Harding v. EdwardsHarding v. Edwards
Before the Court is the Joint Motion to Dismiss Plaintiffs’ Complaint1 filed by Defendant Louisiana Secretary of State Kyle Ardoin (“Secretary Ardoin”) and Intervenor-Defendant Louisiana Attorney General Jeff Landry (“the Attorney General”) (collectively, “Defendants”). Due to the time-sensitive nature of these proceedings, the Court did not permit the parties to file Oppositions or Replies.2 For the reasons that follow, the Court finds that the Motion shall be GRANTED in part and DENIED in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In a pair of consolidated cases filed in May3 (the “prior case”), this Court considered a challenge to the State’s Emergency Election Plan4, which temporarily expanded early voting and absentee-by-mail voting for the July 2020 and August 2020 elections in response to the public health emergency caused by the COVID-19 pandemic (hereinafter, “the Pandemic”). The plaintiffs5 in the prior case asserted that the Emergency Election
In one respect, the underlying facts have not changed since this Court’s Ruling in the prior case. The Pandemic still looms large and Louisiana remains in Phase 2 of the re-opening plan set forth by Governor John Bel Edwards (“Governor Edwards”) in coordination with the White House Coronavirus Task Force.8 Now, the state is preparing for a series of elections, one of which Secretary Ardoin anticipates will feature voter turnout between four and ten times that of the July and August elections.9 Pursuant to the Governor’s declaration that a state of emergency prevails with respect to the upcoming November and December elections,10 Secretary Ardoin developed a different Emergency Election Plan (“the Proposed Plan”).11
- A period of early voting between October 20 and 27 (excluding Sunday, October 25) from 8:30 a.m. to 6:00 p.m.;
- An October 30 deadline to request an absentee by mail ballot;
- No Pandemic-specific excuses for requesting an absentee by mail ballot; voting by mail is limited to those specifically authorized to vote by mail by
Louisiana Revised Statute §18:1303 (voters over age sixty-five, military and overseas voters, voters with disabilities, hospitalized voters and voters residing in a nursing home, voters working offshore on election day, voterswho expect to be absent from the parish where they vote on election day, and several other categories).14
Plaintiffs’ Motion for Preliminary Injunction,15 which is set for hearing before this Court on September 8 and 9, contends that the failure to implement Pandemic-sensitive voting procedures to augment the State’s statutory election scheme amounts to a “concrete violation of Plaintiffs’ constitutional rights.”16
Defendants Landry and Ardoin jointly move to dismiss the Plaintiffs’ Complaint17 for the following five reasons: “(1) The Court lacks subject matter jurisdiction because Plaintiffs’ claims present non-justiciable political questions and Plaintiffs lack Article III standing; (2) Plaintiffs fail to state claims upon which relief can be granted because a communicable disease is not state action and is not protected by the Voting Rights Act; (3) Plaintiffs fail to state a claim upon which relief can be granted because they have not sufficiently plead their new claims regarding the Americans with Disabilities Act (“ADA”); (4) any Court order will result in electoral chaos in violation of the Purcell doctrine; and (5) Plaintiffs have failed to join the proper parties.”18 Because time is of the essence as the November election quickly approaches, the Court did not permit the Plaintiffs to file an Opposition to the Motion to Dismiss. The sufficiency of Plaintiffs’ allegations as pleaded in the First Amended Complaint19 is considered below.
A. Justiciability and Standing
1) Justiciability
Defendants first contend that this suit should be dismissed because it presents a political question and “there are no judicially manageable standards to determine what measures must be taken to regulate elections in light of the Virus.”20 In their view, the questions presented by this suit are “political – not judicial – questions that are not addressable by the federal courts.”21 Yet, Secretary Ardoin has repeatedly declared that an Emergency Election Plan “will [have to] be decided in court” and beseeches the Court to include in its “the critical mechanisms my office needs to administer the election in the extraordinary circumstances of a pandemic.”22 On September 3, Secretary Ardoin told Baton Rouge-based television station WAFB that the matter is now before the Court and that he “would think the Court’s going to have to order some sort of process.”23 The Secretary’s public comments are not binding legal analysis, but the political question argument rings hollow in light of Defendant Ardoin’s public embrace of this Court’s intervention.
Matters “entrusted to one of the political branches or involve[] no judicially enforceable rights”24 Are considered non-justiciable political questions. While so-called political questions may be “outside the courts’ competence and therefore beyond the
Defendants also offer a quote from a recent case from the District Court for the Northern District of Georgia, where the court stated that granting the plaintiffs’ requested Pandemic-related voting measures would “require the Court to micromanage the State’s election process.”28 The Northern District of Georgia is not binding authority upon this Court. Moreover, the relief sought by the plaintiffs in the Georgia case was significantly more expansive than what Plaintiffs herein seek. Specifically, the Georgia plaintiffs urged the court to postpone the election, force polling places to use paper ballots instead of electronic voting machines, extend the deadlines for receipt of mail-in ballots, adjust the number of voting stations, expanding early voting, implement curbside voting and
Louisiana law commends the process for creating an Emergency Election Plan to the legislature, the Secretary of State, and the Governor.30 But the Court hardly lacks jurisdiction to assess the constitutionality of the state’s voting scheme simply because the scheme arises out of the political process. Indeed, the Fifth Circuit held as much in the recent case Texas Democratic Party v. Abbott, which Defendants themselves describe as “extremely persuasive [and] even controlling.”31 In Abbott, the Fifth Circuit clearly rejected the notion that cases like the instant one present nonjusticiable political questions, explaining:
[W]e need not – and will not – consider the prudence of Texas’s plans for combating the Virus when holding elections. Instead, we must decide only whether the challenged provisions of the Texas Election Code run afoul of the Constitution, not whether they offend the policy preferences of a federal district judge. The standards for resolving such claims are familiar and manageable, and federal courts routinely entertain suits to vindicate voting rights.32
The same can be said here. Thus, the Attorney General and Secretary Ardoin’s Motion to Dismiss challenging justiciability shall be DENIED.
2) Article III Standing
“Article III standing is a jurisdictional prerequisite.”33 If a plaintiff lacks standing to bring a claim, the Court lacks subject matter jurisdiction over the claim, and dismissal
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.39
To establish Article III standing, an injury must be “concrete, particularized, and actual or imminent.”40 A particularized injury is one which “affect[s] the plaintiff in a
a) Standing: Individual Plaintiffs
Relying on their success on the standing question in the prior case, movants argue the same result is compelled now, because “[n]othing indicates that Plaintiffs are in substantially different positions than they were only weeks ago for standing purposes.”44 The Court disagrees. The Pandemic-related state of emergency remains the same, but all the other operative facts surrounding Plaintiffs’ claims have changed.
Jennifer Harding and Jasmine Pogue, who were also plaintiffs in the prior case, allege the same personal, medical, and social circumstances to support their claim. This Court’s conclusion in the prior case, that the plaintiffs failed to articulate sufficient injury-in-fact, turned on its finding that the Emergency Election Plan then in place did, in fact, permit Harding and Pogue to request an absentee by mail ballot. Specifically, Harding asserted that she wanted to vote by mail in the July and August elections because of her caretaker role for her high-risk, elderly parents and grandmother, but she hesitated to request a ballot on that basis because she was not a full-time caretaker. This Court wrote:
The “COVID-19 Emergency Application” prepared by the Secretary of State allows an applicant to attest that she is unable to vote in person because she is “Caring for an individual . . . who is subject to a medically necessary quarantine or isolation order as a result of COVID-19 or who has been advised by a health care provider to self-quarantine due to COVID-19
concerns.”45 The excuse as written is not conditioned upon having only live-in or full-time care responsibilities. It is true, as the application states, that providing a false statement on the ballot application is a felony offense, but the Court fails to see why Harding would be subject to a penalty for making a false statement when she clearly alleges that she has significant elder care responsibilities, and the Secretary of State’s form does not inquire as to the “live-in” or “full-time” nature of those responsibilities. The ballot application states that a penalty attaches to “knowingly making false statements;” as Harding avers that she does not know whether she meets the criteria, her attestation that she needs to vote absentee because she is “caring for an individual. . .” would not be knowingly false.46
The First Amended Complaint in the current action alleges that Harding’s voting rights would be best protected by a Plan that allowed her to vote by mail in order to protect her elderly parents and grandmother.47 Harding’s circumstances may be the same, but the legal landscape for the upcoming elections is vastly different and distinguishable. Now, there is no Emergency Election Plan, and no Pandemic-related mail-in voting provision available to Harding or other similarly situated voters with Pandemic-related concerns. Previously, this Court held that “Harding’s own belief that she would not qualify based on the Secretary of State’s criteria is apparently entirely speculative and not sufficiently concrete to give rise to an injury-in-fact.”48 Now, Harding’s inability to qualify for an absentee by mail ballot is an objective fact, not speculation. In this Court’s view, the state’s failure to provide any accommodation for Pandemic-affected voters is state action which operates to create an injury-in-fact that conveys upon Harding Article III standing.
Likewise, Plaintiff Jasmine Pogue’s allegations in the First Amended Complaint echo her allegations in the prior case but are more compelling in the absence of an
Pogue alleges that she suffers from asthma and has a history of upper respiratory infections, including one in mid-March of this year. Her asthma attacks leave her with “severe difficulty breathing.” Despite this, she “does not believe that her asthma qualifies as ‘moderate or severe’”: the COVID-19 Emergency Application lists “moderate to severe asthma” as an example of the conditions that place an individual at higher risk due to the Virus and, therefore, qualify him or her for an absentee ballot. Pogue, based on her own belief that her asthma is not moderate to severe, “does not believe that she qualifies to apply for an absentee ballot.” The Court admires Pogue’s desire to be cautious when filling out the ballot application. But her alleged injury – being forced to vote in person because she does not fulfill any of the excuses provided – is speculative. She did not apply; her application was not rejected. Additionally, it seems to the Court that, based on her asthma and history of respiratory infections, Pogue qualifies for an absentee ballot on the basis of “chronic lung disease,” which is one of the explicitly enumerated qualifying conditions [under the Emergency Election Plan].As it stands, Pogue’s alleged injury is hypothetical. It assumes that she does not meet any of the [newly] provided excuse criteria and that, if she applied, her application would be rejected.49
Under the former Emergency Election Plan, Pogue could have qualified to vote by mail pursuant to one of the Virus-specific excuses provided for the July and August elections. Now, in the absence of a Plan, Pogue’s only option to mail vote is to pursue the statutory disability excuse50 based on her asthma.
The Court finds that Pogue successfully alleges injury because the statutory disability excuse imposes a burden – in terms of time, effort, and potential additional risk of exposure – that she did not face for the July and August elections which made specific
It is true that the Fifth Circuit in Texas Democratic Party v. Abbott stated that “[t]he Constitution is not offended simply because some groups find voting more convenient than do the plaintiffs. . .”52 Although the burden placed upon Pogue to obtain and submit proof of disability could be characterized as merely “inconvenient,” the fact that state officials previously accommodated individuals in her situation by temporarily expanding mail-in voting excuses demonstrates to this Court that the burden of complying with the disability excuse was viewed as onerous enough that relief was required. Additionally, although Pogue does not explicitly allege such, the Court notes that injury also arises from the confusion caused by attempting to understand and comply with the ever-shifting landscape of Pandemic-era voting procedures.
Pogue’s attestation that that voting in person is “her only option to participate in the November and December elections”53 is perplexing in light of that she “ha[s] disabilities within the scope defined by the ADA.”54 Nevertheless, the Court finds that Pogue has clearly articulated injury to support Article III standing.
Plaintiff Omega Taylor is 56 years old and has diabetes, high blood pressure, and “other medical conditions that put her at high risk of severe complications from COVID-
Defendants point out that Taylor’s allegations are belied to some extent by the fact that she worked at a polling place as Commissioner in Charge for both the July and August elections, spending two full election days engaged in at least some level of contact with the public. Defendants argue that Taylor’s service as Commissioner in Charge “substantially eviscerates any standing she might have had to be a proper Plaintiff in this case.”61 While this circumstance undermines the credibility of Taylor’s claims regarding fear of exposure to the virus, on a Motion to Dismiss the Court “accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’”62 Taylor’s presence at the polling place as a Commissioner does not negate her attestation that “the interior space [of her polling place] is too small to allow for social distancing.”63 While Taylor may lack credibility regarding her fear of Virus risks, her alleged injury is not fear, it is the risk of exposure to the Virus. Taylor alleges that, due to the actions of Defendants, she will be
Defendants argue that, even if the statutory scheme “forces” Plaintiffs to vote in person, the risk presented by the Pandemic is too remote and speculative to give rise to a “certainly impending” injury as required by the doctrine. Defendants’ woeful attempt to support this contention by reference to two studies of the April 2020 Wisconsin election falls flat.65 The question before the Court is whether, based on the allegations in the First Amended Complaint, Plaintiffs have sufficiently articulated an injury-in-fact. The purported findings of two studies (technically, one study and one “pre-print”) regarding the epidemiological effect upon the population of a different state, based on voting in a different election five months ago, is hardly dispositive of this issue.
Defendants note that in its earlier Ruling the Court held that the “chain of possibilities” that would result in an individual becoming infected with Coronavirus due to voting in person was too remote to support Article III standing. That reasoning was based on an entirely different set of facts. First, this Court’s conclusion that Harding and Pogue’s injuries were too speculative began with the fact that, in this Court’s view, they did qualify to vote by mail under the Emergency Election Plan then in place. No such provision is available to them now. Next, this Court’s assessment of the risk that Plaintiffs would face
In Texas Democratic Party v. Abbott the Fifth Circuit instructs that
The Constitution is not offended simply because some groups find voting more convenient than do the plaintiffs because of a state’s mail-in ballot rules. That is true even where voting in person may be extremely difficult, if not practically impossible, because of circumstances beyond the state’s control, such as the presence of the Virus.70
While the Pandemic is a “circumstance beyond the state’s control,” the procedures for
Defendants consulted public records to determine that all three individual Plaintiffs in this action voted in person for the July and August 2020 elections (the Plaintiffs also attest as much in the Declarations attached to the Motion for Preliminary Injunction).73 In the eyes of Defendants, the fact that Plaintiffs voted in person is fatal to their Article III standing. Rather callously, movants argue that voting in person is not as dangerous as they claim, stating, “Plaintiffs apparently have not contracted the Virus or died as a result.”74 The suggestion that Plaintiffs must actually become sick or die before they have
b) Organizational Plaintiffs
The two organizational Plaintiffs in this suit, Power Coalition for Equity and Justice (“Power Coalition”) and the Louisiana State Conference of the NAACP (“Louisiana NAACP”), were also plaintiffs in the prior case . This Court previously dismissed their claims finding that neither organization had adequately established its standing under Article III. The rationale behind that conclusion relied on the fact that the Emergency Election Plan for the July and August elections affected an expansion of voting opportunities and could thus hardly be said to frustrate the missions of the organizations, both of which had preexisting voter outreach and education components. Here, as in the prior cases, Power Coalition and the Louisiana NAACP allege that they have diverted their limited resources to respond to the need for voter education and organization efforts in advance of the fall elections. The Louisiana NAACP advances the additional argument that “a substantial number of [its thousands of members] have medical conditions, like asthma, hypertension, and diabetes that put them at higher risk of infection or death from COVID-19.”75
Power Coalition describes itself as a “nonpartisan, nonprofit statewide civic engagement table in Louisiana that works to build grassroots power, advocate for community-centered policies, and increase voter participation.”80 In 2019, Power Coalition’s voting-related efforts included over 1.2 million “contact attempts” in the form of door knocks, phone calls, and text messages to “infrequent and semi-frequent voters of color.”81 Power Coalition also “routinely provides rides to the polls and rapid response voter support on Election Days.”82
In NAACP v. City of Kyle, Tex., the Fifth Circuit found that the Home Builders Association of Greater Austin (“HVA”) did not have organizational standing in a Fair Housing Act case where it alleged injury based on a new city housing ordinance because the HBA failed to allege how the activities it undertook in response to the challenged ordinance “differ[ed] from the HBA‘s routine lobbying activities.”85 The allegations here assert a significant redirection of the organizations routine and customary operational efforts. Power Coalition clearly alleges that it has been pulled away from its routine activities and has instead been engaged in “developing and correcting multiple versions of documents describing how absentee voting qualifications have evolved” and has “launched new efforts to encourage its members and constituents to sign up to serve as poll workers.”86 The Court is persuaded that, if not for the Defendants’ actions, “the threat of long lines and congestion at polling sites would be mitigated and [Power Coalition] would not be forced to steer its own volunteers to instead work as poll workers or spend numerous hours developing outreach materials.”87
The Louisiana NAACP likewise alleges that, as an organization dedicated to “ensuring the protection of voting rights” that undertakes “efforts to register, educate, and advocate on behalf of Black voters throughout Louisiana,” it has been required to “[divert] its limited resources”90 in response to the actions of Defendants. It has “spent money and resources on obtaining masks and sanitization products” for its members to vote safely in person “if required to do so.”91 In addition, it has invested in “advertising and virtual canvassing and public education for community members in response to widespread concerns among its members about the health risks of congregating at polling places.”92
B. State Action
Defendants next contend that Plaintiffs’ claims should be dismissed because their alleged injuries are not fairly traceable to any state action. Instead, they argue, the novel Coronavirus – or, as they sarcastically call it, “the invisible menace”93 – is the culprit, and, as this Court is powerless to control the Pandemic, any order from this Court could not redress Plaintiffs’ alleged injuries. In this Court’s view, pointing the finger entirely at the Pandemic is disingenuous. Clearly, it is the combination of state action (or inaction) and the existence of the Pandemic that gives rise to Plaintiffs’ claims. While the Pandemic may be the sine qua non, it poses a real risk which can be ameliorated by reasonable,
Defendants’ state action argument was on stronger footing in the prior case, when, as discussed ad nauseam throughout this Ruling, Defendants promulgated an Emergency Election Plan for the July and August elections that responded to the Pandemic by enacting a meaningful expansion of early voting and mail-in voting. Given the landscape of expanded mail voting, the risk of Coronavirus exposure was more traceable to the Pandemic, not the actions or inactions of state officials. Previously, the state recognized and abided by its obligation to protect and enfranchise its citizens’ vote. But now Louisiana voters are left high and dry without a Plan. Secretary Ardoin has said that he expects that the Court will “have to order some sort of process”96; it appears that even he views the Court as being in a position to redress Plaintiffs’ alleged injuries. Accordingly, Defendants’ Motion to Dismiss shall be DENIED with respect to their state action argument.
C. Americans with Disabilities Act (ADA)
Count IV in Plaintiffs’ Complaint is a claim pursuant to the Americans with Disabilities Act (
The United States Supreme Court has instructed that “[a] claim is not ripe for adjudication if it rests upon ‘“contingent future events that may not occur as anticipated, or indeed may not occur at all.”’”99 The ripeness doctrine‘s “basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . A case is generally ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if further factual development is required.”100 Assuming arguendo that Plaintiffs Taylor and Pogue are disabled, as they claim, the law already provides a means for them to vote by mail, pursuant to
D. Purcell
Defendants seek dismissal of this case based on Purcell v. Gonzalez, where the Supreme Court held that courts in cases like this are bound to “weigh . . . considerations specific to election cases.”102 Those considerations include the possibility that “[c]ourt orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.”103 The Purcell doctrine does not command judicial abstention in late-breaking election cases. But Purcell clearly instructs that a court considering significant judicial intervention “on the eve of an election”104 is to proceed with caution, recognizing that, in the words of the Supreme
Defendants declare that “Louisiana is on the eve of the November election”106 and that “election administrators are currently making preparations to print and distribute vote by mail applications and ballots.”107 According to Defendants, “[c]hanging the method of absentee balloting at this stage will invite chaos into the system and harm more people though voter confusion than any court-ordered remedy would help.”108 The Court finds this statement to be imprecise and unpersuasive. As an initial matter, the Court questions whether we truly find ourselves “on the eve of an election.” This Court’s Ruling in Power Coalition and Clark relied to some extent on Purcell because it was not issued until early voting was already underway for the July election. By contrast, as Defendants state, early voting for the November election begins on October 20, six weeks away. And the statutory deadline to request an absentee by mail ballot is October 30.
As to the suggestion that chaos and voter confusion will be invited into the system by judicial involvement, voter confusion or perceived chaos have already resulted from the state’s rollback of the protections offered by the previous Emergency Election Plan. And, as discussed above, Secretary Ardoin himself has repeatedly stated that the Court will have to step in to resolve the issue. It is possible that the Defendants may be presented with logistical challenges depending on the outcome of the hearing on the Motion for Preliminary Injunction. To be sure, the Pandemic has upended normal operating procedures and presented novel challenges across our society. For example,
E. Failure to Join Proper Parties
Defendants offer a very brief final argument: that this action should be dismissed because Plaintiffs have failed to include any of the parish election boards as Defendants, Because Defendants believe that this Court could not accord complete relief in the absence of the boards, Defendants contend that they are required by
It is a matter of clear Fifth Circuit precedent that the “buck stops” with the Secretary of State when it comes to traceability and redressability of voting-related injuries. The
The Fifth Circuit reasoned that, although Texas’s vote-by-mail statutes are administered by local officials, it is the Texas Secretary of State who “has the duty to ‘obtain and maintain uniformity in the application, operation, and interpretation of’ Texas’s election laws, including by ‘prepar[ing] detailed and comprehensive written directives and instructions relating to’ those vote-by-mail rules.”114 Based on that statutory scheme, the Fifth Circuit found, the state officials had not shown that plaintiffs lacked standing, because the voting-related injuries were fairly traceable to and redressable by the
In its Abbott opinion, the Fifth Circuit cited OCA-Greater Houston v. Texas,116 a 2017 Fifth Circuit case where the plaintiff challenged a Texas law requiring an interpreter to “be a registered voter of the county in which the voter needing the interpreter resides.”117 Texas argued that the plaintiff lacked standing because it had named the state and the Secretary of State as defendants, when in fact, it argued, “the plaintiff’s injury was caused by local election officials—who determined whether a voter could serve as an interpreter—not the state or its Secretary of State.”118 The Fifth Circuit disagreed, holding that the “invalidity of a Texas election statute is, without question, fairly traceable to and redressable by the State itself and its Secretary of State, who serves as the ‘chief election officer of the state.’”119 Again, though the OCA court applied Texas law, the
Defendants cite to Jacobson v. Florida Sec’y of State,121 a recent Eleventh Circuit case where the court held that the plaintiff’s alleged voting-related injury was not traceable
The Jacobson plaintiff challenged “a law that governs the order in which candidates appear on the ballot in Florida’s general elections.”122 The Eleventh Circuit explained that “Florida law tasks the Supervisors [of Elections], independently of the Secretary, with printing the names of candidates on ballots in the order prescribed by the ballot statute.123 Because the Supervisors of Elections, not the Secretary, had legal authority over ballot ordering, the Eleventh Circuit held that “any injury from ballot order is not traceable to the Secretary” because “the Supervisors are independent officials under Florida law who are not subject to the Secretary’s control.”124 The Florida election laws at issue in Jacobson stand in sharp contrast to Louisiana’s statutory scheme, discussed above, which, particularly in the emergency election context, positions the Secretary of State as the ultimately accountable official, while requiring that “all officials of the state and of any political subdivision thereof shall cooperate with and provide assistance to the secretary as necessary to implement the plan.”125 Moreover, in contrast with Florida law, Louisiana law tasks the Secretary of State – not local officials – with the preparation of ballots, including “the size and weight of paper, size and type of print, and other matters pertaining to absentee by mail and early voting ballots.”126
For the reasons stated above, Defendants’ Motion to Dismiss133 is hereby GRANTED in part and DENIED in part. Plaintiffs’ claims under the ADA are dismissed without prejudice. In every other respect, the Motion to Dismiss is DENIED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana the 7th day of September, 2020.
CHIEF JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA