g e o f certain speakers. 558 U.S. at 341. I n a similar vei n , F i r s t National Bank of Boston v

. Bel l o t t i ex plained that certain c o nstitutional rig hts, “ such a s the privileg e ag ainst compu lsory self-incrimination, a re unavailable to corporations and other org aniz ations b e c ause t h e ‘historic function’ of the p articular g uarantee h as b e e n limited to the protection of individuals.” 435 U.S. 765, 778 n.14 (1978) (quoting United States v. W h i te , 322 U.S. 694, 698–701 ( 1944)). Certainly n o one would arg ue that Citizens United and Bellotti ex tend so far as to g rant to corporations the rig ht to vote o r to hold p ublic office (or even to sit on the bench). The plaintiff

s c oncede as much. W e according ly refuse to e x tend Citizens United to g rant to corporations a nd associat i o n s the rig ht to hold a distinct, official role in the process of leg islating , by

initiative or otherwise.

As t o the plaintiffs’ final attempt to e x pand Citizens United

, there is no problem here of r e q uiring speech b y prox y

. Corporations and associations simply cannot perform official leg islativ e f

unctions d irectly or by prox y

. The

a venues of ex pression g uaranteed to corporations a n d associations meanwhile are left fully open to them a nd are in

no way burdened. Cf. Cit izens United

, 558 U.S. at 337. TheC H U L A V I S T A C I T I Z E

N S V

. N O R

R I S 25

mere f act that the corporate and associational plaintiffs must rely on thei r members or other electors to serve as official proponents does not violate the F irst Amendment or trigge r heig htened scrutiny

. Under t h e plaintiffs’ view of Citizens United

, the g overnment could not ex clude corporations o r

a s s o ciations from any position available to human b eing s because to do so w o u ld impermissibly require speech b y prox y —an assertion that is clearly u n tenable.

F i n a l ly

, we address briefly the plaintiffs’ c laims pertaining to freedom of association. The plaintiffs make two arg uments, both of which are f oreclosed by our holding that the elector requirement is otherwise v a lid un d er the F irst Amendment. F irst, the plaintiffs contend that, “[ e] ven if the rig ht to be an init i ative proponent belong ed solely to ‘electors,’ fo r

bidding electors to associate to enhance their advocacy directly and severely burdens the r ig ht to associate.” Appellants’ B r. 19–20. Nothing in the California

or municipal law, h owever, prevents the members o f CVC and AB C from banding tog ether to advocate for or a g ainst an initiative as an association; they s i m p l y lack the rig ht to collectively serve as an official proponent. Sec o n d

, the plaintiffs c ontend that the e lector r e q u irement creates an unconstitutional condition b y f orcing them to choose b etween their F irst Amendment rig hts to eng ag e in political speech a s official proponents and to privacy o f association. B ecause we find no F irst Amendment rig ht of corporations or associations
to serve as official p roponents, this arg ument is without merit. Thus, the plaintiffs’ associational claims also fail, as d o all o f their attempts to push Citizens United bey ond what the Court held in that case.

* * *C H U L A V I S T A C I T I Z E

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“I n assessing the countervailing inte r e s t s at stake in this
case, we mus t be mindful of the c haracter of initiatives a nd referenda. These m echanisms of direct democracy are not compelled by the F ederal Constitution. I t is instead up to the
p e o ple o f each State, acting in their sovereign capacity

, t o decide whether and how to permit leg islation b y popular action.” Reed

, 561 U.S. at 212 (Sotomay or, J

. , concurring ). The elector requirement at issue in this case merely limits to those qualifi e d t o vote the ability to serve as an official proponent, a legi s lative role with unique powers a nd responsibilitie s under state law. W e hold that the F irst Amendment d oes n ot prohibit the State of California and the City of Chula Vis t a f

r o m reserving this leg islative power to electors in order to preserve the self-g over n ment of their citiz ens.

III.

Nex t, the plaintiffs challeng e the requirement t h at an official proponent’s name appear on the face of the initiative petitions circulated to voters. To recap i t ulate, California’s statutory reg ime, as adopted by the Chula Vista City Charter, requires an official proponent to d isclose his identity on three occasions: (1) the f

i ling of a notice of intent to circulate an initiative petition with the c ity clerk, which must be sig ned b y at least one and not more than three, proponents, Cal. Elec. Code § 9202(a); (2 ) the publication of the sig ned n otice o f intent in a newspaper o f g eneral circulation, id. § 9 205; a nd (3) the inclusion of the sig ned notice of intent on each section of the circulated initiative petition, id. §§ 9202(a), 9207. The plaintiffs in this case challeng e only the last of these requirements—the petition disclosure r equirement. Apply ing

ex a c ting scrutiny

, we c onclude that t h i s d i sclosure does not violate the F irst Amendment.C H U L A V I S T A C I T I Z E

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A.

As an initial matter, we reject the p laintiffs’ contention th a t strict scrutiny applies. “ [ D] isclosure requirements may burden the ability to speak, but they impose no ceili ng on campaig n-related activities and do not p revent any on e from speaking .” Citizens United

, 558 U.S. at 366 (internal quotation marks and citation omitted). F or this reason, the S u p r e m e C o u r t h a s co n s i s t e n t l y “ s u b j e c t e d t h e s e requirements to ‘ex acting scrutiny ,’ which requires a ‘substantial relation’ between the disclosure requirement a nd

a ‘sufficiently important’ g o ve r n m ental interest.” Id. at 366–67 (quoting Buckley v. V aleo

, 424 U.S. 1
, 64, 66 (1976) (per curiam)); see also R e e d

, 561 U .S. at 196–97; Family PAC v

. M

cKenna
, 685 F. 3 d 800, 803 ( 9th Cir. 2012). The public nature of an official p ropon e nt’s position a nd the leg islative character of an initiative petition i n f o r m this analy sis. I n other words, that ex a cting scrutiny applies “is not to say that the elector a l contex t is irrelevant to the n ature o f

our F irst Amendment review. W e a llow States sig nificant flex ibi l i ty in implementing their own voting sy stems,” including the initiative process. Reed , 561 U.S. at 195, 197.

As w e stated earlier, supra p. 23, strict scrutiny applies only where the challeng e d law severely burdens the ability to place an initiative on the b allot. See Angle

, 673 F .3d at 1132; P rete , 438 F .3d at 9 61–63. Contrary to the plaint i f fs ’ contention that strict scrutiny applie s h ere, disclosure of the identities o f the official proponen t s o f an initiative measure places only a minimal burden on F irst Amendment rig hts, if it i m p o s es a

ny burden at all. T he petition disclosure requirement simply provides for identification of the i n i tiative’s official proponents o n the face of the initiativ e petitions. An official proponent is prohibited from speakingC H U L A V I S T A C I T I Z E

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a n ony mously only within the four corners of the initiativ e petition —an o f

f i cial election document. See S.F. FortyNiners v. Nishioka

, 89 Cal. Rptr. 2d 388, 396 (Ct. App. 1 999) (“The initiative petition with its notice of inten tion is not a handbill or c ampaig n fly er—it is a n o f f icial election document

. . . . I t is t h e c o n s titutionally and leg islatively sanctioned method b y which an electio n i s o btained on a g iven initiative p roposal.”). Nothing limits the quantity o f speech that a p roponent or any one e lse may otherwise eng ag e in to promote the initiative, and an initiative’ s o f f icial proponent may s t i l l e ng ag e in anony mous speech about the proposed ballot measure or any other topic.

I n a sserting that strict scrutiny applies, the plaintiffs rely
upon c ases that prohibit the disclosure of the identity o f petition circulators —a role distinct from that of an initiative proponent or a petition sig natory

. Those cases found that the overall quantity of speech would be redu c e d by identify ing petition circulators who eng ag e in per s o n

- to-person voter persuasion because it would ex pose circulators “to the risk o f ‘heat of the moment’ harassment,” chilling sp eech. A CLF
, 525 U.S. at 199–200, 204 (invalidating requirements that circulators w ear name badg es and that name s and addresses of paid circulators be disc losed in monthly reports because they “discou r a ge [ ] participation in the petition circulation
process by forcing name identification withou t sufficient cause”); see also Meyer
, 486 U.S. at 423 (invalidating ban on paid circulators because it “has the inevitable effect o f reducing the total quantum of speech on a public i s s u e ”); (W IN) W ash. Initiatives Now v. Rippie
, 213 F .3d 1132, 1137 (9t h Cir. 2000) (invalidating disclosure of names a nd addresses of paid circulators b ecause “[ t] here can b e n o doubt that the compelled disclo s u re of this information chillsC H U L A V I S T A C I T I Z E

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political speech”). The disclosure requirement in the inst ant case, however, has no such chilling effect.

There is no indication that the p e t i t ion disclosure

r e quirement operates to reduce the total quantum of s p e e c h pertaining to b allot i n itiatives. More than six ty municipal initiatives qualified for the ballot during calenda r y ears 2009–2010
, t

he time period during which the plaintiffs soug ht
to qualify Proposition G for the ballot. I n fact, California is known f or having one o f the most robust initiative sy stems in the country

. Se e L

. Tobe L iebert, Researching California B allot M easures , 9 0 L aw L ibr. J

. 27, 28 (1998) (“Sin c e [ 1911]
, the people of California have used the ballot measure process more than any o ther state to c r eate the laws by which they are g overned.”). I t bears noting that the plaintiffs in this

case were not deterred from sponsoring Proposition G by the petition disclosure requirement; rather, t h e y simply would have preferred to list CVC a nd A B C’s n a m e s

. I ndeed, they have no objection to the two other required public d isclosures of their names.

F urther d isting uishing the cases on which the pl aintiffs rely

, an official proponent play s a far d ifferent role from that of a circulator and does not eng a g e in direct voter contact as part o f his official d

uties as a proponent. Should he choose to do so, there is no requirement that he reveal to the voter that he is in fact the official proponent named on the petitions; the proponent may choose to remain anony mous at the point o f
voter c ontact just like any ordinar y circulator. 1 2 T hus, the petition disclosure requirement in n o way “restrict[ s] one-on1 2 Of co urse, i f th e v o ter reco g n izes th e p ro p o n en t w h o is also actin g as

a circu lato r, th en th e p ro p o n e n t h a s n o claim th at th e p etitio n d i sclo su re h as d ep riv ed h im

o f an o n y m ity . He is alread y

k n o w n

.C H U L A V I S T A C I T I Z E

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one communication between petition c irculators and voters.” Angle , 673 F .3d at 1132.

I n upholding disclosure requirements for lobby ists, the Supreme Court ex plained that “ [ h] y pothetical borderline situations are conjure d u p in which

. . . persons choose to remain silent . . . . The haz ard of such restraint is too remote to require striking down a statute which o n i t s face is otherwise p lainly within the a rea of [ leg islative] power and is desig ned to safeg

uard a vital [g overnmental] interest.” United States v. Harriss
, 347 U.S. 612, 626 (1954). So too, here the hy pothetical possi b i l ity that someone somewhere mig ht be deterred from proposing an initiative by the requirement that the circulated petitions include his name—but not b y the requirements that his name be available to the public on file in the city clerk’s office or that he p ublish his n am e in a newspaper of g eneral c irculation—is too remote to warrant the application of strict scrutiny

. See Angle

, 673 F .3d at 1134 (holding that the plaintiffs’ “assertio n s a r e too vag ue, conclusory and speculative to create a triable issue t h at ” t h e challeng ed initiative reg ulation sev e rely burdens protected speech); Family PAC
, 685 F .3d at 807 (“[ A] lthough F amily PAC cites a survey conducted in six states ( n o t including W a shing ton) purporting to show that people may ‘think twice’ about c ontributing to ballot measure committees if their names and addres s es a re to be publicly d isclosed, F amily PAC has n ot p r e sented evidence sug g esting that W a s h i n g t o n ’ s d i s c l o s ure laws actually and meaning fully deter contributors.”). Given the absence of evidence that the petition disclosure requirem e nt h as an effect on the total quantum of speech p ertaining to ballot measures an d the Supreme Court’s repeated application of ex a cting scrutiny to disclosure requirements, we conclude t h a t strict scrutiny is inapplicable here.C H U L A V I S T A C I T I Z E

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B.

“‘To w ithstand [ ex acting ] scrutiny

, ‘the strengt h of the
g overnmental interest m u s t reflect the seriousness of the actual burden on F irst A m e n dment rig hts.’” Reed

, 561 U.S.
at 196 (quoting Davis v. Fed. El e c t ion Comm’n
, 554 U.S. 724, 744 (2008)). As e x plained supra , the actual burden imposed on F irst Amendment rig h ts by the petition disclosure requirement is quite small. Meanwhile, two important
g overnmental interests justify the r e q uirement: (1) an interest in the integ rity of the electoral process, a nd (2) an informational interest. A lthoug h we conclude that the f ormer interest is su ff

i c i e n t in and of itself to justify the petition d i sclosure r equirement, we also address the latter intere s t because it is inex tricably

linked to the former.

“The State’s interest in preservi n g t he integ r ity of the electoral process is undoubtedly important.” R eed

, 561 U.S. at 197; see also Timmons , 520 U.S. a t 364 (“States certainly have an interest in protecting the inte gr i t y , fairness, a nd efficiency o f their ballots and election processes as means for electing public officials.”). This “ interest in p r eserving electoral integ rity is n ot limited to comb a t i n g f r a ud.

. . . [ I t]

ex tends more g enerally to p romoting transparency a nd
accounta b ility in the electoral process

. . . .” Reed

, 561 U.S.
at 198. The requirement that an o fficial prop o n ent’s name appear o n the face of the petition circulated to vote r s serves the g overnment’s interest in electoral integ rity in three way s: F irst, because the o fficial p r oponent s a re charg ed with forthrig h t l y a n d f a i t h f u l l y implementing the initiative process, voters sig ning the petitions are entitled to kn o w their identities. Second, requiring a n official proponent to publicly associate his name with the measure he proposes helps ensure that only initiatives with at least a modicum of local supportC H U L A V I S T A C I T I Z E

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are presented to the voters. Third, requiring identification of the official proponent serves to deter misleading or spoiler initiatives.

A t the petition circulation stag e, an official propon e n t resembles a candidate for public office, and the pet i t i o n is effectively the ballot used by voters to imbue h im with special leg islative a

uthority

. As ex plained supra in Section I I .B
, under California and Chula Vista law, an o f f i c ial proponent play s a “distinct role ” i n the initiative process, “involving both authority and responsibilities that differ from other supporters of the [ proposed ballot] measure.” Perry
, 265 P.3d at 1017–18. There are a number of way s in which an ineffective o r dishonest p roponent could scuttle an initiative’s chances of b ecoming ( o r r e m a ining ) law: (1) a proponent could fail to oversee the c ollection of the requisite number o f sig natures; (2) he could decline to authoriz e the filing of the sig ned petitions; (3) h e c o u ld knowing ly make weak
arg uments in the ballot pamphlet distributed to voters by the elections official; and (4) he c o u ld fail to defend the initiative in court proceeding s. According ly

, when deciding whether to sig n a petition, the identity of the official proponent matters, and voters n eed to know whom they a re being a sked to vest with that a

uthority

. Certainly no o n e would arg ue that candidates for elective office have a r ig ht to be anony mous on the ballot. S

ee, e.g. , B u ckley

, 424 U.S. at 14–15 (“I n a republic where the p e o ple a re sovereign, the ability of the citiz enry to make informed choic e s a m ong candidates for office is essenti a l

. . . . ”); Griset v. F a ir Political Practices Comm’n
, 884 P.2d 1 16, 125 (Cal. 1 994) ( “Gr i s e t d o es not claim, nor could he, that a can d i d a t e for public office has aC H U L A V I S T A C I T I Z E

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leg itim a t e interest in e x pressing the candidate’s v iews
anony mously .”). 1 3 That principle is equally applicable here.

The petition disclosure r eq uirement also furthers the
g overnmental interest in elect o ral integ rity by ensuring that initiatives h ave a modicum of g enuine support in the relevant political community

. J ust as the state has an interest in “properly reserv [ i ng ] the g eneral e lection ballot for major strug g les, by

conditioning access to that ballot on a showing of a modicum of voter support,” Munro v. Socialist W orkers Party
, 479 U.S. 189, 196 (1986 ) (internal quotation marks and citation omitted), so too the State of C a l i f o r nia a nd the City of Chula Vista may require that at least one local person be willing to a ssociate his n ame with a proposed initiati v e before the initiative process is s et in motion. T rue, the
pe t ition sig nature r equirement also ensures that initiatives have local support, but as e x plained infra

, ex acting scrutiny does not require the state to employ solely the sing le best

means of f

urthering its interests. Mor eover, the petition sig nature requirement screens for initiati v e s w ith local support a t a later stag e in the process, w h e reas the petition disclosure requirement ensures a modicum o f l o cal support before the city e x pends resources in the p r e p aration of a b a llot title and summary o r in verify ing the validity o f

13 A d d itio n ally

, b ecau se an o f f icial pro p o n en t resem

b les a can d id ate f

or p u b lic o f f ice an d v o ters n eed to b e ab le to ev alu ate th e p ro p o n en t’ s

su itab ility f

or th e j o b

, w e rej ect th e p lain tif f s’ co n ten tio n th at th e S u

p rem e Co urt’ s ad m o n itio n i n McIn tyre v. Oh io Electio n s Co mmissio n th at

“ [a]n on y m i t y

. . . p ro v id es a w ay f o r a w riter w h o m ay b e perso n ally

un p o p u lar to en su

re th at read ers w ill n o t pr e j u d g e h er m essag e” is
ap p licab le h ere. 5 1 4 U .S. at 3 4 2; s ee a l so ACLF
, 5 2 5 U.S. at 2 0 3 (“ Disclo su

re of t h e n a m e s o f i n itiativ e sp o n so rs

. . . resp o n d s to [a]

su b stan tial state in terest.”).C H U L A V I S T A C I T I Z E

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sig natures and ensures that v oters are no t as k e d to sig n frivolous petitions.

F inally

, the requirement that at least o ne person be willing
to associate h is name with the proposed initiative helps deter spoiler leg islation. W ith out such a requirement, there is virtually no check on misleading or s p o iler initiatives (perhaps even measures known to t he proponent to be unconstitutional) that may stem from an ulterior motive, such

as a desire to subvert a leg itimate initiative by confusing the
voters or cluttering the field and drawing away voter support from an initiative that the official proponent is seeking to defeat. See I ssacharoff et al., supra , at 948 (noting that in o ne election y ea r the California ballot contained five different initiat i v e s o n the same subject); see also J aime F uller, W hy Are Ballot Measures So Darn Confusing? B e cause They are Supposed to Be , W ash. Post, Aug . 5, 2014. 1 4

The g overnmental interest in ensuring the integ r ity of the initiative process necessarily implicates the voter’s r i gh t to information. Voters are entitled to know who is asking them for distinct powers and duties in t h e initiative process. The plaintiffs’ arg ument that the go vernment has an interest in ensuring tha t voters have enoug h information to make an informed choice with respect to c andidate elections —but not with respect to ballot measures —is without merit. This court has uph e l d disclosures in the initiative contex t both before and after C i t i

z ens U nited

, relying solely on the state’s informational interest to sustain disclosures of an initiative’s financial backers:

14 A v ailab le at h ttp ://tin

y url.co m /w ap o f u ller.C H U L A V I S T A C I T I Z E

N S V

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“Knowing w hich interested pa r ties back o r oppose a ballot measure is critical, especially when one considers that ballot-measure lang uag e is ty

pically confusing

, a

nd the long

term policy r amifications o f the ballot

me a s u r e are often unknown. At least b y knowing who b a cks or opposes a g iven initiative, voters w i ll h av e a pretty g ood idea of who stands to benefit f

rom the leg islation.”

Family PAC
, 685 F .3d a t 808 (citation o mitted) (quoting Cal. Pro-Life Council, Inc. v. Getman
, 328 F .3d 108 8
, 1 1 0 6 (9th Cir. 2003)). That is, “[ v] oters act as leg islators in the b allotmeasure cont e x t

. . . . W e think Californians, as lawmakers, have an interest in knowing who is lobby ing for their vote, just as members of Cong ress may require lobby ists to disclose who is paying for the lobby ists’ s e r v i ces and h ow much.” Getman
, 328 F .3d at 1106 (citi n g Harriss
, 347 U.S.
at 625); s ee also Human Life of W ash. I n c

. v. Brumsickle

, 624 F .3d 990, 1 007 (9th Cir. 2010). The interest in disclosure is even strong er with respect to an o f f i c i al proponent than with respect to the financial backer s o f an initiative, a s the former is not just proposin g leg islation, like a lobby ist, but also asking the ele ctors for special responsibilities, like a candidate for public office. 1 5 The ability to decide w hether to

15 T h is in t erest is also m

u ch stro n g er th an th e in f

o rm atio n a l i n t erest in k n o w i n g th e id en tity o f o rd in ary p am p h leteers w

h ich th e co u

rts rej ected in McIn t yre , 5 1 4 U.S. 3 3 4
, an d ACLU v. Heller

, 3 7 8 F .3 d 9 7 9 (9 th Cir. 2 0 0 4 ). T h o se cases co n cern ed ex trem ely b ro ad stat u t e s req u irin g an y p erso n pu

b lish i n g m a t e r i al relatin g to an electio n o r b allo t m easu re to in clu d e h is n am e o n th e f

ace o f th e p u

b l icatio n

. S

ee McIn tyre , 5 1 4 U.S. at 3 3 8 n .3 ; Heller

, 3 7 8 F.3 d at 9 8 1

– 8 2

. T h e in stan t case co m m an ds a d if f eren t b alan ce b e tw een th e in terests o f th e sp eak er an d th e state: i t in v o lv es disclo su

re o f an o f

f icial p ro p on en t w

h o seek s to p erf

o rm o f f icialC H U L A V I S T A C I T I Z E

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afford an official proponent that a uthority is especially important when electors f ace multipl e i n itiatives with differing official pr o p o n ents on the same topic. 1 6 Thus, the
g overnment’s interests in electoral integ rity and in providing
voters with information are i n e x tricably linked in that knowledg e of the identity of a n initiative’s official proponent helps ensure that the measure will b e faithfully processed, has support in the political co mmunity

, and is a bona fide

measure n ot desig ned to be misl e ad i n g or to serve as a spoiler. Tog ethe r , and separately

, they constitute a “suffic i e n t ly important g overnmental interest” to which the petition disclosure requirement bears a “substantial relation.” Reed , 561 U.S. at 196.

C.

The plaintiffs’ arg ument for inva l i d ating the petition disclosure requirement relies heavily o n the assertion that, in lig ht of the two earlier disclosures of the proponent’ s n a m e, it is not “substantially r elated” to the g overnment’s interests in the integ r ity of the electoral p ro c e ss and in providing
voters with information nece s s a r y to make an informed

f un ctio n s, n o t a m e r e ad v o cate, an d it in v o lv es d isclo su re on th e f

ace of

a n in itiativ e p etitio n , an o f f icial electio n d o cu m en t, n o t o n th e f ace o f a

n o n

- g o v ern m en t al p u

blicatio n

.

1 6 S e e, e.g

. , Karen W eise, A Ca lifo rn i a Ta x Pla n Meets th e Mu n g ers , B lo o m b erg B u sin ess, Oct. 2 5
, 2 0 1 2, h t tp ://tin y url.co m /b lo o m b erg p ro p 3 8 (d escrib in g co m

p etin g in itiativ es th at w o u ld i n crea se t ax rev enu e f or sch o o ls); see a lso B ro o k s B ar n es, Ca lifo rn ia n s Fa ce Riva l Ba l lo t In itia tives T

h a t W o u ld Ra ise Ta xes a nd Aid S ch o ols

, N.Y. T im es, Sep t. 1 1
, 2 0 1 2
, at A 1 2 ; C h ris Meg erian

, Demo cra t s O u t t o D e

fea t Riva l Ta x In itia tive Pro

p

. 3 8
, L .A

. T im es, Oct. 6
, 2 0 1 2
, h ttp ://tin y url.co m / latim esp ro p 3 8

.C H U L A V I S T A C I T I Z E

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choice. See id

. They contend that the other uncontested d i s c losure requirements—the sig n ed notice of intent a v a i l a b l e upon request from the city cler k a n d t h e publication o f the sig ned notice of intent in a newspaper of g e n e ra l cir c u l ation—are sufficient to f ulfill the g overnment’s interests in d isclosure of the official proponent’s identity

. See I n thei r view, the petition disclosure r equirement impermissibly “compels personal name identificatio n at the precise moment w hen the [ speaker’s] interest in a nony mity is
gr e atest.” ACLF
, 525 U .S. at 199. That is, the petit i o n disclos ure r equirement “operates when reaction to the

. . . messag e is immediate a nd may be t h e m ost intense, emotional, and unreasoned

. . . , e x p o s [ ing ] the [ speaker] to the risk of ‘heat of the moment’ h arassment.” I d. (intern al quotation marks and citation omitted).

T r u e, “it is not just that a speaker’s identity is reveal ed

, b u t h ow and when that identity is revealed, that matters in a F irst Amendment analy sis of a state’s reg ulation of political speech.” ACLU v. Heller

, 378 F .3d 979, 991 (9th Cir. 2004). Here, h o wever, this principle supports disclo sure o f the identity of the official proponent o n t h e f a ce of the official initiative petitions. The “how and when” of this d isclosure is indeed substantially related to th e g overnment’s important interests in electoral integ rity and in providing the voters with official inf

ormation r eg a

rding the initiative. Moreover, the individual whose name is disclosed is not ex posed to a risk o f “heat of the moment” harassment.

F irst, it is obvious that the public’s interest in disclosure of the official proponent’s identity is g reatest at the moment electors are confronted w ith a petition to sig n. “People have jobs, families, and other d istractions,” making it u n likely that they w ill undertake independ e n t e fforts to determine theC H U L A V I S T A C I T I Z E

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i dentity of the measure’s official proponent. Getma n , 328 F

. 3d at 1106. I t is unreasonable to ex pect a voter who is

a s ked to sig n a petition on the spot to first g o to the clerk ’s office or to comb throug h old n ewspapers to locate the name of the initiative’s official proponent. The plaintiffs’ “analy sis ig nores the reality that cit i zens ty pically are asked to r eview and sig n initiative petitions o n the spot, at a str e e t c o r n er o r shopping mall, where there is g enerally no opportu n i ty for further study

. That is the moment w hen information about the petition, including the identities o f the people proposing it, is
most va l u ab l e

. . . .” Amicus B rief of L eagu e of California Cities 2.

Second, we r epeat: the petition disclosure r equirement does n ot actually require an official proponent to ide n tify himself in person at the point of c o n t a c t with voters—the supposedly hig h-risk moment. The official proponent is identified on the petition, w hich c irculators proffer to voters. I f the o fficial proponent chooses to also act as a circulator a nd thus eng ag es in direct voter contact, there is no r equirement that he tell voters who h e is—a voter would normally simply believe that h e was an ordinary

, anony mous c irculator. Otherwise, an official proponent does not confront the voter
at all, let alone a t t h e m o m e nt that mig ht, at least in theory

, ex p ose him to harassment.

Third, ex acting scrutiny is n ot a least-restrictive-means
test. See Brumsickle

, 624 F .3d a t 1 013 (“[ T] he Supreme Court has made clear that ex acting scruti n y , n o t strict scrutiny

, is applicable to

. . . d isclosure requirements.

. . . The
g overnment need not

. . . employ the least rest r i c t i v e means to satisfy its interes t in providing the electorate with information

. . . .” (citation omitted)). I n apply ing ex actin g scrutiny

, the Supreme Co u r t h a s r ejected the a rg ument thatC H U L A V I S T A C I T I Z E

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the possibility o f d i s closure at another time undermines the need for d isclosure at t h e moment when disclosure is most useful. Buckley

, 424 U .S. at 68 n.82 (“Post

- e l e c tion disclosure by successful candidates is sug g ested as a l e ss restrictive way of preventing corrupt pressures on officeholders. Delay ed disclosure of this sort would not serve the e qually impor tant informational function p lay ed b y pre-election reporting .”). The plaintiffs r ely on cases holding that the p roffered g overnmental interests in disclosing a circulator’s identity did n ot w arrant the burden of disclosure
at the point of contact with voters, but those cases ex pressly noted that the g overnment has a much strong er interest in disclosing the n ame of an official proponent than a c irculator,

s t ating that disclosures o f the former are valid. S ee ACL F
, 525 U.S. at 203 (“Throug h the disclosure requirements that remain in place,

. . . voters will b e told ‘who has proposed [ a measure]
, ’ and ‘who has provided f u n d s f or its circulation.’”); W IN , 213 F .3d at 1139 & n.6 (same).

F inally

, a c o m p arison with the Supreme Court’s recent decision in Reed confirms o ur c onclus i o n that the petition disclosure requirement passes co n s t i tutional muster. I n that
case, the Court held that t h e disclosure of 137,000 petition sig natories did not violate the F irst A mendment. 5 61 U.S. at 192, 202. I n the instant case, we a ffirm the disclosure of the

names o f at most three p e o ple who chose to become the official proponents of a ba l l o t m easure and whose names

wo u l d a l ready have been disclosed to the public o n two occasions shortly p rior to the challeng ed disclo s u r e

. Any contrary ruling w o u l d be in serious tension with Reed

, rendering it facially constitut i o n a l to disclose the n ames o f petition s i g natories y et facially unconstitutional to d isclose the names of the same petition’s official proponents.C H U L A V I S T A C I T I Z E

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D.

W e also reject the plaintiffs’ as-applied challeng e to t h e petition disclosure re q u i r e ment. A d isclosure “would be unconstitutional as applied to a n org aniz ation if there w ere a reasonable probability that the g roup’s members would face
t h r eats, harassment, or reprisals if their names wer e disclosed.” Citizens United

, 558 U.S. at 370; see also Reed

, 561 U.S. at 201. The p laintiffs fail to establish a n y such probabil i ty of a “ bona fide threat of h a rassment o r retaliation.” Family PAC
, 685 F .3d at 807. Aside from conclusory statements that they f e ar e d that they might be

s u b ject to harassment f

or proposing Proposition G
, the only “harassme n t” alleg ed was n eg ative campaig n literature i d e n t i f yi n g o n e p r o p o n e n t , B r e i t f e l d e r

— w h o w a s simultaneously campaig ning f o r city councilman—as “an anti-worker a ctivist and

. . . t h e s p o kesperson for the discriminatory Yes on G [initiative] campaig n.” Obviously this was itself protected political speech and does n ot amount to harassment simply

because B r eitfelder disliked it.

I t also bears noting

, althoug h we do not base our decision

on it in any respect, that t h e i n terest o f the proponents in
anony mity is especially wea k gi ven the facts of the instant

ca s e. B oth Kneebone and B reitfelder eng ag ed in public activities advocating passag e of Proposition G b ey ond the activities required o f them a s its official proponents, speaking
at televised pu b l i c meeting s and having their names used in campaig n materials provided to voters. M o reover, they

ex p lained in depositions that they did not really desire

ano n y m i ty , but rather “wanted voters to know that the ‘correct ’ sponsor of the ballot initiative was the Association of B uilders and Contractors, I nc. and the Chula V ista Citiz ens for J obs and F air Competition.”C H U L A V I S T A C I T I Z E

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F urther underscoring that this case is not really about

a n o ny mity

, the plaintiffs do n ot challeng e the requireme n t that their identities be disclosed in the no tice of intent to circulate an initiative petition f iled with the c ity clerk; nor do they challeng e the requirement that they publish this n o tice o f intent identify ing them in a newspaper of g eneral circulation. Rather, they wish to remain anony mous only at a par t i c ular
moment in time—indeed, at the moment when knowledg e o f their identity is most useful to vote rs

. T he plaintiffs have failed to make out a valid as-applied claim.

* * *

The c hall e n ge d disclosure poses a t the most a minimal burden on F irst Amendment rig hts. I t s i mply requires that potential sig natories be allowed to d e termine the name of an official proponent when they are deciding wh e t h e r to g rant him an o fficial role in the leg islative p rocess. A s such, a proponent is akin to a candidate for publi c o f f i c e and, according ly has no r ig ht to anony mity on the face o f the initiative petition. Disclosure o f his identity on the petition is substantially r elated to the g overnment’s important interests in the integ r ity of the electoral p r o c ess and in providing voters with official information reg arding the initiative.

IV.

W e hold th a t t h e requirement that the official proponent of an initiative be an elector, thereby ex c luding corporations and associations from holding that position, d oes not violate the plaintiffs’ F irst Amendment rig hts to freedom of speech and a s sociation. W e also hold that the requirement that the

name of the official proponent of an initiative be disclosed onC H U L A V I S T A C I T I Z E

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the face of the initiative petitions w ithstands ex acting scrutiny under the F irst Amendment.

AF F IRMED.