Clark ex rel. Edwards v. Edwards

• Decision Date: 22 June 2020
• Docket Number: CIVIL ACTION 20-308-SDD-RLB, CIVIL ACTION 20-283-SDD-RLB
• Citation: 468 F.Supp.3d 725
• Parties: CLARK, et al. v. John Bel EDWARDS, et al. Power Coalition for Equity and Justice, et al. v. John Bel Edwards, et al.
• Court: U.S. District Court — Middle District of Louisiana

468 F.Supp.3d 725

CLARK, et al.

v.John Bel EDWARDS, et al.

Power Coalition for Equity and Justice, et al.

v.John Bel Edwards, et al.

CIVIL ACTION 20-308-SDD-RLB, CIVIL ACTION 20-283-SDD-RLB

United States District Court, M.D. Louisiana.

Signed June 22, 2020

Danielle Elizabeth Davis, Southern Poverty Law Center, New Orleans, LA, Caren E. Short, Nancy G. Abudu, Pro Hac Vice, Southern Poverty Law Center, Decatur, GA, Cecilia L. Aguilera, Pro Hac Vice, Michelle E. Kanter Cohen, Pro Hac Vice, Jon Sherman, Pro Hac Vice, Fair Elections Legal Network, John A. Freedman, Pro Hac Vice, Arnold & Porter Kaye Scholer, LLP, Washington, DC, for Telisa Clark, Lakeshia Barnett, Martha Christian Green, Crescent City Media Group, League of Women Voters Louisiana.

Matthew F. Block, John Charles Walsh, Office of the Governor Louisiana State Capitol, Baton Rouge, LA, for John Bel Edwards.

Celia R. Cangelosi, Celia R. Cangelosi, Attorney at Law, Baton Rouge, LA, for Kyle Ardoin.

Angelique Duhon Freel, Louisiana Department of Justice, Baton Rouge, LA, Dallin B. Holt, Jason B. Torchinsky, Pro Hac Vice, Jonathan Lienhard, Phillip Michael Gordon, Pro Hac Vice, Holtzman Vogel Josefiak Torchinsky PLLC, Warrenton, VA, for Jeff Landry.

RULING

SHELLY D. DICK, CHIEF JUDGE

Before the Court is the Motion to Dismiss Plaintiffs' Complaint¹ filed by Defendant, Louisiana Attorney General Jeff Landry ("the Attorney General"). Plaintiffs, Telisa Clark, Lakeshia Barnett, Crescent City Media Group, League of Women Voters Louisiana, Power Coalition for Equity and Justice, Louisiana State Conference of the NAACP, Jane Chandler, Jennifer Harding, Edith Gee Jones, and Jasmine Pogue (collectively, "Plaintiffs") filed an Opposition ,² to which the Attorney General filed a Reply.³ For the reasons that follow, the Court finds that the Motion should be GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

The emergence of the novel coronavirus known as COVID-19 (hereinafter, "the Virus") derailed the state of Louisiana's spring election season. Due to the public health emergency, elections previously scheduled for April 4 and May 9, 2020 were rescheduled by proclamation of Governor John Bel Edwards ("Governor Edwards") to be held on July 11 and August 15, 2020.⁴ On April 27, 2020, the Louisiana legislature approved an Emergency Election Plan submitted by Louisiana Secretary of State Kyle Ardoin ("Secretary Ardoin").⁵

This matter began as two separate cases in the Middle District of Louisiana – Power Coalition v. Edwards and Clark v. Edwards – which were consolidated on June 3, 2020.⁶ The consolidated Plaintiffs challenge three aspects of the Emergency Election Plan, as well as certain provisions of Louisiana election law more generally. Plaintiffs' first challenge relates to the fact that, under Louisiana law, absentee by mail voting is limited to voters who satisfy one of fifteen excuses (the "Excuse Requirement").⁷ Although the Emergency Election Plan created a COVID-19 Emergency Application allowing voters to request an absentee ballot based on five new Virus-related excuses, Plaintiffs complain that the new excuse categories are overly narrow and, as such, the "Plan fails to protect other categories of voters who need protection"⁸ from the Virus.

In addition to the Excuse Requirement, Plaintiffs take issue with what they call the "Witness Requirement." Louisiana law requires a voter using an absentee by mail ballot to "sign the certificate in the presence of one witness."⁹ That witness is then required to sign the absentee by mail ballot envelope flap, which "contain[s] a line for the handwritten signature of one witness and a line for the printed name of the witness."¹⁰ Plaintiffs complain that the Emergency Election Plan "leaves in place [this] requirement" and thus "require[s] voters who qualify to vote by mail and live on their own to risk infection to have their ballots counted."¹¹

Lastly, Plaintiffs argue that the state of Louisiana "fails to provide absentee voters with notice of defects with their mail-in absentee ballot requests and their mail-in absentee ballots and deprives them of an opportunity to cure such problems so their votes may be counted."¹² The ill effects of this so-called "Cure Prohibition" are compounded, Plaintiffs argue, by the fact that Louisiana "provides no mechanism for tracking whether one's absentee ballot has been received, accepted, or counted."¹³ Since this action was filed, Defendants have promulgated an emergency rule aimed at providing voters with an opportunity to cure certain ballot deficiencies.¹⁴ In response, Plaintiffs have withdrawn from their Motion for Preliminary Injunction the claims related to the "Cure Provision."¹⁵ The "Cure Prohibition" is nevertheless one of the Challenged Provisions in the Complaint.

The relief sought by Plaintiffs is severalfold. First, they seek declaratory relief, beginning with a declaration from this Court that the Excuse Requirement and the Witness Requirement violate the First and Fourteenth Amendments to the United States Constitution because those requirements (1) impose undue burdens on the fundamental right to vote and (2) unconstitutionally condition the right to vote upon the forfeiture of the right to bodily integrity.¹⁶ Plaintiffs also seek a declaration that the Excuse and Witness Requirements violate Section 2 of the Voting Rights Act, as well as a declaration that the Cure Prohibition violates the Fourteenth Amendment because it denies certain Plaintiffs their right to procedural due process.¹⁷ Next, Plaintiffs pray for this Court to issue preliminary and permanent injunctions that would, inter alia , prohibit Defendants from enforcing the Excuse Requirement and the Witness Requirement for all voters during all Louisiana elections in 2020.¹⁸ Additionally, Plaintiffs want this Court to enjoin Defendants "to provide absentee voters notice and an opportunity to cure any defects in their absentee ballots during, at least, all elections in Louisiana in 2020 that do not require the voter to appear anywhere in person."¹⁹

The July 11 Louisiana Presidential Preference Primary/Municipal Primary is now less than three weeks away, with early voting already underway and many absentee ballots already distributed.²⁰ Applications to receive absentee ballots by mail are due by July 7 at 4:30pm. Although a statewide public health emergency remains in effect, Louisiana has taken significant steps toward "reopening" since this action began; when the Power Coalition Complaint was filed, Governor John Bel Edwards' stay-at-home order was still in place. That order expired on May 15, 2020. On June 4th, Governor Edwards announced that Louisiana was entering "Phase 2" in the reopening process, which allows restaurants, bars, salons, shopping malls, churches, casinos, gyms, and other businesses to operate at 50% capacity, subject to social distancing and other hygiene-related requirements.²¹ The Governor's proclamation cautions that "it may be necessary to go back to the full restrictions in the Stay at Home order"²² if cases of the Virus increase or the capacity of the health care system is threatened. But, as of now, "based upon the advice and expertise of medical experts at the Louisiana Department of Health,"²³ reopening – with precautions – is the reality on the ground. Against this backdrop, Attorney General Jeff Landry now urges the instant Motion to Dismiss , arguing that Plaintiffs' claims should be dismissed because they lack standing, they have not adequately alleged state action, and that, because of the proximity of the election, the United States Supreme Court's Purcell doctrine instructs this Court to avoid last-minute electoral meddling. The Court will address the arguments in turn.

II. LAW AND ANALYSIS

a. The Challenged Provisions and the Anderson-Burdick Standard

"Constitutional challenges to specific provisions of a State's election laws ... cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid restrictions."²⁴ The United States Supreme Court has set forth the following test:

[T]he rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’ But when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State's important regulatory interests are generally sufficient to justify’ the restrictions.²⁵

The Attorney General suggests that this test is of limited use here because Plaintiffs have failed to identify a burden on their right to vote that relates to the State's action and not to the Virus itself. Plaintiffs "need to show a burden on the right to vote that resulted from some action of the State," he argues. "They have failed to do so because each harm they allege would not exist but for the Virus, a non-state actor."²⁶

Plaintiffs correctly note in their Motion for Preliminary Injunction that "in general, voters do not have a constitutional right to vote by absentee ballot."²⁷ Nevertheless, they argue that the burden on Plaintiffs' right to vote due to the Challenged Provisions "is extremely severe" because Plaintiffs "cannot safely vote in person ... [so] they are effectively disenfranchised."²⁸ The Supreme Court in Burdick stated that "all election regulations[ ] have an impact on the right to vote."²⁹ Before delving into the merits question of whether the impact of the Challenged Provisions on Plaintiffs' right to vote is such that it offends the Constitution, this Court is bound to consider the jurisdictional question of Plaintiffs' standing.

b. Motions Under Federal Rule of Civil Procedure 12(b)(1)

"When a motion to dismiss for lack of jurisdiction ‘is filed in conjunction...