80 F.Supp.3d 692 (E.D.Va. 2015), C. A. 3:14cv479, Sarvis v. Judd

Docket Nº:Civil Action 3:14cv479
Citation:80 F.Supp.3d 692
Opinion Judge:Robert E. Payne, Senior United States District Judge.
Party Name:ROBERT C. SARVIS, et al., Plaintiffs, v. CHARLES E. JUDD, et al., Defendants
Attorney:Civil Action No. 3:14cv479 For Robert C. Sarvis, Libertarian Party of Virginia, William Hammer, Jeffrey Carson, James Carr, Marc Harrold, William Redpath, William Carr, Bo Conrad Brown, Paul F. Jones, Plaintiffs: David Paul Morgan, LEAD ATTORNEY, Marcari Russotto Spencer & Balaban PC, Midlothian,...
Case Date:January 13, 2015
Court:United States District Courts, 4th Circuit, Eastern District of Virginia

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80 F.Supp.3d 692 (E.D.Va. 2015)

ROBERT C. SARVIS, et al., Plaintiffs,


CHARLES E. JUDD, et al., Defendants

Civil Action No. 3:14cv479

United States District Court, E.D. Virginia, Richmond Division

January 13, 2015

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[Copyrighted Material Omitted]

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For Robert C. Sarvis, Libertarian Party of Virginia, William Hammer, Jeffrey Carson, James Carr, Marc Harrold, William Redpath, William Carr, Bo Conrad Brown, Paul F. Jones, Plaintiffs: David Paul Morgan, LEAD ATTORNEY, Marcari Russotto Spencer & Balaban PC, Midlothian, VA.

For Charles E. Judd, in their individual and official capacities as members of the Virginia State Board of Elections, Donald Palmer, in their individual and official capacities as members of the Virginia State Board of Elections, Kimberly T. Bowers, in their individual and official capacities as members of the Virginia State Board of Elections, Defendants: Erin Rose McNeill, Stuart Alan Raphael, Trevor Stephen Cox, LEAD ATTORNEYS, Anna Tillie Birkenheier, Office of the Attorney General (Richmond), Richmond, VA.

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Robert E. Payne, Senior United States District Judge.

This matter is before the Court on DEFENDANTS' MOTION TO DISMISS (Docket No. 23). At oral argument, Plaintiffs' counsel moved to dismiss Count II of the AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (Docket No. 20) and the motion was granted (Docket No. 33). For the reasons set forth below, the motion to dismiss will be granted as to the remaining claim, Count I.


The Libertarian Party of Virginia, several of its candidates for the United States

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Senate and House of Representatives, and one independent (non-party) candidate for the United States House of Representatives (collectively, the " Candidates" ) filed a complaint against members of the Virginia State Board of Elections (" Board of Elections" ). (Docket No. 1.) Pursuant to an Amended Complaint, (Docket No. 20), the Candidates sought declaratory and injunctive relief from Virginia laws and practices that assign independent candidates and candidates from smaller parties a lower place on the voting ballot. The Candidates allege that these laws and practices violate their First and Fourteenth Amendment rights. (Am. Compl., Docket No. 20, ¶ ¶ 40, 54.)

According to Virginia state law, a " party" or " political party" is an organization of citizens of the Commonwealth that, at either of the two preceding statewide general elections, received at least 10 percent of the total vote cast for any statewide office filled in that election. Va. Code § 24.2-101. To qualify as a " party" or " political party," the organization must have a state central committee and an office of elected state chairman both of which have been continually in existence for the six months preceding the filing of a nominee for any office. Id.

A " recognized political party," on the other hand, is " an organization that, for at least six months preceding the filing of its nominee for [an] office, has had in continual existence a state central committee composed of registered voters residing in each congressional district of the Commonwealth, a party plan and bylaws, and a duly elected state chairman and secretary." § 24.2-613. A " recognized political party" need not have received 10 percent of the total vote cast for a statewide office in either of the last two statewide general elections. The Libertarian Party of Virginia is a recognized political party under Virginia law. (Am. Compl., Docket No. 20, ¶ 6.)

The Board of Elections assigns candidates a place on the ballot in the order prescribed by Va. Code § 24.2-613. Id. ¶ 18. That provision requires that " political party" candidates appear first on the ballot in an order determined by lot. Candidates representing " recognized political parties" appear next on the ballot in an order determined by lot. Independent (non-party) candidates appear last on the ballot in alphabetical order. Because the Candidates are not " political party" candidates, they cannot be placed in the first position on the next ballot. Id. ¶ 21. The Candidates allege that this violates their constitutional rights because candidates who are listed at the top of an election ballot receive an unfair " positional advantage" that fortuitously yields more votes than candidates not listed at the top of the ballot and Virginia has reserved this positional advantage for major parties. id. ¶ 23, 29.


I. Legal Standard

The Commonwealth has filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss, a complaint must " provide enough facts to state a claim that is plausible on its face." Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 556). A court " will accept the pleader's description of

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what happened . . . along with any conclusions that can be reasonably drawn therefrom," but " need not accept conclusory allegations encompassing the legal effects of the pleaded facts." Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 1998); Chamblee v. Old Dominion Sec. Co., L.L.C., 2014 WL 1415095, *4 (E.D. Va. 2014). " Twombly and Iqbal also made clear that the analytical approach for evaluating Rule 12(b)(6) motions to dismiss requires courts to reject conclusory allegations that amount to mere formulaic recitation of the elements of a claim and to conduct a context-specific analysis to determine whether the well-pleaded factual allegations plausibly suggest an entitlement to relief." Id. In considering a motion to dismiss, the court may " properly take judicial notice of matters of public record." Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

II. Count I: Ballot Order Under Virginia Code § 24.2-613

The importance of a fair and functional electoral system to a representative democracy can hardly be gainsaid. Indeed, the Supreme Court has found it " beyond cavil that voting is of the most fundamental significance under our constitutional structure." Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (internal citations and quotations omitted).

Of course, the right to vote in any manner one wishes is not " absolute." See id. And, without a meaningful system to capture and reflect the will of the People, the right to vote is a mere abstraction. Therefore, while the rights of the voters are fundamental, " not all restrictions imposed by the States on candidates' eligibility for the ballot impose constitutionally-suspect burdens on voters' rights to associate or to choose among candidates." Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). If elections " are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes," Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), then " [c]ommon sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections," Burdick, 504 U.S. at 433. Hence, States may enact " comprehensive and sometimes complex election codes" notwithstanding the fact that " [e]ach provision of these schemes . . . inevitably affects - at least to some degree -- the individual's right to vote and his right to associate with others for political ends." Anderson, 460 U.S. at 788.

As the Candidates' complaint reflects, ballot access and voting rights restrictions affect " interwoven strands of liberty." Id. at 787. Ballot access restrictions, for example, " implicate substantial voting, associational and expressive rights protected by the First and Fourteenth Amendments." Pisano v. Strach, 743 F.3d 927, 932 (4th Cir. 2014). Because " the rights of voters and the rights of candidates do not lend themselves to neat separation," Anderson, 460 U.S. at 786, the Supreme Court has " minimized the extent to which voting rights cases are distinguishable from ballot access cases," Burdick, 504 U.S. at 438. Rather than conducting separate, crosscutting analyses of electoral restrictions under the rubrics of associative rights, expressive rights, due process, or equal protection, the Supreme Court has articulated a single framework for evaluating the constitutionality of state election laws " based . . . directly on the First and Fourteenth Amendments."

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Anderson, 460 U.S. at 787 n.7; see also Pisano, 743 F.3d at 934.

This framework, established in Anderson v. Celebrezze and refined in Burdick v. Takushi, holds that " the State's asserted regulatory interests need only be 'sufficiently weighty to justify the limitation' imposed on the party's rights." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 364, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (quoting Norman v. Reed, 502 U.S. 279, 288-89, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)). To apply the Anderson/Burdick test, the Court is guided by the following procedure:

[The Court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's...

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