The Libertarian Party v. Dist. of D.C. Bd. of Elections

• Decision Date: 08 March 2011
• Docket Number: Civil Action No. 09–1676 (BAH).
• Citation: 768 F.Supp.2d 174
• Parties: The LIBERTARIAN PARTY, et al., Plaintiffs,v.DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

768 F.Supp.2d 174

The LIBERTARIAN PARTY, et al., Plaintiffs,

v.DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, et al., Defendants.

Civil Action No. 09–1676 (BAH).

United States District Court, District of Columbia.

March 8, 2011.

Oliver B. Hall, Washington, DC, for Plaintiffs.Jacques P. Lerner, Ellen A. Efros, Office of the Attorney General for DC, Kenneth Joseph McGhie, Renee K. Christensen, D.C. Board of Election and Ethics, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

This case arises out of the November 4, 2008 election for President of the United States. The central issue is whether a District of Columbia election regulation governing the reporting of write-in votes unreasonably infringes upon Plaintiffs' First Amendment speech and associational rights, as well as their rights to due process and equal protection under the law. Pursuant to a D.C. election regulation, Defendant District of Columbia Board of Elections and Ethics (the “Board”) is only required to tally and report the total number of write-in votes cast in an election (not the total for each write-in candidate), unless the number of write-in votes could potentially have a determinative effect on the election's outcome. Plaintiffs—who are the Libertarian Party, its candidate for President of the United States in 2008 (Bob Barr), and its three candidates for presidential elector from the District of Columbia in 2008—argue that the Constitution requires the District of Columbia to tally and report the number of write-in votes for each candidate, regardless of the potential effect on the election's outcome. Plaintiffs argue that the number of votes for each write-in candidate must be reported as part of the official election results, which are usually certified and released by the Board within 10 to 15 days after the election. For the reasons explained below, the Court finds that neither the Board's actions nor the District of Columbia regulation itself impermissibly burdened Plaintiffs' constitutional rights.

I. Factual and Procedural Background

The facts of the case are undisputed. Plaintiff Barr was the Libertarian Party candidate for President in 2008. Pl. Stmt. of Mat. Facts ¶ 1. Barr ran as a qualified write-in candidate in the District of Columbia. Id. ¶ 8. Plaintiffs J. Bradley Jansen, Rob Kampia, and Stacie Rumenap were D.C. voters who were also Libertarian Party candidates for presidential elector for the District of Columbia in 2008 pledged to Barr. Id. ¶¶ 8–10. The Defendants are the Board, the Mayor, and Attorney General of the District of Columbia in their official capacities.¹

With respect to the tallying and reporting of write-in votes, the District of Columbia Municipal Regulations, Title 3, provides, in relevant part: ²

806.12 The total number of write-in votes marked by voters shall be reported for each contest.

806.13 The total number of votes cast for each write-in nominee shall be calculated only in contests where there is no candidate printed on the ballot in order to determine a winner, or where the total number of write-in votes reported, under § 806.12, is sufficient to elect a write-in candidate.

D.C. Mun. Regs. tit. 3, § 806 (2010).

Following the vote in the November 2008 presidential election, the total number of write-in votes in the District of Columbia was not sufficient to elect a write-in candidate. Indeed, there were only 1,138 write-in votes out of a total 265,853 votes cast. Declaration of Errol Arthur, Chairman of the D.C. Board of Elections and Ethics, dated Jan. 6, 2010, hereinafter “Arthur Decl.” ¶ 9; Federal Election Commission 2008 Presidential General Election Results.³ Barack Obama received 245,800 votes. Arthur Decl. ¶ 9. Pursuant to § 806, the Board did not tally and report the total number of votes for Plaintiff Barr because neither of the circumstances that would trigger a tally for each write-in candidate under § 806.13 were present. As a result, Plaintiffs argue, they are unable to determine the precise level of support for Barr and the Libertarian Party, in violation of their constitutional rights.

Plaintiffs first brought this action in Superior Court for the District of Columbia. On September 2, 2009, Defendants removed to this Court pursuant to 28 U.S.C. § 1441(b) and 1446. On November 9, 2009, Plaintiffs filed an amended complaint (“Compl.”).

Plaintiffs bring this action under 42 U.S.C. § 1983, alleging that their First Amendment speech and associational rights, as well as their rights to due process and equal protection under the law, were violated by the Board's actions, and, to the extent that the Board's actions were required by § 806.13, that the regulation itself is unconstitutional.⁴ Plaintiffs seek a declaration that the Board's refusal to tally and report the number of write-in votes for each candidate is unconstitutional and that § 806.13 is unconstitutional as applied. They also seek an order directing the Board to tally the number of votes cast for Plaintiff Barr in 2008 and enjoining the Board from refusing to tally and report such write-in votes in the future. In addition, they seek attorney's fees and costs pursuant to 42 U.S.C. § 1988.

Defendants respond that the tabulation of write-in votes for each candidate is not a constitutionally protected right, and that, insofar as the right is protected, the reasons behind the regulation justify its application. The parties dispute the appropriate level of review to be applied to Plaintiffs' claims.⁵

On November 23, 2009, the Board moved to dismiss Plaintiffs' amended complaint pursuant to Rule 12(b)(6). On December 14, 2009, in response, Plaintiffs moved for summary judgment and opposed the Board's motion to dismiss.

On February 2, 2010, the Court notified the parties that it intended to treat Defendants' motion to dismiss as a motion for summary judgment pursuant to Rule 12(d). See Fed R. Civ. P. 12(d); see also Kim v. United States, No. 09–5227, 632 F.3d 713, 719-20, 2011 WL 192496, at *6 (D.C.Cir. Jan. 21, 2011); Wiley v. Glassman, 511 F.3d 151, 160 (D.C.Cir.2007). The Court provided the parties with a reasonable opportunity to present any additional material pertinent to that motion.

Both parties submitted supplemental briefing and material on February 11 and 12, 2011.

Oral argument on the cross motions for summary judgment was held on March 4, 2011. The parties' cross motions for summary judgment are now before the Court.

II. Discussion

A. Mootness

As a threshold question, the Court must determine whether it still has jurisdiction to decide this case now that the 2008 election is long since over. Under Article III of the United States Constitution, this Court “may only adjudicate actual, ongoing controversies.” District of Columbia v. Doe, 611 F.3d 888, 894 (D.C.Cir.2010) (quoting Honig v. Doe, 484 U.S. 305, 317, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). The mootness doctrine prohibits the court from deciding a case if “events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future.” Id. (quoting Clarke v. United States, 915 F.2d 699, 701 (D.C.Cir.1990) (en banc)).

There is an exception to the mootness doctrine, however, for an action that is “capable of repetition, yet evading review.” Id. This exception applies where: “(1) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Id. (quotation omitted). The first prong of this doctrine is clearly satisfied here. Legal challenges to election procedures often take longer to resolve than the election cycle itself. See Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (collecting cases). The second prong is also satisfied because it is likely that the Libertarian Party and its candidates and voters will participate in future elections in the District of Columbia. While the District of Columbia has amended the regulations at issue, the amendments made no material changes to the relevant provisions. This case therefore satisfies the “capable of repetition, yet evading review” exception and is not moot. See id.

B. Interpretation of District of Columbia Law

Before proceeding to the constitutional questions, the Court will briefly address a question of District of Columbia law raised in Plaintiffs' briefs. In their summary judgment motion papers, Plaintiffs contend that the Board's application of § 806.13, as well as the provision itself, is inconsistent with controlling local law as set forth in Kamins v. Bd. of Elections for D.C., 324 A.2d 187 (D.C.1974). See Pl. Summ. J. Mem. at 15–17. Plaintiffs' complaint asserts no causes of action premised on District of Columbia law; consequently, it is unclear what claims or remedies pertain to Plaintiffs' local law arguments. In any event, Plaintiffs' D.C. law arguments are unfounded.

At the time of the Kamins ruling, D.C. law was silent as to write-in voting. The Board then took the position that it was not permitted to count write-in votes in the U.S. presidential election. 324 A.2d at 190. The Kamins court disagreed, instructing “that there is nothing in the statute regulating elections in the District of Columbia which precludes the counting of write-in votes in a presidential election where such votes are cast for candidates for whom, as here, a valid slate of electors has been filed.” Id. at 193. On remand, an order in a hand-written docket entry directed the Board to count the write-in ballots at issue and to promulgate a regulation to facilitate write-in voting. Declaration of Richard Winger dated Dec. 14, 2009, hereinafter “Winger Decl.,” Attachment C. Plaintiffs argue that “[w]hile the Board may be in literal compliance with Kamins, its refusal to tally and report the...