United States Court of Appeals,
Eleventh Circuit.
No. 95-3131
Non-Argument Calendar.
Dave BIDDULPH, Tax Cap Committee, Plaintiffs-Appellants,
v.
Sandy MORTHAM, Florida Secretary of State, Defendant-Appellee.
Aug. 1, 1996.
Appeal from the United States District Court for the Northern
District of Florida. (No. 94-40534-CV-WS), William Stafford, Judge.
Before TJOFLAT, Chief Judge, and KRAVITCH and HATCHETT, Circuit
Judges.
PER CURIAM:
I. Introduction
Appellant Dave Biddulph is a proponent of "Voter Approval of
New Taxes," an initiative proposal to amend the Florida
Constitution to prohibit the imposition of any new state or local
taxes except upon voter approval. Appellant Tax Cap Committee
("Tax Cap"), formed by Biddulph, is the initiative proposal's
official sponsor committee. "Voter Approval of New Taxes" was
ultimately excluded from the ballot for failure to comply with
Florida requirements governing the substance and titles of
amendments proposed by initiative. Appellants contend that
Florida's initiative process violates their First and Fourteenth
Amendment rights because Florida's process is not "narrowly
tailored." Appellants argue that instead of simply excluding the
proposed amendment from the ballot, Florida could provide
initiative proposal sponsors an opportunity to correct the title
and language of deficient proposals. This is a case of first
impression in this circuit. We hold that state initiative
regulations, like the ones in this case, that do not burden "core
political speech," are content-neutral, and do not disparately
impact particular political viewpoints are not subject to strict
scrutiny under the First Amendment.
II. Florida's Constitutional Amendment Initiative Scheme
A. Substantive Requirements
Florida's Constitution gives the "people" the power to propose
amendments to the state constitution. Fla. Const. art. XI, § 3.
Until November 1994, the Florida Constitution required that
amendments proposed by initiative address a single subject and that
initiative petitions be signed by some percentage of the
electorate:
The power to propose the revision or amendment of any
portion or portions of this constitution by initiative is
reserved to the people, provided that any such revision or
amendment shall embrace but one subject and matter directly
connected therewith. It may be invoked by filing with the
secretary of state a petition containing a copy of the
proposed revision or amendment, signed by a number of electors
in each of one half of the congressional districts of the
state, and of the state as a whole, equal to eight per cent of
the votes cast in each of such districts, respectively and in
the state as a whole in the last preceding election in which
presidential electors were chosen.
Fla. Const. art. XI, § 3 (West 1993). In 1994, after Biddulph's
proposed amendment was removed from the ballot, Florida voters
approved a constitutional amendment that excepted from the
single-subject requirement of Article XI, Section 3, any revisions
or amendments limiting the power of government to raise revenue.
See Fla. Const. art. XI, § 3 (West 1995).
A Florida statute further requires that initiative proposal
sponsors write and submit in clear and unambiguous language (1) an
"explanatory statement" or "substance" of the amendment, not to
exceed 75 words, describing the chief purpose of the measure and
(2) a title, not to exceed 15 words. The substance and title alone
appear on the ballot. Fla.Stat.Ann. § 101.161 (West Supp.1996).
B. Procedure for Initiative Approval
Before an initiative petition may be circulated for
signatures, the proposal's sponsor must register as a political
committee and submit the petition form to the secretary of state
for approval. Fla.Stat.Ann. § 100.371(3) (West 1982). The
secretary of state, through the Division of Elections, evaluates
the petition format but does not review the text of the proposed
amendment or its ballot summary and title to determine whether they
comply with the constitution's single subject requirement and §
101.161. Fla.Stat.Ann. § 100.371(3) (West 1982); Fla.Admin.Code
Ann. r. 1S-2.009(1) (1996). If the proposed initiative amendment
petition format is deemed sufficient by the Division of Elections,
the sponsor may circulate petition forms for signatures.
Fla.Admin.Code Ann. r. 1S-2.009(2) (1996). After collecting the
signatures, the sponsor must submit the signed petition forms to
the appropriate supervisor of elections who, upon payment of a fee
equal to the sum of ten cents per signature checked or the actual
costs of checking each signature, verifies the signatures on the
petition forms and submits a certificate to the secretary of state
indicating the total number of signatures checked, the number
deemed valid, and the geographical distribution. Fla.Stat.Ann. §
100.371(4) (West Supp.1996), Fla.Stat.Ann. § 99.097(4) (West
Supp.1996). If the secretary of state determines that the sponsor
has obtained the constitutionally required number of signatures
with the appropriate geographical distribution, certification of
ballot position will be issued to the sponsor. Fla.Admin.Code Ann.
r. 1S-2.0091(4).
The secretary of state must then submit the sponsor's
initiative petition to the attorney general, Fla.Stat.Ann. § 15.21
(West 1988), who in turn must petition the Florida Supreme Court
for an advisory opinion regarding the compliance of the text of the
proposed amendment with the single subject requirement of Art. XI,
§ 3 of the state constitution and the compliance of the proposed
ballot title and substance with § 101.161. See Fla.Stat.Ann. §
16.061 (1995); see also Fla. Const. art. IV, § 10 (requiring
attorney general to request supreme court's opinion regarding
validity of any initiative petition). If the state supreme court
finds either that the proposed amendment violates the
single-subject requirement or that the proposed ballot title or
summary is ambiguous, the supreme court will order removal of the
initiative petition from the ballot. See, e.g., In re Advisory
Opinion to the Attorney General-Restricts Laws Related to
Discrimination, 632 So.2d 1018, 1021 (Fla.1994).
III. Facts
In 1993, Biddulph registered Tax Cap as sponsor committee for
the proposed "Voter Approval of New Taxes" amendment. In August
1993, the Secretary of State approved Biddulph's initiative
petition format. Biddulph then circulated the petition in an
attempt to place the proposed amendment on the November 1994
ballot. Less than a year later, Biddulph submitted the signed
petition forms to the supervisor of elections, who verified the
signatures and transmitted the certificates to the Secretary of
State. The Secretary of State certified the proposed "Voter
Approval of New Taxes" amendment for a ballot position in the
November 1994 election.
Pursuant to Florida law, the Secretary of State submitted the
initiative proposal to the attorney general, who sought an advisory
opinion from the supreme court on the legal sufficiency of the
proposal. Over two months later, and only a month before the 1994
election, the supreme court issued an opinion concluding that
Biddulph's proposed amendment was legally insufficient for two
reasons: it violated the constitutional single-subject
requirement, and it violated § 101.161 because its title was
misleading. Advisory Opinion to Attorney to Attorney General re
Tax Limitation, 644 So.2d 486, 491-94 (Fla.1994). The Secretary of
State then directed the supervisors of elections to remove
Biddulph's amendment proposal from the ballot.
Nine days later, Biddulph filed a petition for a writ of
mandamus asking the Florida Supreme Court to order the Secretary of
State to eliminate the deficiencies in the title and summary of
Biddulph's initiative proposal and to place the revised language on
the ballot for the November 1994 election. The supreme court
denied the petition.1 Biddulph then filed this action in federal
1
The Florida Supreme Court denied Biddulph mandamus relief
on the same federal claim he raises here. The existence of this
state court ruling calls our subject matter jurisdiction into
question under the Rooker-Feldman abstention doctrine. See
District of Colombia Court of Appeals v. Feldman, 460 U.S. 462,
court, pursuant to 42 U.S.C. § 1983, against the Secretary of
480-82, 103 S.Ct. 1303, 1314-15, 75 L.Ed.2d 206 (1983); Rooker
v. Fidelity Trust Co., 263 U.S. 413, 415, 44 S.Ct. 149, 150, 68
L.Ed. 362 (1923). Although no party has raised this issue, we
cannot proceed without subject matter jurisdiction.
The Rooker-Feldman doctrine, based on statutory
jurisdictional limitations, teaches us that federal district
courts have no authority to review final judgments of state
courts. The rule applies "not only to claims actually
raised in the state court, but also to claims that were not
raised in the state court but are "inextricably intertwined'
with the state court's judgment." Powell v. Powell, 80 F.3d
464, 466 (11th Cir.1996).
This circuit recognizes an exception to the Rooker-
Feldman doctrine, however, when the plaintiff has no
"reasonable opportunity to raise his federal claim in state
proceedings." Id. at 467. (citing Wood v. Orange County,
715 F.2d 1543, 1547 (11th Cir.1983), cert. denied, 467 U.S.
1210, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984)). That
exception applies here. In Florida, mandamus is not awarded
as a matter of right but at the court's discretion, Somlyo
v. Schott, 45 So.2d 502, 504 (Fla.1950), and only upon a
showing of a clear legal right to performance of an
indisputable legal duty, State ex rel. Eichenbaum v.
Cochran, 114 So.2d 797, 800 (Fla.1959).
Because the Florida Supreme Court has strictly limited
authority to grant a writ of mandamus to those cases where
there is a clear right to performance of an indisputable
legal duty, the state mandamus proceeding did not afford
Biddulph the kind of "reasonable opportunity" to raise his
federal claim that would preclude our independent review of
that claim. The Florida Supreme Court's refusal to grant a
writ of mandamus means only that the state court failed to
find it clear and indisputable either that the state
initiative system violated the First Amendment or that the
state initiative process had to be altered in the manner
Biddulph requested in order to comply with the First
Amendment. In fact, Florida courts could probably never
grant mandamus relief for such a novel (and therefore
disputable) federal constitutional claim. See, e.g., Kane
Homes, Inc. v. City of North Lauderdale, 418 So.2d 451, 453
n. 3 (Fla. 4th Dist.Ct.App.1982) (mandamus will apply "when
the law prescribes and defines [a duty] with such precision
and certainty as to leave nothing to the exercise of
discretion or judgment") (quoting State ex rel. Zuckerman-
Vernon Corp. v. City of Miramar, 306 So.2d 173, 175 (Fla.
4th Dist.Ct.App.1974), cert. denied, 320 So.2d 389
(Fla.1975)).
State. The district court, concluding that Biddulph had failed to
state a claim, dismissed his case.
IV. Discussion
A. Mootness
Although the November 1994 election has passed, this case is
not moot. Biddulph's signed and verified petition forms are valid
in Florida for four years after the date the signatures were
affixed to the forms. Fla.Stat.Ann. § 100.371(2). The signatures
were collected in either 1993 or 1994, so Biddulph's verified
petition forms are valid at least through 1997. Therefore, were we
to order the state to revise the ballot title and or amendment
language to comply with state law as Biddulph requests, Biddulph's
proposed amendment presumably could be placed on the ballot in an
upcoming election.
The Secretary of State contends that this case is moot on
other grounds: the single subject requirement of Article XI,
Section 3 no longer applies to initiative proposals, that like
Biddulph's, involve revenue measures, and the Florida Supreme Court
recently issued an opinion granting ballot access to a
previously-excluded revenue amendment as a result of that change.
See Advisory Opinion to the Attorney General Re Tax Limitation, 673
So.2d 864 (1996) ("Tax Limitation II "). The implication of the
Secretary of State's motion is that Biddulph's proposed amendment
will likewise be deemed legally sufficient and granted ballot
access. Neither the amendment to Article XI, Section 3 nor
Florida's decision in Tax Limitation II renders this case moot,
however. The supreme court had originally denied ballot access to
the proposed amendment at issue in Tax Limitation II only because
it violated the single subject requirement. Advisory Opinion to
Attorney to Attorney General re Tax Limitation, 644 So.2d 486, 491
(Fla.1994). In contrast, the court excluded Biddulph's "Voter
Approval of New Taxes" proposal not only because it violated the
constitutional single subject requirement but also because it
violated the clear ballot title requirement of Fla.Stat.Ann. §
101.161. 644 So.2d at 491-94. Because the court had an
alternative basis for denying ballot access to "Voter Approval of
New Taxes," the Florida Supreme Court need not, as it did in Tax
Limitation II, revisit its decision to exclude the proposed
amendment from the ballot. Thus, there is no reason to believe
that the Florida Supreme Court will reverse its decision to exclude
Biddulph's proposal from the ballot, and the controversy remains
alive.
B. Biddulph's claim
Biddulph seeks strict scrutiny of Florida's initiative
regulations. He argues that the United States Constitution
requires Florida to narrowly tailor any restriction it imposes upon
the initiative petition process and to avoid unnecessary
impediments. He also contends that such restrictions must serve a
compelling state interest.2 Although Biddulph admits that judicial
review of proposed amendments for legal sufficiency is permissible,
he points to two aspects of the initiative process that, he claims,
2
Biddulph argues that the state must "narrowly tailor any
restrictions it imposes upon" the initiative process and "avoid
unnecessary impediments." Appellant's Brief at 36. Biddulph
further contends that Florida "may not abridge First Amendment
rights without establishing compelling necessity." Id. at 43.
are overly and unnecessarily burdensome. Biddulph contends that
delaying judicial review for legal sufficiency until after petition
circulation injects unnecessary risk into the process.
Furthermore, Biddulph argues, the Florida Supreme Court has failed
to provide clear and objective standards governing the legal
sufficiency of initiative proposals. The result, according to
Biddulph, is that initiative sponsors must complete Florida's
costly and time-consuming initiative requirements3 without any
assurance that the supreme court will ultimately deem their
initiative proposals legally sufficient for ballot inclusion. In
other words, entering Florida's initiative process is a financial
gamble for initiative proposal sponsors. The deterrent effect of
the risk involved, according to Biddulph, is constitutionally
impermissible because it burdens protected First Amendment activity
without being narrowly tailored to meet a compelling government
interest.
Biddulph asks this court to remedy the alleged constitutional
defect in the initiative process by requiring Florida "to more
narrowly tailor" its regulatory initiative process by providing a
procedure either for revising initiative proposal language deemed
legally insufficient or for review of a proposal's legal
sufficiency before petition circulation. We must determine whether
Biddulph has stated a constitutional claim and what constitutional
right is at stake.
3
Biddulph claims that in collecting the 400,000 signatures
required he expended thousands of hours of effort and hundreds of
thousands of dollars and that he paid the supervisors of
elections more than $25,000 to verify the signatures.
C. The Right to Petition the Government for Redress of Grievances
According to Biddulph, Florida's initiative process
impermissibly infringes his First Amendment right "to petition the
government for redress of grievances," applicable to the states
through the Fourteenth Amendment. U.S. Const. amend. I. Biddulph
cites only two right-to-petition cases in his brief, Eastern R.R.
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127,
81 S.Ct. 523, 5 L.Ed.2d 464 (1961), and California Motor Transport
Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d
642 (1972). These cases hold that the Petition Clause protects
people's rights to make their wishes and interests known to
government representatives in the legislature, judiciary, and
executive branches. Noerr Motor Freight, Inc., 365 U.S. at 138-41,
81 S.Ct. at 530-31, Trucking Unlimited, 404 U.S. at 508-12, 92
S.Ct. at 611-12. See also McDonald v. Smith, 472 U.S. 479, 481,
105 S.Ct. 2787, 2789, 86 L.Ed.2d 384 (1985) (noting that James
Madison in congressional debate on petition clause made clear that
people have the right to communicate their will through direct
petitions to the legislature and government officials). Biddulph's
cursory reference to these two cases, however, does not explain the
relevance to the voter initiative processes of the right to make
wishes known to government representatives. After all, in the
initiative process people do not seek to make wishes known to
government representatives but instead to enact change by bypassing
their representatives altogether. We are aware of no case that has
held that state initiative regulations implicate the "right to
petition the government for redress of grievances." Moreover,
scholarship on the issue explains that state initiative processes
do not involve the sort of petitioning that is guaranteed by the
Petition Clause. 4 We need not reach this issue here, however,
because Biddulph has not relied on Petition Clause case law in any
substantive way in making his arguments to this court; to the
contrary, Biddulph acknowledges that the right to propose
legislation through initiative is state-created.5
4
See Emily Calhoun, "Initiative Petition Reforms and the
First Amendment," 66 U.Colo.L.Rev. 129 (1995) (arguing that
Madison's version of the petition right preserved direct access
to government but gave representatives ultimate power to reject
petitions on the theory that representatives have to exercise
judgment on behalf of the common good, not factions, even if
those factions constitute a majority); see also Norman B. Smith,
" "Shall Make No Law Abridging ...': An Analysis of the
Neglected, But Nearly Absolute, Right of Petition," 54
U.Cin.L.Rev. 1153, 1154 (1986) (noting that interests served by
petition right are keeping government informed of peoples' needs
and of peoples' reaction to government actions); Stephen A.
Higginson, Note, "A Short History of the Right to Petition the
Government For the Redress of Grievances," 96 Yale L.J. 142, 156
(1986) (explaining that in drafting Bill of Rights, Congress
defeated amendment giving people the right to instruct their
representatives but in doing so expressly affirmed Congress' duty
to consider citizen communications, like petitions).
5
In Delgado v. Smith, 861 F.2d 1489 (11th Cir.1988), cert.
denied, 492 U.S. 918, 109 S.Ct. 3242, 106 L.Ed.2d 589 (1989)
(Fay, J.), a panel of this circuit in dicta appears to have
approved of a district court's statement that initiative
"petitions represent the exercise of individuals of their
fundamental rights to express themselves freely and to petition
the government for redress of grievances...." Id. at 1498-99.
This statement, quoted in passing and not necessary or even
relevant to the panel's decision in the case (as discussed infra
), does not constitute a holding of this court.
Biddulph acknowledges that the right to propose
legislation by citizen initiative is not guaranteed by the
United States Constitution but is a state-created right.
Thus, the sort of petitioning occurring in the citizen
initiative is not guaranteed by the petition clause in the
first place. This alone should indicate that the guarantee
found in the Petition Clause is not implicated by the
regulation of a citizen initiative.
Biddulph's constitutional claim is best construed as based
upon freedom of speech. Biddulph relies primarily on Meyer v.
Grant, 486 U.S. 414, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), and
Delgado v. Smith, 861 F.2d 1489 (11th Cir.1988), cert. denied, 492
U.S. 918, 109 S.Ct. 3242, 106 L.Ed.2d 589 (1989), for the
proposition that once states establish a citizen initiative
process, the right to advocate for political change through the
process is protected by the Petition Clause. Neither case refers
to the Petition Clause. Meyer and Delgado involve only the First
Amendment's proscription against laws abridging freedom of speech.
Because Biddulph's claim is similar to the free-speech claims
addressed in Delgado and Meyer, and because it does not implicate
the Petition Clause, we will construe it as a free-speech claim.
D. Freedom of Speech and State Initiative Mechanisms
Biddulph's substantive argument is that Meyer and Delgado
stand for the proposition that statutes burdening the right of
voters to invoke the initiative process impinge upon core political
speech and therefore are subject to strict First Amendment
scrutiny. Neither case, however, requires us to subject a state's
initiative process to heightened First Amendment scrutiny simply
because the process is burdensome to initiative proposal sponsors.
The cases do say that heightened First Amendment scrutiny should be
applied to certain state regulations of ballot initiatives, but
they distinguish between regulation of the circulation of
petitions—which is "core political speech"—and a state's general
initiative regulations, the type Biddulph is contesting.
1. Meyer v. Grant
In Meyer, proponents of an initiative proposal challenged a
Colorado law making it a felony to pay initiative petition
circulators. The Court agreed with Colorado that the right to
place a citizen initiative proposal on the ballot is a
state-created right (and thus, by implication, not a right
guaranteed by the First Amendment). Meyer, 486 U.S. at 423, 108
S.Ct. at 1893. Nevertheless, the Court determined that the
circulation of initiative petitions and the concomitant exchange of
political ideas constitutes "core political speech." Id. at 422,
108 S.Ct. at 1892. The Meyer Court then applied strict scrutiny to
the Colorado law and concluded that in criminalizing professional
petition circulation Colorado had impermissibly hindered citizens'
exchange of ideas about political change without sufficient
justification. Id. at 422-28, 108 S.Ct. at 1892-95.
The Meyer Court did not examine Colorado's initiative process
as such. Rather, the Court indicated that a state, though
generally free to regulate its own initiative process, is limited
in the extent to which it can permissibly burden the communication
of ideas about the political change at issue in an initiative
proposal that occurs during petition circulation. Id. at 423-27,
108 S.Ct. at 1893-94.6 Biddulph does not complain that exclusion
of his initiative proposal limited discussion during petition
6
Colorado argued that because the power to present
amendments through voter initiative is a state-created right and
not a federal right, the state could freely impose limitations on
the exercise of that right. Id. at 423, 108 S.Ct. at 1893. The
Court rejected this argument, however, reasoning that the power
to ban initiatives entirely (and therefore, by analogy, to
regulate them) does not include "the power to limit discussion of
political issues raised in initiative petitions." Id.
circulation of whether there should be voter approval of new
taxes.7 Instead, Biddulph protests the burdens of an unpredictable
state initiative process on his ability to get an initiative
proposal on the ballot. But Meyer does not require us to subject
a state's initiative process to strict scrutiny in order to ensure
that the process be the most efficient or affordable. Absent some
showing that the initiative process substantially restricts
political discussion of the issue Biddulph is seeking to put on the
ballot, Meyer is inapplicable.
2. Delgado v. Smith
In Delgado v. Smith, 861 F.2d 1489 (11th Cir.1988),
Spanish-speaking voters sought to enjoin Florida from placing on
the ballot an initiative proposal to make English the official
state language. The plaintiffs argued that the proposal's sponsors
failed to comply with a provision of the Voting Rights Act
requiring that certain jurisdictions subject to rules prohibiting
discrimination against language minorities provide "materials or
information relating to the electoral process" in the minority
group's language as well as English. 861 F.2d at 1491 (citing 42
7
The Meyer Court noted that the Colorado measure at issue
there burdened political speech partly by making "it less likely
that appellees will garner the number of signatures necessary to
place the matter on the ballot, thus limiting their ability to
make the matter the focus of statewide discussion." Id. at 422,
108 S.Ct. at 1892. Although this language out of context might
suggest that strict scrutiny be applied to statutes burdening a
sponsor's ability to place a measure on the ballot, Meyer, read
as a whole, does not lead to that conclusion; the Court
established an explicit distinction between a state's power to
regulate the initiative process in general and the power to
regulate the exchange of ideas about political changes sought
through the process. The Court only addressed the
constitutionality of the latter. See discussion supra at n. 6.
U.S.C.A. § 1973aa-1a(c) (1981 & Supp.1988)). Six Florida counties
were subject to this provision of the Act. The initiative sponsors
failed to circulate both English and Spanish copies of the petition
in Florida counties covered by the provision. The Delgado court
concluded that Congress had not intended the Voting Rights Act's
two-language requirement to govern Florida's initiative petition
circulation process. Id. at 1492-93. Consequently, the court did
not rely on any First Amendment ground in arriving at its decision.
The Delgado court went on to say in dicta, however, that
"serious First Amendment questions ... would be raised" if the
court were to adopt the appellants' view that the Voting Rights
Act's minority language provisions applied to Florida's initiative
petition circulation process. Meyer 's characterization of
initiative petition circulation as "core political speech"
counseled caution before imposing a federal requirement on petition
circulation. Id. at 1495.
The Delgado court wrote, "[A]ny degree of governmental
hindrance upon the freedom of a given group of citizens to pursue
the initiative petition process with whomever, and concerning
whatever they choose must be viewed with some suspicion." Id. at
1494. The Delgado court did not, however, address the
constitutionality of what it called the state's "mechanism of
initiative petition." Id. Instead, the court was concerned with
the possibility that federal regulation of the petition circulation
involved in the process might impinge upon the initiative
supporters' freedom of speech and political association. The
"governmental hindrance" referred to in Delgado is not the state's
regulation of its initiative process in general but rather burdens
on the petition circulation aspect of that process in particular.8
Biddulph mistakenly focuses on the following language in
Delgado: "The state cannot impede or diminish [the initiative]
8
Delgado also cited Williams v. Rhodes, 393 U.S. 23, 89
S.Ct. 5, 21 L.Ed.2d 24 (1968), and Tashjian v. Republican Party
of Connecticut, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514
(1986), for the proposition that the rights of free speech and
association are implicated where state statutes impose
restrictions on private political activity. Neither of these
cases would mandate application of strict scrutiny in this case,
however.
In Williams the Supreme Court struck down as violative
of equal protection an Ohio statute which required any new
political party seeking a position on the ballot in a
presidential election to obtain petitions signed by 15% of
the qualified electors who voted in the last gubernatorial
election. The statute at issue in that case was flawed
because it infringed both First Amendment and equal
protection rights. The Court characterized the Ohio statute
as a severe restriction that favored the two established
political parties over new parties struggling for existence.
393 U.S. at 31, 89 S.Ct. at 10. Accordingly, the Court held
that the state failed to show any compelling interest for
placing such an unequal burden on minority groups where
important First Amendment rights were at stake. Id. at 31,
89 S.Ct. at 11. In contrast, Biddulph does not allege that
Florida's initiative process discriminated against or even
disparately impacted a minority party or political view.
In Tashjian, the Court struck down a Connecticut
statute that required voters to be registered members of a
party in order to vote in that party's primary. The
Connecticut Republican Party had declared its primary open
to independent voters. The Supreme Court held that the
statute burdened the Connecticut Republican Party's right to
associate with others for political ends and applied strict
scrutiny. 479 U.S. at 217-29, 107 S.Ct. at 550-56. The
statute at issue in Tashjian directly burdened the First
Amendment rights of individuals to associate for political
purposes. The regulations at issue here, in contrast, have
no such direct effect on political association.
The types of association and equal protection rights
infringed by the statutes at issue in Williams and Tashjian
are not raised by Biddulph's claim. Were these rights
directly burdened, strict scrutiny indeed might apply.
process so long as it reserves the right of initiative to the
people." Id. at 1496 (citing Meyer, 426 U.S. at 424, 108 S.Ct. at
1893). This language only makes sense in the context in which it
was written, though. The quoted sentence is not from the portion
of the opinion addressing the possible First Amendment implications
of applying the Voting Rights Act to initiative petition
circulation. Rather, the court uses this language in a section in
which it describes Florida's initiative regulations as "limited
ministerial duties." The court reasoned in this section that
Florida's limited role in writing and circulating petitions
indicated that, in Florida, petition circulation was a private
political action rather than a state action. As a result, the
petition materials were not "provided" by the state and, therefore,
were not subject to the two-language requirement of the Voting
Rights Act. This has nothing to do with the free speech
implications of the state initiative mechanism.
That the Delgado court did not mean to impose First Amendment
limitations on how Florida structured its initiative scheme is
evidenced by the fact that the court explicitly recognized that
Florida did impose regulations on its initiative process; in fact,
the court noted most of the regulations which are discussed in Part
II of this opinion. Delgado, 861 F.2d at 1496. The court also
recognized the legitimate purpose served by Florida's initiative
regulations: "The state's responsibility is to ensure that the
petition meets the requirements of law and will fairly present the
proposition that may or may not be placed before the electorate."
Id. at 1497. The court also stated, "The state's sole concern is
a fair presentation on the ballot in accordance with state law."
Id. at 1498 (emphasis in original).
Delgado simply stands for the proposition that a state cannot
impede the petition circulation process as Colorado did in Meyer or
as the two-language requirement might have in Delgado itself. As
the Delgado court characterized Meyer, "The United States Supreme
Court recognized that circulation of a petition involves activity
protected as core political speech. Meyer, supra, 426 U.S. at 422,
108 S.Ct. at 1892." Delgado, 861 F.2d at 1498. Delgado cannot be
read to mandate heightened First Amendment scrutiny of every
restriction a state places on its own initiative process.
3. Strict Scrutiny and a State's Initiative Process
Meyer and Delgado represent constitutional limitations on the
generally broad power of states to institute procedures governing
their own initiative processes—should they choose to create such
processes in the first place. Nevertheless, as we have made clear,
states maintain broad discretion in fashioning initiative
mechanisms:
The rights [to place an initiative on the ballot] derive from
wholly state-created procedures by which issues that might
otherwise be considered by elected representatives may be put
to the voting populace. The state, having created such a
procedure, retains the authority to interpret its scope and
availability. Clearly, appellants can claim no
constitutionally-protected right to place issues before the
Florida electorate; any opportunity to do so must be subject
to compliance with state constitutional requirements.
Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir.1984),
(rejecting initiative sponsors' arguments that Florida court
proceeding excluding initiative proposal from ballot was in
violation of sponsors' voting, due process, equal protection, and
contract rights), cert. denied, 469 U.S. 1229, 105 S.Ct. 1230, 84
L.Ed.2d 367 (1985).
We hold that a state's broad discretion in administering 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 disparate
impact on certain political viewpoints. We also would be troubled
were a state to apply facially neutral regulations in a
discriminatory manner. See Taxpayers 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 initiative procedures in a discriminatory or
content-based manner). Nor, as Meyer held, could a state
impermissibly burden the free exchange of ideas about the objective
of an initiative proposal.9 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. Biddulph does not contend that Florida's procedures
9
The Supreme Court has applied strict scrutiny to at least
two other state statutes that impermissibly burdened speech about
changes at issue in referendum elections. See McIntyre v. Ohio
Elections Comm'n, --- U.S. ----, 115 S.Ct. 1511, 131 L.Ed.2d 426
(1995) (holding Ohio statute that prohibits the distribution of
anonymous campaign literature unconstitutional); First Nat'l
Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55
L.Ed.2d 707 (1978) (holding statute prohibiting corporations from
making contributions or expenditures for the purpose of affecting
referendum elections unconstitutional).
disparately impact a particular viewpoint or are content-based. He
does not argue that Florida discriminatorily applied its initiative
regulations. Nor does he complain that the state burdened the
exchange of ideas with respect to the objective of his initiative
proposal. Rather, Biddulph solely contends that Florida's process
is burdensome because it is unpredictable and imposes unnecessary
10
costs on initiative sponsors. But the Constitution does not
require Florida to structure its initiative process in the most
efficient, user-friendly way possible. The facts and arguments
presented here do not require us to apply strict First Amendment
scrutiny to Florida's initiative process.
V. Conclusion
Although there are some scenarios in which a First Amendment
challenge seeking strict scrutiny of a state's initiative process
would survive a motion to dismiss, Biddulph has failed to make out
such a viable claim.
AFFIRMED.11
10
Biddulph has not requested that we weigh state interests
against the voters' burden—the case-by-case balancing test called
for by the Supreme Court in the ballot access cases. See Burdick
v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992);
Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d
547 (1983). That test is not appropriate here. Unlike the
petitioners in Celebrezze and Takushi, Biddulph has not raised a
right-to-vote or freedom-of-association claim. Additionally,
this case involves an initiative's access to the ballot, not a
candidate's. This difference is material because, as noted
earlier, the right to place an initiative on the ballot is a
right created by the state.
11
Appellant's request for oral argument is denied.
Appellee's "Suggestion of Mootness," construed as a motion to
dismiss this case as moot, is denied.