Colo. Mont. Wyo. State Area Conference of the NAACP v. United States Election Integrity Plan

• Decision Date: 28 April 2022
• Docket Number: Civil Action 22-cv-00581-PAB
• Parties: COLORADO MONTANA WYOMING STATE AREA CONFERENCE OF THE NAACP, LEAGUE OF WOMEN VOTERS OF COLORADO, and MI FAMILIA VOTA, Plaintiffs, v. UNITED STATES ELECTION INTEGRITY PLAN, SHAWN SMITH, ASHLEY EPP, and HOLLY KASUN, Defendants.
• Court: U.S. District Court — District of Colorado

COLORADO MONTANA WYOMING STATE AREA CONFERENCE OF THE NAACP, LEAGUE OF WOMEN VOTERS OF COLORADO, and MI FAMILIA VOTA, Plaintiffs, v. UNITED STATES ELECTION INTEGRITY PLAN, SHAWN SMITH, ASHLEY EPP, and HOLLY KASUN, Defendants.

Civil Action No. 22-cv-00581-PAB

United States District Court, D. Colorado

April 28, 2022

ORDER

PHILIP A. BRIMMER, Chief United States District Judge.

This matter is before the Court on defendants' Motion to Dismiss [Docket No. 27]. Plaintiffs responded, Docket No. 33 and defendants replied. Docket No. 36.

I. BACKGROUND^[1]

Plaintiffs Colorado Montana Wyoming State Area Conference of the NAACP (“NAACP”), League of Women Voters of Colorado (“LWVCO”), and Mi Familia Vota (“MFV”) are civil- and voting-rights organizations. Docket No. 1 at 4-5, ¶¶ 13-15.

Defendants Shawn Smith, Ashley Epp, and Holly Kasun are members of defendant United States Election Integrity Plan (“USEIP”). Id. at 6, ¶¶ 17-19.^[2] Mr. Smith “was, at some points in time . . . [p]resident and [c]o-[f]ounder of USEIP.” Id., ¶ 17.

USEIP was formed after the 2020 presidential election and is focused primarily on “advanc[ing] the false claim that former President Trump lost the 2020 election because of ‘blatant election fraud.'” Id. at 7 ¶ 20. USEIP members travel door-to-door and “interrogat[e] voters under the pretense of seeking to uncover ‘phantom ballots, '” which they believe caused President Trump's loss. Id., ¶¶ 22-23. USEIP members target voters using voter rolls that Mr. Smith purchased and focus on “high-density housing, communities experiencing growth among racial minority voters, and communities in which a high percentage of voters supported Democratic candidates” in 2020. Id. at 8, ¶ 27. Members of USEIP, who are sometimes armed and wear badges to “present an appearance of government officiality, ” “interrogate” voters about their addresses and their participation in the 2020 election, including how the voters cast their ballots, and take photos of voters' homes. Id. at 2, 8, ¶¶ 3, 27. Members have “claimed to be from ‘the county'” and have “falsely accused [voters] of casting fraudulent ballots.” Id. at 9, ¶ 27. The prospect of visits from USEIP members is particularly intimidating for members of the Black and Latino communities, which plaintiffs serve, because of the history of voter suppression in those communities. Id. at 10, ¶¶ 33-34.

Plaintiffs bring three claims for relief: (1) intimidating voters and potential voters in violation of Section 11(b) of the Voting Rights Act of 1965; (2) attempting to intimidate voters and potential voters in violation of Section 11(b) of the Voting Rights Act of 1965; and (3) violating the Ku Klux Klan Act, 42 U.S.C. § 1985. Id. at 12-13, ¶¶ 39-51.

Defendants move to dismiss the complaint for lack of standing. Docket No. 27 at 1.

II. LEGAL STANDARD

An argument that a plaintiff lacks standing to assert a claim is properly determined pursuant to Rule 12(b)(1) because such argument attacks the Court's subject matter jurisdiction. See Colo. Env't. Coalition v. Wenker, 353 F.3d 1221, 1227 (10th Cir. 2004) (standing is jurisdictional). Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he moving party may (1) facially attack the complaint's allegations as to the existence of subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by presenting evidence to challenge the factual basis upon which subject matter jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). Ultimately, plaintiffs have “[t]he burden of establishing subject matter jurisdiction” because they are “the part[ies] asserting jurisdiction.” Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).

“Each plaintiff must have standing to seek each form of relief in each claim.” Collins v. Daniels, 916 F.3d 1302, 1312 (10th Cir. 2019) (quoting Am. Humanist Ass'n, Inc. v. Douglas Cty. Sch. Dist. RE-1, 859 F.3d 1243, 1250 (10th Cir. 2017)). “The standing inquiry ensures that a plaintiff has a sufficient personal stake in a dispute to ensure the existence of a live case or controversy which renders judicial resolution appropriate.” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). To establish Article III standing, a plaintiff must meet three elements:

First, the plaintiff must have suffered an “injury in fact” - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent, not ‘conjectural' or ‘hypothetical.'” Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be “fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely, ” as opposed to merely “speculative, ” that the injury will be “redressed by a favorable decision.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted). “Injury in fact is a constitutional requirement, and ‘[i]t is settled that Congress cannot erase Article III's standing requirements by granting the right to sue to a plaintiff who would not otherwise have standing.'” Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547-48 (2016) (quoting Raines v. Byrd, 521 U.S. 811, 820 n.3 (1997)). An injury is particularized if it affects “the plaintiff in a personal and individual way.” Id. at 1548. “A ‘concrete' injury must be ‘de facto'; that is, it must actually exist”; it must be “real, ” not “abstract.” Id. “If a party satisfies these minimum constitutional requirements, then a court may still deny standing if the injury alleged constitutes a “generalized grievance” that more appropriately should be addressed by the representative branches.” Colo. Taxpayers Union, Inc. v. Romer, 963 F.2d 1394, 1396 (10th Cir. 1992) (citing Allen v. Wright, 468 U.S. 737, 751 (1984)).

III. ANALYSIS

As an initial matter, the Court must determine what information it may consider in reviewing defendants' motion. A party filing a Rule 12(b)(1) motion may challenge subject matter jurisdiction through a facial or factual attack. See Laufer v. Looper, 22 F.4th 871, 875 (10th Cir. 2022) (citing Baker v. USD 229 Blue Valley, 979 F.3d 866, 872 (10th Cir. 2020)). “A facial attack assumes the allegations in the complaint are true and argues they fail to establish jurisdiction. A factual attack goes beyond the allegations in the complaint and adduces evidence to contest jurisdiction.” Id. (quoting Baker, 979 F.3d at 872). Because defendants challenge the sufficiency of plaintiffs' jurisdictional allegations, but do not dispute the allegations, see Docket No. 27 at 1-2 (“Accepting the facts in [p]laintiffs' [c]omplaint as true for purposes of this [m]otion, this Court should dismiss the [c]omplaint because it is plain that no [p]laintiff has alleged an injury that could confer standing.”), and have not provided any evidence to rebut plaintiffs' allegations, the Court considers defendants' challenge to be facial. See Laufer, 22 F.4th at 875 (“Because the Loopers have not adduced any evidence outside the pleadings to contest jurisdiction, we address this issue as a facial challenge.”); see also Thrasher v. Rocky Mountain Auto Brokers, Inc., No. 18-cv-02342-PAB-KMT, 2019 WL 4695831, at *4 (D. Colo. Sept. 25, 2019) (finding a facial attack because motion accepted plaintiff's allegations as true); Sentry Ins. a Mut. Co. v. Pichardo, 2021 WL 4034092, at *2 n.4 (D.N.M. Sept. 3, 2021) (“Here, the . . . challenge is facial, since [movants] adduced no evidence such as affidavits, documents, etc., to contest jurisdiction.”).

In reviewing a facial attack on plaintiffs' standing, the Court considers only the sufficiency of the complaint, as it would with a Federal Rule 12(b)(6) motion. See Muscogee (Creek) Nation v. Okla. Tax Comm'n, 611 F.3d 1222 1227 n.1 (10th Cir. 2010) (“A facial attack looks only to the factual allegations of the complaint in challenging the court's jurisdiction. A factual attack goes beyond the factual allegations of the complaint and presents evidence in the form of affidavits or otherwise to challenge the court's jurisdiction.... [In a facial attack, ] we apply the same standards under Rule 12(b)(1) that are applicable to a Rule 12(b)(6) motion to dismiss for failure to state a cause of action.”); Cunningham v. Univ. of N.M. Bd. of Regents, 531 Fed.Appx. 909, 913-14 (10th Cir. 2013) (unpublished) (“While the district court did not identify its analysis as such, we construe its decision as being based on a facial attack because it only addressed facts found within the four corners of Mr. Cunningham's complaint.” (citing Muscogee, 611 F.3d at 1227 n.1)); Williams v. City of Arvada, No. 21-cv-02236-NYW, 2022 WL 1102532, at *11 (D. Colo. Apr. 13, 2022) (“in a facial challenge, the focus is on the sufficiency of the allegations in the complaint”); Sanchez v. Ward, 2013 WL 12328914, at *2 (D.N.M. Oct. 29, 2013) (“In determining facial attacks on jurisdiction, the Court limits its review to the sufficiency of the complaint, and it takes the allegations in the complaint as true.”); Onyx Prop. LLC v. Bd. of Cnty. Comm'rs of Elbert Cnty., No. 10-cv-01482-LTB-KLM, 2011 WL 588097, at *2 (D. Colo. Feb. 9, 2011) (treating motion to dismiss for lack of standing as facial attack on the complaint); cf. Rodriguez-Aguirre, 264 F.3d at 1203 (contrasting facial attack, where “the district court must accept the allegations in the complaint as true, ” with a factual attack, where the court does not “presume the truthfulness of the complaint's factual allegations, ” but “has wide discretion...