Angle v. Miller

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHARRON E. ANGLE; CITIZENS IN 
CHARGE; KENNETH R. BLACKMAN;
No. 10-16707
TONY BADILLO; JACK LIPSMAN; AL
MAURICE; PEST COMMITTEE, D.C. No.
Plaintiffs-Appellants,  2:09-cv-01969-JCM-
LRL
v.
OPINION
ROSS MILLER, Secretary of State,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding

Argued and Submitted
September 1, 2011—San Francisco, California

Filed March 14, 2012

Before: Raymond C. Fisher and Johnnie B. Rawlinson,
Circuit Judges, and Richard Mills, District Judge.*

Opinion by Judge Fisher

*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.

3009
3012 ANGLE v. MILLER

COUNSEL

Kermitt L. Waters (argued), Las Vegas, Nevada; Don P.
Chairez (argued), for the appellants.

Catherine Cortez Masto, Attorney General; K. Kevin Benson
(argued), Deputy Attorney General, Carson City, Nevada, for
the appellee.
 ANGLE v. MILLER 3013
OPINION

FISHER, Circuit Judge:

Nevada permits direct legislation through ballot initiatives.
To qualify an initiative for the ballot, proponents must obtain
signatures from a number of registered voters equal to 10 per-
cent of the votes cast in the previous general election in each
of the state’s congressional districts. The district court held
that this geographic distribution requirement, which requires
proponents to collect signatures from each of the state’s con-
gressional districts, violates neither the Equal Protection
Clause nor the First Amendment. We affirm.

I. Background

The Nevada Constitution authorizes the citizens of Nevada
to enact statutes and amend the Nevada Constitution through
the initiative process. See Nev. Const. art. 19, § 2. To place
an initiative on the ballot, proponents must obtain signatures
from a number of registered voters equal to 10 percent of the
votes cast in the previous general election. See id.

This signature requirement is also subject to a geographic
distribution requirement known as the All Districts Rule.1
1
The state adopted the All Districts Rule after courts invalidated the
state’s previous geographic distribution requirements. See ACLU of Nev.
v. Lomax, 471 F.3d 1010, 1012, 1018-21 (9th Cir. 2006) (striking down
Nevada’s “13 Counties Rule,” adopted in 1958 and requiring initiative
proponents to obtain signatures from a number of registered voters equal
to 10 percent or more of the number of voters who voted in the last pre-
ceding general election in 13 of the state’s 17 counties); Marijuana Policy
Project v. Miller, 578 F. Supp. 2d 1290, 1307-09 (D. Nev. 2008) (striking
down the state’s “All Counties Rule,” requiring initiative proponents to
obtain signatures from registered voters equal to at least 10 percent of vot-
ers in the last general election in each county of the state). In each case,
the court concluded that the geographic distribution requirement violated
the Equal Protection Clause by affording sparsely populated counties the
3014 ANGLE v. MILLER
Adopted in 2009, the All Districts Rule requires initiative pro-
ponents to meet the 10 percent signature threshold in each of
the state’s congressional districts. See Act of June 17, 2011,
ch. 501, 2011 Nev. Laws, § 64 (to be codified at Nev. Rev.
Stat. § 295.012) (“A petition for initiative or referendum that
proposes a constitutional amendment or statewide measure
must be proposed by a number of registered voters from each
petition district in the State that is at least equal to 10 percent
of the voters who voted in that petition district at the last pre-
ceding general election.”); Act of June 13, 2011, ch. 320,
2011 Nev. Laws, § 1 (to be codified at Nev. Rev. Stat.
§ 293.069) (“’Petition district’ means a district . . . for the
election of Representatives in Congress.”).

Nevada had three congressional districts at the time the
state adopted the All Districts Rule and at the time the plain-
tiffs filed this lawsuit. The First and Third Districts were
located within Clark County, which is situated in the south-
east corner of the state and includes Las Vegas. The Second
District included each of the state’s other 16 counties, includ-
ing all of northern Nevada, as well as portions of Clark
County not included in the First and Third Districts. Nevada
will have four congressional districts once the 2010 reappor-
tionment and redistricting processes are completed. The
state’s congressional districts have equal populations, as the
federal Constitution requires. See Karcher v. Daggett, 462
U.S. 725, 730 (1983).

same political power as heavily populated counties, thereby diluting the
political power of voters living in the more populous counties. See Lomax,
471 F.3d at 1019-20; Marijuana Policy Project, 578 F. Supp. 2d at 1308-
09. In each case, the court also suggested that the state could avoid consti-
tutional problems by requiring initiative proponents to obtain signatures
from districts having equal populations. See Lomax, 471 F.3d at 1021;
Marijuana Policy Project, 578 F. Supp. 2d at 1304, 1309. By adopting the
All Districts Rule, which requires signatures to be gathered from congres-
sional districts having equal populations, Nevada has followed that advice.
 ANGLE v. MILLER 3015
This action presents a facial challenge to the All Districts
Rule. The plaintiffs are five individuals and two organiza-
tions, each of which opposes the All Districts Rule. Second
Am. Compl. ¶¶ 17-26. The defendant is Ross Miller,
Nevada’s Secretary of State, who is sued solely in his official
capacity. Id. at 1. We refer to the plaintiffs collectively as
“plaintiffs” and to the defendant as “the state.”

The plaintiffs seek an order declaring the All Districts Rule
unconstitutional and enjoining the state from enforcing it. As
relevant here, they raise two claims. First, they contend that
the All Districts Rule violates the Equal Protection Clause by
allowing a minority of the state’s population to veto the
wishes of the majority with regard to ballot initiatives, making
the votes of some citizens more influential than those of oth-
ers. Second, they contend that the All Districts Rule violates
the First Amendment by significantly increasing the burdens
and expenses placed upon individuals seeking to quality ini-
tiatives for the ballot.

The parties filed cross motions for summary judgment and
the district court rejected the plaintiffs’ claims in a published
opinion. See Angle v. Miller, 722 F. Supp. 2d 1206 (D. Nev.
2010).2 The plaintiffs timely appealed. We have jurisdiction
under 28 U.S.C. § 1291, we review de novo, see City of L.A.
v. San Pedro Boat Works, 635 F.3d 440, 446 (9th Cir. 2011),
and we affirm.

II. Equal Protection

[1] “Voting is a fundamental right subject to equal protec-
tion guarantees under the Fourteenth Amendment.” Idaho
Coal. United for Bears v. Cenarrusa, 342 F.3d 1073, 1076
2
The district court granted summary judgment to the plaintiffs on one
issue — their challenge to the circulator affidavit requirements of Nevada
Administrative Code section 295.020. See Angle, 722 F. Supp. 2d at 1209-
10. The state does not appeal that ruling.
3016 ANGLE v. MILLER
(9th Cir. 2003). A state “may decline to grant a right to legis-
late through ballot initiatives.” Id. at 1077 n.7. “All proce-
dures used by a State as an integral part of the election
process,” however, “must pass muster against the charges of
discrimination or of abridgment of the right to vote.” Moore
v. Ogilvie, 394 U.S. 814, 818 (1969). Thus, when a state
chooses to give its citizens the right to enact laws by initia-
tive, “it subjects itself to the requirements of the Equal Protec-
tion Clause.” Idaho Coalition, 342 F.3d at 1077 n.7.

Here, the plaintiffs argue that the All Districts Rule violates
equal protection for three reasons: (1) that it results in vote
dilution under the principle of Moore v. Ogilvie, 394 U.S. 814
(1969); (2) that it results in vote dilution under a principle
articulated in Gray v. Sanders, 372 U.S. 368, 381 & n.12
(1963), and Gordon v. Lance, 403 U.S. 1, 4-5 (1971); and (3)
that it discriminates against an identifiable class of voters. We
address their arguments in turn.

A.

[2] “[T]he right of suffrage can be denied by a debasement
or dilution of the weight of a citizen’s vote just as effectively
as by wholly prohibiting the free exercise of the franchise.”
Reynolds v. Sims, 377 U.S. 533, 555 (1964). Consistent with
this principle, both the Supreme Court and this court have
invalidated geographic distribution requirements that allocate
equal political power to geographical units having unequal
population.

In Moore, 394 U.S. at 815, 818-19, the Supreme Court
invalidated an Illinois law requiring presidential candidates
seeking a place on the ballot to obtain 200 petition signatures
from each of at least 50 of the state’s 102 counties. The law
violated the principle of one person, one vote because it gave
equal political power to “sparsely settled counties and popu-
lous counties alike, contrary to the constitutional theme of
 ANGLE v. MILLER 3017
equality among citizens in the exercise of their political
rights.” Id. at 818-19.

We extended Moore to ballot initiatives in Idaho Coalition,
which invalidated an Idaho law requiring initiative proponents
to obtain signatures from 6 percent of qualified voters in each
of at least half of Idaho’s 44 counties to qualify an initiative
for the ballot. See 342 F.3d at 1074-75. Relying on Moore, we
held that the geographic distribution requirement triggered
strict scrutiny because it “allocate[d] equal power to counties
of unequal population.” Id. at 1078. “[T]he few voters in a
sparsely populated county have a power equal to the vastly
larger number of voters who reside in a populous county.” Id.
We rejected the state’s argument that it had a “compelling
interest in requiring a modicum of statewide support” for pro-
posed ballot measures. Id. Furthermore, even if ensuring
statewide support was a compelling interest, the requirement
was not narrowly tailored because the state “could achieve the
same end through a geographic distribution requirement”
based on districts of equal population. Id. at 1078, 1079.

We relied on both Moore and Idaho Coalition in ACLU of
Nevada v. Lomax, 471 F.3d 1010 (9th Cir. 2006), where we
invalidated Nevada’s former geographic distribution require-
ment, known as the 13 Counties Rule. That rule required ini-
tiative proponents to gather signatures of a number of
registered voters equal to 10 percent or more of the number
of voters who voted at the last preceding general election in
13 of Nevada’s 17 counties. See Nev. Const. art. 19, § 2. Cit-
ing Idaho Coalition, we held that “an initiative qualification
rule that requires a fixed percentage of petition signatures
from a fixed percentage of counties in a state with a substan-
tially uneven geographic distribution pattern, which favors
residents of sparsely populated areas over residents of densely
populated areas, violates the Equal Protection Clause.”
Lomax, 471 F.3d at 1020. We applied strict scrutiny because
the rule “dilute[d] the power of some votes by providing more
sparsely populated counties with the same total power as
3018 ANGLE v. MILLER
densely populated counties.” Id. As in Idaho Coalition, we
held that the state lacked a compelling interest in ensuring a
modicum of statewide support for initiatives. See id. at 1021
& n.13. Furthermore, even if this was a compelling interest,
the 13 Counties Rule was not narrowly tailored because the
state could have ensured statewide support by requiring initia-
tive proponents to obtain signatures from districts, such as
state legislative districts, having equal population. See id. at
1021.

[3] In sum, our case law establishes that geographic distri-
bution requirements assigning equal political power to dis-
tricts of unequal population violate equal protection. The All
Districts Rule, however, avoids that defect. Whereas the rules
in Moore, Idaho Coalition and Lomax afforded equal political
power to counties having unequal populations, the All Dis-
tricts Rule grants equal political power to congressional dis-
tricts having equal populations. It thus does not trigger strict
scrutiny under the principle announced in Moore, and it sur-
vives rational basis review because it serves the state’s legiti-
mate interest in ensuring a minimum of statewide support for
an initiative as a prerequisite to placement on the ballot.

B.

The plaintiffs argue that this is not the end of the inquiry
because “there is more than one way for a state’s election dis-
trict scheme to create vote dilution.” Reply Brief of Appel-
lants 5. They rely on another set of Supreme Court cases
suggesting that, with respect to a statewide election, equal
protection requires votes to be counted on a statewide, rather
than a district-by-district, basis.

This line of authorities begins with Gray v. Sanders, 372
U.S. 368 (1963), which invalidated the way Georgia nomi-
nated candidates for statewide office. The state allocated a
number of “units” to each county, much like the Electoral
College assigns electoral votes to the states. The county unit
 ANGLE v. MILLER 3019
system was based partially on population, but gave sparsely
populated counties a disproportionate number of units relative
to their populations. See Gray, 372 U.S. at 371-73. The
Supreme Court invalidated the system under the principle
later expanded upon in Moore. The scheme violated equal
protection because it “[gave] every qualified voter one vote in
a statewide election; but in counting those votes . . . employ-
[ed] the county unit system which in end result weight[ed] the
rural vote more heavily than the urban vote and weight[ed]
some small rural counties heavier than other larger rural coun-
ties.” Id. at 379. As relevant here, the Court also said that the
unit system would have violated equal protection “even if unit
votes [had been] allocated strictly in proportion to population”
— that is, even if the system did not give disproportionate
weight to small, rural counties. Id. at 381 n.12. The Court
explained that, “[o]nce the geographical unit for which a rep-
resentative is to be chosen is designated, all who participate
in the election are to have an equal vote — . . . wherever their
home may be in that geographical unit.” Id. at 379.

[4] The Court expanded on this principle in Gordon v.
Lance, 403 U.S. 1 (1971):

[I]n Gray, we held that the county-unit system would
have been defective even if unit votes were allocated
strictly in proportion to population. We noted that if
a candidate received 60% of the votes cast in a par-
ticular county he would receive that county’s entire
unit vote, the 40% cast for the other candidates being
discarded. The defect, however, continued to be geo-
graphic discrimination. Votes for the losing candi-
dates were discarded solely because of the county
where the votes were cast. Indeed, votes for the win-
ning candidate in a county were likewise devalued,
because all marginal votes for him would be dis-
carded and would have no impact on the statewide
total.
3020 ANGLE v. MILLER
403 U.S. at 4-5 (emphasis added) (citation omitted). Taken
together, Gray and Gordon suggest that, with respect to a
statewide election, a state must count votes on a statewide,
rather than a district-by-district, basis. Doing otherwise deval-
ues votes based on where voters happen to live. As the Court
said in Reynolds, 377 U.S. at 560, “Gray . . . held that voters
cannot be classified, constitutionally, on the basis of where
they live, at least with respect to voting in statewide elections.”3

[5] Thus, were a state to decide an election for governor by
determining which candidate received a majority of the votes
cast in a majority of districts, rather than determining which
candidate received a majority of the votes cast statewide, it
might impermissibly devalue votes according to Gray and
Gordon. The result presumably would be the same if a state
were to decide an election on a statewide ballot measure by
determining whether the initiative received majority support
in a majority of districts, rather than whether the initiative
received a majority of votes statewide. We must decide
whether this principle disfavoring geographic counting also
extends to the signature phase of a ballot initiative.

Similar to the two examples above, the All Districts Rule
counts petition signatures on a geographic rather than a state-
wide basis. As a result, a ballot initiative may obtain the total
number of signatures required statewide, but fail to qualify for
the ballot solely based on where signers live. The All Districts
Rule thus implicates the concerns raised in Gray, Gordon and
Reynolds that “voters cannot be classified . . . on the basis of
where they live, at least with respect to voting in statewide
elections.” Id.

[6] We do not believe, however, that the All Districts Rule
violates equal protection on this basis. Although language in
3
Although Gray, Gordon and Reynolds all suggest that counting votes
on a district basis for a statewide election would violate equal protection,
none of those cases was decided on that basis.
 ANGLE v. MILLER 3021
Gray, Gordon and Reynolds suggests that a district-by-district
system of counting votes in a statewide election would violate
equal protection, none of the decisions suggests that district-
by-district counting of signatures obtained to qualify an initia-
tive for the ballot presents the same problem. Votes and peti-
tion signatures are similar in some respects, see Idaho
Coalition, 342 F.3d at 1076 (noting that, as a general matter,
“equal protection guarantees . . . apply to ballot access restric-
tions just as they do to elections themselves”), but ballot
access requirements and elections serve different purposes. A
ballot access requirement determines whether there is a mini-
mum level of grassroots support for an initiative to warrant its
inclusion on the ballot. An election, by contrast, measures the
collective, aggregate will of the electorate. These differences
suggest that the bar on district-by-district counting apparently
embodied in Gray, Gordon and Reynolds does not apply to
the counting of petition signatures to qualify initiatives for the
ballot.

[7] This inference is supported by experience. Although
geographic distribution requirements are commonplace at the
ballot access stage, we are not aware of any judicial decision
invalidating them for this reason.4 Our own cases, in fact,
have presumed that geographic distribution requirements are
permissible for signature collection, so long as they involve
districts with equal populations. See Idaho Coalition, 342
F.3d at 1079; see also Lomax, 471 F.3d at 1021. In addition,
it appears that courts that have addressed the issue have uni-
formly upheld geographic distribution requirements for signa-
ture collection when they have been based on equipopulous
districts. See Libertarian Party of Va. v. Davis, 766 F.2d 865,
868 (4th Cir. 1985) (upholding a Virginia law requiring
minor-party presidential candidates to submit signatures from
4
In Moore, the constitutional defect was the allocation of equal political
power to counties with unequal population. See 394 U.S. at 818-19. The
Court did not suggest that requiring signatures to be distributed geographi-
cally was itself impermissible.
3022 ANGLE v. MILLER
200 voters in each of the state’s 10 congressional districts to
gain a place on the ballot, because congressional districts,
unlike county lines, are “apportioned in such a way as to con-
tain, as nearly as practicable, an equal number of inhabi-
tants”), abrogation on other grounds recognized by Lux v.
Judd, 651 F.3d 396, 404 (4th Cir. 2011); Libertarian Party v.
Bond, 764 F.2d 538, 543-44 (8th Cir. 1985) (upholding a Mis-
souri law requiring new political parties to submit signatures
from registered voters in at least one half of the state’s nine
congressional districts as a prerequisite to getting on the bal-
lot, because “Missouri congressional districts are virtually
equal in population,” and “no class of voters is discriminated
against in any manner”); Udall v. Bowen, 419 F. Supp. 746,
747, 749 (S.D. Ind. 1976) (upholding an Indiana law requiring
presidential candidates to submit 500 signatures from each of
the state’s 11 congressional districts to be placed on the presi-
dential preference primary ballot, because “the eleven con-
gressional districts in Indiana are substantially equal in
population”). Thus, whatever limits Gray, Gordon and Reyn-
olds may place on counting votes for a statewide initiative, we
hold that they do not prohibit a state from requiring petition
signatures to be distributed among districts of equal popula-
tion.

C.

The plaintiffs also argue that the All Districts Rule denies
equal protection because it violates the principle of majority
rule, allowing “a small minority of the population of the state
to veto the overwhelming wishes of the majority with regard
to a particular ballot initiative.” Brief of Appellants 13.

[8] “[M]ajority rule” is one of the “ideals” that drives our
democracy. Reynolds, 377 U.S. at 566. “[T]here is nothing in
the language of the Constitution,” however, “that requires that
a majority always prevail on every issue.” Gordon, 403 U.S.
at 6. As the Supreme Court explained in Gordon, where it
upheld a West Virginia law prohibiting political subdivisions
 ANGLE v. MILLER 3023
from incurring bonded indebtedness or increasing tax rates
without the approval of 60 percent of the voters in a referen-
dum election, see id. at 2, “any departure from strict majority
rule gives disproportionate power to the minority,” but “so
long as such provisions do not discriminate against or autho-
rize discrimination against any identifiable class they do not
violate the Equal Protection Clause,” id. at 6-7. Thus, “[t]o the
extent that [Nevada] wishes to create a check on the will of
the majority by a non discriminatory means, the equal protec-
tion clause is no bar.” Idaho Coalition, 342 F.3d at 1079.

[9] Here, we can discern no identifiable class that is dis-
criminated against by the All Districts Rule. It “singles out no
‘discrete or insular minority’ for special treatment.” Gordon,
403 U.S. at 5. It also applies to all initiatives regardless of
subject matter, not solely to initiatives thought to be favored
by a targeted segment of the population. See id.

The plaintiffs suggest that the All Districts Rule discrimi-
nates against urban voters because it gives voters in the rela-
tively rural Second District the ability to veto initiatives
supported by voters in the more urban First and Third Dis-
tricts. Brief of Appellants 19; Badillo Aff. ¶¶ 12, 17. The
plaintiffs offer no evidence in support of this assertion, how-
ever. In any event, voters in the First and Third districts are
not a discrete or insular minority. Nor do voters in the Second
District have a “strangle hold on the State Legislature,” Reyn-
olds, 377 U.S. at 570, that would prevent the majority of vot-
ers in the First and Third Districts from persuading the
legislature to modify the All Districts Rule if it interferes with
their political preferences. The rule thus does not discriminate
against an identifiable class.

III. First Amendment

[10] Under the First Amendment, election “[r]egulations
imposing severe burdens on plaintiffs’ rights must be nar-
rowly tailored and advance a compelling state interest.” Prete
3024 ANGLE v. MILLER
v. Bradbury, 438 F.3d 949, 961 (9th Cir. 2006) (quoting Ariz.
Right to Life Political Action Comm. v. Bayless, 320 F.3d
1002, 1007 (9th Cir. 2003)). “Lesser burdens . . . trigger less
exacting review, and a State’s important regulatory interests
will usually be enough to justify reasonable, nondiscrimina-
tory restrictions.” Id. (quoting Ariz. Right to Life, 320 F.3d at
1007-08). In applying this standard, we bear in mind that
“States allowing ballot initiatives have considerable leeway to
protect the integrity and reliability of the initiative process, as
they have with respect to election processes generally.” Buck-
ley v. Am. Constitutional Law Found., Inc. (ACLF), 525 U.S.
182, 191 (1999). At the same time, we must “separate valid
ballot-access provisions from invalid interactive speech
restrictions,” thus “guard[ing] against undue hindrances to
political conversations and the exchange of ideas.” Id. at 192.
Applying this framework here, we first address whether the
plaintiffs have shown that the All Districts Rule imposes a
severe burden on First Amendment rights and then address
whether the state has articulated a sufficient interest to sustain
the rule.

A. Severe Burden

The Supreme Court has identified at least two ways in
which restrictions on the initiative process can severely bur-
den “core political speech.” Meyer v. Grant, 486 U.S. 414,
422 (1988). First, regulations can restrict one-on-one commu-
nication between petition circulators and voters. See id. at
422-23. Second, regulations can make it less likely that pro-
ponents will be able to garner the signatures necessary to
place an initiative on the ballot, “thus limiting their ability to
make the matter the focus of statewide discussion.” Id. at 423.
We consider each of these types of burdens as applied to the
All Districts Rule.

1. One-on-one Communication Between Circulators
and Voters

[11] Unlike the restrictions on petition circulators at issue
in Meyer and ACLF, the All Districts Rule does not restrict
 ANGLE v. MILLER 3025
one-on-one communication between petition circulators and
voters. It neither “limit[s] the number of voices who will con-
vey the initiative proponents’ message,” ACLF, 525 U.S. at
194-95 (quoting Meyer, 486 U.S. at 422) (alterations and
internal quotation marks omitted), nor “discourages participa-
tion in the petition circulation process,” id. at 200. On the
contrary, in terms of interactive communication between cir-
culators and voters, the All Districts Rule likely increases the
“total quantum of speech” on public issues, by requiring ini-
tiative proponents to carry their messages to voters in differ-
ent parts of the state. Meyer, 486 U.S. at 423. The rule thus
does not impose a severe burden on communication between
circulators and voters.

2. Limiting the Ability to Make an Initiative a Matter
of Statewide Discussion

The plaintiffs nonetheless contend that the All Districts
Rule imposes a severe burden on core political speech
because it makes it more difficult and expensive to qualify an
initiative for the ballot. There is no First Amendment right to
place an initiative on the ballot. See Meyer, 486 U.S. at 424
(recognizing that “the power of the initiative is a state-created
right”). Regulations that make it more difficult to qualify an
initiative for the ballot therefore do not necessarily place a
direct burden on First Amendment rights.

Such regulations, however, may indirectly impact core
political speech. As Meyer recognized, when an initiative fails
to qualify for the ballot, it does not become “the focus of
statewide discussion.” Meyer, 486 U.S. at 423. Ballot access
restrictions may therefore “reduc[e] the total quantum of
speech on a public issue.” Id.5 Thus, as applied to the initia-
5
The state’s power to ban initiatives thus does not include the lesser
power to restrict them in ways that unduly hinder political speech. See
Meyer, 486 U.S. at 424-25 (rejecting the contention “that because the
power of the initiative is a state-created right, [a state] is free to impose
limitations on the exercise of that right,” because “the power to ban initia-
tives entirely” does not include “the power to limit discussion of political
issues raised in initiative petitions”).
3026 ANGLE v. MILLER
tive process, we assume that ballot access restrictions place a
severe burden on core political speech, and trigger strict scru-
tiny, when they significantly inhibit the ability of initiative
proponents to place initiatives on the ballot.

This is similar to the standard we apply to ballot access
restrictions regulating candidates. In that setting, we have held
that “the burden on plaintiffs’ rights should be measured by
whether, in light of the entire statutory scheme regulating bal-
lot access, ‘reasonably diligent’ candidates can normally gain
a place on the ballot, or whether they will rarely succeed in
doing so.” Nader v. Brewer, 531 F.3d 1028, 1035 (9th Cir.
2008) (quoting Libertarian Party of Wash. v. Munro, 31 F.3d
759, 762 (9th Cir. 1994)); see also PEST Comm. v. Miller,
626 F.3d 1097, 1107, 1110 (9th Cir. 2010) (looking to the
Nader standard for guidance in evaluating regulation of the
initiative process).

To establish that the All Districts Rule significantly inhibits
the ability of proponents to place initiatives on the Nevada
ballot, the plaintiffs rely on affidavits submitted by Tony
Badillo, a plaintiff, and Janine Hansen. Badillo is a supporter
of a proposed initiative that would prevent the Las Vegas
casinos from taking tips received by dealers. His affidavit
declares:

With all of our volunteers living in the two congres-
sional districts of Southern Nevada and with all of
our volunteers unable to travel in their spare time to
the Northern part of the state, we are injured by the
requirement of being forced to collect signatures in
all of the districts of the state. As the abuses by the
casinos are only taking part in Las Vegas, it is
impossible to recruit volunteers in the northern part
of Nevada.

Badillo Aff. ¶ 16. Hansen’s affidavit says that she has been
involved in several efforts to gather petition signatures in
 ANGLE v. MILLER 3027
northern Nevada over the past decade. She asserts that it
would be difficult to satisfy the All Districts Rule:

The bureaucratic public officials in Northern Nevada
are hostile to initiative petitions and they are hostile
to allowing citizens to attempt to gather signatures in
a public forum. As the Northern Nevada leader for
several efforts to gather signatures, I have gathered
signatures in every county of Nevada. Congressional
District Two is very hostile to initiative petitions and
it is much more expensive to gather signatures in
these rural counties. Volunteers are more afraid to
travel to these small counties. . . .

Based upon my experience in Congressional District
Two this past decade in gathering signatures, I
believe that the public officials who should be in
charge of protecting our right to petition the govern-
ment will make it very difficult for signature gather-
ers to gather signatures at any public venue. . . .

My volunteers and I are afraid and chilled to exer-
cise our First Amendment rights to gather signatures
for initiative petitions.

Hansen Aff. ¶¶ 13, 19, 27.

[12] Badillo’s and Hansen’s assertions are too vague, con-
clusory and speculative to create a triable issue that the All
Districts Rule significantly reduces the chances that propo-
nents will be able to gather enough signatures to place initia-
tives on the ballot.6 Badillo’s affidavit does not explain, for
6
“Conclusory, speculative testimony in affidavits and moving papers is
insufficient to raise genuine issues of fact and defeat summary judgment.”
Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007)
(adopting district court order); Nelson v. Pima Cmty. Coll., 83 F.3d 1075,
1081-82 (9th Cir. 1996) (“[M]ere allegation and speculation do not create
3028 ANGLE v. MILLER
example, why volunteers would be unable to travel in their
spare time to the northern part of Nevada, what efforts have
been made to recruit volunteers in the northern part of the
state, why the use of volunteer, rather than paid, petition cir-
culators is the only alternative or why signatures cannot be
obtained from voters residing in the portion of the second
congressional district located within Clark County. The plain-
tiffs have presented only speculation, without supporting evi-
dence, that the All Districts Rule imposes a severe burden on
the First Amendment rights of initiative proponents. They
have not presented any evidence that, despite reasonably dili-
gent efforts, they and other initiative proponents have been
unable to qualify initiatives for the ballot as a result of the
geographic distribution requirement imposed by the All Dis-
tricts Rule. On this record, no severe burden has been shown.
Strict scrutiny therefore does not apply.

B. Important Regulatory Interest

[13] Because the plaintiffs have not shown that the All
Districts Rule imposes severe burdens, the state need show
only that the rule furthers “an important regulatory interest.”
Prete, 438 F.3d at 969. The state contends that it has satisfied
this burden because the All Districts Rule “promotes the
State’s important regulatory interests in requiring a modicum
of state-wide support for initiatives that seek to change state-
wide law, or to modify the Nevada Constitution,” and “pre-
vents voter confusion and inefficiency by preventing the bal-
lot from being cluttered with items of primarily local interest,
but which would have state-wide impact.” Defendant-
Appellee’s Answering Brief 28.

a factual dispute for purposes of summary judgment.”); Hansen v. United
States, 7 F.3d 137, 138 (9th Cir. 1993) (per curiam) (“When the nonmov-
ing party relies only on its own affidavits to oppose summary judgment,
it cannot rely on conclusory allegations unsupported by factual data to
create an issue of material fact.”).
 ANGLE v. MILLER 3029
[14] Nevada undeniably has an important regulatory inter-
est “in making sure that an initiative has sufficient grass roots
support to be placed on the ballot.” Meyer, 486 U.S. at 425-
26. The Supreme Court has recognized this interest as “sub-
stantial.” ACLF, 525 U.S. at 204. The issue here is whether
a state can assert an important interest in ensuring that this
grassroots support be distributed throughout the state. Neither
the Supreme Court nor this court has addressed this precise ques-
tion.7

[15] We are persuaded that the state has shown an impor-
tant regulatory interest. The First Amendment permits states
“considerable leeway” in regulating the electoral process, pro-
vided their choices do not produce “undue hindrances to polit-
ical conversations and the exchange of ideas.” ACLF, 525
U.S. at 191-92. We believe this leeway applies to a state’s
decision about how to measure the grassroots support suffi-
cient to qualify an initiative for the ballot. Some states may
prefer a single, statewide signature requirement, while others
may choose a signature requirement with a geographic com-
ponent, restricting the initiative to proposals having a mini-
mum level of statewide support, rather than only localized
support. Half of the states with initiatives currently impose a
geographic distribution requirement on petition signatures,
reflecting the view that “geographic distribution requirements
. . . are important because they force initiative proponents to
demonstrate that their proposal has support statewide, not just
7
Ensuring a modicum of statewide support for an initiative is not a com-
pelling state interest. See Moore, 394 U.S. at 818 (holding that the state’s
asserted interest in ensuring “statewide support for launching a new politi-
cal party rather than support from a few localities” was “no answer” to the
equal protection problems presented by the Illinois law requiring indepen-
dent presidential candidates to obtain signatures from voters in a number
of counties); Lomax, 471 F.3d at 1021 & n.13 (rejecting the state’s conten-
tion that it had a compelling governmental interest in ensuring a modicum
of statewide support for proposed initiatives); Idaho Coalition, 342 F.3d
at 1078 (same). Neither the Supreme Court nor this court, however, has
addressed whether a state’s interest in ensuring statewide support for an
initiative satisfies the lesser “important regulatory interest” standard.
3030 ANGLE v. MILLER
among the citizens of the state’s most populous region.”
Initiative Petition Signature Requirements, National Confer-
ence of State Legislatures (Apr. 7, 2010), available at http://
www.ncsl.org/legislatures-elections/elections-campaigns/
signature-requirements.aspx; see also Thomas E. Cronin,
Direct Democracy 236 (1989) (“Geographic requirements
make sense in states such as New York, Texas, or Hawaii.
Surely a petition in New York should include some signatures
from localities outside New York City; a petition in Texas
should have at least some support in the various regions of
that sprawling state; and some percentage of petitions should
come from some of the outer islands should Hawaii adopt the
initiative and referendum.”). Nevada has therefore articulated
an important regulatory interest sufficient to justify the All
Districts Rule.

IV. Conclusion

The plaintiffs have not demonstrated the existence of a gen-
uine issue on their claims that the All Districts Rule violates
either the Equal Protection Clause or the First Amendment.
The judgment of the district court is therefore affirmed.

AFFIRMED.