Smith et al v. State of South Carolina State Election Commission, The et al
Filing
42
OPINION AND ORDER denying 24 Motion for TRO and dismissing this action with prejudice. Signed by Honorable Clyde H Hamilton, Honorable Cameron McGowan Currie, Honorable J Michelle Childs on 10/3/2012.(cbru, )
IN THE UNITED STATES DISTRICT COURT
} FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Ann Smith, John Pettigrew,
Bob Shirley, Wayne Gilbert,
and others similarly situated,
Plaintiffs,
v.
The State of South Carolina State Election
Commission, a subdivision of the State of
South Carolina,l The South Carolina
Republican Party, and The South Carolina
Democratic Party,
Defendants.
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. C.A. No. 3:12-CV-1543-CHH-CMC-JMC
OPINION AND ORDER
--------------------~--- )
This matter is before the court on Plaintiffs' second motion for a temporary restraining order
("TRO") and permanent injunction. In their first motion for TRO, filed June 11,2012, Plaintiffs
sought either to have their names restored to the ballot for the June 12,2012 primary election or to
postpone the primary election until this court could resolve the issues raised in this action. Dkt. Nos.
1,4. On June 11,2012, a three-judge court denied Plaintiffs' motion for TRO. Dkt. No.7. After
months of sitting dormant, this case has been revived by the filing of an amended complaint on
September 21,2012 (Dkt. No. 18), followed by a motion for TRO and permanent injunction on
September 25,2012 (Dkt. No. 24).
1 The State of South Carolina State Election Commission notes that it is not a subdivision
but rather an agency of the State of South Carolina. See Dkt. No. 36 at 1.
The same three-judge court has reviewed Plaintiffs' motion and memorandum, and concludes
that this motion can be resolved without a hearing. 2 For reasons explained below, the court denies
Plaintiffs' motion for TRO and permanent injunction. 3
BACKGROUND
Plaintiffs filed this action against the State of South Carolina State Election Commission (the
"Election Commission") and the State of South Carolina (the "State") on June 11,2012, the day
before the primary election. At the same time, Plaintiffs filed a motion for TRO and permanent
injunction. Dkt. Nos. 1,4. The five named Plaintiffs4 in the original complaint were all individuals
who sought to be included on the ballot for the June 12,2012 primary election but were allegedly
denied that opportunity due to application of the following decisions ofthe South Carolina Supreme
Court ("State Court"): Anderson v. South Carolina Election Commission, 725 S.E.2d 704, 2012 WL
1530655 (S.C. May2, 2012) ("Anderson!'), rehearing denied Order No. 2012-05-03-05,2012 S.C.
LEXIS 99 (S.C. May 3, 2012) ("Anderson Order")S (collectively "Anderson"); and Florence County
Democratic Party. v. Florence County Republican Party, 727 S.E.2d 418, Slip. Op. No. 27128, 2012
WL 1999845 (S.C. June 5, 2012) ("Florence County"). These State Court decisions addressed
2 Plaintiffs did not request a hearing.
In any event, the court concludes no hearing is
necessary.
3 The court refers to Plaintiffs' current motion for TRO and permanent injunction as "motion
for TRO" throughout the remainder of the order.
4 The original complaint was brought on behalf of five named Plaintiffs and "others similarly
situated."
5
Plaintiffs refer to the Anderson Order as Anderson II.
2
requirements for filing a Statement of Economic Interest ("SEI") with a Statement of Intention of
Candidacy ("SIC") found in S.C. Code Ann. § 8-13-1356.
Plaintiffs alleged a violation of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. §
1973c, based on a failure to preclear changes to voting practices effected by Anderson I, the
Anderson Order, and Florence County. Plaintiffs also alleged violations of their equal protection
and due process rights. Specifically, Plaintiffs contended that § 8-13-1356, as a whole and on its
face, imposes greater burdens on non-incumbents than on incumbents and that § 8-13-1356
("Subsection 1356(A)") has been applied inconsistently to public officials who are not incumbents
in the position sought.
A three-judge court heard argument and denied the TRO that same day. Dkt. Nos. 8,9. A
written order explaining the court's ruling was entered on June 18,2012. Dkt. No. 10. The court
assumes familiarity with the court's prior order. See Smith v. South Carolina Election Comm 'n,
3:12-CV-1543, 2012 WL 2311839 (D.S.C. June 18,2012).
Thereafter, the matter appeared to lie dormant, with no evidence even that Defendants had
been served. On July 25, 2012, the court directed Plaintiffs to file a status report by August 8, 2012.
Dkt. No. 11. Having received no status report, the court issued a Rule to Show Cause Order
("RTSC") on September 14,2012. Dkt. No. 15.
Plaintiffs responded to the RTSC on September 20, 2012, arguing that their failure to respond
to the earlier order should be excused because a computer virus had deleted the deadline from
counsel's calendaring system. Dkt. No. 17. They also indicated an intent to file an amended
complaint and renewed motion for injunctive relief by the end ofthe week.
3
On September 21,2012, Plaintiffs filed an amended complaiiit. 6 Dkt. No.I8. The amerided
complaint adds one Plaintiff(WayneGiibert) and names three Defendants: one of the two original
Defendants (the Election Commission) and two additional Defendants' (the South Carolina
Republican Party and the South Catolina Democratic Party).7 The amended complaint repeats tr,.e
same causes of action - a violation of Section 5 of the Voting Rights Act and an equal protection
claim - but seeks different relief because the primary election has occurred. Now, Plaintiffs seek·
an order requiring that (1) Defendants hold a primary with Plaintiffs' names (and those similarly
situated) on the ballot prior to the general election and (2) "the general election with regard to offices
affected by the Anderson I and A nderson II rulings be enjoined until said primaries occur or pending"
resolution of this matter by this Court." Dkt. No. 24 at 1-2. The amended cqmplaint adds factual
allegations based on post-primary events, particularly that Plaintiff Shirley has secured his name on
.
.
the general election ballot as a petitIon candidate. The amended complaint also attempts to specify
the alleged change in voting procedure requiring preclearance, which the court previously found was
not specified in.the original complaint or motion for TRO .
. Although the amended complaint seeks an "expedited .temporary .restraining order and
permanent injunction,"Plaintiffs did not file an accompanying motion. On September24, 2012, the
court entered anarder explaining that the court would not act until "(1) the amended complaint is
properly served on all Defendants; (2) Pll:tintiffs file a properlysupported motion; and(3) Defendants
The amended complaint refers to Exhibits A-N,but only Exhibits A-D were filed on
September 21,2001.. On September 25,2012, Plaintiffs filed Exhibits E-N. Dkt. Nos. 21 ..23.
6
7 The amended complaint dropsthe following parties: Tommie Reece, Robert Tinsley, and
.
the State of South Carolina.
4
have been afforded. some opportunity to file a respons~." Dkt.No. 20. The court also advised
.
Plaintiffs that should they seek a TRO, Plaintiffs must complete ,service of the amended complaint
and properly supported motion before 5:00 p.m. on September 25, 2012. /d. Should Plaintiffs file
a motion for TRO, the court ordered Plaintiffs to "expressly address why the currentrequest for relief
is not barred by this court's priororders." /d.
.
.
On September 25, 2012, Plaintiffs filed a "Motion for and Memorandum in Support ofan
Expedited Temporary Restraining Order and Permanent Injunction."
Dkt. No. 24. Plaintiffs,
however, failed to address why the relief requested isnot barred by the court's prior orders. In their
second motion for TRO, Plaintiffs repeat the TRO relief soughtin the amended complaint. .
The State responded on September 27,2012, arguing that the .court should deny Plaintiffs'
second motion forTRO for the same reasons articulated in the court's prior order. Dkt. No. 31. The
Election Commission responded on-September 28,2012, arguing that Plaintiffs' motion for TRO
is barred by the court's prior order and explaining how Defendants will be prejudiced by the specific
relief requested. Dkt. No'. 36. The Democratic Party also responded on September 28, 2012,
adopting the Election Commission's response and arguing that it will be prej udiced if the TRO is
granted. Dkt.No. 38 .. The Republican Party resportdedon the same date, adopting th.e arguments
in the responses filed by the Election Commission and State. Dkt.
No~
40. The Republican Party
also argued that (1) it is not a party to this action because it has not been served;.(2} it is not a proper
.
'
.
.
.
. " " . .
party because. it has no' control over the general election; and(3) any relief requested as to the
primary election is moot because the primary has been held. /d,
5
DISCUSSION
I. Standing
The court previously found that Plaintiffs Smith, Pettigrew, and Shirley have standing to
pursue their Voting Rights Act claim and their facial challenge to § 8-13-1356 on equal protection
grounds as non-incumbents. 2012 WL 2311839 at *6. The court also found that Plaintiff Shirley
has standing to challenge the alleged inconsistent interpretation of § 8-13-1856(A). Id. at *7.
Nothing in the amended complaint affects the standing of Plaintiffs Smith, Pettigrew, or Shirley.
The court now considers whether the additional Plaintiff, Wayne Gilbert ("Gilbert"), has
standing to pursue his claims. See generally U.S. Const. art. III, §2 {Article III's case or controversy
requirements).8 Gilbert alleges that he sought to be placed on the Democratic primary ballot as a
candidate for Richland County Council District 8. Gilbert contends that on March 30, 2012, the
candidate filing deadline, he electronically filed his SEI, and later that day submitted his SIC along
with confirmation of his SEI filing. Gilbert claims that he followed instructions provided by the
South Carolina Democratic Party that he was to "fill this [SEI form] out online by the end of the
filing deadline to be a candidate and must tum in the receipt of completion." Am. Compo ~ 5 (citing
instructions printed from website of South Carolina Democratic Party). He claims that "after the
Anderson case was decided," Gilbert was "de-certified as a candidate for Richland County Council
8 To establish standing, (1) a plaintiff must have suffered an "injury in fact," which is an
invasion of a legally protected interest that is "concrete and particularized" and "actual or imminent,"
not conjectural or hypothetical; (2) the injury must have been caused by the defendant's
complained-of actions; and (3) a plaintiffs injury or threat of injury must likely be redressable by
a favorable court decision. Lujan v. De/enders o/Wildlife, 504 U.S. 555, 560 n.l (1992). Plaintiffs
have the burden of establishing standing. See id. at 561.
6
District 8." Id. Gilbert."has not opted to run as a petition candidate." Id. Gilbert alleges that the
incumbent for this office is currently the Democratic candidate for this seat.
Gilbert sought to be included as a candidate on the ballot of the primary election and has
taken some action to qualify as a candidate. As such, he has standing to bring a claim under Section
5 of the Voting Rights Act for alleged changes in voting practices related to qualification and
certification of candidates that he alleges have not been precleared. See Allen v. State Bd. of
Elections, 393 U.S. 544, 572 (1969).
Gilbert also brings a facial challenge to § 8-13-1356, based on alleged violation of his equal
protection rights asa result of the additional burdens that § 8-13-1356 imposes on non-incumbents
seeking to be candidates. Gilbert is a non-incumbent who is subject to the alleged additional filing
requirements under .§8-13-1356 and, therefore, has standing to challenge the statute on equal
protection grounds.
Gilbert, however, does not have standing to pursue an as-applied challenge to Subsection
I 356(A), which exempts public officials from having to simultaneously file a paper copy oftheir SEI
when they file their SIC. The alleged inconsistent application of the public official exemption arises
from two different interpretations of "public official." The narrow interpretation exempts only
incumbents, i. e. those who seek re-election for the same office and have an SEI on file for that office.
The more generous interpretation exempts all public officials, i.e. those who hold any office and
have an SEI on file for any office. Gilbert does not allege an injury flowing from the alleged
inconsistent application of the public official exemption because he does not allege that he held
another public office and should have been exempted from filing his SEI at the time he filed his SIC.
7
Neither does he allege that his opponent benefitted from the application of the generous
interpretation because his opponent is the incumbent. Gilbert, therefore, does not have standing to
pursue this claim.
In summary, the court is satisfied that all Plaintiffs 4ave standing to bring a claim under
Section 5 of the Voting Rights Act and a facial challenge to § 8-13-1356, and that one Plaintiff,
Shirley, has standing to bring an as-applied challenge to Subsection 1356(A).
II. Voting Rights Act
The standards governing a three-judge district court's decision whether to grant an injunction
in a Voting Rights Act Section 5 case are addressed in the court's prior order and are incorpora,.ted
herein by reference. 2012 WL 2311.839 at *7-9. In the prior order, the court found that "Plaintiffs
fail to allege a specific change in voting procedures or practices in their complaint." ld. at 9.
Through Plaintiffs' amended complaint and motion for TRO, Plaintiffs have attempted to specify
a change in voting procedure and establish a baseline evidencing a change:
In a series of rulings by the South Carolina Supreme Court on May 2, 2012, May 3,
2012 and June 5, 2012, the South Carolina Supreme Court altered the before then
general interpretation of S.C. Code Ann. §8-13-13 56, enacted in 1991 and thereafter
amended in 1996, and placed immediately in force a "change affecting the eligibility
of persons to become or remain candidates, to obtain a position on the ballot in
primary or general elections, or to become or remain holders of elective offices"
without the State obtaining preclearance from the U.S. Department of Justice.
Specifically, the Anderson 1 and Anderson 11 decisions changed the most recent
practice for conducting elections in 2010 and 2011 by requiring a paper copy of the
SEI to be filed with the party officials at the exact same time that the SIC was filed.
(Exhibit J). These actions are in clear violation of the Voting Rights Act of 1965, as
amended and as interpreted in 28 C.F.R. §51.13(g).
Am. Compi.
~
23. In their motion for TRO, Plaintiffs argue that "[p]rior to the Anderson and
Florence rulings, the 'baseline' practice was that candidates need only prove they filed their SEI with
8
the Election Commission, however, paper copies of the SEI did not have to be provided to the
Defendant Parties at the time the SIC was filed." Dkt. No. 24 at 11.
Plaintiffs attach two affidavits to their amended complaint as evidence of the baseline
practice: one from State Republican Party Chairman Chad Connelly (Dkt. No. 22-3) and one from
Phillip Bowers, Chairman of the Pickens County Republican Party (Dkt. No. 23).9 According to
these affidavits, the State Republican Party took its guidance from the State Ethics Commission and
Election Commission, which convinced the Republican Party that paper copies of the SEI were no
longer required at the time of filing the SIC. Connelly'S affidavit provides, in part:
3)
Prior to the Anderson decision, the South Carolina Republican Party's
practice was to rely on the procedures promulgated by the South Carolina
Ethics Commission and the Election Commission. Instructions from the
Ethics Commission regarding the Statement of Economic Interests (SEI) were
that it was "the oq.ly report that needs to be filed online immediately after an
individual files as a candidate with the filing officer." (emphasis added). In
addition, the Ethics Commission instructions stated that "Paper copies of
these reports are no longer accepted."
4)
The South Carolina Republican Party's instructions for the 2012 elections
followed the same procedures as those of the 2010 and 2011 elections, and
the information we sent to our county officials and candidates reflected the
above-mentioned rules and accepted practices of 2010 and 2011.
5)
As a result of the Anderson decision, the South Carolina candidates were
required to file a paper copy of the SEI at the same time with the same
official. This changed the most recent practice for conducting elections in
South Carolina and directly led to the disqualification of numerous non
incumbent candidates, many within our own party.
9 Both affidavits were signed August 21, 2012, one month before Plaintiffs filed their
amended complaint. It is unclear if these affidavits were prepared for this litigation.
9
Dkt. No. 22-3. 10
Plaintiffs also attach an affidavit to their motion for TRO. This affidavit is from Dennis
Saylor, Chairman of the Aiken County Republican Party, signed July 28, 2012. Dkt. No. 24-2.
Saylor's affidavit states that "[p]rior to the May 2,2012, SC Supreme Court ruling in the Anderson
case[,] we had not required the candidates to provide us a paper copy of their statement of economic
interests (SEI)." ld. Saylor further avers that "[t]he Anderson requirement of providing a paper copy
of the SEI at the same time to the same official will change our recent filing procedures." ld.
The United States Supreme Court has held that, "[i]n order to determine whether an election
practice constitutes a 'change,' ... we compare the practice with the covered jurisdiction's
'baseline. ,,, Riley, 553 U.S. at 421. The Court defines a covered jurisdiction's baseline as "the most
recent practice that was both precleared and 'in force or effect'- or, absent any change since the
jurisdiction's coverage date, the practice that was 'in force or effect' on that date." ld.
10
Bowers' affidavit provides, in part:
Prior to the May 2, 2012, SC Supreme Court ruling in the Anderson case, candidates
were not required to provide a paper copy of their Statement of Economic Interest
(SEI) form and also file on-line. Some candidates did have paper copies of their SEI
when they filed their SIC, but paper copies were not retained pursuant [sic] Section
8-13-365, which requires that the SEI form "must be filed using an Internet based
filing system as prescribed by the commission".
The Anderson requirement of providing a paper SEI when submitting a SIC, and
filing a SEI on-line, changed our filirig procedures resulting in disqualification of
seven (7) previously qualified Republican candidates in Pickens County.
Dkt. No. 23.
10
Although Plaintiffs have attempted to establish the practice that was "in force or effect"
immediately prior to Anderson J, the Anderson Order, and Florence County, Plaintiffs have failed
to establish that this practice was precleared. As explained in the court's prior order,
The Election Commission provided guidance to potential candidates in the form of
a summary titled "Party Organization & Candidate Filing Reference." This summary
correctly indicates that candidates must comply with the requirements of both §§ 813-365 and 8-13-1356. It varies, however, from the State Court's interpretation of
the two statutes by stating that candidates may satisfy § 8-13-1356(B) by delivering
a receipt to the appropriate party official showing thatthe candidate filed an SEI with
the Ethics Commission online. See Anderson Order (clarifying that the filing of a
receipt reflecting the online filing of an SEI with the Ethics Commission does not
satisfy § 8-13-1356(B».
Although Plaintiffs do not allege that they rely on this document, the court is aware
of its existence from Somers. See Somers v. S.C Election Comm.,
3: 12-CV-1191-CHH-CMC-JMC, 2012 WL 1754094, *2 nA (D.S.C. May 16,
2012). Even if Plaintiffs alleged reliance, the court would find that this is not a
change under the Voting Rights Act. Although this document contained a
misstatement of state law, any practice described or prescribed in this document was
not the baseline as it had not been precleared. The erroneous advice contained in the
Election Commission summary, therefore, did not modify the procedures which were
precleared and in force and effect prior to Anderson.
2012 WL2311839 at * 10 n.13. To the extent this portion of the prior order was dicta, the court now
adopts it in full. The court reaffirms that, to the extent the Election Commission or the Ethics
Commission gave erroneous advice and subsequent procedures were adopted in reliance on this
advice, this would not change the baseline under the Voting RightsAct. l1 Plaintiffs have made no
Not all local political parties and county election officials failed to follow the clear ..
language of § 8-13-1356. However, the confusion that did arise appears to have been a result of
implementation of mandatory electronic filing of SEIs. As explained in the court's prior order,
"Section 8-13-365 did not amend § 8-13-1356." 2012 WL2311839 at *10. Plaintiffs have not
alleged that, prior to implementation of mandatory electronic filing of SEIs, paper copies of SEls
were not required to be submitted at the same time as submission of SICs.
1I
11
attempt to establish that the procedure alleged to be in force or effect was also precleared. Because·
the baseline is the last practice both precleared and in force or effect, the baseline is § 8-13-1356. 12
The court, therefore, finds that Anderson I and the Anderson Order was not a change because
Plaintiffs have not established that compliance with the plain language of § 8-13-1356 is a change
from the baseline. For these reasons and those set forth in the court's prior order, the court denies
Plaintiffs' request for injunctive relief based on alleged violation of the Voting Rights Act.
III. Constitutional Claims
The court analyzes Plaintiffs' constitutional claims under the normal standard for a
temporary restraining order. 13
(1) Likelihood of Success on the Merits. In their motion for TRO, Plaintiffs have failed
to present new arguments for their facial challenge to Subsection 1356(A).
Rather, Plaintiffs
attempt to support their as-applied challenge to Subsection 1356(A) based on alleged inconsistent
application of the public official exemption "from county to county and party to party" by the
"Defendant Parties and the executive branch." Dkt. No. 24 at 17. Despite the addition of two
political parties and reference to recent state court decisions, Plaintiffs still fail to show a likelihood
of success on the merits as to their as-applied challenge.
12 As explruned in the court's prior order, the State Court in Anderson and the Anderson
Order "interpreted S. C. Code Ann. §§ 8-13 -365 and 8 -13 -13 5 6 consistently with their plain meaning,
both internally and as read together." 2012 WL 2311839 at * 10. The court concluded that "[t]his
is the meaning the Justice Department would have understood in granting preclearance for both
statutes." Id
3
The court set forth the standard for a temporary restraining order in the court's prior order.
See Smith, 2012 WL2311839 at *11 n.15.
J
12
In the court's prior order, the court found that "to the extent Plaintiffs rely on the alleged
inconsistent application of Subsection I 356(A), they are unlikely to succeed on the merits because
the actions complained of were committed by local political parties and county election officials"
and "[t]hese parties have not been named as defendants. " 2012 WL 2311839 at *12. Plaintiffs
have attempted to remedy this deficiency by attributing the inconsistent application of Subsection
1356(A) to "Defendant Parties and the executive branch." Plaintiffs have not, however, added any
factual allegations that the Defendant Parties - the South Carolina Republican and Democratic
Parties - or "the executive branch" have certified or decertified candidates based on Subsection
. 1356(A).
To the extent that Plaintiffs argue that recent "disparate rulings by South Carolina's Circuit
Courts" as to the public official exemption violate Plaintiffs' equal protection rights, Plaintiffs have
failed to recognize that the proper remedy for challenging inconsistent lower state court rulings as
to state election law is an appeal to a higher state court. Plaintiffs have also failed to suggest a
theory as to why either the narrow or generous interpretation of Subsection 1356(A) violates their
equal protection rights. Instead, they focus on the different interpretations of the exemption by local
political parties, county election officials, and state circuit court judges. Plaintiffs fail to provide
any new legal theory as to how the inconsistent application of the public official exemption is a
violation of equal protection or due process rights.
For the reasons stated in the court's prior order and above, the court finds that Plaintiffs have
not shown a likelihood of success on the merits of their equal protection claim. To the extent
Plaintiffs still assert a due process claim, the court also finds that Plaintiffs have not shown a
13
likelihood of success on the merits because they have failed to advance any theory based on due
process grounds.
(2) Irreparable Harm. Plaintiffs have failed to show' that the~, or the other alleged
"similarly-situated" decertified candidates, will be irreparably harmed because they can purslie their
right to be on the ballot in state court. They could have brought a pre*primary challenge in state
court and they can bring. a post-primary challenge there. Thus, assuming Plaintiffs are eligible to
be on the ballot under state law, Plaintiffs have the ability to seek reliefin a more appropriate forum.
(3) Balance of Equities. The court once again finds that t4ebalance of the equities tips in
favor of Defendants. Plaintiffs' :original motion forTRO was denied on June 11,2012 and the
primary was held on June 12,2012. Plaintiffs did not file a motion to reconsider the court's order,
.
.
and did not appeal the. court's decision. Neither did Plaintiffs immediately' file an amended
complaint. Instead, Plaintiffs waited more than three months to file an amended complaint on
September 21,2012. Inthe meantime, Plaintiffs' Counsel failed to respond to the court's order to
file a status report. When Counsel finally made a report to the court, Counsel'explained that she
failed to file. her status report because a computer virus deleted the deadline from Counsel's
calendaring system. Further, Plaintiffs' Counsel failed to follow the court's latest order, which
expressly required that if Plaintiffs filed a motion for TRO, they address why the current relief
requested is not barred by the court's prior orders.
The court finds that the equitable doctrine oflaches weighs against Plaintiffs. See Costello
v. United States, 365 U.S. 265,282 (1961); White v.Danie/,909F.2d 99, 102 (4th Cir. 1990).
Plaintiffs have unreasonably delayed in filing the amended complaint even without consideration
14
of Plaintiffs' failure to respond to the order requiring them to file a status report. 14 In addition, the
only relief available at this date would cause substantially more prejudice to Defendants than similar
relief sought at an earlier time. 15 The court, therefore, finds that the doctrine of laches tips the
balance of equities in Defendants' favor even if relief was otherwise warranted.
(4) Public Interest. The public has an interest in ensuringthat the State's general election
is conducted pursuant to state law and that only qualified candidates appear on the ballot. The relief
sought by Plaintiffs is not in the public interest as it seeks to hold primaries with all decertified
candidates and enjoin the general election "with regard to offices affected" without adequate legal
basis.
IV. Permanent Injunction
In Plaintiffs' motion for TRO, Plaintiffs also seek a permanent injunction. The standard for
a permanent injunction is "essentially the same" as for preliminary injunctive relief, "with the
exception that the plaintiff must show ... actual success [on the merits]." Amoco Production Co.
v. Village o/Gambell, 480 U.S. 531, 546 n.12 (1987). Plaintiffs have failed to make a showing of
likelihood of success on the merits, and certainly have not made a showing of actual success. The
court, therefore, denies Plaintiffs' request for permanent injunction.
Plaintiffs have offered no explanation for the three-month delay after denial of their first
motion for TRO and before filing of their amended complaint. The court notes that the affidavits
supporting the amended complaint were signed on August 21,2012, and the affidavit attached to
their motion for TRO was signed on July 28,2012.
14
15 The prejudice to Defendants is explained in the Election Commission's response to
Plaintiffs' motion for TRO on pages 6·8. Dkt. No. 36 at 6-8.
15
CONCLUSION
For reasons set forth above, Plaintiffs' motion for temporary restraining order and permanent
injunction is denied. Because the court has denied all relief sought by Plaintiffs, this action is
dismissed with prejudice. 16
IT IS SO ORDERED.
ly
. Hamilton
Semor United States Circuit Judge
~~~~
Cameron McGowan Currie
United States District Judge
J. Michelle Childs
United States District Judge
October ~,2012
ColummtSouth Carolina
In addition to a TRO and permanent injunction, Plaintiffs seek "attorneys' fees and
litigation costs pursuant to 42 U.S.C. § 1988." Dkt. No. 18 at 15. Plaintiffs are not eligible for
attorneys' fees under § 1988 because Plaintiffs did not prevail. Any request for attorneys' fees .and
costs is, therefore, denied.
.
16
16
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