Peta Lindsay, et al v. Debra Bowen

Filing

FILED OPINION (ALEX KOZINSKI, DIARMUID F. O'SCANNLAIN and MARY H. MURGUIA) AFFIRMED. Judge: AK Authoring, FILED AND ENTERED JUDGMENT. [9084045]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PETA LINDSAY; RICHARD BECKER;
PEACE AND FREEDOM PARTY,
Plaintiffs-Appellants,
v.
DEBRA BOWEN, in her official
capacity as Secretary of the State of
California,
Defendant-Appellee.

No. 13-15085
D.C. No.
2:12-cv-00853GEB-AC

OPINION

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted
February 13, 2014—San Francisco, California
Filed May 6, 2014
Before: Alex Kozinski, Chief Judge, Diarmuid F.
O’Scannlain and Mary H. Murguia, Circuit Judges.
Opinion by Chief Judge Kozinski

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LINDSAY V. BOWEN
SUMMARY*

Civil Rights
The panel affirmed the district court’s dismissal of a suit
alleging that plaintiff Peta Lindsay’s constitutional rights
were violated when she was excluded, pursuant to California
regulation, from appearing on the 2012 presidential primary
ballot as a candidate for the Peace and Freedom Party because
she was twenty-seven years old and therefore not
constitutionally eligible to be president.
The panel held that any burden on First Amendment
rights that resulted from California’s age requirement, which
simply recognized the lines that the Constitution already
drew, was minimal. Moreover, the burden was amply
justified by the state’s asserted interest in protecting the
integrity of the election process and avoiding voter confusion.
The panel rejected the equal protection claim, holding that
treating ineligible candidates differently from eligible ones
was rationally related to the state’s interest in maintaining the
integrity of the election process. Moreover, the panel held
that the Secretary of State does not violate the Equal
Protection Clause by excluding from the ballot candidates
who are indisputably ineligible to serve, while listing those
with a colorable claim of eligibility.
The panel rejected the argument that the Twentieth
Amendment prohibits states from determining the
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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qualifications of presidential candidates, holding that nothing
in the Twentieth Amendment’s text or history suggested that
it precludes state authorities from excluding a candidate with
a known ineligibility from the presidential ballot.

COUNSEL
Robert E. Barnes (argued), Malibu, California, for PlaintiffsAppellants.
Kamala D. Harris, Attorney General of California, Douglas
J. Woods, Senior Assistant Attorney General, Tamar Pachter,
Supervising Deputy Attorney General, Alexandra Robert
Gordon (argued), Deputy Attorney General, San Francisco,
California, for Defendant-Appellee.

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LINDSAY V. BOWEN
OPINION

KOZINSKI, Chief Judge:
Like Stephen Colbert before her, Peta Lindsay didn’t
want to become president of the United States. She just
wanted to run. To that end, she sought a place on the 2012
presidential primary ballot for the Peace and Freedom Party.
She properly filed her nomination papers and, as required by
California law, was generally recognized as a candidate for
that party. See Cal. Elec. Code § 6720. (In her brief, Lindsay
refers to Election Code section 6041. But that section
pertains to the Democratic Party. We therefore assume that
she means to refer to section 6720, which pertains to the
Peace and Freedom Party.)
Nevertheless, when California Secretary of State Debra
Bowen distributed the certified list of the candidates
generally recognized to be seeking their parties’ nominations,
Lindsay discovered that her name wasn’t on it. See Cal. Elec.
Code §§ 6722, 6951. At twenty-seven years of age, Lindsay
wasn’t constitutionally eligible to be president. See U.S.
Const. art. II, § 1, cl. 5. But was she eligible to run?
Lindsay claims she was, and so brings suit seeking
vindication of her rights under the First Amendment, the
Equal Protection Clause of the Fourteenth Amendment and
the Twentieth Amendment. She is joined by one of her
supporters and the Peace and Freedom Party.
For
convenience, we will generally refer only to her.
The district court dismissed the case with prejudice and
Lindsay appeals. Because the case is “capable of repetition,
yet evading review,” it is not moot. See Fed. Election

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Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462–64
(2007).
I. First Amendment Claims
Although regulation of who can appear on the ballot
“inevitably affects” free speech, association and voting rights,
Anderson v. Celebrezze, 460 U.S. 780, 788 (1983), we uphold
restrictions that impose only a “[l]esser burden[]” on those
rights so long as they are reasonably related to the state’s
“important regulatory interest[],” Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358 (1997) (internal quotation
marks omitted).
Age requirements, like residency requirements and term
limits, are “neutral candidacy qualification[s] . . . which the
State certainly has the right to impose.” Bates v. Jones,
131 F.3d 843, 847 (9th Cir. 1997) (en banc); see also Rubin
v. City of Santa Monica, 308 F.3d 1008, 1014 (9th Cir. 2002)
(restrictions aren’t severe when they are “generally
applicable, even-handed, [and] politically neutral”).
Distinctions based on undisputed ineligibility due to age do
not “limit political participation by an identifiable political
group whose members share a particular viewpoint,
associational preference or economic status.” Bates, 131 F.3d
at 847 (quoting Anderson, 460 U.S. at 793) (internal
quotation marks and alterations omitted). They simply
recognize the lines that the Constitution already draws. Any
burden on Lindsay’s speech and association rights is therefore
minimal.
This burden is amply justified by California’s asserted
interest in “protecting the integrity of the election process and
avoiding voter confusion.” See Timmons, 520 U.S. at

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364–65. Lindsay alleges neither that Secretary Bowen
prevented other Peace and Freedom Party candidates from
running nor that she interfered with Lindsay’s or the party’s
ability to advocate for the party’s platform. See Anderson,
460 U.S. at 791 n.12. She argues primarily that Secretary
Bowen’s refusal to place her on the presidential primary
ballot denied her and her party the “right to present and
support an alternative to the two-party system.” But there is
neither any “fundamental right to run for public office,”
NAACP v. Jones, 131 F.3d 1317, 1324 (9th Cir. 1997), nor
any right “to use the ballot itself to send a particularized
message,” Timmons, 520 U.S. at 363. That “a particular
individual may not appear on the ballot as a particular party’s
candidate does not severely burden that party’s associational
rights.” Id. at 359. Lindsay and the party have ways of
promoting their policy agenda other than placing Lindsay’s
name on the ballot, such as encouraging voters to write her
name in. Moreover, the voting rights of Lindsay’s supporter
were not severely burdened by Lindsay’s exclusion from the
ballot. See Burdick v. Takushi, 504 U.S. 428, 440 n.10
(1992).
Lindsay also claims that the Secretary lacked authority to
keep her off the primary ballot. She points to California
Election Code section 6720, which states that the Secretary
“shall place the name of a candidate upon the Peace and
Freedom Party presidential preference ballot when [he] has
determined that the candidate is generally advocated for or
recognized throughout the United States or California as
actively seeking the presidential nomination.” Lindsay is free
to bring such a claim in state court but it has no bearing on
this lawsuit, which is based entirely on federal law.

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Nor is this a case where a candidate’s qualifications were
disputed. Everyone agrees that Lindsay couldn’t hold the
office for which she was trying to run. Lindsay therefore
could never have been a legitimate contender for the
presidency, and there’s no doubt that “a State has an interest,
if not a duty, to protect the integrity of its political processes
from frivolous or fraudulent candidacies.” See Bullock v.
Carter, 405 U.S. 134, 145 (1972). Holding that Secretary
Bowen couldn’t exclude Lindsay from the ballot, despite her
admission that she was underage, would mean that anyone,
regardless of age, citizenship or any other constitutional
ineligibility would be entitled to clutter and confuse our
electoral ballot. Nothing in the First Amendment compels
such an absurd result.
II. Equal Protection Claim
Lindsay claims an Equal Protection Clause violation; she
says that she “is similarly situated to the other candidates . . .
because she qualified for and won the support of the Peace
and Freedom Party.” To the extent this is an argument that
state officials can’t draw distinctions between candidates who
are clearly ineligible to become president and those who
aren’t, it fails: “The Constitution does not require things that
are different in fact or opinion to be treated in law as though
they were the same.” Plyler v. Doe, 457 U.S. 202, 216
(1982) (internal quotation marks and alterations omitted); see
also Am. Party of Tex. v. White, 415 U.S. 767, 781 (1974).
Those who can’t legally assume office, even if elected, are
undeniably different from those who can. Because including
ineligible candidates on the ballot could easily cause voter
confusion, treating ineligible candidates differently from
eligible ones is rationally related to the state’s interest in
maintaining the integrity of the election process. See Ventura

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Mobilehome Cmtys. Owners Ass’n v. City of San
Buenaventura, 371 F.3d 1046, 1055 (9th Cir. 2004).
Lindsay also seems to argue that Secretary Bowen used
age as a mere pretext to “singl[e] out a minor party and a
particular candidate, the only African American female
candidate for the Presidency . . . and [that the Secretary]
exercised no such usurped authority, for other candidates for
the Presidency, such as major party primary candidates and
other similarly situated individuals.” But she offers no proof,
beyond conclusory allegations of discrimination, that the
Secretary had any such ulterior motive. See Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555–56 (2007). While claiming that similarly
situated candidates were treated differently than she was,
Lindsay can’t identify a single person who appeared on the
California ballot despite admitting that he wasn’t qualified.
See N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486
(9th Cir. 2008); Ventura, 371 F.3d at 1055.
Lindsay points to 2008 presidential candidate John
McCain, who some considered to be ineligible to hold office
because he was born outside the United States. But, at worst,
McCain’s eligibility was disputed. He never conceded that he
was ineligible to serve, and it was generally assumed that he
could. The Secretary does not violate the Equal Protection
Clause by excluding from the ballot candidates who are
indisputably ineligible to serve, while listing those with a
colorable claim of eligibility. Because those two groups
stand on a different footing, the Secretary is entitled to
exclude the former while including the latter. See Robinson
v. Bowen, 567 F. Supp. 2d 1144, 1146–47 (N.D. Cal. 2008);
Keyes v. Bowen, 117 Cal. Reptr. 3d 207, 214–16 (Cal. Ct.
App. 2010).

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LINDSAY V. BOWEN
III.

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Dormant Twentieth Amendment Claim

The Twentieth Amendment provides that, “if the
President elect shall have failed to qualify, then the Vice
President elect shall act as President until a President shall
have qualified; and the Congress may by law provide for the
case wherein neither a President elect nor a Vice President
elect shall have qualified.” U.S. Const. amend. XX, § 3.
Lindsay argues that this amendment prohibits states from
determining the qualifications of presidential candidates.
It’s far from clear that the Twentieth Amendment gives
rise to a private right of action. Cf. Golden State Transit
Corp. v. City of L.A., 493 U.S. 103, 107 (1989) (Supremacy
Clause doesn’t create any enforceable rights). But, even if it
does, nothing in the Twentieth Amendment states or implies
that Congress has the exclusive authority to pass on the
eligibility of candidates for president. The amendment
merely grants Congress the authority to determine how to
proceed if neither the president elect nor the vice president
elect is qualified to hold office, a problem for which there
was previously no express solution. See 75 Cong. Rec. 3831
(1932) (statement of Rep. Cable). Candidates may, of course,
become ineligible to serve after they are elected (but before
they start their service) due to illness or other misfortune. Or,
a previously unknown ineligibility may be discerned after the
election. The Twentieth Amendment addresses such
contingencies. Nothing in its text or history suggests that it
precludes state authorities from excluding a candidate with a
known ineligibility from the presidential ballot.
AFFIRMED.