FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEST COMMITTEE; TONY BADILLO;
JACK LIPSMAN; AL MAURICE; KENNY
BLACKMAN; WE THE PEOPLE
No. 09-17002
NEVADA; CITIZENS IN CHARGE,
Plaintiffs-Appellants, D.C. No.
v. 2:08-cv-01248-
RLH-GWF
ROSS MILLER, in his official
OPINION
capacity as Secretary of State for
the State of Nevada,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Chief District Judge, Presiding
Argued and Submitted
November 5, 2010—San Francisco, California
Filed December 1, 2010
Before: Arthur L. Alarcón, Pamela Ann Rymer, Circuit
Judges, and Matthew F. Kennelly, District Judge.*
Opinion by Judge Alarcón
*The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
19037
PEST COMMITTEE v. MILLER 19041
COUNSEL
Kermitt L. Waters, Law Offices of Kermitt L. Waters, Las
Vegas, Nevada, for the plaintiffs-appellants.
C. Wayne Howle, Solicitor General, Office of the Nevada
Attorney General, Carson City, Nevada, for the defen-
dant-appellee.
Joseph W. Brown, Matthew T. Milone and Bradley Scott
Schrager, Jones Vargas, Las Vegas, Nevada, for the Amici
Curiae Las Vegas Chambers of Commerce, Reno-Sparks
Chamber of Commerce, Nevada Mining Association, Inc.,
and Nevada Taxpayers’ Association.
OPINION
ALARCÓN, Circuit Judge:
This appeal arises from the unsuccessful efforts by a group
of organizations and individuals who desire to use Nevada’s
initiative and referendum process to effectuate changes in
Nevada law by placing initiatives on the Nevada ballot. These
groups brought suit in federal court, asserting that certain of
Nevada’s statutory requirements for ballot initiatives and ref-
erenda violate federal constitutional rights. The district court
granted summary judgment in favor of Defendant Ross Mil-
ler, the Secretary of State for the state of Nevada. It deter-
mined that Nevada’s statutory single-subject, description-of-
effect, and pre-election challenge provisions do not impose a
19042 PEST COMMITTEE v. MILLER
severe burden on First Amendment rights, are permissible
regulations of the state’s electoral process, and are not uncon-
stitutionally vague. We affirm because we conclude that the
district court did not err in dismissing Appellants’ claims.
I
Both before the district court and on appeal, the parties
agree that the relevant facts in this case are undisputed. The
salient uncontroverted facts are summarized here.
The Nevada Constitution provides that “the people reserve
to themselves the power to propose, by initiative petition, stat-
utes and amendments to statutes and amendments to this Con-
stitution, and to enact or reject them at the polls.” Nev. Const.
art. 19, § 2, cl. 1. The Nevada Constitution also authorizes the
legislature to “provide by law for procedures to facilitate the
operation” of the initiative process. Nev. Const. art. 19, § 5.
Statutory provisions set out the procedures for placing initia-
tives and referenda on the ballot. Nev. Rev. Stat. 295.009-
295.061.
Before an initiative or referendum petition can be circu-
lated, a copy of the petition must be filed with the Secretary
of State; after circulation, it must be returned to the Secretary
of State for signature verification. Nev. Const. art. 19, § 1, cl.
2; § 2, cl. 3. The Nevada Constitution sets time lines to qual-
ify petitions. The time line differs depending on the type of
petition. For example, if an initiative petition proposes a stat-
ute or a statutory amendment, it must be filed with the Secre-
tary of State “not earlier than January 1 of the year preceding
the year in which a regular session of the Legislature is held.”
Id. § 2, cl. 3. After circulation, it must be filed with the Secre-
tary of State for signature verification “not less than 30 days
prior to any regular session of the Legislature.” Id. If an initia-
tive petition proposes a constitutional amendment, it may be
filed with the Secretary of State “not earlier than September
1 of the year before the year in which the election is to be
PEST COMMITTEE v. MILLER 19043
held.” Id. § 2, cl. 4. After circulation, it must be filed with the
Secretary of State for verification “not less than 90 days
before any regular general election.” Id.
The statutory requirements for having an initiative placed
on a Nevada ballot require that initiative sponsors gather sig-
natures from registered voters in a number equal to 10% of
the votes cast in the last general election. Nev. Rev. Stat.
295.012. In 2005, the Nevada legislature enacted Section
295.009, which sets out single-subject and description-of-
effect requirements for initiatives and referenda:
1. Each petition for initiative or referendum must:
(a) Embrace but one subject and matters necessarily
connected therewith and pertaining thereto; and
(b) Set forth, in not more than 200 words, a descrip-
tion of the effect of the initiative or referendum if the
initiative or referendum is approved by the voters.
The description must appear on each signature page
of the petition.
2. For the purposes of paragraph (a) of subsection 1,
a petition for initiative or referendum embraces but
one subject and matters necessarily connected there-
with and pertaining thereto, if the parts of the pro-
posed initiative or referendum are functionally
related and germane to each other in a way that pro-
vides sufficient notice of the general subject of, and
of the interests likely to be affected by, the proposed
initiative or referendum.
Nev. Rev. Stat. 295.009 (emphases added). A related provi-
sion permits pre-election challenges to an initiative or referen-
dum as to whether it satisfies the single-subject and
description-of-effect requirements:
19044 PEST COMMITTEE v. MILLER
1. Except as otherwise provided in subsection 3,
whether an initiative or referendum embraces but
one subject and matters necessarily connected there-
with and pertaining thereto, and the description of
the effect of an initiative or referendum required pur-
suant to NRS 295.009, may be challenged by filing
a complaint in the First Judicial District Court not
later than 15 days, Saturdays, Sundays and holidays
excluded, after a copy of the petition is placed on file
with the Secretary of State pursuant to NRS 295.015.
All affidavits and documents in support of the chal-
lenge must be filed with the complaint. The court
shall set the matter for hearing not later than 15 days
after the complaint is filed and shall give priority to
such a complaint over all criminal proceedings.
Nev. Rev. Stat. 295.061(1) (emphases added); see also Nev.
Rev. Stat. 295.061(3) (“If a description of the effect . . . is
challenged successfully . . . and such description is amended
in compliance with the order of the court, the amended
description may not be challenged.”). In 2007, the legislature
added a provision stating that, if a petition or description of
effect is amended after the petition is placed on file with the
Secretary of State, “[a]ny signatures that were collected on the
original petition before it was amended are not valid.” Nev.
Rev. Stat. 295.015(2)(b).
The PEST Committee asserts,1 and the Secretary of State
1
Plaintiffs-Appellants are collectively referred to as “the PEST Commit-
tee” in this opinion. However, they are, in fact, a collection of organiza-
tions and individuals whose roles the district court succinctly summarized
in its order granting summary judgment in favor of the Secretary of State.
Plaintiff-Appellant the PEST Committee is a Nevada ballot advocacy
group organized to pass the Prevent Employers from Seizing Tips ballot
initiative (“PEST initiative”). The PEST initiative sought to amend a sec-
tion of a Nevada statute to prohibit an employer from requiring employees
to share their tips with their supervisors. Tony Badillo is the chairman of
PEST COMMITTEE v. MILLER 19045
does not dispute, that 10 of the 15 initiative petitions filed by
citizen groups in the 2008 Nevada election cycle were chal-
lenged, and not one of the challenged initiatives qualified for
the ballot. The PEST Committee and We the People were
among the groups that filed ballot initiatives to which private
parties brought pre-election challenges pursuant to Section
295.061.1 during the 2008 election cycle.
Rather than defend the lawsuit against it, We the People
withdrew its petition, redrafted its description of the effect of
the proposed initiative to address the claims made by the chal-
lengers, and submitted its petition under a new title. Nonethe-
less, the opponents brought another challenge to the redrafted
petition, again alleging that it contained a misleading descrip-
tion of effect. The parties subsequently reached an agreement
on the description-of-effect language. We the People again
withdrew its petition and refiled it with the revised description
of effect. The district court summarized the subsequent his-
tory of We the People’s petition:
Following litigation, We the People had less than
three months to circulate the petition and gather the
required number of signatures before the verification
deadline in May. After We the People failed to sub-
mit their petition in proper format by the deadline,
they sued the Secretary of State, arguing the May
deadline violated the Nevada Constitution. The
Nevada Supreme Court agreed, invalidated NRS
the PEST Committee, and Al Maurice and Jack Lipsman are its other
organizers. Kenny Blackman is a former dealer at Wynn Resorts who led
an effort to overturn Wynn’s policy of requiring its dealers to share their
tips with supervisors. Plaintiff-Appellant We the People is a ballot advo-
cacy group that has attempted to place a property tax initiative, similar to
California’s Proposition 13, on the Nevada ballot. Plaintiff-Appellant Citi-
zens in Charge is a national foundation based in Virginia that works to
protect and expand the initiative and referendum process throughout the
United States.
19046 PEST COMMITTEE v. MILLER
295.056(3) as amended in 2007, and ordered the
Secretary of State to accept the signatures submitted
by the June deadline set in the prior version of the
statute. See We the People Nev. ex rel. Angle v. Mil-
ler, 192 P.3d 1166 (Nev. 2008). Notwithstanding
this decision, opponents again challenged the initia-
tive in court for problems with the affidavits accom-
panying the signatures. The district court held that
the problems with the affidavits invalidated the peti-
tion and enjoined the Secretary of State from includ-
ing the initiative on the ballot. The Nevada Supreme
Court affirmed. See We the People Nev. v. Nev. State
Educ. Ass’n, No. 52390 (Nev. S. Ct. filed Oct. 21,
2008). Consequently, the Property Tax Reform Ini-
tiative for Nevada did not appear on the ballot.
Aug. 13, 2009 Order at 7-8.
The PEST Committee, the Nevada ballot advocacy group
organized to pass the Prevent Employers from Seizing Tips
ballot initiative (“the PEST Initiative”), filed an initiative with
the Secretary of State on January 16, 2008. Opponents of the
PEST Committee’s initiative sued in state court, alleging the
PEST Initiative violated the single-subject and description-of-
effect requirements, improperly proposed administrative
details, and violated the Nevada Constitution. The challengers
also alleged that if the proposed initiative was enacted, it
would violate the Equal Protection Clause of the United
States Constitution. The PEST Committee removed the action
to federal court based on the opponents’ federal equal protec-
tion claim. After extensive briefing, on July 15, 2008, the
United States District Court held that, “because the oppo-
nents’ federal claim was premised on a wholly uncertain con-
dition — namely, that the PEST Initiative would be passed by
the voting public — the issue was not ripe for judicial
review.” Id. at 8. Holding that it lacked a basis for exercising
federal jurisdiction, the district court remanded the case to the
state court. Id. (citing Nev. Rest. Ass’n v. Miller, No. 3:08-cv-
PEST COMMITTEE v. MILLER 19047
00118-BES-VPC (D. Nev. filed July 15, 2008)). On July 28,
2008, the opponents filed a motion to recover the attorney
fees they incurred as a result of the removal. The PEST Com-
mittee then agreed to withdraw the initiative in exchange for
the opponents’ promise to withdraw their motion for attorney
fees. On August 6, 2008, the PEST Committee withdrew its
initiative. Aug. 13, 2009 Order at 8.
This litigation commenced on September 18, 2008, when
the PEST Committee, Tony Badillo, Jack Lipsman, and Al
Maurice filed a complaint in the United States District Court
for the District of Nevada. On September 29, 2008, the PEST
Committee filed an Amended Complaint, adding Kenny
Blackman, We the People, and Citizens in Charge as plain-
tiffs. Count One of the Amended Complaint alleged Nev.
Rev. Stat. 295.009 and 295.061 were vague and overbroad,
constituted a prior restraint, and chilled free speech in viola-
tion of the First and Fourteenth Amendments pursuant to 42
U.S.C. § 1983. Count Two challenged, as violative of the
First, Fifth, and Fourteenth Amendments, statutory provisions
requiring circulators of ballot initiatives to submit a notarized
affidavit attesting that all signatures collected are of registered
voters.
On January 16, 2009, the PEST Committee moved for par-
tial summary judgment on the First Amendment claim (Count
One). On April 27, 2009, the Secretary of State filed a
response to that motion and filed a cross motion for summary
judgment. On August 13, 2009, the district court ruled in
favor of the Secretary of State and dismissed Count One.2 The
2
In the same order, the district court denied a motion to intervene filed
by the Las Vegas Chamber of Commerce, the Reno-Sparks Chamber of
Commerce, the Nevada Mining Association, and the Nevada Taxpayers’
Association, Inc. These same groups filed an Amicus Brief in support of
the Secretary of State of Nevada in connection with this appeal. The dis-
trict court denied the motion to intervene on the ground that the proposed
intervenors’ interests were adequately represented by the Secretary of
State. Aug. 13, 2009 Order at 11-14.
19048 PEST COMMITTEE v. MILLER
parties subsequently stipulated to dismiss Count Two of the
Amended Complaint without prejudice. The district court
entered final judgment on September 15, 2009. The district
court had jurisdiction to hear the PEST Committee’s claims
alleging violations of the United States Constitution. 28
U.S.C. §§ 1331, 1343. This Court has jurisdiction over this
timely appeal pursuant to 28 U.S.C. § 1291.
II
A
The PEST Committee’s primary argument on appeal is that
the district court erred in applying a flexible balancing test,
and in concluding that the challenged statutory provisions
governing ballot initiatives and referenda do not violate the
federal Constitution. The PEST Committee contends that
Nevada’s single-subject and description-of-effect require-
ments, together with its pre-election challenge provision, bur-
den core political speech or otherwise heavily burden First
Amendment rights and, as such, must be subjected to strict
scrutiny and narrowly tailored to serve a compelling state
interest. According to the PEST Committee, strict scrutiny
must be applied to challenges presented “in the context of bal-
lot initiative restrictions.” Appellants’ Br. at 29. The PEST
Committee also asserts, without citation to authority, that the
district court erred “because strict scrutiny is warranted where
the evidence demonstrates that the statutes have enabled pow-
erful opponents of ballot initiatives to undermine the ability
of the people to bring a ballot question to a vote, a right guar-
anteed by the Nevada Constitution.” Appellants’ Br. at 31.
Finally, the PEST Committee urges that the district court
erred in determining that neither the single-subject nor the
description-of-effect requirement is unconstitutionally vague.
It also argues that these requirements are unconstitutionally
overbroad.
This Court reviews a district court’s ruling on cross
motions for summary judgment de novo. Travelers Prop. Cas.
PEST COMMITTEE v. MILLER 19049
Co. of Am. v. Conocophillips Co., 546 F.3d 1142, 1145 (9th
Cir. 2008). Additionally, “constitutional questions of fact
(such as whether certain restrictions create a ‘severe burden’
on an individual’s First Amendment rights) are reviewed de
novo.” Prete v. Bradbury, 438 F.3d 949, 960-61 (9th Cir.
2006).
B
The district court concluded that neither the single-subject
nor the description-of-effect requirement severely burden
speech “because, on their face, they are content neutral and do
not restrict the overall quantum of speech.” Aug. 13, 2009
Order at 15. The district court upheld the constitutionality of
the requirements as reasonable, non-discriminatory means of
furthering the important state interest of protecting the integ-
rity of Nevada’s election process, e.g., by preventing voter
confusion and promoting informed decision making. Id. at 16-
17. The district court separately considered the PEST Com-
mittee’s challenge to the pre-election challenge procedure. It
explained that the pre-election challenge provision does not
create a private right of action to bring pre-election challenges
where none had previously existed; rather, the pre-election
challenge provision “is a ‘procedural mechanism for asserting
challenges to a measure based on the single-subject require-
ment and the description of effect.’ ” Id. at 18 (quoting Las
Vegas Taxpayer Accountability Comm. v. City Council of the
City of Las Vegas, 208 P.3d 429, 438 (Nev. 2009)). The dis-
trict court also stated that the pre-election challenge provision
imposes no burden on political speech:
Properly understood, NRS 295.061 does not burden
Plaintiffs’ First Amendment rights — it protects
them. It is not, as Plaintiffs suggest, an underhanded
attempt by the Legislature to thwart the initiative
process by allowing political opponents to bring
legal challenges to stall petition circulation. Rather,
NRS 295.009 protects initiative proponents’ speech
19050 PEST COMMITTEE v. MILLER
rights by ensuring that any legal challenge based on
the single-subject and description-of-effect require-
ments are brought — and resolved — early. NRS
295.061 also furthers this important interest by pro-
viding a safe haven, after a petition has been chal-
lenged. This safe haven prevents repeat challenges to
a petition based on its description of effect if the
petition is amended in compliance with a court
order. Accordingly, NRS 295.061 is a permissible
and constitutional election regulation.
Id. at 19.3 However, the district court did not expressly con-
sider or rule on whether the challenged aspects of Nevada’s
statutory scheme burden core political speech.
In his Answering Brief, the Secretary of State maintains
that the district court did not err in applying a flexible balanc-
ing test and determining that the challenged statutory provi-
sions are not unduly burdensome and, instead, that they serve
important state interests. However, the Secretary of State’s
argument proceeds from the premise that “[a]t its root,
PEST’s challenge is an assault on the single subject rule.”
Appellee’s Answering Br. at 3.
3
The district court went on to point out some of the practical problems
with the PEST Committee’s position:
The Court is conscientious [sic] that Plaintiffs have invested sig-
nificant time and resources to advocate for the passage of their
proposed initiatives. The Court is also cognizant that Nevada’s
initiative and referendum regulations provide fertile ground for
opponents to file preelection legal challenges that can trip up the
unprepared initiative proponent. But the Constitution does not
require Nevada “to structure its initiative process in the most effi-
cient, user-friendly way possible.” See Biddulph [v. Mortham],
89 F.3d [1491,] 1500-01 [(11th Cir. 1996)]. Further, in the
Court’s view, Plaintiffs would be wise in the future to avoid
repeatedly withdrawing and refiling their petitions, thereby
allowing their opponents to bring repeat legal challenges.
Id. at 19.
PEST COMMITTEE v. MILLER 19051
In support of the Secretary of State’s position, Amici
Curiae, the Las Vegas Chamber of Commerce, the Reno-
Sparks Chamber of Commerce, the Nevada Mining Associa-
tion, and the Nevada Taxpayers’ Association, Inc., argue that
no United States Court of Appeals has ever found a single-
subject rule violative of First Amendment rights and explain
that both the Eleventh Circuit and the Tenth Circuit have
found single-subject rules to be “perfectly valid exercises of
the state’s prerogative to structure its election processes in the
manner it considers best suited to maintaining and preserving
its integrity.” Amicus Br. at 3. Amici also maintain that the
judges of Nevada’s First Judicial District Court in Carson
City, Nevada (the court in which all such challenges must be
brought initially) “have heard a number of such challenges in
the five years since the enactment of the single subject rule,
and the decisions . . . are very surely building a body of prece-
dent in interpreting and applying N.R.S. 295.009 — the very
same process that any rule, any law, undergoes.” Id. at 10.
Responding to the PEST Committee’s concerns about “poten-
tial misuses of pre-election challenges by erstwhile ‘political
opponents[,]’ ” Amici note that “in the context of the Nevada
Code generally, granting citizens such rights to participate [is]
unremarkable, commonplace, and constitutional.” Id. at 12-13
(citing Nevada Election Code provisions creating rights of
action to: demand and receive a recount of the vote for a bal-
lot question, Nev. Rev. Stat. 293.403(2); contest the election
of any candidate, Nev. Rev. Stat. 293.407(1); challenge the
qualifications of political candidates on the grounds that the
candidate fails to meet any qualification required for the
office, Nev. Rev. Stat. 293.182 and Nev. Rev. Stat. 293C.186;
challenge the legal sufficiency of a petition to recall an
elected official, Nev. Rev. Stat. 306.040(5); and challenge, in
court, the qualifications of a minor political party, Nev. Rev.
Stat 293.174).
The gravamen of the PEST Committee’s argument is that
the pre-election challenge provision, which permits private
parties to bring suit in state court to challenge initiative and
19052 PEST COMMITTEE v. MILLER
referendum petitions as failing to satisfy the single-subject or
description-of-effect requirements, must be subjected to strict
scrutiny because it either (a) burdens core political speech or
(b) otherwise imposes severe burdens on political speech pro-
tected by the First Amendment.
III
[1] “The protection given speech and press was fashioned
to assure unfettered interchange of ideas for the bringing
about of political and social changes desired by the people.”
Roth v. U.S., 354 U.S. 476, 484 (1957). “Of course, core polit-
ical speech need not center on a candidate for office. The
principles enunciated in Buckley [v. Valeo, 424 U.S. 1 (1976)]
extend equally to issue-based elections . . . .” McIntyre v.
Ohio Elections Comm’n, 514 U.S. 334, 347 (1995).
[2] The precise contours of what constitutes “core political
speech” are less than perfectly clear. In Meyer v. Grant, 486
U.S. 414 (1988), the Supreme Court explained that “the circu-
lation of a petition . . . is appropriately described as ‘core
political speech’ ” because it involves “interactive communi-
cation concerning political change.” Id. at 421-22 (applying
strict scrutiny to Colorado’s prohibition on paying petition
circulators). In Buckley v. American Constitutional Law
Foundation, 525 U.S. 182 (1999), the Supreme Court applied
heightened scrutiny to Colorado’s name badge and reporting
requirements for petition circulators, concluding that the “re-
strictions in question significantly inhibit communication with
voters about proposed political change” because the one-on-
one communication involved in petition circulation requires
circulators to “endeavor to persuade electors to sign the peti-
tion.” Id. at 192, 199.
Concurring in Buckley, Justice Thomas considered the dis-
tinction between regulations affecting core political speech
and those regulating “mechanics of the electoral process”:
PEST COMMITTEE v. MILLER 19053
When core political speech is at issue, we have ordi-
narily applied strict scrutiny without first determin-
ing that the State’s law severely burdens speech.
Indeed, in McIntyre v. Ohio Elections Comm’n, 514
U.S. 334, 115 S. Ct. 1511, 131 L. Ed.2d 426 (1995),
the Court suggested that we only resort to our
severe/lesser burden framework if a challenged elec-
tion law regulates “the mechanics of the electoral
process,” not speech. Id., at 345, 115 S. Ct. 1511; but
see Eu v. San Francisco County Democratic Central
Comm., 489 U.S. 214, 222-223, 109 S. Ct. 1013, 103
L. Ed.2d 271 (1989) (first determining that Califor-
nia’s prohibition on primary endorsements by the
official governing bodies of political parties bur-
dened speech and association and then applying
strict scrutiny). I suspect that when regulations of
core political speech are at issue it makes little dif-
ference whether we determine burden first because
restrictions on core political speech so plainly
impose a “severe burden.”
Buckley, 525 U.S. at 207-08 (Thomas, J. concurring); see also
Campbell v. Buckley, 203 F.3d 738, 745 (10th Cir. 2000)
(attempting to synthesize Supreme Court case law regarding
when the application of strict scrutiny is required and con-
cluding that “strict scrutiny is employed where the quantum
of speech is limited due to restrictions on campaign expendi-
tures, . . . the available pool of circulators or other supporters
of a candidate or initiative, . . . or the anonymity of such sup-
porters . . . .”). In Rubin v. City of Santa Monica, this Court
considered a challenge to a city’s refusal to permit a political
candidate to designate on the ballot his occupation as “peace
activist.” 308 F.3d 1008, 1011 (9th Cir. 2002). Acknowledg-
ing that the restriction burdened the candidate’s speech, the
Court went on to explain that “[c]ourts will uphold as ‘not
severe’ restrictions that are generally applicable, even-handed,
politically neutral, and which protect the reliability and integ-
rity of the election process.” Id. at 1014.
19054 PEST COMMITTEE v. MILLER
[3] In Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006), we
summarized the general rule for determining the appropriate
level of scrutiny for First Amendment challenges to state elec-
tion laws:
As discussed infra, the circulation of initiative and
referendum petitions involves “core political
speech,” and is, therefore, protected by the First
Amendment. See Meyer v. Grant, 486 U.S. 414, 421-
22, 108 S. Ct. 1886, 100 L. Ed.2d 425 (1988).
The First Amendment does not, however, prohibit
all restrictions upon election processes: “States may,
and inevitably must, enact reasonable regulations of
parties, elections, and ballots to reduce election- and
campaign-related disorder.” Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358, 117 S. Ct. 1364,
137 L. Ed.2d 589 (1997). Indeed, the U.S. Supreme
Court has recognized “States allowing ballot initia-
tives have considerable leeway to protect the integ-
rity and reliability of the initiative process, as they
have with respect to election processes generally.”
Buckley, 525 U.S. at 191, 119 S. Ct. 636 (1999).
For purposes of determining whether a state elec-
tion law violates an individual’s First Amendment
rights, we “weigh the character and magnitude of the
burden the State’s rule imposes on those rights
against the interests the State contends justify that
burden, and consider the extent to which the State’s
concerns make the burden necessary. Regulations
imposing severe burdens on plaintiffs’ rights must
be narrowly tailored and advance a compelling state
interest. Lesser burdens, however, trigger less exact-
ing review, and a State’s important regulatory inter-
ests will usually be enough to justify reasonable,
nondiscriminatory restrictions.” Arizona Right to
Life Political Action Comm. [v. Bayless], 320 F.3d
PEST COMMITTEE v. MILLER 19055
[1002,] 1007-08 [(9th Cir. 2003)] (quoting Timmons,
520 U.S. at 358, 117 S. Ct. 1364) (emphases added
and internal quotation marks omitted). The U.S.
Supreme Court has counseled against establishing
any bright-line rule in this field: “no litmus-paper
test will separate valid ballot-access provisions from
invalid interactive speech restrictions; we have come
upon no substitute for the hard judgments that must
be made.” Buckley, 525 U.S. at 192, 119 S. Ct. 636
(internal quotation marks omitted).
Id. at 961; see also Nader v. Brewer, 531 F.3d 1028, 1034-35
(9th Cir. 2008) (considering challenge to Arizona election
laws related to the circulation of nomination petitions to place
independent candidates on the ballot and explaining that, in
the leading case in our circuit, Libertarian Party of Washing-
ton v. Munro, 31 F.3d 759 (9th Cir. 1994), “[w]e held that the
burden on plaintiffs’ rights should be measured by whether,
in light of the entire statutory scheme regulating ballot access,
‘reasonably diligent’ candidates can normally gain a place on
the ballot, or whether they will rarely succeed in doing so”).
[4] When strict scrutiny is applied to a law that burdens
core political speech or that imposes severe burdens on plain-
tiff’s rights, the law must be narrowly tailored to serve a com-
pelling government interest. See Buckley, 525 U.S. at 207
(“When a State’s election law directly regulates core political
speech, we have always subjected the challenged restriction to
strict scrutiny and required that the legislation be narrowly
tailored to serve a compelling governmental interest.”).
A
The district court did not err in concluding that neither the
single-subject nor description-of-effect requirement consti-
tutes a direct regulation of core political speech or imposes a
severe burden on the PEST Committee’s First Amendment
rights.
19056 PEST COMMITTEE v. MILLER
[5] The Nevada requirements are prerequisites to the cir-
culation of initiative and referendum petitions. They do not
implicate protections for core political speech because they do
not directly affect or even involve one-on-one communica-
tions with voters. See Nevadans for the Protection of Property
Rights, Inc. v. Heller, 141 P.3d 1235, 1243 (Nev. 2006)
(“Nevada’s single-subject requirement does not prevent peti-
tioners from addressing multiple subjects and thereby restrict
the quantum of speech. It simply requires petitioners to
address separate subjects in separate petitions.”). Instead, the
district court correctly concluded that the requirements
advance Nevada’s important interests in avoiding confusion,
promoting informed decision-making, and preventing “logroll-
ing.”4 The provisions represent a permissible regulation of the
mechanics of the electoral process. They do not, in and of
themselves, have the effect of limiting the overall quantum of
speech available to the electorate.
As Amici point out in their brief, both the Tenth Circuit and
the Eleventh Circuit have upheld the constitutionality of
single-subject requirements. Amicus Br. at 3. In Biddulph v.
Mortham, 89 F.3d 1491 (11th Cir. 1996), the Eleventh Circuit
explained:
We hold that a state’s broad discretion in adminis-
tering its initiative process is subject to strict scrutiny
only in certain narrow circumstances. We obviously
would be concerned about free speech and freedom-
of-association rights were a state to enact initiative
regulations that were content based or had a dispa-
rate impact on certain political viewpoints. We also
would be troubled were a state to apply facially neu-
4
The Nevada Supreme Court has defined “logrolling” as the use of ini-
tiatives that lead petition signators and voters to “sign[ ] or vot[e] for a
multifaceted petition in order to effect at least one element of change.”
Nevadans for the Protection of Property Rights, Inc. v. Heller, 141 P.3d
1235, 1251 (Nev. 2006).
PEST COMMITTEE v. MILLER 19057
tral regulations in a discriminatory manner. See Tax-
payers United for Assessment Cuts v. Austin, 994
F.2d 291, 297 (6th Cir.1993) (holding that the First
Amendment Free Speech Clause does not constrain
a state’s ability to regulate its own initiative process
as long as the state does not elect or enforce initia-
tive procedures in a discriminatory or content-based
manner). Nor, as Meyer [v. Grant, 486 U.S. 414
(1988)] held, could a state impermissibly burden the
free exchange of ideas about the objective of an ini-
tiative proposal. Most restrictions a state might
impose on its initiative process would not implicate
First Amendment concerns.
The restriction at issue in this case is not subject
to strict scrutiny. . . . Rather, Biddulph solely con-
tends that Florida’s process is burdensome because
it is unpredictable and imposes unnecessary costs on
initiative sponsors. But the Constitution does not
require Florida to structure its initiative process in
the most efficient, user-friendly way possible.
Id. at 1500-01 (footnotes omitted). Similarly, in Campbell, the
Tenth Circuit determined that Colorado’s single-subject and
other “title setting” requirements were not subject to strict
scrutiny because
the balancing test is a general approach our court and
the Supreme Court have employed in deciding the
constitutionality of content-neutral regulation of the
voting process. A balancing test takes account of the
Supreme Court’s recognition that, as a practical mat-
ter, there must be a substantial regulation of elec-
tions if they are to be fair and honest and if some sort
of order, rather than chaos, is to accompany the dem-
ocratic processes.
Strict or exacting scrutiny has been employed in
circumstances not presented in the pending case. The
19058 PEST COMMITTEE v. MILLER
cases discussed above [e.g., McIntyre, Meyer, and
Buckley] which applied strict scrutiny do not lend
themselves to a simple synthesis. As we read them,
however, strict scrutiny is applied where the govern-
ment restricts the overall quantum of speech avail-
able to the election or voting process. More
particularly, strict scrutiny is employed where the
quantum of speech is limited due to restrictions on
campaign expenditures, as in Valeo, the available
pool of circulators or other supporters of a candidate
or initiative, as in ACLF and Meyer, or the anonym-
ity of such supporters, as in ACLF, Valeo, and McIn-
tyre v. Ohio Elections Comm’n.
Campbell, 203 F.3d at 745 (internal quotation marks omitted).
[6] Nevada’s single-subject and description-of-effect
requirements are content neutral. The PEST Committee has
failed to demonstrate that they are applied in a discriminatory
manner. Accordingly, the district court did not err in applying
the more flexible balancing test to those requirements and
determining that they serve important state interests. See, e.g.,
Las Vegas Taxpayer Accountability Comm. v. City Council of
the City of Las Vegas, 208 P.3d 429, 436-37 (Nev. 2009)
(“[T]he single-subject requirement helps both in promoting
informed decisions and in preventing the enactment of unpop-
ular provisions by attaching them to more attractive proposals
or concealing them in lengthy, complex initiatives (i.e., log-
rolling).”).
B
[7] The district court’s analysis of the pre-election chal-
lenge provision presents a somewhat closer question because
the PEST Committee did present evidence tending to show
that challenges by opponents have tied initiative petitions up
in litigation for extended periods of time or that, in some
cases, they have left the proponents without sufficient time to
PEST COMMITTEE v. MILLER 19059
gather signatures in advance of the filing deadlines for a par-
ticular election cycle. Although it is the actual circulation pro-
cess (and the attendant one-on-one communication with
potential voters) that has been determined to be “core political
speech,” the fact that the pre-election challenges may, in some
cases, prevent petitions from being placed on the ballot could
be viewed as implicating core political speech concerns.
However, the PEST Committee has not established that
Nevada’s process for preparing an initiative or referendum
petition for circulation constitutes, or otherwise directly
affects, the type of “interactive communication concerning
political change” that is properly considered core political
speech. The pre-election challenge procedure does not involve
one-on-one communication with voters, and the PEST Com-
mittee has not argued or demonstrated that initiative or refer-
endum proponents have, or should have, a right to engage in
one-on-one communication with voters about their political
ideas before Nevada’s single-subject and description-of-effect
requirements are satisfied. Accordingly, the pre-election chal-
lenge procedure does not implicate core political speech, and
the remaining inquiry is whether it imposes a severe burden
on speech by restricting the overall quantum of speech avail-
able to Nevada’s electorate.
[8] Assuming that pre-election challenges may burden
First Amendment rights in that they may delay or, in some
cases, prevent the circulation of initiative or referendum peti-
tions in a particular election cycle, the PEST Committee iden-
tifies no basis for determining that permitting political
opponents to vet petitions for compliance with the single-
subject and description-of-effect requirements functions in
anything other than a content-neutral and non-discriminatory
manner. In any event, whatever burden there may be was not
created by the statute. Section 295.061 does not create a new
right of action. As the district court explained:
In Herbst Gaming, Inc. v. Heller, the Nevada
Supreme Court reiterated that Nevada courts — like
19060 PEST COMMITTEE v. MILLER
the majority of jurisdictions — are authorized to hear
pre-election challenges that allege that a petition vio-
lates procedural requirements or includes inappropri-
ate subject matter. 122 Nev. 877, 141 P.3d 1224,
1228 (2006). Thus for example, in the 2006 case of
Nevadans for Property Rights v. Heller, Nevada
courts properly heard a legal challenge based on
NRS 295.009’s single-subject requirement even
though the single-subject requirement was not
brought within the ambit of NRS 295.061 until a
year later. 122 Nev. 894, 141 P.3d 1235, 1245
(2006); 2007 Nev. Stat. 1251. . . . Consequently,
Plaintiffs’ asserted interpretation-that NRS 295.061
creates a private right of action-is inconsistent with
the widespread practice in Nevada courts of hearing
pre-election challenges where no specific statute
authorizes such challenges.
Aug. 13, 2009 Order at 17-18 (footnotes omitted). Rather, the
pre-election challenge provision codifies and, in fact, imposes
limits on, the use of the existing common law writ process.
See Appellee’s Br. at 33 (“The provision limiting pre-petition
challenge to 15 days is a rule to establish an orderly process
in place of the alternative, which would be an undefined writ
petition process.”). Additionally, as the district court
observed, the choices and the conduct of ballot initiative pro-
ponents appear to have played a role in preventing at least
some petitions from ultimately being placed on the ballot.
Aug. 13, 2009 Order at 18 (suggesting that initiative propo-
nents “would be wise in the future to avoid repeatedly with-
drawing and refiling their petitions, thereby allowing their
opponents to bring repeat legal challenges”). Stated other-
wise, the PEST Committee has not demonstrated that, in light
of Nevada’s entire statutory scheme regulating ballot access,
taken separately or together, the single-subject, description-
of-effect, and pre-election challenge provisions prevent rea-
sonably diligent ballot initiative and referenda proponents
from gaining a place on the ballot. The district court did not
PEST COMMITTEE v. MILLER 19061
err in applying a flexible balancing test to the pre-election
challenge provision and, as such, was not obliged to consider
whether Nevada’s system could or should be more narrowly
tailored. Cf. Buckley, 525 U.S. at 191-92 (“As the Tenth Cir-
cuit recognized . . . States allowing ballot initiatives have con-
siderable leeway to protect the integrity and reliability of the
initiative process, as they have with respect to election pro-
cesses generally.” (citing Biddulph, 89 F.3d at 1494, 1500-
01)).
IV
The PEST Committee also asserts that the district court
erred in not finding that the single-subject and description-of-
effect requirements are both vague and unconstitutionally
overbroad. The PEST Committee characterizes its vagueness
and overbreadth arguments as “as applied” challenges.
The district court addressed and rejected the PEST Com-
mittee’s challenge to the single-subject requirement as uncon-
stitutionally vague. The PEST Committee also challenged
Nevada’s single-subject requirement, in its motion for partial
summary judgment, as overbroad and the description-of-
effect requirement as both vague and overbroad. The district
court did not address those issues in its August 13, 2009
order. Although the district court did not address these argu-
ments, they are preserved for appeal. See In re E.R. Fegert,
Inc., 887 F.2d 955, 957 (9th Cir. 1989) (explaining that appel-
late courts may consider an argument “raised sufficiently for
the trial court to rule on it”).
The district court rejected the PEST Committee’s vague-
ness argument in connection with the single-subject require-
ment for two reasons. First, “single-subject requirements have
been upheld by several other jurisdictions.” Aug. 13, 2009
Order at 16 (citing Campbell, 203 F.3d 738 (10th Cir. 2000);
Biddulph, 89 F.3d 1491 (11th Cir. 1996); and Wasson v. Ore-
gon, 2005 WL 711683 (D. Or. 2005)). Second, the district
19062 PEST COMMITTEE v. MILLER
court explained that “although courts are generally concerned
that vague laws will chill constitutionally protected speech, a
single-subject requirement, even if strictly enforced, is
unlikely to chill speech. Rather, it forces proponents to bring
multiple initiatives in order to legislate on multiple issues.”
Id. at 16-17 (internal citations omitted).
[9] The constitutionality of a state law that operates in the
area of First Amendment freedoms may be attacked as over-
broad or vague:
First, the overbreadth doctrine permits the facial
invalidation of laws that inhibit the exercise of First
Amendment rights if the impermissible applications
of the law are substantial when judged in relation to
the statute’s plainly legitimate sweep. Second, even
if an enactment does not reach a substantial amount
of constitutionally protected conduct, it may be
impermissibly vague because it fails to establish
standards for the police and public that are sufficient
to guard against the arbitrary deprivation of liberty
interests.
City of Chicago v. Morales, 527 U.S. 41, 52 (1999) (emphasis
added) (internal citations and quotation marks omitted) (out-
lining standards for facial challenges); see also Kolender v.
Lawson, 461 U.S. 352, 358 n.8 (1983) (noting that the
Supreme Court has “traditionally viewed vagueness and over-
breadth as logically related and similar doctrines”).
A
In connection with its vagueness challenge, the PEST Com-
mittee argues that: (a) the statutory provision defining the
term “one subject” to mean that “the parts of the proposed ini-
tiative” are “functionally related and germane to each other”
is unconstitutionally vague because it provides insufficient
guidance to proponents of ballot initiatives as well as to courts
PEST COMMITTEE v. MILLER 19063
that interpret them; and (b) the description-of-effect require-
ment similarly provides “[n]o additional guidance” for the
terms used in that section. Appellants’ Opening Br. at 40-47.
[10] A statute challenged for vagueness may be “judged on
an as-applied basis.” Maynard, 486 U.S. at 361. “To deter-
mine whether a statute is unconstitutionally vague as applied,
a two-part test is used: a court must first determine whether
the statute gives the person of ordinary intelligence a reason-
able opportunity to know what is prohibited and then consider
whether the law provides explicit standards for those who
apply it.” U.S. v. Strauss, 999 F.2d 692, 697-98 (2d Cir. 1993)
(internal citations, quotations, and alterations omitted). “Ob-
jections to vagueness . . . rest on the lack of notice, and hence
may be overcome in any specific case where reasonable per-
sons would know that their conduct is at risk.” Maynard v.
Cartwright, 486 U.S. 356, 361 (1988). “[W]here a statute
imposes criminal penalties, the standard of certainty is
higher.” Kolender, 461 U.S. at 358 n.8.
[11] Here, the district court did not err in determining that
Nevada’s single-subject requirement is not impermissibly
vague as applied. The terms “single subject” and “description
of effect” are not in and of themselves “so lacking in meaning
as to be invalid.” Cf. Textile Workers Pension Fund v. Stan-
dard Dye & Finishing Co., 725 F.2d 843, 855-56 (2d Cir.
1984) (subjecting statutes governing economic regulation to
less stringent vagueness tests than those governing constitu-
tionally protected rights). Section 295.009(2) includes a defi-
nition of “single subject” that provides comprehensible
guidance about the nature and purpose of the term. Nev. Rev.
Stat 295.009(2) (“[A] petition . . . embraces but one subject
and matters necessarily connected therewith and pertaining
thereto, if the parts of the proposed initiative or referendum
are functionally related and germane to each other in a way
that provides sufficient notice of the general subject of, and
of the interests likely to be affected by, the proposed initiative
or referendum.”).
19064 PEST COMMITTEE v. MILLER
[12] The mere fact that some initiative and referenda peti-
tions have been successfully challenged as violative of the
single-subject or description-of-effect provisions does not
establish that individuals or courts are unable to discern what
is required or that the provisions are “so standardless that
[they] authorize[ ] or encourage[ ] seriously discriminatory
enforcement.” U.S. v. Williams, 553 U.S. 285, 304-05 (2008)
(citing Hill v. Colorado, 530 U.S. 703, 732 (2000)). Although
Nevada’s courts have not yet reached a perfectly uniform
approach to analyzing the application of the single-subject
and description-of-effect requirements, the lack of “perfect
clarity and precise guidance” is not a sufficient basis for
declaring the provisions unconstitutionally vague. Id. (quoting
Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)).
Stated otherwise, evidence that some ballot petitions have
been successfully challenged does not demonstrate that the
language of either the single-subject or the description-of-
effect requirement is insufficient to provide persons of ordi-
nary intelligence a reasonable opportunity to understand what
is required for ballot initiatives and referenda, and the lan-
guage of the statutory requirements provides sufficiently
explicit standards for judges charged with reviewing their
application.
B
In connection with its overbreadth challenge, the PEST
Committee asserts that the application of the single-subject
and description-of-effect requirements “ha[s] acted to chill the
legitimate speech of those who sought to take advantage of
their constitutional right to bring ballot initiatives before the
public.” Appellants’ Br. at 50.
[13] Where a law’s broad sweep inhibits the exercise of
protected First Amendment rights, it is deemed overbroad;
and it will be struck down in its entirety if its overbreadth is
“not only . . . real, but substantial as well, judged in relation
to the statute’s plainly legitimate sweep.” Broadrick v. Okla-
PEST COMMITTEE v. MILLER 19065
homa, 413 U.S. 601, 615 (1973). “In addressing . . . a facial
overbreadth challenge, a court’s first task is to ascertain
whether the enactment reaches a substantial amount of consti-
tutionally protected conduct.” Boos v. Barry, 485 U.S. 312,
329 (1988). The Supreme Court has explained that the doc-
trine of overbreadth
seeks to strike a balance between competing social
costs. Virginia v. Hicks, 539 U.S. 113, 119-120, 123
S. Ct. 2191, 156 L. Ed.2d 148 (2003). On the one
hand, the threat of enforcement of an overbroad law
deters people from engaging in constitutionally pro-
tected speech, inhibiting the free exchange of ideas.
On the other hand, invalidating a law that in some of
its applications is perfectly constitutional . . . has
obvious harmful effects. In order to maintain an
appropriate balance, we have vigorously enforced
the requirement that a statute’s overbreadth be sub-
stantial, not only in an absolute sense, but also rela-
tive to the statute’s plainly legitimate sweep.
Williams, 553 U.S. at 292-93 (2008); see also Virginia v.
Hicks, 539 U.S. 113, 122 (2003) (explaining that the over-
breadth doctrine applies where the challenged law or policy
“taken as a whole, is substantially overbroad judged in rela-
tion to its plainly legitimate sweep” and that “[t]he over-
breadth claimant bears the burden of demonstrating, from the
text of the law and from actual fact, that substantial over-
breadth exists”) (internal quotations, citations, and alterations
omitted).
[14] Read in the context of Nevada’s legitimate interests
and the statute’s plainly legitimate sweep, each challenged
statutory provision “communicates its reach in words of com-
mon understanding.” Boos, 485 U.S. at 332. Any purported
“overbreadth” inherent in the single-subject and the
description-of-effect requirements cannot reasonably be said
to be “substantial” in any absolute sense or in relationship to
19066 PEST COMMITTEE v. MILLER
Nevada’s interest in regulating its electoral process, because
the requirements do not have the effect of thwarting all
attempts to place initiatives and referenda before the voters.
See C & C Plywood Corp. v. Hanson, 583 F.2d 421, 425 (9th
Cir. 1978) (declaring unconstitutional a Montana law that pro-
hibited all corporate contributions in support of or opposition
to ballot issues, explaining that “[i]t is not minimally regula-
tory but totally prescriptive and therefore overbroad”). We are
persuaded that the PEST Committee has not demonstrated
that Nevada’s single-subject or description-of-effect require-
ments are unconstitutionally overbroad.
Conclusion
We affirm the district court’s grant of summary judgment
in favor of the Secretary of State because the district court did
not err in applying the more flexible balancing test that is
appropriate for challenges to state election laws that impose
a less severe burden on First Amendment rights, and in con-
cluding that the single-subject and description-of-effect
requirements, Nev. Rev. Stat. 295.009, are not unconstitution-
ally vague or overbroad.
AFFIRMED.