Wilmoth v. Merrill

Filing 26

RULING RE: MOTION FOR A TEMPORARY RESTRAINING ORDER (DOC. NO. 4): For the reasons set forth herein, Wilmoths Motion for a Temporary Restraining Order (Doc. No. 4) is GRANTED. Signed by Judge Janet C. Hall on 3/1/2016. (Lewis, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SHAWN WILMOTH,
Plaintiff,
v.
DENISE MERRILL, SECRETARY
OF THE STATE OF CONNECTICUT
Defendant.

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CIVIL ACTION NO.
16-CV-223 (JCH)
MARCH 1, 2016

RULING RE: MOTION FOR A TEMPORARY RESTRAINING ORDER (DOC. NO. 4)
I.

INTRODUCTION
Shawn Wilmoth (“Wilmoth”) has moved for a temporary restraining order

enjoining Denise Merrill, the Secretary of the State of Connecticut (the “Secretary”),
from enforcing sections 9-468, 9-410, and 9-412 of the Connecticut General Statutes to
the extent that they require circulators of party primary nomination petitions to be
residents of the State of Connecticut. Plaintiff’s Motion for a Temporary Restraining
Order (the “Motion”) (Doc. No. 4).
The provisions at issue require circulators of petitions seeking inclusion of a
candidate in Connecticut’s primary election for the office of Present of the United States
to be “an enrolled party member of a municipality in this state who is entitled to vote.”
Conn. Gen. Stat. § 9-468 (incorporating by reference Conn. Gen. Stat. § 9-410(c)).
Failure to include an attestation of the circulator’s “enrolled party member[ship] in such
municipality” in the petition results in its automatic rejection by the registrar. Conn. Gen.
Stat. § 9-410(c) & 9-412.
Wilmoth contends that these sections constitute a residency restriction that
burdens his rights to free speech under the First and Fourteenth Amendments to the

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United State Constitution. Plaintiff’s Memorandum (Doc. No. 5) at 9-16. He argues that
such burdens are prohibited by the Supreme Court’s decision in, inter alia, Buckley v.
Am. Constitutional Law Found., 525 U.S. 182 (1999), the Second Circuit’s decision in
Lerman v. N.Y.C. Bd. of Elections, 232 F.3d 135 (2d Cir. 2000), and this court’s recent
decision in Libertarian Party of Conn. v. Merrill, No. 3:15-CV-1851 (JCH) (D. Conn. Jan.
26, 2016), Ruling (Doc. No. 26) (granting plaintiff’s Motion for a Preliminary Injunction).
The Secretary opposes the Motion on the ground that the restriction set forth in
section 9-410(c) is tantamount to the party membership restriction on primary election
petition circulation of which the Second Circuit approved in Maslow v. N.Y.C. Bd. of
Elections, 658 F.3d 291 (2d Cir. 2011). Defendant’s Opposition to Plaintiff’s Motion
(“Opposition”) (Doc. No. 21).
For the reasons set forth below, Wilmoth’s Motion is GRANTED.
II.

BACKGROUND
Shawn Wilmoth is a professional election petition circulator. Declaration of

Shawn Wilmoth (“Declaration”) (Doc. No. 24-1) ¶ 5. Wilmoth lives in the State of
Michigan. Id. ¶ 2. He is a registered Democrat, having become a dues-paying member
of the Michigan Democratic Party in February 2016. Id. ¶ 4.
Wilmoth is a supporter of Rocky De La Fuente, a California businessman who is
running for the Democratic nomination for the office of President of the United States.
Id. ¶ 1; see also Rocky De La Fuente, Meet Rocky, Rocky 2016 (2016),
https://www.rocky2016.com/meet-rocky/ (last visited February 29, 2016). De La Fuente
has hired Wilmoth to circulate election nomination petitions to secure his place on the

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2016 Connecticut Democratic primary election ballot. Declaration ¶ 5. Wilmoth intends
to travel to Connecticut in order to carry out his contract. Id. ¶ 7.
In Connecticut, to obtain access to the presidential primary election ballot, a
candidate must either have had his name placed on the ballot “[b]y direction of the
secretary when [s]he determines . . . that the candidacy of such person for such party’s
nomination for President is generally and seriously advocated or recognized according
to reports in the national or state news media, unless such candidate files a request [to
the contrary];” or, by the submission of a petition for candidacy containing signatures of
“a number of enrolled members of such party equal to at least one per cent of the total
number of enrolled members of such party in the state.” Conn. Gen. Stat. §§ 9-465 & 9469. As the Secretary did not include De La Fuente’s name in the Candidate List, he
may only obtain access to the primary ballot by obtaining the signatures of 1% of the
Connecticut Democratic Party. Conn. Gen. Stat. § 9-469. In order to petition onto the
ballot successfully, sufficient signatures must be “filed with the registrar of votors of the
party holding the primary in the town of voting residence of the signers thereof, not later
than four o’clock p.m. of the fifty-third day preceding the day of the primary[,]” which,
this year, would fall on March 4, 2016.
Connecticut election law restricts who may serve as a circulator of petitions for
ballot access in presidential primary elections. Specifically, section 9-468 of the
Connecticut General Statutes provides, in pertinent part:
Except as hereinafter provided, such petitions shall be circulated, filed with the registrars of voters, and verified by
said registrars, as nearly as may be, in accordance with the
provision of sections 9-410 and 9-412.

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Conn. Gen. Stat. § 6-468. Section 9-410, in turn, provides, in a section governing ballot
access to primary elections for “municipal officer or election as town committee
members:”
Each circulator of a primary petition page shall be an enrolled party member of a municipality in this state who is entitled to vote. Each petition shall contain a statement signed
by the registrar of the municipality in which such circulator is
an enrolled party member attesting that the circulator is an
enrolled party member in such municipality. Unless such a
statement by the registrar appears on each page so submitted, the registrar shall reject such page.
Conn. Gen. Stat. § 9-410(c). Section 9-412 further provides that “[t]he registrar shall
reject any page of a petition which does not contain the certifications provided in section
9-410, or which the registrar determines to have been circulated in violation of any other
provisions of section 9-410.” Conn. Gen. Stat. § 9-412.
Wilmoth contends that the restrictions set forth in sections 9-468, 9-410(c) and 9412 constitute a residency restriction that violates his right to free speech under the First
and Fourteenth Amendments. Motion at 1. The Secretary argues that, because
Wilmoth is not a member of the Democratic Party of Connecticut, he has “no right to
engage in any speech collateral to” a political association that he does not have.
Maslow v. N.Y.C. Bd. of Elections, 658 F.3d 291 (2d Cir. 2011)
III.

DISCUSSION
A party seeking to obtain a preliminary injunction or temporary restraining order

must demonstrate (1) that it is likely to succeed on the merits; (2) that it is likely to suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips
in its favor; and (4) that an injunction is in the public interest. New York Progress and
Protection PAC v. Walsh, 733 F.3d 483 486 (2d Cir. 2013). As this case presents

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similar legal and factual issues as those presented in Libertarian Party of Connecticut v.
Merrill, and both parties have sought to make use of that case—either by relying on its
reasoning or by attempting to distinguish it from the facts presented here—the court will
assume familiarity with both the record in Libertarian Party and the legal reasoning set
forth in the Order granting the Party’s Motion for a Preliminary Injunction. Libertarian
Party of Conn. v. Merrill, No. 3:15-CV-1851 (JCH), Order (Doc. No. 32) at 10-16.
Wilmoth has, in effect, sought to map his claim onto that raised in Libertarian
Party: that the circulation of nomination petitions is “core political speech,” the
restriction of which must be narrowly tailored to a compelling state interest. Id. If
Wilmoth is correct that his case presents the same issue as that presented in
Libertarian Party, his Motion should be granted.
The Secretary has sought to remove the facts of this case from the ambit of
Libertarian Party by arguing that the restrictions at issue here—that a circulator “be an
enrolled party member of a municipality in this state who is entitled to vote”—constitutes
a party membership restriction, not a residency restriction. Opposition at 1 (“Plaintiff
seeks to enjoin a provision of Connecticut’s election statutes that restrict the circulation
of political party primary nomination petitions . . . to individuals who are actually enrolled
in and affiliated with the Connecticut Democratic Party.”).
In Maslow v. N.Y.C. Bd. of Elections, 658 F.3d 291 (2d Cir. 2011), the Second
Circuit upheld a New York election law that restricted circulators of petitions for a
political party’s nomination to, as relevant here, “enrolled voter[s] of the same political
party as the voters required to sign the petition.” Id. at 294. Relying of a long line of
Supreme Court precedent emphasizing “that the First Amendment guarantees a political

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party great leeway in governing its own affairs,” the court concluded that “a political
party’s associational right to exclude forecloses the possibility that non-members have
an independent First Amendment right to participate in party affairs.” Id. (citing, inter
alia, N.Y.C. Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202-03 (2008); Tashjian v.
Republican Party of Conn., 479 U.S. 208, 216 n.6 (1986)). In response to the
contention that the party membership restriction overly burdened the plaintiffs’ “highly
protected political speech” of ballot circulation, the court answered that “the Plaintiffs are
only restrained from engaging in speech that is inseparably bound up with the
subscribing witness plaintiffs’ association with a political party to which they do not
belong. As plaintiffs have no right to this association, they have no right to engage in
any speech collateral to it.” Id. at 298 (citing Cal. Democratic Party v. Jones, 530 U.S.
567, 575 (2000). Maslow, then, stands for the proposition that petition circulation for a
party member is not “core political speech” if the circulator is not a member of the party,
because the circulator has no associational rights vis-à-vis the political party.
In Maslow, four individuals—one Republican, one Working Family Party member,
and two then-unaffiliated voters—served as circulators for two unsuccessful,
Democratic candidates for Civil Court Judge in Kings County, New York. Id. at 295; see
also Maslow v. N.Y.C. Bd. of Elections, No. 1:06-CV-3683 (NGG) (SMG), Complaint
(Doc. No. 1) ¶¶ 4-8. The signatures obtained by these circulators, none of whom were
Democrats, were rejected. Maslow, 658 F.3d at 295.
The Maslow decision, as Wilmoth observes, “did not implicate First Amendment
analysis with respect to out-of-state circulators.” Plaintiff’s Reply to Defendant’s
Opposition (“Reply”) (Doc. No. 24) at 8. However, the nature of the Secretary’s

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argument is more subtle: she has suggested that the residency of the circulator and his
registration with a party are inextricably linked, and that for this court to grant
preliminary relief as to the residency requirement will run afoul of Maslow. Opposition at
3-7.
The Secretary has not cited, and the court cannot locate, any cases that
expressly have held that the party membership restriction in section 9-410(c), or any
analogous statutes in other states, necessarily refers to “the Democratic Party of
Connecticut,” or the local Democratic Party of, for example, Bridgeport. Indeed, the
only authority the court has found on the issue held that section 9-410(c) consisted, not
of a “party membership requirement,” but rather of an unconstitutional residency
restriction in light of Lerman. Campbell v. Bysiewicz, 242 F. Supp. 2d 164, 170-71 (D.
Conn. 2003). However, that case did not reach the issue presented here and was
decided before Maslow. Consequently, the court will address the Secretary’s
contention that, contrary to Campbell, section 9-410(c) imposes a party membership,
rather than residency, restriction.
As an initial matter, the court may take judicial notice of the fact that the
Connecticut branch of the Democratic Party is just that—a branch of a larger
organization known as the “Democratic Party,” which has national scope. Indeed, as
Connecticut’s Mail-in Voter Registration Form, issued pursuant to section 9-23g of the
Connecticut General Statutes, asks: “Do you wish to enroll in a political party? YES.
Name of party: __ Republican[;] __ Democratic[;] Other: ______.” Connecticut Mail-In
Voter Registration, http://www.ct.gov/sots/LIB/sots/ElectionServices/ElectForms/elect

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forms/ed671.pdf (last visited Feb. 29, 2016). The registration form does not refer to the
local branch of the parties.
The text of the challenged section bears out this distinction. Section 9-410(c)
reads:
Each circulator of a primary petition page shall be an enrolled party member of a municipality of this state who is entitled to vote. Each petition shall contain a statement signed
by the registrar of the municipality in which such circulator is
an enrolled party member attesting that the circulator is an
enrolled party member in such municipality.
Conn. Gen. Stat. § 9-410(c). The statute does not require the circulator to be an
“enrolled party member of the state branch of the political party;” it refers simply to the
“party” and requires that the circulator be enrolled in such party in a fixed geographical
area in Connecticut. To illustrate the point, when a prospective voter registers to vote in
Connecticut, she does so through the “registrars of voters or town clerk of the town of
residence of [the prospective voter].” Conn. Gen. Stat. § 9-12. Thus, when a
prospective voter registers to vote and affiliates herself with a party, the prospective
voter is not affiliating herself with, for example, the “Bridgeport Democratic Party”—
rather, the prospective voter registers as a “Democrat,” and does so when she registers
to vote—i.e., enters onto the roll of voters of the municipality of Bridgeport.
The phrase “of a municipality of this state,” then, is best read as qualifying the
circulator, not the party—thus, the circulator must be a member of a party and must be
registered in “a municipality of this state.” She need not be a member of, for example,
the Democratic Party of the municipality of Bridgeport. In sum, nothing in the statute or
the case law demands that “enrolled party member” be restricted to the local branch of
the party; consequently, the section of the statute Wilmoth challenges consists of a

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residency requirement—that is, a requirement that one has registered as, for example,
a Democrat in, for example, Bridgeport. Such a restriction, when challenged by a
person affiliated with the Democratic Party as Wilmoth is, acts as a residency
requirement that burdens “core political speech.” Cf. Maslow, 658 F.3d at 298.
Unlike the circulators in Maslow, Wilmoth is a dues-paying member of the
Democratic Party, Declaration ¶ 4. Wilmoth hopes to circulate petitions for a candidate
who seeks to run as the presidential nominee of the Democratic Party. Because he has
affiliated himself with the Party, it follows that his circulation of petitions constitutes “core
political speech,” rather than “speech collateral to . . . [an] association with a political
party to which [he does] not belong.” Maslow, 658 F.3d at 298. To the extent that the
provisions at issue condition his ability to circulate petitions upon his residency in
“municipality in this state,” Conn. Gen. Stat. § 9-410(c), those provisions burden his
First and Fourteenth Amendment rights to the same degree as the residency restriction
burdened the right of the Libertarian Party to hire out-of-state circulators to gain access
to the primary ballot. See Libertarian Party of Conn. v. Merrill, No. 3:15-CV-1851 (JCH)
(D. Conn. Jan. 26, 2016), Ruling (Doc. No. 26) at 10-16. Further, the Secretary has
omitted any argument that the restriction at issue can be justified except to the extent
that it protects the Connecticut Democratic Party. 1 This argument is unpersuasive at

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The Secretary has indicated that the Connecticut Democratic Party and the Republican
Democratic Party have been notified of this case, and have been served with copies of the pleadings.
Opposition at 6 n.3. Neither Party has moved to intervene, and the litigants in this case have not moved
for their joinder under Federal Rule of Civil Procedure 19. Because the court construes the statutes at
issue here as imposing a residency restriction, not a party affiliation restriction, the Connecticut
Democratic Party’s interest is not such that its absence in this litigation would, “as a practical matter
impair or impede [it]’s ability to protect [its] interest,” and therefore the party is not “required to be joined.”
Fed. R. Civ. P. 19(1)(B)(ii). The Party’s interests are already protected by the requirement, unchallenged
in the instant litigation, that a circulator be a member of the party. See Maslow, 658 F.3d at 294

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this stage of the case. Consequently, Wilmoth has a substantial probability of success
on the merits. Walsh, 733 F.3d at 486. As this court held in Campbell, “[h]ere, as in
Lerman, [the Secretary] show[s] no valid justification for a residency requirement.”
Campbell, 242 F. Supp. 2d at 171. The court cannot ascertain why Maslow must
demand a different result where, as here, the prospective circulator is a member of the
same party as the candidate for whom he intends to circulate nominating petitions.
Furthermore, the other factors weighing in favor of a preliminary injunction in
Libertarian Party weigh to the same degree in Wilmoth’s favor. Wilmoth has shown a
substantial probability of success; the likelihood of irreparable harm in the absence of
preliminary relief in the form of “loss of First Amendment rights,” Elrod v. Burns, 427
U.S. 347, 353 (1976); that the weight of equities in Wilmoth’s favor given the importance
of the right implicated; and that an injunction is in the public interest, see Walsh, 733
F.3d at 488 (“securing First Amendment rights is in the public interest”). Consequently,
Wilmoth’s Motion will be granted.
The court will close with a brief observation that the Secretary’s assertion that the
equities do not tip in Wilmoth’s favor due to his previous conviction is without merit. See
Opposition at 2. Wilmoth was convicted in 2011 of felony election fraud in the State of
Virginia. Case Record (Doc. No. 21-1) at 1. Ironically, the underlying offense conduct
consisted of knowingly hiring ex-felons to circulate nomination petitions. Declaration
¶ 10. On September 20, 2011, he was sentenced to three years’ probation with a
concurrent suspended sentence of 4 years and 8 months. Case Record at 2. At no time
was he incarcerated for having pleaded guilty of this crime. Id. In both his state of

(discussing the association rights of political parties and their relationship to party membership restrictions
on nomination petition circulation).

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residence and the State of Connecticut, ex-felons are entitled to vote upon completion
of their term of incarceration or parole. Mich. Comp. L. Ann. § 168.758b (restricting
voting rights of offenders only “while confined”); Conn. Gen. Stat. § 9-46a(a) (restoring
ex-felon’s voting rights upon “discharge from confinement and, if applicable, parole”).
The Connecticut statute restoring felon voting rights makes an exception for
those convicted of elections-related crime in Connecticut, it only does insofar as such
individuals must first complete, if applicable, any terms of probation imposed as part of
their sentence in order to have their elector privileges restored. Conn. Gen. Stat. § 946(b). The Secretary has not argued that this exception applies to Wilmoth and, even if
it did, his term of probation appears to have ended in 2014. Thus, his felony conviction
neither disqualifies him to vote in this State or his state of residence, nor restricts his
ability to circulate nominating petitions, because he is neither incarcerated nor on
parole. Case Record at 2.
IV.

CONCLUSION
For the reasons set forth above, Wilmoth’s Motion for a Temporary Restraining

Order (Doc. No. 4) is GRANTED.
SO ORDERED.
Dated this 1st day of March, 2016, at New Haven, Connecticut.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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