Little et al v. Vasquez et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.June 22, 2017

THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : LUCINDA LITTLE, et al., : Civil Action No. 2:17-cv-01562-JHS : Plaintiffs, : : v. : : THE HON. EMILIO A. VAZQUEZ, et al., : : Defendants. : : ORDER AND NOW, this _________ day of __________________, 2017, upon consideration of Defendant Emilio A. Vazquez’s Motion to Dismiss the Amended Complaint and any response thereto, it is HEREBY ORDERED that the Motion is GRANTED. Plaintiffs’ claims are DISMISSED WITH PREJUDICE. BY THE COURT: ___________________________________ J. Case 2:17-cv-01562-JHS Document 15 Filed 06/22/17 Page 1 of 2 THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : LUCINDA LITTLE, et al., : Civil Action No. 2:17-cv-01562-JHS : Plaintiffs, : : v. : : THE HON. EMILIO A. VAZQUEZ, et al., : : Defendants. : : REP. EMILIO A. VAZQUEZ’S MOTION TO DISMISS THE AMENDED COMPLAINT Defendant Emilio A. Vazquez, by and through his undersigned counsel, hereby files this Motion to Dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Pursuant to Local Rule 7.1(c), Defendant hereby incorporates by reference the attached Memorandum of Law as though fully set forth at length. Respectfully submitted, By: _____________________________ Adam C. Bonin Attorney ID #80929 LAW OFFICE OF ADAM C. BONIN 30 S. 15th Street, 15th Floor Philadelphia, PA 19102 adam@boninlaw.com (215) 864-8002 Attorney for Rep. Emilio Vazquez Case 2:17-cv-01562-JHS Document 15 Filed 06/22/17 Page 2 of 2 THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA : LUCINDA LITTLE, et al., : Civil Action No. 2:17-cv-01562-JHS : Plaintiffs, : : v. : : THE HON. EMILIO A. VAZQUEZ, et al., : : Defendants. : : MEMORANDUM OF LAW IN SUPPORT OF REPRESENTATIVE VAZQUEZ’S MOTION TO DISMISS THE COMPLAINT THE LAW OFFICE OF ADAM C. BONIN Adam C. Bonin 30 South 15th Street, 15th Floor Philadelphia, PA 19102 Telephone: (215) 864-8002 Fax: (215) 701-2321 adam@boninlaw.com Attorney for St. Rep. Emilio Vazquez Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 1 of 36 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii I. INTRODUCTION .............................................................................................................. 1 II. PLAINTIFFS’ ALLEGATIONS ........................................................................................ 3 III. STANDARD OF REVIEW ................................................................................................ 5 IV. LEGAL ARGUMENT ........................................................................................................ 7 A. Vazquez Is Not a Proper Defendant ........................................................................ 7 B. Adequate Remedies Existed Under State Law ..................................................... 11 C. Plaintiffs Fail to Allege a Constitutional Violation .............................................. 13 1. Griffin and Marks ...................................................................................... 13 2. Plaintiffs have failed to meet their burden. ............................................... 20 3. Plaintiffs’ allegations, even if proven, do not suggest outcome- determinative violations of law. ................................................................ 28 V. CONCLUSION ................................................................................................................. 29 Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 2 of 36 ii TABLE OF AUTHORITIES Page(s) CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................ 5-8 Adickes v. Kress & Co., 398 U.S. 144 (1970) ................................................................................ 8 Baker v. McCollan, 443 U.S. 137 (1979) ..................................................................................... 28 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ...................................................................... 5-9 Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967)........................................................................... 18 Bodine v. Elkhart Cnty. Election Bd., 788 F.2d 1270 (7th Cir. 1986) .............................. 21, 24-26 Bolinger v. First Multiple Listing Serv., Inc., 838 F. Supp.2d 1340 (N.D. Ga., 2012), ............... 10 Brown v. Post, 279 F. Supp. 60 (W.D. La. 1968) ......................................................................... 18 Coalition for Education in Dist. One v. Bd. of Elections, 370 F. Supp. 42 (S.D.N.Y. 1974) ...... 18 Conley v. Gibson, 355 U.S. 41, 47 (1957) ...................................................................................... 5 Cruz v. Donnelly, 727 F.2d 79 (3d Cir. 1984). ............................................................................... 8 Curry v. Baker, 802 F.2d 1302 (11th Cir. 1986) ....................................................................... 20-21 Daniels v. Williams, 474 U.S. 327 (1986) .................................................................................... 25 Dennis v. Sparks, 449 U.S. 24 (1980)............................................................................................. 8 Dickie v. Rabbit, 956 F. Supp 67 (E.D. Mass. 1997) .............................................................. 26-28 Donohue v. Bd. of Elections, 435 F. Supp. 957 (E.D.N.Y. 1976), .................................... 22-23, 28 Erickson v. Pardus, 551 U.S. 89 (2007) .......................................................................................... 5 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) ............................................................ 7 Gamza v. Aguirre, 619 F.2d 449 (5th Cir. 1980) ............................................................... 21, 25-27 Gold v. Feinberg, 101 F.3d 796 (2d Cir. 1996) ........................................................... 21, 23, 26-27 Granados Navedo v. Acevedo, 932 F.2d 94 (1st Cir. 1991). ......................................................... 16 Green Party v. Pa. Dep’t of State, 43 M.D. 2017 (Pa. Commw. Feb. 15, 2017) ............................ 3 Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 3 of 36 iii Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978) ..................................................................... passim Griffin v. Burns, 431 F. Supp. 1361 (D.R.I. 1977) ....................................................................... 17 Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966) ....................................................................... 18 Hamer v. Ely, 410 F.2d 152 (5th Cir. 1969) ................................................................................. 18 Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177 (4th Cir. 1983) ................... 21, 24 Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975) ............................................................... passim Henry v. Connolly, 910 F.2d 1000 (1st Cir. 1990). ....................................................................... 20 Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77 (2nd Cir. 2005), ................................... 25 Hoffman v. Stamper, 867 A.2d 276 (Md. 2005) ........................................................................... 10 In re Bensalem Twp. Supervisor Election Contest, 26 D. & C.2d 433 (Bucks C.P. 1961) .......... 12 In re Illegal Literature - Honkala, March Term 2017 No. 2015 (Phila C.P. Mar. 21, 2017). ......... 5 In re Nom. Cert. of Frederick Ramirez, 44 M.D. 2017 (Pa. Commw. Feb. 23, 2017) ................... 3 In re Primary Election of May 19, 1998, 721 A.2d 1156 (Pa. Commw. 1998) ............................ 12 Jennings v. Shuman, 567 F.2d 1213 (3d Cir. 1977) ....................................................................... 8 Johnson v. Hood, 430 F.2d 610 (5th Cir. 1970) ........................................................................... 21 Kanter v. Barella, 489 F.3d 170 (3d Cir. 2007). ............................................................................. 6 Krieger v. City of Peoria, 2014 WL 4187500 (D. Ariz. 2014). .................................................... 26 Lombel v. Flagstar Bank F.S.B., 2013 WL 5604543 (D. Md., Oct. 11, 2013) ............................. 10 Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) ....................................................................... 8 Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994). ........................................................ 2, 13, 18-20, 26 Marks v. Stinson, Civ. Action No. 93-6157 (E.D. Pa. April 26, 1994 ......................................... 20 McCormick v. State Bd. of Elections, 378 A.2d 1061 (R.I. 1977) ............................................... 14 Pa. Democratic Party v. Pa. Dept. of State, 80 M.D. 2017 (Pa. Commw. Mar. 3, 2017) .............. 3 Pettengill v. Putnam Cnty. R-1 School Dist., 472 F.2d 121 (8th Cir. 1973) .......................... 21, 28 Phillips v. Allegheny Cnty., 515 F.3d 224 (3d Cir. 2008) .......................................................... 5, 6 Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 4 of 36 iv Powell v. Power, 436 F.2d 84 (2d Cir. 1970) ........................................................................ passim R.R.R. Ltd. P’ship v. Investguard, Ltd., 463 S.E.2d 735 (Ga. 1995) ........................................... 10 Reese v. Bd. of Elections of Lancaster Cnty., 308 A.2d 154 (Pa. Commw. 1973) ...................... 11 Roe v. Alabama, 43 F.3d 574 (11th Cir 1995) ............................................................................... 18 Sackman v. Liggett Grp., Inc., 965 F. Supp. 391 (E.D.N.Y. 1997) .............................................. 10 Scheer v. City of Miami, 15 F. Supp.25 1338 (S.D. Fla. 1998), ............................................. 20-21 Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005)................................................................ 25-26 Stevenson v. Carroll, 495 F.3d 62 (3d Cir. 2007) ........................................................................... 6 Victaulic Co. v. Tieman, 499 F.3d 227 (3d Cir. 2007 .................................................................... 6 Watson v. Abington Twp., 478 F.3d 144 (3d Cir. 2007), ............................................................ 5-6 STATUTES U.S. Const. amdt. I ................................................................................................................. passim U.S. Const. amdt. XIV ........................................................................................................... passim 42 U.S.C. § 1983 .................................................................................................................... passim 52 U.S.C. § 10101 et seq................................................................................................ 3, 10-11, 22 25 P.S. § 3456 ............................................................................................................................... 11 25 P.S. § 3457 .......................................................................................................................... 11-12 25 P.S. § 3459 ............................................................................................................................... 12 RULES Fed. R. Civ. P. 8(a)(2). .................................................................................................................... 5 Fed. R. Civ. P. 12(b)(6)................................................................................................................... 5 Fed. R. Civ. P. 19(a)(1)(B) ........................................................................................................... 11 Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 5 of 36 v OTHER AUTHORITIES Developments in the Law - Elections, 88 Harv.L.Rev. 1111, 1134-36 (1975) .......................... 18 Easterbrook, Discovery as Abuse, 69 B. U. L. Rev. 635 (1989) .................................................... 9 Starr, Federal Judicial Invalidation as a Remedy for Irregularities in State Elections, 49 N.Y.U.L.Rev. 1092 (1974) ....................................................................................................... 18 Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 6 of 36 The Hon. Emilio A. Vazquez,1 having been duly elected by the voters of the 197th Legislative District by an overwhelming margin in the March 21, 2017 Special Election, by and through his undersigned counsel respectfully submits this memorandum of law in support of his Motion to Dismiss the Complaint. I. INTRODUCTION On March 21, 2017, endorsed Democratic candidate Emilio A. Vazquez was elected as a write-in in a special election in Pennsylvania’s 197th Legislative District. The results, timely certified by the Philadelphia City Commissioners on April 1, 2017, were as follows: 2 Emilio Vazquez (Dem.): 1,972 votes (write-in) Cheri Honkala (Green): 286 votes (write-in) “Scattered” Write-Ins: 235 votes (write-in) Lucinda Little (Repub.): 201 votes (on machine) The other candidates pursued no efforts to recount, recanvass, or otherwise challenge the results as allowed under Pennsylvania law. Accordingly, Vazquez was sworn in by the Pennsylvania House of Representatives the morning of April 5, without a single objection from its members. The next day, this suit followed, belatedly seeking an order preventing Vazquez from being seated.3 Beyond its being manifestly too late to grant the relief sought, the complaint must fail as a matter of law because its threadbare allegations, even if all plausible ones are assumed to be 1 The Complaint misspells his name throughout as “Vasquez.” 2 See Official Returns, Pennsylvania Department of State website: http://www.dos.pa.gov/VotingElections/CandidatesCommittees/RunningforOffice/Documents/1 97th%20special%20election%20official%20returns.pdf (accessed June 22, 2017) 3 For the reasons set forth in Section III-B of the Cortés-Department of State Brief (Dkt. No. 11), and incorporated herein by reference, such dilatory behavior rendered this case and controversy moot on arrival. The relief sought can no longer be had, and no Defendant is an entity which could grant it regardless. By itself, that should resolve this matter. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 7 of 36 -2- true, simply do not amount to either a constitutional or statutory deprivation of Plaintiffs’ rights. Federal courts simply do not intervene into local election disputes absent extraordinary circumstances, which as a matter of law must involve willful conduct by state actors, and Plaintiffs at most allege negligent supervision of this election by the state actor Defendants. To the contrary, in each and every case that we have located in which a federal court has ordered the extraordinary relief of overturning a state election results, two factors are present: (1) willful conduct on the part of state actors, whether in intentionally tilting the playing field towards one candidate or by changing the rules of an election mid-stream in a way which disenfranchises a class of voters; and (2) a close result. Neither factor is present here. Plaintiffs do not and cannot suggest they are. At best, Plaintiffs’ theory of state action reduces to a wish that the City Commissioners and Department of State had done more to police alleged election-day shenanigans. Their allegations are tantamount to the sorts of “garden variety election irregularities” which the federal courts have thoroughly rejected as sufficient grounds to intervene in a state election. Without allegations of intentional conduct by state actors to render the playing field uneven, these causes of action cannot survive. Unlike in the Marks v. Stinson litigation which was litigated in this District and Circuit regarding a state election, Plaintiffs do not allege any state actor defendant did more here than fail to properly supervise the election.4 That is not enough. 4 Indeed, the only change between the complaint as originally filed and the amended complaint at issue here is that Plaintiffs removed such allegations as to the State Actor Defendants. Compare Initial Complaint at ¶ 28 (“Further, Defendant Vazquez and the Defendant City Commissioners all worked together to intimidate voters, tamper with votes and prevent a fair election”) (Dkt No. 1, filed 4/6/17) with Amended Complaint at ¶ 28 (“Further, Defendant Vasquez and Election Board Workers all worked together to intimidate voters, tamper with votes and prevent a fair election.”) (Dkt No. 2, filed 4/7/17). The Election Board Workers are not Defendants. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 8 of 36 -3- Moreover, thoroughly adequate measures existed under state law to pursue these claims. Plaintiffs could have sought an election contest action under the law of the Commonwealth of Pennsylvania. They did not. Beyond its being an important factor in determining whether federal redress is available as to a state election, Plaintiffs’ failure to pursue appropriate state relief is indicative of their slipshod, throw-it-against-the-wall-and-see-if-it-sticks approach to this belated Complaint, which largely presents an unorganized series of anonymous allegations and conclusory statements. Under the law, what the Plaintiffs have alleged is not enough, and as with the March 21 election itself, it’s not even close. For the reasons which follow, this matter should be dismissed with prejudice. II. PLAINTIFFS’ ALLEGATIONS This litigation concerns the special election held on March 21, 2017, for a vacancy in Pennsylvania’s 197th House District. Because of pre-election litigation relating to candidate eligibility and the right of political parties to substitute nominations in special elections, the only candidate’s name printed on the ballot was that of Lucinda Little, the Republican. See In re Nomination Certificate of Frederick Ramirez, 44 M.D. 2017 (Pa. Commw. Feb. 23, 2017); Pa. Democratic Party v. Pa. Dept. of State, 80 M.D. 2017 (Pa. Commw. Mar. 3, 2017), aff’d without opinion, 14 EAP 2017 (Pa. Mar. 10, 2017); Green Party v. Pa. Dep’t of State, 43 M.D. 2017 (Pa. Commw. Feb. 15, 2017), aff’d, 11 MAP 2017 (Pa. Mar. 3, 2017). This complaint concerns the conduct of that March 21 special election. Plaintiffs herein-two losing candidates and their respective parties-have filed a rambling complaint asserting violations of the First and Fourteenth Amendments to the U.S. Constitution (Complaint, ¶ 24) and the Federal Voting Rights Act. (Complaint, ¶ 16). The allegations involve two sets of defendants: the State Actor Defendants (the Philadelphia City Commissioners, collectively and individually, and the Pennsylvania Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 9 of 36 -4- Department of State as well as its Secretary), responsible for administering the election and certifying its results, and the Private Defendants (Vazquez and the Philadelphia City Democratic Committee), who campaigned for Vazquez’s victory.5 The factual allegations can be organized into several categories: as to the Private Defendants, it is alleged that unknown supporters of Vazquez and unknown Philadelphia City Democratic Committee persons engaged in varied allegedly-illegal electioneering activities;6 that unknown Election Board Workers assisted them in so doing; and that the State Actor Defendants were negligent in their supervision of the election.7 See, generally, Complaint at ¶¶ 24-27.8 5 Plaintiffs also make various allegations regarding “Election Board Workers,” who are neither parties to this action nor identified by name at any point. Had Plaintiffs wanted to name them, all election-day workers are listed by polling location on the City Commissioners’ website. See https://www.philadelphiavotes.com/en/election-board-officials/current-election-board- officials (accessed June 22, 2017). 6 The sole allegation as to Vazquez himself is as follows: “Inside the polling place located at the Hartranft School, Mr. Vasquez was sitting and talking with the Election Board even though he was a candidate.” (Complaint, ¶ 26(t)). As with that and many of the allegations pleaded, it is unknown what law Plaintiffs believe was violated, by whom, or how it affected the election unfairly. See, e.g., Complaint at ¶ 27(o) (“At Rivera Head Start, a person associated with the Election Board came out of the polling place, got the stamp from the committee person and brought it in for the voters inside.”) 7 Complaint at ¶¶ 24(g), 28, 31. In addition, Plaintiffs aver: “Honkala campaign treasurer Hillary Kane called the District Attorney’s office several times to complain and she got the following response each time: ‘We’ll send someone out there as soon as we can.’” Complaint at ¶ 27(d). While the Office of District Attorney is not a defendant here, nor is it clear under what theory it could be sued, it is nonetheless worth noting that the special election was held on the same day the Philadelphia District Attorney was indicted on 23 federal criminal charges. On the other hand, Plaintiffs do not plead that they called the City Commissioners’ office or any individual City Commissioner at any point during the day, or that they did call and received a response they regarded as insufficient. 8 As to the alleged confiscation of Honkala literature by the Philadelphia Sheriff’s Office, Complaint at ¶ 27(s), that Office is not a Defendant here, and the incident instead confirms that the Green Party Plaintiffs themselves do not come to this Court with clean hands. This Court can take judicial notice of the Order entered by the Court of Common Pleas of Philadelphia on Election Day authorizing such actions because the pro-Honkala literature was (cont’d next page…) Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 10 of 36 -5- Plaintiffs also hurl allegations about the chain of custody of election materials (¶¶ 24(e)- (f)), but it is unknown what law they believe has been violated. Nowhere do Plaintiffs allege these materials were tampered with or altered in any way, nor did they seek a recount or recanvassing of the results as permitted under law. III. STANDARD OF REVIEW Under the Federal Rules of Civil Procedure, a sound complaint must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This statement must “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Fair notice” in Rule 8(a)(2) “depends on the type of case[, because] some complaints will require at least some factual allegations to make out a showing that the pleader is entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quotation omitted). “[A] situation may arise where, at some point, the factual detail in a complaint is so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8.” Id. Instead, to survive a motion to dismiss, the plaintiff must plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89, 93 (2007), as well as all reasonable inferences permitted by the factual allegations contained therein, Watson illegal, failing to contain required disclaimer language. See In re Illegal Literature - Honkala, March Term 2017 No. 2015 (Phila C.P. Mar. 21, 2017) (Woods-Skipper, P.J.). Later that afternoon, the Green Party sought and had granted an unopposed motion rescinding the Order to the extent it encompassed literature upon which the Honkala campaign subsequently added the required information by hand. Id. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 11 of 36 -6- v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), and to view them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). If the facts alleged are sufficient to “raise a right to relief above the speculative level” such that the plaintiff’s claim is “plausible on its face,” a complaint will survive a motion to dismiss. Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 570) (explaining a claim has “facial 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”); see also Phillips, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007); Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007). Further, when a complaint contains well-pleaded factual allegations, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 664. However, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” do not establish a plausible allegation. Id. at 663. Plausibility requires “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, Id. at 678. “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility.’” Id., quoting Twombly, 550 U.S. at 557. In other words, a complaint must not only allege entitlement to relief, but must demonstrate such entitlement with sufficient facts to nudge the claim “across the line from conceivable to plausible.” Id. at 683 In Iqbal itself, the Supreme Court deemed insufficient allegations that “petitioners knew of, condoned, and willfully and maliciously agreed to subject [respondent] to harsh conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin” and that “[one defendant] was the principal architect of this invidious policy, and that Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 12 of 36 -7- [another defendant] was instrumental in adopting and executing it.” Id. at 680-81 (internal quotation marks and citations omitted). The Supreme Court called those allegations “nothing more than a formulaic recitation of the elements of a constitutional discrimination claim,” and dismissed those claims because they were conclusory. Id. at 681 (internal quotation marks omitted). Indeed, the Court “may disregard any legal conclusions” contained in the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). IV. LEGAL ARGUMENT The Complaint should be dismissed against Vazquez because he was neither acting under color of law nor do Plaintiffs allege he was conspiring with persons acting under color of law. Moreover, for the reasons which follow, the Complaint should be dismissed against Vazquez and all Defendants because it fails as a matter of law to raise a claim for which relief can be granted by this Court, or has ever been granted by any Court. A. Vazquez Is Not a Proper Defendant Because Emilio Vazquez was a private citizen at all times pertinent to the complaint, he is not a proper defendant here. Obviously, he cannot grant Plaintiffs the remedies they seek of ordering a new election, nor can he retroactively invalidate his own swearing-in. But even this misses the fundamental flaw in Plaintiffs’ efforts to sue him. Plaintiffs seek redress through Section 1983, alleging Defendants violated the First and Fourteenth Amendments of the United States Constitution in terms of right of association, right to vote and right to speech, and further, fundamental due process affecting the election pursuant to the Fourteenth Amendment of the United States Constitution.” (Complaint, ¶ 37). In support of this claim, Plaintiffs provide the rote allegation that “All Defendants acted under color of state law.” (Complaint, ¶ 34). Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 13 of 36 -8- Yet it is beyond peradventure that private citizens like Vazquez ordinarily cannot be the subject of a Section 1983 action. The Constitution protects citizens from the government, not each other. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982) (“conduct allegedly causing the deprivation of a federal right [must] be fairly attributable to the State.”) Instead, a private individual can only face Section 1983 liability if he was a willful participant in joint activity with the State or its agent(s), either conspiring with them or by being delegated with state powers by them. See Adickes v. Kress & Co., 398 U.S. 144, 152 (1970); Dennis v. Sparks, 449 U.S. 24, 27-28 (1980); Jennings v. Shuman, 567 F.2d 1213, 1220 (3d Cir. 1977); Cruz v. Donnelly, 727 F.2d 79, 82 (3d Cir. 1984). Plaintiffs do not allege the latter. As to the former, the closest Plaintiffs come to advancing such allegations against Vazquez is the conclusory statement that “Defendant Vasquez and Election Board Workers all worked together to intimidate voters, tamper with votes and prevent a fair election.” (Complaint, ¶ 28). Yet the only paragraph in the Complaint alleging any joint action between Vazquez himself and the Election Day Workers-who are not themselves Defendants in this action-is the claim that “Inside the polling place located at the Hartranft School, Mr. Vasquez was sitting and talking with the Election Board even though he was a candidate.” (Complaint, ¶ 26(t)). That’s it. Such bare and conclusory allegations hardly rise to the level of what Twombly and Iqbal require, especially given that the latter may not even refer to illegal conduct.9 Twombly itself concerned the pleading standard required to demonstrate conspiracy in the Sherman Act context, with the Supreme Court holding that “stating such a claim requires a complaint with enough 9 Plaintiffs do not allege that Vazquez was engaging in unlawful electioneering towards voters. It is unknown what Plaintiffs believe was illegal about his “sitting and talking” to persons not in the process of voting. See 25 P.S. §3060. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 14 of 36 -9- factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement … It makes sense to say, therefore, that an allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality.” Twombly, 550 U.S. 544 at 556-57. “An allegation of parallel conduct is thus much like a naked assertion of conspiracy in a § 1 complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of ‘entitle[ment] to relief.’” Id. at 557. Nor should Plaintiffs be entitled to discovery to flesh out this bare allegation of joint conduct. As the Twombly court noted: It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through “careful case management,” post at 573, at 951, given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side. See, e.g., Easterbrook, Discovery as Abuse, 69 B. U. L. Rev. 635, 638 (1989) (“Judges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves”). And it is self-evident that the problem of discovery abuse cannot be solved by “careful scrutiny of evidence at the summary judgment stage,” much less “lucid instructions to juries,” post, at 573, at 951; the threat of discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those proceedings. Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no “‘reasonably founded hope that the [discovery] process will reveal relevant evidence’” to support a § 1 claim. Id. at 559 (emphasis added). As to the state actors who are Defendants in this action, Plaintiffs neither allege joint action nor conspiracy between Vazquez and either the City Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 15 of 36 -10- Commissioners or the Department of State. Even if Plaintiffs had, such allegations would fail as a matter of logic and common sense. Plaintiffs’ claims as to the state actors sound in negligent supervision, and one cannot conspire to commit negligence. “Because a claim of conspiracy requires a showing of intentional conduct, there can hardly be conspiracy to commit negligence.” Sackman v. Liggett Grp., Inc., 965 F. Supp. 391, 395 (E.D.N.Y. 1997) (collecting cases); see also Bolinger v. First Multiple Listing Serv., Inc., 838 F. Supp.2d 1340, 1369 (N.D. Ga., 2012), quoting R.R.R. Ltd. P’ship v. Investguard, Ltd., 463 S.E.2d 735, 736 (Ga. 1995) (“The former Plaintiffs’ claim for negligent misrepresentation cannot sustain the conspiracy claim because persons cannot conspire to commit negligence.… [A] conspiracy to commit negligence [is] a ‘non sequitur.’ On the contrary, there can be no conspiracy without a common purpose to do something unlawful.”)10 In addition, Plaintiffs assert that “Jurisdiction is also found since there are violations of the Federal Voting Rights Act.”(Complaint, ¶ 16).11 Plaintiffs go no further in explaining which particular acts violated which provisions of the “Federal Voting Rights Act,” nor do they revisit Voting Rights Act claims at any subsequent point. As such, because the Complaint any actual allegations which would have supported such a claim, it cannot form a basis for relief. 10 See, also, Lombel v. Flagstar Bank F.S.B., 2013 WL 5604543, Case No. PWG-13-704 (D. Md., Oct. 11, 2013): “Both claims also allege conspiracy to commit negligence…. This is a logical impossibility and borders on the incoherent. Because civil conspiracy requires a deliberate - i.e. intentional - agreement to accomplish a particular end, see Hoffman v. Stamper, 867 A.2d 276, 291 (Md. 2005), whereas negligence requires unintentional conduct, see, e.g., Restatement of Torts (Second) § 282 cmt. d (negligence “excludes conduct which creates liability because of the actor’s intention to invade a legally protected interest), one cannot conspire to be negligent.” 11 This brief assumes Plaintiffs are referring to the Voting Rights Act of 1965, 52 U.S.C. § 10101 et seq., and not one of the myriad other federal statutes pertaining to voting rights. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 16 of 36 -11- Accordingly, Emilio Vazquez should be dismissed from this litigation because he cannot be found liable under Section 1983 or the Voting Rights Act of 1965 based on this complaint, nor can he grant the remedies Plaintiffs seek.12 B. Adequate Remedies Existed Under State Law Among the deficiencies in Plaintiffs’ actions here, which also relate to the failure to allege a constitutional violation, is that Plaintiffs failed to pursue the adequate remedies which exist under state law. The Pennsylvania Election Code has a procedure perfectly suited for the allegations here: the election contest. Under Section 1756 of the Election Code, 25 P.S. § 3456, such matters shall be filed within twenty days after the day of the primary or election, and “shall concisely set forth the cause of complaint, showing wherein it is claimed that the primary or election is illegal, and after filing may be amended with leave of court, so as to include additional specifications of complaint.” Section 1757 of the Election Code, 25 P.S. §3457, goes on to require that the affidavits verifying an election contest petition must contain a statement that the affiant believes “the primary or election was illegal and that the return thereof was not correct.” This is the procedure which Plaintiffs could have pursued, but did not. As the Commonwealth Court of Pennsylvania has explained, it is precisely designed for these purposes. “To the extent that the petition alleges any fraud or other wrongdoing on the part of election officials or others in the casting, computation or return of the vote … these are subjects which are peculiarly for an election contest.” Reese v. Bd. of Elections of Lancaster County, 308 A.2d 154, 158 (Pa. Commw. 1973). Further, “courts of common pleas have consistently held that 12 Vazquez may nevertheless remain a necessary party to this action under Fed. R. Civ. P. 19(a)(1)(B), were it to proceed as to other defendants beyond the motion to dismiss stage, but he is not a proper defendant. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 17 of 36 -12- election contests can only be brought under Section 1756 of the Election Code regarding ‘matters pertaining to the election process itself, such as the conduct of balloting according to law, the tabulation of the results, and the return thereof … the bare mechanics of accurately and honestly ascertaining and recording the will of the electorate.’” In re Primary Election of May 19, 1998, 721 A.2d 1156, 1158 (Pa. Commw. 1998), quoting In re Bensalem Twp. Supervisor Election Contest, 26 D. & C.2d 433, 435 (Bucks Co. 1961). So why didn’t Plaintiffs pursue an election contest? Perhaps because that process includes two requirements which a federal lawsuit does not: (1) petitioners would have been required to post a bond “signed by at least five of the said petitioners in such sum as the presiding officer of the Senate or said court shall designate, with two or more individual sureties or a corporate surety to be approved by the said officer or court or judge, conditioned for the payment of all costs which may accrue in said contested nomination or election proceeding, in case the said petitioners by decree shall be adjudged liable to pay said costs” (25 P.S. § 3459);13 and (2) five petitioners would have been required to swear an affidavit “that according to the best of their knowledge and belief, the primary or election was illegal and the return thereof not correct, and that the petition to contest the same is made in good faith (25 P.S. § 3457). By itself, the failure to pursue an available and adequate state remedy may not be dispositive. But as the following section notes, it is an important factor. 13 This Court can take judicial notice of the fact that as to the November 2016 general election, the Green Party withdrew its election contest petition on the eve of a hearing because it did not want to pay the Commonwealth Court-ordered bond for a statewide recount. See “Green Party drops push for Pennsylvania ballot recount,” Allentown Morning Call (Dec. 3, 2016), available online at http://www.mcall.com/news/breaking/mc-pa-election-recount-done- 20161203-story.html . This matter, of course, involves only one of Pennsylvania’s 203 legislative districts, and a smaller bond would have been required by the Court. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 18 of 36 -13- C. Plaintiffs Fail to Allege a Constitutional Violation The crux of the problem with Plaintiffs’ complaint on the merits-against any existing or possible defendant-is that the allegations contained therein do not rise to the level of a federal constitutional violation. They are, instead, “garden variety” infractions in a terrain where the law requires that there be wholescale fraud to warrant federal court intervention, an “attack [] broadly, upon the fairness of the official terms and procedures under which the election was conducted.” Griffin v. Burns, 570 F.2d 1065, 1078 (1st Cir. 1978). Because these sorts of allegations occur so incredibly rarely, especially considering the thousands of federal, state, and local offices up for election annually, and because the United States Supreme Court has not weighed in on this topic, this section of the brief necessarily draws upon federal case law from across the nation. This section starts with two cases which are building blocks for this area of jurisprudence, because they are two of the rare cases in which the drastic relief Plaintiffs here seek was granted: the First Circuit’s widely-cited decision in Griffin v. Burns, and the Third Circuit’s more recent decision in Marks v. Stinson. In conjunction, they establish the high level of infraction required to invoke this Court’s jurisdiction and obtain relief. From there, this section synthesizes the case law to demonstrate federal courts’ consistent rejection of allegations similar to Plaintiffs’ herein, in which the only state action complained of was a negligent failure or inadvertent error in following the law, no matter how pervasive or outcome-determinative, and in which Plaintiffs failed to pursue the adequate remedial procedures available under state law. 1. Griffin and Marks On March 29, 1977, a primary election was held in the Tenth Ward of Providence, Rhode Island, to select the Democratic candidate to run in a special election for a vacancy on the Providence City Council. As had been the custom in other elections, absentee and so-called Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 19 of 36 -14- “shut-in” voters were permitted by local election officials to use mail-in ballots to cast their votes. Of the total 1,356 votes cast in the election, 131 were from voters using this absentee ballot procedure; the winning candidate prevailed by 15 votes. Griffin, 570 F.2d at 1066-68. After the election, the losing candidate for the first time questioned the authority of the Secretary to issue and count absentee and shut-in ballots in a primary election, and the Rhode Island Supreme Court ultimately agreed, finding “no constitutional or statutory basis for allowing absentee and shut-in voters to cast their votes in a primary election,” invalidating those ballots, and instead certifying that candidate as the winner by 90 votes. McCormick v. State Bd. of Elections, 378 A.2d 1061 (R.I. 1977).14 Those disenfranchised voters, along with the now-losing candidate, then sued in federal court under Section 1983, arguing that their constitutional rights had been violated. Testimony from several “shut-in voters” indicated that they would have secured assistance to enable them to vote at the polls in person had they known their shut-in ballots would not be counted, and absentee voters testified that they similarly would have changed their travel plans to ensure a valid vote. The district court concluded that the equitable relief most appropriate in the situation at hand was to invalidate the March 29 primary, postpone the general election, and schedule a new primary and election in which the ground rules were clear. Griffin. 570 F.2d at 1069-70. The First Circuit affirmed. The Court easily recognized the unfairness of retroactively invalidating votes which state actors had previously welcomed. “The state’s action is said to amount - in result, if not in design - to a fraud upon the absent voters, effectively stripping them of their vote in the primary.” Id. at 1074. “[W]e do not see how an election conducted 14 Four days after proceedings had ended before the Rhode Island Supreme Court, the state legislature enacted a bill restoring the absentee and shut-in voting procedure for future primaries. It took effect upon its signing, six days later. Griffin, 570 F.2d at 1068. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 20 of 36 -15- under these circumstances can be said to be fair. When a group of voters are handed ballots by election officials that, unsuspected by all, are invalid, state law may forbid counting the ballots, but the election itself becomes a flawed process.” Id. at 1076. The “second and more difficult question” remained, however, “of whether a federal court should intervene to invalidate a local election in this kind of situation.” Id. As to that question, the First Circuit drew a line distinguishing an earlier series of cases “limited to striking down state laws or rules of general application which improperly restrict or constrict the franchise”- cases invalidating poll taxes or limiting the right to vote to property holders, for example-from the general rule that “Circuit courts have uniformly declined to endorse action under § 1983 with respect to garden variety election irregularities.” Id. at 1076-77. For example, the First Circuit noted that in Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975), the Seventh Circuit refused to intervene in an election involving widespread malfunctioning of voting machines, an error it described as “at most irregularities caused by mechanical or human error and lacking in invidious or fraudulent intent.” Id. at 864.15 As the Seventh Circuit recognized, elections are administered by human beings, not deities: Voting device malfunction, the failure of election officials to take statutorily prescribed steps to diminish what was at most a theoretical possibility that the devices might be tampered with, and the refusal of those officials after the election to conduct a retabulation, assuming these events to have occurred, fall far short of constitutional infractions, absent aggravating circumstances of fraud or other willful conduct found not to exist by the District Court and not shown by any evidence offered. … 15 This, despite the fact that the uncontested evidence included the facts that “a number of the machines failed to record votes properly; …. election officials failed to provide paper ballots as a substitute, which caused the occurrence of long waiting lines; failed to exercise proper supervisory oversight in checking access to the machines and preserving the results of the election; and refused to conduct a statutory retabulation to determine the cause of these discrepancies.” Id. at 863 Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 21 of 36 -16- Except for the overall supervision of the county clerk, or his counterpart, and appointed subordinates, the work of conducting elections in our society is typically carried on by volunteers and recruits for whom it is at most an avocation and whose experience and intelligence vary widely. Given these conditions, errors and irregularities, including the kind of conduct proved here, are inevitable, and no constitutional guarantee exists to remedy them. Id. at 864-65 (emphasis added). Summarizing Hennings and similar cases, the First Circuit in Griffin explained that “local election irregularities, including even claims of official misconduct, do not usually rise to the level of constitutional violations where adequate state corrective procedures exist.” Id. at 1077.16 Moreover, the Court asserted: Even where racial discrimination is alleged, the circuit courts have deferred to ongoing state recount and review procedures where these appear to be adequate and the alleged misconduct is lacking in “enormity”. This is because the Constitution confers upon the states the “power to control the disposition of contests over elections to . . . state and local offices.” The federal court is not equipped nor empowered to supervise the administration of a local election. If every election irregularity or contested vote involved a federal violation, the court would “be thrust into the details of virtually every election, tinkering with the state’s election machinery, reviewing petitions, registration cards, vote tallies, and certificates of election for all manner of error and insufficiency under state and federal law.” Id. (emphasis added, internal cites omitted). Due Process would only be violated “if the election process itself reaches the point of patent and fundamental unfairness.” Id. “Such a situation must go well beyond the ordinary dispute over the counting and marking of ballots; and the question of the availability of a fully adequate state corrective process is germane.” Id. The “exceptional cases” demonstrating that sort of “broad-gauged unfairness” constituted attacks 16 The First Circuit subsequently confirmed that the availability of “adequate and reasonable state corrective mechanisms” remained “an important consideration” in determining whether federal constitutional issues are implicated in an election dispute. See Granados Navedo v. Acevedo, 932 F.2d 94, 95 (1st Cir. 1991) (per curiam). Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 22 of 36 -17- “broadly, upon the fairness of the official terms and procedures under which the election was conducted. Id. at 1078. The First Circuit concluded that this steep burden was met in Griffin. “Almost ten percent of the qualified and voting electorate was, in effect, denied its vote in this close election because the Secretary of State, statutorily authorized manager of state elections, advertised, issued, and sanctioned the use of certain ballots which the Rhode Island Supreme Court quashed after the results of the election were in.” Id. at 1078-79. “The district judge could justifiably conclude that the voters, including the black voters, would be offended by the cancelling of the ballots notwithstanding their established acceptability due process involves the appearance of fairness as well as actual fairness.” Id. at 1079.17 Moreover, there was no adequate forum in state court: “[T]he federal court was the only practical forum for redress: there appears to have been no standard state procedure for handling a claim such as this, and the state court did not confront the questions that retroactive application of its ruling would create.” Id. And, finally, the intentional state action at issue was outcome-determinative: Given the evidence of some voters - including two who were severely handicapped - that they would have voted in person, and the importance of the right to vote, the court could infer that it was more likely than not that a very significant proportion of those voting by absentee ballot would have gone to the polls had such ballots not been available. While the “outcome” test provides a 17 As to Black voters, the First Circuit relied on the district court’s assessment of the racial dynamics of the campaign: “While the court found no evidence of racial discrimination, see note 3, supra, it remarked that, ‘many voters in the 10th ward perceive that an election won by their candidate, a black man, was suddenly reversed by a judicial decision holding a long- standing practice of counting absentee and shut-in ballots illegal. The voters of this same ward in November, 1976, elected a black state representative who has been refused his seat in the Rhode Island Legislature and extradited to Michigan. . . . (T)he actions complained of by plaintiffs had an undeniable racial effect on the outcome of the election, an effect observed by the black voters of the 10th ward.’” Id. at 1069 n. 6, quoting Griffin v. Burns, 431 F. Supp. 1361, 1364 (D.R.I. 1977) Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 23 of 36 -18- sensible guideline for determining when federal judicial invalidation of an election might be warranted, Starr, Federal Judicial Invalidation as a Remedy for Irregularities in State Elections, 49 N.Y.U.L.Rev. 1092, 1124-26 (1974); Developments in the Law - Elections, 88 Harv.L.Rev. 1111, 1134-36 (1975), it is not a principle requiring mathematical certainty. In cases of outrageous racial discrimination some courts have chosen not to apply it at all, but to invalidate the election simply for its lack of integrity. Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967); Hamer v. Campbell, 358 F.2d 215 (5th Cir. 1966), cert. denied, 385 U.S. 851, 87 S.Ct. 76, 17 L.Ed.2d 79 (1966); Brown v. Post, 279 F. Supp. 60 (W.D. La. 1968). And when applied, different formulations of the test have been proposed: the irregularity “could have altered the out-come”, Coalition for Education in Dist. One v. Bd. of Elections, 370 F. Supp. 42 (S.D.N.Y. 1974), aff’d 495 F.2d 1090 (2d Cir. 1974); the outcome “would not have been affected,” Hennings v. Grafton, supra; an altered outcome should be “found readily where there is a serious violation and close election,” Hamer v. Ely, 410 F.2d 152 (5th Cir.), cert. denied, 396 U.S. 942, 90 S.Ct. 372, 24 L.Ed.2d 243 (1969). Here, the closeness of the election was such that, given the retroactive invalidation of a potentially controlling number of the votes cast, a new primary was warranted. Id. at 1080. “In brief, we think this to be one of the perhaps exceptional cases where a district court could properly exercise the limited supervisory role that such courts have in election cases.” Id. at 1079. A new primary was ordered. Id. at 1080.18 Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994), concerned a special election held in Philadelphia for a pivotal Pennsylvania State Senate seat. Plaintiffs alleged that that certain 18 Years later in Roe v. Alabama, 43 F.3d 574 (11th Cir 1995), the Eleventh Circuit similarly addressed a change in practice which upset expectations for absentee voters, resulting in disenfranchisement. In that case, the prior Alabama practice had been not to count absentee ballots unless they were notarized and witnessed; after the 1994 election, an Alabama circuit court ordered that absentee ballots which had neither been witnessed nor sworn to be counted as well. (The candidates were 200-300 votes apart, with as many as 2,000 contested absentee ballots at issue.) The Eleventh Circuit ruled that this rendered the election was fundamentally unfair, citing two theories: first, that Alabama was diluting the votes of those who had submitted proper ballots; and second, that Alabama had disenfranchised those people who would have voted absentee, but were deterred from doing so because they did not want to expend the effort to have their ballots notarized. Ultimately, those ballots were not counted. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 24 of 36 -19- officials in the City Commissioners office, responsible for conducting the election, had conspired with one of the two candidates (Stinson) to cause numerous illegal absentee ballots to be cast. Id. at 877.19 The district court indeed concluded that there was “massive absentee ballot fraud, deception, intimidation, harassment and forgery,” and that “many” of the absentee votes were tainted. Id. at 887. Relying explicitly on Griffin, the Third Circuit affirmed that there was a due process violation cognizable under Section 1983, but vacated that portion of the trial court’s order requiring Marks to be certified as the winner. Id. at 888-90. In so doing, the Third Circuit treated the closeness of the election as crucial, relying on Griffin’s language that an outcome- based test provided “a sensible guideline for determining when federal judicial invalidation of an election might be warranted” and that federal intervention was warranted if “it was not feasible to establish who would have won a properly conducted election.” Id. at 888, quoting Griffin, 570 F.2d at 1080. 19 In brief: Stinson campaign workers systematically misled voters as to the rather rigid requirements for absentee voting under Pennsylvania law, then delivered their absentee applications to personnel in the City Commissioners’ office who, contrary to legal requirements, provided the absentee ballot packages directly to said campaign workers to bring them back to the voters. “Stinson campaign workers then took the absentee ballots directly to applicants’ homes. In numerous instances, Stinson workers executed applications, ballots, and declarations without the voter understanding the nature of the document. In other instances, Stinson workers instructed the voter to check certain places on the ballot, or filled out and forged the ballot. Voters were also assisted in completing applications and declaration packages after the statutory deadline for receipt by the Board had passed, and such ballots were counted by the Board. Many voters who cast absentee ballots testified that they were unaware that they had signed absentee ballot applications.” Id. at 877. No such assistance was provided to the other candidate in the race, Marks, nor was the third Commissioner alerted that any of this was going on. Id. at 878. The City Commissioners involved in the events in Marks left office long before the election at issue here. In addition, and unlike this matter, Plaintiffs in Marks were simultaneously pursuing an election contest under Pennsylvania law. Id. at 880-81. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 25 of 36 -20- Upon remand, the trial court determined that there had been more illegal votes cast for Stinson by unregistered voters under the absentee voting scheme than his margin of victory, and ordered Marks’s certification as the winner. Marks v. Stinson, Civ. Action No. 93-6157 (E.D. Pa. April 26, 1994).20 2. Plaintiffs have failed to meet their burden. As their holdings recognized, those cases are the exceptions. As the First Circuit explained in denying a challenge to Massachusetts’s ballot initiative process, “the federal nose cannot be poked into the state’s tent unless some constitutional infirmity exists.” Henry v. Connolly, 910 F.2d 1000, 1004 (1st Cir. 1990). Mere error or fraud-even massive error or fraud-is not enough. In Scheer v. City of Miami, 15 F. Supp.25 1338 (S.D. Fla. 1998), even what the state and trial courts described as “massive absentee fraud” during a mayoral election was not sufficient to justify federal court intervention and the ordering of a new election.21 As the Court explained, reviewing many of the cases discussed herein, “Federal courts can only intervene in a state 20 Among the Court’s findings was that “Commissioners Talmadge and Tartaglione and other members of the Commissioners’ Office specifically aided and favored the Democrat candidate. … Commissioners Talmadge and Tartaglione could have prevented much of the illegal activity that occurred even if the Stinson campaign had acted illegally. If the Commissioners would have observed and enforced the Election Code, the Stinson Campaign could not have illegally altered the outcome of the election. Not only did the Commission not correct the known illegal activities, the Commission also facilitated the scheme and then attempted to conceal the conspiracy.” Id. at Findings of Fact ¶ 158. 21 As the district court reviewed, the state trial court made these findings of fact: “Witness after witness testified, without contradiction, that they either 1) did not vote, 2) did not sign the ballots in question, 3) did not live in the district in which their ballot was cast, 4) did not live in the City of Miami, 5) did not know the person who `witnessed’ their signature or said someone other than the names witness actually `witnessed’ their vote, 6) did not live at the address that was given on the request for the absentee ballot, 7) did not request an absentee ballot and/or 8) did not qualify as `unable to vote.” According to the trial court, this fraud scheme, “literally and figuratively, stole the ballot from the hands of every honest voter in the City of Miami.” Id. at 1339-40. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 26 of 36 -21- election dispute in the most extreme circumstances.” Id. at 1340. The Court relied upon the 11th Circuit’s ruling in Curry v. Baker, 802 F.2d 1302 (11th Cir. 1986), in which the Court of Appeals reversed a trial court’s ordering of a new election when “massive illegal voting” had allegedly taken place, holding that it was not the role of the federal courts to “oversee the administrative details of a local election.” Curry, 802 F.2d at 1315.22 As Chief Judge Davis summarized in Scheer, federal intervention into a state election is an extreme exception to the rule: More often than not, federal courts find that the problem is garden variety and do not intervene in state election disputes. See, e.g., Gold v. Feinberg, 101 F.3d 796, 801 (2d Cir. 1996) (refusing to intervene where human error resulted in miscounting of votes, presence of ineligible candidates on ballot, and delay in arrival of voting machines); Bodine v. Elkhart County Election Bd., 788 F.2d 1270, 1272 (7th Cir. 1986) (mechanical and human error in counting votes); Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983) (technical deficiencies in printing ballots); Gamza v. Aguirre, 619 F.2d 449, 454 (5th Cir. 1980) (negligent vote counting); Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975) (malfunction of voting machines); Pettengill v. Putnam County R-1 School Dist., 472 F.2d 121, 122 (8th Cir. 1973) (counting votes that were illegally cast); Powell v. Power, 436 F.2d 84 (2d Cir. 1970) (non-party members mistakenly allowed to vote in congressional primary); Johnson v. Hood, 430 F.2d 610, 613 (5th Cir. 1970) (arbitrary rejection of 10 ballots). Id. at 1342. Accordingly, the district court refused to order a new election, instead deferring to parallel state court litigation which had determined invalidating the absentee ballots to be the proper remedy: “This case is about mere fraud - nothing more. It has nothing to do with reliance on an established procedure or a change in the election procedures. If anything, the 22 The facts of Curry involved approximately 14,168 Alabamans who had voted in the 1986 Republican gubernatorial primary and then illegally were permitted to vote in the subsequent Democratic runoff primary for the same office, which was decided by 8,756 votes. 802 F.2d at 1305-07. The Eleventh Circuit reversed a district court injunction requiring a new runoff election, determining both that no “patent and fundamental unfairness” existed which rose to the level of Griffin v. Burns and that there was “no evidence that plaintiffs lacked an adequate remedy in the state courts.” Id. at 1316-17. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 27 of 36 -22- voters must be presumed to have known of Florida’s procedure of voiding all absentee votes if there was evidence of fraud… Florida courts for the past sixty years have constructed a means of dealing with absentee voter fraud. It is not this Court’s province to upset this remedy as it has been well thought out by the state courts.” Id. at 1344. Powell, also relied upon by the First Circuit in Griffin, is particularly instructive. The 1970 Democratic primary in New York’s 18th Congressional District was decided by 150 votes, 0.6% of the votes cast. Id., 436 F.2d at 85 n. 1. However, the state had neglected to remove all the non-Democratic voters’ registration cards from polling places, leading to 1,232 illegal votes being cast. Id. at 86. The losing candidate, having failed to file a timely challenge in New York state court, sought relief from the federal courts. Id. A unanimous panel denied Plaintiffs’ action, which was pursued under the Voting Rights Act of 1965 and Section 1983, holding that while “purposeful tampering by state officials” might create an enforceable right, mere negligence could not, holding that the Due Process Clause offered “no guarantee against errors in the administration of an election.” Id. at 88. The Second Circuit continued: “We cannot believe that the framers of our Constitution were so hypersensitive to ordinary human frailties as to lay down an unrealistic requirement that elections be free of any error.” Id. Instead, the Court explained: Were we to embrace plaintiffs’ theory, this court would henceforth be thrust into the details of virtually every election, tinkering with the state’s election machinery, reviewing petitions, registration cards, vote tallies, and certificates of election for all manner of error and insufficiency under state and federal law. Absent a clear and unambiguous mandate from Congress, we are not inclined to undertake such a wholesale expansion of our jurisdiction into an area which, with certain narrow and well defined exceptions, has been in the exclusive cognizance of the state courts. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 28 of 36 -23- Id. at 86.23 Finally, the Second Circuit noted, adequate relief existed under state law, “and the plaintiffs do not contest the fairness and adequacy of that remedy.” Id. at 88. Approximately twenty-five years later, the Second Circuit extended its Powell holding in Gold v. Feinberg, 101 F.3d 796 (2d Cir. 1996), refusing to vacate election results despite Plaintiffs’ claims regarding “(1) delays in the arrival of voting machines at approximately one- third of the election districts, (2) a miscounting of votes resulting from improper placement of templates over ballots, and (3) the presence of ineligible candidates on the ballot.” Id. at 798. According to the Court, “Plaintiffs who can establish nothing more than ‘unintended irregularities’ in the conduct of elections are barred from obtaining § 1983 relief in federal court, provided an adequate and fair state remedy exists.” Id. at 800, citing Powell, 436 F.2d at 85, 88. The Court further noted that “[p]urposeful deprivation of the right to vote will not be assumed merely because there is evidence that election officials acted incompetently or negligently.” Id. at 801, quoting Donohue v. Bd. of Elections, 435 F. Supp. 957, 966 (E.D.N.Y. 1976).24 Where 23 Similarly, in Donohue v. Bd. of Elections, 435 F. Supp. 957 (E.D.N.Y. 1976), the Eastern District of New York denied an action under Section 1983 to hold a new Presidential election in New York State despite there allegedly being “fraudulent registration of thousands of otherwise ineligible voters, and in turn, the casting of numerous illegal ballots,” so permeating the election by fraud that determining the rightful winner was impossible. Relying on Powell, the Court held that Plaintiffs must both prove intentional and not merely negligent or incompetent acts by state officials, and that “the fraud or other unlawful behavior changed the outcome of the election. In the absence of proof of a causal relationship between the unlawful conduct and the result of the election, injunctive relief must be denied.” Id. at 966. “Before a federal court can responsibly order a new election, the claimants seeking this extraordinary relief must come forward with the most clear and convincing evidence that state officials or persons acting under color of state law, by intentionally depriving qualified voters of the right to vote, altered the outcome of the election.” Id. at 968. 24 The Court expressly rejected the district court’s claim that “a change of attitude” merited overturning Powell’s requirement of willful conduct. Id. at 801-02, relying on Griffin v. Burns. Even “foolish” decisions, as the Second Circuit characterized some of the Kings County Board of Elections’ administrative practices, “hardly constitute the kind of official policy or (cont’d next page…) Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 29 of 36 -24- there are “no substantiated allegations of any wrongful intent on the part of state officials,” there would be no relief in federal court. Id. at 801. See, similarly, Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 183 (4th Cir. 1983) (“But not every election irregularity gives rise to a constitutional claim. Whether the irregularity amounts to a constitutional claim depends on its severity, whether it was intentional or more of a negligent failure to carry out properly the state election procedures, and whether it erodes the democratic process.”) The Seventh Circuit adopted similar reasoning in Bodine v. Elkhart Cnty. Election Bd., 788 F.2d 1270 (7th Cir. 1986), denying efforts to overturn election results which had allegedly been rendered unreliable because election officials failed to test the computer program being employed to tabulate them. Beyond the federalism concerns cautioning against federal entanglement in state elections, the Court found the lack of willful conduct to be dispositive: As was stressed in Hennings, elections are generally conducted by volunteers, rather than trained professionals. While this may be a positive aspect of the electoral system it inevitably leads to errors of widely differing degrees of severity. Hennings, 523 F.2d at 865. Appellants, in the present case, have alleged nothing more than garden variety election irregularities that could have been adequately dealt with through the procedures set forth in Indiana custom, or the type of purposeful conduct, intended to deprive someone of the right to vote that is required to sustain a § 1983 claim under the Fourteenth Amendment.” Id. at 802. In a short concurring opinion, Senior Judge Oakes made clear how important this intentional conduct requirement was: “I concur, bound as I am by the precedent of Powell v. Power, 436 F.2d 84 (2d Cir. 1970), although the irregularities here were so gross as to call the flat statements in that precedent into serious question. However, to erode Powell, even in cases as fraught with irregularity as these, would put the federal courts in the extremely difficult position of monitoring state primaries as to the extent of election law violations, cases which would involve serious time constraints, difficult questions of cause and effect, and extremely complicated questions of remedy, including whether to order a reelection overall or only in certain districts, etc. Thus, though I was initially inclined to agree with District Judge Trager that the facts of these cases and the related cases went beyond the bounds of simple irregularity, on further reflection they still fall short of the intentional deprivation called for by Powell and progeny. Therefore, I am required, reluctantly, to concur.” Id. at 803. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 30 of 36 -25- law. … Significantly missing from the argument is any allegation that the computer control cards were somehow manipulated by the defendants to undermine the election. Id. at 1272.25 In the special election at issue here, Plaintiffs make no allegations whatsoever as to wrongful intent by the State Actor Defendants, substantiated or otherwise. More recently, the Second Circuit upheld Powell and Gold in its decision in Shannon v. Jacobowitz, 394 F.3d 90 (2d Cir. 2005), reversing a trial court’s ordering of a new election in which a malfunctioning voting machine failed to record votes for one of two candidates in a contested race.26 Even though the error in question was indeed “outcome determinative,” that was not sufficient to warrant federal court intervention. As the Court explained, to invoke Section 1983 and the Due Process Clause, “a negligent act could not amount to a constitutional deprivation … a finding of intentional conduct was a prerequisite for a due process claim.” Id. at 94, citing Daniels v. Williams, 474 U.S. 327, 328 (1986). Summarizing Supreme Court 25 Similarly, in Gamza v. Aguirre, 619 F.2d 449 (5th Cir. 1980), the Fifth Circuit denied a challenge to a Texas school district election in which election officials had erred in setting up the voting machines in several precincts, resulting in an unreliable vote total, then destroyed the ballots in two of the three affected precincts in bad faith and contrary to a court order. “Even if the attempt to cover-up what had happened was malign,” the Court held, relying on Griffin and Powell, “there was neither allegation nor evidence that the ballot error was deliberate. In the absence of evidence that the alleged maladministration of the local election procedures was attended by the intention to discriminate against the affected voters or motivated by a desire to subvert the right of the voters to choose their school board representative, we cannot conclude that the error constituted a denial of equal protection of the laws.” Id. at 454. Arturo Aguirre was thus confirmed as the winner of the school board runoff election, a narrow 1,681 to 1,614 victory over Marvin Gamza. Still, the Court reminded Plaintiffs that other avenues for redress had existed: “Aggrieved electors and their candidates are not left remediless. Every state has a procedure for election challenges. Absent abuse sufficient to rise to constitutional impairment, the ‘power to control the disposition of contests over elections to . . . state and local offices’ is conferred by the Constitution on the states.” Id. (internal cite deleted). 26 Candidate David Jacobowitz had been unofficially declared the winner over Matthew Shannon, 2,936 to 2,911; however, a machine malfunction meant 139 would-be Shannon voters’ selections had not been recorded. Id. at 91. Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 31 of 36 -26- precedent as well as those of the various Circuits, the Second Circuit concluded: “Without question, courts have found due process violations in voting cases before, but each case involved an intentional act on the part of the government or its officials…. Each required intentional state conduct directed at impairing a citizen’s right to vote.” Id. at 96.27 As to Mr. Shannon, however: At no point have appellees alleged that local officials acted intentionally or in a discriminatory manner with regard to the vote miscount. Both sides concede that the recorded results were likely due to an unforeseen malfunction with voting machine “A.” A voting machine malfunction is the paradigmatic example of a “garden variety” election dispute. … Although this election was of unquestioned importance to the people of Whitestown, the matter before the district court - a malfunctioning voting machine that simply failed to register votes on one of the lines - is an unfortunate but unintended irregularity, and as such, differs significantly from purposeful state conduct directed at disenfranchising a class or group of citizens. Id. at 96 (collecting cases). Moreover, the Court noted that “where a state law remedy exists but plaintiffs refused to test it,” there was no cognizable federal due process claim. Id.28 Perhaps the case most closely matching the allegations here took place twenty years ago in a Woburn, Massachusetts mayoral election. In Dickie v. Rabbit, 956 F. Supp 67 (E.D. Mass. 1997), a losing candidate sought relief under Section 1983 due to a variety of alleged Election 27 See also Hoblock v. Albany Cnty. Bd. of Elections, 422 F.3d 77 (2nd Cir. 2005), in which the Second Circuit held in an absentee ballot dispute: “To the extent that Griffin held that fundamental unfairness’ alone, in the absence of intentional state conduct, sufficed to make out a constitutional violation, Griffin is not good law in the Second Circuit in light of Shannon.” Id. at 98. However, the decision went on to note (as Shannon had) that Griffin itself involved intentional conduct: election officials’ “refusal to tally absentee ballots that they had deliberately (even if mistakenly) sent to voters.” Id. The Third Circuit has yet to speak to this question; Marks itself, plainly, involved intentional conduct by state actors. 28 Even beyond these cases involving votes which were not or could not be properly tabulated (Gold, Bodine, Gamza, and Shannon), federal courts similarly have declined to offer relief under Section 1983 when a candidate’s name was left off some ballots altogether. See Krieger v. City of Peoria, 2014 WL 4187500 (D. Ariz. 2014). Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 32 of 36 -27- Day shenanigans, including election officials purportedly telling some voters for whom they should cast their ballots and the tampering of voting machines via voters’ placement of stickers for write-in candidates over the names of candidates on the ballot. Id. at 68. Relying on Griffin, Powell, Gold, Gamza, and Hennings, the Court found that these allegations were insufficient to justify federal relief. As to the stickering, the Court recognized that absent a showing of illicit intent, election officials could not be held responsible for failing to police every violation of the law on Election Day: The plaintiff seems to be alleging that the defendants are responsible for these incidents or that the defendants should be held responsible for not correcting the confusion at the time of the election. However, there is no allegation that these stickers were intentionally placed over candidates’ names by state officials to subvert the rights of the City of Woburn voters to choose their mayor. The defendants do not dispute that these stickers were appearing on the voting machines throughout the evening of the election and that those individuals running the election were having trouble keeping up with the misplacement of these stickers. Id. at 71. And even as to the alleged electioneering by election workers, that was not sufficient to create a federal case: Lastly, the plaintiff alleges that election officers told some of the voters for whom they should cast their ballot. There is no allegation that the election officers coerced or threatened anyone or that any voter was deprived of their right to vote. Rather, taking the materials presented in the light most favorable to the plaintiff, it seems that the combination of the confusion surrounding what voters should do with the stickers and the seeming prevalence of broken voting machines caused some miscommunication between those who were attempting to run the election and those who were present to cast their votes. Id. at 71-72. Quoting at length from Hennings and Powell, the Dickie court stressed that elections are run by human beings, and perfection is impossible. The legally relevant question is whether state actors’ conduct was willful or merely negligent: Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 33 of 36 -28- Although there may have been irregularities in the election of mayor for the City of Woburn on November 7, 1995, these irregularities do not constitute official custom or policy, or purposeful or willful conduct which was intended to deprive the voters of Woburn of their right to vote. It is important to note that “purposeful deprivation of the right to vote will not be assumed merely because there is evidence that election officials acted incompetently or negligently …” Id. at 72, quoting Donohue, 435 F. Supp. at 966. And as in the instant case, the Court recognized that state election laws and remedial procedures could be invoked to address these irregularities, but Plaintiff failed to pursue them. Id. Indeed, this respect for federalism, and for the statutory processes available to litigants beyond the federal courts, has animated much of the restraint which federal courts have demonstrated in declining to involve themselves in state election disputes. As the Fifth Circuit noted in Gamza, supra: The very nature of the federal union contemplates separate functions for the states. If every state election irregularity were considered a federal constitutional deprivation, federal courts would adjudicate every state election dispute, and the elaborate state election contest procedures, designed to assure speedy and orderly disposition of the multitudinous questions that may arise in the electoral process, would be superseded by a section 1983 gloss. See Pettengill v. Putnam County R-1 School District, 472 F.2d 121 (8th Cir. 1973); Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978) (dictum). Section 1983 did not create a delictual action for the torts of state officials, see Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695-96, 61 L.Ed.2d 433 (1979), and it did not authorize federal courts to be state election monitors. Id. at 453-4. 3. Plaintiffs’ allegations, even if proven, do not suggest outcome- determinative violations of law. It perhaps goes without saying, but this brief will note it regardless: since the end of widespread de jure and de facto segregation in the American South, all the cases in which Plaintiffs have successfully persuaded federal courts to intervene and call for new elections have involved close results. It is abundantly clear, going back to Griffin and explicitly throughout the Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 34 of 36 -29- cases reviewed in this memorandum of law, that Plaintiffs must not only prove fundamental unfairness and willful conduct by state actors, but also that the unfairness and misconduct affected a “potentially controlling number of the votes cast.” Griffin, 570 F.2d at 1080. Here, even if each and every one of Plaintiffs’ allegations were true, that would not nearly come close to eliminating the near-1,700 vote gap between Vazquez and his nearest rival, Cheri Honkala, let alone Lucinda Little. A timely election contest pursued under state law would have confirmed this as well. The proper response to any alleged Election Day misconduct is through the Philadelphia District Attorney’s Office and the Pennsylvania Office of Attorney General, both of which have announced their interest in investigating such wrongdoing. These allegations, however, do not rise to the level of creating such fundamental, systematic unfairness which call the overall election results into question. Neither the facts nor the law justifies a new election. V. CONCLUSION For all the aforementioned reasons, St. Rep. Emilio Vazquez requests that this honorable court enter an order dismissing the complaint with prejudice. Respectfully submitted, By: _____________________________ Adam C. Bonin Attorney ID #80929 LAW OFFICE OF ADAM C. BONIN 30 S. 15th Street, 15th Floor Philadelphia, PA 19102 adam@boninlaw.com (215) 864-8002 Attorney for Rep. Emilio Vazquez Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 35 of 36 -30- CERTIFICATE OF SERVICE I hereby certify that, on this 22nd day of June, 2017, I served a true and correct copy of the foregoing Motion to Dismiss and Memorandum of Law by Notice of Docket Activity sent automatically by CM/ECF on the following counsel who are registered as CM/ECF filing users who have consented to acting electronic service through CM/ECF: Linda A. Kerns, Esquire 1420 Locust Street, Suite 200 Philadelphia, PA 19102 Tel: (215) 731-1400 linda@lindakernslaw.com Counsel for Plaintiffs Lucinda Little and Republican City Committee of Philadelphia Joel I. Frank, Esquire Lamb McErlane, P.C. P.O. Box 565 West Chester, PA 19381-0565 Tel: (610) 430-8000 jfrank@lambmcerlane.com Counsel for Plaintiff Republican State Committee Samuel C. Stretton, Esquire 301 S. High Street P.O. Box 3231 West Chester, PA 19381 Tel: (610) 696-4243 strettonlaw.samstretton@gmail.com Counsel for Plaintiffs Cheri Honkala and Green Party of Pennsylvania Timothy E. Gates, Chief Counsel Pennsylvania Department of State 306 North Office Building Harrisburg, PA 17120 Tel: 717-783-0736 tgates@pa.gov Counsel for Defendants Pedro Cortés, Secretary of the Commonwealth, and Department of State Bureau of Commissions, Elections and Legislation Benjamin H. Field, Esq. City of Philadelphia Law Department 1515 Arch Street, 15th Floor Philadelphia, PA 19102 Tel: (215) 683-5024 benjamin.field@phila.gov Counsel for Commissioner Anthony Clark, Commissioner Al Schmidt, and Commissioner Lisa M. Deeley Marni Jo Snyder, Esq. Law Offices of M.J. Snyder, LLC Land Title Building 100 South Broad Street Suite 1910 Philadelphia, PA 19110 marni@snyderlawyer.com Tel: (215) 515-3360 Counsel for Philadelphia City Democratic Committee ________________________________ Adam C. Bonin Case 2:17-cv-01562-JHS Document 15-1 Filed 06/22/17 Page 36 of 36