The Peace and Freedom Party et al v. Bowen

Filing 13

ORDER denying 7 Motion for Preliminary Injunction signed by Judge Garland E. Burrell, Jr on 4/26/12. (Matson, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THE PEACE AND FREEDOM PARTY,
PETA LINDSAY, and RICHARD
BECKER,
Plaintiffs,

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v.

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DEBRA BOWEN, in her official
capacity as Secretary of State
of California,

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Defendant.
________________________________

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2:12-cv-00853-GEB-EFB
ORDER DENYING MOTION FOR
PRELIMINARY INJUNCTION

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Plaintiffs seek a preliminary injunction enjoining Defendant

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“from excluding [Plaintiff] Peta Lindsay from the primary ballot for the

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Presidential nomination of the Peace and Freedom Party.” (Pls.’ Mot. for

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Prelim. Inj. (“Mot.”) 1:17-20.) Plaintiffs argue Defendant’s “exclusion

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of Lindsay’s name from the primary ballot . . . impacts fundamental

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First and Fourteenth Amendment rights, as well as usurps the exclusive

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Constitutional role of Congress in determining the age qualifications of

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the Presidency[.]” Id. at 1:27-2:1. Plaintiffs further argue such rights

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will be “irreparably harmed” if her name is not added to the Peace and

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Freedom Party’s presidential ballot, which is “to be submitted for mail-

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in voters commencing May 7, 2012[.]” Id. at 2:6-12. Defendant opposes

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the motion. Since “the facts [pertinent to decision on the motion] are

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not in dispute,” no hearing is necessary, and the motion is denied for

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the reasons stated below. Charlton v. Estate of Charlton, 841 F.2d 988,

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989 (9th Cir. 1988).

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I. LEGAL STANDARD

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A preliminary injunction is “an extraordinary remedy that may

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only be awarded upon a clear showing that the plaintiff is entitled to

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such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22

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(2008). Plaintiffs seeking a preliminary injunction must establish that

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“(1) they are likely to succeed on the merits; (2) they are likely to

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suffer irreparable harm in the absence of preliminary relief; (3) the

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balance

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injunction is in the public interest.” Sierra Forest Legacy v. Rey, 577

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of

equities

tips

in

their

favor;

and

(4)

a

preliminary

F.3d 1015, 1021 (9th Cir. 2009)(citing Winter, 555 U.S. at 19).

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Further, the Ninth Circuit’s “‘serious questions’ approach

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survives Winter when applied as part of the four-element Winter test.”

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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.

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2011). In other words, “‘serious questions going to the merits’ and a

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balance of hardships that tips sharply towards the plaintiff can support

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issuance of a preliminary injunction, so long as the plaintiff also

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shows that there is a likelihood of irreparable injury and that the

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injunction is in the public interest.” Id.

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II. BACKGROUND

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Plaintiff

Peace

and

Freedom

Party

is

a

political

party

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qualified for participation in any primary election in California. CAL .

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ELEC. CODE §§ 338, 7700. Plaintiff Peta Lindsay is one of multiple

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candidates seeking the presidential nomination for the Peace and Freedom

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Party. See Compl. ¶ 4; Decl. of Alexandra Gordon in Supp. of Def.’s

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Opp’n (“Gordon Decl.”) Ex. F, at 3. Plaintiff Richard Becker is a

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resident of California who “supports the inclusion of Peta Lindsay in

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the presidential primary preference ballot for the Peace and Freedom

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Party[.]” (Compl. ¶ 5.)
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Defendant Debra Bowen is the Secretary of State of California,

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and as such, is “the chief election officer of the state.” CAL . ELEC . CODE

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§ 10. She is responsible for “administer[ing] the provisions of the

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[California]

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efficiently conducted and that state election laws are enforced.” CAL .

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GOV’T CODE § 12172.5.

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The

Elections

Code[,]”

California

and

ensuring

Elections

Code

“that

requires

elections

Defendant

are

to

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“publically announce and distribute to the news media . . . a list of

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the candidates she . . . intends to place on the ballot” and to

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“transmit to each elections official a certified list containing the

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names of the candidates to appear on the Peace and Freedom Party

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presidential preference primary ballot[.]” CAL . ELEC . CODE §§ 6722, 6951.

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Lindsay filed nomination papers for the purpose of being

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included on the Peace and Freedom Party’s presidential primary ballot.

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(Compl. ¶ 8.) However, she was not included on the Defendant’s February

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6, 2012 press release, in which Defendant listed the candidates whom she

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intended to place on the primary ballots. (Def.’s Opp’n (“Opp’n”) 2:17-

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22; Gordon Decl. ¶ 3, Ex. A.) Defendant states she excluded Lindsay

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because she is “27-years old and therefore ineligible to be President

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under Article II, Section I, Clause 5 of the U.S. Constitution.” (Opp’n

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6:10-13.)1

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In a letter to Defendant dated February 13, 2012, Lindsay’s

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counsel

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unprecedented decision to omit Ms. Lindsay from the Peace and Freedom

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Party’s list of candidates on the . . . primary ballot.” (Gordon Decl.

“requested

that

[Defendant]

immediately

reverse

[her]

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1

Article II, Section 1, clause 5 of the United States
Constitution states, in relevant part: “No Person . . . shall . . . be
eligible to [the] Office [of President] who shall not have attained to
the Age of thirty five Years[.]”
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Ex. B, at 1.) In the February 13, 2012 letter, Lindsay’s attorney

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“admitt[ed] that Ms. Lindsay is 27-years-old” and states “the U.S.

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Constitution requires a person to be at least 35-years-old to assume the

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office of president, not to be listed on the ballot as a candidate.” Id.

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at 3.

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Defendant did not include Lindsay on the March 29, 2012

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certified list of presidential primary candidates that was distributed

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to local election officials. (Gordon Decl. Ex. F.)

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California’s vote-by-mail ballot application process for the

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2012 presidential primary is scheduled to begin May 7, 2012. CAL . ELEC .

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CODE §§ 3000, et seq.

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III. DISCUSSION
A.

Mootness

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Defendant contends “Plaintiffs’ motion is moot as there is no

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present controversy as to which effective relief can be granted.” (Opp’n

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4:4-6.) Specifically, Defendant argues:

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Pursuant to the Elections Code, the Secretary is
required to, and did, distribute a certified list
of candidates to local elections officials no later
than March 29, 2012. . . . Once the March 29, 2012
deadline has passed, the Secretary has no power to
add or
delete
candidates
from
the certified
list . . . . Thus, even if the Court were to find
that the Secretary erred by not placing Peta
Lindsay’s name on the primary ballot, the Secretary
would not have the necessary legal capacity to
remedy this error.
Id. at 4:7-18.

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Plaintiffs counter that “election disputes, by their very

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nature (capable of repetition, yet evading review), are precisely the

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kind of dispute that is rarely ever moot.” (Pls.’ Reply 2:17-18.)

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“Generally, a case is rendered moot ‘when the issues presented

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are no longer live or the parties lack a legally cognizable interest in
4

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the outcome.’” Schaefer v. Townsend, 215 F.3d 1031, 1033 (9th Cir.

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2000)(quoting Powell v. McCormack, 395 U.S. 486, 496 (1960)). However,

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“[w]hen the case is ‘capable of repetition, yet evading review,’ . . .

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the fact that the court cannot give [Plaintiffs] the full relief [they]

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[seek] will not render the case moot.” Id. (quoting Dunn v. Blumstein,

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405 U.S. 330, 333 n.2 (1972)).

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Although Defendant argues she is without the legal capacity to

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add Lindsay’s name to the ballot, Plaintiffs’ claims are “capable of

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repetition because in the future [Defendant] would deny [Lindsay] or any

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other [candidate under the age of 35] the right” to be included on a

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presidential primary ballot. Id. Further, “[t]he short span of time

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between the [deadline to seek inclusion on a primary presidential

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ballot] and the election makes such a challenge evasive of review.” Id.;

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see also Joyner v. Mofford, 706 F.2d 1523, 1527 (9th Cir. 1983)(“If

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[election] cases were rendered moot by the occurrence of an election,

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many constitutionally suspect election laws-including the one under

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consideration here-could never reach appellate review.”) Therefore,

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Plaintiffs’ motion is not moot.

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B.

Preliminary Injunction

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1)

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Plaintiffs allege five claims for relief in their Complaint.

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The first three claims concern what Plaintiffs argue are the speech,

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association, and voting rights of the Peace and Freedom Party, Lindsay,

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and Richard Becker, respectively. Plaintiffs’ fourth claim is titled

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“The Secretary’s Ballot Exclusion Violates the Qualifications Clause,”

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and Plaintiffs allege in their fifth claim a violation of the Equal

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Protection Clause. The merits of each claim are addressed below.

Likelihood of Success on the Merits

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5

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a)

First Amendment Claims

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Plaintiffs argue Defendant’s exclusion of Lindsay from the

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ballot “burden[s] two distinct and fundamental rights: ‘The right of

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individuals to associate for the advancement of political beliefs’ and

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‘the

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persuasion, to cast their votes effectively.’” (Mot. 5:25-27 (quoting

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Williams v. Rhodes, 393 U.S. 23, 30 (1968).) Plaintiffs further argue

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that Lindsay and the Peace and Freedom Party “[have] each [been] denied

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their mutual right to select the other for their candidacy for the

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right

of

qualified

voters,

regardless

of

their

political

Presidency.” Id. at 10:3-7.

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Defendant counters, “[a]lthough . . . regulation of the

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selection

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individual’s

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associate with others . . . , where a state law imposes only reasonable,

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non-discriminatory restrictions on these rights, ‘the State’s important

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regulatory

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restrictions.’” (Opp’n 6:26-7:4 (quoting Anderson v. Celebrezze, 460

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U.S. 780, 788 (1983).) Defendant further rejoins that “[t]he state’s

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important interests in . . . protecting the integrity of the election

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process

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Plaintiffs’ rights that the omission of a candidate who is admittedly

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ineligible to serve as President may impose.” Id. at 9:12-14.

and

eligibility

First

and

interests

and

avoiding

of

candidates,

Fourteenth

are

voter

‘inevitably

Amendment

generally

confusion,

right

sufficient

justify

to

to

any

affects’

an

vote

to

and

justify

limitation

the

on

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“It is beyond cavil that ‘voting is of the most fundamental

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significance under our constitutional structure.’” Burdick v. Takushi,

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504 U.S. 428, 433 (1992)(quoting Illinois Bd. of Elections v. Socialist

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Workers Party, 440 U.S. 173, 784 (1979)). “It does not follow, however,

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that the right to vote in any manner and the right to associate for

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political purposes through the ballot are absolute.” Id. “Common sense,
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as well as constitutional law, compels the conclusion that government

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must play an active role in structuring elections[,]” and “[e]lection

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laws will invariably impose some burden upon individual voters.” Id.

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“In

election

regulation

cases,

the

Supreme

Court

[has]

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developed a balancing test to resolve the tension between . . . First

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Amendment rights and the state’s interest in preserving the fairness and

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integrity of the voting process.” Rubin v. City of Santa Monica, 308

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F.3d 1008, 1014 (9th Cir. 2002).

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When deciding whether a state election law violates
First and Fourteenth Amendment speech rights,
courts are to “weigh the character and magnitude of
the burden the State’s rule imposes on those rights
against the interests the State contends justify
that burden, and consider the extent to which the
State's concerns make the burden necessary.
Regulations imposing severe burdens on plaintiffs'
rights must be narrowly tailored and advance a
compelling state interest. Lesser burdens, however,
trigger less exacting review, and a State's
‘important regulatory interests' will usually be
enough to justify reasonable, nondiscriminatory
restrictions.”

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Id. (internal citations omitted)(quoting Burdick v. Takushi, 504 U.S.

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428, 434 (1992)).

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“Courts will uphold as ‘not severe’ restrictions that are

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generally

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protect the reliability and integrity of the election process.” Id.

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(quoting Hussey v. City of Portland, 64 F.3d 1260, 1265 (9th Cir.

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1995)). “Courts will strike down state election laws as severe speech

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restrictions only when they significantly impair access to the ballot,

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stifle core political speech, or dictate electoral outcomes.” Id. at

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1015.

applicable,

even-handed,

politically

neutral,

and

which

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In this case, the Secretary of State excluded Lindsay from the

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ballot since it is undisputed that she is “eight years shy of meeting
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1

the

2

Although Lindsay argues this age requirement does not apply to her

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request to be listed on the ballot, Plaintiffs are not likely to prevail

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on this argument since “the State understandably and properly [may]

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seek[] to prevent the clogging of its election machinery [and] avoid

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voter confusion,” by restricting who is listed on the ballot to persons

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meeting the age requirement applicable to assuming the presidential

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office. Bullock v. Carter, 405 U.S. 134, 145 (1972)(also stating “a

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State has an interest, if not a duty, to protect the integrity of its

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political processes from frivolous or fraudulent candidacies”). This age

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limitation is a “neutral candidacy qualification,” which the State is

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authorized to impose. Bates v. Jones, 131 F.3d 843, 847 (9th Cir. 1997);

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see

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1989)(affirming district court’s dismissal of First Amendment and Equal

15

Protection challenges to state constitutional provision that precludes

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election or appointment of any person to state judicial office who is

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seventy years old or older).

age

requirement

also

Zielasko

to

hold

v.

Ohio,

Presidential

873

F.2d

office.”

957,

(Opp’n

961-62

9:3-4.)

(6th

Cir.

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For the stated reasons, Plaintiffs have not shown a likelihood

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of success, nor raised serious questions, on the merits of their First

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Amendment claims.

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b)

Equal Protection Claims

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Plaintiffs also contend excluding Lindsay from the ballot

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violates the Equal Protection Clause of the United States Constitution,

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arguing

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consecutive

Presidential

26

investigate

the

27

candidates. (Mot. 5:17-18, 14:1-2.) The basis of Plaintiffs’ equal

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protection claims is unclear. Plaintiffs discuss a “class of one” equal

Defendant

has

taken

“contradictory

elections”

constitutional

positions

concerning

qualifications

8

.

.

.

in

her

ability

to

of

presidential

1

protection claim on page 13 of their motion but also appear to make a

2

“selective enforcement” equal protection claim, stating:

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When major party male candidates south [sic] the
Presidency, the Secretary’s hands were lawfully
tied and she was in no position to restrict access
based on any personal view she held of their
Constitutional
qualification
given
Congress’
explicit Constitutionally delegated role in that
precise
field;
when
a
minor
party’s
African-American
female
candidate
seeks
the
nomination of a small party in California, the
Secretary suddenly unloosens those knots, empowers
herself
without
statutory
or
Constitutional
authority, and excludes that candidate from the
mere
nomination
process
of
that
party’s
presidential primary. As such, the Secretary’s
action offends the equal protection clause of the
United
States
Constitution,
and
the
rights
protected there under, for the plaintiffs.

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5
6
7
8
9
10
11
12

Id. at 14:2-10.

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In

support

of

their

equal

protection

claims,

Plaintiffs

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reference the following past state and federal presidential election

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cases, in which Plaintiffs indicate the Secretary of State took the

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position that she is not responsible for investigating a presidential

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candidate’s constitutional qualifications: Keyes v. Bowen, 189 Cal. App.

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4th 647 (2011) and Robinson v. Bowen, 567 F. Supp. 2d 1144 (N.D. Cal.

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2008). (Mot. 11:26-12:9.)2

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Defendant rejoins, “to the extent that Plaintiffs allege a

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separate equal protection claim, it also fails.” (Opp’n 9:21-28 n.4.)

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Defendant argues, “because Ms. Lindsay is admittedly ineligible to be

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President, Plaintiffs are not similarly situated with the persons with

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25
26
27
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2

Plaintiffs appear to quote what the Secretary of State said in
documents filed in these cases. See Mot. 11:26-12:9. However, no court
filings were made exhibits to Plaintiffs’ Motion. Therefore, the Court
cannot determine whether the Secretary of State in fact made such
representations, or the context in which such representations were made.
9

1

whom they compare themselves and there is a rational basis for the

2

Secretary’s decision.” Id. Defendant further argues:

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any difference in treatment is the result of the
fundamentally different contexts in which the
treatment
occurred.
In
the
cases
to
which
Plaintiffs refer, the personal qualifications of
the various nominees were, fairly or not, in
dispute.
Where
there
are
challenges
to
a
candidate’s eligibility, the Secretary has no duty
to
investigate
and
verify
the
personal
qualifications of any political party’s nominees.
The resolution of such challenges is committed to
the United States Congress. Here, by contrast,
Plaintiffs admit and there is no dispute that Peta
Lindsay is 27 years old, eight years shy of meeting
the age requirement to hold Presidential office.
Ms. Lindsay’s admitted and incontrovertible lack of
eligibility fundamentally differentiates her from
the other presidential candidates discussed by
Plaintiffs. Because she is not “similarly situated”
to these other candidates, the Secretary’s decision
not to place Peta Lindsay on the primary ballot
does not constitute discrimination.

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5
6
7
8
9
10
11
12
13
14

Id. at 8:20-9:11 (citations omitted).

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The Fourteenth Amendment’s Equal Protection Clause prescribes

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that no state shall “deny to any person within its jurisdiction the

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equal protection of the laws.” U.S. Const. Amend. XIV, § 1. “The Equal

18

Protection Clause directs that ‘all persons similarly circumstanced

19

shall

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(1982)(quoting F.S. Royster Guano Co. v. Va., 253 U.S. 412, 415 (1920)).

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“But so too, ‘the Constitution does not require things which are

22

different in fact or opinion to be treated in law as though they were

23

the same.’” Id. (quoting Tigner v. Texas, 310 U.S. 141, 147 (1940)).

24

Whether premised on a “class of one” or “selective enforcement” basis,

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to prevail on an equal protection claim, a plaintiff must demonstrate

26

that he or she was treated differently from those similarly situated.

27

See North Pacifica LLC, v. City of Pacifica, 526 F. 3d 478, 486 (9th

28

Cir. 2008)(“In order to claim a violation of equal protection in a class

be

treated

alike.’”

Plyler

10

v.

Doe,

457

U.S.

202,

216

1

of one case, the plaintiff must establish that [Defendant] intentionally

2

.

3

situated.”); Freeman v. Red Turtle, 68 F.3d 1180, 1187 (9th Cir.

4

1995)(“To establish impermissible selective [enforcement],” Plaintiffs

5

must show that Defendant did not take action against “others similarly

6

situated” and that the selective action “is based on an impermissible

7

motive”).

.

.

treated

8

The

the

Ninth

plaintiff

Circuit

differently

discussed

from

the

others

“similarly

similarly

situated”

9

requirement as follows in Squaw Valley Dev. Co. v. Goldberg, 375 F.3d

10

936, 945 (9th Cir. 2004), overruled on other grounds, Action Apt. Assn’t

11

v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007):

12

16

Here, [Plaintiff] contends it is being singled out
from all other dischargers. However, it presents no
evidence that any other discharger is of comparable
size, has a comparable history of non-compliance,
engages in a comparable level of activity on its
land,
and
has
a
comparable
history
of
administrative action being ineffective. As the
district court repeatedly stated, [Plaintiff] is
not comparing “apples to apples.”

17

Plaintiffs have not shown that Defendant treated Lindsay

18

differently from any other presidential candidate who was similarly

19

situated.

20

qualifications of the presidential candidates at issue were contested;

21

whereas

22

undisputed. Since “[e]vidence of different treatment of unlike [people]

23

does not support an equal protection claim[,]” Plaintiffs have not shown

24

a likelihood of success, nor raised serious questions, on the merits of

25

their equal protection claims. Thornton v. City of St. Helens, 425 F.3d

26

1158, 1168 (9th Cir. 2005).

13
14
15

In

here,

the

cases

Lindsay’s

cited

by

Plaintiffs,

ineligibility

27
28
11

for

the

constitutional

presidential

office

is

1

c)

2

“Qualifications Clause Claim”

Plaintiffs

also

argue

Defendant

“usurp[ed]

the

exclusive

3

Constitutional role of Congress in determining the age qualifications of

4

the Presidency, as expressly set forth in . . . the United States

5

Constitution.”

6

Plaintiffs appear to make this argument in support of their fourth

7

claim, which is titled “The Secretary’s Ballot Exclusion Violates the

8

Qualifications Clause[.]”

9

(Mot.

1:27-2:2.)

Although

not

clearly

articulated,

“The Qualifications Clause of the Constitution sets forth the

10

requirements

11

Representatives[,]” not the eligibility requirements for the “Office of

12

President” set forth in Article II, § 1, clause 5 of the United States

13

Constitution. Schaefer, 215 F.3d at 1034; see also Van Susteren v.

14

Jones,

15

“Qualifications Clause,” U.S. Const. art. I, § 2, cl. 2.). Therefore,

16

the Qualifications Clause is inapplicable to this case. Further, the

17

Court cannot discern an alternative cognizable theory of relief from

18

Plaintiffs’

19

Therefore, Plaintiffs have not shown a likelihood of success, nor raised

20

serious questions, on the merits of their “Qualifications Clause Claim.”

21

331

for

F.3d

membership

1024,

allegations

d)

1027

made

in

the

n.2

in

(9th

support

United

Cir.

of

States

House

2003)(quoting

their

fourth

of

the

claim.

Unconstitutional Vagueness

22

Plaintiffs further argue that “[i]f any interpretation of

23

existing law authorizes [Linday’s] ballot exclusion, then the law would

24

violate due process rights and be void for vagueness.” (Mot. 5:16-17.)

25

This argument “do[es] not assist [Plaintiffs] in showing a

26

likelihood of success on the merits of this action[,]” however, since it

27

“[is] not part of the underlying complaint[.]” Walker v. Felker, No. CIV

28

S-07-1323 WBS EFB P, 2009 WL 1684541, at *2 (E.D. Cal. June 16, 2009),
12

1

report and recommendation adopted as modified by No. CIV S-07-1323 WBS

2

EFB P, 2009 WL 2579265 (E.D. Cal. Aug. 19, 2009); see also Pamer v. Cal.

3

Dept. of Corr., No. C 04-3252 SI (pr), 2007 WL 2778913, at *11 (N.D.

4

Cal. Sept. 21, 2007)(denying motion for a temporary restraining order

5

and preliminary injunction stating “[i]njunctive relief is improper

6

because the proposed TRO/preliminary injunction does not pertain to the

7

issues as framed by the [operative] complaint”). Since Plaintiffs’

8

complaint does not include a procedural due process claim that Defendant

9

acted pursuant to unconstitutionally vague authority, such an argument

10

cannot support an award of injunctive relief. Therefore, the merits of

11

this argument need not be addressed.

12

2)

13

Irreparable Harm / Balance of the Equities / Public
Interest

14

Since Plaintiffs have failed to show a likelihood of success,

15

or raise a serious question, on the merits of any claim, the three

16

remaining injunction factors need not be addressed. See Doe v. Reed, 586

17

F.3d 671, 681 n.14 (9th Cir. 2009)(stating “[b]ecause we conclude that

18

Plaintiffs have failed to satisfy the first Winter factor-likelihood of

19

success on the merits-we need not examine the three remaining Winter

20

factors”).

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IV. CONCLUSION

22

For the stated reasons, Plaintiffs’ motion for a preliminary

23

injunction is denied.

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Dated:

April 26, 2012

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26
27

GARLAND E. BURRELL, JR.
United States District Judge

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