Robinson v. Secretary of State Debra Bowen et al

Filing 31

Memorandum in Opposition 1 to Plaintiff's Complaint for Declatory and Injunctive Relief filed by Secretary of State Debra Bowen. (Attachments: # 1 Declaration of Cathy Mitchell, # 2 Certificate of Service)(Barankin, Nathan) (Filed on 9/4/2008) Modified on 9/5/2008 (sis, COURT STAFF).

Robinson v. Secretary of State Debra Bowen et al

Doc. 31

1 E D M U N D G. B R O W N JR. Attorney General o f the State o f California 2 CHRISTOPHER E . KRUEGER S e n i o r Assistant A t t o r n e y General 3 J O N A T H A N K. R E N N E R Supervising D e p u t y Attorney General 4 N A T H A N R. B A R A N K I N , State Bar No . 246313 D e p u t y Attorney General 5 1300 I Street, Suite 125 P.O. B o x 944255 6 Sacramento, CA 94244-2550 Telephone: [phone] Fax: [phone] E-mail: N a t h a n . B a r a n k i n @ d o j . c a . g o v 8 Attorneys for Office o f Secretary o f State 9 U N I T E D STATES DISTRICT C O U R T 10 N O R T H E R N D I S T R I C T OF C ALI F OR NI A 11 12 13 14 15 16 17 18 19 20 21 Defendants. 22 23 24 25 26 27 28
SECRETARY OF STATE DEBRA B O W E N ' S OPPOSITION TO P L A I N T I F F ' S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

M A R K H A M R O B I N S O N , in his capacity as the . P r e s i d e n t i a l E l e c t o r a n d C h a i r p e r s o n - E l e c t of t h e American I n d e p e n d e n t P a r t y ,
Plaintiff,

3:08-CV-03836 W H A

v.
S E C R E T A R Y O F S T A T E D E B R A B O W E N , in h e r i n d i v i d u a l a n d official capacities, T H E . REPUBLICAN NATIONAL C O M M I T T E E , a n d organization, form u n k n o w n , T H E REPUBLICAN P A R T Y O F C A L I F O R N I A , an o r g a n i z a t i o n , form u n k n o w n , S E N A T O R J O H N McCAIN, in his i n i d i v i d u a l a n d official capacities, D O E S ONE t h r o u g h F I F T Y F I V E , inclusive,

SECRETARY OF STATE DEBRA BOWEN'S oPPOSmONTO P L A I N T I F F ' S 'CO M PL A I N T F O R D E C L A R A T O R Y AND INJUNCTIVE RELIEF
Date: Time: Dept: Judge: S e p t e m b e r 11, 2008 7:30 a.m.

9

The Honorable William Alsup T r i a l Date: A c t i o n F i l e d: August 11, 2008

Dockets.Justia.com

1

I.

INTRODUCTION

2

P l a i n t i f f M a r k h a m R o b i n s o n has filed a c o m p l a i n t seeking, among other things, an

3 injunction barring t h e California Secretary o f State from including Senator J o h n M c C a i n on the 4 2008 Presidential Election B a l l o t a s t h e Republican n o m i n e e for President o f t h e United States. 5 P l a i n t i f f argues t h a t such r e l i e f is appropriate because, he alleges, S e n a t o r M c C a i n does not m e e t 6 the qualifications for P r e s i d e n t as established in the U n i t e d States Constitution. The Secretary o f 7 State does not t a k e a position on the merits o f P l a i n t i f f ' s claims, b u t submits t h a t the injunction 8 sought a g a i n s t her s h o u l d be denied for two reasons. 9 First, P l a i n t i f f ' s request for injunctive r e l i e f against the Secretary o f State fails to state

l O a claim u p o n w h i c h r e l i e f may be granted. B e c a u s e P l a i n t i f f does not, and cannot, allege that the 11 Secretary o f State has ' c o m m i t t e d any v i o l a t i o n o f l a w or infringed o n any r i g h t held by P l a i n t i f f 12 by including Senator M c C a i n

as the Republican nominee for President on the ballot, his claim

13 against the Secretary should be dismissed. Second, P l a i n t i f f ' s failure to t i m e l y file his complaint 14 will prevent the C o u r t from ruling o n t h e injunction p r i o r to the printing a n d distribution, 15 pu rsuan t to statutory mandates, o f ballots containing Senator M c C a i n ' s n a m e as the Republican 16 Presidential nominee. Indeed, thousands o f California voters residing overseas will have 17 received and be a b l e to c a s t their v o t e s for P r e side nt before t h i s C o u r t is able to rule on P l a i n t i f f ' s 18 complaint. Accordingly, P l a i n t i f f s request for injunctive r e l i e f should be denied because it 19 w o u l d result in an unprecedented disruption o f an ongoing election. 20 21 22 23 24

II.

S T A T E M E N T OF RELEVANT FACTS AND LAW

T h e California Secretary o f State [hereafter "Secretary"] is t h e S t a t e ' s c h i e f elections officer. Cal. G o v ' t Code, § 12172.5. She is responsible for ensuring t h a t State elections are c o n d u c t e d efficiently a n d t h a t the election laws are enforced. ld. Consistent w i t h these obligations, the Secretary is required to provide local elections officials w i t h a certified list o f the

25 names, party affiliations, a n d ballot designations o f candidates n o m i n a t e d by t h e i r respective 26 27 28 parties to a p p e a r on the N o v e m b e r 4, 2008 P r e s i d e n t i a l General E l e c t i o n ballot. Cal. Elec. Code,

§§ 6901, 8148.
Specifically, the Secretary w a s required to distribute a certified list o f candidates to

1
SECRETARY OF STATE D E B R A B O W E N ' S OPPOSITION TO PLAINTIFF ' S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 local elections officials by August 2 8 , 2 0 0 8 . Id . § 8148 [certificate shall be delivered not less 2 than 68 days before the election]. For p~oses o f the Republican candidates for President and 3 Vice President, the Secretary is required to include in her certified list the names o f the nominees 4 provided by the Chairperson o f the California Republican State Central Committee (or California
5 Republican Party). Id. §§ 6901, 731O(b).

6

Where , as this year , the Republican National Convention is scheduled to conclude after

7 the deadline for the Secretary to deliver the certified candidate list to local elections officials, the
8 California Republican Party must notify the Secretary o f its nominees once the candidate for 9 President has secured a sufficient number o f delegate votes to assure his or her nomination and
10 selected a Vice Presidential nominee. Id. § 7310(a). Once she was informed o f the Republican

11 Party's nominees, on August 2 9 , 2 0 0 8 , the Secretary distributed a certified list o f candidates that 12 included Senator McCain and Governor Sarah Palin as the Republican nominees for President 13 and Vice President, respectively ..!L Declaration o f Cathy Mitchell [hereafter "Mitchell Decl.] ~ 5. 14 Upon receiving the certified list o f candidates, local elections officials are responsible

15 for printing and distributing sample ballots and ballots to registered California voters . Cal. Elec. 16 Code, §§ 13000, 13303 . And in federal elections, local officials are required to send a ballot to 17 voters residing abroad " as soon as possible" after September 5 , 2 0 0 8 (60 days prior to the general 18 election). Id. § 3307. Once they receive their ballots, overseas voters are entitled to cast their 19 vote for the candidates o f their choice and return their ballots to local elections officials. Id. §§ 20 3304, 3311 . 21 By September 2 5 , 2 0 0 8 , local elections officials may begin mailing sample ballots to

22 registered voters throughout California. Id. § 13303(a) . The sample ballots are identical to the 23 official ballots that will be used in the November 4, 2008 Presidential General Election, and 24 therefore will include the offices and names o f candidates for each office. Id. Local elections 25 1. Although Senator McCain was clearly the presumptive Republican nominee for President as o f August 28, 2008, he did not select a Vice Presidential running mate until one day later, on 27 August 29 , 2008 . In compliance with statute , the Secretary distributed a certified list o f candidates identifying Senator McCain as the Republican nominee for President on August 28, 2008, and 28 updated the list the following day to include Governor Palin as his running mate. 2
SECRETARY OF S T A T E DEBRA B O W E N ' S OPPOSITION TO P L A I N T I F F ' S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

26

1 officials must have completed mailing out the sample ballots no later than October 1 4 , 2 0 0 8 . Id.

2

On August 1 1 , 2 0 0 8 , P l a i n t i f f filed a complaint (hereafter "PI. CompI.") seeking

3 declaratory and injunctive r e l i e f a g a i n s t t h e defendants. As against the Secretary o f State, 4 P l a i n t i f f seeks only injunctive r e l i e f precluding her from "following California law and placing 5 Senator M c C a i n ' s name on the California Ballot." PI. Compl, , 24. On August 2 1 , 2 0 0 8 , the 6 Court issued a scheduling order setting a hearing on P l a i n t i f f ' s complaint for September 11, 7 2008.

8

III. A.

ARGUMENT

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10 11

Plaintiff's Cause O f Action Seeking Injunctive Relief Against T h e Secretary O f S t a t e Should Be Denied Because I t Fails To S t a t e A Claim Against The Secretary And Is C o n t r a r y To The Public Interest.
The Secretary does not take a position on the merits o f Plaintiff's claim challenging

12 Senator M c C a i n ' s eligibility to be President. As the S t a t e ' s c h i e f elections officer, the Secretary 13 is obligated to ensure that the Presidential election is conducted efficiently, fairly, and in 14 compliance with State law. Cal . Elec. Code, § 12172.5. The Secretary, however, is not 15 responsible for evaluating the personal qualifications o f the respective political parties' 16 presidential nominees. Therefore, it would be inconsistent with the Secretary' s statutory duties 17 to opine on whether Senator McCain meets the federal constitution's qualifications for President 18 o f the United States . However, because the Secretary is responsible for ensuring the 2008 19 Presidential Election is properly administered, she objects to P l a i n t i f f ' s effort to enjoin her from 20 complying with California law by providing Senator M c C a i n ' s name as the Republican nominee 21 for President o f the United States to local elections ·offici a ls .

22
23 24 25 26

1.

Plaintiff's Claim Against The California Secretary O f State Should Be Dismissed Because I t Fails To Allege T h a t She Has Violated A n y Law.

P l a i n t i f f does not allege that the Secretary o f State, by performing her official duties, has committed a violation o f either federal or State law. Plaintiff does accurately state that the Secretary is required by "State law to place Senator McCain on the ballot as a presidential

27 candidate." PI. C o m p l . f ] 21 [citing Cal. Elec. Code, § 6901] [emphasis added]. However, 28 neither State nor federal law impose any obligation on the Secretary to verify that the respective

3
SECRETARY OF STATE DEBRA B O W E N ' S OPPOSITION TO P L A I N T I F F ' S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1 parties ' nominees are eligible to hold the office o f President or Vice President prior to placing 2 their names on the ballot. s Because Plaintiff does not , and cannot, allege that the Secretary is 3 violating any law or infringing on any right held by Plaintiff by placing Senator McCain on the 4 California ballot, P l a i n t i f f s claim against the Secretary should be dismissed because it fails to 5 state a claim upon which r e l i e f may be granted. Fed. R. Civ. P. 12(b)(6); Balisteri v. Pacifica 6 Police Dept. , 901 F.2d 696, 699 (9th Cir. 1990) [dismissal proper when based on lack o f a 7 cognizable legal theory].
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2.

P l a i n t i f f ' s Request F o r I n j u n c t i v e Relief Against T h e S e c r e t a r y O f State Should Be Denied Because Denial Is In T h e Public I n t e r e s t .

10

Even i f Plaintiff could establish a valid claim against the Secretary o f State, his belated

11 request for injunctive r e l i e f should be denied because r e l i e f cannot be granted until after the

12 election is underway. In evaluating a request for injunctive relief, the Court must evaluate 13 whether it is in the public interest to do so. Sammartano v. First Judicial Dist. Court, 303 F.3d 14 9 5 9 , 9 7 4 (9th Cir. 2002). This inquiry causes the Court to address the impact o f its decision on 15 parties and nonparties, alike . [d. And where the proposed injunctive relief threatens to disrupt a 16 scheduled election, a "court is entitled to and should consider the proximity o f a forthcoming 17 election and the mechanics and complexities o f state election laws, and should act and rely upon 18 general equitable principles." Reynolds v. Sims, 377 U.S. 533, 584 (1964). Thus, "[i]nterference 19 with impending elections is extraordinary, and interference with an election after voting has . 20 begun is unprecedented." Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 21 919 (9th Cir. 2003) [internal citation omitted]. In the instant case, the public interest tilts 22 strongly in favor o f allowing the November 4, 2008 Presidential Election to take place as planned 23 and permitting the duly selected nominee o f the Republican Party, J o h n McCain, to appear on the 24 ballot. 25 As previously noted, by September 5 , 2 0 0 8 , local elections officials will begin mailing

26 ballots containing Senator M c f ' a i n ' s name to overseas voters. Cal. Elec. Code, § 3307; Mitchell 27 2. Federal law appears to delegate to the United States Congress responsibility for 28 evaluating the qualifications o f the President and Vice President. 3 U.S.C. § 15. 4
SECRETARY OF STATE DEBRA BOWEN'S OPPOSITION TO PLAINTIFF 'S COMPLAINT FOR DECLARA TORY AND INJUNCTIVE RELIEF

1 Decl.

~

6. T h u s, as o f tomorrow, the presidential election will officially be underway in

2 California as overseas voters begin to receive, fill out , and return their ballots for counting by 3 local elections officials. Further, in order to comply w i t h statutory deadlines and ensure 4 California voters receive their sample ballots sufficiently in advance o f the N o v e m b e r election to

5 make informed choices, local elections officials began preparing sample ballots u p o n receiving 6 the certified l i s t o f candidates from the Secretary o f State on August 29 , 2 0 0 8 . Mitchell Decl.
~

7 8. Because this C o u r t will not be able to rule on P l a i n t i f f ' s request for a preliminary injunction 8 until, at the earliest, the matter is heard on September 11, 2008, any ruling t h a t requires alteration 9 o f ballots t h a t have already b e e n distributed to overseas voters will have the unprecedented effect 10 o f disrupting an ongoing election.
11

.IV.

CONCLUSION

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For the foregoing reasons, the Secretary respectfully requests the Court deny P l a i n t i f f ' s

13 request for injunctive r e l i e f and dismiss this action to the extent it seeks r e l i e f against the . 14 Secretary o f State. 15 16 17 18 19 20 21 22 23 24 25 30540039. w p d 26 27 28 5
S E C R E T A R Y OF S T A T E D E B R A B O W E N 'S O P P O S I T I O N TO P L A I N T I F F ' S C O M P L A I N T F O R DEC LARA T O R Y A N D I N J U N C T I V E R E L I E F SA2008304514

Dated: September 4, 2008 R e s p e c t f u l l y submitted, E D M U N D G. B R O W N JR. Attorney General o f the State o f California C H R I S T O P H E R E. K R U E G E R Senior Assistant Attorney General J O N A T H A N K. R E N N E R Supervising Deputy Attorney General I s / N a t h a n R. Barankin N A T H A N R. B A R A N K I N D e p u t y A t t o r n e y General Attorneys for Office o f Secretary o f State