Voters Organized for the Integrity of City Elections et al v. Baltimore City Elections Board et al

Filing 13

MEMORANDUM. Signed by Judge James K. Bredar on 10/13/2016. (krs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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VOTERS ORGANIZED FOR THE
INTEGRITY OF ELECTIONS
et al.,
Plaintiffs

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v.

CIVIL NO. JKB-16-1788
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BALTIMORE CITY ELECTIONS
BOARD et al.,
Defendants
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MEMORANDUM
I. Background
The organization entitled Voters Organized for the Integrity of City Elections
(“VOICE”), along with six individuals—Hassan Giordano, Cortly D. Witherspoon, Dwayne
Benbow, William T. Newton, Donald Morton Glover, and Charlie Metz—filed this lawsuit on
June 1, 2016, against the Baltimore City Elections Board (“City Board”), Armstead B.C. Jones,
Sr., the Maryland State Board of Elections (“State Board”), and Linda H. Lamone.1 Plaintiffs
seek invalidation of the April 26, 2016, primary election (“Primary”) in Baltimore City,
appointment of federal observers, and other relief. (Compl., ECF No. 1.) Pending before the
Court is Defendants’ motion to dismiss (ECF No. 10), which has been briefed (ECF Nos. 11 and
12) and is ready for decision. No hearing is necessary. Local Rule 105.6 (D. Md. 2016). The
motion will be granted.

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Plaintiffs filed an amended complaint on June 7, 2016 (ECF No. 4), and that is the operative version that
will be addressed in this opinion.

II. Standard of Dismissal for Failure to State a Claim
A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An inference of a mere
possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the
Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the
speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’ . . . Nor does a complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to
dismiss a court must accept as true all factual allegations in the complaint, this principle does not
apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.
III. Allegations of the Complaint
VOICE is alleged to be a voluntary “watchdog” association of Baltimore voters from
various political backgrounds and party affiliations “who are collectively concerned about the
lack of (a) integrity in the City election process and (b) the public’s ability to have confidence in
city election results.” (Am. Compl. ¶ 4.) The individual Plaintiffs, with one exception, are
registered Democratic voters in Baltimore; the one who is not is Plaintiff Newton, who is a
Republican voter in Baltimore County, and who unsuccessfully ran for the Republican
nomination for the Seventh Congressional District, which encompasses part of Baltimore County
and part of Baltimore City; Newton lost his bid by 45 votes. (Id. ¶¶ 5–10.) Newton and Metz
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are Caucasian, while the other individual Plaintiffs are African-American. (Id.) Metz ran for the
Democratic nomination for the Tenth Councilmanic District in Baltimore and lost by 130 votes.
(Id. ¶ 8.) Giordano, Witherspoon, Benbow, Glover, and Metz cast votes in the Primary (Benbow
voted via provisional ballot). (Id. ¶¶ 41, 61, 62, 65, 78, 85.)
About the Primary, Plaintiffs allege the City Board “conducted and completed a Primary
election process that was fraught with so many errors, omissions and irregularities that it
produced seriously questionable results that are unable to be reconciled.” (Id. ¶ 14.) Plaintiffs
fault the use of a paper ballot system, the machinery implementing the system, the lack of
training given to election judges, “and the humongous number of irregularities, inclusive of
misinformation, and illegal activity arising out of at least one candidates [sic] bid for office”;
they claim the result from these problems was a violation of the Fourteenth Amendment and
Fifteenth Amendment rights of all Plaintiffs and the First Amendment rights of the two candidate
Plaintiffs. (Id. ¶ 16.)
Plaintiffs claim that both the African-American votes and the Caucasian votes were
“diluted and/or suppressed.” (Id. ¶ 19.) They also implicitly allege that jurisdictions with greater
numbers of Caucasian voters carried a lower risk than the City, whose population is 63.7%
African-American (id. ¶ 17), of votes not being counted. (Id. ¶ 20.) They further claim “that the
‘probabilistic injury’ as herein alleged is enough injury in fact to confer standing in the
undemanding Article III sense.” (Id. ¶ 21.) They contend their case presents violations of the
Equal Protection Clause (id. ¶ 17), the Voting Rights Act (id. ¶ 22), and Maryland state election
laws (id. ¶ 24).
Specific problems alleged include a failure of some election judges to show for work, late
opening of some polling places, misinformation given to voters about their voting precincts,

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voters’ ability to cast regular ballots (perhaps, more correctly, inability to cast regular ballots),
failure of some election judges to respect voters’ right to vote secretly, inadequate supply in
some polling places of provisional ballots, some election returns not being accounted for on
election night because of missing thumb drives, some Baltimore County voters voting in the
City’s mayoral primary, some ballots having blanks for the wrong councilmanic districts, the
counting of provisional ballots, a letter wrongly advising some three dozen ex-offenders they
could not register to vote, 1,100 more votes counted than the number of voters deemed qualified
to vote, belated opening to the public of the State Board’s vote reconciliation process, and the
small number of precincts found not to have discrepancies between number of registered voters
and number of votes cast compared to the much greater number of precincts with discrepancies.
(Id. ¶¶ 29–55.) After the State Board initially decertified the election results and conducted its
review (id. ¶ 46), the City Board recertified the results
despite the factual data showing that: (a) some 1,188 votes cast were not
guaranteed to have been cast by legitimate Baltimore City voters, (b) around 1685
provisional ballots were mishandled and 2,379 ballots were disqualified for voting
in the wrong Primary, and (c) the overwhelming evidence that many potential
voters had been adversely affected by the handling of the Primary by either being
(i) turned away, (ii) misinformed, (iii) ill-advised, or (iv) not properly instructed
on the voting systems, process, machinery, and/or procedures, by City officials
and poorly trained election judges.
(Id. ¶ 57.)
Plaintiffs also make allegations specific to each individual Plaintiff. They allege as to
Giordano, “Given the fact that over 1,188 votes that were counted, but not properly vetted to
determine whether they were cast by eligible voters, Giordano’s vote was more likely than not
diluted by the staggering number of irregularities that plagued the April 26, 2016, primary
election . . . .” (Id. ¶ 61.) As to Witherspoon, Plaintiffs allege he voted in the 7th councilmanic
district “where poorly trained election judges presided” (¶ 62) and “where at least one of the
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eight thumb drives containing ballot results was lost and never recovered. Based upon all of the
irregularities . . . , Witherspoon’s vote was likely diluted . . . .” (id. ¶ 64).2 Next, Plaintiffs allege
Glover voted in the 9th councilmanic district “where poorly trained election judges presided”
and, further, where he “observed a mayoral campaign worker attempting to intimidate his
neighbor”; Glover “collected information from [the neighbor’s] daughter . . . who alleged that
she and many other residents were recruited to vote for a particular mayoral candidate in
exchange for $50.00 - $100.00.” (Id. ¶ 65.) Similarly to Giordano, Glover’s vote was allegedly
“more likely than not diluted” because of the “over 1,188 votes that were counted, but not
properly vetted.” (Id. ¶ 67.) Also, “[t]he offer of jobs and payment diluted the vote of Glover
and other citizens who were not paid to vote.” (Id. ¶ 71.)
Regarding Newton, who unsuccessfully ran for a seat in Congress, Plaintiffs allege the
irregularities make the outcome of his race “substantially disputable.” (Id. ¶ 72.) Additionally,
they allege, “The vote buying scheme was solely aimed at minority voters, which had the impact
of diluting the minority voting support of Newton and other Caucasian candidates.” (Id. ¶ 74.)
Also, Plaintiffs allege,
The various facts set forth above impaired Newton’s First Amendment rights to
run an unfettered campaign for office. The act of certifying an election with a
grossly inaccurate tabulation and report of votes cast for Newton, imposed severe
burdens on . . . Newton’s electoral participation, and on associational freedoms.
(Id. ¶ 75.)
As to Benbow, Plaintiffs allege he received a letter indicating that his status as an exoffender on probation prevented him from being eligible to vote, and that the “election judges
would not allow him to vote on a regular ballot but instead forced him under duress to vote on a
provisional ballot or not vote at all,” which was an intimidating and humiliating experience for
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Elsewhere in their complaint, Plaintiffs allege that seven of the eight thumb drives were found the next
day. (Id. ¶ 35.)

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him. (Id. ¶¶ 76, 78, 79.) Plaintiffs further allege that thirty-four people received the same letter
Benbow received.

(Id. ¶ 80.)

Plaintiffs contend that because of all of the irregularities,

“Benbow’s vote was likely diluted and suppressed.” (Id. ¶ 81.)
Last, as to Metz, Plaintiffs allege he observed irregularities such as polls opening late,
voters given two or more ballots, provisional ballots counted with regular ballots, and registered
voters being turned away. (Id. ¶ 84.) Plaintiffs allege Metz’s vote was diluted by the practice of
providing more than one ballot to voters without assuring they did not vote twice, and they also
allege his vote was diluted by the vote buying scheme; they claim the irregularities “impaired
Metz’s First Amendment rights to run an unfettered campaign for office . . . [by imposing]
severe burdens on . . . Metz’s electoral participation, and on associational freedoms.” (Id. ¶¶ 85–
87.)
Plaintiffs request relief in two counts. In Count One, they request this Court declare the
April 26, 2016, Primary null and void, enjoin Defendants from attempting to certify the
Primary’s results, and require “Defendants to re-run the 2016 Primary Election on the earliest
practicable date.” (Id. Count One Prayer.) In Count Two, Plaintiffs request the Court require the
appointment of federal observers for both the State Board and the City Board, require the federal
“observers to supervise immediate corrective action to cure the errors and omissions” of the
Primary, require the observers “to oversee systemic changes in practices, procedures and
personnel to avoid future reoccurrences of the errors and omissions” of the Primary, and “retain
jurisdiction over this case until systemic changes in practices, procedures and personnel [are
made] to avoid future reoccurrences of the errors and omissions” of the Primary. (Id. Count Two
Prayer.)

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IV. Analysis
Preliminarily, the Court sua sponte considers the issue of standing. The Court concludes
that VOICE has associational standing on behalf of its members. See Taubman Realty Grp. Ltd.
P’ship v. Mineta, 320 F.3d 475, 480 (4th Cir. 2003) (“‘[A]n association has standing to bring suit
on behalf of its members when: (1) its members would otherwise have standing to sue as
individuals; (2) the interests at stake are germane to the group’s purpose; and (3) neither the
claim made nor the relief requested requires the participation of individual members in the
suit.’”). As for the Voting Rights Act claim, Newton has no standing under the Act as a
candidate, rather than as a voter in Baltimore City. See White-Battle v. Democratic Party of Va.,
323 F. Supp. 2d 696, 702-03 (E.D. Va. 2004) (“It is well-settled that unsuccessful candidates
lack standing to sue under the Voting Rights Act of 1965”; purpose of Act is to protect minority
voters, not candidates), aff’d 134 F. App’x 641 (4th Cir. 2005). However, because the Voting
Rights Act (“VRA”) claim may be considered as to the other Plaintiffs, this determination does
not affect the outcome of the case.
A. Laches
All Defendants have joined in a motion to dismiss. Their first stated ground is laches
based upon late filing of the complaint and late service on Defendants. Because they present
material outside of the complaint to support their argument on this point, and because the Court
is including those materials in its consideration pursuant to Federal Rule of Civil Procedure
12(d), Defendants’ motion, as to this issue, will be treated as a motion for summary judgment.
When considering a motion for summary judgment, the Court is governed by the following
standard:

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“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to
be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits are to be made on personal
knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Fed. R. Civ. P. 56(c)(4).
Defendants argue Plaintiffs’ complaint is barred by laches for two reasons: (1) they
delayed filing their complaint until well past the time provided in Maryland statutes for mounting
an election challenge, and (2) they delayed serving Defendants until six weeks after the
complaint was filed.

The Court has considered the parties’ arguments on this issue and

concludes the complaint is barred to the extent of Plaintiffs’ request for invalidation of the April
2016 Primary and their concomitant request for a mandated “rerun” of the Primary.

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“Laches is an equitable doctrine that can be raised by a defendant as an affirmative
defense to a claim, and requires that the defendant show ‘(1) lack of diligence by the party
against whom the defense is asserted, and (2) prejudice to the party asserting the defense.’” Am.
S.S. Owners Mut. Prot. & Indem. Ass'n v. Dann Ocean Towing, Inc., 756 F.3d 314, 318 (4th Cir.
2014). In an unpublished opinion, the United States Court of Appeals for the Fourth Circuit has
applied the doctrine of laches in the context of an election. Perry v. Judd, 471 F. App’x 219 (4th
Cir. 2012). Although the unpublished opinion is nonprecedential, see El v. Max Daetwyler
Corp., 451 F. App’x 257, 257 (4th Cir. 2011) (unpublished) (“Unpublished opinions are not
binding precedent in this circuit.”), it is nevertheless persuasive authority on the appropriate
consideration of this issue. As did the Perry Court, this Court concludes that Plaintiffs have
exhibited a lack of diligence in prosecuting their suit to the prejudice of the Defendants.
Diligence in the compressed timeline applicable to elections is measured differently from
how it might be measured in other contexts. Consequently, Plaintiffs’ argument that they served
Defendants within the ninety-day period of service required by Rule 4(m) and, therefore, showed
diligence, holds no water. Further, with the exception of who was declared the winner of each
race, Plaintiffs’ complaints about irregularities on the day of the Primary as well as the
pre-Primary mailing of the ex-offender letter could have been challenged immediately after those
events.
Defendants have pointed out the necessary deadlines that affect the timing of a primary
election in relation to the general election in early November. Under governing statutes, the
State Board is required to “certify the content and arrangement of each ballot . . . for a general
election[] at least 55 days before the election.” Md. Code Ann., Elec. Law § 9-207(a)(2)
(LexisNexis Supp. 2016). Therefore, to meet that statutory requirement for the 2016 general

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election, to be held on November 8, the State Board would have had to certify the general
election ballot no later than September 14. Moreover, under the Uniformed and Overseas
Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C. § 20302(a)(8)(A), absentee ballots must
be transmitted to uniformed and overseas voters at least 45 days in advance of any federal
election; in 2016, that date would be no later than September 24 for the general election.
Obviously, the results of a primary election are a necessary prerequisite for composition of a
general election ballot. Thus, a rerun of the Primary would have been necessary a reasonable
time before the September 14 ballot certification date in order for its results to be certified and
placed on the general election ballot. Even if the rerun were regarded as a “special primary
election” under Elec. Law § 9-207(a)(3), the content and arrangement of the ballot for that
election would have to be certified at least 18 days earlier, which backs up well into August. As
the Fourth Circuit has opined, “Ballots and elections do not magically materialize. They require
planning, preparation, and studious attention to detail if the fairness and integrity of the electoral
process is to be observed.” Perry, 471 F. App’x at 226. Furthermore, the UOCAVA deadline
for transmission of absentee ballots for a rerun primary election is also 45 days in advance of that
election. So, even presuming perfect timing, the very latest date on which absentee ballots could
be transmitted under federal law for a rerun primary election would have been August 10, 2016.
Despite this obviously tight schedule, Plaintiffs waited until mid-July to serve
Defendants.3 (Defs.’ Mot. Dismiss, Ex. 1, 2.) Defendants’ answers to the complaint were due,
variously, on August 5, August 8, and August 9. They filed their motion to dismiss on the
earliest of these dates. Plaintiffs made no motion for preliminary injunctive relief. As a result,
the Court has not been asked to rule on their requests for injunctive relief without deciding the
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The Court finds no merit whatsoever in Plaintiffs’ contention that the existence of the suit had been
reported in the newspapers and Defendants could have reviewed it and responded to it via PACER. (Pls.’ Opp’n 4.)
Plaintiffs cite no authority for the implicit suggestion that Defendants could have served themselves with process.

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merits of the case. Plaintiffs displayed no urgency at all in their prosecution of this suit, and,
consequently, laches bar their requests for a rerun of the Primary. That election’s results will not
be disturbed. To the extent that Plaintiffs’ request for federal observers applies to a repeated
Primary, the Court concludes that, too, is barred by laches.

To the extent that Plaintiffs’

complaint can be read to request federal observers for future elections, laches do not apply to that
portion of the lawsuit.
B. Merits of the Motion to Dismiss
Plaintiffs’ opposition to Defendants’ motion indicates they are asserting three federal
causes of action: Fourteenth Amendment equal protection, Fifteenth Amendment abridgment of
right to vote on account of race, and Voting Rights Act violation. (Pls.’ Opp’n 5–10.) They also
assert the Court has supplemental jurisdiction over their complaints that Maryland state election
laws were not followed.
1. Fourteenth Amendment Claim
Plaintiffs argue their central allegation as to equal protection is “that the State has diluted
their votes by engaging in voting schemes or practices as a purposeful device ‘to minimize or
cancel out the voting potential of racial or ethnic minorities.’” (Id. (quoting Miller v. Johnson,
515 U.S. 900, 911 (1995)).) A claim of denial of equal protection necessarily rests on a plausible
allegation of differential treatment of members of a protected class due to discriminatory intent.
United States v. Armstrong, 517 U.S. 456, 465 (1996); Morrison v. Garraghty, 239 F.3d 648,
654 (4th Cir. 2001).
Plaintiffs’ complaint utterly fails to allege, other than in a conclusional fashion, that
Defendants’ conduct that may have resulted in election irregularities denied any Baltimore City
voter equal protection of the law.

Plaintiffs allege that approximately 63% of the City’s

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population is African-American. (Am. Compl. ¶ 17.) From that statistic, Plaintiffs seem to
argue that electoral irregularities in the City must be discriminatory towards African-Americans,
who are a protected class. But Plaintiffs fail to allege that non-African-Americans in Baltimore
City were not subject to the effects of electoral irregularities, and they have not alleged any facts
showing that Defendants acted differently towards voters in other jurisdictions, whether or not
they are dominated, population-wise, by members of a particular race. Thus, they have failed to
allege differential treatment based upon membership in a protected class. Beyond that, Plaintiffs
advance no plausible allegation that any irregularities occurred because of a discriminatory
intent. The only allegation in this regard is that of the “vote-buying scheme”; however, Plaintiffs
have not alleged that conduct is attributable to Defendants. Their claim of denial of equal
protection fails to state a claim for relief.
2. Fifteenth Amendment
Plaintiffs indicate this claim “mirrors” their Fourteenth Amendment claim.

(Pls.’

Opp’n 8.) For the reasons stated above, Plaintiffs’ Fifteenth Amendment claim also fails to state
a claim for relief.
3. Voting Rights Act
Plaintiffs claim Defendants violated section 2 of the VRA. That statute is codified at 52
U.S.C. § 10301, which provides:
(a) No voting qualification or prerequisite to voting or standard, practice, or
procedure shall be imposed or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the right of any citizen of the
United States to vote on account of race or color, or in contravention of the
guarantees set forth in section 10303(f)(2) of this title, as provided in subsection
(b).
(b) A violation of subsection (a) is established if, based on the totality of
circumstances, it is shown that the political processes leading to nomination or
election in the State or political subdivision are not equally open to participation
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by members of a class of citizens protected by subsection (a) in that its members
have less opportunity than other members of the electorate to participate in the
political process and to elect representatives of their choice. The extent to which
members of a protected class have been elected to office in the State or political
subdivision is one circumstance which may be considered: Provided, That
nothing in this section establishes a right to have members of a protected class
elected in numbers equal to their proportion in the population.
Plaintiffs’ claim under the VRA rests upon the same allegations of the complaint that
were the basis for their Fourteenth Amendment and Fifteenth Amendment claims. For the same
reasons stated above, their VRA claim fails to state a claim for relief.
4. Supplemental Jurisdiction
To the extent that the complaint may be read to allege violations of Maryland state
election laws, the Court, having ruled adversely to Plaintiffs on all of their federal claims,
declines to exercise supplemental jurisdiction over any state claims. See 28 U.S.C. § 1367(c)(3).
V. Conclusion
The Court concludes none of Plaintiffs’ federal claims have merit. Plaintiffs’ state law
claims will be dismissed without prejudice to their being filed in Maryland state court.
DATED this 13th day of October, 2016.

BY THE COURT:

______________/s/____________________
James K. Bredar
United States District Judge

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