The Peace and Freedom Party et al v. Bowen

Filing 31

ORDER signed by Judge Garland E. Burrell, Jr on 12/11/2012 ORDERING for reasons set forth, Plaintiff's claims are DISMISSED with prejudice for failure to state a claim; Judgment shall be entered in favor of Defendant. CASE CLOSED.(Waggoner, D)

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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,
Defendant.
________________________________

2:12-cv-00853-GEB-GEB-EFB
ORDER GRANTING MOTION TO
DISMISS

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California Secretary of State Debra Bowen (“Defendant”) moves

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for an order under Federal Rule of Civil Procedure (“Rule”) 12(b)(6)

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dismissing with prejudice the claims filed against her by The Peace and

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Freedom

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“Plaintiffs”). Plaintiffs allege that the Secretary violated their

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First, Fourteenth, and Twentieth Amendment constitutional rights by

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failing to list Peta Lindsay on the presidential primary ballot for the

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Peace and Freedom Party. Defendant contends Lindsay was not entitled to

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be placed on the ballot since she is ineligible to serve as president of

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the United States due to her age.

Party,

Peta

Lindsay,

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Richard

Becker

(collectively

I. LEGAL STANDARD

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and

Decision

on

a

Rule

12(b)(6)

dismissal

motion

requires

determination of “whether the complaint's factual allegations, together

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with all reasonable inferences, state a plausible claim for relief.”

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Cafasso, United States ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d

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1047, 1054 (9th Cir. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678-

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79 (2009)). “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference

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that the defendant is liable for the misconduct alleged.” Iqbal, 556

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U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556

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(2007)).

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In evaluating a Rule 12(b)(6) motion, the court “accepts the

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complaint’s well-pleaded factual allegations as true and draws all

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reasonable inferences in the light most favorable to the plaintiff.”

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Adams v. U.S. Forest Serv., 671 F.3d 1138, 1142-43 (9th Cir. 2012)

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(citing Twombly, 544 U.S. at 555-56). However, this tenet does not apply

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to “legal conclusions . . . cast in the form of factual allegations.”

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Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (internal quotation

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marks

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unwarranted inferences are insufficient to defeat a motion to dismiss.”

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Id. (internal quotation marks omitted); see also Iqbal, 556 U.S. at 678

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(quoting Twombly, 550 U.S. at 555) (“A pleading that offers ‘labels and

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conclusions’ or ‘a formulaic recitation of the elements of a cause of

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action will not do.’”).

omitted).

“Therefore,

conclusory

allegations

of

law

and

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Dismissal with prejudice is appropriate when a “‘pleading

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could not possibly be cured by the allegation of other facts.’” Watison

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v. Carter, 668 F.3d 1108, 1117 (9th Cir. 2012) (quoting Doe v. United

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States, 58 F.3d 494, 497 (9th Cir. 1995)); see also Klamath-Lake Pharm.

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Ass’n v.Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983)

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(“Futile amendments should not be permitted.”).

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II. JUDICIAL NOTICE

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Defendant requests that the Court take judicial notice of the

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following: (1) Plaintiffs’ Motion for Preliminary Injunction (ECF No.

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7); (2) the Order, filed on April 26, 2012, denying Plaintiffs’ motion

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for preliminary injunction (ECF No. 13); and (3) a letter, dated

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February 13, 2012, from the Peta Lindsay for President 2012 Campaign

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(the “Campaign”) to Defendant, in which the Campaign’s attorney recounts

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that in a conversation with a representative from Defendant’s office he

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“admitt[ed] that Ms. Lindsay is 27-years-old.”

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As a general rule, a district court “‘may not consider any

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material beyond the pleadings in ruling on a Rule 12(b)(6) motion.’”

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United States v. Corinthian Colls., 655 F.3d 984, 998 (9th Cir. 2011)

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(quoting Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)).

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However, judicial notice may be taken of the existence of court filings,

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which are not subject to reasonable dispute over their authenticity.

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E.g., Holder v. Holder, 305 F.3d 854, 866 (9th Cir. 2002); Lee, 250 F.3d

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at 690. Accordingly, Defendant’s first and second requests for judicial

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notice are granted.

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A court may also take judicial notice of non-hearsay evidence

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that “can be accurately and readily determined from sources whose

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accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2);

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United States v. Isaacs, 359 Fed. App’x 875, 877 (9th Cir. 2009).

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Plaintiffs

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2012, nor the fact that it was from the Campaign’s attorney. Further,

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there can be no dispute that the Campaign’s attorney, who wrote the

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letter to Defendant advocating for Lindsay’s inclusion on the ballot,

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acted on behalf of Plaintiff Lindsay. Accordingly, the attorney’s

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statement “admitting that Ms. Lindsay is 27-years-old” is judicially

neither contest the accuracy of the letter of February 13,

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noticeable non-hearsay since it “is offered against an opposing party”

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and “was made by a person whom the party authorized to make a statement

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on the subject” or “was made by the party’s agent . . . on a matter

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within the scope of that relationship.” Fed. R. Evid. 801(d)(2)(C)—(D).

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Plaintiffs argue that consideration of Lindsay’s age “is not appropriate

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at this stage of the case” since it is “outside the pleadings.” (Opp’n

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5:3.) However, Plaintiffs cannot preclude dismissal by selectively

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omitting this crucial fact from their pleadings and then arguing that

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consideration of this judicially noticeable fact is inappropriate at

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this stage of the case. Accordingly, Defendant’s final request for

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judicial notice is granted.
III. BACKGROUND

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This lawsuit concerns Defendant’s failure to place Lindsay’s

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name

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candidate

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Defendant nomination papers for inclusion of her name on the Peace and

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Freedom Party’s presidential primary ballot (the “ballot”) on February

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1, 2012. (Compl. ¶ 8.) As Secretary of State, Defendant publicly

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distributes the names of the Peace and Freedom Party’s presidential

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primary candidates and provides elections officials with the final

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certified list of such candidates. Cal. Elec. Code §§ 6722, 6951.

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Defendant did not include Lindsay, who is twenty-seven years old, on the

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certified

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candidates. (Compl. ¶¶ 10-12; ECF No. 15-1.) The U.S. Constitution

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states “no person . . . shall be eligible to the Office of President

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on

the

2012

presidential

for President

list

of

of

Peace

the

and

primary

ballot

United

States.

Freedom

Party

in

California

Lindsay

as

a

filed with

presidential

primary

. . . who shall not have attained the Age of thirty five Years.” U.S.
Const. art. II, § 1, cl. 4.

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Lindsay subsequently brought suit against Defendant together

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with the Peace and Freedom Party, and Richard Becker, a California

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resident who supports Lindsay’s inclusion on the ballot. Plaintiffs also

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moved

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excluding Lindsay from the ballot. (Mot. for Prelim. Inj., 1:18-20.)

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That motion was denied. (Order Den. Mot. for Prelim. Inj. (“Order”)

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13:22-23.)

for

a

preliminary

to

enjoin

the

Secretary

from

IV. DISCUSSION

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injunction

A. First and Fourteenth Amendments1

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Defendant seeks dismissal of Plaintiffs’ First and Fourteenth

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Amendment claims without leave to amend, arguing that “the Secretary’s

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generally-applicable, even-handed, and non-discriminatory decision not

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to place Peta Lindsay”—who is ineligible to serve as president due to

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her age—on the presidential primary ballot is “reasonable and justified”

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by important state interests such as “protecting the integrity of the

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election

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(“Mot.”) 7:18-19, 7:9-10.) Plaintiffs counter that, by virtue of its use

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of the word “shall,” Cal. Elec. Code § 6720 requires Defendant to list

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on the ballot all “generally advocated for or recognized” candidates,

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and by failing to list Ms. Lindsay, who meets this criterion, Defendant

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acted outside the scope of her statutorily “cabined discretion” and

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without “lawful authority.” (Opp’n 4:16, 3:19.)2

process

and

avoiding

voter

confusion.”

(Mot.

to

Dismiss

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Plaintiffs do not suggest separate analyses for their First
Amendment and Due Process claims. The Supreme Court and the Ninth
Circuit have “addressed such claims collectively using a single analytic
framework. . . . [This Court] do[es] the same here.” Dudum v. Arntz, 640
F.3d 1098, 1106 n.15 (9th Cir. 2011) (citation omitted).
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Plaintiffs do not explain their basis for asserting individual
claims for violations of Cal. Elec. Code § 6720, and they have not shown
that this statute authorizes a private right of action. Section 6720
(continued...)
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“The impact of candidate eligibility requirements on voters

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implicates basic constitutional rights. . . . [I]t ‘is beyond debate

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that freedom to engage in association for the advancement of beliefs and

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ideas is an inseparable aspect of the “liberty” assured by the Due

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Process Clause of the Fourteenth Amendment, which embraces freedom of

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speech.’” Anderson v. Celebrezze, 460 U.S. 780, 786–87 (1983) (quoting

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NAACP v. Alabama, 357 U.S. 449, 460 (1958)). Further, “States may, and

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inevitably must, enact reasonable regulations of parties, elections, and

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ballots to reduce election-and campaign-related disorder.” Timmons v.

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Twin Cities Area New Party, 520 U.S. 351, 358 (1997).
When deciding whether a state election law violates
First and Fourteenth Amendment associational rights,
we 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.’” No bright line separates permissible
election-related regulation from unconstitutional
infringements on First Amendment freedoms.

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(...continued)
provides:
The Secretary of State shall place the name of a
candidate upon the Peace and Freedom Party
presidential preference ballot when the Secretary of
State has determined that the candidate is generally
advocated for or recognized throughout the United
States or California as actively seeking the
presidential nomination of the Peace and Freedom
Party or the national party with which the Peace and
Freedom Party is affiliated.

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Cal. Elec. Code § 6720 (emphasis added).
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Timmons, 520 U.S. at 358–59 (citations and internal quotation marks

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omitted).

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“Under the First Amendment, [P]laintiffs bear the initial

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burden of demonstrating that a challenged election regulation severely

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burdens their First Amendment rights. [If this burden is sustained, t]he

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burden then falls on the state to demonstrate either that the regulation

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is narrowly tailored to achieve a compelling state interest or, if the

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regulation imposes only a modest burden on First Amendments rights, that

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the regulation furthers the state’s important regulatory interests.

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Here,

it

was

the

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Secretary’s

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political opportunity], not the [D]efendant[’s] burden to demonstrate

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its absence.” Wash. State Republican Party v. Wash. State Grange, 676

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F.3d 784, 791 n.4 (9th Cir. 2012) (citation omitted); see also Nader v.

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Cronin, 620 F.3d 1214, 1217-18 (9th Cir. 2010).

action

[P]laintiffs’

burden

significantly

to

restricted

demonstrate
the

[that

availability

the
of

Plaintiffs have not met their burden. “That a particular

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individual

may

not

appear

on

the

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candidate does not severely burden that party’s associational rights.”

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Timmons, 520 U.S. at 359. Indeed, “limiting the choice of candidates to

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those who have complied with state election law requirements is the

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prototypical example of a regulation that, while it affects the right to

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vote, is eminently reasonable.” Burdick, 504 U.S. at 440 n.10; see also

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Anderson v. Celebrezze, 460 U.S. 780, 791 n.12 (1983) (noting voters

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“remain free to support and promote other candidates who satisfy the

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State’s . . . requirements” for candidate eligibility). Further, the

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Secretary regulated only what was listed on the ballot, which is not a

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forum for political expression, and which is subject to a flexible

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balancing approach. See Caruso, 422 F.3d at 856. Since the Secretary’s

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ballot

as

a

particular

party’s

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action does not impose a severe burden on Plaintiffs’ fundamental

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rights, it is analyzed using rational basis review. It “will survive

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review as long as [it] further[s the] state’s ‘important regulatory

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interest.’” Wash. State Republican Party, 676 F.3d at 793-94 (quoting

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Brewer, 531 F.3d at 1035).
“[T]he State understandably and properly [may] seek[] to

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prevent the

clogging

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

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eligible to assume the presidential office. Bullock v. Carter, 405 U.S.

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134, 145 (1972); see also Timmons, 520 U.S. at 358; Burdick, 504 U.S. at

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433; Storer v. Brown, 415 U.S. 724, 733 (1974). Further, an “age”

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

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certainly has the right to impose.” Bates v. Jones, 131 F.3d 843, 847

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(9th Cir. 1997); see also Socialist Workers Party v. Ogilvie, 357 F.

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Supp. 109, 113 (N.D. Ill. 1972) (holding state’s refusal to certify

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candidacy of underage presidential candidate “violates no federal right

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of Plaintiffs”). In this case, the Secretary states she did not list

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Lindsay on the ballot “to ensure that the primary election [wa]s

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conducted

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“protect[] the integrity of the election process,” (Mot. 7:9); and to

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“avoid[] voter confusion.” (Mot. 7:10.) Plaintiffs have not shown that

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“the state’s important interests [do not] justify this minimal burden on

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[P]laintiffs’ rights” caused by Defendant’s exclusion of an admittedly

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ineligible presidential candidate from the ballot. Lemons v. Bradbury,

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538 F.3d 1098, 1102 (9th Cir. 2008). Accordingly, this portion of

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Defendant’s dismissal motion is granted. Further, since Plaintiffs’

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“‘pleading could not possibly be cured by the allegation of other

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facts,’” Watison, 668 F.3d at 1117 (quoting Doe, 58 F.3d at 497),

legally,

of

its

fairly

election machinery

and

efficiently,”

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[and]

(Mot.

avoid voter

6:22-23);

to

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Plaintiffs’ First Amendment and Due Process Clause claims are dismissed

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with prejudice.

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B. Equal Protection Clause

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Defendant asserts that Plaintiffs’ Equal Protection Clause

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claim fails because “[t]he Complaint does not identify . . . a candidate

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that is, like Ms. Lindsay, manifestly and indisputably unqualified to be

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President.” (Mot. 8:27-9:1.) Defendant argues Plaintiffs “‘have not

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shown that [the Secretary] treated Lindsay differently from any other

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presidential candidate who was similarly situated.’” (Id. 8:28-9:1.)

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Plaintiffs

rejoin

that

Defendant’s

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improperly

“assumes

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appropriate at this stage of the case.” (Opp’n 5:3.) Additionally,

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Plaintiffs assert that the Secretary “has not been given the lawful

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authority” to consider a candidate’s age in fulfilling her statutory

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duties, because “the Twentieth Amendment to the Constitution gives this

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authority to Congress.” (Id. 5:13-16.)

facts

outside

argument
the

about

pleadings,

protection

Lindsay’s

age

which

not

is

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“In

making

an

equal

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[Plaintiffs’]

burden

to

‘demonstrate

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discrimination against [them] of some substance.’” Clements v. Fashing,

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457 U.S. 957, 967 (1982) (quoting Am. Party of Tex. v. White, 415 U.S.

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767, 781 (1974)). “‘Statutes create many classifications which do not

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deny equal protection; it is only ‘invidious discrimination’ which

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offends the Constitution.’” Am. Party of Tex., 415 U.S. at 781 (quoting

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Ferguson v. Skrupa, 372 U.S. 726, 732 (1963)).

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protection claim, Plaintiffs must demonstrate that they were treated

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differently from those similarly situated. See N. Pacifica LLC, v. City

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of Pacifica, 526 F. 3d 478, 486 (9th Cir. 2008) (“In order to claim a

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violation of equal protection in a class of one case, the [P]laintiffs

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in

challenge,

it

the

instance

first

is

the
a

To allege a viable equal

1

must

establish

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[P]laintiffs differently from others similarly situated.”); Freeman v.

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City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995) (“‘To establish

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impermissible

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Defendant did not take action against “‘others similarly situated’” and

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that the selective action “‘is based on an impermissible motive’”)

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(quoting United States v. Lee, 786 F.2d 951, 957 (9th Cir. 1986)).

[Defendant]

selective

intentionally

[enforcement],’”

.

.

.

treated

Plaintiffs must

the

show that

Defendant argues “the Complaint fails to establish that Ms.

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that

Lindsay was

treated

differently

from

any

other

candidate

who was

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similarly situated (in that the candidate was also manifestly and

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indisputably unqualified to be President).” (Reply 2:16-18.) Plaintiffs

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argue that Defendant has no authority to “distinguish[] Ms. Lindsay as

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not similarly situated because of her age” and that Defendant has not

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been given the lawful authority to make that determination because the

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Twentieth

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Congress.”

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are woefully conclusory and insufficient to allege an Equal Protection

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Clause claim. See generally

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1997) (stating “age” minimums are “neutral candidacy qualification[s]”

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that “the State certainly has the right to impose”); Socialist Workers

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Party, 357 F. Supp. at 113 (“Amendment XX, Section 3 of the United

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States Constitution does not foreclose the Defendant[] from precluding

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from [the] ballot a would-be candidate for President who does not

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fulfill the eligibility requirements specified in Article II, Section 1

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of the United States Constitution.”) Plaintiffs’ arguments in their

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opposition brief also conflate a conclusory allegation referencing

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Lindsay’s age with the Twentieth Amendment. Plaintiffs have not stated

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an Equal Protection Clause claim and would be unable to do so even if

Amendment

to

the

(Opp’n 5:9-16.)

Constitution

gives

this

authority

to

The allegations in Plaintiffs’ Complaint

Bates v. Jones, 131 F.3d 843, 847 (9th Cir.

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given the opportunity to amend. See Lipton v. Pathogenesis Corp., 284

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F.3d 1027, 1039 (9th Cir. 2002). Therefore, this portion of Defendant’s

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motion is granted with prejudice.

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C. Twentieth Amendment3

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Defendant also moves for dismissal of Plaintiff’s remaining

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claim arguing it is without factual support. Plaintiffs allege in that

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claim that the Secretary acted beyond the scope of her authority since

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Congress is vested with the “exclusive” power to “determin[e] the

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qualifications

of .

.

.

Presidential”

candidates.

(Compl.

¶

21.)

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Specifically, Plaintiffs argue that the U.S. Constitution “does not

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allow or authorize exclusion from a primary ballot” of “an underage

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Presidential candidate” by “individual state officers,” since Section 3

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of the Twentieth Amendment empowers Congress to “‘by law provide for the

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case wherein neither a President elect nor a Vice President elect shall

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have qualified.’” (Opp’n 6:9-11, 5:28-6:2 (quoting U.S. Const. amend.

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XX, § 3).) Plaintiffs cite no authority beyond Section 3 of the

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Twentieth Amendment in support of their argument. Defendant counters

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that Section 3 of the Twentieth Amendment “does not confine to Congress

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the exclusive power to decide whose names shall be placed upon all, or

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any, of the ballots of the United States. Indeed, the states have wide-

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In their brief, Plaintiffs defend their “Qualification Clause”
claim. (Opp’n 5:21.) “The provisions that are generally known as the
Qualifications Clauses” of the U.S. Constitution are “Art. I, § 2, cl.
2, . . . Art. I, § 3, cl. 3, . . . [and Art. I,] § 6, cl. 2.” U.S. Term
Limits, Inc. v. Thornton, 514 U.S. 779, 867 (1995); see also Schaefer v.
Townsend, 215 F.3d 1031, 1034 (9th Cir. 2000) (quoting the
“Qualifications Clause” as U.S. Const. art. I, § 2, cl. 2). However,
Plaintiffs’ “Qualification Clause” argument concerns section three of
the Twentieth Amendment, which Plaintiffs call the “Qualifications
clause of the Twentieth Amendment.” (Opp’n 6:8.) Therefore, for purposes
of clarity, this claim is redesignated as Plaintiffs’ Twentieth
Amendment claim.
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ranging authority to regulate the elections process, including the

2

ballot.” (Reply 3:17-19.)

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Plaintiffs’ argument is unsupported by the text or history of

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Section 3 of the Twentieth Amendment. Section 3 was intended to provide

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for a then-unprovided for contingency: the selection and succession of

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the presidency in the event that the president elect, vice president

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elect, or both could not assume office.

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(1932) (statement of Rep. Cable) (“The [current] law dealing with

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succession applies to the President, not the President elect. Sections

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3 and 4 of the House resolution provide remedies against the[se]

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contingencies”); id. at 3881 (statement of Rep. Reilly) (emphasizing

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that “[t]his situation is not covered by any provision in the present

13

Constitution”). Nothing in the legislative history of Section 3 suggests

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Congress intended to limit state election officials’ power to exclude

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ineligible candidates from a ballot involved in a Presidential election.

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Indeed, state election officials can and do prohibit certain candidates

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from appearing on the ballot, including those “who d[o] not satisfy the

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age requirement for becoming a member of Congress” or for becoming

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president of the United States. Storer, 415 U.S. at 736-37 (stating that

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a candidate “who did not satisfy the age requirement for becoming a

21

member of Congress” may be “absolutely and validly barred from the

22

ballot” by California election officials). Therefore, Plaintiffs have

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not alleged facts giving rise to a reasonable inference that the

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Defendant unlawfully excluded Lindsay from the ballot. Accordingly, this

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portion of Defendant’s motion is granted without leave to amend.

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//

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//

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//
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See, e.g., 75 Cong. Rec. 3831

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V. CONCLUSION

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For the reasons set forth above, Plaintiffs’ claims are

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dismissed with prejudice for failure to state a claim. Judgment shall

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be entered in favor of Defendant.

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Dated:

December 11, 2012

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GARLAND E. BURRELL, JR.
Senior United States District Judge

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