FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROQUE DE LA FUENTE, AKA 

Rocky,

Plaintiff-Appellant,

v.

ALEX PADILLA, California 

Secretary of State; STATE OF 

CALIFORNIA,

Defendants-Appellees.

No. 17-56668 

D.C. No.

2:16-cv-03242-MWFGJS 

OPINION

Appeal from the United States District Court

for the Central District of California

Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted March 12, 2019

San Francisco, California

Filed July 19, 2019

Before: J. Clifford Wallace, A. Wallace Tashima, and 

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown
2 DE LA FUENTE V. PADILLA

SUMMARY*

Civil Rights

The panel affirmed the district court’s dismissal of an 

action brought by independent presidential candidate Roque 

De La Fuente challenging two California ballot access laws, 

Cal. Elec. Code §§ 8400, 8403, which require independent 

candidates to collect signatures from one percent of 

California’s registered voters—over 170,000 signatures—to 

appear on a statewide ballot.

The panel first held that De La Fuente had standing 

because he suffered a concrete injury that was not merely 

speculative. The panel noted that De La Fuente’s declaration 

confirmed that he is running for President of the United 

States in 2020.

Applying the balancing framework in Anderson v. 

Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 

504 U.S. 428 (1992), the panel held that California’s overall 

scheme does not significantly impair ballot access. The 

panel stated that Sections 8400 and 8403 were generally 

applicable, even-handed, politically neutral, and aimed at 

protecting the reliability and integrity of the election process. 

The panel concluded that the ballot access laws reasonably 

related to California’s important regulatory interests in 

managing its democratic process and were proportionate to 

California’s large voter population.

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
DE LA FUENTE V. PADILLA 3

COUNSEL

Paul A. Rossi (argued), Mountville, Pennsylvania, for 

Plaintiff-Appellant.

Jonathan M. Eisenberg (argued), Deputy Attorney General; 

Xavier Becerra, Attorney General of California; Thomas S. 

Patterson, Senior Assistant Attorney General; Stepan A. 

Haytayan, Supervising Deputy Attorney General; Office of 

the California Attorney General, Los Angeles, California; 

for Defendants-Appellees.

OPINION

McKEOWN, Circuit Judge

We examine yet another state’s regulation of ballot 

access as we consider a challenge to ballot qualification laws 

in California, the country’s most populous state. See, e.g., 

Ariz. Libertarian Party v. Hobbs, 925 F.3d 1085 (9th Cir. 

2019) (addressing Arizona ballot regulations). Together, 

two California ballot access laws require independent 

candidates to collect signatures from one percent of 

California’s registered voters—over 170,000 signatures—to 

appear on a statewide ballot. Independent presidential 

candidate Roque De La Fuente challenges these 

requirements as unconstitutional. 

After losing the 2016 Democratic presidential primary in 

California, De La Fuente wanted to continue his candidacy 

in the general election as an independent candidate. But he 

faced what he argues is a “cost prohibitive” obstacle: 

sections 8400 and 8403 of California’s ballot access laws 

(collectively, “Ballot Access Laws”). Cal. Elec. Code 

§§ 8400, 8403. Under section 8400, independent candidates
4 DE LA FUENTE V. PADILLA

running for statewide office must collect signatures from one 

percent of all registered voters. Id. § 8400 (requiring 

independent candidates to collect signatures from “voters of 

the state equal to not less in number than 1 percent of the 

entire number of registered voters of the state at the time of 

the close of registration prior to the preceding general 

election”). Section 8403 requires independent candidates to 

collect the signatures at least 88, but no more than 193, days 

before the election. Id. § 8403(a). So, in 2016, De La Fuente 

had to collect 178,039 valid signatures in 105 days to appear 

on the general election ballot. 

Assuming he needed paid canvassers and twice as many 

signatures to ensure a comfortable margin of error, De La 

Fuente estimated the cost of ballot access to be three to four 

million dollars. He argues that such an expense makes 

running statewide “cost prohibitive,” unconstitutionally

burdening rights guaranteed by the First and Fourteenth 

Amendments. De La Fuente points out that the next highest 

state signature requirement is about 60,000 fewer (in 

Florida) and that no independent candidate has appeared on 

California’s general election ballot since 1992. De La 

Fuente self-funds his campaigns, and has officially declared 

his 2020 presidential run. 

California’s Secretary of State (the “Secretary”)

contends that the Ballot Access Laws are reasonably related 

to California’s regulatory interests—streamlining the ballot, 

avoiding ballot overcrowding, and reducing voter confusion. 

Following a hearing, the district court granted the 

Secretary’s motion for summary judgment and dismissed the 

case. 
DE LA FUENTE V. PADILLA 5

ANALYSIS

We review de novo De La Fuente’s constitutional 

challenge. Nader v. Cronin, 620 F.3d 1214, 1216 (9th Cir. 

2010). But first we address De La Fuente’s standing. To 

have Article III standing, a party must suffer an “injury in 

fact” that is both “concrete and particularized” and “actual 

or imminent, not conjectural or hypothetical.” Friends of the 

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 

167, 180–81 (2000) (citing Lujan v. Defenders of 

Wildlife, 504 U.S. 555, 560–61 (1992)). The “injury in fact” 

inquiry focuses on “whether the party invoking jurisdiction 

had the requisite stake in the outcome,” although the injury 

“need not be actualized.” Davis v. Fed. Election Comm’n, 

554 U.S. 724, 734 (2008). 

De La Fuente has suffered a concrete injury that is not 

merely speculative. De La Fuente’s declaration confirms 

that he is running for President of the United States in 2020. 

Whether he will run as an independent or in a major political 

party’s primary, as the Secretary argues, does not affect his 

injury. Either path is all but certain to lead to De La Fuente 

running as an independent in the general election. As many 

well-known and not so well-known candidates know, 

running in a party’s presidential primary is no guarantee of 

running as that party’s general election candidate. De La 

Fuente’s experience in 2016 reflects this reality. After De 

La Fuente ran (and lost) in the Democratic primary election, 

the only way he could appear on California’s presidential 

general election ballot was to run as an independent. It is 

likely that if De La Fuente runs in the 2020 Democratic 

primary, history will repeat itself. Whichever path De La 

Fuente chooses, he will suffer an “injury in fact.” He 

therefore has standing. Cf. Ariz. Green Party v. Reagan, 838 

F.3d 983, 987–88 (9th Cir. 2016).
6 DE LA FUENTE V. PADILLA

We therefore proceed to the merits of De La Fuente’s 

challenge. To trigger strict scrutiny of the Ballot Access 

Laws, De La Fuente must first show that they “seriously 

restrict the availability of political opportunity.” Ariz. Green 

Party, 838 F.3d at 989 (citing Libertarian Party of Wash. v. 

Munro, 31 F.3d 759, 762 (9th Cir. 1994)). This is because 

the “evidence that the burden is severe, de minimis, or 

something in between, sets the stage for the analysis by 

determining how compelling the state’s interest must be to 

justify the law in question.” Id. at 985. 

We evaluate challenges to ballot access laws under the 

First and Fourteenth Amendments using the balancing 

framework in Anderson v. Celebrezze, 460 U.S. 780 (1983),

and Burdick v. Takushi, 504 U.S. 428 (1992). See Ariz. 

Libertarian Party, 925 F.3d at 1090. The balancing 

framework is a “‘sliding scale’—the more severe the burden 

imposed, the more exacting our scrutiny; the less severe, the 

more relaxed our scrutiny.” Id. (citing Ariz. Green Party, 

838 F.3d at 988). Under this “flexible standard,”

[a] court considering a challenge to a state 

election law must weigh the character and 

magnitude of the asserted injury to the rights 

protected by the First and Fourteenth 

Amendments that the plaintiff seeks to 

vindicate against the precise interests put 

forward by the State as justifications for the 

burden imposed by its rule, taking into 

consideration the extent to which those 

interests make it necessary to burden the 

plaintiff’s rights.

Id. (internal citations and quotation marks omitted). In short, 

a state must narrowly tailor its law to advance “compelling” 

interests if the burden on First Amendment rights is severe, 
DE LA FUENTE V. PADILLA 7

Norman v. Reed, 502 U.S. 279, 289 (1992), but, if the burden 

is minimal, the law only needs to reasonably advance 

“important” interests, Timmons v. Twin Cities Area New 

Party, 520 U.S. 351, 358 (1997). 

Although De La Fuente argues that his individual burden 

is severe because he might not appear on the ballot, 

California’s overall scheme does not significantly impair 

ballot access. See Ariz. Libertarian Party v. Reagan, 798 

F.3d 723, 730 (9th Cir. 2015) (“[Courts] must examine the 

entire scheme regulating ballot access.” (quoting Cronin, 

620 F.3d at 1217)). Non-major party candidates can access 

California’s ballot in three ways: as minor party candidates, 

write-in candidates, or independent candidates. Although 

the last independent candidate appeared on California’s 

general election ballot in 1992, minor party candidates have 

consistently appeared alongside major party candidates. De 

La Fuente’s own expert suggested that “there’s almost 

nobody left [for independent candidates] to petition” 

because voters have their choice among major and minor 

party candidates. Not only do these choices reduce a voter’s 

need for independent candidates, they cut against De La 

Fuente’s assertion that the Ballot Access Laws “seriously 

restrict the availability of political opportunity.” Nader, 620 

F.3d at 1217–18 (quoting Munro, 31 F.3d at 761–62). The 

inclusion of minor party candidates also distinguishes this 

case from others where courts have applied strict scrutiny. 

See, e.g., Green Party of Georgia v. Kemp, 171 F. Supp. 3d 

1340, 1363 (N.D. Ga. 2016) (applying strict scrutiny when 

“the restrictions at issue in this case serve to prevent minor 

parties from engaging in the fundamental political activity of 

placing their candidate on the general election ballot”); cf. 

Williams v. Rhodes, 393 U.S. 23, 31 (1968) (“[T]he right to 

vote is heavily burdened if that vote may be cast only for one 
8 DE LA FUENTE V. PADILLA

of two parties at a time when other parties are clamoring for 

a place on the ballot.”).

A plain reading of both the statutes and the record 

supports the conclusion that sections 8400 and 8403 are 

“‘not severe’ restrictions.” Dudum v. Arntz, 640 F.3d 1098, 

1106 (9th Cir. 2011) (quoting Rubin v. City of Santa 

Monica, 308 F.3d 1008, 1014 (9th Cir. 2002)). Sections 

8400 and 8403 are “generally applicable, even-handed, 

politically neutral,” and aimed at protecting the reliability 

and integrity of the election process. Id.; see Cal. Elec. Code 

§§ 8400, 8403. Because the Ballot Access Laws do not 

severely burden any constitutional rights, we analyze these 

laws under a less exacting standard. See Dudum, 640 F.3d 

at 1106 (“Where non-severe, lesser burdens on voting are at 

stake, we apply less exacting review, and a State’s important 

regulatory interests will usually be enough to justify 

reasonable, nondiscriminatory restrictions.” (internal 

alterations and quotations marks omitted)). 

The Supreme Court has long recognized the “important 

state interest in requiring some preliminary showing of a 

significant modicum of support” and “in avoiding confusion, 

deception, and even frustration of the democratic process at 

the general election.” Jenness v. Fortson, 403 U.S. 431, 442 

(1971). California’s ballot regulations seek to protect its 

“important regulatory interests,” Burdick, 504 U.S. at 434,

in streamlining the ballot, avoiding ballot overcrowding, and 

reducing voter confusion. California is not required “to 

make a particularized showing of the existence of voter 

confusion, ballot overcrowding, or the presence of frivolous 

candidacies prior to the imposition of reasonable restrictions 

on ballot access.” Munro v. Socialist Workers Party, 479 

U.S. 189, 194–95 (1986)).
DE LA FUENTE V. PADILLA 9

The right to access the ballot is important to voters, 

candidates, and political parties alike, but it must be 

balanced against California’s need to manage its democratic 

process. See Burdick, 504 U.S. at 441. Although the number 

of signatures the Ballot Access Laws require may appear 

high, it accounts for only one percent of California’s voter 

pool, the largest in the country. This low percentage 

threshold prevents candidates without established support 

from appearing on the ballot—satisfying California’s 

interests—without “seriously restrict[ing] the availability of 

political opportunity.” Ariz. Green Party, 838 F.3d at 989 

(quoting Munro, 31 F.3d at 762). These laws are also 

consistent with other ballot access schemes deemed 

constitutional. See, e.g., Storer v. Brown, 415 U.S 724, 740 

(1974) (“Standing alone, gathering 325,000 signatures in 24 

days would not appear to be an impossible burden [and] . . . 

would not appear to require an impractical undertaking for 

one who desires to be a candidate for President.”); Jenness, 

403 U.S. at 442 (upholding law requiring independent 

candidates to gather signatures equivalent to five percent of 

the number of registered voters in the previous presidential 

election); Nader, 620 F.3d at 1217 (concluding the burden 

of collecting signatures equivalent to one percent of the 

state’s voters in the previous presidential election was low).

The Ballot Access Laws reasonably relate to California’s 

important regulatory interests in managing its democratic 

process and are proportionate to California’s large voter 

population. See Burdick, 504 U.S. at 441. California has no 

constitutional obligation “to ‘handicap’ an unpopular 

candidate to increase the likelihood that the candidate will 

gain access to the general election ballot.” See Munro, 479 
10 DE LA FUENTE V. PADILLA

U.S. at 198. We affirm the district court’s dismissal of the 

case. 

AFFIRMED.