Collins v. Merrill et al

Filing 3

OPINION & ORDER: Accordingly, IT IS HEREBY ORDERED that Plaintiff's suit is DISMISSED without prejudice. See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016) (instructing that "where a complaint is dismissed for lack of Ar ticle III standing, the dismissal must be without prejudice, rather than with prejudice"). Furthermore, Plaintiff's motions for a temporary restraining order and preliminary injunction are DENIED as moot. In the event that Plaintiff seeks to appeal this Order in forma pauperis, the Court certifies pursuant to 28 U.S.C. § 19 I 5(a)(3) that any appeal would not be taken in good faith. See Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995) (instructing that in forma pauperis statu s should be denied for the purpose of an appeal where the appeal would "lack... an arguable basis in law or fact"). The Clerk is respectfully directed to mail a copy of this Order to Plaintiff and to close this case. (As further set forth in this Order.) (Signed by Judge Richard J. Sullivan on 12/7/2016) (cf)

UNITED STA TES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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PAULA COLLINS ,

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Plaintiff,
No. 16-cv-9375 (RJS)
OPINION & ORDER

-v-

JOHN H. MERRILL, ET AL.,
Defendants.

RICHARD J. SULLIVAN, District Judge:
On December 5, 2016, Plaintiff, a registered voter who resides in Manhattan, filed suit

prose against the Secretaries of State of each of the fifty states; Michael Bennett, the Chair of the
District of Columbia Board of Elections; the National Archivist, David Ferreiro; and the Director
of the Office of the Federal Register, Oliver Potts.

(Doc. No. 1.)

The Complaint seeks

declaratory and injunctive relief restraining Defendants from certifying the vote of the Electoral
College " in any way that is inconsistent with the results of the nationwide popular vote as it was
decided" in the presidential election that concluded on November 8, 2016.

(Id. at 20.)

Notwithstanding the fact that the Electoral College is established by Article II and the Twelfth
Amendment to the United States Constitution, Plaintiff asserts that the Electoral College, as
currently constructed, violates her rights under the Fifth and Fourteenth Amendments and
Section 20 I (a) of the Civil Rights Act of 1964 because the Electoral College allegedly dilutes the
impact of voters in large states such as New York relative to voters in smaller states. (Id. at 19.)
Plaintiff also moves for a temporary restraining order and preliminary injunction barring
Defendants from certifying the results of the 201 6 Electoral College during the pendency of this
suit.

Even construing Plainti ff's prose submi ssions liberally, see Erickson v. Pardus, 551 U.S .
89, 94 (2007), the Court finds from the face of the Complaint that it lacks subject matter
jurisdiction to entertain this suit. " It is axiomatic .. that the Court may sua sponte "raise the
question of whether [it] has subject matter jurisdiction" at any stage of a litigation. S. Jackson &

Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24 F.3d 427, 430 (2d Cir. 1994). A plaintiff must
have Article III standing in order for the Court to have subject matter jurisdiction. Lujan v. Defs.

of Wildlife, 504 U. S. 555, 560- 6 1 (1992); see also Warth v. Seldin, 422 U.S. 490, 498 (1975)
(describing Article III standing as " the threshold question in every federal case, determining the
power of the court to entertain the suit").
In order to have Article III standing, a plaintiff must show that: '·( I) [she] has suffered an
' injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural
or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3)
it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-8 1
(2000).

To all ege a "concrete and particularized" injury, a plaintiff must show that she

"personally has suffered some actual or threatened injury as a result of the putatively illegal
conduct of the defendant." Valley Forge Christian Coll. v. Americans United for Separation of

Church & State, Inc., 454 U.S. 464, 472 (1982); accord Lujan, 504 U.S. at 561 n.1 ("By
particularized, we mean that the injury must affect the plaintiff in a personal and individual
way."). Accordingly, an injury that plaintiff "suffers in some indefini te way in common with
people generally" will not suffice. DaimlerCh1ysler Corp. v. Cuno, 547 U.S. 332, 344 (2006);

Lujan, 504 U.S. at 573- 74 ("(A] plaintiff raising only a generally available grievance about
government - claiming only harm to his and every citizen's interest in proper application of the

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Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it
does the public at large- does not state an Article III case or controversy."); see also, e.g., Karim
v. AWB Ltd. , 347 F. App' x 714, 715 (2d Cir. 2009) (injuries allegedly suffered by Iraqi citizen

plaintiffs from conspiracy to siphon funds from United Nations Oil-for-Food Programme that
"were not pa1ticular to plaintiffs, but were suffered generally by the population of Iraq" were
insufficient for standing).
Here, Plaintiff alleges that she has standing based on the fact that her "personal rights" as
a New York state voter "are at imminent risk of violation," since the Electors are scheduled to
convene on December 19, 2016 to elect the next President of the United States. (Brief 9.)
However, the Complaint is premised entirely on alleged injuries that Plaintiff shares with the
general voting population - in other words, injuries that Plaintiff "suffers in some indefinite way
in common with people generally." Cuna , 547 U.S. at 344. Courts have not hesitated to dismiss
similar allegations for lack of subject matter jurisdiction. See Crist v. Comm 'n on Presidential

Debates, 262 F.3d 193, 195 (2d Cir. 2001) ("[A] voter fails to present an injury-in-fact when the
alleged hann is abstract and widely shared or is only derivative of a harm experienced by a
candidate."); see also Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009) (plaintiff lacked standing
to enjoin Electoral College from electing Barack Obama to the Presidency "because [plaintiff]
has suffered no injury particularized to him"); Jones v. Bush, 122 F. Supp. 2d 713, 717 (N.D.
Tex.) (plaintiff lacked standing to enjoin members of the Electoral College from voting for
allegedly ineligible vice presidential candidate, since "plaintiffs conspicuously fail[ ed] to
demonstrate how they, as opposed to the general voting population, will feel its effects"), ajf'd,
244 F.3d 134 (5th Cir. 2000); see also Fischer v. Cruz, No. 16-cv-1224 (JS) (ARL), 2016 WL
1383493, at *2 (E.D.N.Y. Apr. 7, 2016) (voter lacked standing to sue for alleged injuries

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resulting from Senator Ted Cruz's presence on 2016 presidential primary ballot, notwithstanding
Senator Cruz's alleged ineligibility to qualify for presidency, since "Plaintiff share[ d] this alleged
injury with every other voter in the State of New York"). Thus, the Court finds that Plaintiff has
failed to satisfy the requirement of " concrete and particularized" injmy, and therefore, the Court
lacks subj ect matter jurisdiction over this suit. 1
Accordingly, IT IS HEREBY ORDERED that Plaintiff's suit is DISMISSED without
prejudice. See Carter v. HealthPort Techs., LLC, 822 F.3d 47, 54 (2d Cir. 2016) (instructing that
"where a complaint is dismissed for lack of Article III standing, the dismissal must be without
prejudice, rather than with prejudice").

Furthermore, Plaintiff's motions for a temporary

restraining order and preliminary injunction are DENIED as moot.
In the event that Plaintiff seeks to appeal this Order in forma pauperis, the Court certifies
pursuant to 28 U.S.C. § 19 I 5(a)(3) that any appeal would not be taken in good faith.

See

Tavarez v. Reno, 54 F .3d 109, 110 (2d Cir. 1995) (instructing that in forma pauperis status
should be denied for the purpose of an appeal where the appeal would "lack ... an arguable basis
in law or fact"). The Clerk is respectfully directed to mail a copy of this Order to Plaintiff and to
close this case.
Dated:

December 7, 2016
New York, New York

R~
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UNITED STA TES DISTRICT JUDGE

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The Court also notes that even if it had subj ect matter jurisdiction to entertain this suit, Plaintiff would clearly fail
to state a claim on which relief can be granted. " [T]he electoral college cannot be questioned constitutionally
because it is established by the Constitution," and the Court is " not empowered to strike the document's text on the
basis that it is offensive to itself or is in some way internally inconsistent." New v. Ashcroft, 293 F. Supp. 2d 256,
259 (E.D.N.Y. 2003); accord New v. Pelosi, No. 08-cv-9055 (AKH), 2008 WL 4755414, at *2 (S.D.N.Y. Oct. 29,
2008), ajf'd, 374 F. App'x 158 (2d Cir. 2010).

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