Curtis v. Oliver

• Decision Date: 14 August 2020
• Docket Number: No. CIV 20-0748 JB\JHR,CIV 20-0748 JB\JHR
• Citation: 479 F.Supp.3d 1039
• Parties: Stephen P. CURTIS, Libertarian Party of New Mexico, Chris Luchini, and Ranota Q. Banks, Plaintiffs, v. Maggie Toulouse OLIVER, Defendant.
• Court: U.S. District Court — District of New Mexico

479 F.Supp.3d 1039

Stephen P. CURTIS, Libertarian Party of New Mexico, Chris Luchini, and Ranota Q. Banks, Plaintiffs,

v.Maggie Toulouse OLIVER, Defendant.

No. CIV 20-0748 JB\JHR

United States District Court, D. New Mexico.

Filed August 14, 2020

Stephen P. Curtis, Stephen P. Curtis Attorney at Law PC, Albuquerque, New Mexico --and-- Christopher D. Wiest, Crestview Hills, Kentucky, Attorneys for the Plaintiffs

Dylan K. Lange, General Counsel to the Office of the Secretary of State of New Mexico, Santa Fe, New Mexico, Attorney for the Defendant

Robin S. Hammer, Sandoval County Attorney, David C. Mann, Sandoval County Deputy Attorney, Bernalillo, New Mexico, Attorneys for Sandoval County Clerk Eileen Garbagni

Nelson J. Goodwin, Doña Ana County Attorney, Las Cruces, New Mexico, Attorney for Doña Ana County Clerk Amanda Lopez Askin

W. Ken Martinez, Bernalillo County Attorney, Natalia Sanchez Downey, Bernalillo County Assistant Attorney, Albuquerque, New Mexico, Attorneys for Bernalillo County Clerk Linda Stover

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE THIS MATTER comes before the Court on the Plaintiffs’ Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction with Verified Complaint in Support, filed July 29, 2020 (Doc. 7)("Motion"). The Court held a hearing on August 7, 2020. See Clerk's Minutes at 1, filed August 7, 2020 (Doc. 13). The primary issues are: (i) whether the Eleventh Amendment to the Constitution of the United States of America bars Plaintiffs Stephen P. Curtis, Libertarian Party of New Mexico, Chris Luchini, and Ranota Q. Banks (collectively, the "Libertarian Plaintiffs") from suing Secretary of State of New Mexico Maggie Toulouse Oliver for allegedly not complying with New Mexico law and abusing her authority as Secretary of State of New Mexico by not quickly responding to Mr. Curtis’ recount request and directing the New Mexico State Canvassing Board to conduct a vote recount; (ii) whether the Libertarian Plaintiffs have standing, because they did not first seek redress in State court by contesting the election, see N.M. Stat. Ann. §§ 1-14-3 and 1-14-21, or successfully apply for a recount under New Mexico election law's discretionary recount provision, see N.M. Stat. Ann. § 1-14-15 ; (iii) whether the Libertarian Plaintiffs have established that they are substantially likely to succeed on the merits of their claim that Secretary Oliver violated their constitutional right to vote and have their votes counted by not counting all votes for Mr. Curtis in the Libertarian Party primary election for Position 2 on the Court of Appeals of New Mexico; (iv) whether the Libertarian Plaintiffs have established that they are likely to succeed on the merits of their claim that New Mexico election law's discretionary recount provision violates the First Amendment to the Constitution, the Equal Protection Clause of the Fourteenth Amendment to the Constitution, and the Due Process Clause of the Fourteenth Amendment; (v) whether the Libertarian Plaintiffs have established that they are entitled to a temporary restraining order ("TRO") to have all votes counted in the Libertarian Party primary election for Position 2 on the Court of Appeals of New Mexico in Bernalillo County, because they will suffer irreparable harm that outweighs any harm to Secretary Oliver and the State of New Mexico, and because the TRO is serves the public's interest. The Court concludes that: (i) although the Eleventh Amendment does not bar the Libertarian Plaintiffs’ federal constitution claims -- which seek prospective relief against a State official in her official capacity -- the Eleventh Amendment bars any claims by the Libertarian Plaintiffs that Secretary Oliver has violated New Mexico law by abusing her authority, because the Supreme Court of the United States of America has held that the Eleventh Amendment bars claims that a State official has violated State law, see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ; (ii) the Libertarian Plaintiffs have standing, because the Court is capable of redressing alleged deprivations of their constitutional rights, because 42 U.S.C. § 1983 does not require a litigant to pursue state judicial remedies before commencing an action in federal court, and because no parallel proceedings brought by the Libertarian Plaintiffs are pending in State court; (iii) the Libertarian Plaintiffs have established that they are substantially likely to succeed on the merits of their right-to-vote claim under the Due Process Clause, because the facts in the record before the Court indicate that Banks’ vote and a significant number of votes in the Libertarian Party primary election in Bernalillo County, New Mexico, for Position 2 on the Court of Appeals of New Mexico have not been counted and, if some of the uncounted votes are for Mr. Curtis -- who is the only candidate for the position for which he ran in the Libertarian Party primary election -- then Secretary Oliver has violated the Libertarian Party's constitutional right to vote, which includes the right to have one's vote counted; (iv) the Libertarian Plaintiffs have not established that they are substantially likely to succeed on the merits of their claim that the discretionary recount provision violates the First Amendment, the Equal Protection Clause, and the Due Process Clause, because there is no constitutional right to a recount, the discretionary recount provision is a privilege that New Mexico election law affords electoral candidates, and the discretionary recount provision is rationally related to New Mexico's interest in ensuring the accuracy and integrity of elections; and (v) the Libertarian Plaintiffs have established that they are entitled to a TRO, because, on the facts in the record before the Court: (a) they are substantially likely to succeed on their right-to-vote claim under the Due Process Clause, (b) they very likely will suffer irreparable harm if the Court does not grant injunctive relief, as many of Mr. Curtis’ votes will not be counted, and he thus will not qualify to have his name added to the general election ballot, (c) the Libertarian Plaintiffs’ interest in vindicating their rights to vote outweighs Secretary Oliver and New Mexico's interest in regulating elections, and (d) ensuring that all votes have been counted serves the public's interest by ensuring that the June 2, 2020, primary elections were fair. Accordingly, the Court grants the Motion in part, and denies it in part, and the Court orders that Secretary Oliver direct the New Mexico State Canvassing Board to count the votes in the Libertarian Party primary election for Position 2 on the Court of Appeals of New Mexico in Bernalillo County, but not in other Counties.

FINDINGS OF FACT

"A temporary restraining order requires the Court to make predictions about the plaintiff's likelihood of success." Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d 1174, 1179 (D.N.M. 2011) (Browning, J.). Rule 52 of the Federal Rules of Civil Procedure states: "In granting or refusing an interlocutory injunction, the court must [ ] state the findings and conclusions that support its action." Fed. R. Civ. P. 52(a)(2). " ‘[T]he findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits.’ " Herrera v. Santa Fe Pub. Sch., 792 F. Supp. 2d at 1179 (quoting Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009) )(alteration in Herrera v. Santa Fe Public Schools only). See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981) ("[A] preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits."); Firebird Structures, LCC v. United Bhd. of Carpenters and Joiners of Am., Local Union No. 1505, 252 F. Supp. 3d 1132, 1140 (D.N.M. 2017) (Browning, J.). The United States Court of Appeals for the Tenth Circuit notes "that when a district court holds a hearing on a motion for preliminary injunction it is not conducting a trial on the merits." Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). Moreover, "[t]he Federal Rules of Evidence do not apply to preliminary injunction hearings." Heideman v. S. Salt Lake City, 348 F.3d at 1188. Accordingly, the Court finds as follows:

1. Plaintiff Stephen P. Curtis is a registered Libertarian voter in New Mexico and was a Libertarian Party of New Mexico candidate for Position 2 on the Court of Appeals of New Mexico during the 2020 New Mexico primary elections. See Plaintiff's Verified Complaint for Declaratory and Injunctive Relief ¶ 2, at 3, filed July 23, 2020 (Doc. 1)("Complaint");¹ "Stephen Curtis," Libertarian Party of New Mexico, https://lpnm.us/stephen-curtis/ (last visited August 4, 2020); Secretary of State's Response to Plaintiffs’ Emergency Motion for Temporary Restraining Order and Preliminary Injunction ¶¶ 1-2, at 2, filed August 6, 2020 (Doc. 10)("Response").

2. Plaintiff Libertarian Party of New Mexico is New Mexico's third largest political party, and it helps candidates run for public office in New Mexico. See Complaint ¶ 3, at 3; "Libertarian Party of New Mexico," Ballotpedia, https://ballotpedia.org/Libertarian_Party_of_New_Mexico (last visited August 5, 2020); Motion at 2.

3. Plaintiff Chris Luchini is the Chair of the Libertarian Party and a registered voter in New Mexico who voted for Mr. Curtis in the 2020 primary election for Position 2 on the Court of Appeals of New Mexico. See Complaint ¶ 4, at 3; "Executive Biographies," Libertarian Party of New Mexico, https://lpnm.us/lpnm-executive-bios/ (last visited August 5, 2020).

4. Plaintiff Ranota Q. Banks is a registered voter in New Mexico who voted for Mr. Curtis in the 2020 Libertarian Party primary election for Position 2 on the Court of Appeals of New Mexico, and...