Ark. United v. Thurston

• Decision Date: 05 February 2021
• Docket Number: CASE NO. 5:20-CV-5193
• Court: U.S. District Court — Western District of Arkansas
• Parties: ARKANSAS UNITED and L. Mireya Reith, Plaintiffs v. John THURSTON, in his official capacity as the Secretary of State of Arkansas; Sharon Brooks, Bilenda Harris-Ritter, William Luther, Charles Roberts, James Sharp, and J. Harmon Smith, in their official capacities as members of the Arkansas State Board of Election Commissioners; Renee Oelschlaeger, Bill Ackerman, Max Deitchler, and Jennifer Price, in their official capacities as members of the Washington County Election Commission; Russell Anzalone, Robbyn Tumey, and Harlan Stee, in their official capacities as members of the Benton County Election Commission; David Damron, Luis Andrade, and Lee Webb, in their official capacities as members of the Sebastian County Election Commission; and Meghan Hassler, in her official capacity as Election Coordinator for the Sebastian County Election Commission, Defendants

517 F.Supp.3d 777

ARKANSAS UNITED and L. Mireya Reith, Plaintiffs

v.John THURSTON, in his official capacity as the Secretary of State of Arkansas; Sharon Brooks, Bilenda Harris-Ritter, William Luther, Charles Roberts, James Sharp, and J. Harmon Smith, in their official capacities as members of the Arkansas State Board of Election Commissioners; Renee Oelschlaeger, Bill Ackerman, Max Deitchler, and Jennifer Price, in their official capacities as members of the Washington County Election Commission; Russell Anzalone, Robbyn Tumey, and Harlan Stee, in their official capacities as members of the Benton County Election Commission; David Damron, Luis Andrade, and Lee Webb, in their official capacities as members of the Sebastian County Election Commission; and Meghan Hassler, in her official capacity as Election Coordinator for the Sebastian County Election Commission, Defendants

CASE NO. 5:20-CV-5193

United States District Court, W.D. Arkansas, Fayetteville Division.

Signed February 5, 2021

Lawrence Anthony Walker, John W. Walker P.A., Little Rock, AR, Nina Perales, Mexican American Legal Defense and Ed. F, San Antonio, TX, Francisco Fernandez del Castillo, Griselda Vega Vega Samuel, Mexican American Legal Defense & Education Fund, Chicago, IL, for Plaintiffs.

Michael A. Cantrell, Michael A. Mosley, Nicholas J. Bronni, Vincent M. Wagner, Office of the Arkansas Attorney General, Little Rock, AR, for Defendants John Thurston, Sharon Brooks, Bilenda Harris-Ritter, William Luther, Charles Roberts, James Sharp, J. Harmon Smith.

Brian R. Lester, Washington County, Fayetteville, AR, for Defendants Renee Oelschlaeger, Bill Ackerman, Max Deitchler, Jennifer Price.

George Ray Spence, Clark and Spence Law Firm, Bentonville, AR, Jason E. Owens, Jason Owens Law Firm, P.A., Conway, AR, for Defendants Russell Anzalone, Robbyn Tumey, Harlan Stee.

Charles Daniel Shue, Jr., Fort Smith, AR, Jason E. Owens, Jason Owens Law Firm, P.A., Conway, AR, for Defendants David Damron, Luis Andrade, Lee Webb, Meghan Hassler.

MEMORANDUM OPINION AND ORDER

TIMOTHY L. BROOKS, UNITED STATES DISTRICT JUDGE

There are three motions currently before the Court. Defendants David Damron, Luis Andrade, Lee Webb, and Meghan Hassler filed a Motion to Dismiss and Memorandum Brief in Support (Docs. 82 & 83). Another Motion to Dismiss and Memorandum Brief in Support were filed by Defendants Russell Anzalone, Robbyn Tumey, and Harlan Stee (Docs. 84 & 85). Finally, Defendants John Thurston, Sharon Brooks, Bilenda Harris-Ritter, William Luther, Charles Roberts, James Sharp, and J. Harmon Smith filed a Motion to Dismiss or Alternatively to Stay Discovery and Certify Interlocutory Appeal and a Memorandum Brief in Support (Docs. 86 & 87). Plaintiffs filed a Response in Opposition to each Motion (Docs. 95, 96 & 97, respectively). For the reasons discussed below, all three Motions (Docs. 82, 84 & 86) are DENIED .

I. BACKGROUND

The Plaintiffs are Arkansas United, a non-profit organization located in Springdale, Arkansas, and L. Mireya Reith, the founder and executive director of the organization. Arkansas United advocates for immigrant populations in the state through education about the voting process and by assisting those voters who are limited in their English proficiency to read, mark, and cast their ballots at polling places. Arkansas United was founded in 2010 and is funded by hundreds of members who pay dues to support the organization's mission. The Defendants, all of whom are sued in their official capacities, can be divided into four groups. The first group, to which the Court will refer as the State Defendants, includes the Secretary of State of Arkansas—John Thurston—and the members of the Arkansas State Board of Election Commissioners—Sharon Brooks, Bilenda Harris-Ritter, William Luther, Charles Roberts, James Sharp, and J. Harmon Smith. Another group is comprised of Renee Oelschlaeger, Bill Ackerman, Max Deitchler, and Jennifer Price, who are all members of the Washington County Election Commission and to whom the Court will refer as the Washington County Defendants. The members of the Benton County Election Commission—Russell Anzalone, Robbyn Tumey, and Harlan Stee—will similarly be referred to as the Benton County Defendants. Finally, David Damron, Luis Andrade, and Lee Webb are members of the Sebastian County Election Commission, and Meghan Hassler is the Sebastian County Election Coordinator. Together, these individuals will be referred to as the Sebastian County Defendants.

Plaintiffs first filed the original complaint in this matter and a motion for temporary restraining order on the night before Election Day in 2020. This Court issued a Memorandum Opinion and Order finding that Plaintiffs had demonstrated a likelihood of success on the merits but nevertheless denying the motion because Election Day voting was already in progress and the balance of the equities dictated against modifying the rules by which voting was being administered halfway through the day. See Doc. 35. Defendants then filed motions to dismiss, which became moot when Plaintiffs filed the operative Amended Complaint. Benton and Sebastian County Defendants and State Defendants each filed Motions to Dismiss the Amended Complaint.

Plaintiffs seek declaratory judgment that Sections 7-5-310(b)(4)(B), 7-5-310(b)(5), 7-1-103(a)(19), and 7-1-103(b)(1) of the Arkansas Code violate the Supremacy Clause of the Constitution and are preempted by Section 208 of the Voting Rights Act ("VRA"). Plaintiffs also seek an injunction prohibiting enforcement of those state-law provisions and directing Defendants to implement a remedial plan to ensure that voters with limited English proficiency are permitted to receive assistance from an individual of their choice when voting in future elections.

Under Arkansas Code § 7-1-103(a)(19)(C) and (b)(1), a person who assists a voter "in marking and casting the voter's ballot except as provided in § 7-5-310" is potentially subject to criminal misdemeanor penalties. While Section 7-5-310(4)(A)(i) provides that the voter may be assisted by a person of his or her choice, Section 7-5-310(b)(4)(B) adds the restriction that "[n]o person other than [poll workers] shall assist more than six (6) voters in marking and casting a ballot at an election[.]" Section 7-5-310(b)(5) further provides that "[i]t shall be the duty of the poll workers at the polling site to make and maintain a list of the names and addresses of all persons assisting voters." Plaintiffs argue that this six-voter limit on assistance under Arkansas law, enforceable by criminal misdemeanor penalties, violates Section 208 of the VRA, which provides that "[a]ny voter who requires assistance to vote by reason of blindness, disability, or inability to read or write may be given assistance by a person of the voter's choice, other than the voter's employer or agent of that employer or officer or agent of the voter's union." 52 U.S.C. § 10508.¹

Sebastian County, Benton County, and State Defendants have each filed Motions to Dismiss the Amended Complaint. The Sebastian and Benton County Defendants' Motions are substantively identical, and the Court will take up those Motions together before turning to the arguments made by State Defendants.

II. BENTON AND SEBASTIAN COUNTY DEFENDANTS' MOTIONS TO DISMISS

A. Service of Process is Sufficient

First, Benton and Sebastian County Defendants assert that the Amended Complaint should be dismissed for insufficient process or service of process pursuant to Rule 12(b)(4) and/or (5) of the Federal Rules of Civil Procedure. Since the County Defendants' objection is to the service itself, not the form of process or content of the summons, the Motions are properly brought under Rule 12(b)(5) rather than Rule 12(b)(4). "In a Rule 12(b)(5) motion, the party making the service has the burden of demonstrating validity when an objection to the service is made." Roberts v. USCC Payroll Corp. , 2009 WL 88563, at *1 (N.D. Iowa Jan. 13, 2009) (internal quotation marks omitted). Rule 4 lays out the requirements for proper service of process. Rule 4(e)(2) provides that an individual may be served by delivering a copy of the summons and the complaint to the individual, to an appropriate person at the individual's residence, or to the individual's authorized agent. Rule 4(m) requires that a defendant be served within ninety days after the complaint is filed or seek an extension of time from the court.

Plaintiffs initially attempted service for all Benton County Defendants by serving "Kim Denison as Election Coordinator," see Docs. 46–48, and for all Sebastian County Defendants by serving "Dan Shue as Prosecuting Attorney." See Docs. 53–56. Benton and Sebastian County Defendants object to this as insufficient because neither Kim Denison nor Dan Shue is an authorized agent of the various County Defendants to accept service on their behalf. However, it appears from a review of the docket that each of the Benton and Sebastian County Defendants was subsequently served individually. See Docs. 70–73 & 92–94. None of the County Defendants make any argument challenging those proofs of service, which were all delivered within ninety days after the filing of the complaint, as required by Rule 4(m). Therefore, the Court concludes that service of process is sufficient as to each of the Benton and Sebastian County Defendants.

B. The Amended Complaint Adequately States a Claim

Next, Benton and Sebastian County Defendants seek dismissal of the Amended Complaint for failure to state a claim pursuant to Rule 12(b)(6). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must "accept as true all facts pleaded by the non-moving party and grant all reasonable inferences from the pleadings in favor of the nonmoving party." Gallagher v. City of Clayton , 699 F.3d 1013, 1016 (8th Cir. 2012) (quotation marks omitted). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to...