Germalic v. Secretary of State Jason Gant

Filing 5

ORDER Regarding In Forma Pauperis Status and Denying Preliminary Injunction. Signed by U. S. District Judge Roberto A. Lange on 10/26/12. (DJP)

FILED
OCT 26 2012
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DNISION
JAMES GERMALIC, Independent
Candidate for President,
Plaintiff,
vs.
JASON GANT, Secretary of State of
South Dakota,
Defendant.

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~011_~

~ ~lERK

CN 12-3030-RAL

ORDER REGARDING
IN FORMA PAUPERIS
STATUS AND DENYING
PRELIMINARY INJUNCTION

PlaintiffJames Germalic filed a Complaint on October 22,2012, seeking an U[i]njunction
to stop the ballots from being printed in order to put James Germalic's name on the ballot for the
November 2012 general election." Doc. 1 at 1. Germalic seeks to have his name listed on the
South Dakota general election ballot as a candidate for President of the United States of
America. Doc. I at I. Germalic complains about the requirement under South Dakota law that
any petition circulator be a resident of the state of South Dakota who is at least 18 years of age.
Doc. I at 1; see S.D. Codified Laws ("SDCL") § 12-1-3(9). Germalic's Complaint contains no
indication whatsoever that he has even attempted to circulate a petition to obtain the requisite
signatures from over one percent of those who voted in the last gubernatorial election in South
Dakota to justify including him on the general election ballot. Doc. 1; see SDCL § 12-7-7.
Germalic did not pay the $350.00 filing fee for a civil case. Rather, Germalic filed a
request to proceed in forma pauperis, which stated:
I could pay the fee for one federal court, but to pay a $350 fee (or
more) for all federal courts would cost me $17,500. This is many
times my total worth, so truly I am a pauper and thus I ask for
Pauperis status-that the fee be waived!

Doc. 3.
I. Request to proceed in forma pauperis

In fonna pauperis status is a privilege rather than a right.

See e.g., Williams v.

McKenzie, 834 F.2d 152, 154 (8th Cir. 1987). Detennining whether an applicant is sufficiently
impoverished to qualifY to proceed in fonna pauperis under 28 U.S.C. § 1915 is committed to
the court's discretion. Cross v. Gen. Motors Corp., 721 F.2d 1152, 1157 (8th Cir. 1983). "In
fonna pauperis status does not require a litigant to demonstrate absolute destitution." Lee v.
McDonald's Corp., 231 F.3d 456, 459 (8th Cir. 2000).
Gennalic's Application to Proceed In Fonna Pauperis leaves much to be desired.
Gennalic has made a blanket statement that he has the ability to pay one filing fee, but that his
net worth does not pennit paying filing fees throughout the United States in his effort to have his
name printed on general election ballots as a candidate for President of the United States.
Although the federal courthouse door should not be closed to any person simply because they
are impoverished, the filing fee should be paid by those who have the capability to do so and
desire to proceed with a civil filing in federal court. To assess whether Gennalic is in fact
indigent, this Court will require Gennalic to complete the Application to Proceed in District
Court Without Paying Fees or Costs (long fonn) that is attached to this Order. Gennalic shall
have until November 1, 2012, to complete the fonn. Ifhe does not complete and return the fonn
by that date, his case will be dismissed without prejudice to refiling.
II. Injunction request

Gennalic is seeking to enjoin printing of South Dakota ballots for the general election
on November 6,2012. Gennalic specifically seeks an injunction to stop the printing ofballots

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so that his name can be included as a candidate for President of the United States. Because the
time is so short before the general election, this Court will proceed with a ruling on Germalic's
requested injunction.
Rule 65 of the Federal Rules of Civil Procedure concerns injunctions and restraining
orders. The determination of whether a court should issue a preliminary injunction "involves
consideration of(1) the threat ofirreparable harm to the movant; (2) the state ofbalance between
this harm and the injury that granting the injunction will inflict on other parties []; (3) the
probability that movant will succeed on the merits; and (4) the public interest." Dataphase Sys.,
Inc. v. C.L. Sys., Inc., 640 F.2d 109,113 (8th Cir. 1981).
The first Dataphase factor is the threat of irreparable harm to the movant, in this case
James Germalic. If this Court does not enter an injunction, Germalic will not be listed as a
candidate for President of the United States on the general election ballot in South Dakota in
2012. While this is contrary to Germalic's wishes, and in some sense harmful to him, Germalic
appears not to have even the scantest scintilla of support within the state of South Dakota for the
position ofPresident ofthe United States. As Germalic's Complaint makes clear, he has no one
who petitioned for him to be on the ballot in South Dakota and has not even attempted to submit
a nominating petition by the deadline of "the first Tuesday in August" before the election. Doc.
1; SDCL § 12-7-7.
The state of the balance between the harm to Germalic and the injury that granting the
injunction would inflict on others is the second factor. The harm to Germalic is slight. The
disruption to the state of South Dakota and the citizens of South Dakota from enjoining printing
of ballots is immense. The election is fewer than three weeks away. Absentee voting already

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is underway. Enjoining the printing of further ballots, or at this late date having the ballots
contain Germalic's name upon them, would risk great chaos and disruption ofthe voting process.
Doing so would subvert the statutes that the South Dakota Legislature has passed for orderly
petitioning to be on a ballot and orderly conduct of elections.
The third factor in considering whether a preliminary injunction should issue is the
probability that Germalic would succeed on the merits.

Germalic has two seemingly

insurmountable obstacles to succeeding on the merits ofhis case. First, Germalic appears to lack
standing. For a dispute to be resolved through the judicial process in federal court, a plaintiff
must have standing. Lujan v. Defenders ofWildlife, 504 U.S. 555, 560 (1992). As concerns a
challenge to being on an election ballot, "if a plaintiff is required to meet a precondition or
follow a certain procedure to engage in an activity or enjoy a benefit and fails to attempt to do
so, that plaintiff lacks standing to sue because he or she should have at least taken steps to
attempt to satisfy the precondition." Constitution Party of S.D. v. Nelson, 730 F. Supp. 2d 992,
998-99 (D.S.D. 2010), affd in part 639 F.3d 417 (8th Cir. 2011) (quoting Pucket v. Hot Springs
Sch. Dist., 526 F.3d 1151, 1161 (8th CiT. 2008». In Constitution Party, this Court held in part
that a candidate who wanted to be listed as governor on the South Dakota ballot lacked standing
because she "did not submit a petition with any signatures for certification, thus the Secretary of
State never denied such a petition." Id. at 999. On appeal, the United States Court of Appeals
for the Eighth Circuit affirmed the finding that there was a lack of standing. Constitution Party
v. Nelson, 639 F.3d 417, 421 (8th Cir. 2011) (concluding that none ofthe plaintiffs satisfied their
burden to show standing).

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Second, even if Gennalic could satisfy the standing requirement, his challenge to the
signature requirement, the filing deadline, and the residency requirement in the South Dakota
statutes likely would not succeed on the merits. This Court in Constitution Party directly
addressed the merits of the challenge to the residency requirement for a petition circulator,
finding that requirement did not violate the United States Constitution. 730 F. Supp. 2d at 1008­
09. The requirements in SDCL § 12-7-7 that any person who wishes to be on the ballot in South
Dakota for the position of President file a nominating petition with the Secretary of State by the
"first Tuesday in August" with signatures that are not less than "one percent of the total
combined vote cast for governor at the last certified gubernatorial election within the state" do
not appear to be unconstitutional. See id. at 1003-05 (analyzing similar requirements as it relates
to gubernatorial election). Therefore, Gennalic has little chance of success on the merits.
The fourth and final factor that this Court is to consider in detennining whether to issue
a preliminary injunction is the public interest. The public interest here is for an orderly general
election in South Dakota where ample ballots are available to qualified voters. The public
interest disfavors disruption of the printing ofballots by the Secretary of State at this late point
within three weeks of the date of the general election. Although the public interest includes
having good candidate choices on the ballot, there appears to be essentially no support in the
State of South Dakota for Germalic to become President of the United States. Gennalic
submitted no nominating petition and apparently had no one in South Dakota to circulate a
nominating petition for him. As the Supreme Court ofthe United States has recognized, there
is an "important state interest in requiring some preliminary showing of a significant modicum
ofsupport before printing the name ofa political organization's candidate on the ballot" as a way

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of "avoiding confusion, deception, and even frustration ofthe democratic process at the general
election." Jenness v. Fortson, 403 U.S. 431,442 (1971). Therefore, the public interest factor
cuts in favor ofpreserving an orderly general election, especially in light ofthe fact that Germa1ic
has made no attempt to show that he has any modicum of support in South Dakota.

III. Conclusion
For the reasons explained above, it is hereby
ORDERED that Plaintiff James Germalic complete the Application to Proceed in District
Court Without Prepaying Fees or Costs and return that form to the Clerk of Court by November
1,2012, or alternatively pay the filing fee of$3 50.00, or his Complaint will be dismissed without
prejudice to refiling. It is further
ORDERED that the requested preliminary injunction to stop ballots from being printed
in South Dakota for the November 6,2012 general election is denied. It is finally
ORDERED that the Clerk ofCourt send a copy ofthis Order forthwith to James Germalic
and to Defendant Jason Gant, Secretary of State of South Dakota.
Dated October ~~012.
BY THE COURT:

ROBERTO A. LANG
UNITED STATES DISTRICT JUDGE

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