Walker v. Krebs et al

Filing 31

MEMORANDUM OPINION AND ORDER RE 18 Motion to Dismiss. Signed by U.S. District Judge Lawrence L. Piersol on 3/29/19. Mailed copy to Plaintiff 3/29/19. (DJP)

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
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CLAYTON WALKER,

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CIV 18-4015

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Plaintiff,

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-vs-

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STEVE BARNETT,Secretary of State,
in his official capacity,

MEMORANDUM OPINION AND
ORDER ON MOTION TO DISMISS

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Defendant.

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Plaintiff, Clayton Walker("Walker),sued Secretary ofState Shantel ICrebs,Attorney General
Marty Jackley and Kea Wame ofthe Secretary of State's office,for alleged violations ofthe Voting

Rights Act of 1965 and the Equal Protection Clause.' Defendants move the Court to dismiss the
complaint,pursuant to Federal Rule ofCivil Procedure 12(b)(1)and,alternatively,for failure to state
a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, the
Court grants Defendants' motion to dismiss in part and denies it in part.

FACTUAL BACKGROUND

Walker's complaint was filed pro se, and the Court construes it to have three main claims:

(I)SDCL § 12-7-1.2 violates the Equal Protection Clause because it requires independent candidates
for governor to select a running mate much earlier than party candidates; (2) the number of
signatures required for an independent candidate to be placed on the ballot under SDCL § 12-7-1 is

'The caption is amended to reflect that the Secretary of State Steve Bamett, in his official
capacity, is the only remaining defendant. On January 11, 2019,the Court granted Defendants'
motion to substitute parties. Doc. 26. Jason Ravnsborg replaced Marty Jackley in his official
capacity as Attomey General. Id. Steve Bamett replaced Shantel Krebs in her official capacity as
Secretary of State. Id.

unconstitutional; and(3)the Secretary of State and Board ofElections unfairly burden independent
candidates. Walker alleges that he was running for both governor and the United States House of

Representatives. Walker claims he was unable to access the nominating petition because the petition
online was in a read-only PDF format. Walker further alleges that Shantel Krebs provided advice to
the Election Board as Secretary of State while also running for the United States House of
Representatives.

LEGAL STANDARD

The motion to dismiss before the court is brought pursuant to Federal Rule ofCivil Procedure

12(b)(1), for lack ofsubject matterjurisdiction, and Rule 12(b)(6),for failure to state a claim upon
which reliefcan be granted. A party challenging subject matterjurisdiction under Rule 12(b)(1)must
attack either the facial or factual basis for jurisdiction. See Osborn v. United States, 918 F.2d 724,

729 n. 6 (8th Cir. 1990). A facial challenge requires the court to examine the complaint and
determine if the plaintiff has sufficiently alleged a basis for subject matter jurisdiction, and the
nonmoving party receives the same protections as it would if defending a motion to dismiss under

Rule 12(b)(6). Id. A factual attack challenges the factual basis for subject matter jurisdiction, and
the court considers matters outside the pleadings without giving the nonmoving party the benefit of

the Rule 12(b)(6) safeguards. Id. The party seeking to establish jurisdiction has the burden ofproof

thatjurisdiction exists.Id. at 730(quoting Mortensen v. FirstFed. Sav. &Loan Ass'n,549 F.2d 884,
891 (3d Cir. 1977)).

When reviewing a motion to dismiss under Rule 12(b)(6),the court accepts as true all factual

allegations in the complaint and draws all reasonable inferences in favor of the nonmoving party.
Freitas v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438 (8th Cir. 2013)(quoting Richter v.
Advance Auto Parts, Inc.,686 F.3d 847,850(8th Cir. 2012)). The court may consider the complaint,

some materials that are part ofthe public record, and materials embraced by the complaint. Porous

Media Corp. v. Pall Corp., 186 F.3d 1077,1079(8th Cir. 1999)."To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to reliefthat is

plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662,678(2009)(quoting Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads
factual content that allows the eourt to draw the reasonable inference that the defendant is liable for

the misconduct alleged." Id.

In evaluating the complaint,the court must construe plaintiffs pro se complaint liberally.See
Stone V. Harry,364 F.3d 912,914(8th Cir. 2004). This means "that if the essence ofan allegation
is discernible, even though it is not pleaded with legal nicety,then the district court should construe

the complaint in a way that permits the layperson's claim to be considered within the proper legal
framework."Jacfo'on v. Nixon,lAl F.3d 537,544(8th Cir.2014)
(internal quotation marks omitted).
The complaint "still must allege sufficient facts to support the claims advanced." Stone, 364 F.3d
at 914.

DISCUSSION

I. Subject Matter Jurisdiction

Before this Court can consider the merits ofthe complaint. Walker must demonstrate Article

111 standing, which requires a justiciable case or controversy. See Whitmore v. Arkansas, 495 U.S.
149, 154-55 (1990). "The Constitution requires a party to satisfy three elements before it has
standing to bring suit in federal court: injury in fact, causation, and redressability." Campbell v.
Minneapolis Pub. Hons. Auth., 168 F.3d 1069,1073(8th Cir. 1999)(citing Steel Co. v. Citizensfor
a Better Env't, 523 U.S. 83,102-04(1998)). An injury in fact must be concrete and particularized,
and actual or imminent rather than conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504
U.S. 555,560 (1992).

Defendants argue that this eourt does not have subject matter jurisdiction because Walker
lacks standing. Doc. 19 at 3. Defendants contend that Walker cannot demonstrate that he has
sustained an injury-in-fact because he cannot show that he was a candidate at the time he filed this
lawsuit. Id. at 4-5. In response. Walker asserts that "the law doesn't require that you have to be a

candidate to bring up an issue of an unconstitutional law in court." Doc.9 at 13.

The Eighth Circuit recognizes a voter's right to challenge ballot access laws. In McLain v.
Meier, 851 F.2d 1045 (8th Cir. 1988), the Court found that McClain, who had unsuccessfully

campaigned in North Dakota for the offices of President of the United States and United States
Senator from North Dakota as an independent candidate, in his capacity as a voter, had standing to

challenge the ballot access laws because they "would restrict his ability to vote for the candidate of
his choice or dilute the effect of his vote if his chosen candidate were not fairly presented to the

voting public." McLain,851 F.2d at 1048."Although the primary impact ofrestrictive ballot access
laws is on the candidates,'the rights of voters and the rights of candidates do not lend themselves

to neat separation;laws that affect candidates always have at least some theoretical,correlative effect
on voters." Id. (quoting Bullock v. Carter, 405 U.S. 134, 143 (1972)). Ultimately, the court in
McLain concluded that plaintiff had standing to challenge ballot access laws because he suffered an

injury as a voter that was fairly traceable to North Dakota's ballot access laws and his injury would
be redressed if those laws were declared unconstitutional. McLain, 851 F.2d atl051-52.

Walker repeatedly refers to himself as an independent voter, not just a candidate. See Doc.
21 at 8-10. Walker has alleged an injury-in-fact, not merely a generalized grievance. SDCL

§ 12-7-1.2 and signature requirements impact independent candidates for governor and lieutenant
governor, and Walker claims to be an independent voter. Because SDCL § 12-7-1.2 may
unconstitutionally restrict Walker's ability to vote for the candidate of his choice. Walker has
standing to challenge the law.

II. Failure to State a Claim

A Rule 12(b)(6) motion "only tests whether the claim has been adequately stated in the

complaint." Charles Alan Wright and Arthur R. Miller,5B Federal Practice and Procedure § 1356

(3d ed.). A complaint is subject to dismissal only when it fails to meet the liberal pleading standard
under Rule 8(a), and a motion to dismiss is not a procedure for resolving factual or substantive
questions about the merits of a case. Id.

A. Signature Requirements in SDCL § 12-7-1

Walker asserts that the signature requirement for independent candidates in SDCL § 12-7-1

is unconstitutional.^ Defendants argue that this claim is barred by the doctrine of res judicata. The
Court agrees.

Under the doctrine ofres judicata, also known as claim preclusion, a claim is precluded by
a prior lawsuit when:"(1)the first suit resulted in a final judgment on the merits;(2)the first suit
was based on proper jurisdiction;(3) both suits involve the same parties (or those in privity with

them); and (4) both suits are based upon the same claims or causes of action." Costner v. URS
Consultants, Inc., 153 F.3d 667,673(8th Cir. 1998).

In Walker v. Gant, CIV 14-5062, Walker challenged the signature requirement and petition
deadline for independent candidates in SDCL § 12-7-1. At the hearing on October 31, 2014, this
Court described the issues:

The two issues that Mr. Walker has raised are that 12-7-1 requiring

Independent candidates to obtain signatures of one-percent ofthe electors who cast
votes for Governor in the last election is unconstitutional,because it burdens the right

ofvoters and candidates by denying a meaningful opportunity for Independent or, as
1 call them, non-Party candidates to get on the ballot.

^ The statute provides, in relevant part:
Any candidate for nonjudicial public office, except as provided in § 12-7-7, who
is not nominated by a primary election may be nominated by filing a certificate of
nomination with the secretary of state or county auditor as prescribed by § 12-6-4.
... A certificate of nomination shall be executed as provided in chapter 12-6 ....
The certificate of nomination shall be signed by registered voters within the

district or political subdivision in and for which the officers are to be elected. The
number of signatures required may not be less than one percent of the total
combined vote cast for Governor at the last certified gubernatorial election within
the district or political subdivision.
SDCL§ 12-7-1.

The second issue raised by Mr. Walker is, does the South Dakota Statute
12-7-1, setting a deadline for signature petitions of Independent Party candidates,
violate the constitutional rights of candidates and voters by denying them a
meaningful opportunity to collect signatures and get on the ballot.
CrV 14-5062, Doc. 36 at 36-37. After considering the evidence, hearing argument and analyzing

the pertinent case law,this Court upheld the constitutionality ofSDCL § 12-7-1,finding that South
Dakota's one-percent signature requirement and the deadline for signature petitions are reasonable,
nondiscriminatory regulations that do not impose a severe burden on constitutional rights.Id. at 3844.

The Eighth Circuit affirmed, finding that South Dakota's nominating petition deadline and

signature requirement did not severely burden Walker's associational rights, "were reasonable
restrictions that advanced important state interests," and also satisfied equal protection,"as the state

identified compelling interestsjustifying the differences between the ballot-access requirements for

independent and party candidates." Walker v. Gant, 606 Fed. App'x. 856 (8th Cir. 2015)
(unpublished).

Walker is presenting one ofthe same issues that this Court and the Eighth Circuit previously
resolved in a finaljudgment on the merits. Walker argues that the parties are not the same,but as the

Defendants point out, while the individual holding the office ofthe Secretary of State has changed,
both actions are against the official holding that office. Accordingly, Walker's claim challenging
the signature requirement in SDCL § 12-7-1 must be dismissed based on res judicata.

B. SDCL § 12-7-1.2

Walker asserts that SDCL § 12-7-1.2 is unconstitutional in violation ofthe equal protection

clause because it requires an independent candidate for Govemor to select the Lieutenant Govemor

candidate before the nominating petitions are circulated, while the party candidates for Lieutenant
Governor need not be selected until later.^

Defendants do not deny Walker's allegations or that the statute creates a distinction between
the treatment of independent candidates and party candidates. Rather, they assert the law is
constitutional because the South Dakota Constitution requires the Govemor and Lieutenant Governor

be elected together. See S.D. CONST,art. IV,§ 2("They shall be jointly elected for a term offour

years at a general election held in a nonpresidential election year."). But the fact that the
Constitution requires the Govemor and Lieutenant Governor to be jointly elected does not render
constitutional a deadline by which a candidate for Govemor must pick a running mate.

Walker asserts that independent gubematorial candidates are required to name a rurming mate
much earlier in the electoral process than the Republican and Democrat gubematorial candidates
must, and that this different treatment violates equal protection."To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as tme, to state a claim to relief that is

plausible on its face." Iqbal, 556 U.S. at 678. At this point, on a Rule 12(b)(6) motion to dismiss,
the Court does not decide whose position regarding the constitutionality of SDCL § 12-7-1.2 is
correct. What it does decide is that Walker has set forth sufficient factual allegations so as to make

a plausible claim and,consequently. Defendants' motion to dismiss for failure to state a claim must
be denied as to this allegation.

III. Remaining Claims

Walker's remaining claims in his Complaint contain merely conclusoiy statements stemming
from his dissatisfaction with the Secretary of State's Office. He claims that the Secretary of State

and Board of Election unfairly burden independent candidates; that he was unable to access the

nomination petition on-line; that the Secretary ofState provided advice to the Election Board while
also running for the United States House of Representatives; that gerrymandering creates an unfair

^ This statute was enacted after completion of Walker's previous lawsuit.
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advantage; that Walker asked for but did not receive assistance; and that Walker can prove election
fraud by the Secretary of State's Office and the Attorney General's Office. Even taken as true, the

facts alleged cannot establish any violation ofthe state or federal constitutions.

The Eighth Circuit has held that there is no constitutional basis for a federal court to oversee
the administrative details of a state election "in the absence of aggravating factors such as denying

the right of citizens to vote for reasons of race, or fraudulent interference with a free election by
stuffing ofthe ballot box, or other unlawful conduct which interferes with the individual's right to
vote," or other constitutionally protected right. Pettengill v. Putnam County R-1 Sch. Dist.,

Unionville, Mo.,472 F.2d 121, 122(8th Cir. 1973)(per curiam)(citations omitted). In Pettengill,
residents ofa school district alleged that election irregularities deprived them oftheir right to have
their votes undiluted by illegal votes cast in a school bond election. See id. at 121. The Eighth
Circuit found no constitutional violation and affirmed the district court's dismissal for lack of

jurisdiction. Id. at 122.

None of the remaining allegations in Walker's complaint rise to the level of the

constitutionally impermissible "aggravating factors" identified by the Eighth Circuit in Pettengill.
Concluding otherwise would require the Court to oversee the South Dakota Secretary of State's
Office. Because Walker's remaining allegations fail to articulate a claim against any Defendant upon

which relief may be granted,these claims must be dismissed. This includes Walker's claims against
Shantel Krebs, in her individual capacity, and Marty Jackley, in his individual capacity.

IV. Proper Defendants

Defendants request dismissal ofKea Wame and Attorney General Ravnsborg underjExparte

Young,209 U.S. 123(1909). In general,"a suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against the official's office." Will v. Mich. Dep 't

ofState Police, 491 U.S. 58, 71 (1989). Simply put, lawsuits against state officials are treated as
lawsuits against the State itself. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Many suits
against a State are barred by the State's Eleventh Amendment sovereign immunity. See Will, 491
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U.S. at 67. However, an exception to Eleventh Amendment sovereign immunity exists pursuant to

the Ex parte Young doctrine. Under Ex parte Young,
individuals who, as officers ofthe state, are clothed with some duty in regard to the
enforcement of the laws of the state, and who threaten and are about to commence

proceedings,either ofa civil or criminal nature,to enforce against parties affected an
unconstitutional act,violating the Federal Constitution,may be enjoined by a Federal
court of equity from such action.
209 U.S. at 155-56.

According to the Eighth Circuit, "[t]he Ex parte Young doctrine does not apply when the
defendant official has neither enforced nor threatened to enforce the statute challenged as
unconstitutional." 281 Care Comm. v. Arneson, 766 F.3d 774, 797 (8th Cir. 2014) (quoting

McNeilus Truck& Mfg,Inc. v. Ohio ex rel. Montgomery,226 F.3d 429,438(6th Cir.2000)). "[A]ny

probe into the existence ofa Young exception should gauge(1)the ability ofthe official to enforce
the statute at issue under his statutory or constitutional powers,and(2)the demonstrated willingness
ofthe official to enforce the statute." Id. (quoting Okpalobi v. Foster, 244 F.3d 405,417(5th Cir.

2001)). "Absent a real likelihood that the state official will employ his supervisory powers against

plaintiffs' interests, the Eleventh Amendment bars federal court jurisdiction." Id. (quoting Long v.
Van de Kamp,961 F.2d 151, 152(9th Cir. 1992)(per curiam)).

InMissouriProtection andAdvocacy Servs.,Inc., v. Carnahan,499 F.3d 803(8th Cir.2007),

the Eighth Circuit held that the Missouri Secretary of State was the proper defendant in a voting

rights case even though local election authorities were primarily responsible for carrying out the
alleged unconstitutional activity. In that case, the plaintiffs challenged Missouri's constitutional
provision and implementing statute that denied the right to vote to Missouri residents under a courtordered guardianship due to mental incapacity. See id. at 807. Missouri law gave local county clerks
and other authorities the broad power to register voters and administer elections. The Eighth Circuit
held, however,that the Secretary of State, statutorily described as "the chief state election official,"

and the individual responsible for administering voting laws and overseeing the voter registration
process laws, was the proper defendant. See id.

Under Missouri law,a person can be prosecuted for knowingly attempting to vote when they
are ineligible. See id. at 807. Because the Attorney General could prosecute a person under
guardianship ifthey knowingly attempted to vote,the Eighth Circuit held that the Missouri Attorney
General also was a proper defendant in that case. Id.

The South Dakota Secretary of State is the only proper defendant in the present case where
the sole remaining issue is the constitutionality ofSDCL § 12-7-1.2. South Dakota law provides that

the Secretary of State is "the chief state election official." SDCL § 12-4-33. Thus,the Secretary of
State is the person in charge of administering the election laws within South Dakota, including
SDCL § 12-7-1.2. That authority subjects her to suit under the Exparte Young exception to Eleventh
Amendment sovereign immunity in this case.

In contrast,the Deputy Secretary ofState and the Attorney General are not proper defendants
under the Ex parte Young exception. There is no avenue for Walker to violate SDCL § 12-7-1.2 so
as to trigger an Attorney General investigation or prosecution, and there is no showing that these
defendants have power over administering SDCL § 12-7-1.2. Deputy Secretary Wame and Attorney
General Ravnsborg will be dismissed as defendants.

VL Monetary Damages

Claims for monetary damages against a defendant in his or her official capacity are claims
against the State of South Dakota. See Johnson v. Outboard Marine Corp., 172 F.3d 531,535(8th

Cir. 1999). Damages claims against the State are barred by the Eleventh Amendment, unless South
Dakota consented to suit or Congress abrogated its immunity. See Kentucky v. Graham,473 U.S.
159, 169 (1985) (absent waiver by the State or valid override by Congress, "the Eleventh
Amendment bars a damages action against a State in federal court"). The State ofSouth Dakota has
not waived its Eleventh Amendment immunity for damages actions in federal court and Congress
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has not abrogated South Dakota's Eleventh Amendment immunity under § 1983. Thus, all elaims
for monetary damages against the remaining defendant in his or her official capacity are barred.

Accordingly,IT IS ORDERED:

1. That Defendants' motion to dismiss(doc. 18)is granted to the extent that Shantel
Krebs, in her individual capacity, Marty Jackley, in his individual capacity, Jason
Ravnsborg, in his official capacity, and Kea Wame, in her official capacity, are
dismissed as defendants,and all ofPlaintiffs claims are dismissed with the exception
of Plaintiffs claim that SDCL 12-7-1.2 is unconstitutional.

2. That the Secretary of State Steve Bamett, in his official capacity, is the only
remaining defendant.
3. That the caption in this case is amended as set forth above.

Dated this

^ay of March,2019.
BY THE COURT:

Viawrence L. Piersol
United States District Judge
ATTEST:

MATTHEW W.THELEN,CLERK

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