Wash. Election Integrity Coal. United v. Kimsey

• Decision Date: 30 September 2022
• Docket Number: 3:21-cv-05746-LK
• Parties: WASHINGTON ELECTION INTEGRITY COALITION UNITED et al., Plaintiffs, v. GREG KIMSEY et al., Defendants.
• Court: U.S. District Court — Western District of Washington

WASHINGTON ELECTION INTEGRITY COALITION UNITED et al., Plaintiffs,
v.
GREG KIMSEY et al., Defendants.

No. 3:21-cv-05746-LK

United States District Court, W.D. Washington, Tacoma

September 30, 2022

Lauren King, United States District Judge.

This matter comes before the Court on Washington Election Integrity Coalition United's (“WEICU's”) motion to remand and a motion to dismiss filed by Clark County and Clark County Auditor Greg Kimsey (“Defendants”). Dkt. Nos. 16, 17. Because the individual Plaintiffs lack Article III standing and the Court has no supplemental jurisdiction over the remaining state law claims, and because remand to state court would be futile, the Court dismisses the case.

I. BACKGROUND

This action is one of several nearly identical actions originally filed in state court by WEICU and numerous pro se plaintiffs in counties across Washington, and one of six such actions

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that have been removed to this Court.^[1] Plaintiffs filed their complaint in Clark County Superior Court on September 16, 2021. Dkt. No. 1-1 at 1. Their claims center on the conduct of the November 2020 general election in Clark County, Washington.

The individual Plaintiffs^[2] bring claims against the Clark County Auditor for (1) allowing or facilitating fraudulent alterations of the voting results (which Plaintiffs describe as “vote flipping, additions, and/or deletions”); (2) maintaining records of County elector party preference and identifying County electors' ballots by party preference; and (3) violating the United States Constitution and the Washington State Constitution. Dkt. No. 1-1 at 4-12. For each of these alleged “wrongful acts,” the individual Plaintiffs seek declaratory and injunctive relief. Id. They also seek damages against the Auditor for civil rights violations under 42 U.S.C. §§ 1983 and 1988. Id. at 13. WEICU's sole claim is against the Auditor and Clark County under Washington's Public Records Act (“PRA”), Wash. Rev. Code §§ 42.56.001-42.56.900, for wrongfully denying WEICU's records request for “original ballots, ballot images, spoiled ballots, adjudication records, ballot envelopes, and returned ballots for the Election.” Dkt. No. 1-1 at 7-9. WEICU seeks to “compel Defendants to provide access to public records from the Election for a full forensic audit.” Id. at 8.

Defendants removed the case to this Court on October 7, 2021. Dkt. No. 1. On October 22,

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2021, WEICU filed a motion to remand.^[3] Dkt. No. 16. On October 25, 2021, Defendants moved to dismiss Plaintiffs' claims under Federal Rules of Civil Procedure 12(b)(2), (4), (5), and (6). Dkt. No. 17.

II. DISCUSSION

Oddly, Defendants removed this action on the basis that this Court has original jurisdiction over it under 28 U.S.C. § 1331, Dkt. No. 1 at 2, and then sought to dismiss the action on the basis that the individual Plaintiffs lack Article III standing to bring their claims, Dkt. No. 17 at 4-6. The only other Plaintiff at that time was WEICU, which purported to assert only a state law claim. Dkt. No. 1-1 at 7-9.

28 U.S.C. § 1441 allows a defendant to remove an action filed in state court to federal district court where the federal district court has original jurisdiction. The Ninth Circuit “strictly construe[s] the removal statute against removal jurisdiction,” and “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The ‘strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.” Id. Ultimately, if a district court lacks subject matter jurisdiction over a removed action, it usually has the duty to remand it, for “removal is permissible only where original jurisdiction exists at the time of removal or at the time of the entry of final judgment[.]” Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 43 (1998); see 28 U.S.C. § 1441(a).

Because the Court lacks subject matter jurisdiction over Plaintiffs' federal claims, it cannot exercise supplemental jurisdiction over any of Plaintiffs' state law claims and must either remand

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or dismiss the entire case. The Court dismisses the Plaintiffs' claims because remand to state court would be futile.

A. Because the Individual Plaintiffs Do Not Have Article III Standing, this Court Lacks Subject Matter Jurisdiction over Their Claims

At the outset, the Court recognizes that the right at issue in this case-the right to vote and have that vote counted-is “a fundamental matter in a free and democratic society.” Reynolds v. Sims, 377 U.S. 533, 561-62 (1964). But a voter seeking relief in federal court for alleged violations of constitutional rights must have standing to do so, including “a personal stake in the outcome, distinct from a generally available grievance about government.” Gillv. Whitford, 138 S.Ct. 1916, 1923 (2018) (cleaned up). “[A] suit brought by a plaintiff without Article III standing is not a ‘case or controversy,' and an Article III federal court therefore lacks subject matter jurisdiction over the suit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). Article III's “case or controversy” requirement thus obligates federal courts to determine, as an initial matter, whether plaintiffs have standing to bring suit. Lance v. Coffman, 549 U.S. 437, 439 (2007).

As the party invoking federal jurisdiction, Defendants bear the burden of establishing the existence of a case or controversy under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); see also Tailford v. Experian Info. Sols., Inc., 26 F.4th 1092, 1099 (9th Cir. 2022). “To establish Article III standing, an injury must be ‘concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.'” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). “For an injury to be ‘particularized,' it ‘must affect the plaintiff in a personal and individual way.'” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting Lujan, 504 U.S. at 560 n.1). The injury must also be “concrete”; “that is, it must actually exist.” Id. at 339-40. Because Defendants themselves argue that the individual Plaintiffs lack Article III

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standing, Dkt. No. 17 at 4-6, they have failed to meet their burden to establish that the Court has subject matter jurisdiction over these claims, see Britton v. Cnty. of Santa Cruz, No. 19-CV-04263-LHK, 2020 WL 4197609, at *4 (N.D. Cal. July 22, 2020).

Defendants urge the Court to dismiss Plaintiffs' claims because they raise only generalized grievances and do not identify any particularized individual injury. Dkt. No. 17 at 4-6. These challenges are evaluated under Federal Rule of Civil Procedure 12(b)(1). Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). Defendants advance both factual and facial challenges to the individual Plaintiffs' standing. In reviewing a factual challenge, the court may consider materials beyond the complaint, Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003), “weigh the evidence[,] and satisfy itself as to the existence of its power to hear the case,” Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). In reviewing a facial attack, however, the inquiry is confined to the allegations in the complaint, and the court assumes all materials allegations in the complaint are true. Savage, 343 F.3d at 1039 n.2. However, “[t]his is not to say that plaintiff may rely on a bare legal conclusion to assert injury-in-fact, or engage in an ‘ingenious academic exercise in the conceivable' to explain how defendants' actions caused his injury.” Maya, 658 F.3d at 1068 (internal footnotes omitted) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689-90 (1973)).

The Supreme Court has “consistently held that a plaintiff raising only a generally available grievance about government-claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large-does not state an Article III case or controversy.” Lance, 549 U.S. at 439 (quoting Lujan, 504 U.S. at 573-74 (1992)); see also Warth v. Seldin, 422 U.S. 490, 499 (1975) (“[T]he Court has held that when the asserted harm is a ‘generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone

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normally does not warrant exercise of jurisdiction.”). Accordingly, and in recognition “that a person's right to vote is ‘individual and personal in nature,'” courts have long held that “‘voters who allege facts showing disadvantage to themselves as individuals have standing to sue' to remedy that disadvantage.” Gill, 138 S.Ct. at 1929 (emphasis added) (quoting Reynolds, 377 U.S. at 561 and Baker v. Carr, 369 U.S. 186, 206 (1962)). As Defendants contend, Plaintiffs fail to show such disadvantage and therefore lack Article III standing.

1. Plaintiffs Do Not Allege that They Suffered Any “Concrete, Particularized, and Actual or Imminent” Injury from the Alleged Misconduct by the Auditor

Plaintiffs' claims each follow a similar pattern: they allege a violation of law, ask the Court to declare the Auditor's duties under the law and enjoin her from violating the law, and then state that they “will suffer irreparable injury” from violations of their constitutional rights:

Allegation	Requested Declaration/Injunction	“Injury”
Plaintiffs “are informed and believe” that the Auditor “allow[ed] and/or facilitate[ed] electronic manipulation of the voting results from the [2020] Election,” and that “a...