United States District Court, D. Oregon
ROY B. CONANT, Plaintiff,
KATE BROWN, Governor, State of Oregon; JEANNE P. ATKINS, Secretary of State of the State of Oregon; and ELLEN F. ROSENBLUM, Attorney General, State of Oregon, Defendants. Roy B. Conant Portland, Oregon 97213 Plaintiff Pro se
F. Rosenbaum ATTORNEY GENERAL Christina Beatty-Walters SENIOR
ASSISTANT ATTORNEY GENERAL Attorneys for Defendants
OPINION & ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE
Roy B. Conant, appearing pro se, brings this voting
rights action against Kate Brown, Governor of the State of
Oregon, and Ellen Rosenbaum, Oregon's Attorney General.
In an Amended Complaint filed December 27, 2016, ECF 14,
Plaintiff dropped the State of Oregon as a Defendant and
added then-Secretary of State Jeanne Atkins as a Defendant.
Because Plaintiff asserts his claims against Defendants in
their official capacities, Am. Compl. 2, ¶¶ 2a-2c,
and because Dennis Richardson is now Oregon's Secretary
of State, I construe the claims as being brought against
Richardson instead of Atkins.
Plaintiff attacks as unconstitutional certain Oregon statutes
governing the processes for voting in presidential elections.
He relies on Section 2 of the Fourteenth Amendment as the
constitutional provision at issue although he mentions other
constitutional provisions as well. He argues that the state
law prohibiting the names of the presidential
electors themselves from appearing on the ballot
violates Section 2 of the Fourteenth Amendment. He also
challenges Oregon's "winner take all" system of
awarding presidential electors based on a majority/plurality
vote. Additionally, he argues that Oregon's
"closed" primary system effectively deprives him of
the right to vote.
move to dismiss for lack of subject matter jurisdiction and
alternatively, for failure to state a claim. I address both
arguments. I agree with Defendants that Plaintiff's
Amended Complaint fails to contain allegations establishing
constitutional standing and I also conclude that some of
Plaintiff's requested relief is moot. Ordinarily, I would
allow Plaintiff leave to amend to attempt to cure the
standing defect. However, because I further agree with
Defendants that Plaintiff fails to state a legally cognizable
claim, any such amendment would be futile. As a result, I
grant Defendants' motion and I dismiss the claims with
Subject Matter Jurisdiction
motion to dismiss brought pursuant to Federal Rule of Civil
Procedure 12(b)(1) addresses the court's subject matter
jurisdiction. The party asserting jurisdiction bears the
burden of proving that the court has subject matter
jurisdiction over his claims. Kokkonen v. Guardian Life
Ins. Co. of Am., 511 U.S. 375, 377 (1994).
challenge to standing is appropriately raised pursuant to
Federal Rule of Civil Procedure 12(b)(1). Maya v. Centex
Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) ("lack
of Article III standing requires dismissal for lack of
subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1)") (emphasis omitted); Chandler v.
State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1122 (9th
Cir. 2010) ("Because standing and ripeness pertain to
federal courts' subject matter jurisdiction, they are
properly raised in a Rule 12(b)(1) motion to dismiss.").
satisfy Article III standing, a plaintiff must show that he
or she has suffered an "injury in fact" and a
"causal connection between the injury and the challenged
action of the defendant." Multistar Indus., Inc. v.
U.S. Dep't. of Transp., 707 F.3d 1045, 1054 (9th
Cir. 2013) (also noting third requirement that it be likely,
not speculative, that the injury will be "redressed by a
favorable decision") (internal quotation marks omitted).
The party seeking to invoke the subject-matter jurisdiction
of the court has the burden of establishing that such
jurisdiction exists. Chandler, 598 F.3d at 1122.
Failure to State a Claim A motion to dismiss for failure to
state a claim may be granted only when there is no cognizable
legal theory to support the claim or when the complaint lacks
sufficient factual allegations to state a facially plausible
claim for relief. Shroyer v. New Cingular Wireless
Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In
evaluating the sufficiency of a complaint's factual
allegations, the court must accept all material facts alleged
in the complaint as true and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012). However, the court need not accept unsupported
conclusory allegations as truthful. Holden v.
Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992); see
also Warren v. Fox Family Worldwide, Inc., 328 F.3d
1136, 1139 (9th Cir. 2003) ("we do not necessarily
assume the truth of legal conclusions merely because they are
cast in the form of factual allegations") (internal
quotation marks and alterations omitted).
Subject Matter Jurisdiction
correctly characterize the Amended Complaint as lacking in
relevant factual assertions. Other than alleging the office
of each named Defendant and Plaintiff's place of birth,
citizenship, and residence, the remainder of the allegations
are legal assertions and conclusions. There is no factual
assertion that Plaintiff is registered to vote in Oregon
which would be a predicate for alleging harm caused by laws
governing the post-registration voting process. Also,
Plaintiff baldly concludes that certain Oregon statutes
violate the constitutional rights of unaffiliated voters.
However, he does not allege that he is an unaffiliated voter.
There are no factual assertions that he has been injured. The
only allegations of harm are conclusory ones averring that
"[h]arm to Plaintiff occurred in concert with the
Presidential Primary election of May 17, 2016; the 2016
Presidential election held on November 8, 2016; and the
convening of electors on December 19, 2016." Am. Compl.
5. Because these allegations are insufficient, Plaintiff
fails to establish that he has constitutional standing to
pursue these claims.
also argue that to the extent Plaintiff's claims relate
to the 2016 presidential primary and general election and
seek relief based on those claims, the claims are moot
because the electors have already fulfilled their duties
relating to the November 2016 presidential election. Because
mootness is a jurisdictional issue, Defendants argue that the
claims addressed to the certification of the 2016 election
results must be dismissed. E.g., Zixiang Li v.
Kerry, 710 F.3d 995, 1001 (9th Cir. 2013) (when it is no
longer possible to obtain relief for a claim, the claim is
moot and "must be dismissed for lack of
jurisdiction") (internal quotation marks omitted). I
agree with Defendants that the challenges to the 2016
certified election results and ascertainment of electors are
moot because that process is complete, the electors have
performed their duties, and the President has been
a court may invoke jurisdiction over a claim for declaratory
relief even if the case is moot in regard to injunctive
relief. Feldman v. Bomar, 518 F.3d 637, 642 (9th
Cir. 2008) (citing Super Tire Eng'g Co. v.
McCorkle, 416 U.S. 115, 121-22 (1974)). Under Super
Tire, a claim remains live if a challenged policy is
fixed and definite, not contingent upon executive discretion,
and by its continuing presence casts a substantial adverse
effect on the interests of the parties. 416 U.S. at 122-24.
While Paragraphs 7 and 8 in Plaintiff's Prayer for Relief
seek injunctive relief, Paragraphs 1-6 seek declaratory
relief requesting that the Court "find" certain
statutory provisions and the winner-take-all electoral vote
allocation to be unconstitutional. Am. Compl. 6-7. Super
Tire indicates that jurisdiction over Plaintiff's
claims is appropriate to the extent they seek declaratory
an otherwise moot action may still be subject to review under
the "capable of repetition, yet evading review"
exception, which applies when both the duration of the
challenged action is too short to allow full litigation
before it ceases, and there is a reasonable expectation that
the plaintiffs will be subjected to the same action again.
Spencer v. Kemna, 523 U.S. 1, 17 (1998). This
principle applies in election cases. E.g.,
Norman v. Reed, 502 U.S. 279, 287 (1992) (challenge
to law regarding the placement of new party on ballot not
moot even though election was over because issue was
"worthy of resolution as capable of repetition, yet
evading review") (internal quotation marks omitted);
Rosario v. Rockefeller, 410 U.S. 752, 756 n.5 (1973)
(challenge to election law was not moot even though the
primary election had been completed because question raised
was "capable of repetition, yet evading review.").
Failure to State a Claim
claims as pleaded in the Amended Complaint are not entirely
clear, and his Response Memorandum filed in opposing
Defendants' motion, ECF 23, provides only limited clarity
as to his theories. Reading the Amended Complaint and
Response Memorandum together, I understand Plaintiff to be
raising the following claims: (1) Oregon Revised Statute
§ (O.R.S.) 254.365 which governs voting in a primary
election and provides, among other things, that the
voter be registered with one of the major
political parties or registered as a nonaffiliated voter and
who desires to vote in the primary of a major political party
that admits nonaffiliated voters, violates the Equal
Protection Clause and the principle of one-person,
one-vote; Am. Comp. 3, ¶ 1; (2) O.R.S. 248.355
which requires candidates for the position of presidential
elector to sign a pledge that if elected, the presidential
elector will vote in the electoral college for the candidates
of the party of president and vice-president, violates the
Equal Protection Clause and the principle of one-person,
one-vote; id., ¶ 1; (3) Oregon's
"winner take all" system for allocating
presidential electors violates the Equal Protection Clause
and the principle of one-person, one-vote; Am. Compl. 4,
¶ 3; and (4) O.R.S. 248.360(2) which prohibits the names
of presidential electors from being printed on the ballot,
violates Section 2 of the Fourteenth Amendment. Id.,
statute, entitled "Voting at primary election by major
party members and nonaffiliated electors" prohibits a
voter from voting at a primary election for any candidate of
a major political party unless one of two conditions is met:
(1) the voter is registered as being affiliated with one of
the major political parties; or (2) the voter is registered
as not being affiliated with any political party and wishes
to vote in the primary of a major political party that has
provided, under subsection (3) of the statute, for a primary
election that admits electors not affiliated with any
political party. O.R.S. 254.365(1)(a), (b). Under subsection
(2), except as provided in O.R.S. 254.370(3), a primary
election voter registered as being affiliated with a major
political party is given a ballot of that major political
party and may not be given a ballot of any other political
party at that primary election. O.R.S. 254.365(2). A
nonaffiliated voter shall be given the ballot of the major
political party in whose primary election that voter wishes
to vote if that major political party has provided, under
subsection (3) of ...