of Oregon and Chief Petitioner for a State Initiative; JOAN HORTON, an D.C. No. elector v. Bill Bradbury

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MARI ANN GEST, an elector of the
State of Oregon and Chief
Petitioner for a State Initiative.
Plaintiff,
and
JOHN SAJO, an elector of the State No. 04-36034of Oregon and Chief Petitioner for
a State Initiative; JOAN HORTON, an D.C. No.
elector, petitioner sheet signor and CV-04-00853-OMP
circulator within the State of OPINION
Oregon; TED PICCOLO, Chief
Petitioner for a State Initiative.
Plaintiffs-Appellants,
v.
BILL BRADBURY,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior Judge, Presiding
Argued and Submitted
December 6, 2005—Portland, Oregon
Filed April 17, 2006
Before: Dorothy W. Nelson and Diarmuid F. O’Scannlain,
Circuit Judges, and Larry A. Burns,* District Judge.
*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
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Opinion by Judge O’Scannlain
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COUNSEL
Daniel W. Meek, Portland, Oregon, argued the cause for the
appellants. Linda K. Williams was on the brief.
Richard D. Wasserman, Office of the Attorney General of
Oregon, Salem, Oregon, argued the cause for the appellee.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor
General, Office of the Attorney General of Oregon, Salem,
Oregon, were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether signature collectors have standing
to seek declaratory and injunctive relief arising out of a state
official’s application of rules governing Oregon’s initiative
petition process.
I
The Oregon Constitution sets requirements for the number
of voter signatures that initiative petition signature collectors
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must collect to qualify a statutory provision or constitutional
amendment for placement on a statewide election ballot. If the
chief petitioners wish to place an initiative on the ballot to
make a change to statutory law, they must gather signatures
amounting to six percent of the votes cast in the previous
gubernatorial election. Or. Const. art. IV, § 1(2). The require-
ment is eight percent for a proposed constitutional amend-
ment. Id.
The State Elections Division follows a two-step process to
determine whether a petition contains sufficient signatures.
First, the Elections Division verifies the “circulator certifica-
tions” that the petition circulators must complete on each sig-
nature sheet of a petition, attesting that all the persons who
signed the signature sheet did so “in the presence of the circu-
lator and that the circulator believes each individual is an
elector.” Or. Rev. Stat. § 250.045(7). The Elections Division
removes from consideration any signature sheets that do not
contain a properly completed circulator certification.
In the second step, the Elections Division performs statisti-
cal sampling on the remaining signature sheets to determine
the validity rate of the signatures. Or. Rev. Stat. § 250.105(4).
This process involves randomly selecting a small percentage
of the signatures for verification by the signors’ home coun-
ty’s election officials. After the county election officials
report back the number of valid voter signatures, the Elections
Division extrapolates the number of valid voter signatures for
a petition based on the validity rate of the sample. The valid-
ity of this second step of the certification process is not at
issue here; the parties challenge the Secretary of State’s han-
dling of the first step.
A
In the petition circulation cycle leading up to the November
2004 ballot, John Sajo organized a petition to place on the
ballot a proposed statute that would amend Oregon’s Medical
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Marijuana Act. Mari Ann Gest organized a petition to place
on the ballot a proposed statute relating to Oregon forests.
Ted Piccolo spearheaded a petition to place on the ballot a
proposed constitutional amendment that would restore legisla-
tive term limits. Joan Horton helped collect signatures for
Gest’s petition involving Oregon forests and signed both the
forest petition and the medical marijuana petition.
After submitting signature sheets for early verification in
May 2004, Sajo, Gest, Piccolo, and Horton learned that the
Elections Division had rejected some of the signature sheets
each had submitted due to improper circulator certifications.
To explain why, the Elections Division gave each of them a
copy of the internal staff guidelines for evaluating circulator
certifications. These guidelines provided, for example, that
the Elections Division would not accept signature sheets in
which the date portion of the circulator certification had been
overwritten with a different date. The guidelines also pro-
vided that the Elections Division would not accept signature
sheets in which the signature on the circulator certification
was hand-printed unless the Elections Division had proof that
the circulator normally signed in that way, such as from the
circulator’s voter registration card on file.
B
Frustrated by these rules, Sajo, Gest, Piccolo, and Horton
(“signature collectors”) brought this 42 U.S.C. § 1983 action
for declaratory and injunctive relief against Oregon’s Secre-
tary of State. They alleged that the Elections Division had
violated their rights to due process by applying unwritten
rules to evaluate circulator certifications without notifying
them of these rules in advance. They also alleged that the
rules burdened their First Amendment rights and the Equal
Protection and “freedom of travel” rights of out-of-state circu-
lators. They sought a declaratory judgment that the Elections
Division’s procedure was unconstitutional and an injunction
requiring the Elections Division to accept signature sheets
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“bearing ‘erroneous’ dates of circulator signatures, particu-
larly if those ‘errors’ are corrected by the circulator” or “bear-
ing ‘erroneous’ circulator signatures, particularly if the
circulator offers evidence that the signature is her normal
one.”
The record indicates that the Elections Division conducted
its usual two-step procedure for determining whether each
petition qualified for the ballot. Sajo’s petition proposing an
amendment to Oregon’s Medical Marijuana Act qualified
even though the Elections Division removed some of the sig-
nature sheets for improper circulator certification. Gest’s for-
est initiative petition similarly qualified for the ballot. Gest
voluntarily dismissed her complaint prior to trial, but Sajo
maintained his action.
C
Piccolo’s term limit petition did not qualify for the ballot.
As a petition seeking to place a proposed constitutional
amendment on the ballot, it needed 100,840 valid signatures
(eight percent of the votes cast in the previous gubernatorial
election). Piccolo submitted a raw total of 118,568 voter sig-
natures. The Elections Division’s removal of the signature
sheets that contained improper circulator certifications
resulted in the removal of 5,649 signatures. The statistical
sampling on the remaining 112,919 signatures indicated an
81% validity rate, which yielded a total of 92,200 valid signa-
tures, which was 8,640 shy of the 100,840 needed to place the
proposed constitutional amendment on the ballot.
At trial, the district court determined that, even if it ordered
the Elections Division to reinstate all excluded signatures, the
term limits petition would not have the 100,840 valid signa-
tures necessary to place the proposed constitutional amend-
ment on the ballot because the number of excluded signatures
(5,649) was less than the additional number needed (8,640).
Although the signature collectors’ statistician testified that a
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statistical sampling of all the signatures combined (including
the 5,649 disqualified signatures) might possibly have yielded
a higher overall validity rate, the district court made a factual
finding that “the term limits petition lacked sufficient signa-
tures to qualify for the ballot even if the rejected signature
sheets were reinstated.”
Based on this factual finding, the district court dismissed
the claims as moot. The court explained that “if this court
were to order that defendant reinstate every disqualified sig-
nature sheet, the ultimate outcome of the process would not
be affected.” The court rejected the signature collectors’ con-
tention that the case fell within the exception to mootness for
cases capable of repetition yet evading review. The district
court further noted that the signature collectors were unlikely
to face an injury related to circulator certifications in the
future because the Elections Division had communicated its
procedures. The signature collectors filed this timely appeal.
D
The Secretary of State subsequently adopted a detailed
administrative rule that “incorporate[s] into administrative
law previously enforced standards on what constitutes a suffi-
cient circulator certification.” Or. Admin. Code § 165-014-
0270. At oral argument, the signature collectors’ counsel clar-
ified that his clients do not ask us to rule on the legality of
such rule. Instead, they narrowly seek declaratory and injunc-
tive relief that would prohibit the Secretary of State from
applying any new, currently nonexistent, unwritten rules to
future petitions.
II
A
[1] The signature collectors argue that they have standing
to seek such relief. Although the district court couched its
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opinion in terms of mootness, its factual determinations sup-
port our independent conclusion to the contrary.1 As the
Supreme Court has explained,
to satisfy Article III’s standing requirements, [the
plaintiffs] must show (1) [they have] suffered an “in-
jury in fact” that is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypo-
thetical; (2) the injury is fairly traceable to the chal-
lenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be
redressed by a favorable decision.
Friends of the Earth, Inc. v. Laidlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 180-81 (2000). Additionally,
where, as here, the signature collectors seek declaratory and
injunctive relief, they must demonstrate that they are “realisti-
cally threatened by a repetition of the violation.” Armstrong
v. Davis, 275 F.3d 849, 860-61 (9th Cir. 2001) (emphasis in
original); see City of Los Angeles v. Lyons, 461 U.S. 95, 109
(1983).
These elements of standing must be supported in the same
way as any other matter for which a plaintiff bears the burden
of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). At the plead-
ing stage, general factual allegations of injury resulting from
the defendant’s conduct may suffice. However, at the trial
stage, the factual predicate for standing upon which the plain-
tiffs rely, if controverted, “must be supported adequately by
the evidence adduced at trial.” Id.
1Mootness and standing are questions of law that we review de novo.
Porter v. Jones, 319 F.3d 483, 489 (9th Cir. 2003).
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1
[2] In this case, the trial court made factual findings indi-
cating that the signature collectors failed to prove the factual
predicate for the primary theory of standing described in their
complaint, which alleged that the three petitions would likely
fail to qualify for the ballot due to the Elections Division’s
application of unwritten rules for evaluating the circulator cer-
tifications. The district court found that the medical marijuana
and forest petitions qualified for the ballot in spite of the Elec-
tions Division’s removal of signature sheets for improper cir-
culator certifications. Thus, the Secretary of State’s allegedly
unlawful conduct did not, in fact, cause the injury that the sig-
nature collectors for these two petitions expected.
[3] The district court also found that the Secretary of
State’s allegedly unlawful conduct had no impact on the term
limits petition’s failure to qualify for the ballot. The district
court found that this petition garnered so few valid signatures
that it would have failed to qualify even if the Elections Divi-
sion had not removed any signature sheets for improper circu-
lator certifications. Thus, there was no causal connection
between the failure of the term limits petition to qualify for
the ballot and the Secretary of State’s allegedly unlawful con-
duct.
2
[4] Declining to challenge the district court’s determination
that the Secretary of State’s allegedly unlawful actions had no
impact on the success or failure of their petitions, the signa-
ture collectors argue that they nonetheless have standing to
seek declaratory and injunctive relief under two alternate the-
ories. They first assert that frustration with the Secretary of
State’s application of unwritten rules sapped their enthusiasm
for engaging in the political process. These feelings of frustra-
tion stemming from the signature collectors’ disagreement
with the Secretary of State’s actions, however, are not suffi-
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ciently concrete to constitute the “injury-in-fact” required for
Article III standing. See Lewis v. Continental Bank Corp., 494
U.S. 472, 479 (1990) (explaining that a plaintiff “must estab-
lish that [he] has a specific live grievance . . . and not just an
abstract disagreemen[t] over the constitutionality of [an offi-
cial act]”); Laird v. Tatum, 408 U.S. 1, 13-14 (1972)
(“Allegations of a subjective ‘chill’ are not an adequate sub-
stitute for a claim of specific present objective harm or a
threat of specific future harm.”).
[5] Second, the signature collectors contend that the Elec-
tions Division’s exclusion of some of their signature sheets
for improper circulator certifications caused them to incur
expenses for gathering extra signatures in their ultimately suc-
cessful effort to place the proposed medical marijuana and
forest initiatives on the ballot and their ultimately unsuccess-
ful effort to place the proposed term limits initiative on the
ballot. These alleged expenses cannot confer standing for pur-
poses of declaratory and injunctive relief, however, because
the signature collectors have not demonstrated a likelihood
that, in the absence of declaratory and injunctive relief, the
Secretary will apply unwritten rules for circulator certifica-
tions in the future. See City of Los Angeles, 461 U.S. at 109;
Armstrong v. Davis, 275 F.3d at 860-61. The signature collec-
tors concede, as they must, that the standards the Elections
Division uses to evaluate circulator certifications are now
codified into administrative law. Accordingly, the possibility
that the Secretary of State will, in the future, apply unwritten
rules to reject petition signature sheets for circulator certifica-
tions is hypothetical and too speculative to confer standing.
Friends of the Earth, Inc., 528 U.S. at 180-81.
III
For the foregoing reasons, the district court’s dismissal is
AFFIRMED.
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