Somers et al v. South Carolina State Election Commission

Filing 32

OPINION AND ORDER granting Somers' motion to amend her complaint to narrow the parties and claims and dismissing the action. Signed by Honorable Cameron McGowan Currie on 5/16/2012. (cbru, ) Modified to edit text on 5/16/2012 (cbru, ).

IN THE UNITED STATES DISTRlCT COURT
FOR THE DISTRlCT OF SOUTH CAROLINA
COLUMBIA DIVISION
Amanda Sorners, Candidate for South
Carolina State Senate District 5 in the
June 12,2012 South Carolina Primary
Election,
L

Candidate Plaintiff,
&

All Persons Entitled to Vote Under the
Uniformed and Overseas Citizens
Absentee Voting Act ex reI. Amanda
Somers,
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Plaintiff,

v.
The South Carolina State Election
Commission,
Defendant I
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C.A. No. 3:12-CV-1191-CHH-CMC-JMC

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OPINION AND ORDER

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Plaintiff, Amanda Somers ("Somers"), filed this action on May 4,2012, seeking declaratory
and other equitable relief relating to the South Carolina primary election scheduled for June 12,
2012. The original complaint named a large number of Defendants and sought relief for a wide
range of alleged violations of state and federal law. Somers has, however, narrowed her claims and
now seeks relief on two grounds. First, she seeks relief under Section 5 of the Voting Rights Act,
42 U.S.C. §1973c ("Section 5"), based on allegations that the state's procedures for transmitting
"

ballots to military and overseas voters were changed without obtaining preclearance from the United
This caption reflects the granting of Plaintiff's motion to amend her complaint including
by limiting the parties on whose behalf and against whom she is proceeding. See infra Discussion
§L
1

States Department of Justice. 2 Second, Somers seeks relief under 42 U.S.C. § 1983 based on
allegations that variations in transmission dates of state primary ballots to UOCAVA Voters by
different county election commissions resulted in violation of equal protection rights guaranteed by
the United States Constitution. See Dkt. Nos. 13,23,30.
The matter is now before the court on Somers' "Memorandum Re Standing and Merits of
UOCA V A Claim" and related filings, which the court construes as a motion to amend the complaint
and for injunctive relief. Dkt. Nos. 19,23,30. The only Defendant served, the South Carolina State

2 The requirements for transmitting military and overseas ballots are set out in both state and
federal statutes including: the Uniformed and Overseas Citizens Absentee Voting Act as amended
by the Military and Overseas Voters Empowerment Act, 42 U.S.C. § 1973ff et.seq., (collectively
"UOCAVA"); and related provisions of South Carolina law including S.C. Code Ann. §§ 7-15-405,
7-15-406 and 7-15-460. For ease of reference, the court will refer to the persons entitled to vote
under these sections as "UOCAVA Voters," the ballots addressed by these sections as "UOCAVA
Ballots," and the corresponding laws and procedures as "UOCAVA Balloting Procedures."
Most critically for purposes of this order, UOCAV A requires states to "permit absent
uniformed services voters and overseas voters to use absentee registration procedures and to vote
by absentee ballot in general, special, primary, and runoff elections for Federal office." 42 U.S.C.
§ 1973ff-l (a)(I). It further requires that, absent granting of a hardship exemption by the presidential
designee, the state must transmit absentee ballots to UOCAV A Voters at least 45 days prior to an
election for federal office. 42 U.S.C. § 1973ff-l(a)(8)(A).
A UOCAV A Voter may indicate a preference to receive the ballot electronically or by mail.
42 U .S.C. § 1973ff-l (t)(1). Absent designation of a preference by the UOCAV A Voter, "the State
shall transmit the ballot by any delivery method allowable in accordance with applicable State law,
or if there is no applicable State law, by mail." 42 U.S.C. § 1973ff-l(t)(2).
South Carolina has enacted implementing statutes "[t]o ensure that all South Carolina
residents eligible to vote as provided by [UOCAVA], have the opportunity to receive and cast any
ballot they would have been eligible to cast if they resided in and had remained in South Carolina[.]"
S.C. Code Ann. § 7-15-460(A) (also referring to "absentee ballots for all elections for federal, state,
and local offices"); see also S.C. Code Ann. §7-15-405 ("For the qualified electors of this State who
are eligible to vote as provided by [UOCAVA], an absentee ballot ... must be sent to the elector at
least forty-five days prior to the primary election."); S.C. Code Ann. § 7-15-406 (requiring absentee
ballots be sent to "qualified electors ... who are eligible to vote as provided by [UOCAVA] ... at
least forty-five days prior to any election.").
Federal law speaks in terms of "transmitting" ballots by mail or electronically, depending on
the UOCAVA Voter's preference. South Carolina law refers to "sending" ballots. Forconsistency,
the court will use the terms "transmit" or "transmitting."

2

"

"
Election Commission ("Election Commission"), consents to amendment of the complaint to the

extent the amendment narrows the parties and claims as indicated in Somers' recent filings but
opposes S0II?-ers' request for injunctive relief. Dkt. No. 28. The Election Commission has also filed
,
a motion to ;dismiss or for summary judgment. Dkt. No.7.' Both the Election Commission's
opposition memorandum and its earlier-filed motion to dismiss challenge Somers' standing to
pursue the claims asserted in this action.
For the reasons set forth below, the court grants Somers' motion to amend her complaint to
narrow the parties and claims. The court further finds that Somers lacks standing to pursue these
claims and, therefore, dismisses the action.
BACKGROUND
The alleged change in practice was a consequence of the Election Commission's attempt to
comply with both federal law and an injunction issued by the South Carolina Supreme Court ("State
,

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Court") in Anderson v. South Carolina Election Commission, et al. See Dkt. No. 7-6 (preliminary
order in Anderson entered April 20, 2012). Though the ruling in Anderson is no longer at issue in
this case, the circumstances giving rise to that action are significant here.

Anderson Background

an~

Ruling. Anderson was filed by two voters who challenged

inclusion of certain candidates on the June 12,2012, primary ballot. These voters argued that the
challenged candidates were not qualified because they failed to comply with an express requirement
of S.C. Code Ann. § 8-13-1356(B) that "[a] candidate must file a statement of economic interests
... at the same time and with the same official with whom the candidate files a declaration of
candidacy or petition for nomination." The candidates in question had failed to file their statements
of economic interests ("SEI's") with the same official and at the same time they filed their

3

declaration of candidacy. An injunction precluding the Election Commission "from sending out the
ballots affected by this matter until further order of this Court" was entered at the same time the
State Court accepted original jurisdiction over the matter, April 20, 2012. Dkt. No. 7-6.
In its decision on the merits, the State Court concluded that Section 8-13-1356 required
precisely what it said. The State Court further concluded that the separate provisions of S.C. Code
Ann. § 8-13-365, which require electronic filing of various disclosure documents (including SEI's)

did not conflict with or override the plain language of Section 8-13-1356. 3 See Dkt. No. 7-3

(Anderson Opinion No. 27120 entered May 2,2012). On applicationfor rehearing or clarification,
,
the State Court held that delivering a copy of an already electronically-filed SEI with the declaration
of candidacy satisfied the "filing" requirement of Section 8-13-1356, but that delivery of a receipt,
electronically mailing a copy, or any other alternative or laterdelivery of the SEI did not. 4 See Dkt.
No. 7-9 (Anderson Order entered May 3, 2012).
In i~suing its decision, the State Court "direct[ed] the parties to file with the South Carolina
:

'

Election Commission or the appropriate county election commission by noon on May 4, 2012, a list
of candidates who complied with § 8-13-13 56 as the statute is written and as has been interpreted

Section 8-13-1356 reads, in relevant part, as follows: "A candidate must file a statement
of economic interests for the preceding calendar year at the same time and with the same official
with whom the candidate files a declaration of candidacy or petition for nomination." S.C. Code
Ann. § 8-13-1356(B). Section 8-13-365 applies more generally to "all disclosures and reports
required pursuant to Chapter 13, Title 8 and Chapter 17, Title 2." S.C. Code Ann. § 8-13-365(A).
The covered disclosures include SEI's. It provides that these "disclosures and reports must be filed
using an Internet-based filing system as prescribed by the [South Carolina State Ethics]
Commission." ld.
3

4 A'summary of election laws and procedures published by the Election Commission was
allegedly relied upon by some candidates. See Dkt. No.1-I. ("Election Commission Summary").
This summary erroneously provided that delivery of a receipt to the party official, reflecting that the
SEI had been electronically filed, would satisfy Section 8-13-1356. ld. pA ~ g

4

by this Court." Dkt. No. 7-9 (Anderson, Order entered May 3, 2012. Ultimately, a large number of
,.
candidates were disqualified after a review of their filings in light of Anderson. 5
UOCAV A Ballots. As noted above, faced with what was alleged to be a problem affecting

candidates in the vast majority of the State's counties, the State Court enjoined the Election
Commission from transmitting ballots "affected by" the issues raised in Anderson. In an effort to
comply with this injunction and the

f~deral

mandate to transmit ballots for federal elections to

UOCAVA Voters at least 45 days before the election, the Election Commission directed county
election commissions to transmit UOCA VA Ballots for any federal primaries but not to include
candidates for state positions. Dkt. No. 28-5 (email to county election commissions); Dkt.No. 28-9
~5

(Affidavit ofMarci Andino); see also Dkt. No. 28-6 (correspondence to State Court). Not every

county had federal candidates on a primary ballot. Dkt. No. 28-9 ~ 7 (Andino affidavit explaining
that only 25 of 46 counties were required to mail federal ballots). Thus, not every county election
commissioA transmitted federal primary ballots. ld.
As noted above, Anderson directed political parties to recertify their candidates for state
offices by noon on May 4, 2012. After issuance ofthat order and the required recertification, county
election commissions were free to send complete ballots to UOCAVA Voters. See Dkt. No. 28-9
at 17 (instructions on Election Commission website advising, inter alia, that "once the court rules,
complete bal,lots should be sent to any voter receiving the Special U.S. House Only UOCAVA
5 In her original complaint, Somers argued that Anderson constitutes a violation of Section
5 of the Voting Rights Act because it changed state voting practices. Somers abandoned pursuit of
this aspect of her Voting Rights Act claim through her Second Status Report, subsequent written
requests to ~mend her complaint, and an oral request made during the hearing on Somers' request
for injunctive relief. Dkt. No. 11 (Second Status Report); Dkt. No. 23 (Memorandum re Standing
and merits of UOCAVA Claim); Dkt. No. 30 (Reply to Defendant's Response to Plaintiffs
Memorandum Re Standing and Merits ofUOCAVA Claim).

5

ballot."). On May 10, 2012, the Election Commission directed county election commissions to
report on what ballots had been sent prior and subsequent to the period covered by the State Court
injunction. 6

See Dkt. No. 28-9 ~~ 9-10 (Andino affidavit addressing communications with

Department of Justice relating to sending of state primary ballots after injunction was issued and
with county election commissions seeking reports). Counties transmitted UOCAVA Ballots at
different times. Information provided at and prior to the hearing suggests that some counties may
not have transmitted required ballots to UOCAVA voters even as of the date of the hearing.
In sum, faced with an alleged systemic problem of non-compliance with Section 8-13-1356,
which sets forth qualifications for candidates to appear on the ballot, the State Court enjoined the
Election Commission from "sending out" ballots until the concerns could be addressed. The
Election Commission complied with this injunction, and also complied with federal requirements
that ballots for federal elections be transmitted by a certain deadline. Ultimately, the State Court
directed recertification of only those candidates who had complied with the plain language of the
relevant

sta~ute.

The Election Commission then took steps to ensure ballots were transmitted as

quickly as possible to UOCAV A Voters.

DISCUSSION

A's noted above, South Carolina has enacted implementing statutes "[t]o ensure that all
South Carolina residents eligible to vote as provided by [UOCAV A], have the opportunity to receive
and cast any ballot they would have been eligible to cast if they resided in and had remained in South
Carolina[.]':' S.C. Code Ann. § 7-15-460(A) (emphasis added); see also S.c. Code Ann. §7-15-405
("For the qualified electors of this State who are eligible to vote as provided by [UOCAV A], an
absentee ballot ... must be sent to the elector at least forty-five days prior to the primary election.").
,
An amendment to Section 7-15-460, which was precleared in August 2011, clarifies that the absentee
ballots cov~red by this section are "for all elections for federal, state, and local offices[.]" Together,
these statutes implement the requirements of UOCAVA (applicable only to elections for federal
office) and extend the same protections and benefits to elections for state office.
6

6

Somers argues that the resulting change in UOCAV A Balloting Procedures constitutes a
change requiring preclearance under Section 5 of the Voting Rights Act because separate ballots
were prepared for federal and state offices and were transmitted at different times, contrary to prior
practice. She also argues that transmission of state ballots at different times by different counties
results in an "obvious equal protection problem." Dkt. No. 23 at 3_4.7
Bec~use

this is an action under Section 5 of the Voting Rights Act, this court requested, and

the Chief Judge of the Fourth Circuit empaneled, a three-judge court. 8 At a hearing held by the
three-judge.court on May 14,2012, the court granted Somers' motion to amend her complaint and
dismissed lier claims for lack of standing.

I.

AMENDMENT OF COMPLAINT
In her Second Status Report filed on the morning of May 11,2012, Somers stated that "[f]rom

this point forward [she] will only seek relief in this venue as to the military ballot issue." Dkt. No. 19
at 1. In her. Memorandum re Standing and Merits of UOCAV A Claim, filed later that same day,
Plaintiff used a modified caption which indicated she was proceeding only in a representative status on
behalf of "Afl Persons Entitled to Vote Under the Uniformed and Overseas Citizens Absentee Voting

7 Somers does not identify the source of the right to equal protection on which her claim is
based. However, as she refers to Bush v. Gore, 531 U.S. 98 (2000), the court presumes she relies
on the Equal Protection Clause ofthe Fourteenth Amendment to the United States Constitution. See
Bush v. Gore, 531 U.S. at 104-05 (stating that equal protection as guaranteed by the Fourteenth
Amendment applies not just to "initial allocation of the [voting] franchise[,]" but also to "the manner
of its exercise" and holding that a state must "avoid arbitrary and disparate treatment of the members
of its electorate").
8 Aby change for which preclearance has not been obtained is unenforceable and subject to
being enjoined by a federal court of three judges, constituted as specified in 28 U.S.C. § 2284 and
42 U.S.C. § 1973c. An injunction is the only relief available from the three-judge court. The only
court with subject matter jurisdiction to address the merits of whether a change is entitled to
preclearance is the United States District Court for the District of Columbia. ld

7

Act" and only against the Election Commission. Dkt. No. 23. She included a request to "amend the
caption as above to reflect the correct designation of parties at this point" and referred to the "remaining
issue" as "relating to ballots already sent, or to be sent to military and overseas voters." Jd. at 1.
Consistent with this narrowing, Somers included only two merits arguments. First, in support
of her Section 5 claim, she argued that the "two-ballot system" was "a newly created practice that has
not been precleared." Dkt. No. 23 at 3. Second, she arg~ed that variations between counties as to when
UOCA VA Ballots were mailed presented "an obvious equal protection problem" because some
UOCAVA Voters would have a better chance of having their vote counted than others. Jd. at 3-4.
In a reply memorandum filed shortly before the May 14, 2012 hearing, Somers again asked the
court to "allow the amendment of the caption to reflect what remains in the case ... for the convenience
of the parties and the Court." Dkt. No. 30 at 1. Her arguments remained limited to the UOCAVAbased Section 5 and related equal protection claims.
At oral argument, Somers modifed her request to amend the caption. Specifically, she asked
that the court allow her to remain a Plaintiff in her capacity as a candidate, in addition to pursuing
claims in a r~presentative capacity on behalf ofUOCAVA Voters. 9
At the conclusion of the May 12,2012 hearing, the court orally granted Somers' request to
amend the caption consistent with her narrowed claims. The court reconfirms that ruling here. This
leaves Somers with two claims, one for violation of Section 5 of the Voting Rights Act based on the
alleged modification of state procedures relating to sending a single ballot for state and federal races,
and one for an alleged equal protection violation arising from differences between counties' mailing

The modified caption used on both the Memorandum re Standing and Merits ofUOCAVA
Claim (Dk{ No. 23) and Somers' Reply (Dkt. No. 30) referred to Somers only in a representative
capacity for UOCAVA Voters. It did not refer to her status as a candidate for office.
9

dates of ballots for state elections. Somers seeks to pursue both claims in a dual capacity, as a candidate
and as a representative of UOCA VA Voters.

II.

SOMERS' MOTION FOR INJUNCTIVE RELIEF
In her reply brief filed on May 14,2012, prior to the court's hearing, Somers requested that the

court enjoin the certification of the June 12,2012 primary election until 45 dayslo have passed since the
mailing ofUOCA VA state ballots. Dkt. No. 30 at 2. The court construes this as a request for injunctive
relief.

A.

Injunction Standard

The following standard governs a three-judge district court's decision whether to grant an
injunction ina Voting Rights Act Section 5 case: The court "may determine only whether Section 5
covers a contested change, whether Section 5' s approval requirements were satisfied, and if the
requirements were not satisfied, what temporary remedy, if any, is appropriate." Lopez v. Montgomery

County, 519 U.S. 9, 23 (1996).
B.

Standing

Before exercising jurisdiction over this matter, the court must assure itself that the action
satisfies Article Ill's case or controversy requirements.

U.S. Const. art. III, §2.

The Election

Commission asserts that these requirements are not satisfied because Somers lacks standing. To
establish standing, (1) a plaintiffmust have suffered an "injury in fact," which is an invasion ofa legally
protected int~rest that is "concrete and particularized"ll and "actual or imminent," not conjectural or

Somers requested a delay until "48 days" have passed, but all other references in this case
are to transmitting ballots more than 45 days prior to elections.
10

"

';By particularized, we mean that the injury must affect the plaintiff in a personal and
individual way." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992).
II

9

hypothetical; (2) the injury must have been caused by the defendant's complained-of actions; and (3)
a plaintiff s injury or threat of injury must likely be redressable by a favorable court decision. Lujan,
504 U. S. at 560-61. The plaintiff has the burden of establishing standing. See id. at 561.
Candidate Standing. The Election Commission argues that Somers has failed to show that

she was or: will be injured as a candidate because the State transmitted separate federal and state
ballots to UOCA VA Voters. 12 Somers' origin~l complaint failed to allege any particularized injury
to her as a candidate based on the State's transmission of separate federal and state ballots. Somers'
briefs to the court similarly failed to allege any injury as a candidate. During the May 14,2012,
hearing,

th~

court inquired as to Somers' theory of standing based on her candidacy. Counsel for

Somers failed to articulate any concrete and particularized injury that Somers has incurred or was
likely to incur as a result of the transmission of separate federal and state ballots. 13 Somers,
therefore, has no standing as a candidate to pursue a Section 5 claim.

The Election Commission also argues that Somers has no standing because she is not a
minority and non-minorities are required to "meet additional, more stringent, standing requirements"
under the V,oting Rights Act. Dkt. No. 28 at 11 (citing Dutmer v. City ofSan Antonio, 937 F. Supp.
587,590-91 (W.D. Tex. 1996) (citing Newman v. Voinovich, 789 F. Supp. 1410, 1415 (S.D. Ohio
1992), aff'd, 986 F.2d 159 (6th Cir.), cert. denied, 509 U.S. 924 (1993). Dutmer and Newman,
however, involve claims for violation of Section 2 of the Voting Rights Act, not Section 5.
12

In fact, the Election Commission contends Somers could not be injured by the decision
to transmit separate federal and state ballots. The Election Commission notes that counties do not
mail federal ballots to UOCA VA Voters who have requested a ballot for a primary in which there
is no contested federal race. It is undisputed that Somers is a Republican candidate for Senate
District 5 l~cated in Congressional District 4. It is also undisputed that there is no contested federal
Republicaniprimary race in Congressional District 4. According to the Election Commission, none
of the UOCAVA Voters requesting a Republican primary ballot in Somers' district would receive
a separate federal ballot. Therefore, voters who have the ability to cast a vote in favor of Somers
would receive one ballot (limited to state offices) even if the ballots for federal and state offices were
transmitted together because there was no federal ballot to transmit.
13

10

v

Tothe extent that Somers pursues an equal protection claim as a candidate, the court also
concludes that Somers has no standing because she has failed to allege an injury in fact and how she
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was denieci equal protection of the laws.
ExReL Standing. The Election Commission also argues that Somers may not proceed ex

rei. on behalf ofUOCAVA Voters on either her Section 5 or equal protection claim. A party brings

an action ex rei. when acting on behalf of another person. 14 Somers argues that she is bringing this
action on behalf ofUOCAVA Voters because "every single affested voter is necessarily outside the
jurisdiction and the vast majority of which are plainly unable to assert their rights personally before
this Court." Dkt. No. 24 at 2-3. The court, therefore, considers whether Somers has third-party
standing to assert the rights ofUOCAVA Voters.
The United States Supreme Court has recognized third-party standing m limited
circumstances:
We have recognized the right of litigants to bring actions on behalf of third parties,
provided three important criteria are satisfied: The litigant must have suffered an
"injury in fact," thus giving him or her a "sufficiently concrete interest" in the
outcome of the issue in dispute; the litigant must have a close relation to the third
party; and there must exist some hindrance to the third party's ability to protect his
or her own interests.
Powers v. Ohio, 499 U.S. 400, 410-11 (1991) (internal citations omitted). See also Warth v. Seldin,

422 U.S. 490, 499 (1975) ("even when the plaintiffhas alleged injury sufficient to meet the 'case or
controversy' requirement, . . . [he] generally must

ass~rt

his own legal rights and interests, and

cannot rest his claim to relief on the legal rights or interests of third parties."); LaRoque v. Holder,
650 F.3d 777, 781-82 (D.C. Cir. 2011) ("This prudential limitation is meant to avoid 'the
14
According to Black's Law Dictionary, "a suit ex rei. is typically brought by the
government upon the application of a private party (called a relator) who is interested in the matter."
Somers does not purport to bring this action on behalf of the state or federal government.

11

adjudication of rights which those not before the Court may not wish to assert' and to ensure 'that
the most effective advocate of the rights at issue is present to champion them. "') (quoting Duke
Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 80 (1978)).
Somers alleges that some UOCA V A Voters will have less time to receive, review, and return
their ballots because the State transmitted federal and state ballots separately to UOCA V A Voters. 15
Even assuming Somers has sufficiently alleged that some UOCAVA Voters may be injured by the
"

State's mailing of separate federal and state ballots to UOCA V A Voters, Somers has not established
that she is "entitled to assert the interests ofUOCAVA Voters in this action. She has not alleged a
close relationship to any UOCAVA Voter. She has not shown that any UOCAVA Voter wishes to
assert his or her rights and is unable to bring this action. Although Somers argues that many
UOCAVA Voters "are often incommunicado for long periods of time and difficult to reach" (Dkt.
No. 24 at 2), Somers fails to recognize that UOCAVA Voters are not necessarily residing overseas. 16
And, UOCAVA Voters residing overseas have access to the courts through other means, such as
through their powers of attorney. The court concludes that Somers does not have standing to bring
either a

Se~tion

5 or equal protection claim on behalf ofUOCAVA Voters.

Th~ court, therefore, dismisses Somers' claims for lack of standing.

15 It is undisputed that the federal ballots were transmitted more than 45 days prior to the
June 12,2012 election. It is less clear when the state ballots were transmitted.
16 An absent uniformed services voter is, inter alia, "a member of a uniformed service on
active duty who, by reason of such active duty, is absent from the place of residence where the
member is otherwise qualified to vote." 42 U.S.C. §1973ff-6A.

12

CONCLUSION
For the reasons set forth above, this action is dismissed.
IT IS SO ORDERED.

~4tf~
Senior United States Circuit Judge

~1A~~
Cameron McGowan Currie
United States District Judge

May!l,2012
Columbia, South Carolina