De LA Fuente et al v. Merrill (Joint Assign)BRIEF/MEMORANDUM in Opposition re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIMM.D. Ala.November 7, 2016IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION ROQUE “ROCKY” DE LA FUENTE; : ADANYS CLERCH, : : Plaintiffs, : : Civil Action No. v. : 2:16-cv-00755-WKW-GMB : JOHN H. MERRILL, Secretary of State for : The State of Alabama : : Defendant : PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS ARGUMENT I. Standard of Review Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . .claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). In Twombly, the Supreme Court explained that “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) citing Twombly 550 U.S. at 555. “The pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation. Id. “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.” Id. “A claim has factual Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 1 of 14 2 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Eleventh Circuit, in addressing the pleading standard under Twombly, has stated that “[t]his rule does not ‘impose a probability requirement at the pleading stage.” Rivell v. Private Health Care Sys., Inc., 520 F.3d 1308 (11th Cir. 2008) (citations omitted). Indeed, the Supreme Court does “not require a heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face” and enough facts to “nudge[] [plaintiffs’] claims across the line from conceivable to plausible.” Twombly 550 U.S. at 570., Ashcroft, 556 U.S. at 679 (“a complaint that states a plausible claim to relief survives a motion to dismiss”). The pleading standard “simply call[s] for enough facts to raise a reasonable expectation that discovery will reveal evidence of [unlawful actions].” Twombly 550 U.S. at 556. Furthermore, a motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it cannot be used as a conduit to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses. See 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990). The Eleventh Circuit, applying the balancing test to constitutional challenges of state election laws announced in Anderson v. Celebrezze, 460 U.S. 780 (1983), reversed and remanded dismissal of a complaint under Fed.R.Civ.P. 12(b)(6) where the district court accepted bare assertions in the motion to dismiss that the challenged election law advanced various state interests to quell various asserted evils. Bergland v. Harris, 767 F.2d 1551, 1554 (1985). Accordingly, a motion to dismiss cannot be employed by defendant to resolve factual issues required to be proven by defendant, after discovery, that this Court must then balance against the impairment of plaintiffs’ rights caused by the challenged law. As a result of the unique and complex current election cycle - rich in new factual experiences by local and state political parties Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 2 of 14 3 and election officials not available to prior courts considering the application of “sore loser” laws to presidential candidates - plaintiffs will be able to prove that none of the alleged evils enumerated by defendant in support of the challenged law and defendant’s motion to dismiss actually exist and that the challenged law does not advance any weighty state interest in the context of a presidential election. Courts have generally recognized that the granting of a motion to dismiss is “disfavored and rare.” Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir 1981). And in the context of a First Amendment challenge to a state election law where the United States Supreme Court has imposed a fact intensive balancing test, and where the defendant bears the burden to prove that the challenged state election law advances an actual state interest remediating an actual evil greater than the impairment caused to plaintiff’s constitutional rights, it is virtually impossible unless the complaint is frivolous or incompetently drafted. For all the reasons set forth below, plaintiffs’ amended complaint far exceeds the pleading standards of Rule 8 of the federal rules, and defendant’s instant motion to dismiss under Fed.R.Civ.P. 12(b)(6) must be denied. II. Plaintiff’s Amended Complaint Exceeds the Requirements of Rule 8 of the Federal Rules of Civil Procedure A. Plaintiffs’ Amended Complaint Comprehensively Incorporates all Possible and Available Facts in Support of Their Constitutional Claims. Plaintiffs’ amended complaint far exceeds the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. In fact, because plaintiffs’ amended complaint incorporates all relevant and specific facts directly tethered to plaintiffs’ underlying claim, no other allegations can be reasonably demanded of plaintiffs even if the complaint had been filed in a more strict “fact pleading” jurisdiction. In fact, defendant cites no specific deficiency in plaintiffs’ pleadings in Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 3 of 14 4 support of his motion to dismiss for failure to state a claim upon which relief may be granted. Defendant merely contests the validity of the underlying claims, and fails to contest pleadings as required on a 12(b)(6) motion to dismiss. Plaintiffs have pled that plaintiff De La Fuente is constitutionally qualified to “stand as a candidate for the office of President of the United States” and timely met all procedural requirements to be placed on Alabama’s 2016 general election ballot. [Pl. Amend. Compl, ¶ 15]. Plaintiffs have pled that plaintiff De La Fuente was a candidate in the 2016 Alabama Democratic Party primary election and that plaintiffs accomplished every necessary step to be placed on Alabama’s general election ballot and was initially publicly certified to appear on the Alabama general election ballot on August 25, 2016 - all in spite of the fact that defendant was fully aware that plaintiff De La Fuente had previously appeared on the 2016 Democratic presidential primary election ballot. [Pl. Amend. Compl, ¶¶ 6-9]. Plaintiffs have also pled that pursuant to §17-9-3 of the Code of Alabama (1975) prohibiting independent candidates from appearing on Alabama’s general election ballot “for any office when that independent candidate ran for such office as a candidate for a political party in a primary election during that election year,” on August 29, 2016, defendant reversed his earlier public determination that plaintiff De La Fuente qualified to appear on the state’s 2016 general election ballot. [Pl. Amend. Compl, ¶10]. Plaintiffs pled the specific statutes enforced by defendant in making the determination that Alabama’s “sore loser” law applied to presidential candidates. Plaintiffs also alleged that despite Alabama’s lack of authority to expand the qualifications set forth in the Qualification Clause of Article II, Section 1, Clause 5 of the United States Constitution, the sole reason that plaintiff De La Fuente is not on the Alabama general election ballot is defendant’s enforcement of the challenged statute. [Pl. Amend. Compl, ¶¶ 15-19]. Plaintiffs have further pled that defendant’s Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 4 of 14 5 decision to apply the challenged statute to plaintiff De La Fuente is contrary to Alabama’s prior refusal to apply it to presidential candidates, and the long-standing refusal of any state to apply local “sore loser” laws to federal presidential candidates. [Pl. Amend. Compl, ¶¶ 20-23]. Plaintiffs have also pled that the process of electing the president, first through the election of delegates to the national nominating conventions and then, through presidential electors to the Electoral College (which is the actual body vested with casting the only direct ballots electing the president of the United States), is sufficiently unique that the challenged statutory provisions do not apply. Plaintiff De La Fuente was never the actual candidate (and therefore never the actual loser) seeking election in Alabama but was merely the placeholder for the election of other candidates (delegates in the primary and presidential electors in the general election). [Pl. Amend. Compl, ¶ 24]. Plaintiffs have also specifically alleged facts detailing the desire, time and energy expended by plaintiff Clerch in seeking to cast a ballot for plaintiff De La Fuente. [Pl. Amend. Compl, ¶¶ 25-27]. Plaintiffs then specifically alleged: defendant’s conduct acting under color of state law is the direct and proximate cause of harm to plaintiffs’ constitutional rights; that defendant’s enforcement of the challenged statute advances no compelling governmental interest, and the statute is unconstitutional as applied to plaintiffs for which plaintiffs have no adequate remedy at law. [Pl. Amend. Compl, ¶¶ 28-33]. Finally, plaintiffs have pled that Section 17-9-3(b) of the Code of Alabama (1975) and related statutory provisions, as applied to plaintiffs, violated their rights under the Qualifications Clause of Article II, Section 1 and the First and Fourteenth Amendments to the United States Constitution. Plaintiffs have requested in their complaint the full battery of prospective equitable and statutory relief that this Court is empowered to grant. [Pl. Amend. Compl, ¶¶ 34-37; “Claim for Relief” at pp. 13-14]. Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 5 of 14 6 Accordingly, plaintiffs’ amended complaint contains every allegation necessary to establish their right to the relief sought from the Court. Plaintiffs’ amended complaint exceeds the allegations made in federal complaints filed in other district courts challenging cognate “sore- loser” provisions and which were not dismissed under Fed.R.Civ.P. 12(b)(6). B. Defendant is Not Entitled to Conduct a Mini-Trial on the Facts and Underlying Merit of Plaintiffs’ Constitutional Claims on a 12(b)(6) Motion to Dismiss. Defendant has chosen to file a motion to dismiss under Rule 12(b)(6) which is limited to testing the quality of plaintiffs’ pleadings. Instead of alleging that plaintiffs’ amended complaint does not state a cognizable constitutional claim, defendant seeks to test the underlying merits of plaintiffs’ constitutional claims. In fact, the entire body of defendant’s argument falls under the heading: “Plaintiffs’ Claims Fail on the Merits.” [Def. Motion to Dismiss at p. 2-12]. Defendant is not entitled to conduct a mini-trial on the facts or on the underlying validity of plaintiffs’ claims before plaintiffs have has had an opportunity, through discovery, to develop evidence to both support plaintiffs’ claims and rebut facts alleged in the motion to dismiss. This is especially true where the Court must accept all well-pled facts as true and in the light most favorable to plaintiffs, and where defendant bears the burden of proof under the balancing test established by the United States Supreme Court in Anderson. A motion to dismiss is particularly inappropriate in 2016, because local and state political party and election officials will be able to testify, with specificity, as to the actual (rather than hypothetical or imagined) impact of a presidential candidate running in a party primary election and thereafter being placed on their state’s general election ballot as an independent candidate. Plaintiff De La Fuente is on the 2016 general election ballot for President of the United States in 22 states, and in many of those he was also a candidate on the state’s 2016 Democratic primary Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 6 of 14 7 election ballot. Accordingly, plaintiffs will be able to adduce evidence that none of the asserted interests advanced by defendant in support of his motion to dismiss actually exists. Plaintiff will be able to establish through direct testimony of major political party officials, voters and election officials from states which permit presidential candidates to appear on both their primary and general election ballots that none of the evils that defendant asserts will impair Alabama’s electoral system should plaintiffs prevail in this instant action.. In order to meet its burden of proof (at trial), defendant “must do something more than merely posit the existence of the disease sought to be cured.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994) (citing Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (1985)). In other words, defendant must factually prove the existence of the evil and that the challenged statute is tailored to remedy that evil. Defendant must both prove the existence of, and that the challenged statute is necessary to: prevent, factionalism, intra-party feuding, and “voter confusion”, the interests Secretary Merrill asserts in his motion to dismiss. Secretary Merrill has offered no evidence that the asserted evils exist or that the challenged statutes act to prevent the list of evils that will allegedly befall Alabama’s electoral system if it permitted, as most states do, presidential candidates to appear on both primary and general election ballots. Unless defendant can prove the existence of the asserted evils sought to be prevented by the challenged statute and that the challenged provisions act to prevent the asserted evils, this court cannot consider them in the analysis required by Anderson v. Celebrezze. This analysis, which is designed to determine whether the state’s interest outweigh the impairment to plaintiffs’ constitutional rights, simply cannot be properly adjudicated on a 12(b)(6) motion to dismiss before discovery is conducted. Defendant oddly asserts that the “dangers the State is guarding against are amply demonstrated by the Presidential election this year” without providing any evidence from this Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 7 of 14 8 year’s election, other than Trump’s threat to leave the Republican Party and mount an independent campaign, that the alleged dangers actually do exist. [Def. Motion to Dismiss at p. 8]. Despite that Plaintiff De La Fuente is on the general election ballot of 22 states, defendant fails to cite a single instance whereby Mr. De La Fuente’s candidacy has caused any factionalism, intra-party feuding, or “voter confusion” in any of the states in which plaintiff De La Fuente also was a candidate in the Democratic primary. Further, defendant fails to cite a single instance of factionalism, intra-party feuding, and/or “voter confusion” caused by John Anderson’s independent candidacy for President of the United States in 1980. John Anderson received a significant number of primary election votes from 24 different states (Iowa 4%, New Hampshire 10%, Massachusetts 31%, Vermont 29%, Florida 9%, Georgia 8%, Illinois 36%, Connecticut 22%, Kansas 18%, Wisconsin 27%, Pennsylvania 2%, Washington D.C. 27%, Indiana 10%, North Carolina 5%, Tennessee 4%, Maryland 10%, Nebraska 6%, Michigan 8%, Oregon 10%, Idaho 10%, Kentucky 5%, Nevada 10%, California 14% and New Mexico 12%) and was on 49 state general election ballots. Not a single instance of voter confusion was documented in 1980, not a single instance of inter-party feuding within the Republican Party was documented in 1980, and there is no evidence that any faction within the Republican Party developed or broke-away from the Republican Party as a result of John Anderson’s candidacy in both the G.O.P primary and general election ballots in 1980. Defendant also fails to offer any evidence, or even allege, that its prior refusal to apply the challenged statute to Lyndon LaRouche in 1992 triggered any ill effect to Alabama’s election system. Accordingly, defendant’s list of proposed evils sought to be avoided by the challenged statute is baseless. The reality is that the dangers of factionalism, intra-party feuding, and/or “voter confusion” are much more likely to occur when local candidates, intimately and personally known to local Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 8 of 14 9 voters and political leaders and subject to multiple layers of inter-personal loyalties, break away from the local party machine. This is true mostly because national candidates do not have a personal relationship with local and state party voters, and the national scope of presidential elections, decided by 50 states rather than one, is a sufficient buffer against the asserted evils advanced by defendant in his motion to dismiss. A case analogous to the present one with respect to motions to dismiss is Bergland v. Harris, 767 F.2d 1551 (1985). There, the Eleventh Circuit revered and remanded the district court’s dismissal, for failure to state a claim, of plaintiff’s complaint alleging that Georgia’s July deadline to file nominating petitions was unconstitutionally early. Applying the balancing test of Anderson v. Celebrezze, 460 U.S. 780 (1983), the 11th Circuit explained that defendants’ asserted justification (1) for the July filing deadline - to “allow adequate time to process and verify signatures on the nominating petitions and to provide rejected applicants an opportunity to obtain judicial review”, and (2) for the requirement to print ballots in “mid-September”- to “send ballots to the counties in time for them to print their ballots and make absentee ballots available 21 days prior to the November general election”, was inadequate without proof of the justification. Bergland, 767 F.2d at 1554. Furthermore, the decisions in Nat’l Comm. of the U.S. Taxpayers Party v. Garza, 924 F.Supp. 71 (W.D. Tex. 1996) and Libertarian Party of Michigan v. Johnson, 905 F.Supp.2d 751 (E.D. Mich. 2012) neither are binding on this court nor do they absolve defendant from proving that the challenged statute in the instant action is necessary to avoid the enumerated evils defendant cites as a justification for Alabama’s so-called “sore loser” law (or more properly denominated as a “political monopoly” law). [Def. Motion to Dismiss at pp. 3-5]. Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 9 of 14 10 Accordingly, plaintiffs’ amended complaint satisfies Rule 8 of the Federal Rules of Civil Procedure, and defendant’s effort to transform a motion to dismiss under Rule 12(b)(6) into a mini- trial on the facts and the merits is not permitted by the Eleventh Circuit. This is especially true with respect to plaintiffs’ First Amendment challenge to a state election law governed by the Anderson balancing test imposing specific burdens of proof on defendant. Before that test may be meaningfully applied, the Court should permit plaintiffs to do discovery both to support their claims and to rebut the validity of the State’s claimed interest in the challenged statute. III. Plaintiffs’ Constitutional Claims Are Valid A. Plaintiffs’ First Amendment Claim is Valid As noted above, Anderson requires that in cases where an election law impairing rights guaranteed by the First Amendment evades strict scrutiny, a balancing test must be applied to determine whether the impairment to plaintiffs’ constitutional rights is outweighed by legitimate and proven state interests. Anderson, 460 U.S. 780 (1983). In the absence of proof in support of an important state interest sufficient to justify the level of impairment to plaintiffs’ rights, the challenged law must fail under the First Amendment. Plaintiff will adduce evidence directly rebutting defendant’s unproven assertions that allowing presidential candidates to appear on both the primary and general election ballot will trigger factionalism, intra-party feuding, and “voter confusion” or any other potential electoral “chaos” within Alabama. Also noted above, adjudication of plaintiffs’ First Amendment claim cannot be accomplished on a motion to dismiss, but rather must await discovery and trial, or at least summary judgment motions. Furthermore, the Eleventh Circuit has indicated that state election laws which might properly be applied to state and local candidates may not be applicable to presidential candidates. Bergland, 767 F.2d at 1554. Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 10 of 14 11 The Eleventh Circuit, of course, is taking its cue, as it and this court must, from the United States Supreme Court’s decision in Anderson explaining that: [I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus, in a Presidential election, a State’s enforcement of more stringent ballot access requirements…has an impact beyond its own borders. Similarly, the State has a less important interest in regulating Presidential elections than state-wide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries….The pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State. Anderson at 794-95. It is difficult to square a single state’s minimal interest in imposing its restrictions on an election decided by the entire nation, and the Supreme Court’s direct admonition against application of a state’s more restrictive election laws to presidential candidates, with defendant’s defense of a law flatly prohibiting certain presidential candidates, permitted by the majority of states, from appearing on Alabama’s general election ballot and potentially depriving the United States of a future President. In fact, defendant barely addresses the Supreme Court’s discussion in Anderson of the proper application of state election law to presidential candidates and flatly fails to even cite the Eleventh Circuit decision in Bergland. B. Qualifications Clause Prohibits Application of Challenged Statute to Presidential Candidates. The United States Supreme Court has clearly established that: (1) neither Congress nor the States have any power to impose additional qualification to hold federal office beyond those enumerated under the Qualifications Clauses of the United States Constitution; and (2) imposing a ban on a candidate based on past electoral conduct constitutes a prohibited “qualification” which Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 11 of 14 12 is personal to the candidate under the Qualifications Clauses of the United States Constitution. It is not a mere ballot access requirement of the kind relating to the necessary mechanics that an otherwise qualified individual must adhere to in order to place his/her name on a state’s ballot.1 See U.S. Term Limits v. Thornton, 514 U.S. 779 (1995); Powell v. McCormack, 395 U.S. 486 (1969). The United States Supreme Court has clearly and conclusively established that states may not add to the various qualifications imposed on federal offices enumerated under the Qualification Clauses of the United States Constitution. In U.S. Term Limits, the Supreme Court denominated a state bar on candidates who had won a certain number of past elections as an impermissible state imposed qualification in violation of the federal constitution. The Supreme Court specifically held that state imposed term limits were not mere ballot access requirements, but rather were unlawful additional qualifications to seek federal office. In the instant case, the challenged Alabama provision is the inverse of a term-limit and constitutes an impermissible additional qualification for federal office rather than a routine ballot access measure subject to analysis under Anderson as part of a First Amendment analysis. Instead of denying ballot access to a candidate based on his prior electoral success, the challenged Alabama 1 A routine “ballot access” requirement relates to the constitutionally permissible restrictions placed on access to state ballots unless and until a candidate or political party demonstrates a “modicum of support” necessary to require a state to place the candidate’s name on a primary and/or general election ballot. See, American Party of Texas v. White, 415 U.S. 767, 782-84 (1974). “Ballot access” requirements are those rules that a prospective candidate must follow to demonstrate that he/she or the candidate’s political party has demonstrated the requisite “modicum of support” to compel the state to place the name of the candidate on the state’s ballots. The United States Supreme Court has never expanded the definition of a “ballot access” restrictions beyond the context of the “modicum of support” doctrine. Alabama’s “sore loser” law is wholly untethered to the doctrine of “modicum of support” and is therefore not a run-of-the-mill ballot access restriction safe from the presidential Qualification Clause analysis compelled as a result of the decision in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995). Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 12 of 14 13 provision denies ballot access to a candidate based on his prior electoral defeat. Under the challenged statute in this action, plaintiff De La Fuente was immediately barred from candidacy in Alabama for the Office of President of the United States the minute he entered and lost the Alabama Democratic Primary election. This is no different than the manner in which a state term limit law immediately bars one from being a candidate for the federal office in which he/she had won a certain number of past elections. There is no logical difference from the stand-point of constitutional analysis under the Qualifications Clause of Article II, Section 1 of the United States Constitution. Accordingly, the challenged statute violates the Qualification Clause of Article II, Section 1 of the United States Constitution and is unconstitutional. CONCLUSION For all the foregoing reasons, defendant’s pending motion to dismiss plaintiffs’ amended complaint must be denied. Submitted this the 7th day of November, 2016. s/ Robert D. Segall Robert D. Segall (ASB-7354-e68r) Copeland Franco Screws & Gill, P.A. Post Office Box 347 Montgomery AL 36101-0347 T: 334/834-1180 F: 334/834-3172 Email: segall@copelandfranco.com Counsel for Plaintiffs, Roque “Rocky” De La Fuente and Adanys Clerch Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 13 of 14 14 CERTIFICATE OF SERVICE I hereby certify that on the 7th day of November, 2016, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Misty S. Fairbanks Messick, Esq. Assistant Attorney General State of Alabama Office of Attorney General 501 Washington Avenue Montgomery, Alabama 36130-0152 334.242.7300 Office 334.353.8440 Fax mmessick@ago.state.al.us Winfield J. Sinclair, Esq. Assistant Attorney General State of Alabama Office of Attorney General 501 Washington Avenue Montgomery, Alabama 36130-0152 334.242.7300 Office 334.353.8440 Fax wsinclair@ago.state.al.us s/ Robert D. Segall Of Counsel Case 2:16-cv-00755-WKW-GMB Document 32 Filed 11/07/16 Page 14 of 14
