Malnes v. Arizona, State of et al

Filing 48

ORDER - The 15 Motion to Dismiss by Defendants is GRANTED with prejudice. The Clerk of Court is directed to enter judgment accordingly. The Motions for Temporary Restraining Order and the Motions for Preliminary Injunction (Docs. 18 and 35 ) by Brian Edward Malnes are DENIED as moot. The Motions to Strike Memorandum in Support of Preliminary Injunction by Defendants (Docs. 40 - 41 ) are DENIED as moot. The 46 Motion to Strike Defendant's Notice of Errata by Brian Edward Malnes is DENIED as moot. (See document for complete details.) Signed by Judge G Murray Snow on 7/05/2016. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Brian Edward Malnes,
Plaintiff,

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ORDER

v.

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No. CV-16-08008-PCT-GMS

State of Arizona, et al.,

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Defendants.

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Pending before the Court is the Motion to Dismiss for failure to state a claim by

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Defendants. (Doc. 38.) For the following reasons, the Court grants the motion with

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prejudice. All other pending motions are therefore moot. Specifically, the Motion for

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Preliminary Injunction and for Temporary Restraining Order by Brian Edward Malnes

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(“Malnes”) (Doc. 18), Motion for Preliminary Injunction and for Temporary Restraining

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Order by Malnes (Doc. 35), Motion to Strike Memorandum in Support of Preliminary

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Injunction by Defendants (Doc. 40), Motion to Strike Motion to Strike Memorandum in

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Support of Preliminary Injunction by Malnes (Doc. 41), and Motion to Strike

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Defendant’s Notice of Errata by Malnes (Doc. 46) are moot.

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BACKGROUND

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Brian Edward Malnes is a citizen of Arizona who resides in Flagstaff. Malnes

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alleges that on January 19, 2016, he attempted to register to vote on the State of

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Arizona’s Voter Registration page but could not do so because under Arizona law, a

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resident of the state may register to vote only if he satisfies various criteria, one of which

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is that he “[h]as not been convicted of treason or a felony, unless restored to civil rights.”1

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(Compl. ¶ 2.) Malnes contends that this law violates his constitutional rights under the

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Fifteenth and Twenty-Sixth Amendments. He now brings a claim against the State of

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Arizona as well as the Secretary of the State of Arizona.

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DISCUSSION

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As a preliminary matter, the Eleventh Amendment bars Malnes, an Arizona

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citizen, from bringing a claim against the State of Arizona. Pennhurst State Sch. & Hosp.

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v. Halderman, 465 U.S. 89, 100 (1984) (“This Court's decisions thus establish that ‘an

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unconsenting State is immune from suits brought in federal courts by her own citizens as

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well as by citizens of another state.’” (internal citations omitted)). There are narrow

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exceptions to this rule, which include: where the State has consented to suit, where the

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State has waived its immunity, or where Congress specifically abrogated the immunity.

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Id. at 101-02. However, none of these exceptions apply here, and therefore, the State of

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Arizona and its agencies are immune from Malnes’ claims.

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However, Malnes may bring a claim against a state official for a present violation

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of federal law. Edelman v. Jordan, 415 U.S. 651, 664 (1974) (holding that the Eleventh

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Amendment does not bar an action seeking to enjoin a state official from enforcing a

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statute which is claimed to violate the Unites States Constitution). But, Malnes may only

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seek prospective relief. Id. at 664, 677-78. The Court will therefore only consider

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Malnes’ claims against the Secretary in her official capacity for injunctive relief.

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I.

Legal Standard

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To survive a motion to dismiss for failure to state a claim pursuant to Federal Rule

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of Civil Procedure 12(b)(6), a plaintiff must allege sufficient facts to state a claim to

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relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim

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has facial plausibility when the plaintiff pleads factual content that allows the court to

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Although Malnes cited A.R.S. § 16-101(B), it is clear from his complaint that he meant
to cite A.R.S. § 16-101(A)(5), which contains the above quoted text. Section (B) defines
“resident,” a term which is not at issue in this case.
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draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 556 U.S. at 678.

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requirement,’ but it asks for more than a sheer possibility that a defendant has acted

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unlawfully.” Id.

“The plausibility standard is not akin to a ‘probability

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“[T]he tenet that a court must accept as true all of the allegations contained in a

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complaint is inapplicable to legal conclusions.” Id. “When there are well-pleaded factual

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allegations, a court should assume their veracity and then determine whether they

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plausibly give rise to an entitlement to relief.” Id. at 679. “Determining whether a

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complaint states a plausible claim for relief will . . . be a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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However, pro se litigants will not be held to the same pleading standards as

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lawyers. “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint,

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however inartfully pleaded, must be held to less stringent standards than formal pleadings

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drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.

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Gamble, 429 U.S. 97, 106 (1976) (internal quotation marks omitted); cf. F.R.C.P. 8(f)

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(“All pleadings shall be so construed as to do substantial justice”).

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II.

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Analysis
A.

Malnes fails to state a facially plausible claim under the Fifteenth
Amendment.

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Under Arizona law, “[e]very resident of the state is qualified to register to vote if

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he” meets certain criteria bearing on citizenship, age, residency, ability, and capacity, as

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well as the requirement that a voter must not have been “convicted of treason or a felony,

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unless restored to civil rights.” A.R.S. § 16-101(A) (1993). Malnes claims that the

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statute violates the Fifteenth Amendment because the state “cannot deny franchise to a

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felon who has served [his] term of servitude.” (Compl. at 2–3.)

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To properly plead a Fifteenth Amendment violation, a plaintiff must show that his

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or her vote was “denied or abridged by the United States or by any State on account of

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race, color, or previous condition of servitude.” U.S. Const. amend. XV, § 1. The

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language in the Fifteenth Amendment assuring that suffrage cannot be denied because of

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a “previous condition of servitude” was drafted to ensure that a person’s status as a newly

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emancipated slave could not be used as a race-based means of denying voting rights:

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“Enacted in the wake of the Civil War, the immediate concern of the [Fifteenth]

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Amendment was to guarantee to the emancipated slaves the right to vote, lest they be

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denied the civil and political capacity to protect their new freedom.” Rice v. Cayetano,

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528 U.S. 495, 512 (2000). “The design of the Amendment is to reaffirm the equality of

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races at the most basic level of the democratic process, the exercise of the voting

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franchise.” Id.

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“Felon disenfranchisement laws have a long history in the United States . . .

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predat[ing] the Jim Crow era and, with a few notable exceptions, have not been adopted

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based on racial considerations.” Farrakhan v. Gregoire, 623 F.3d 990, 993 (9th Cir.

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2010) (internal citation omitted). “Many such laws were in effect when the Fourteenth

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and Fifteenth Amendments were ratified; indeed, felon disenfranchisement has an

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affirmative sanction in the Fourteenth Amendment.” Id. (citing Richardson v. Ramirez,

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418 U.S. 24, 54 (1974)). “[A]n overwhelming number of states—including all states in

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our circuit—disenfranchise felons.” Id.

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The Constitution prohibits states from disenfranchising felons only when such

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disenfranchisement is designed to effect racial discrimination. See Hunter v. Underwood,

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471 U.S. 222, 233 (1985) (holding a disenfranchisement statute unconstitutional under

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the Fourteenth Amendment where “purposeful racial discrimination attend[ed] [its]

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enactment and operation”); Farrakhan, 623 F.3d at 993 (“[P]laintiffs bringing a [section

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2 of the Voting Rights Act] challenge to a felon disenfranchisement law based on the

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operation of a state’s criminal justice system must at least show that the criminal justice

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system is infected by intentional discrimination or that the felon disenfranchisement law

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was enacted with such intent.”); cf. Gomillion v. Lightfoot, 364 U.S. 339, 346-47 (1960)

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(holding that gerrymandering violates the Fifteenth Amendment where the legislature

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“singles out a readily isolated segment of a racial minority for special discriminatory

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treatment”). “To state a cause of action under the Fifteenth Amendment, the plaintiffs

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must show an outright denial of the ballot by the state with a racially discriminatory

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motive.” Irby v. Fitz-Hugh, 692 F. Supp. 610, 616-17 (E.D. Va. 1988), aff’d sub nom.

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Irby v. Virginia State Bd. of Elections, 889 F.2d 1352 (4th Cir. 1989); see also White v.

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Tennessee, No. 2:14-CV-118, 2014 WL 3339625, at *3 (E.D. Tenn. July 8, 2014), appeal

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dismissed (Aug. 20, 2014); Jones v. Edgar, 3 F. Supp. 2d 979, 980-81 (C.D. Ill. 1998). In

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the absence of intentional racial discrimination, a person’s “previous criminal record” is

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an “obvious” factor “which a State may take into consideration in determining the

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qualifications of voters.” Richardson, 418 U.S. at 53 (quoting Lassiter v. Northampton

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Cty. Bd. of Elections, 360 U.S. 45, 51 (1959)).

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Malnes does not allege that A.R.S. § 16-101(A)(5) intentionally effects racial

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discrimination. As such, Malnes does not present a claim which “plausibly suggests

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entitlement to relief.” See Iqbal, 556 U.S. at 678; See also Erickson, 551 U.S. at 94.

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B.

Malnes fails to state a facially plausible claim under the Twenty-Sixth
Amendment.

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To claim relief under the Twenty-Sixth Amendment, Malnes must allege that he is

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eighteen years old and that his right to vote has been “denied or abridged . . . on account

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of age.” U.S. Const. amend. XXVI. (emphasis added). Here, Malnes has not alleged his

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age, nor has he alleged that his right to vote was denied or abridged because of his age.

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(Compl. ¶ 2.) Thus, Malnes has not properly alleged a plausible claim under which this

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court may grant relief under the Twenty-Sixth Amendment.
CONCLUSION

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Arizona’s statute disenfranchising convicted felons violates neither the Fifteenth

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nor the Twenty-Sixth Amendment, and therefore the Court grants Defendants’ motion to

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dismiss. All other pending motions are therefore moot.

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IT IS THEREFORE ORDERED that the Motion to Dismiss by Defendants

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(Doc. 15) is GRANTED with prejudice.

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The Clerk of Court is directed to enter

judgment accordingly.

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IT IS FURTHER ORDERED that the Motion for Temporary Restraining Order

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and Motion for Preliminary Injunction by Brian Edward Malnes (Doc. 18) is DENIED as

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moot.

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IT IS FURTHER ORDERED that the Motion for Temporary Restraining Order

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and Motion for Preliminary Injunction by Brian Edward Malnes (Doc. 35) is DENIED as

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moot.

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IT IS FURTHER ORDERED that the Motions to Strike Memorandum in
Support of Preliminary Injunction by Defendants (Docs. 40-41) are DENIED as moot.
IT IS FURTHER ORDERED that the Motion to Strike Defendant’s Notice of
Errata by Brian Edward Malnes (Doc. 46) is DENIED as moot.
Dated this 5th day of July, 2016.

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Honorable G. Murray Snow
United States District Judge

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