Clerch v. Merrill

• Decision Date: 07 October 2016
• Docket Number: CASE NO. 2:16-CV-755-WKW [WO]
• Parties: ROQUE "ROCKY" DE LA FUENTE and ADANYS CLERCH, Plaintiffs, v. JOHN H. MERRILL, Secretary of State for the State of Alabama, Defendant.
• Court: U.S. District Court — Middle District of Alabama

ROQUE "ROCKY" DE LA FUENTEand ADANYS CLERCH, Plaintiffs, v. JOHN H. MERRILL, Secretary of

State for the State of Alabama, Defendant.

CASE NO. 2:16-CV-755-WKW [WO]

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

October 7, 2016

MEMORANDUM OPINION

Before the court is Plaintiffs' Amended Complaint (Doc. # 7), which has been construed as containing a motion for a preliminary injunction. Plaintiffs challenge the constitutionality of Alabama's "sore loser" election statute, Ala. Code § 17-9-3(b), and seek declaratory and injunctive relief against its application. The parties briefed the matter on an expedited schedule (Docs. # 13, 14, 22), and an on-the-record telephonic hearing was conducted on September 27, 2016 (see Docs. # 19, 20). Faced with a looming deadline to reprint and distribute the ballots, on September 30 the court issued a truncated order denying injunctive relief. (Doc. # 23.) This Memorandum Opinion gives the reasoning behind that order.

I. JURISIDCTION AND VENUE

The court has subject-matter jurisdiction under 28 U.S.C. § 1331, and the parties do not contest personal jurisdiction. Venue is proper under 28 U.S.C. § 1391(b).

II. BACKGROUND

A. The Alabama Electoral Process

Alabama has enacted comprehensive legislation governing access to the ballot. Ala. Code § 17-1-1 et seq. The complexities of ballot access and ballot printing bear on the context and equities of this case, and therefore merit in-depth discussion.

1. Accessing the Alabama Ballot: Certification and Sore Losers

Would-be independent presidential candidates seeking access to the Alabama ballot turn to Title 17 of the Alabama Code for guidance. See Ala. Code § 17-1-1 et seq. Chapter 9 of that title sets out the procedure for getting an independent candidate's name on the ballot. See id. § 17-9-3. Candidates who wish to run in statewide elections must file with Defendant Secretary of State¹ ("the Secretary") a petition with a certain number of signatures of registered voters, due by a certaindate. Id. § 17-9-3(a)(3). Once the petition is received, the Secretary sends a certification of the individual's candidacy to each of the state probate judges, who are tasked with "prepar[ing] the ballot[s]" bearing the names of the certified candidates. Id. § 17-9-3(b).

There is a catch, though: In addition to the signature requirement, an independent candidate may not appear on the general-election ballot if he or she "was a candidate in the primary election of that year." Id. Under § 17-9-3(b),

[t]he judge of probate may not print on the ballot the name of any independent candidate who was a candidate in the primary election of that year and the name of any nominee of a political party who was a candidate for the nomination of a different political party in the primary election of that year.

This provision, known as a "sore loser" law, requires candidates who compete in party primaries to stand by their commitment to that party. Such laws are surprisingly common: A recent academic study counted forty-seven states that "effectively bar[ ]" sore loser candidacies. Michael S. Kang, Sore Loser Laws and Democratic Contestation, 99 Geo. L.J. 1013, 1043 (2011).

Alabama's sore loser law has been consistently applied for at least twenty-four years. (See Doc. # 21 at 1.) However, in 1992 Lyndon LaRouche was allowed to run for president in the general election as an independent candidate, despite participating in the Democratic primary earlier that year. (Docs. # 1 at 9; 21 at 1; 22 at 5); Fed. Election Comm'n, Federal Elections '92, at 15 (1992). The Secretary hasnot offered any justification for Mr. LaRouche's inclusion on the ballot, other than the fact that it happened "a long time ago and [under] a different secretary of state." (Tr. at 25.) Neither party has brought to the court's attention another sore-loser candidate who was allowed on an Alabama ballot (Tr. at 24-25), and the court's own research has not uncovered any other such candidacies.

2. The Ballot-Printing Process

Once the Secretary's certified ballots reach the probate judges, the judges complete the ballots with the addition of local races for their respective counties, then order the printed ballots for that county. (Doc. # 13-1 at 2.) These orders go to Election Systems & Software ("ES&S"), a Nebraska company "specializing in election equipment, software, and services designed to support fair and efficient elections."² (Doc. # 13-1 at 1.) In the 2016 election cycle, "ES&S is providing equipment programming, ballot coding, ballot production, and ballot printing services" to the sixty-seven counties in Alabama. (Doc. # 13-1 at 2.) In addition to Alabama, ES&S also handles ballot-printing requests for "the majority of State governments in the United States," and several city governments as well. (Doc. # 13-1 at 1.)

On receipt of the ballot order, ES&S begins the time-consuming process of preparing that county's ballots. First, "ES&S performs equipment coding as well as ballot[ ] layout based on the election requirements and ballot style(s) requested by the county." (Doc. # 13-1 at 2.) This year, the sixty-seven counties in Alabama have ordered a total of 1066 styles of ballots, further complicating and extending the printing and preparation process. (Tr. at 31.) ES&S then "provides the county with its equipment coding election definition, test ballots to be used in testing the election definition, and a proof ballot or ballots(s) [sic] for the county's review and approval." (Doc. # 13-1 at 2.) After county approval of the election materials, "ES&S finalizes the equipment coding election definition and sends an electronic ballot file to [the] ES&S ballot production facility" in Birmingham. (Doc. # 13-1 at 2.) The facility then "prints the required quantity of each ballot style requested and approved by the county," packages the ballots by precinct as specified by the ordering county, wraps them in shrink wrap, and ships them to the county. (Doc. # 13-1 at 2-3.)

As of September 19, 2016, ES&S had completed a significant portion of the ballots ordered by Alabama counties. (Doc. # 13-1 at 3-4.) All 218,300 absentee ballots had been printed and delivered to the counties; 2,388,350 Election Day ballots had been printed, representing the total order for fifty-six of the sixty-seven counties; and the ballots for fifteen counties had been packed and prepared for shipment. (Doc. # 13-1 at 3.) ES&S had also completed the equipmentprogramming for twenty-eight counties, which entailed the printing of 47,775 test ballots. (Doc. # 13-1 at 4.) All of this printing is done on ballot stock, a "specialized paper" that must be "ordered well in advance of elections and delivered to the printing facility ahead of time." (Doc. # 13-1 at 5.)

3. The United States v. Alabama Remedial Order

Further muddying the pre-election waters is the remedial order entered in United States v. Alabama, No. 2:12-CV-179-MHT-WC (M.D. Ala. Jan. 17, 2014), ECF No. 119, ("the Remedial Order") to enforce the requirements of the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA"). UOCAVA protects the right of overseas citizens and members of the military to vote by absentee ballot in federal elections. See 52 U.S.C. § 20301 et seq. As amended by the Military and Overseas Voter Empowerment Act, Pub.L. No. 111-84, 123 Stat. 2190, 2318-35 (2009), UOCAVA requires in federal elections that each State "transmit a validly requested absentee ballot to an absent uniformed services voter or overseas voter . . . not later than 45 days before the election." 52 U.S.C. § 20302(a)(8). Alabama's repeated failures to comply with the law led the Department of Justice to file suit against the State in 2012. After years of negotiation, the parties agreed to the terms of the Remedial Order.

Two of the deadlines in UOCAVA and the Remedial Order are important to this case. First, Alabama is required under the Order to ensure "that any electronicballot transmission system be fully operational not later than 55 days before any Federal primary or general election." Remedial Order, at 9. Second, under the terms of the Act itself, absentee ballots must be mailed to UOCAVA voters at least 45 days before the election—provided, of course, that the voter requested the ballot in question. 52 U.S.C. § 20302(a)(8)(A). To that end, the Remedial Order requires the State to conduct surveys and otherwise confirm that the counties have mailed their requested ballots. Remedial Order, at 11-12. The deadlines for all these efforts range from 55 to 41 days prior to the election. Counting backwards from the November 8, 2016 general election, the 41-day deadline passed on September 28, the 45-day deadline on September 24, and the 55-day deadline on September 14. Accordingly, any change to the ballot that affects the federal elections will jeopardize the State's compliance with UOCAVA and the Remedial Order. This action was filed 57 days before the election, only two days before the earliest of these deadlines.

4. The Emergency Re-Print

A final element of confusion was thrown into the mix on September 26, when the Secretary learned that the language on the already-printed ballots did not comply with Alabama law. One of the measures on the 2016 ballot is Act No. 2016-145, a proposed amendment to the Alabama Constitution. The Act specified that three paragraphs were to be printed on Alabama ballots, but by mistake only oneparagraph was included. (Doc. # 16 at 1.) Upon learning of the omission, the Secretary certified the two missing paragraphs for inclusion on the ballot, thus requiring a reprint. (Doc. # 16 at 1.)

Because of the misprint, all the election equipment must be re-programmed and the Election Day ballots discarded. (Doc. # 16 at 2.) To avoid confusion, the Secretary decided that paper absentee ballots that have already been mailed to voters will not be replaced; electronic absentee ballots, on the other hand, have already been...