UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT COMMITTEE TO RECALL DAN No. 23-35107 HOLLADAY; JEANA GONZALES; ADAM MARL, D.C. No. 3:20-cv- 01631-YY Plaintiffs-Appellants, v. ORDER JAKOB WILEY, City Recorder for the City of Oregon City, in his official capacity,

Defendant-Appellee, STATE OF OREGON,

Intervenor-Defendant- Appellee.

Filed October 23, 2024 Before: John B. Owens and Michelle T. Friedland, Circuit Judges, and Douglas L. Rayes,* District Judge.

Order; Dissent by Judge Bumatay * The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. 2 COMM. TO RECALL DAN HOLLADAY V. WILEY

SUMMARY**

Matter: Elections/Voter Initiatives

The panel denied a petition for rehearing en banc in a case in which the panel (1) affirmed the district court’s dismissal of a federal and state constitutional challenge to Oregon’s 90-day signature gathering deadline for Oregon recall petitions; and (2) remanded for the district court to reconsider whether to grant leave to amend on the federal claim, whether to exercise supplemental jurisdiction over the state law claim, and whether to certify any question related to plaintiffs’ state law claim to the Oregon Supreme Court. Dissenting, Judge Bumatay, joined by Judges Bennett, R. Nelson, and VanDyke, wrote that this court should reconsider its decision in Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012), which requires the application of First Amendment strict scrutiny to any regulation that significantly inhibits the placement of voter initiatives on the ballot. Nothing in the text, history, and tradition of the First Amendment supports the application of heightened scrutiny over state ballot initiatives and other direct democracy petitions. Throughout our history, when the States have permitted citizens to participate directly in democracy, they have also significantly limited their say on which issues got put to a vote. The Court’s free speech jurisprudence doesn’t require heightened scrutiny for neutral rules that lay out the prerequisites for ballot qualification unless a state regulation restricts citizens’ ability to speak out on an issue of political ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. COMM. TO RECALL DAN HOLLADAY V. WILEY 3

change. The decision in Angle poses a threat to federalism by forcing district courts to override state election laws and grant political wins to litigious ballot proponents. Finally, the decision in Angle puts this court at odds with the majority of the other circuits.

ORDER

Judge Owens and Judge Friedland have voted to deny Appellee’s petition for rehearing en banc and Judge Rayes so recommends. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on en banc rehearing. The majority of the active judges have voted to deny rehearing the matter en banc. Fed. R. App. P. 35(f). Judge Forrest and Judge H.A. Thomas did not participate in the deliberations or vote in this case. The petition for rehearing en banc is DENIED. Judge Bumatay’s dissent from the denial of en banc rehearing is filed concurrently herewith. 4 COMM. TO RECALL DAN HOLLADAY V. WILEY

BUMATAY, Circuit Judge, joined by BENNETT, R. NELSON, and VANDYKE, Circuit Judges, dissenting from the denial of rehearing en banc:

The right to speak out is not a right to prevail. While the First Amendment guarantees freedom of speech, nothing in that constitut