Isabel v. ReaganIsabel v. Reagan
INTRODUCTION
In February 2016, Arizona’s Secretary of State, Defendant Michele Reagan (“the Secretary”), published the State’s calendar for the 2016 election cycle. This calendar identified Monday, October 10, 2016—Columbus Day—as the voter registration deadline for the 2016 general election (“the 2016 Election”).
Plaintiff David Isabel (“Isabel”), who moved to Arizona from New York in early October 2016, registered to vote at the Arizona Department of Motor Vehicles (“DMV”) on October 11, 2016. Because this registration effort occurred one day after the registration deadline the Secretary had previously set, Isabel was only allowed to cast a provisional ballot during the 2016 Election, which ultimately wasn’t counted by officials within the Maricopa County Recorder’s Office.
Isabel has now sued the Secretary, as well as Maricopa County Recorder Adrian Fontes and Maricopa County (collectively, “the County Defendants”), arguing that the Secretary and the County Defendants violated two federal election statutes as well as
Notably, Isabel seeks to utilize
Now pending before the Court are the County Defendants’ motion to dismiss for lack of subject-matter jurisdiction (Doc. 32) and the Secretary’s motion to dismiss for failure to state a claim (Doc. 33). The motions are fully briefed and the Court heard oral argument on June 5, 2019. For the following reasons, the Court will deny the County Defendants’ motion and grant the Secretary’s motion.
BACKGROUND
I. Factual History
A. Voter Registration Deadline
The facts alleged in the complaint, which the Court assumes to be true for purposes of ruling on the pending motions, are as follows. To be eligible to vote in a particular election, Arizona law requires that a voter’s registration form be “rеceived by the county recorder . . . prior to midnight of the twenty-ninth day” before that election. (Doc. 1 ¶ 13.)
The Secretary set the voter registration deadline for the 2016 Election as Monday, October 10. (Id. ¶ 19.) The Secretary and the County Defendants adopted a policy that deemed invalid any ballot cast in the 2016 Election by a voter who registered on October 11, 2016. (Id. ¶¶ 22, 23.) More than 2,000 Arizonans registered to vote on October 11, 2016, including Isabel. (Id. ¶ 24.)
B. Prior Lawsuit To Enjoin the Secretary From Implementing Deadline
On October 19, 2016, the Arizona Democratic Party and the Democratic National Committee filed a lawsuit against the Secretary, seeking, among other rеlief, a temporary restraining order to enjoin her from “disqualifying any Arizona voter from voting a regular ballot in the November 8 Election solely because he or she did not register by October 10, 2016, if he or she submitted a valid voter registration application before midnight on October 11, 2016 and is otherwise eligible to vote.” Complaint at 10, Arizona Democratic Party v. Reagan, 16-cv-03618 (D. Ariz. 2016.)1
On November 3, 2016, the Hon. Steven P. Logan issued an order denying the request for emergency injunctive relief. Although Judge Logan agreed with the plaintiffs that the Secretary violated the NVRA by setting the voter registration deadline on Columbus Day, Judge Logan concluded the plaintiffs’ “delay in initiating this action, and the resulting prejudice that has arisen due to that delay, precludes relief.” Arizona Democratic Party v. Reagan, 2016 WL 6523427, *16 (D. Ariz. 2016). As a result, Judge Logan didn’t require the votes of those who registered on October 11 to be counted. Id. at 18.
On November 8, 2016, Isabel went to his assigned polling location to cast his ballot. (Doc. 1 ¶ 35.) Isabel was instructed to complete а provisional ballot because he wasn’t on the list of eligible voters. (Id.) Isabel’s provisional ballot was verified by the County Defendants but not counted because he had registered on October 11. (Id. ¶¶ 36, 37.)
On or about November 28, 2016, the County Defendants certified the 2016 General Election Official Canvass. (Id. ¶ 39.) On or about December 5, 2016, the Secretary instructed the Assistant Secretary of State to serve as the Acting Secretary of State and certify the 2016 General Election Official Canvass. (Id. ¶ 40.) The Secretary signed the 2016 General Election Official Canvass Certification as both the Secretary of State and the Acting Governor. (Id. ¶ 41.)
In 2017, Isabel first learned that his ballot had not been counted. (Id. ¶ 43.)
II. Procedural History
On October 9, 2018, Isabel filed his complaint in this action. (Doc. 1.)
On November 27, 2018, the County Defendants filed a motion to dismiss for lack of subject-matter jurisdiction under
On November 30, 2018, the Secretary filed a motion to dismiss for failure to state a claim under
DISCUSSION
I. The County Defendants’ Motion To Dismiss
The County Dеfendants’ motion identifies five reasons why the Court lacks subject-matter jurisdiction over Isabel’s claims. First, the County Defendants assert that Isabel lacks standing because his injury (not having his vote counted in the 2016 Election) isn’t “fairly traceable” to their conduct and isn’t redressable by the Court. (Doc. 32 at 4-7.) Second, they argue the Arizona Legislature’s passage of Senate Bill 1307—which ensures no future voter registration deadlines will fall on a weekend or holiday—moots Isabel’s claims, as does the doctrine of laches. (Id. at 7-12.) Third, they contend Isabel’s claims against them are “improper because recorders are not empowered to establish statewide
However, during the оral argument on June 5, 2019, the County Defendants conceded that their second argument (mootness/laches) lacks merit and withdrew their fifth argument (exhaustion under the HAVA). Accordingly, the Court will only address their first, third, and fourth arguments below.
A. Standing
1. “Fairly Traceable”
The County Defendants ask the Court to dismiss this action because the injury suffered by Isabel—the failure to count his vote in the 2016 Election—isn’t “fаirly traceable” to them. They contend that, although they “tallied the ballots in the 2016 General Election, [they] did not set the voter registration deadline,” which was set by the Secretary. (Doc. 32 at 6.) They further contend they were required to abide by this deadline by the threat of criminal penalties. (Id.) They conclude that Isabel’s injury was therefore
Isabel, in response, contends his injury is directly traceable to the County Defendants because “the County adopted and implemented a policy that deemed invalid any ballot cast in the November 2016 Election by a voter who registered on October 11, 2016.” (Doc. 36 at 6.) As for “the-Secretary-made-us-do-it defense,” Isabel argues the County Defendants are confusing comparative fault with traceability. (Id. at 6-7.)
The County Defendants dedicate their entire reply to their traceability argument. (Doc. 39.) They cite Kurtz v. Baker, 829 F.2d 1133 (D.C. Cir. 1987), for the propоsition that “a defendant’s action cannot cause a plaintiff’s alleged injury if the defendant has no authority or power to act.” (Doc. 39 at 3.)
The County Defendants are not entitled to dismissal based on a lack of traceability. The Ninth Circuit has held that the “Article III causation threshold” is “less rigorous” than proximate causation. Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969, 974 n.7 (9th Cir. 2008); see also Rothstein v. UBS AG, 708 F.3d 82, 92 (2d Cir. 2013) (“[T]he test for whether a complaint shows the ‘fairly traceable’ element of Article III standing imposes a standard lower than proximate cause.”). Thus, “[t]o survive a motion to dismiss for lack of constitutional standing,” plaintiffs need only “establish a ‘line of causation’ between defendants’ action and their alleged harm that is more than ‘attenuated.’ A causal chain does not fail simply because it has several ‘links,’ provided those links are ‘not hypothetical or tenuous’ and remain ‘plausib[le].’” Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (citations omitted). Put another way, a plaintiff need not allege that a defendаnt was “the sole source of” its injury and “need not eliminate any other contributing causes to establish its standing.” Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894, 901 (9th Cir. 2011).
Here, Isabel alleges the County Defendants implemented the policy that resulted in his provisional ballot being disregarded. This is sufficient to show that Isabel’s asserted injury is “fairly traceable” to the County Defendants’ conduct, because it places the County
Kurtz is not to the contrary. There, “an advocate of ‘secular humanism’” sued the chaplains of the United States Senate and House of Representatives after his request to make a non-religious speech to Congress about moral responsibility was denied. 829 F.2d at 1134-35. The D.C. Circuit concluded the plaintiff lacked standing to assert such a claim because the chaplains didn’t have the authority or discretion to approve such speaking requests—“the opportunity to address either house is a privilege rarely extended to outsiders, and then only with the approval of the members of the respective houses.” Id. at 1142. In other words, the Kurtz court concluded the plaintiff couldn’t establish traceability because he’d sued the wrong people. Moreover, the Kurtz court noted the plaintiff would have been able to establish traceability if there had been “a directive from the House or the Senate that their chaplains not admit Kurtz to the benefits otherwise available to him,” id. at 1144, or if “the chaplains were implementing an unconstitutional directive from their superiors,” id. at 1145. That, of course, is exactly the situation here—Isabel faults the County Defendants for enforcing and implementing thе Secretary’s allegedly unconstitutional directives.
2. Redressability
The County Defendants next argue Isabel’s injury isn’t redressable because “there is no court decision that can require Defendants to retroactively count Plaintiff’s ballot cast in the 2016 general election.” (Doc. 32 at 7.)
This argument is premised on a misconception that Isabel is seeking injunctive relief. To be clear, Isabel only seeks monetary relief in this case. (Doc. 1 at 15.) The Supreme Court has repeatedly held “that actions for damages may be maintained for wrongful deprivations of the right to vote.” Carey v. Piphus, 435 U.S. 247, 265 n.22 (1978)
B. Power Of County Recorders
The County Defendants argue Count 1 is improper because “recorders are not empowered to establish statewide voter registration deadlines.” (Doc. 32 at 13.) Rather, “the Secretary sets the voter registration deadline.” (Id.)
This argument merely repaсkages the County Defendants’ standing argument regarding traceability, which the Court rejected above.
C. Failure To Provide Notice Under The NVRA
The County Defendants also argue Count 1 is improper because a prerequisite to filing suit under the NVRA is “pre-suit notice to the chief election official of the State (i.e. Secretary of State).” (Doc. 32 at 13.)
This argument lacks merit. The NVRA provides that an “aggrieved person need not provide notice” before bringing a civil action if “the violation occurred within 30 days before the date of an election for Federal office.”
II. The Secretary’s Motion To Dismiss
The Secretary argues Isabel has failed to state a claim because: (1) Isabel can’t assert a violation of the NVRA using
A. Legal Standard
“[T]o survive a motion to dismiss, a party must allege ‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” In re Fitness Holdings Int’l, Inc., 714 F.3d 1141, 1144 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual
B. The NVRA
A brief discussion of the NVRA is helpful before addressing the parties’ arguments. The NVRA requires each state to “ensure that any eligible applicant is registered to vote in an election” if the applicant has registered to vote “not later than the lesser of 30 days, or the period provided by State law, before the date of the election.”
“The NVRA creates a private right of action for ‘[a] person who is aggrieved by a violation of [the NVRA].’” Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1035 (9th Cir. 2015) (citations omitted). An aggrieved person “may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to the violation.”
The Secretary argues that, because the NVRA “outlines a specific remedial scheme
In response, Isabel makes three arguments. First, he contends there is a presumption that a federal statute is enforceable via
The Court agrees with the Secretary that a plaintiff wishing to assert an NVRA-based claim must sue directly under the NVRA, not via
The leading authority on this issue is City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113 (2005). There, the Supreme Court began by acknowledging that when a federal statute creates an individual right, a rebuttable presumption arises that the right is enforceable under
That isn’t to say the inclusion of a private remedy in the NVRA conclusively establishes Congress’s intent to prohibit its vindication under
Here, Isabel argues the inference of exclusivity is overcome by the NVRA’s “savings clause,” which he contends is a textual indication that Congress intended
This argument is unavailing. The savings clause in the NVRA is similar to the savings clauses at issue in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981), in which the Supreme Court determined that a
Herman & McLean v. Huddleston, 459 U.S. 375 (1983), is easily distinguishable and does not require a different result. There, the Supreme Court held that a plaintiff could bring a claim under Section 10(b) of the Securities Exchange Act of 1934—a provision that didn’t include its own express cause of action—even though the challenged conduct would also provide the basis for an action under Section 11 of the Securities Act of 1933, which did create an express private right of action. Id. at 382-33. Although the Court stated that this outcome was supported in part by the presence of a savings clause, id. at 383-84, the Court also emphasized that “when Congress comprehensively revised the securities laws in 1975, a consistent line of judicial decisions had permitted plaintiffs to sue under Section 10(b) regardless of the availability of express remedies . . . . In light of this well-established judicial interpretation, Congress’ decision to leave Section 10(b) intact suggests that Congress ratified the cumulative nature of the Section 10(b) action.” Id. at 385-86 (citations omitted).
This case does not involve remotely similar circumstances. At the time Congress enacted the NVRA in 1993, it wasn’t acting against the backdrop of decades of judicial decisions authorizing plaintiffs to bring
Finally, the inference of exclusivity arising from the NVRA’s creation of an express judicial remedy is further bolstered by other considerations. In Palos Verdes, the Supreme Court determined the statute at issue didn’t allow for enforcement via
Accordingly, Isabel’s NVRA claim asserted through
The “HAVA was passed in order to alleviate a significant problem voters experience [, which] is to arrive at the polling place believing that they are eligible to vote, and then to be turned away because the election workers cannot find their names on the list of qualified voters.” Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 569 (6th Cir. 2004) (citation omitted). The “HAVA dealt with this problem by creating a system for provisional balloting, that is, a system under which a ballot would be submitted on election day but counted if and only if the person was later determined to have been entitled to vote.” Id.
The complaint alleges the Secretary violated section 302(a)(4) of the HAVA. (Doc. 1 ¶ 62.) That provision states:
If the appropriate State or local election official to whom the [provisional] ballot or voter information is transmitted . . . determines that the individual is eligible under State law to vote, the individual’s provisional ballot shall be counted as a vote in that election in accordance with State law.
The Secretary argues the HAVA is inapplicаble, and thus Count 2 of Isabel’s complaint must be dismissed, because Isabel “was not eligible under state law to vote in the 2016 General Election because he failed to timely register.” (Doc. 33 at 9.) The Secretary asserts that the “HAVA has not ‘supplanted’ or ‘strip[ped] from the States their traditional responsibility to administer elections[,]’ including their authority to set voter registration deadlines.” (Id. at 10.) She contends the deadline to register to vote was set for October 10, regardless of whether it should have been set on October 11 under the NVRA, and thus Isabel failed to timely register. (Id.)
In response, Isabel asserts he “was eligible to vote under Arizona law” because when a deadline to perform a function falls on a holiday, “it may be performed on the next ensuing business day with effect as though performed on the appointed day.” (Doc. 38 at
Both parties miss the mark. “One and only one subsection of [the HAVA] addresses the issue of whether a provisional ballot will be counted.” Fla. Democratic Party v. Hood, 342 F. Supp. 2d 1073, 1080 (N.D. Fla. 2004). That subsection—section 302(a)(4)—doesn’t require a provisional ballot to be counted if an individual should have been deemed eligible to vote by state election officials (as Isabel argues). Nor does section 302(a)(4) require a provisional ballot to be counted if an individual actually is eligible to vote under state law (as the Secretary’s argument seemingly suggests). Rather, section 302(a)(4) requires a provisional ballot to be counted only if the appropriate election official “determines” the individual to be eligible.
Thus, under section 302(a)(4) of the HAVA, Isabel was entitled to have his provisional ballot counted only if a state or local election official determined he was eligible to vote. Here, Isabel concedes the Secretary determined he was ineligible to vote in the 2016 Election. (Doc. 1 ¶ 3 [“Defendants improperly deemed [Isabel] ineligible to vote and refused to count his ballot.].) Thus, Isabel fails to state claim under the HAVA.
This conclusion is compelled by the HAVA’s plain language. After all, the “HAVA is quintessentially about being able to cast a provisional ballot.” Sandusky, 387 F.3d at 576. In contrast, “[t]he only subsection of the HAVA that addresses the issue of whether a provisional ballot will be counted,” section 302(a)(4), “conspicuously leaves that determination to the States.” Id. at 577. Because Isabel’s dispute is with the propriety of the Secretary’s determination regarding his eligibility to vote under Arizona state law, the HAVA is not the proper vehicle for asserting his claim. Sandusky, 387 F.3d at 578 (“HAVA does not require that any particular ballot, whether provisional or ‘regular,’ must be counted as valid.”); Ron Barber for Cong. v. Bennett, 2014 WL 6694451, *8 (D. Ariz. 2014) (“HAVA does not contain language that requires that the provisional votes be counted; it is directed to providing provisional votes.”); see also Hood, 342 F. Supp. 2d at 1080 (“HAVA certainly does not require the counting of the vote of . . . one who registers
During oral argument, Isabel argued that Congress couldn’t have intended for the HAVA to be interpreted in this manner because, otherwise, state and local officials could disregard valid provisional ballots with impunity. This argument is unpersuasive. First, it’s entirely rational to interpret the HAVA as only creating the right to cast a provisional ballot, while leaving it to the states to make the eligibility determination. Isabel’s interpretation of the HAVA would create a federal cause of action to challenge a state or local election official’s application of state law whenever a provisional ballot has been cast. If Congress had intended to effectuate such an enormous shift in the balance of power related to elections, it presumably would have said so explicitly. United States v. Bass, 404 U.S. 336, 349 (1971) (“[U]nlеss Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance.”). The HAVA’s statutory language, moreover, raises the opposite inference—it states the “appropriate State or local election official” is the one who “determines that the individual is eligible under State law to vote.”
Second, the bogeyman conjured by Isabel—that state and local officials can simply disregard valid provisional ballots—doesn’t exist. An aggrieved voter may still challenge the failure to count provisional ballots under state law. See, e.g., State ex rel. Skaggs v. Brunner, 900 N.E.2d 982, 988-89 (Ohio 2008) (The Help America Vote Act . . . authorizes the states to determine ‘whether a provisional ballot will be counted as a valid ballot’ . . . . This case involves the validity of three categories of provisional ballots cast at the November 4 general election in Franklin County . . . . Relators, two Franklin County voters, request that all three categories of disputed provisional ballots be deemed invalid and not be counted. [The Secretary of State and others] request that the court hold that all three categories be ruled valid and be counted. Respondent Franklin County Board of Elections defers to the secretary of state’s position because of her tie-breaking decisions on the disputed provisional ballots. We address the three categories of provisional ballots in order.”).
Finally, Isabel stated during oral argument that Sandusky demonstrates federal courts can and should evaluate state-law voter eligibility determinations under the HAVA. The Court respectfully disagrees. In Section VI of the Sandusky opinion, the Sixth Circuit reversed the portion of the district court’s order that required state election officials to count certain provisional ballots. 387 F.3d at 576 (“[T]he district court also held that provisional ballots must be counted as valid ballots when cast in the correct county. We disagree.”). In rеaching this conclusion, the Sixth Circuit emphasized that the HAVA “explicitly defers determination of whether ballots are to be counted to the States” and cited legislative history materials suggesting that “[n]othing [in the HAVA] usurps the state or local election official’s sole authority to make the final determination with respect to . . .whether that vote is duly counted.” Id. at 578 (emphasis added and citation omitted).
D. The Qualifications Clause
Count 3 of the complaint alleges that Defendants violated
The best reading of the Qualifications Clause is that it simply ensures that a voter who is qualified to vote in an election for the most numerous branch of the state legislature (in Arizona, as in most states, the House of Representatives) must also be permitted to vote for candidates for the United States House of Representatives. Many other courts have interpreted it in this fashion. See, e.g., Tashjian, 479 U.S. at 229 (“The fundamental purpose of the Qualifications Clause[] . . . is satisfied if all those qualified to participate in the selection of members of the more numerous branch of the state legislature are also qualified to participate in the election of . . . Members of the House of Representatives.”); Cool Moose Party v. State of R.I., 6 F. Supp. 2d 116, 122-24 (D.R.I. 1998) (emphasizing that “[t]he purpose of the Qualifications Clause is to prevent voters who are eligible to vote in state elections from being disqualified from participating in federal elections” and rejecting voter’s lawsuit under the Qualifications Clause because the challenged voting practice “does not establish different qualifications for voting for state and federal offices” and “applies equally to all offices, state and federal’); see also The Ku Klux Cases, 110 U.S. 651, 663 (1884) (“[The states] define who are to vote for the popular branch of their own legislature, and the [Qualifications Clause of the] constitution of the United States says the same persons shall vote for members of congress in that state. It adopts the qualification thus furnished as the qualification of its own electors for members of
The parties ignore this issue in their moving papers. Rather than address the actual text of the Qualifications Clause, the parties engage in an extensive debate over whether the Secretary’s actions “disenfranchised” Isabel. The Secretary contends that Isabel “fails to state a claim, because voter registration deadlines do not disenfranchise voters from an opportunity to vote, they merely set forth a deadline by which voters must act in order to cast a vote.” (Doc. 33 at 10.) In support of this contention, the Secretary cites Rosario v. Rockefeller, 410 U.S. 752 (1973), and Barilla v. Ervin, 886 F.2d 1514, 1525 (9th Cir. 1989), overruled on other grounds by Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996), in which the Supreme Court and Ninth Circuit, respectively, held that voter registration deadlines did not unconstitutionаlly burden the right to vote. (Doc. 33 at 11-12.) Isabel, in response, explains that he “does not contend that voter registration deadlines, in and of themselves, disenfranchise voters. Rather, [Isabel] simply contends that he was disenfranchised . . . . In other words, [Isabel’s] ballot would have counted, but for the Defendants’ unlawful conduct.” (Doc. 37 at 10-11.) Additionally, Isabel attacks the cases cited by the Secretary—Rosario and Barilla—as inapposite. He argues those cases “do not stand for the proposition that improperly set voter registration deadlines cannot disenfranchise or harm a voter.” (Id. at 14.)
Although it is unnecessary to resolve this dispute here—Isabel’s Qualifications
In Rosario, the Supreme Court upheld a New York law requiring a person to enroll with a political party at least 30 days before the general election in order to vote in that party’s primary for the following election. 410 U.S. at 754. In effect, “[t]he cutoff date for enrollment [was] approximately eight months prior to a presidential primary (held in June) and 11 months prior to a nonpresidential primary (held in September).” Id. at 760. The plaintiffs in Rosario didn’t enroll with a political party by the deadline and thus couldn’t participate in the primary. Id. at 755. The Supreme Court held the challenged statute “did not absolutely disenfranchise the class to which the petitioners belong” but “merely imposed a time deadline on their enrollment, which they had to meet in order to participate in the next primary.” Id. at 757. The Supreme Court further explained that, to the extent the plaintiffs’ “plight can be characterized as disenfranchisement at all, it wаs not caused by [the challenged deadline], but by their own failure to take timely steps to effect their enrollment.” Id. at 758. The Supreme Court concluded that New York had not placed an unconstitutionally onerous burden on the plaintiffs’ exercise of the franchise—instead, New York “merely imposed a legitimate time limitation on their enrollment, which they chose to disregard.” Id. at 760-62.
In Barilla, the Ninth Circuit upheld an Oregon statute requiring those wanting to vote in a general election to register at least twenty days before the election. 886 F.2d at 1517, 1524-25. The plaintiffs challenged the statute because they failed to register in time. Id. at 1517. The Ninth Circuit upheld the statute, relying in part on Rosario to support the conclusion that the plaintiffs “were all disenfranchised by their willful or negligent failure to register on time,” not by the registration deadline. Id. at 1525. The court explained the plaintiffs “could have registered in time . . . but they failed to do so,” and thus the registration deadline was “not a ‘ban’ on the plaintiffs’ right to vote but rather a ‘time
The rationale underlying Rosario and Barilla is equally applicable here. The facts, as alleged by Isabel, show that the Secretary publicly set a voter registration deadline of October 10, 2016 and “adopted a policy that deemed invalid any ballot cast in the November 2016 Election by a voter who registered on October 11, 2016.” (Doc. 1 ¶¶ 19, 22.) Isabel doesn’t allege that the Secretary clandestinely set October 10 as the registration cut-off date. Nor does he allege he was unaware of the deadline or that it was impossible for him to register by October 10. Thus, Isabel’s inability to vote was caused “by [his] own failure to take timely steps to effect [his] enrollment.” Rosario, 410 U.S. at 758.
Isabel argues Rosario and Barilla “do not stand for the proposition that improperly set voter registration deadlines cannot disenfranchise or harm a voter.” (Doc. 38 at 14.) True. In those cases, the plaintiffs didn’t challenge the prоpriety of the voter registration deadlines under state or federal law. Yet even assuming the Secretary violated state and federal law when setting the October 10 deadline, that has no bearing on whether she violated the Constitution (particularly where the only constitutional provision invoked by Isabel merely requires voters to be treated equally for purposes of concurrent state and federal elections).
III. Leave To Amend
At oral argument, Isabel stated that, if the Court were inclined to dismiss his three causes of action against the Secretary, he would request leave to file an amended complaint adding a new federal common law cause of action.
The Court will authorize Isabel to file a motion requesting leave to amend, which Defendants10 may then evaluate and determine whether to oppose. See
Accordingly, IT IS ORDERED that:
- The County Defendants’ motion to dismiss for lack of jurisdiction (Doc. 32) is denied; and
- The Secretary’s motion to dismiss for failure to state a claim (Doc. 33) is granted; and
- By June 28, 2019, Isabel may file a motion for leave to amend his complaint to add a federal common law cause of action.
Dated this 7th day of June, 2019.
Dominic W. Lanza
United States District Judge