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Conant v. Brown

United States District Court, D. Oregon

March 29, 2017

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

          Ellen F. Rosenbaum ATTORNEY GENERAL Christina Beatty-Walters SENIOR ASSISTANT ATTORNEY GENERAL Attorneys for Defendants

          OPINION & ORDER


         Plaintiff 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.

         Generally, 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[1] 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.

         Defendants 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 prejudice.


         I. Subject Matter Jurisdiction

         A 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).

         A 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.").

         To 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.

         II. 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).


         I. Subject Matter Jurisdiction

         Defendants 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.[2]

         Defendants 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 inaugurated.

         However, 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 relief.

         Additionally, 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.").

         II. Failure to State a Claim

         Plaintiff's 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[3] 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[4]; 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., ¶ 4.[5]

         A. O.R.S. 254.365

         This 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 ...

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