ASS'N OF PEOPLE WITH DISABILITIES v. Herrera

Decision Date05 February 2010
Docket NumberNo. CIV 08-0702 JB/WDS.,CIV 08-0702 JB/WDS.
Citation690 F. Supp.2d 1183
PartiesAMERICAN ASSOCIATION OF PEOPLE WITH DISABILITIES, Federation of American Women's Clubs Overseas, Inc., New Mexico Public Interest Research Group Education Fund, and Southwest Organizing Project, Plaintiffs, v. Mary HERRERA, in her capacity as Secretary of State, Defendants.
CourtU.S. District Court — District of New Mexico

Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, Edward D. Hassi, O'Melveny & Myers LLP, New York, NY, Charles E. Borden, Guy G. Brenner, O'Melveny & Myers LLP, Washington, D.C., for Plaintiffs.

Scott Fuqua, Assistant Attorney General, Office of the New Mexico Attorney General, Santa Fe, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Dismiss, filed August 21, 2009 (Doc. 78). The Court held a hearing on October 13, 2009. Plaintiffs American Association of People with Disabilities, Federation of Women's Clubs Overseas, Inc., New Mexico Public Interest Research Group Education Fund, and Southwest Organizing Project challenge four aspects of New Mexico's third-party voter-registration law: (i) a requirement that third-party registration agents complete a pre-registration process and provide personal information; (ii) a limitation on the number of registration forms an organization or individual may receive; (iii) a requirement that third-party registration agents return completed registration forms to the County Clerk or Secretary of State within forty-eight hours; and (iv) criminal and civil penalties for parties who do not comply with third-party registration laws. The primary issues are: (i) whether the Court's prior denial of a preliminary injunction compels the Court to dismiss Plaintiffs' action for failure to state claims for which relief can be granted; (ii) what standard of review—strict scrutiny, rational basis, or something else—applies to evaluating the constitutionality of New Mexico's third-party voter-registration law, NMSA 1978, § 1-4-49; (iii) whether the Plaintiffs have sufficiently pled that NMSA § 1-4-49 imposes an undue burden on the Plaintiffs' First-Amendment rights (Count I); (iv) whether the Plaintiffs have sufficiently pled that § 1-4-49 is unconstitutionally overbroad or void for vagueness (Count II); (v) whether the Plaintiffs have sufficiently pled that the National Voter Registration Act ("NVRA"), 42 U.S.C. §§ 1973gg-1 to 1973gg-10 preempts NMSA 1978, § 1-4-49 (Count III); (v) whether § 1-4-49 violates Article II, Section 8 (Count IV) and Article II, Section 17 of the New Mexico Constitution (Count V); (vi) whether the Plaintiffs' have sufficiently alleged the training requirement imposed by the County Clerks violates New Mexico's constitutional principle of non-delegation (Count VI); and (vii) whether the training requirement violates the due-process clause of the United States Constitution (Count VII). Because the Court finds that the Plaintiffs have plead sufficient facts to establish that the New Mexico voter-registration law implicates their First-Amendment rights and have adequately alleged that the State has burdened those rights, and have also alleged sufficient facts to establish that the voter-registration law burdens their rights under Article II, Section 17 of the New Mexico Constitution, the Court will deny the Secretary's motion as to Count I and Count V. As a matter of law, the Court finds that § 1-4-49 is not void for vagueness or unconstitutionally overbroad, and therefore grants the Secretary's motion to dismiss Count II. The Court also finds that the NVRA does not preempt New Mexico's third-party voter-registration law, nor do the laws violate Article II, Section 8 of the New Mexico Constitution, and therefore the Court also dismisses Count III and Count IV. Finally, the Court finds that the New Mexico Election Code includes a requirement that County Clerks train and educate registration agents, and therefore the Court will dismiss the Plaintiffs' claims that the training requirement violates the New Mexico constitutional principle of non-delegation and the due-process clause, and therefore dismisses Count VI and Count VII. The Court, therefore, will deny the Secretary's motion in part and grant it in part.

FACTUAL BACKGROUND

The Plaintiffs are four nonprofit organizations that engage in volunteer-run voter-registration activities in what the Plaintiffs contend are politically under-represented communities. See Amended Complaint for Declaratory and Injunctive Relief ¶¶ 11-14, at 5-7, filed August 14, 2009 (Doc. 75)("Am. Complaint"). In 2005, the New Mexico Legislature enacted legislation that restricted the voter-registration activities of third-party organizations. See Am. Complaint ¶ 16, at 7-8. The legislation has imposed restrictions on the Plaintiffs' ability to help fellow citizens register to vote—through NMSA 1978, § 1-4-49; its implementing regulations, 1.10.25.7-10 NMAC; and the manner in which the Secretary has allowed the law to be enforced. See Am. Complaint ¶¶ 16-25, at 7-11. These restrictions and requirements apply to all individuals and organizations except state or federal agencies. The Plaintiffs challenge all of these laws.

More background on the lawsuit is set forth in the Court's earlier Memorandum Opinion and Order. See American Assoc. of People with Disabilities, et al. v. Herrera, 580 F.Supp.2d 1195 (D.N.M.2008) (Browning, J.).

PROCEDURAL BACKGROUND

In their First Amended Complaint, the Plaintiffs repeatedly allege that they have engaged in expressive conduct, which the First Amendment protects, by conducting volunteer voter-registration drives. See Am. Complaint ¶¶ 2, 3, 26, 31, 32, 33, 38, 45, 46, 47, 53, 100-02, at 2, 11-14, 17-20, 33. The Plaintiffs allege that they intend to convey a message with their voter-registration efforts and that anyone who observe the Plaintiffs' efforts is likely to understand this message. See Am. Complaint ¶¶ 3, 11-14, 26-28, 31-34, 36-39, 45-47, 53, 56-58, 60, 101, 102, at 2, 5-6, 11-12, 14-15, 17-22, 33. The Plaintiffs have alleged that their volunteer voter-registration activities are so intertwined with their political speech regarding the importance of registering to vote that one cannot be regulated without affecting the other. See Am. Complaint ¶¶ 3, 26, 33-35, 37, 38, 45, 47, 56, 59, 103-07, at 2, 11-12, 14-15, 17-22, 34-35.

The Plaintiffs' first claim alleges that the challenged laws impose burdens that severely and unjustifiably hamper the Plaintiffs' voter-registration activities. See Am. Complaint ¶¶ 102. at 33-34. The Plaintiffs also contend that these burdens lack any adequate justification. See id. ¶ 114, at 37. The Plaintiffs contend that their voter-registration activities constitute core political speech and expressive association. See Am. Complaint ¶¶ 103-113, at 34-36. They identify two separate acts of speech at issue: (i) the speech act intertwined with registering someone to vote; and (ii) the incidental speech that takes place when registering voters. See Am. Complaint ¶ 3, at 2.

They also contend that § 1-4-49 is overbroad on its face and void for vagueness. See id. ¶¶ 121-129, at 39-41. In its Memorandum Opinion and Order denying the Plaintiffs' motion for a preliminary injunction, the Court did not agree with the Plaintiffs' argument that § 1-4-49 is vague and overbroad. See Memorandum Opinion and Order, filed September 17, 2008 (Doc. 49), 580 F.Supp.2d 1195.

The Plaintiffs argue that New Mexico's third-party voter-registration law and implementing regulations and requirements violate the NVRA, and to the extent that they are inconsistent with the NVRA, are subject to preemption. See Am. Complaint ¶ 140, at 43. Additionally, the Plaintiffs argue that § 1-4-49 violates Article II, Section 8 of the New Mexico Constitution, which requires that "all elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage," by imposing severe financial and administrative burdens on the Plaintiffs. Am. Complaint ¶ 149, at 44. They also contend that § 1-4-49 violates Article II, Section 17 of the New Mexico Constitution, which protects free speech.

In addition to challenging the New Mexico third-party voter-registration law, the Plaintiffs also allege that the training the County Clerks require of third-party registration agents is a violation of the New Mexico constitutional principle of non-delegation. See Am. Complaint ¶¶ 158-163, at 46-49. The Plaintiffs further contend that the training requirement is irreconcilable with the demands of procedural due process. See Am. Complaint ¶¶ 164-166, at 47.

The Secretary has moved to dismiss the Plaintiffs' Amended Complaint pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure. She contends that § 1-4-49 is a reasonably restricted means of accomplishing an important state interest, namely safeguarding the integrity of the elective franchise. See Motion at 6. She contends, using the test that the Supreme Court articulated in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), for evaluating constitutional challenges to state election laws, that the factors weigh in favor of the constitutionality of the New Mexico third-party voter-registration law because it does not impose as severe a restriction on the Plaintiffs' speech rights as the Plaintiffs contend, and the law serves New Mexico's legitimate interest in a manner no more burdensome than necessary in light of the magnitude of that interest. See Motion at 5. She further contends that § 1-4-49 is not in conflict with the NVRA because it merely regulates the conduct of a third-party registration agent, and does not prohibit or limit the use of federal voter registration forms that the State must accept under the NVRA. See Motion at 15.

The Secretary also argues...

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