Initiative & Referendum Institute v. Walker

F I L E D
United States Court of Appeals
Tenth Circuit
PU BL ISH
May 17, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

IN ITIA TIV E A N D REFER EN DUM
IN STITUTE; H U MA N E SO CIETY OF
TH E U NITED STA TES; FU N D FOR
TH E A NIM ALS; DAVID M . JONES,
Utah State House Representative;
BA RT G RA NT; LYN ETTE E.
B RO O K S; C RA IG S. A X FO RD;
CONNIE BULLIS; DICK CARTER;
DREW CH AM BERLAIN; BETTY F.
C HRISTEN SEN ; H IG H U IN TAS
PRESERV ATION CO UN CIL;
H U MA N E SO CIETY O F U TA H;
SEAN KEA RN EY; CH AR LES
CHRISTIAN LARSEN; NAN CY
ELLEN WH ITEH EA D LO RD ;
M ICHA EL T. R ID G WA Y ; U TAH
EN VIRO NM EN TA L CONGRESS;
R ICHA RD V A N WA G EN EN ;
Nos. 02-4105, 02-4123
RICHARD W ARNICK; STACY
W ILLIAM S,

Plaintiffs - Appellants/Cross-
Appellees,

v.

OLENE S. W ALKER, Lieutenant
Governor of Utah; M ARK
SH URTLEFF, Attorney General of
Utah,

Defendants - Appellees/Cross-
Appellants,

and
 U TA H WILD LIFE FED ER ATION;
UTA H FO UN DA TION FOR N OR TH
AM ERICA N W ILD SHEEP;
SPO RTSM EN FO R FISH A N D
W ILD LIFE/SPO RTSM EN FO R
H A BITA T; U TA H FA RM B UR EAU
FEDERATION; UTAH BOW M AN'S
A SSO CIA TIO N ; R EPR ESEN TATIVE
M IK E STY LER ; PR OFESSO R HAL
L. BLACK; PROFESSOR TERRY
M ESSM ER; M S. CINDY LABRUM ;
M R. KEN JONES; M R. KARL
M ALONE; DR. CHARLES C.
ED W ARD S,

Amici Curiae.

APPEAL FROM THE UN ITED STATES DISTRICT CO URT
FOR T HE DISTRICT OF UTAH
(D.C. No. 2:00-CV-00836)

Lisa W atts Baskin (Robert R. W allace with her on the briefs), of Plant, W allace,
Christensen & Kanell, Salt Lake City, Utah, for Plaintiffs-Appellants/Cross-
Appellees.

Thom D. Roberts, Assistant Attorney General (M ark L. Shurtleff, Attorney
General, with him on the briefs), Salt Lake City, Utah, for Defendants-
Appellees/Cross-Appellants.

Richard G. W ilkins, J. Reuben Clark Law School, Brigham Young University,
Provo, Utah, John D. Ray, Jennifer E. Decker, and M atthew B. Hutchinson of
Fabian & Clendenin, Salt Lake City, Utah, filed an amici curiae brief for the Utah
W ildlife Federation, et al., in Support of D efendants-Appellees/Cross-Appellants.

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Before TA CH A, Chief Circuit Judge, EBEL, KELLY, HENRY, BR ISC OE,
L UC ER O, M U RPH Y, HA RTZ, O’BRIEN, M cCO NNELL, and
T YM K O VIC H, Circuit Judges.

M cCO NNELL, Circuit Judge.

The Utah Constitution allows voters to initiate legislation “to be submitted

to the people for adoption upon a majority vote of those voting on the

legislation.” Utah Const. art. VI, § 1(2)(a)(i)(A). Initiatives related to wildlife

management, however, are subject to a special standard: “legislation initiated to

allow, limit, or prohibit the taking of wildlife or the season for or method of

taking wildlife shall be adopted upon approval of two-thirds of those voting.” Id.

art. VI, § 1(2)(a)(ii). The Plaintiffs, including six wildlife and animal advocacy

groups, several state legislators and politicians, and more than a dozen

individuals, bring a facial First Amendment challenge to this supermajority

requirement. Their principal claim is that by raising the bar for wildlife

initiatives, the provision imposes a “chilling effect” on the exercise of their First

Amendment rights, and does so in a manner that is both impermissibly content-

discriminatory and overbroad. The district court held that the Plaintiffs had

standing to raise their challenge, but dismissed their First Amendment claim on

the merits. W hile this case w as on appeal, the Plaintiffs’ position gained support

from another Circuit. In Wirzburger v. Galvin, 412 F.3d 271, 279 (1st Cir. 2005),

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the Court of Appeals for the First Circuit held that a state constitutional provision

prohibiting ballot initiatives on a particular subject constitutes a restriction on

speech subject to intermediate scrutiny.

W e affirm the district court in both respects. W e hold that some of the

Plaintiffs have standing to challenge Utah’s supermajority requirement for

wildlife initiatives and that the case is ripe and otherw ise justiciable.

Respectfully disagreeing with the First Circuit, we hold that a constitutional

provision imposing a supermajority requirement for enactment of initiatives on

specific topics does not implicate the freedom of speech.

I. Facts and Procedural H istory

Since 1900, the Utah Constitution has vested the legislative power of the

state not only in the state Senate and House of Representatives but in “the people

of the State of Utah.” U tah Const. art. VI, § 1(1)(b). The people exercise their

legislative power as provided in Article VI, Section 1(2), which grants voters the

authority to initiate legislation to be voted up or down by a majority of voters in a

general election. See id. art. 6, § 1(2)(a)(i)(A). Utah was the second state in the

Union to extend the power to initiate legislation to citizens. See Thomas E.

Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 51

(1989). From 1960 to 1998, voters initiated fifteen ballot measures. Two of

these won approval at the polls. See State of Utah Elections Office, Results of

Utah Initiatives and Referendums, 1960-2000,

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at http://elections.utah.gov/ResultsofUtahInitiativesandReferendums.htm.

None of those initiatives dealt with wildlife management issues, but

wildlife and animal rights advocates saw an opportunity to succeed at the ballot

box where they had been stymied in the state legislature. In 1991, a group of

citizens comm issioned a public-opinion survey regarding cougar and bear hunting

methods to determine whether a ballot initiative was likely to succeed.

M eanwhile, they used the threat of a statewide wildlife initiative as a bargaining

tool in negotiations with state officials. In several other W estern states, national

groups sponsored high-profile animal protection and wildlife initiatives, and

believed that they could mount a similar campaign in Utah. According to

documents submitted by the Plaintiffs, by 1996 a group called the Cougar

Coalition had announced its mission to “advance the cause of predator protection

. . . by taking our cause directly to the citizens of Utah by means of an initiative.”

App. 62. In January 1997, the Humane Society of the United States commenced

planning in Salt Lake City for a wildlife initiative in Utah.

In February 1998, two-thirds of the members of both houses of the Utah

legislature passed resolutions endorsing an amendment to Article VI, Section 1 of

the state constitution:

[L]egislation initiated to allow, limit, or prohibit the taking of wildlife or

the season for or method of taking of wildlife shall be adopted upon

approval of two-thirds of those voting.

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Utah Const. art. VI, § 1(2)(a)(ii). The proposed amendment, dubbed “Proposition

5,” w as slated for a popular vote during the November 1998 general election. At

a meeting of the Utah Constitutional Revision Commission in August 1998,

several proponents explained the reasons for their support of Proposition 5. State

Representative M ichael Styler praised the performance of existing regional

wildlife management councils and “expressed concern that certain groups from

outside the state want to manage Utah wildlife practices through initiative

petition.” App. 55. Don Peay, representing a group called Utahns for W ildlife,

put it more bluntly, calling Proposition 5 “an effort to preserve Utah’s wildlife

practices from East Coast Special Interest groups” who planned to press “the

W ashington DC agenda” through the initiative process. Id.

In the 1998 general election, 56% of voters approved Proposition 5, and the

amendment went into effect on January 1, 1999. Since then, no group or

individual has pursued a wildlife initiative in Utah.

The Plaintiffs filed this lawsuit on October 23, 2000, alleging that the

supermajority requirement created by Proposition 5 impermissibly burdens the

exercise of their First Amendment rights, violates the First Amendment on

overbreadth grounds, and violates the Equal Protection Clause of the Fourteenth

Amendment. They also alleged various violations of the Utah Constitution. The

Defendants countered that the Plaintiffs lacked standing to bring their facial

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challenge, and that in any case the Plaintiffs’ First Amendment claims failed as a

m atter of law .

The district court held that the Plaintiffs “clearly have standing to bring

this suit.” Initiative & Referendum Inst. v. Walker, 161 F. Supp. 2d 1307, 1309

(D . Utah 2001). It concluded that the Plaintiffs had alleged an “injury in fact,”

noting that although the Plaintiffs had not participated in a ballot initiative drive

since the passage of Proposition 5, they had “demonstrated through a number of

affidavits that they have used the initiative process often in the past and are likely

to in the future.” Id. at 1310. A causal connection existed between the claimed

injury and the challenged conduct, according to the district court, because “[i]f

the Amendment is unconstitutional, then Plaintiffs’ injury is directly traceable to

the existence of the Amendment.” Id. The district court also found the Plaintiffs’

challenge ripe, holding that under the “relaxed” standards for ripeness in facial

challenges under the First Amendment, they had alleged a present injury: a

continuing chilling effect on their First A mendment rights, and “higher costs in

getting an initiative passed” in the future. Id. at 1311–12. It also rejected the

Defendants’ argument that the case was not ripe for review because the

amendment did not in fact have a chilling effect on the Plaintiffs’ speech, noting

that “it would be inappropriate to dismiss the case on ripeness grounds because

one might find that the Free Speech claim is not meritorious.” Id.

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 On the merits, however, the district court granted the Defendants’ motion to

dismiss the Plaintiffs’ facial First Amendment claims, concluding that the

supermajority requirement did not amount to a “restriction” on speech at all. The

rule “makes it more difficult to pass a wildlife initiative,” the court noted, “but it

does not prohibit people from talking about such issues at all.” Id. at 1313. The

district court disagreed with the Plaintiffs’ characterization of the amendment as

view point discrimination, finding that “no view point or content is subject to

discrimination or occlusion from public discussion,” in part because “‘people

interested in wildlife’ or environmentalists are not homogeneous groups and being

a member of one of these groups does not suggest that one would have a

discre[te] ‘viewpoint.’” Id. at 1314.

The Plaintiffs agreed to a dismissal without prejudice of their state law and

equal protection claims, and on appeal press only their First Amendment

challenge. The Defendants cross-appeal the district court’s denial of their motion

to dismiss on standing and ripeness grounds. A three-judge panel of this Court

heard oral argument on September 15, 2003. Because of the importance of the

standing and First Amendment issues at stake, however, we set the case for initial

en banc review and reheard the case en banc on November 15, 2005.

II. Standing

Although this Court finds itself more closely divided on the question of

standing than on the underlying First Amendment claim, we cannot reach the

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merits based on “hypothetical standing,” any more than we can exercise

hypothetical subject matter jurisdiction. See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94 (1998) (rejecting the doctrine of “hypothetical

jurisdiction,” once embraced by some courts of appeals as a way to avoid difficult

jurisdictional questions when the merits could be more easily resolved). W e

therefore begin by determining whether the Plaintiffs have standing to bring their

First Amendment claim.

A.

The role of federal courts in our democratic society is “properly limited.”

Allen v. Wright, 468 U.S. 737, 750 (1984); see also Valley Forge Christian Coll.

v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 476 (1982).

Rather than being constituted as free-wheeling enforcers of the Constitution and

laws, the federal courts were limited to what James M adison called “cases of a

Judiciary Nature,” 2 The Records of the Federal Convention of 1787, at 430 (M ax

Farrand ed., 1911), and Article III of the Constitution calls “cases” and

“controversies.” U.S. Const. art. III, § 2. Concern for this limited judicial role is

reflected in the principle that, for a federal court to exercise jurisdiction under

Article III, plaintiffs must allege (and ultimately prove) that they have suffered an

“injury in fact,” that the injury is fairly traceable to the challenged action of the

Defendants, and that it is redressable by a favorable decision. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560–61 (1992). Particularly important, for present

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purposes, is the requirement of an “injury in fact,” which the Supreme Court has

defined as “an invasion of a legally protected interest which is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at

560 (internal quotation marks, citations, and footnote omitted). “Allegations of

possible future injury” do not satisfy the injury in fact requirement, Whitmore v.

Arkansas, 495 U.S. 149, 158 (1990), though a plaintiff need not “expose himself

to actual arrest or prosecution to be entitled to challenge a statute that he claims

deters the exercise of his constitutional rights,” Steffel v. Thom pson, 415 U.S.

452, 459 (1974). For purposes of the standing inquiry, the question is not

whether the alleged injury rises to the level of a constitutional violation. That is

the issue on the merits. For standing purposes, we ask only if there was an injury

in fact, caused by the challenged action and redressable in court.

The injury alleged by the Plaintiffs in this case is a chilling effect on their

speech in support of wildlife initiatives in Utah. This Court has recognized that a

chilling effect on the exercise of a plaintiff’s First Amendment rights may amount

to a judicially cognizable injury in fact, as long as it “arise[s] from an objectively

justified fear of real consequences.” D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir.

2004); see Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003); Wilson v.

Stocker, 819 F.2d 943, 946 (10th Cir. 1987). Although mere “[a]llegations of a

subjective ‘chill’ are not an adequate substitute for a claim of specific present

objective harm or a threat of specific future harm,” Laird v. Tatum, 408 U.S. 1,

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13–14 (1972), plaintiffs may bring suits for prospective relief in First Amendment

cases where they can demonstrate “a credible threat of prosecution or other

consequences flowing from the statute’s enforcement.” D.L.S., 374 F.3d at 975.

Line-draw ing in standing cases is rarely easy, but where the plaintiff’s

alleged injury is a chilling effect on the freedom of speech, the standing inquiry is

particularly delicate. By definition, the injury is inchoate: because speech is

chilled, it has not yet occurred and might never occur, yet the government may

have taken no formal enforcement action. W e cannot ignore such harms just

because there has been no need for the iron fist to slip its velvet glove. On the

other hand, in speech cases as in others, courts must not intervene in the

processes of government in the absence of a sufficiently “concrete and

particularized” injury. Lujan, 504 U.S. at 560; see also Utah Animal Rights Coal.

v. Salt Lake City Corp., 371 F.3d 1248, 1255 (10th Cir. 2004); Ward, 321 F.3d at

1266–67.

M ost cases involving standing based on a First Amendment chilling effect

arise in the context of criminal laws prohibiting various forms of speech or

expressive conduct. See, e.g., Babbit v. United Farm Workers Nat’l Union, 442

U.S. 289, 298 (1979); Winsness v. Yocom, 433 F.3d 727, 736 (10th Cir. 2006).

M ost often, those cases involve a past arrest or other enforcement action, a

declaration by the plaintiff of an intention to engage in the prohibited conduct

again in the future, and evidence of a “credible threat” of prosecution if they do.

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See, e.g., Wilson, 819 F.2d at 746 (upholding standing and finding a credible

threat of future prosecution where the plaintiff had been arrested in the past for

violating the challenged statute and “presented sw orn testimony that he wishes to

continue the conduct which precipitated his arrest, but has not done so for fear of

rearrest”).

This case does not involve a criminal statute or the threat of prosecution,

but rather a provision of the state constitution determining the number of votes

required for a citizen initiative to become law. The question is whether the

Plaintiffs face a “credible threat” of “real consequences” from enforcement of the

supermajority requirement. D.L.S., 374 F.3d at 975. The Defendants

acknowledge that a plaintiff need not actually risk arrest, prosecution, or other

adverse consequences to obtain standing. They insist, however, that Article III

requires that a plaintiff have specific plans to take actions subject to the statute.

There must be a “currently pending” initiative proposal involving wildlife

management issues, or at least the Plaintiffs must have a “specific or immediate

intent to bring any such initiative.” Br. of Appellees 25. If not, “it is too

speculative and conjectural to evaluate the fitness of the claims for judicial

resolution.” Id. at 26.

That cannot be right. A plaintiff who alleges a chilling effect asserts that

the very existence of some statute discourages, or even prevents, the exercise of

his First Amendment rights. Such a plaintiff by definition does not— indeed,

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should not— have a present intention to engage in that speech at a specific time in

the future. It makes no sense to require plaintiffs simultaneously to say “this

statute presently chills me from engaging in XYZ speech,” and “I have specific

plans to engage in XYZ speech next Tuesday.” Yet plaintiffs must do more than

merely allege a “subjective ‘chill.’” Laird, 408 U.S. at 13–14. If all it took to

summon the jurisdiction of the federal courts were a bare assertion that, as a

result of government action, one is discouraged from speaking, there would be

little left of the Article III threshold in First Amendment cases.

W e hold that plaintiffs in a suit for prospective relief based on a “chilling

effect” on speech can satisfy the requirement that their claim of injury be

“concrete and particularized” by (1) evidence that in the past they have engaged

in the type of speech affected by the challenged government action; (2) affidavits

or testimony stating a present desire, though no specific plans, to engage in such

speech; and (3) a plausible claim that they presently have no intention to do so

because of a credible threat that the statute will be enforced. Though evidence of

past activities obviously cannot be an indispensable element— people have a right

to speak for the first time— such evidence lends concreteness and specificity to

the plaintiffs’ claims, and avoids the danger that Article III requirements be

reduced to the formality of mouthing the right words. If the plaintiffs satisfy

these three criteria, it is not necessary to show that they have specific plans or

intentions to engage in the type of speech affected by the challenged government

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action. See U nited Farm Workers, 442 U.S. at 303 (“[I]t is clear that appellees

desire to engage at least in consumer publicity campaigns prohibited by the Act;

accordingly, we think their challenge to the precision of the criminal penalty

provision, itself, was properly entertained by the D istrict Court . . . .”); Ward, 321

F.3d at 1267 (noting that a plaintiff suffers injury in fact when she is “‘chilled

from exercising her right to free expression or forgoes expression in order to

avoid enforcement consequences’” (quoting M angual v. Rotger-Sabat, 317 F.3d

45, 57 (1st Cir. 2003))). W e believe that satisfaction of these three criteria

provides roughly the same level of concreteness and particularity that our

precedents have demanded in cases involving the threat of criminal prosecution.

This case arises in the procedural context of a motion to dismiss on the

pleadings. W hen evaluating a plaintiff’s standing at this stage, “both the trial and

reviewing courts must accept as true all material allegations of the complaint, and

must construe the complaint in favor of the complaining party.” Warth v. Seldin,

422 U.S. 490, 501 (1975). W e also “must construe the statements made in the

affidavits in the light most favorable to the petitioner.” D&F Alfonso Realty

Trust v. Garvey, 216 F.3d 1191, 1194 (D.C. Cir. 2000).

B.

In one respect, the standing issue in this case is less doubtful than in the

typical cases arising from threat of criminal prosecution. In many of those cases,

there is serious question whether the challenged statute or ordinance will be

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enforced against the plaintiff in the future. See Winsness, 433 F.3d at 734

(finding no credible threat of enforcement based on prosecutorial disavowals of

any intention to enforce the statute in the future); D.L.S., 374 F.3d at 974–75

(finding no threat of prosecution where the plaintiff had been neither arrested nor

charged for violating the challenged statute, prosecutors disavowed any intention

to enforce the statute, and the Supreme Court had recently struck down a similar

law as unconstitutional); Faustin v. City & County of Denver, 268 F.3d 942, 948

(10th Cir. 2001) (finding no “real and immediate threat” of prosecution because

of a city prosecutor’s determination that the plaintiff’s conduct did not violate the

challenged statute); Phelps v. Hamilton, 122 F.3d 1309, 1327 (10th Cir. 1997)

(finding no standing where the plaintiffs failed to demonstrate a credible threat of

prosecution under a recently amended statute). In this case, by contrast, the threat

of enforcement is not just credible, but certain.

This case is thus poles apart from Laird v. Tatum, 408 U.S. at 2, on which

the Defendants rely. In Laird, citizens filed suit to enjoin the Army from

collecting information about domestic political activities that posed a risk of civil

disorder. The plaintiffs alleged that the information gathering alone, without any

enforcement or other action against the plaintiffs, chilled the exercise of their

First Amendment rights because of their “fear that, armed w ith the fruit of those

activities, the agency might in the future take some other and additional action

detrimental to [them].” Id. at 11. The claim piled speculation upon speculation:

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the Army might collect information about the plaintiffs, it might take some future

action based on that information, and that action might injure the plaintiffs.

Although the Court “fully recognize[d] that governmental action may be subject

to constitutional challenge even though it has only an indirect effect on the

exercise of First Amendment rights,” it held that the plaintiffs lacked standing,

characterizing the claim as a “subjective chill” because they had no objective

basis to believe they faced a specific present or imminent harm. Id. at 12–13.

There is no occasion in this case for speculation about prosecutorial

discretion, or whether the law will be enforced against the Plaintiffs. If anyone,

Plaintiffs included, mounts an initiative campaign involving wildlife management,

the initiative will be subject to the two-thirds requirement, and any attendant

effects on the freedom of speech will be felt. The difficult question, therefore, is

not whether there is a “credible threat of enforcement,” but whether those effects

on free speech constitute “injury in fact.”

C.

The Plaintiffs in this case have done far more than merely allege a

“subjective ‘chill.’” Laird, 408 U.S. at 13–14. Their past and current conduct in

preparation or support for such initiatives in Utah and surrounding states, their

allegations regarding their desire to use the initiative process (but for the effect of

Proposition 5), and their claims that the supermajority requirement is the reason

they are not currently pursuing initiatives provide sufficiently concrete

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manifestations of desire to pursue a wildlife initiative to survive dismissal at this

stage of the litigation. 1

First, their past conduct in preparation or support for wildlife initiatives

provides concrete support for the inference that Plaintiffs would pursue similar

initiatives in the future, if it were not for the supermajority requirement. The

Animal Legal Defense Fund, which boasts 503 affiliated members in Utah, states

that it “accomplishes its purposes primarily through the initiative process and

litigation.” A m. Compl. ¶ 7, App. 77. Plaintiff Lynette Brooks helped to

comm ission a public opinion survey of Utah voters on cougar and bear hunting

methods, designed in part “to gage [sic] the chance of success of a ballot

initiative.” A pp. 189. Although she alleges no specific plans to pursue a future

initiative, she explains in her affidavit that this is “because the supermajority

requirement makes my efforts futile” Id. at 190. 2 Similarly, the Fund for the

Animals, a Plaintiff organization, has already brought animal protection

initiatives in other states, including Arizona, California, Colorado, Idaho,

1
Some of the Plaintiffs express no interest in a wildlife initiative, but
merely oppose the supermajority requirement in principle. These Plaintiffs do not
have standing because their speech is not affected.
2
To be sure, M s. Brooks and her organization did not mount an initiative
campaign during the three general elections between conducting the survey and
enactment of Proposition 5, from which the factfinder could infer that she had
other reasons, apart from Proposition 5, for not pursuing an initiative. But at this
stage of the litigation, our obligation is to draw all inferences in favor of the
plaintiff, not to ask whether contrary inferences would also be reasonable.

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M ontana, Oregon, and W ashington. Id. at 211. A factfinder could reasonably

infer, based on this pattern of bringing wildlife initiatives in W estern states

including three of Utah’s neighbors, a present desire to bring similar initiatives in

Utah.

It is clear that these individuals and organizations have far more than an

abstract interest in whether Utah’s supermajority requirement is constitutionally

valid; they are precisely the type of party most affected by Proposition 5. Indeed,

Proposition 5 was avowedly designed to thwart wildlife legislation favored by

“local animal extremists” and “East Coast special interest groups”— a

recognizable, albeit pejorative, description of some of our Plaintiffs. App. 62;

Appellants’ Opening Br. 22. During the campaign for Proposition 5, supporters

of the supermajority requirement explicitly mentioned one Plaintiff, the Humane

Society of the United States, as an organization whose planned initiative should

be obstructed. App. 62. It would be peculiar to hold, now, that such plaintiffs are

not affected. See Raines v. Byrd, 521 U.S. 811, 818 (1997) (explaining that the

standing inquiry “focuses on whether the plaintiff is the proper party to bring this

suit”).

Second, the Complaint and affidavits make clear that the Plaintiffs have the

desire to mount wildlife management initiative campaigns in U tah. These

statements and allegations necessarily fall short of specific plans. Plaintiffs do

not tell us precisely what initiatives they would bring, or when; nor do they claim

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any certainty about their intentions. For reasons stated above, however, that is

not surprising. The Fund for the Animals, which has 500 members in Utah,

brings this suit on behalf of “those individuals of the Fund who wish to pursue

any initiative efforts in Utah.” A m. Compl. ¶ 6, App. 76–77. According to

Plaintiff Dick Carter, “[t]he potential utilization of the initiative power has been

contem plated in the past, at present, and in the future.” A pp. 194. Plaintiff Craig

Axford has stated, “I foresee myself (or my organization) potentially exercising

the right to initiate or participate in an initiative drive regarding wildlife

management in Utah should I deem it necessary.” Id. at 185. The Utah

Environmental Congress, another Plaintiff, “may decide to initiate a wildlife

ballot initiative that Proposition 5 would harm.” Id. at 224. Two of the Plaintiffs

emphasize that they would like to use the threat of a viable initiative effort as a

“bargaining tool” in negotiations with wildlife officials. Id. at 189. At least at

this stage in the litigation when we must construe the affidavits in the light most

favorable to the Plaintiffs, these statements demonstrate that the

Plaintiffs— individuals and groups with a long history of w ildlife advocacy— are

seriously considering mounting a w ildlife management initiative but are

discouraged from doing so.

Third, the Plaintiffs’ affidavits consistently point to the existence of the

supermajority requirement as the reason they presently have no specific plans to

bring a wildlife initiative in Utah. As already noted, M s. Brooks maintains that,

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at present, she “will not attempt to initiate legislation to impose sound wildlife

management practices because the superm ajority requirement makes m y efforts

futile.” Id. at 190 (emphasis added). Likewise, according to its President, M .

Dane Waters, the Initiative and Referendum Institute “will not undertake any

campaign pertaining to wildlife measures [in Utah] because of the strong

likelihood that such an effort would fail.” Id. at 234 (emphasis added). M embers

of the Fund for the A nimals “who live in Utah and w ish to exercise their First

Amendment rights . . . will be hindered . . . by the excessive burden on passing a

wildlife protection initiative in Utah.” Id. at 211 (emphasis added). And M r.

Carter attests that “the prohibitive language of [the supermajority requirement] is

so broad as to cause advocates to steer clear of wildlife advocacy . . . to avoid

futile attempts and failed outcomes.” Id. at 194 (emphasis added).

Taken together, these affidavits establish that the plaintiffs have more than

an abstract or speculative interest in the outcome of this litigation. They are

actively involved in wildlife advocacy, have prepared or supported wildlife

initiatives in the past and in other states, and allege a present desire to use the

initiative process to advance their objectives. M oreover, the affidavits establish

that the Plaintiffs have been discouraged by the supermajority requirement from

making specific plans to introduce an initiative in the future. Coupled with the

lack of any doubt that the two-thirds threshold will be enforced, the Plaintiffs

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have sufficiently alleged an injury in fact to withstand dismissal of their

complaint.

D.

The Defendants also argue that the Plaintiffs have not alleged the invasion

of a “legally protected interest,” which they say is necessary to have standing to

sue. They note that the First Amendment “does not guarantee political success”

or imply a right to be heard and supported, and that the supermajority requirement

“places no direct restriction on the speech of anyone” and leaves the Plaintiffs

“free to engage in full and robust political speech.” Br. of Appellees 24–25. This

approach to the issue, however, confuses standing with the merits.

For purposes of standing, the question cannot be whether the Constitution,

properly interpreted, extends protection to the plaintiff’s asserted right or interest.

If that w ere the test, every losing claim would be dismissed for w ant of standing.

Take, for example, Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam). (W e could

use any unsuccessful constitutional claim to illustrate the point.) The Buckley

Court held, in effect, that there is no First Amendment right to make unlimited

campaign contributions. See id. at 29. Under the Defendants’ theory, one might

say that a w ould-be campaign benefactor has no “legally protected interest” in

making unlimited contributions, and thus that the Supreme Court should have

tossed the case on standing grounds. But that would put the merits cart before the

standing horse. See M cConnell v. FEC, 540 U.S. 93, 227 (2003) (“‘[S]tanding in

- 21 -
no way depends on the merits of the plaintiff’s contention that particular conduct

is illegal . . . .’” (quoting Warth, 422 U.S. at 500)); Ass’n of Data Processing

Serv. O rgs. v. C am p, 397 U.S. 150, 153 & n. 1 (1970) (warning against use of a

“‘legal interest’ test” for standing purposes, on the ground that it “goes to the

merits”); City of Waukesha v. Envtl. Prot. Agency, 320 F.3d 228, 235 (D.C. Cir.

2003) (“[I]n review ing the standing question, the court must be careful not to

decide the questions on the merits for or against the plaintiff, and must therefore

assume that on the merits the plaintiffs would be successful in their claims.”).

The First Amendment claim in this case differs from that in Buckley only because

it is more far-fetched. But its far-fetchedness is a question to be determined on

the merits. For purposes of standing, we must assume the Plaintiffs’ claim has

legal validity. See Utah Animal Rights Coalition v. Salt Lake City Corp., 371

F.3d 1248, 1256 (10th Cir. 2004) (holding that “[i]f [the plaintiff] is correct on

the merits . . . . [t]he injury may have been small . . . but it was not

‘speculative’”).

The appeal of the Defendants’ argument is that the term “legally protected

interest” must do some work in the standing analysis. 3 W e believe, however, that

3
The W right & M iller treatise criticizes the phrase “legally protected
interest” on the ground that it seems to beg the question of the legal validity of
the claim and therefore “provide[s] ample opportunity for mischief” given “the
comm on tendency to use standing concepts to address the question whether the
plaintiff has stated a claim.” 13 W right, M iller, Cooper & Freer, Federal
Practice and Procedure § 3531.4, at 830 (2d ed. Supp. 2005). W e believe this
“mischief” can and should be avoided.

- 22 -
this term has independent force and meaning, without any need to open the door

to merits considerations at the jurisdictional stage. For example, a person

complaining that government action will make his criminal activity more difficult

lacks standing because his interest is not “legally protected.” See 13 W right,

M iller, C ooper & Freer, Federal Practice and Procedure § 3531.4, at 830 (2d ed.

Supp. 2005). A person suing to require enforcement of the law against his

neighbor lacks standing, even if he is adversely affected by his neighbor’s

conduct, because no one has a legally protected interest in the prosecution of

another. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973). Finally, a plaintiff

whose claimed legal right is so preposterous as to be legally frivolous may lack

standing on the ground that the right is not “legally protected.” See Info.

Handling Servs., Inc. v. Defendant Automated Printing Servs., 338 F.3d 1024,

1030 (D.C. Cir. 2003) (noting that, on a motion to dismiss, “a plaintiff’s non-

frivolous contention regarding the meaning of a statute must be taken as correct

for purposes of standing,” lest the court “effectively be deciding the merits under

the guise of determining the plaintiff’s standing” (emphasis added)). But where

the plaintiff presents a nonfrivolous legal challenge, alleging an injury to a

protected right such as free speech, the federal courts may not dismiss for lack of

standing on the theory that the underlying interest is not legally protected.

In making their “legally protected interest” argument, the Defendants rely

on Skrzypczak v. Kauger, 92 F.3d 1050 (10th Cir. 1996). In Skrzypczak, the

- 23 -
plaintiff brought a First Amendment challenge to pre-submission screening of

ballot initiatives by the Oklahoma Supreme Court. Id. at 1052. That court had

determined that her proposed anti-abortion law, SQ 642, would violate the United

States Constitution and therefore could not appear on the ballot. Id. She alleged

that the pre-submission screening process chilled the exercise of her First

Amendment rights because “she would advocate the passage or defeat of SQ 642

if it were placed on the ballot.” See id. W e found that the plaintiff had

“mistakenly conflate[d] her legally-protected interest in free speech with her

personal desire to have [the proposed law] on the ballot.” Id. at 1053.

Notwithstanding the pre-submission screening procedure, she remained “free to

argue against legalized abortion” and to “speak publicly on any other issue.” Id.

W e carefully distinguished M eyer v. Grant, 486 U.S. 414 (1988), which is not a

standing case but instead dealt with the substantive scope of the First

Amendment, on the ground that the Oklahoma Supreme Court had “done nothing

to restrict speech: neither Skrzypczak nor anyone else has been silenced by pre-

submission content review.” Skrzypczak, 92 F.3d at 1053. W e concluded that

“[h]er right to free speech in no way depends on the presence of SQ 642 on the

ballot.” Id.

Rather than dismiss the case for failure to state a First Amendment claim,

however, the Skrzypczak panel dismissed the case for lack of standing. Raising

the standing issue sua sponte and without the benefit of briefing on the subject,

- 24 -
id. at 1052, we held that because the plaintiff “cites no law, and we find none,

establishing a right to have a particular proposition on the ballot,” she had “failed

to assert a legally-cognizable interest” and therefore could not show an injury in

fact, id. at 1053.

Tellingly, although this Court has cited Skrzypczak several times in

subsequent opinions, we have never treated Skrzypczak as a standing

decision— not even in “chilling effect” cases— and have instead relied on its

reasoning in rejecting First Amendment claims on the merits. See Save Palisade

FruitLands v. Todd, 279 F.3d 1204, 1213 (10th Cir. 2002) (discussing Skrzypczak

in support of the proposition that “no fundamental right has been burdened,” but

not questioning that the plaintiffs had alleged a “legally protected interest” for

purposes of jurisdiction). In rejecting a claim nearly identical to the one

advanced by the Plaintiffs in this case, the D.C. Circuit relied on Skrzypczak for

the proposition that “the First Amendment imposes no restriction on the

withdrawal of subject matters from the initiative process.” M arijuana Policy

Project v. United States, 304 F.3d 82, 86 (D.C. Cir. 2002). Other courts

universally have treated Skrzypczak as a decision on the merits, not a standing

case. See Utah Safe to Learn-Safe to Worship Coalition, Inc. v. State, 94 P.3d

217, 233 (Utah 2004) (citing Skrzypczak in support of the conclusion that the

challenged provisions “do not limit free speech and do not violate the First and

Fourteenth Amendment free speech guarantees”); Gallivan v. Walker, 54 P.3d

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1069, 1102 (Utah 2002) (Thorne, J., dissenting) (“The Tenth Circuit dismissed

her claim concluding that [M s. Skrzypczak] did not have a constitutional right to

have her initiative placed on the ballot.”); Herrington v. Cuevas, No. 97 Civ.

5806(SS), 1997 W L 703392, at *8–9 (S.D.N.Y. Nov. 10, 1997) (ordering

supplemental briefing and raising questions concerning the analysis of Skrzypczak

under the heading “Questions Pertaining to the M erits”). Indeed, Skrzypczak is

cited in the W right & M iller treatise as an example of “[c]onfusion of merits and

standing.” See 13 W right, M iller, Cooper & Freer, supra, § 3531.1, at 813 n.13.

W e therefore conclude that the Skrzypczak panel erred in dismissing the

case for want of standing rather than for failure to state a claim under the First

Amendment. In that respect, it is hereby overruled.

The dissenting opinion adopts a variation of the Defendants’ argument

concerning the need for a “legally protected interest.” According to the dissent,

allegations of a chilling effect “frequently” satisfy the injury-in-fact requirement

because they are accompanied by the threat of criminal or civil liability. Op. of

Tacha, C.J., at 3–4. Because the Supreme Court has never reached the merits of a

claim asserting “that a government action instills a sense of subjective futility— in

the sense that one’s speech will not have a desired result”— this kind of chilling

effect “does not constitute an invasion of a cognizable legal interest.” Id. at 11.

Every Court of Appeals to consider this argument has rejected it, reaching

the merits of claims virtually identical to those pressed by the Plaintiffs here. See

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Wirzburger v. Galvin, 412 F.3d 271, 279 (1st Cir. 2005) (reaching the merits

where the plaintiffs claimed that a state constitutional provision limiting popular

initiatives to certain subjects chilled the exercise of their First Amendment

rights); M arijuana Policy Project, 304 F.3d at 86 (reaching the merits where the

plaintiffs claimed that a federal law giving no legal effect to popular initiatives on

certain subjects, including the legalization of drugs, chilled the exercise of their

First A mendment rights); Wellwood v. Johnson, 172 F.3d 1007, 1008–09 (8th Cir.

1999) (reaching the merits where the plaintiffs claimed that an Arkansas statute

requiring the signatures of 30% of the voters on a petition for local-option

elections, instead of the usual 15% , chilled the exercise of their First Amendment

rights); see also Republican Party of N.C. v. M artin, 980 F.2d 943, 960 (4th Cir.

1992) (reaching the merits of a facial First Amendment challenge to North

Carolina’s system for electing superior court judges, and holding that although

“[t]he First Amendment guarantees the right to participate in the political

process,” it “does not guarantee political success”); Washington v. Finlay, 664

F.2d 913, 927–28 (4th Cir. 1981) (reaching the merits of a facial First

Amendment challenge to Columbia, South Carolina’s at-large electoral system,

and holding that “[t]he carefully guarded right to expression does not carry with it

any right to be listened to, believed or supported in one’s views”). W e think the

dissent’s approach takes too narrow a view of the “other consequences flowing

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from the statute’s enforcement” that may serve as the basis for a judicially

cognizable injury in fact. See D.L.S., 374 F.3d at 975.

To be sure,“chilling effect” cases most often involve speech deterred by the

threat of criminal or civil liability. Yet neither this Court nor the Supreme Court

has held that plaintiffs always lack standing when the challenged statute allegedly

chills speech in some other way. The clearest example to the contrary is M eese v.

Keene, 481 U.S. 465, 467 (1987), where the Court entertained a First Amendment

challenge to a federal statute that imposed certain registration, filing, and

disclosure requirements on agents of foreign principals who disseminate films

that the Department of Justice determines meet the statutory definition of

“political propaganda.” The statute was challenged by a California state senator

who wished to exhibit several such films. Id. He did not challenge any of the

registration requirements (which did not, in any event, pertain to him), but

claimed that he w as “deterred from exhibiting the films by a statutory

characterization of the films as ‘political propaganda.’” Id. at 473 (internal

quotation marks omitted). The Supreme Court noted that enforcement of the

statute “does not have a direct effect on the exercise of his First Amendment

rights; it does not prevent him from obtaining or exhibiting the films.” Id.

M oreover, the Court held, on the merits, that the plaintiff was not entitled to

protection against Congress’s use of the term “political propaganda.” Id. at 480.

Nonetheless, the Court held that the alleged injury to the plaintiff— the chilling

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effect on his desire to exhibit the films— was a “cognizable injury,” and

specifically rejected the defendants’ argument that the claim constituted only a

“subjective chill” within the meaning of Laird v. Tatum. Id. at 473. Pointing to

affidavits submitted by the plaintiff suggesting that exhibiting films officially

deemed to be political propaganda would hurt his reputation and his chance for

reelection, the Court held that “his situation fits squarely within the[] guidelines”

of the Court’s standing cases. Id. at 472–73.

M eese demonstrates that, in some cases, First Amendment plaintiffs can

assert standing based on a chilling effect on speech even where the plaintiff is not

subject to criminal prosecution, civil liability, regulatory requirements, or other

“direct effect[s],” id. at 473, and even where, as w e know from the C ourt’s

decision on the merits, the plaintiff has not asserted any legal interest that is

subject to judicial protection. As in this case, the chilling effect on the plaintiff’s

exercise of First Amendment rights arose entirely because the government’s

action in labeling the films “political propaganda” made it undesirable for him to

exhibit them. To use the language of the Defendants in our case, the “political

propaganda” label made exhibition of the films less “effective[]” in advancing his

political goals, including winning reelection. M eese, 481 U.S. at 472–73; Br. of

Appellees 25; cf. Op. of Tacha, C.J., at 11 (characterizing the Plaintiffs’ claim as

reducible to a “sense of subjective futility— in the sense that one’s speech will not

have a desired result”). In recognizing that the plaintiff in M eese had standing,

- 29 -
the Court necessarily rejected the narrow construction of “legally protected

interest” that the Defendants and the dissenters seek to impose in this case.

The Supreme Court’s decision in M cConnell, 540 U.S. at 227–28, on

which the dissenting opinion relies, see Op. of Tacha, C.J., at 5–6, is not to the

contrary. There, the Supreme Court held that a group of plaintiffs (the “Adams

plaintiffs”) that included candidates and their supporters w ho did not wish to

solicit or accept large campaign contributions, lacked standing to challenge the

constitutionality of a provision of the Campaign Reform Act that increased hard-

money limits and indexed them for inflation. M cConnell, 540 U.S. at 228. The

reason those plaintiffs lacked standing, however, was not that their constitutional

claim was wrong on the merits.

First, the Adams plaintiffs claimed that the increase in hard-money limits

injured them by “depriv[ing] them of an equal ability to participate in the election

process based on their economic status.” Id. at 227. In holding that they lacked

standing to bring this claim, the Court emphasized that a plaintiff must allege the

“invasion of a concrete and particularized legally protected injury,” and that it

had “never recognized a legal right comparable to the broad and diffuse injury

asserted by the Adams plaintiffs.” Id. (emphases added). The Court

distinguished several voting-rights cases in which the injury asserted was the

denial of “nondiscriminatory access to the ballot and a single, equal vote for each

voter.” Id. Unlike the voting-rights plaintiffs, the Adams plaintiffs had not

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alleged a concrete and particularized individual injury, but had instead alleged a

general “curtailment of the scope of their participation in the electoral process.”

Id. Although the Court discussed both the “concrete and particularized”

requirement and the “legally protected interest” requirement, without specifying

which requirement the Adams plaintiffs failed to satisfy, we read the decision as

resting not on the legal deficiency of the claim but on the breadth, generality, and

diffuse character of the alleged injury. 4 By contrast, the Plaintiffs in this case

have alleged a sufficiently concrete and particularized injury: they have

demonstrated that they have previously engaged in the type of speech allegedly

chilled by the supermajority requirement, and that they desire to engage in such

speech, but that they have no present intention to do so because of the certainty

that the supermajority requirement will be enforced.

Second, the Adams plaintiffs claimed that they suffered a “competitive

injury” in fundraising against candidates willing to accept larger campaign

4
The dissent criticizes this reading of M cConnell, arguing the C ourt’s
discussion of the Adams plaintiffs’ claims rests on the “legally protected interest”
requirement, not the requirement of a “concrete and particularized” injury. Op. of
Tacha, C.J., at 6. Yet in its quotations from the opinion, the dissent simply omits
the language on which we base our contrary reading. See id. at 5 (quoting the
words “never recognized a legal right comparable,” but omitting the words that
immediately follow: “to the broad and diffuse injury asserted by the Adams
plaintiffs”); id. at 6 (quoting the words “[t]his claim of injury by the . . . plaintiffs
is . . . not to a legally cognizable right,” but omitting the Court’s first formulation
of the legal standard: “a plaintiff’s alleged injury must be an invasion of a
concrete and particularized legally protected interest”).

- 31 -
contributions. Id. at 228. The Court rejected this claim because the injury was

not “fairly traceable” to the challenged statute. Id. Any indirect effect on the

plaintiffs’ competitive position was caused not by the law but by “their own

personal ‘wish’ not to solicit or accept large contributions.” Id. Here, on the

other hand, Proposition 5 applies directly to the Plaintiffs’ desired activity of

seeking to enact wildlife management initiatives, and the personal choices of the

Plaintiffs could do nothing to alter that effect.

W e recognize that standing doctrine sometimes has a frustratingly

metaphysical quality, and the Supreme Court’s standing cases do not always seem

satisfying or consistent. In this case, however, where the Plaintiff organizations

are among the direct targets of a state constitutional change, where there are no

doubts about whether the challenged provision will be enforced against them, and

where they have submitted satisfactory evidence of the chilling effect on their

speech, we join our sister circuits in concluding that this type of claim warrants

consideration on the merits.

E.

The Defendants also assert that the case is not ripe for review. Standing

and ripeness are “‘closely related in that each focuses on whether the harm

asserted has matured sufficiently to warrant judicial intervention.’” Skull Valley

Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1234 (10th Cir. 2004)

(quoting Johnson v. M issouri, 142 F.3d 1087, 1090 n.4 (8th Cir. 1998)). In

- 32 -
evaluating ripeness the “central focus is on ‘whether the case involves uncertain

or contingent future events that may not occur as anticipated, or indeed may not

occur at all.’” New M exicans for Bill Richardson, 64 F.3d at 1499 (quoting 13A

W right, M iller & Cooper, Federal Practice and Procedure § 3532, at 112 (2d ed.

1984)). As the Defendants point out, ripeness doctrine reflects not only limits on

the jurisdiction of federal courts under Article III but “important prudential

limitations” that may “require us to stay our hand until the issues in [the] case

have become more fully developed.” M organ v. M cCotter, 365 F.3d 882, 890

(10th Cir. 2004).

The ripeness challenge fails here because the Plaintiffs’ alleged injury is

already occurring. According to the Complaint, the supermajority requirement for

wildlife initiatives, by its very existence, chills the exercise of the Plaintiffs’ First

Amendment rights. The injury is not the defeat of a particular initiative, or even

the greater difficulty faced by groups like the Plaintiffs who decide to mount an

initiative campaign, but the dampening effect of the supermajority requirement on

advocacy of a w ildlife initiative. Assuming for the moment that the Plaintiffs’

legal theory is correct, their alleged injury does not depend on any uncertain,

contingent future events, and the courts would gain nothing by allowing the issues

in the case to develop further. Accordingly, the controversy is ripe for

adjudication.

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 F.

Finally, the Defendants make an argument based on redressability, the

requirement that a favorable judgment would meaningfully redress the alleged

injury. Lujan, 504 U.S. at 568–69. They make a two-pronged attack: even if the

supermajority requirement is not struck down, the Plaintiffs could still achieve

enactment of a wildlife initiative by winning 70% of the vote, while if it is struck

down, there still would be no guarantee of success, because the Plaintiffs “may

not be able to generate interest, support, or [passage]” for a wildlife initiative

even under a majority rule. Br. of Appellees 26–27. Thus, the Defendants argue

in effect, relief in this lawsuit is neither sufficient nor necessary for Plaintiffs to

achieve their objectives.

Both versions of the argument misconceive the nature of the Plaintiffs’

alleged injury. Plaintiffs’ alleged injury is not the difficulty of securing passage

of a wildlife initiative, but the chilling effect of the supermajority requirement on

their exercise of free speech rights. W hether that is properly framed as a free

speech issue is questionable (in the next section, we conclude it is not), but

redressability is not in doubt. Declaratory and injunctive relief against the

enforcement of the supermajority requirement, if granted, would remove any

chilling effect caused by the two-thirds threshold for wildlife initiatives and

thereby put a stop to the alleged continuing injury.

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 Because some of the Plaintiffs have alleged a judicially cognizable injury

in fact, ripe for review and redressable through the relief requested, it is not

necessary to determine whether other Plaintiffs who have presented the same

request for relief have done so. See Cal. Bankers Ass’n v. Schultz, 416 U.S. 21,

44–45 (1974); S. Utah Wilderness Alliance v. Bureau of Land M gmt., 425 F.3d

735, 744 (10th Cir. 2005). W e affirm the judgment of the district court denying

the Defendants’ motion to dismiss for lack of jurisdiction.

III. The First Amendment Claim

The Plaintiffs contend that Utah’s supermajority requirement deters them

from exercising their speech rights by making wildlife initiatives less likely to

succeed. W e consider four alternative variations of the claim: (1) that the

supermajority requirement burdens core political speech, and is therefore subject

to strict scrutiny; (2) that the requirement burdens expressive conduct, and is

therefore subject to intermediate scrutiny; (3) that the requirement discriminates

on the basis of content or viewpoint; and (4) that the requirement is overbroad,

and must be facially invalidated. W e disagree with each variation of the claim,

and affirm the district court’s conclusion that the supermajority requirement does

not implicate the First Amendment at all.

A.

The Plaintiffs argue most strenuously that the supermajority requirement

burdens “core political speech” by making it more difficult to secure passage of a

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wildlife initiative. They therefore ask us to apply strict scrutiny, invalidating the

provision unless it is narrowly tailored to serve a compelling state interest.

The First Amendment undoubtedly protects the political speech that

typically attends an initiative campaign, just as it does speech intended to

influence other political decisions. In M eyer v. Grant, 486 U.S. 414, 416 (1988),

for example, the Supreme Court unanimously struck down a Colorado law that

made it a felony to pay any person to circulate an initiative petition. The process

of requesting signatures on an initiative petition, the Court reasoned, “of necessity

involves both the expression of a desire for political change and a discussion of

the merits of the proposed change.” Id. at 421. It therefore “involves the type of

interactive communication concerning political change that is appropriately

described as ‘core political speech.’” Id. at 421–22. Law s that restrict core

political speech, the Court held, are subject to “exacting scrutiny”— whether or

not they leave citizens “other means to disseminate their ideas.” Id. at 420, 424.

This Court has struck down other laws regulating the political speech that

accompanies an initiative drive. See Am. Constitutional Law Found., Inc. v.

M eyer, 120 F.3d 1092, 1100–05 (10th Cir. 1997) (“ACLF”), aff’d sub nom.

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999). The

provisions at issue included a requirement that petition circulators be registered

voters, a requirement that petition circulators w ear a name badge, and certain

reporting requirements applicable to proponents of an initiative. Like the law

- 36 -
invalidated in M eyer, these laws specifically regulated the process of advocacy

itself: the laws dictated who could speak (only volunteer circulators and

registered voters) or how to go about speaking (with name badges and subsequent

reports).

Although the First Amendment protects political speech incident to an

initiative campaign, it does not protect the right to make law, by initiative or

otherwise. In Save Palisade FruitLands v. Todd, 279 F.3d 1204, 1208 (10th Cir.

2002), we considered a free speech challenge to a Colorado law that allowed the

citizens of “home rule” counties to initiate legislation, but did not extend that

right to citizens of “statutory” counties. W e held that “the right to free speech . .

. [is] not implicated by the state’s creation of an initiative procedure, but only by

the state’s attempts to regulate speech associated with an initiative procedure.”

Id. at 1211 (emphasis added). Similarly, in Skrzypczak, we rejected the argument

that the First Amendment prohibits a state from engaging in pre-submission

content screening of petitions. Skrzypczak, 92 F.3d at 1053 (finding M eyer

“inapposite,” despite the fact that pre-submission screening of an initiative might

prevent it from becoming law, because screening “do[es] nothing to restrict

speech: neither [the plaintiff] nor anyone else has been silenced”). The

distinction is between laws that regulate or restrict the communicative conduct of

persons advocating a position in a referendum, which warrant strict scrutiny, and

law s that determine the process by which legislation is enacted, which do not.

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 Other courts have drawn the same distinction. In M arijuana Policy Project

v. United States, 304 F.3d 82, 84 (D.C. Cir. 2002), the D.C. Circuit considered a

First Amendment challenge to a federal law that barred voters in the District of

Columbia from passing citizen-initiated legislation that would legalize or reduce

the penalties for the possession, use, or distribution of controlled substances, but

which permitted initiatives on many other subjects. The court rejected the claim,

finding no authority for the suggestion that “limits on legislative authority— as

opposed to limits on legislative advocacy— violate the First Amendment.” Id. at

85. Similarly, the Eighth Circuit in Wellwood v. Johnson, 172 F.3d 1007,

1008–09 (8th Cir. 1999), upheld an Arkansas law that required 30% of local

voters to sign a petition for a “local-option” ballot initiative (an initiative “to

change a county from ‘wet’ to ‘dry’ or vice versa”), but required only 15% of

voters to sign petitions on other subjects. The court found M eyer “inapposite”

because the heightened requirements “in no way burden the ability of supporters

of local-option elections to make their views heard.” Id. at 1009 (relying on

Dobrovolny v. M oore, 126 F.3d 1111, 1113 (8th Cir. 1997), which held that “the

difficulty of the [initiative] process alone is insufficient to implicate the First

Amendment, as long as the communication of ideas associated with the

circulation of petitions is not affected”).

The Plaintiffs’ argument takes some of the language in M eyer out of

context. The Court held, for example, that the ban on payment for circulators

- 38 -
restricted political speech because it “limit[ed] the number of voices w ho will

convey [the speakers’] message . . . and, therefore, limit[ed] the size of the

audience they can reach.” M eyer, 486 U.S. at 423. The statute thus had “the

inevitable effect of reducing the total quantum of speech on a public issue.” Id.

But there is a crucial difference between a law that has the “inevitable effect” of

reducing speech because it restricts or regulates speech, and a law that has the

“inevitable effect”of reducing speech because it makes particular speech less

likely to succeed. See Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S.

781, 790 n.5 (1988) (stressing the difference between “a statute regulating how a

speaker may speak” and a statute with a “completely incidental impact” on

speech, which does not implicate the First A mendment); Cohen v. Cowles M edia

Co., 501 U.S. 663, 671–72 (1991) (rejecting a challenge to a state court’s

application of promissory estoppel to a newspaper’s promise of anonymity to a

confidential source, in part because any effect on First Amendment freedoms was

“self-imposed,” “no more than incidental, and constitutionally insignificant”);

Ukranian-Am. Bar Ass’n, Inc. v. Baker, 893 F.2d 1374, 1379 (D.C. Cir. 1990)

(“The right to speak protected by the first amendment is not, however, a right to

be heeded . . . .”).

Under the Plaintiffs’ theory, every structural feature of government that

makes some political outcomes less likely than others— and thereby discourages

some speakers from engaging in protected speech— violates the First Amendment.

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Constitutions and rules of procedure routinely make legislation, and thus

advocacy, on certain subjects more difficult by requiring a supermajority vote to

enact bills on certain subjects. Those who propose, for example, to impeach an

official, override a veto, expel a member of the legislature, or ratify a treaty

might have to convince two-thirds of the members of one or both houses to vote

accordingly. State constitutions attach supermajority requirements to a

bewildering array of specific categories of legislation, including appropriations

bills, tax levies, bonding bills, debts, land use regulations, the salaries and

discipline of state officials, district formation and redistricting, and judicial

administration. California imposes a supermajority requirement for approval of

gaming compacts. Cal. Gov’t Code § 12012.25(b)(2). Hawaii imposes a

supermajority requirement to permit the construction of nuclear power plants and

the disposal of radioactive material. Haw. Const. art. XI, § 8. M innesota

employs a supermajority requirement to control the enactment of any “general

banking law .” M inn. Const. art. IV, § 26. Oregon uses the device to make it

more difficult to institute reductions in certain criminal sentences. Or. Const. art.

IV, § 33. South Carolina requires a supermajority to display unauthorized flags

at the state capitol building. S.C. Code Ann. § 10-1-160. These provisions

presumably have the “inevitable effect” of reducing the total “quantum of speech”

by discouraging advocates of nuclear power plants, general banking laws, or

unauthorized state flags from bothering to seek legislation or initiatives

- 40 -
embodying their view s. Yet if it violates the First A mendment to remove certain

issues from the vicissitudes of ordinary democratic politics, constitutions

themselves are unconstitutional. Indeed, the Plaintiffs’ theory would have the

ironic effect of rendering the relief they seek in this litigation unconstitutional

under the First Amendment: if it is unconstitutional to amend the Utah

constitution to require a supermajority to approve a wildlife initiative, those who

favor such an amendment would be less likely to engage in advocacy in its favor.

No doubt the Plaintiffs are sincere in their many sworn statements that they

find the heightened threshold for wildlife initiatives dispiriting, and feel

“marginalized” or “silenced” in the wake of Proposition 5. Their constitutional

claim begins, however, from a basic misunderstanding. The First Amendment

ensures that all points of view may be heard; it does not ensure that all points of

view are equally likely to prevail.

B.

W e turn next to an alternative theory, which was embraced in a recent

decision of the First Circuit: that subject-matter limitations in the initiative

process amount to restrictions on expressive conduct, and are therefore subject to

intermediate scrutiny. In Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005), the

First Circuit considered a First Amendment challenge to provisions of the

M assachusetts Constitution that prohibited ballot initiatives on two subjects:

initiatives calling for “public financial support for private primary or secondary

- 41 -
schools,” and initiatives “‘relate[d] to religion, religious practices or religious

institutions.’” Id. at 274–75 (quoting M ass. Const. amend. art. 18; id. art. 48, pt.

2, § 2). The court recognized, as we have, that the “common denominator” in

cases striking down laws governing the initiative process was “a direct restriction

on the communicative aspect of the political process.” Id. at 277. It therefore

declined to apply strict scrutiny. Id.

Instead of finding the First Amendment wholly inapplicable, however, the

court applied intermediate scrutiny under United States v. O’Brien, 391 U.S. 367

(1968). According to the First Circuit, the M assachusetts Constitution banned

“expressive conduct”— the act of bringing an initiative petition— that involved

both speech (one-on-one communications) and nonspeech (lawmaking) elements.

Wirzburger, 412 F.3d at 278–79. 5 The court ultimately upheld the subject-matter

exclusions in the state constitution, but only because it found that the government

had an important interest “in maintaining the proper balance between promoting

free exercise and preventing state establishment of religion,” and that the

limitations on ballot measures restricted speech no more than necessary to serve

that interest. Id. at 279. Presumably, other subject-matter restrictions on citizen

initiatives would seem less worthy, and would fail to pass intermediate scrutiny.

5
The First Circuit explicitly declined to follow the contrary opinion of the
D.C. Circuit in M arijuana Policy Project, 304 F.3d 82. W e find ourselves in
agreement w ith the D.C. Circuit rather than the First.

- 42 -
 Perhaps Wirzburger is distinguishable. The M assachusetts Constitution

flatly prohibited initiatives on certain subjects, and thus arguably “restricted”

speech more severely than the supermajority requirement in this case. But this is

only a difference in degree. The chilling effect from a total ban may be greater

than the chilling effect from a supermajority requirement, but they raise the same

First Amendment issue.

In any event, we disagree with Wirzburger’s premise that a state

constitutional restriction on the permissible subject matter of citizen initiatives

implicates the First Amendment in any way. The intermediate scrutiny standard

of O’Brien applies to laws that restrict “expressive conduct” such as flag burning,

nude dancing, or sitting at a segregated lunch counter. See Heideman v. South

Salt Lake City, 348 F.3d 1182, 1192 (10th Cir. 2003). It does not apply to

structural principles of government making some outcomes difficult or impossible

to achieve. Each of the “expressive conduct” cases cited by the First Circuit

involved statutes that prohibited expressive conduct, not statutes that made the

expression less persuasive or less likely to produce results. See O’Brien, 391

U.S. at 376–77 (criminal penalties for draft card mutilation); Texas v. Johnson,

491 U.S. 397 (1989) (criminal penalties for flag burning); Clark v. Cmty. for

Creative Non-Violence, 468 U.S. 288 (1984) (restrictions on camping in national

parks).

- 43 -
 The First Circuit averred that it could not “see how, given the Supreme

Court’s analysis in M eyer, subject-matter exclusions from a state initiative

process ‘restrict[] no speech.’” Wirzburger, 412 F.3d at 279 (criticizing

M arijuana Policy Project, 304 F.3d at 85). The court explained that “[t]he

comm unicative power of an initiative stems precisely from the fact that it is not

just speech; it is a process that can lead to the creation of new laws or

constitutional amendments.” Id. at 277. It does not follow, however, that

constitutional provisions making the enactment of particular types of law more

difficult are therefore restrictions of speech. For reasons set forth in the previous

section, the problem w ith protecting the impact on speech, instead of simply

protecting speech, is that no one has a right under the First Amendment to be

taken seriously. Like the Plaintiffs’ argument for strict scrutiny, the First

Circuit’s argument for intermediate scrutiny is fundamentally at odds with the

idea of constitutional limitations on the democratic process. All such limitations

make certain types of advocacy less likely to “lead to the creation of new law s”; it

does not follow that all such limitations are challengeable under the First

Amendment.

The First Circuit’s analysis may appear more appealing, at first, than the

Plaintiffs’ argument that specific subject matter limitations on the initiative and

referendum process are subject to the almost certain invalidation of strict

scrutiny. Intermediate scrutiny seems a moderate middle ground. But arguably,

- 44 -
intermediate scrutiny, in this context, would be an especially egregious

interference with the authority of “We the People” to adopt constitutional

provisions governing the legislative or initiative process. According to the First

Circuit, the constitutionality of a provision limiting the initiative process depends

on the federal court’s assessment of whether a given restriction on the initiative

power of the people serves a “substantial governmental interest.” Id. at 279.

That appears to involve an assessment of the virtues and vices of the particular

initiatives that are affected by the limitation. In Wirzburger, for example, the

First Circuit ultimately upheld the challenged limitation on the ground that

maintaining the “proper balance” between the establishment and free exercise of

religion is important. Id. No one knows what the court would think of

restrictions involving bond issues, gaming contracts, or unauthorized state flags.

The foundation on which our system of written constitutions has been erected is

that “the people have an original right to establish, for their future government,

such principles as, in their opinion, shall most conduce to their own happiness.”

M arbury v. M adison, 5 U.S. (1 Cranch) 137, 176 (1803) (emphasis added). W e

can imagine few tasks less appropriate to federal courts than deciding which state

constitutional limitations serve “important governmental interests” and which do

not. On what basis could a federal court conclude that the people are justified in

erecting barriers to the adoption of referenda allowing financial aid to private

religious schools but not to those involving general banking laws or wildlife

- 45 -
management practices? Under our form of government, the people and their

representatives, and not judges, assume the task of determining which subjects

should be insulated from democratic change.

Because the supermajority requirement does not restrict any “expressive

conduct,” w e decline to apply intermediate scrutiny under O’Brien.

C.

The Plaintiffs also challenge Utah’s supermajority requirement for wildlife

management initiatives as impermissible content discrimination. Legislation that

would “allow, limit, or prohibit the taking of wildlife or the season for or method

of taking wildlife,” must w in the approval of two-thirds of voters, while

legislation on any non-w ildlife subject need only command a majority. See Utah

Const. art. VI, §1(2)(a). The problem w ith this argument is that the prohibition

on content discrimination only applies to regulations of speech or expression. A s

we have already explained, the supermajority requirement at issue here is a

regulation of the legislative process, not a regulation of speech or expression.

The Supreme Court has explained that “[t]he principal inquiry in

determining content neutrality . . . is whether the government has adopted a

regulation of speech because of disagreement with the message it conveys.” Rock

Against Racism, 491 U.S. at 791. In this case, it is hard to tell whether the

provision discriminates on the basis of viewpoint, or merely on the basis of

subject matter. The provision applies equally to initiatives to “allow” the taking

- 46 -
of wildlife as to those to “limit” or “prohibit” it. If the Utah wildlife management

authorities decided to restrict or prohibit hunting, Proposition 5 would make it

difficult for pro-hunting forces to obtain redress through the initiative process.

On the other hand, some evidence exists that the provision was targeted at a

particular point of view— that of the “East Coast special interests” who

supposedly seek to change Utah’s animal protection laws. M oreover, the two-

thirds threshold works to the advantage of the status quo. Some precedent

suggests this may make it viewpoint discriminatory. See Velazquez v. Legal

Servs. Corp., 164 F.3d 757, 770 (2d Cir. 1999) (finding that a provision “clearly

seeks to discourage challenges to the status quo” and therefore “discriminates on

the basis of viewpoint”), aff’d, 531 U.S. 533 (2001).

Ultimately, whether Proposition 5 discriminates on the basis of viewpoint

or subject matter is irrelevant. To qualify as a content-based “regulation of

speech,” a statute must restrict speech or expressive conduct in the first place.

See Asociación de Educación Privada de P.R., Inc. v. Echevarría-Vargas, 385

F.3d 81, 84–85 (1st Cir. 2004) (rejecting the plaintiffs’ argument that a

“consumer protection regulation” requiring disclosure of information about

changes in school textbooks amounted to a content-based restriction because it

“does not purport to address the content of speech; nor does it purport to regulate

speech at all”). M any constitutional provisions, both state and federal,

discriminate on the basis of viewpoint without being deemed to violate the First

- 47 -
Amendment. The Cruel and Unusual Punishment Clause, for example, makes it

difficult to pass laws resurrecting the use of thumbscrews or ear cropping, but not

to pass laws promoting humane prison conditions. Undoubtedly, this favors one

viewpoint on punishment and disfavors another. But the Cruel and Unusual

Punishment Clause is not a restriction on speech, and need not undergo the rigors

of First Amendment scrutiny. Similarly, the supermajority requirement at issue

here determines the conditions under which citizen-initiated legislation becomes

law. It does not regulate speech or expressive conduct. W hether it discriminates

on the basis of view point is therefore beside the point.

D.

Finally, the Plaintiffs challenge the supermajority requirement as

overbroad, and argue that it “creates a chilling effect on speech and association

which is profound, real, and material.” A ppellants’ Opening Br. 39. Quite apart

from its effects on wildlife initiatives, the Plaintiffs argue, Proposition 5 has

chilled speech in two ways: (1) it has deterred wildlife advocates from

threatening to launch a petition; and (2) it has cowed proponents of initiatives on

other subjects, who fear “similarly harsh treatment by the state legislature and the

Governor.” Id. at 41. Thus, the Plaintiffs argue, even if some applications of the

requirement are permissible, the statute “reaches a substantial amount of

constitutionally protected conduct” and must be invalidated. Id. at 40.

- 48 -
 The overbreadth doctrine is an exception to the “traditional rule”

concerning facial attacks “that ‘a person to whom a statute may constitutionally

be applied may not challenge that statute on the ground that it may conceivably be

applied unconstitutionally to others in situations not before the Court.’” L.A.

Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38 (1999) (quoting

New York v. Ferber, 458 U.S. 747, 767 (1982)). In cases involving statutes that

“regulate or proscribe speech,” this traditional rule is relaxed, because of the risk

that people might refrain from exercising their First Amendment rights “for fear

of criminal sanctions provided by a statute susceptible of application to protected

expression.” Gooding v. Wilson, 405 U.S. 518, 520–21 (1972).

The overbreadth doctrine has no application to this case. Because the

supermajority requirement does not regulate speech, it does not violate the First

Amendment rights of persons not before the court. See Virginia v. Hicks, 539

U.S. 113, 118 (2004) (holding that a plaintiff bringing an overbreadth challenge

must demonstrate that the statute “punishes a substantial amount of protected

speech, judged in relation to the statute’s plainly legitimate sweep” (internal

quotation marks omitted)). The Plaintiffs’ “overbreadth” argument is nothing

more than a restatement of the First Amendment argument they make on their

own behalf. Because the supermajority requirement presents no “realistic danger

that the statute itself will significantly compromise recognized First Amendment

protections,” M embers of the City Council of L.A. v. Taxpayers for Vincent, 466

- 49 -
U.S. 789, 800–01 (1984), the overbreadth doctrine is not applicable. See United

Reporting Publ’g, 528 U.S. at 40 (refusing to engage in an overbreadth analysis

the challenged law was “not an abridgment of anyone’s right to engage in

speech”).

IV. Conclusion

Because we find each of the Plaintiffs’ First Amendment theories flawed as

a matter of law, we affirm the decision of the district court dismissing the case for

failure to state a claim. The judgment of the district court is AFFIRM ED.

- 50 -
Nos. 02-4105, 02-4123, Initiative and Referendum Institute v. Walker

TA CH A, Chief Circuit Judge, dissenting. EBEL and KELLY, Circuit Judges,

joining in the dissent.

I concur in part and dissent in part. Specifically, I concur w ith the majority

opinion that the supermajority requirement does not violate the First A mendment,

but I respectfully dissent with regard to the conclusion that the Plaintiffs have

standing to press their First Amendment claims. 1 To establish an injury in fact for

purposes of standing, “a party must first and foremost establish [1] an invasion of

a legally protected interest [2] that is concrete, particularized, and [3] actual or

imminent.” Nat’l Council for Im proved Health v. Shalala, 122 F.3d 878, 883

(10th Cir. 1997). In this case, I would hold that the Plaintiffs’ alleged injury does

not constitute an invasion of a legally protected interest.

As an initial matter, it is highly doubtful that the Plaintiffs have alleged

anything more than a “subjective chill.” Nevertheless, the majority holds

otherwise because (1) the Plaintiffs’ past conduct in preparation for or support of

wildlife initiatives supports the inference that they would do so in the future, (2)

the evidence suggests a desire to mount wildlife management initiatives

campaigns in Utah, and (3) the supermajority voting requirement stands in the

way of any specific plans to pursue similar initiatives. M aj. Op. at 16-21. Yet

1
Of course, because I conclude that the Plaintiffs do not have standing,
reaching the merits is unnecessary to the disposition of this appeal. Nevertheless,
I join Part III of the majority opinion so that the Court may speak more clearly on
this important issue.
puzzlingly, not a single Plaintiff has ever brought a wildlife management

initiative in Utah, nor has a single Plaintiff elucidated any concrete plans to do so

now or in the future. As the majority correctly notes: “Plaintiffs do not tell us

precisely what initiatives they would bring, or when; nor do they claim any

certainty about their intentions.” M aj. Op. at 18-19. Nor do the Plaintiffs even

give us so much as an intimation. A future initiative that may or may not be

undertaken is precisely the type of conjectural and hypothetical situation that fails

to confer standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992). 2

2
None of the evidence suggests actual or imminent injury. General
statements from organizations that they accomplish their aims through initiative
and legislation, and have done so in other states, say nothing about a present
intent to bring similar initiatives in Utah. The fact that one of the Plaintiffs
helped to commission a public opinion survey of Utah voters to consider the
feasability of a ballot initiative in 1991, seven years before passage of the
supermajority requirement, suggests just the opposite— no current plans to pursue
such an initiative. The Plaintiffs’ statements foreseeing the use of such initiatives
(either for substantive purposes or as a bargaining tool) omit the obvious: when,
where and for what? Likewise, the statements by various Plaintiffs— that they
will not participate in the wildlife initiative process because the supermajority
requirement makes it futile— simply lack any semblance of specificity as to any
particular actions contemplated.
Although the standing inquiry was resolved on a motion to dismiss, the
district court also properly considered affidavits which should have incorporated
specific facts supporting standing. See Warth v. Seldin, 422 U.S. 490, 502
(1968). The Plaintiffs had the burden of sufficiently alleging facts concerning
standing; Lujan, 504 U.S. at 561; the facts did not materialize thereby warranting
dismissal of the complaint. See Warth, 422 U.S. at 502. W hile the facts must be
construed in the light most favorable to the Plaintiffs, we are required to consider
only reasonable inferences. In my view, it is unreasonable to conclude that the
Plaintiffs have standing because initiatives have been pursued in other states, or

-2-
 The majority characterizes the Plaintiffs’ injury as “a chilling effect on

speech in support of w ildlife initiatives in U tah.” M aj. Op. at 10. But the mere

claim of First Amendment “chill” is not, and has never been, sufficient to

establish an injury in fact. See Laird v. Tatum, 408 U.S. 1, 13–14 (1972)

(“Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of

specific present objective harm or a threat of specific future harm.”); Nat’l

Student Ass’n v. Hershey, 412 F.2d 1103, 1113–1114 (D.C. Cir. 1969) (“not . . .

every plaintiff who alleges a First Amendment chilling effect and shivers in court

has thereby established a case or controversy.”). Rather, a “[c]hilling effect is

cited as the reason why the governmental imposition is invalid rather than the

harm which entitles the plaintiff to challenge it.” United Presbyterian Church in

the U.S.A. v. Reagan, 738 F.2d 1375, 1378 (D.C. Cir. 1984).

Be that as it may, when confronted with an assertion of First Amendment

“chill,” w e must look to the underlying cause of the “chilling effect” in order to

determine whether it constitutes an invasion to a legally protected interest. See

D.L.S. v. Utah, 374 F.3d 971, 975 (10th Cir. 2003) (stating that to amount to an

injury, the chilling effect “must arise from an objectively justified fear of real

consequences”). For example, frequently in “chill” cases, First Amendment

activities are stymied by a credible threat of criminal prosecution. See, e.g.,

because the Plaintiffs hold strong opinions about these issues.

-3-
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979); Pac.

Frontier v. Pleasant Grove City, 414 F.3d 1221, 1229 (10th Cir. 2005); Ward v.

Utah, 321 F.3d 1263, 1267 (10th Cir. 2003); Wilson v. Stocker, 819 F.2d 943,

946–47 (10th Cir. 1987). Other examples include “chill” that is caused by the

threat of civil liability, see New York Times v. Sullivan, 376 U.S. 254 (1964), or

“chill” that is caused by the threat of damage to personal and professional

reputation, see Meese v. Keene, 481 U.S. 465, 473 (1987). These potential harms

are all properly recognized as invasions of legally protected interests that give

rise to a cognizable claim of First Amendment “chill.”

The cause of the Plaintiffs’ “chill” in this case, however, is fundamentally

different from the aforementioned cases. Enforcement of the supermajority

requirement may diminish the Plaintiffs’ ability to pass legislation, but that

prospect is not what causes the Plaintiffs’ unwillingness to speak. To the

contrary, the cause of this unwillingness is the Plaintiffs’ subjective determination

that speaking out on wildlife matters is not worth their time and energy unless the

line drawn for passing an initiative is precisely where they want it— here, at

50.1% rather than at 66% . 3 Unlike typical “chill” cases in which the plaintiffs

3
A hypothetical further underscores the nature of the Plaintiffs’ injury.
Citizens’ O rganization wishes to use the initiative process to pass Proposition X.
Polling reveals Proposition X will only be supported by thirty percent of the
population of U tah. Citizens’ Organization claims that the election procedure
requiring a simple majority vote for passage “chills” its speech. Under the
majority’s approach, this “chill” constitutes an invasion of a legally protected

-4-
face a credible threat of real consequences if they choose to engage in the

regulated conduct, in this case the “chill” arises only from the Plaintiffs’

subjective sense of futility as to the efficacy of their speech.

Indeed, the Supreme Court faced a similar claim of subjectively derived

injury in M cConnell v. Federal Election Commission, 540 U.S. 93 (2003). The

plaintiffs in that case raised an equal protection challenge to an increase in

campaign contribution limits. Their claimed injury was that the statute

“deprive[d] them of an equal ability to participate in the election process based on

their economic status.” Id. at 227. Turning to the “nature and source of the claim

asserted,” the Court noted that it had “never recognized a legal right comparable”

to the injury allegedly suffered by the plaintiffs. Id. It distinguished prior

voting-rights cases and called the plaintiffs’ reliance on them “misplaced.” Id.

The Court went on to emphasize that “[p]olitical ‘free trade’ does not necessarily

interest and Citizens’ Organization would have standing to challenge the
procedure so long as it credibly alleges that it has engaged in the initiative
process in the past, states its present desire to bring Proposition X before the
voters, and claims that it presently has no intention to do so because of the
“credible threat” that the majority requirement will be enforced.
As this example demonstrates, despite Citizens’ Organization’s claims of
First A mendment “chill,” the reality is that Citizens’ O rganization’s desire to
promote Proposition X is hindered not by the operation of the simple majority
requirement, but by its subjective calculation of the economic merits of advancing
a cause that may not result in a fulfilling outcome. As in the hypothetical, the
majority’s conclusion here that the Plaintiffs’ alleged “chill” constitutes an injury
in fact only makes sense if one accepts the implicit assumption that Plaintiffs’
expectation of electoral efficacy is a legally protected interest. This assumption,
however, does not find support in the case law.

-5-
require that all who participate in the political marketplace do so with exactly

equal resources.” Id. (quoting Fed. Election Comm’n v. M ass. Citizens for Life,

Inc., 479 U.S. 238, 257 (1986)). Therefore, the Court concluded that “[t]his claim

of injury by the . . . plaintiffs is . . . not to a legally cognizable right,” and it

dismissed the suit for w ant of standing. Id.

Despite this language, the majority asserts that the Court did not specify

whether the plaintiffs lacked standing because they failed to allege a “concrete

and particularized” injury or because their injury was not to a “legally protected

interest.” M aj. Op. at 31. It therefore “read[s] the decision as resting not on the

legal deficiency of the claim but on the breadth, generality, and diffuse character

of the alleged injury.” M aj. Op. at 31. I think, however, that the Court said what

it meant and meant what it said, and that the Court’s holding that the plaintiffs’

alleged injury is “not to a legally cognizable right” requires no interpretation.

In part because the majority reads M cConnell as holding that the plaintiffs

failed to allege a concrete and particularized injury, it is able to overrule this

Court’s decision in Skrzypczak v. Kauger, 92 F.3d 1050, 1053 (10th Cir. 1996).

Although decided seven years before M cConnell, Skrzypczak undertook the same

type of analysis and denied the plaintiff standing when she failed to allege the

invasion of a legally protected interest. Id. at 1053.

In that case, M s. Skrzypczak argued that her ability to speak her mind on

the issue of abortion was curtailed by the Oklahoma law that subjected initiative

-6-
proposals to constitutional review prior to their placement on the ballot.

Specifically, after a proposal criminalizing most abortions was found by the

Oklahoma Supreme Court to be incompatible with the Constitution and was

therefore prohibited from being put to a popular vote, M s. Skrzypczak challenged

the Oklahoma Supreme Court’s decision as an impermissible prohibition on

speech. Significantly, her claimed injury was based solely on allegations that she

would have advocated for the passage or defeat of the proposition had it been

placed on the ballot. Id. at 1052. Unlike typical initiative regulation cases

involving First Amendment claims, M s. Skrzypczak specifically denied any

involvement in the effort to place the initiative on the ballot. She merely alleged

that the decision by the Oklahoma Supreme Court constituted a prior restraint on

her speech because she wanted to engage in speech activity related to the

proposed initiative.

As noted above, we dismissed the suit for lack of standing. W e held that

M s. Skrzypczak had not established an injury in fact because her ability to

express her opinion was not impaired by the pre-submission review, and

therefore, she had failed to allege an injury to a legally protected interest:

Skrzypczak mistakenly conflates her legally-protected interest in free
speech with her personal desire to have SQ 642 on the ballot. In
removing SQ 642 from the ballot, the Oklahoma Supreme Court has
not prevented Skrzypczak from speaking on any subject. She is free
to argue against legalized abortion, to contend that pre-submission
content review of initiative petitions is unconstitutional, or to speak
publicly on any other issue. Her right to free speech in no way

-7-
 depends on the presence of SQ 642 on the ballot. M oreover, she
cites no law, and we find none, establishing a right to have a
particular proposition on the ballot.

Skrzypczak, 92 F.3d at 1053.

Although Skrzypczak did not say so explicitly, the clear import of that case

was that because the source of M s. Skrzypczak’s unwillingness to speak was M s.

Skrzypczak herself rather than the threat of actual consequences if she did in fact

speak, she had not alleged any invasion of a legally protected interest. By

comparison, standing exists in “chill” cases that involve a double edged-sword

where individuals seeking to exercise First Amendment rights face, for example,

criminal or civil liability or damage to personal or professional reputation, and

therefore must choose between engaging in the regulated speech and suffering the

consequences or remaining silent. First Amendment standing jurisprudence

recognizes that neither result is desirable. 4 But the law at issue in Skrzypczak

presented no such choice. M s. Skrzypczak chose not to speak on abortion not

because of a fear of enforcement consequences that might accrue to her if she

exercised her right, but rather because she would not find speaking on the issue

personally satisfying without a specific initiative on the ballot. That is not

sufficient to establish the invasion of a legally protected interest because the law

4
As the majority notes, this insufferable choice is precisely why plaintiffs
have standing in “chill” cases despite the presence of only an inchoate injury.
See M aj. O p. at 11.

-8-
neither guarantees nor protects a plaintiff’s interest in personal satisfaction. Cf.

M cConnell, 540 U.S. at 227 (no legally protected interest in competing in the

political marketplace with exactly equal resources); Linda R.S. v. Richard D., 410

U.S. 614, 619 (1973) (no legally protected interest in the prosecution of another);

see also United Presbyterian Church, 738 F.2d at 1378 (stating that “[a]ll of the

Supreme Court cases employing the concept of ‘chilling effect’ involve situations

in which the plaintiff has unquestionably suffered some concrete harm . . . apart

from the ‘chill’ itself.”) (emphasis added). 5

The majority now overrules Skrzypczak, arguing that the question cannot be

whether the defendants’ action violates the Constitution because “[i]f that were

the test, every losing claim would be dismissed for want of standing.” 6 M aj. Op.

5
The majority cites to a host of cases in which Courts of Appeals have
reached the merits of similar inquiries after “consider[ing] this argument” and
“reject[ing] it.” M aj. Op. at 26-27. W ith respect, I note that all the cases cited by
the majority passed on the standing question sub silencio, and the courts are
therefore not bound by their implicit resolution of the issue. Cf. Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 119 (1984) (a court is not bound by
jurisdictional issues not addressed in prior opinions).
6
I agree with the majority’s observation that simply because a claim is
novel or without precedent, a court may not dismiss the claim for lack of
standing. The minimal constitutional requirement that a claim arise from an
invasion of a legally protected interest, however, does not prejudge the merits of
the claim. In this way, I disagree with the majority’s assertion that “this case
differs from that in Buckley [v. Valeo, 424 U.S. 1 (1976) (per curiam),] only
because it is more far-fetched.” M aj. Op. at 22. To begin, there is no question
that the plaintiffs in Buckley alleged an injury that invaded a legally protected
interest. The prospect of criminal penalties for making illegal campaign
contributions is clearly an injury to an interest that the law recognizes. But the
question at issue here is not the relative novelty of the Plaintiffs’ claims as to the

-9-
at 21. As discussed above, this argument misses the reasoning behind Skrzypczak.

Again, although the Court in Skrzypczak discussed whether the Oklahoma law

prohibited speech, the real focus of the case was on the consequences (or lack

thereof) that would befall M s. Skrzypczak is she exercised her First Amendment

rights: W e concluded that M s. Skrzypczak had not alleged a legally protected

interest because unlike a plaintiff who alleges a fear of prosecution or other

enforcement consequences that might directly accrue to the plaintiff due to the

operation of the challenged law , the source of M s. Skrzypczak’s alleged “chill”

was her own subjective determination as to the efficacy of her speech. Cf.

M cConnell, 540 U.S. at 227 (no legally cognizable right for those “who

participate in the political marketplace [to] do so with exactly equal resources.”).

Accordingly, I respectfully dissent with regard to the conclusion that Skrzypczak

should be overruled. 7

Because I do not agree that Skrzypczak was wrongly decided, I believe that

it controls the outcome of this case. The Plaintiffs’ averment that “political

speech is lessened by the supermajority requirement,” may be true, but it is only

as a result of the Plaintiffs’ internal perception of the difficulty they face in

scope of the protection afforded by the First Amendment, but, rather, whether or
not the Plaintiffs’ claimed injury invades a legally protected interest at all.
7
I also note that no party to this dispute asked this Court to review its
decision in Skrzypczak, no party questioned its continuing validity, and the
resolution of the issue does not affect the outcome of the case before us.

- 10 -
achieving a self-defined measure of political success. An assertion that a

government action instills a sense of subjective futility— in the sense that one’s

speech will not have a desired result— does not constitute an invasion of a

cognizable legal interest. I respectfully dissent with the majority’s conclusion

that the Plaintiffs have standing.

- 11 -
Nos. 02-4105, 02-4123; Initiative and Referendum Institute v. W alker

L UC ER O, Circuit Judge, concurring in part and dissenting in part.

I am pleased to join Parts I & II of Judge M cConnell’s opinion on the

issues of standing and ripeness. I cannot, however, join the conclusion of my

respected colleagues as to the merits, as expressed in Part III. Because today’s

decision frees from constitutional scrutiny conduct by a majority of voters that

has the potential to chill political speech on the basis of content by imposing

discriminatory election requirements; because the decision falls on the wrong side

of a circuit split; and because the decision offends traditional notions of

governance by the people, I respectfully dissent.

Assuredly, a state may adopt a constitutional amendment barring the

passage of any law affecting an issue. But it may not rig election laws by

imposing a content-based two-thirds majority requirement – or greater, as today’s

decision would allow – without implicating the First Amendment and subjecting

such conduct to judicial review. Because participating in an election and

engaging in election-related speech are effectively part of the same course of

conduct, election law s that discriminate against a minority’s view s implicate

fundamental rights enshrined in the First A mendment.

The constitutional amendment at issue, “the W ildlife Amendment,” passed

by a bare majority of Utah voters, provides that initiatives “to allow, limit, or

prohibit the taking of wildlife or the season for or method of taking wildlife shall

be adopted upon approval of two-thirds of those voting.” U tah C onst. art. VI,
§ 1(2)(a)(ii). Those favoring the status quo on w ildlife issues were able to pass

this amendment because they are, at least as of the time of passage, a majority of

Utah voters. By passing this constitutional amendment, the current majority has

enshrined its present views into perpetuity. Now, regardless of w hether a future

majority – even a 66% majority – of the population supports a change in wildlife

law s, such future majority will be unable to use the initiative process to enact its

preferences into law . Further, the two-thirds requirement will chill any attempt to

change the law, as any such campaign will be futile. As stated in a report

prepared by the Utah Division of W ildlife Resources, the amendment “make[s] it

virtually impossible for the citizens of Utah to mount a successful ballot initiative

affecting wildlife management practices.” One scholar has described this as a

problem of “intertemporal entrenchment.” M ichael Klarman, M ajoritarian

Judicial Review, 85 Geo. L.J. 491, 517 (1997).

W hat we confront in this case is substantively indistinct from what occurs

when a political party currently in power draws district lines for legislative seats

to their own advantage. In that situation – comm only referred to as partisan

gerrymandering – a current majority party draws district lines to virtually

guarantee its majority against huge sways in popular opinion. See Vieth v.

Jubilirer, 541 U.S. 267, 345-46 (2004) (Souter, J., dissenting) (collecting

scholarly work showing how gerrymandering can frustrate the popular w ill).

“Gerrymandering and other manipulations of electoral law s enable small,

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transient majorities to leverage themselves into more enduring ones.” Richard

Pildes, Constitutionalizing Democratic Politics, 118 Harv. L. Rev. 28, 60 (2004)

(emphasis added). Gerrymandering not only affects w ho wins elections, it chills

any challenge to the majority. See Samuel Issacharoff, Gerrymandering and

Political Cartels, 116 Harv. L. Rev. 593, 625 (2002) (nearly half of all seats in

state legislatures are unopposed because gerrymandering renders them “so safe as

not to generate any serious challenge.”). Such gerrymandering is at least allowed

an open season every ten years; not so the present amendment.

W hat a majority of the voters in Utah have done in this case and what a

legislature engaged in partisan gerrymandering does is identical. A current

majority enshrines its gains in law against sways in popular opinion and does so

through election laws designed to channel results and to squelch dissent.

In Vieth, the Supreme Court faced a challenge under the Equal Protection

Clause to a partisan gerrymander in Pennslyvania. Four Justices joined a plurality

opinion holding that there were “no judicially discernible and manageable

standards for adjudicating political gerrymandering claims” and hence “political

gerrymandering claims are nonjusticiable.” Vieth, 541 U.S. at 281. Four

dissenters argued that there were manageable standards that would render

Pennslyvania’s gerrymander unconstitutional. Standing in the middle of this

dispute, and holding the swing vote, was Justice Kennedy, who wrote a

concurring opinion stating that, although there was no current standard for

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determining the constitutionality of gerrymanders, one might develop. As such,

the prudent decision was to wait for lower courts or litigants to develop such an

approach and not bar partisan gerrymandering suits permanently. Id. at 311

(Kennedy, J., concurring)

Justice Kennedy argued that the approaches advanced by the dissenters as

well as the litigants in the case were flawed because they were rooted in the

wrong source of law – the Equal Protection Clause. Such analysis would always

push the court to the political question of whether the partisan purpose had been

excessive. Id. 1

Despite the inapplicability of the Equal Protection Clause to partisan

gerrymandering cases, Justice Kennedy would hold that the First Amendment

provides the proper source of protection for political minorities. Justice Kennedy

writes: “The First Amendment may be the more relevant constitutional provision

in future cases that allege unconstitutional partisan gerrymandering.” Id. at 317.

He reasons that cases involving partisan manipulation of electoral laws “involve

the First Amendment interest of not burdening or penalizing citizens because of

their participation in the electoral process . . . or their expression of political

views.” Id. at 314. In the present case, a majority of Utahns passed the W ildlife

Amendment to defeat wildlife legislation favored by “local animal extremists”

1
Appellants in the case at bar chose not to advance an Equal Protection
challenge.

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and “to preserve Utah’s wildlife practices from East Coast Special Interest

groups” who planned to press “the W ashington DC agenda” through the initiative

process. The current majority in Utah chose to burden “citizens because of their

participation in the electoral process [and] their expression of political views,”

implicating precisely the First Amendment interests identified by Justice

Kennedy. Id. (“First Amendment concerns arise where a State enacts a law that

has the purpose and effect of subjecting a group of voters . . . to disfavored

treatment by reason of their views.”).

Justice Kennedy does not explain exactly how the First A mendment should

be used to analyze partisan gerrymandering claims. That task is left to litigants

and lower courts. He did, however, explain the contours of such an analysis: “If

a court were to find that a State did impose burdens and restrictions on groups or

persons by reason of their views, there would likely be a First Amendment

violation, unless the State shows some compelling interest.” Id.

Instead of following Justice Kennedy’s suggestion that lower courts fashion

a manageable First Amendment standard, the majority opinion chooses to cast

aside Supreme Court guidance on the matter and free such super-majority

impositions, be they 66.67% or 99% , from all future constitutional scrutiny. In

my judgment, a better approach would be to follow the First Circuit’s decision in

W irzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005). W irzburger stands for the

proposition that law s that bias electoral results also may unconstitutionally chill

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election-related speech. The M assachusetts Constitution permits initiatives to

amend the state constitution, but specifically bars initiatives implicating public

funding of private education. Id. at 274; M ass. Const. amend. art. 48. Citizens

who sought to pass such an amendment by initiative challenged the bar on First

Amendment grounds.

Although acknowledging that the main purpose of the initiative ban was to

regulate the passage of law s, not to regulate speech, the W irzburger court

recognizes that the “state initiative process provides a uniquely provocative and

effective method of spurring public debate . . . .” Id. at 276. Discriminatory

election regulations not only dictate outcomes – they also chill speech. The issue

is not, as the majority in this case mischaracterizes it, whether the regulation

makes “expression less persuasive or less likely to produce results.” M aj. Op. at

43. Instead, the question is whether participation in an election has both speech

and non-speech elements. Like Justice Kennedy in Vieth, the First Circuit

reasons in W irzburger that initiative elections are so suffused with speech that

any attempt to control the outcome of an election affects the speech rights of

those competing in the election. Given that election campaigns are necessarily

conducted through the medium of speech, it is no more than foolhardy formalism

to say that election laws that rig the outcome of elections do not infringe on

speech rights. In America, at least, one cannot silently campaign – supporting an

initiative requires speech.

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 This does not mean that a state constitutional amendment barring all

legislation to change the status of w ildlife law would be subject to a First

Amendment challenge. Such outright bans on the passage of law are distinct from

election laws, because the former establishes a substantive ban whereas the latter

regulates conduct containing speech and non-speech elements. States do not

offend the First Amendment when they enact substantive limits on the types of

laws that can be passed. W hen, however, states stack the deck by writing

electoral laws that produce a given outcome, First Amendment concerns arise

because the speech of those who want to campaign to change the law s is directly

limited.

The M assachusetts regulation at issue in W irzburger operates like other

bans on expressive conduct – action that contains both speech and non-speech

components – that the Supreme Court has chosen to review. See, e.g., United

States v. O’Brien, 391 U.S. 367, 382 (1968) (law banning the destruction of draft

cards can be challenged under the First Amendment). Regulations governing

expressive conduct are subject to intermediate scrutiny. O’Brien, 391 U.S. at

382. As such, “conduct combining ‘speech’ and ‘non-speech’ elements can be

regulated if four requirements are met: (1) the regulation ‘is within the

constitutional power of the Government;’ (2) ‘it furthers an important or

substantial governmental interest;’ (3) ‘the governmental interest is unrelated to

the suppression of free expression;’ and (4) ‘the incidental restriction on alleged

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First Amendment freedoms is no greater than is essential to the furtherance of that

interest.’” W irzburger, 412 F.3d at 279 (quoting O’Brien, 391 U.S. at 377.).

In following this test, courts require states to present reasons for their

electoral regulations. As is made clear in O’Brien and in W irzburger, a state

cannot justify an election regulation on the basis that it reflects an intent to help

or punish a particular group. Rather, the reasons must be structural – that certain

issues are, perhaps because of their complexity, not suitable for the initiative

process, or that protecting minority interests, in some cases, requires a broader

consensus than that of a simple majority. If a state’s justification is important or

substantial, and the restriction is no greater than essential to fulfill that interest,

then the state’s law is determined not to violate the First Amendment. 2

This is not unlike the role courts fulfill in most election law cases. W hen

deciding a challenge to laws affecting a political party’s First Amendment right of

association, we “weigh the character and magnitude of the burden the State’s rule

imposes on those rights against the interests the State contends justify that

burden, and consider the extent to which the State’s concerns make the burden

2
Using O’Brien’s intermediate scrutiny test is consistent with Justice
Kennedy’s admonition that “courts must be cautious about adopting a standard
that turns on whether the partisan interests in the redistricting process w ere
excessive. Excessiveness is not easily determined.” Vieth, 541 U.S. at 315
(Kennedy, J., concurring). Applying O’Brien in this context does not require us
to decide whether partisan interests are excessive; we only ask whether the state
has an important, non-speech restricting interest in the law and whether the
restriction of speech rights is no greater than necessary to further that interest.

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necessary.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 355 (1997)

(holding that state interests in stability and the two-party system justified a state

law barring any one candidate from appearing on two different party ballots even

though the law limited a party’s First Amendment rights). See also Clingman v.

Beaver, 125 S. Ct. 2029, 2038 (2005) (state interest in maintaining independent

and viable political parties justifies state law barring a party from inviting to vote

in their primary members of other parties); California Democratic Party v. Jones,

530 U.S. 567, 574 (2000) (finding a state-mandated “blanket primary”

unconstitutional because state interest in promoting moderate candidates does not

justify a limitation of a political party’s free association rights).

Unlike right of association cases, a court adjudicating a free expression

election case under O’Brien does not weigh competing interests. If the

government’s interest is important and the law is tailored to achieving that

interest, that ends the analysis. The majority opinion suggests that there is

something extraordinary about a court deciding whether an interest in this context

is important or substantial. This ignores the fact that courts routinely make more

difficult judgments in most election law cases.

Courts not only can make such determinations, they must. As in the

present case, such laws cut to the very structure of our democracy. Rather than

being the worst place for judicial intervention, this is where it is most essential.

In most constitutional cases, courts face what is often referred to as the “counter-

majoritarian difficulty.” Alexander M . Bickel, The Least Dangerous Branch 16-

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23 (1962). W e, unelected federal judges, interpret the Constitution to determine

whether the pre-commitment strategy of the Founders invalidates the choices of

current electoral majorities. 3 The “counter-majoritarian difficulty” goes directly

to our legitimacy in a constitutional system. This case does not present such

question about our legitimacy – when we review efforts by those currently in

3
That Utah’s constitutional amendment would have offended the Founders
vision of democracy cannot be questioned. One of the Fathers’ cardinal concerns
was that democratic government not lead to tyrannical rule by a majority over a
minority. “W hen a majority is included in a faction, the form of popular
government . . . enables it to sacrifice to its ruling passion or interest both the
public good and the rights of other citizens.” The Federalist No. 10, at 106 (J.
M adison) (Hamilton ed. 1868). The Founders did not think the problem of
majority abuse of minorities w as limited to those in government: they were
particularly worried about the ways in which a majority of the people could
impose their will impose on a minority. “The prescriptions in favor of liberty,
ought to be levelled against that quarter where the greatest danger lies, namely,
that which possesses the highest prerogative of power: But this is not found in
either the executive or legislative departments of government, but in the body of
the people, operating by the majority against the minority.” James M adison,
Speech of James M adison to House of Representatives (June 8, 1789) in Daniel
A. Farber & Suzanna Sherry, A History of the American Constitution 227, 229
(1990).

James M adison responded to this problem by arguing that a large
democracy contained within it the antidote to majority tyranny: shifting alliances
among factions that would serve to ensure that no one faction dominated over
time. “Extend the sphere, and you take in a greater variety of parties and
interests; you make it less probable that a majority of the whole will have a
comm on motive to invade the rights of other citizens; or if such a common motive
exists, it will be more difficult for all who feel it to discover their own strength,
and to act in unison with each other.” Id. A large democracy poses “greater
obstacles . . . to the concert and accomplishment of the secret wishes of an unjust
and interested majority.” Id. In Utah, proponents of the status quo on wildlife
issues found a way to circumvent M adison’s prescription for escaping majority
tyranny. They immortalized their majority in the state’s election laws.
Therefore, their current majority is not subject to the shifting winds of public
opinion.

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power to entrench themselves, we are pro-majoritarian in that we are questioning

laws that may have an anti-democratic effect. See Klarman, 85 Geo. L.J. at 497-

98. Those w ho aspire to become the majorities of tomorrow , but are

discriminated against today, have no recourse other than the courts. Future

majorities that spring from today’s unpopular opinions should not be strangled by

the dead hands of the past. Because today’s decision places a garrote in those

very hands, I respectfully dissent.

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