Free Memorandum in Opposition - District Court of California - California

Case 3:08-cv-03836-WHA

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 CHRISTOPHER E. KRUEGER Senior Assistant Attorney General 3 JONATHAN K. RENNER Supervising Deputy Attorney General 4 NATHAN R. BARANKIN, State Bar No . 246313 Deputy Attorney General 5 1300 I Street, Suite 125 P.O. Box 944255 6 Sacramento, CA 94244-2550 Telephone: (916) 323-8050 7 Fax: (916) 324-8835 E-mail: [email protected] 8 Attorneys for Office of Secretary of State 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 Defendants. 22 23 24 25 26 27 28
SECRETARY OF STATE DEBRA BOWEN'S OPPOSITION TO PLAINTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

MARKHAM ROBINSON, in his capacity as the . Presidential Elector and Chairperson-Elect of the American Independent Party,
Plaintiff,

3:08-CV-03836 WHA

v.
SECRETARY OF STATE DEBRA BOWEN, in her individual and official capacities, THE . REPUBLICAN NATIONAL COMMITTEE, and organization, form unknown, THE REPUBLICAN PARTY OF CALIFORNIA, an organization, form unknown, SENATOR JOHN McCAIN, in his inidividual and official capacities, DOES ONE through FIFTY FIVE, inclusive,

SECRETARY OF STATE DEBRA BOWEN'S oPPOSmONTO PLAINTIFF'S 'COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Date: Time: Dept: Judge: September 11, 2008 7:30 a.m.

9

The Honorable William Alsup Trial Date: Action Filed: August 11, 2008

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1

I.

INTRODUCTION

2

Plaintiff Markham Robinson has filed a complaint seeking, among other things, an

3 injunction barring the California Secretary of State from including Senator John McCain on the 4 2008 Presidential Election Ballot asthe Republican nominee for President ofthe United States. 5 Plaintiff argues that such relief is appropriate because, he alleges, Senator McCain does not meet 6 the qualifications for President as established in the United States Constitution. The Secretary of 7 State does not take a position on the merits of Plaintiff's claims, but submits that the injunction 8 sought against her should be denied for two reasons. 9 First, Plaintiff's request for injunctive relief against the Secretary of State fails to state

lOa claim upon which relief may be granted. Because Plaintiff does not, and cannot, allege that the 11 Secretary of State has'committed any violation of law or infringed on any right held by Plaintiff 12 by including Senator McCain

as the Republican nominee for President on the ballot, his claim

13 against the Secretary should be dismissed. Second, Plaintiff's failure to timely file his complaint 14 will prevent the Court from ruling onthe injunction prior to the printing and distribution, 15 pursuant to statutory mandates, of ballots containing Senator McCain's name as the Republican 16 Presidential nominee. Indeed, thousands of California voters residing overseas will have 17 received and be able to cast their votes for President before this Court is able to rule on Plaintiff's 18 complaint. Accordingly, Plaintiffs request for injunctive relief should be denied because it 19 would result in an unprecedented disruption of an ongoing election. 20 21 22 23 24

II.

STATEMENT OF RELEVANT FACTS AND LAW

The California Secretary of State [hereafter "Secretary"] is the State's chief elections officer. Cal. Gov't Code, § 12172.5. She is responsible for ensuring that State elections are conducted efficiently and that the election laws are enforced. ld. Consistent with these obligations, the Secretary is required to provide local elections officials with a certified list of the

25 names, party affiliations, and ballot designations of candidates nominated by their respective 26 27 28 parties to appear on the November 4, 2008 Presidential General Election ballot. Cal. Elec. Code,

§§ 6901, 8148.
Specifically, the Secretary was required to distribute a certified list of candidates to

1
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1 local elections officials by August 28,2008. Id. § 8148 [certificate shall be delivered not less 2 than 68 days before the election]. For p~oses of the Republican candidates for President and 3 Vice President, the Secretary is required to include in her certified list the names of the nominees 4 provided by the Chairperson of the California Republican State Central Committee (or California
5 Republican Party). Id. §§ 6901, 731O(b).

6

Where, as this year, the Republican National Convention is scheduled to conclude after

7 the deadline for the Secretary to deliver the certified candidate list to local elections officials, the
8 California Republican Party must notify the Secretary of its nominees once the candidate for 9 President has secured a sufficient number of delegate votes to assure his or her nomination and
10 selected a Vice Presidential nominee. Id. § 7310(a). Once she was informed of the Republican

11 Party's nominees, on August 29,2008, the Secretary distributed a certified list of candidates that 12 included Senator McCain and Governor Sarah Palin as the Republican nominees for President 13 and Vice President, respectively..!L Declaration of Cathy Mitchell [hereafter "Mitchell Decl.] ~ 5. 14 Upon receiving the certified list of candidates, local elections officials are responsible

15 for printing and distributing sample ballots and ballots to registered California voters . Cal. Elec. 16 Code, §§ 13000, 13303. And in federal elections, local officials are required to send a ballot to 17 voters residing abroad "as soon as possible" after September 5,2008 (60 days prior to the general 18 election). Id. § 3307. Once they receive their ballots, overseas voters are entitled to cast their 19 vote for the candidates of their choice and return their ballots to local elections officials. Id. §§ 20 3304, 3311. 21 By September 25,2008, local elections officials may begin mailing sample ballots to

22 registered voters throughout California. Id. § 13303(a). The sample ballots are identical to the 23 official ballots that will be used in the November 4, 2008 Presidential General Election, and 24 therefore will include the offices and names of candidates for each office. Id. Local elections 25 1. Although Senator McCain was clearly the presumptive Republican nominee for President as of August 28, 2008, he did not select a Vice Presidential running mate until one day later, on 27 August 29, 2008 . In compliance with statute, the Secretary distributed a certified list of candidates identifying Senator McCain as the Republican nominee for President on August 28, 2008, and 28 updated the list the following day to include Governor Palin as his running mate. 2
SECRETARY OF STATE DEBRA BOWEN'S OPPOSITION TO PLAINTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

26

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1 officials must have completed mailing out the sample ballots no later than October 14,2008. Id.

2

On August 11,2008, Plaintiff filed a complaint (hereafter "PI. CompI.") seeking

3 declaratory and injunctive relief againstthe defendants. As against the Secretary of State, 4 Plaintiff seeks only injunctive relief precluding her from "following California law and placing 5 Senator McCain's name on the California Ballot." PI. Compl, , 24. On August 21,2008, the 6 Court issued a scheduling order setting a hearing on Plaintiff's complaint for September 11, 7 2008.

8

III. A.

ARGUMENT

9
10 11

Plaintiff's Cause Of Action Seeking Injunctive Relief Against The Secretary Of State Should Be Denied Because It Fails To State A Claim Against The Secretary And Is Contrary To The Public Interest.
The Secretary does not take a position on the merits of Plaintiff's claim challenging

12 Senator McCain's eligibility to be President. As the State's chief elections officer, the Secretary 13 is obligated to ensure that the Presidential election is conducted efficiently, fairly, and in 14 compliance with State law. Cal. Elec. Code, § 12172.5. The Secretary, however, is not 15 responsible for evaluating the personal qualifications of the respective political parties' 16 presidential nominees. Therefore, it would be inconsistent with the Secretary's statutory duties 17 to opine on whether Senator McCain meets the federal constitution's qualifications for President 18 of the United States. However, because the Secretary is responsible for ensuring the 2008 19 Presidential Election is properly administered, she objects to Plaintiff's effort to enjoin her from 20 complying with California law by providing Senator McCain's name as the Republican nominee 21 for President of the United States to local elections ·officials.

22
23 24 25 26

1.

Plaintiff's Claim Against The California Secretary Of State Should Be Dismissed Because It Fails To Allege That She Has Violated Any Law.

Plaintiff does not allege that the Secretary of State, by performing her official duties, has committed a violation of either federal or State law. Plaintiff does accurately state that the Secretary is required by "State law to place Senator McCain on the ballot as a presidential

27 candidate." PI. Compl.f] 21 [citing Cal. Elec. Code, § 6901] [emphasis added]. However, 28 neither State nor federal law impose any obligation on the Secretary to verify that the respective

3
SECRETARY OF STATE DEBRA BOWEN'S OPPOSITION TO PLAINTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

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1 parties ' nominees are eligible to hold the office of President or Vice President prior to placing 2 their names on the ballot.s Because Plaintiff does not, and cannot, allege that the Secretary is 3 violating any law or infringing on any right held by Plaintiff by placing Senator McCain on the 4 California ballot, Plaintiffs claim against the Secretary should be dismissed because it fails to 5 state a claim upon which relief may be granted. Fed. R. Civ. P. 12(b)(6); Balisteri v. Pacifica 6 Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) [dismissal proper when based on lack ofa 7 cognizable legal theory].
8
9

2.

Plaintiff's Request For Injunctive Relief Against The Secretary Of State Should Be Denied Because Denial Is In The Public Interest.

10

Even if Plaintiff could establish a valid claim against the Secretary of State, his belated

11 request for injunctive relief should be denied because relief cannot be granted until after the

12 election is underway. In evaluating a request for injunctive relief, the Court must evaluate 13 whether it is in the public interest to do so. Sammartano v. First Judicial Dist. Court, 303 F.3d 14 959,974 (9th Cir. 2002). This inquiry causes the Court to address the impact of its decision on 15 parties and nonparties, alike. [d. And where the proposed injunctive relief threatens to disrupt a 16 scheduled election, a "court is entitled to and should consider the proximity of a forthcoming 17 election and the mechanics and complexities of state election laws, and should act and rely upon 18 general equitable principles." Reynolds v. Sims, 377 U.S. 533, 584 (1964). Thus, "[i]nterference 19 with impending elections is extraordinary, and interference with an election after voting has . 20 begun is unprecedented." Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 21 919 (9th Cir. 2003) [internal citation omitted]. In the instant case, the public interest tilts 22 strongly in favor of allowing the November 4, 2008 Presidential Election to take place as planned 23 and permitting the duly selected nominee of the Republican Party, John McCain, to appear on the 24 ballot. 25 As previously noted, by September 5,2008, local elections officials will begin mailing

26 ballots containing Senator Mcf'ain's name to overseas voters. Cal. Elec. Code, § 3307; Mitchell 27 2. Federal law appears to delegate to the United States Congress responsibility for 28 evaluating the qualifications of the President and Vice President. 3 U.S.C. § 15. 4
SECRETARY OF STATE DEBRA BOWEN'S OPPOSITION TO PLAINTIFF'S COMPLAINT FOR DECLARATORYAND INJUNCTIVE RELIEF

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1 Decl.

~

6. Thus, as of tomorrow, the presidential election will officially be underway in

2 California as overseas voters begin to receive, fill out, and return their ballots for counting by 3 local elections officials. Further, in order to comply with statutory deadlines and ensure 4 California voters receive their sample ballots sufficiently in advance of the November election to

5 make informed choices, local elections officials began preparing sample ballots upon receiving 6 the certified list of candidates from the Secretary of State on August 29,2008. Mitchell Decl.
~

7 8. Because this Court will not be able to rule on Plaintiff's request for a preliminary injunction 8 until, at the earliest, the matter is heard on September 11, 2008, any ruling that requires alteration 9 of ballots that have already been distributed to overseas voters will have the unprecedented effect 10 of disrupting an ongoing election.
11

.IV.

CONCLUSION

12

For the foregoing reasons, the Secretary respectfully requests the Court deny Plaintiff's

13 request for injunctive relief and dismiss this action to the extent it seeks relief against the . 14 Secretary of State. 15 16 17 18 19 20 21 22 23 24 25 30540039.wpd 26 27 28 5
SECRETARY OF STATE DEBRA BOWEN'S OPPOSITION TO PLAINTIFF'S COMPLAINT FOR DEC LARA TORY AND INJUNCTIVE RELIEF SA2008304514

Dated: September 4, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California CHRISTOPHER E. KRUEGER Senior Assistant Attorney General JONATHAN K. RENNER Supervising Deputy Attorney General Is/Nathan R. Barankin NATHAN R. BARANKIN Deputy Attorney General Attorneys for Office of Secretary of State

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 CHRISTOPHER E. KRUEGER Senior Assistant Attorney General 3 JONATHANK.RENNER Supervising Deputy Attorney General 4 NATHAN R. BARANKIN, State BarNo. 246313 Deputy Attorney General 5 1300 I Street, Suite 125 P.O. Box 944255 6 Sacramento, CA 94244-2550 Telephone: (916) 323-8050 7 Fax: (916) 324-8835 E-mail: Nathan.Barankin@doj .ca.gov 8 Attorneys for Office of Secretary of State
9

SUPERIOR COURT OF CALIFORNIA 10 NORTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 · 17 18 19 20 21 Defendants. 22 23 24 25 26 27 28
DECLARATION OF CATHY MITCHELL IN SUPPORT OF SECRETARY OF STATE DEBRA BOWEN 'S O~POSITION TO PLAINTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

MARKHAM ROBINSON, in his capacity as the Presidential Elector and Chairperson-Elect of the American Independent Party,
Plaintiff,

3:08-CV-03836 WHA

v.
SECRETARY OF STATE DEBRA BOWEN, in her individual and official capacities, THE REPUBLICAN NATIONAL COMMITTEE, and organization, form unknown, THE REPUBLICAN PARTY OF CALIFORNIA, an organization, form unknown, SENATOR JOHN McCAIN, in his inidividual and official capacities, DOES ONE through FIFTY FIVE, inclusive,

DECLARATION OF CATHY MITCHELL IN SUPPORT OF SECRETARY OF STATE DEBRA BOWEN'S OPPOSITION TO PLAINTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Date: Time: Dept: Judge: September 11, 2008 7:30 a.m. 9 The Honorable William Alsup

Trial Date: Action Filed: August 11, 2008

Case 3:08-cv-03836-WHA

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1

DECLARAnON OF CATHY MITCHELL

2
3
4

I, Cathy Mitchell, declare as follows: 1. I am the Chief of Elections, employed in the Office of the California Secretary of

5 State. I have served in that capacity since May 2007.
6

2.

The Secretary of State is required by statute to perform numerous duties regarding

7 the administration of California's elections, including the 2008 Presidential General Election. 8 These duties include preparing and distributing to local elections officials a Certified List of 9 Candidates, which identifies all of the candidates who are eligible to appear on the general 10 election ballot.

11

3.

Existing law requires the Secretary of State to distribute its Certified List of

12 Candidates for the 2008 Presidential General Election to local elections officials no later than 13 August 28,2008.
14

4.

For purposes of the Republican candidates for President and Vice President, the

15 Secretary of State is required to include in its certified list the names of the nominees provided by 16 the Chairperson of the California Republican State Central .Committee (or California Republican 17 Party). When, as this year, the Republican National Convention is scheduled to conclude after 18 the deadline for the Secretary of State to deliver its candidate list to local elections officials, the 19 California Republican Party must notify the Secretary of State of its nominees once the candidate 20 for President has secured a sufficient number of delegate votes to assure 'his or her nomination 21 and selected a Vice Presidential nominee.

22

5.

Upon being informed that Senator John McCain was the California Republican

23 Party's presumptive nominee for President, the Secretary of State, pursuant to statute, distributed 24 a certified candidate list identifying Senator McCain as the Republican Party nominee for 25 President on August 28, 2008. On August 29, 2008, the Secretary of State was informed that 26 Senator McCain had identified Governor Sarah Palin as the presumptive Republican Party 27 nominee for Vice President. Later that day, the Secretary of State redistributed its certified list of 28 candidates to include Governor Palin as the Republican nominee for Vice President. A true and .
1 DECLARATION OF CATHYMITCHELL IN SUPPORT OF SECRETARY OF STATEDEBRA BOWEN'S OPPOSITION TO PLAINTIFF'S COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Case 3:08-cv-03836-WHA

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and accuratecopy ofthe Certified List of Candidates distributed by the Secretaryof State for the 2 November4,2008 General Election is attached hereto as ExhibitA.
3

6.

Upon receiving the CertifiedList of Candidates, local elections officials are

4 required by statute to print and distribute sample ballotsand ballots to registered California
5 voters. Among other duties, local elections officials are requiredto send a ballot to voters,

6 residingabroad as soon as possibleafter September 5, 2008 (60 days prior to the general
7 election). Once they receive their ballots, overseasvoters are entitled to cast their vote for the
8 candidatesoftheir choice and returntheir ballotsto local elections officials.
9

7.

Local electionsofficials are also required to begin mailing sample ballots to

10 registeredvoters throughout California on September25, 2008. The sample ballots are identical

11 to the official ballots that will be used in the November4, 2008 Presidential General Election, 12 and thereforewill includethe officesand names of candidatesfor each office. Localelections
13, officials must have completed mailingout the sample ballots no later than October 14,2008. 14

8.

I am informed and believethat local elections officials throughout California

15 beganpreparing ballotsand sample ballotscontainingSenator McCain's name as the Republican 16 nominee for Presidenton August 29, 2008, in order to ensure that these ballot materials are
17 distributed within the legally prescribed deadlines. 18

9.

I have personal knowledge of the foregoing facts and would so competently

19 testify if called asa witness to these proceedings.

20

J declare under penaltyof perjurythat the foregoing is true and correct and that this

21 declaration was executedon September4,2008, in Sacramento, California. 22
23

24
25

Chief of Elections

26
27

28
2
DECLARATION OF CATHYMITCHELL IN SUPPORT OF SECRETARY OF STATE DEBRA BOWEN'S OPPOSITION TO PLAINTIFF'S COMPLAINT FORDECLARATORY AND INJUNCTIVE RELIEF

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EXHIBIT A

Case 3:08-cv-03836-WHA
DEBRA BOWEN

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STATE OF CALIFORNIA I ELECTIONS

I SECRETARY OF STATE
.

1500 nth Street, 5th Floor 1Sacramento, CA 958141 Tel(916) 657-21661 Fax(916) 6S3-3214Iwww.sos.ca.gov

August 29, 2008

TO:

All County Clerks/Registrar of Voters (08263)

FROM:

~,*-_., ._. /_
Program Manager, Candidates and Elections November General: Republican Vice President

_

SUBJECT:

The Republican Party has announced their Vice Presidential candidate for the November 4,2008 General Election. The candidate will be:

Sarah Palin
Please make the necessary changes to your certified lists. The change has also our website at: been made

on

http://www.sos.ca.gov/elections/elections_cand.htm

Enclosed are the Presidential lists identifying the update. Attachments

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2008 Presidential General
0812912008 Page I of46

November 04, 2008

Official Certified List of Candidates

PRESIDENT
BARACK DBAMA JOEBlDEN
Democratic

JOHN MCCAIN .

Republican

SARAH PALIN

ALAN KEYES

American Independent

WILEY S. DRAKE, SR.

CYNTHIA MCKINNEY

Green

ROSA CLEMENTE

BOB BARR WAVNE A. ROOT

Libertarian

RALI)H NADER
MATI" GONlALE7.

Peace and Freedom

'Incumbent

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2008 Presidential General - November 04, 2008

Official Certified List of Candidates
0812912008 Page lof93

PRESIDENT
BARACK OBAMA JOE BlDEN PO BOX 8102 CHICAGO, IL 60680 (866) 675-2008(Business)
Democratic

WEBSITE: my.barackobarna.com
JOliN MCCAIN SARAH PALIN
PO BOX 16118
ARLINGTON, VA 22215 (703) 418-2008 (Business)

Republican

WEBSITE: johnmccain.com
ALAN KEYES WILEY S. DRAKE, SR. 17195 SILVER PA.RKWAY, #337 FENTON, MI 48430 (312) 848·1605 (Business) WEBSITE: www.alankcycs.com E-MAII.:conta<.:[email protected]
American Independent

CYNTHIA MCKINNEY ROSACLEMENTE P.O. BOX 311759 ATLANTA, GA 3003I-1759 (510) 281-9190(Business) WEBSITE: www.runcynlhiarun.org E-MAIL: [email protected]

Green

BOB BARR WAYNE A. ROOT PO BOX 725007 ATLANTA, GA 31139 WEBSITE: www.bobbarr2008.com E-MAIL: [email protected]

Libertarian

· Incumbent

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2008 Presidential General· November 04, 2008
Official Certified List of Candidates
08129/2008 .

Page 2 of93

PRESIDENT
RALPH NADER MATfOONZALEZ NADER FOR PRES] DENT2008 3050 K STNW WASHINGTON, DC 20007 (202) 471·5833 (Business) WEBSITE: www.votenader.org
Peace and Freedom

" Incumbent

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CERTIFICATE OF SERVICE BY U.S. MAIL
Case Name: Case No. : I declare:

Markham Robinson v, Secretary of State
3:08-CV-03836 WHA

I am employed in the Office of the Attorney General, which is the office of a member of the California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course of business.
On
S~ptember

4, 2008 , I served the following documents:

·

Secretary of State Debra Bowen's Opposition to Plaintiffs Complaint for Declaratory and Injunctive Relief, and Declaration of Cathy Mitchell in Support of Secretary of State Debra Bowen's Opposition to Plaintiffs Complaint for Declaratory and Injunctive Relief

·

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows:

Electronic Mail Notice List
I have caused the above-mentioned document(s) to be electronically served on the following person(s), who are currently on-the list to receive e-mail notices for this case: Charles Herbert Bell, Jr. [email protected]. Attorneyfor Defendant, California Republican Party Gregory S. Walston Orestes Alexander Cross [email protected] [email protected] Attorneyfor Plaintiff, Markham Robinson Joshua David Hess [email protected] [email protected] Attorneyfor Defendant, Senator John McCain and the Republican National Committee

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Manual Notice List
The following are those who are not on the list to receive e-mail notices for this case (who therefore require manual noticing): Matthew McGill, Eaq. 1050 Connecticut Ave., NW, Third FI. Washington, DC 20036 [email protected] Attorneyfor Defendant, Senator John McCain and the Republican National Committee

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on September 4, 2008, at Sacramento, California.

Michelle Martino Declarant
SA2008304514
104.53280.wpd

/s/ Michelle Martino Signature