Case 5:12-cv KES Document 44 Filed 02/14/12 Page 1 of 26 PageID #: 328

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1 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 1 of 26 PageID #: 328 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH DAKOTA WESTERN DIVISION CHIS BROOKS, FRANCIS RENCOUNTRE, ) Civ. No GLORIA RED EAGLE, SHARON CONDEN, ) JACQUELINE GARNIER, JENNIFER RED OWL, ) EDWINA WESTON, MICHELLE WESTON, ) MONETTE TWO EAGLE, MARK A. MESTETH, ) STACY TWO LANCE, HARRY BROWN, ) ELEANOR WESTON, DAWN BLACK BULL, ) CLARICE MESTETH, DONOVAN L. STEELE, ) EILEEN JANIS, LEONA LITTLE HAWK, EVAN ) RENCOUNTRE, CECIL LITTLE HAWK, SR., ) LINDA RED CLOUD, LORETTA LITTLE HAWK, ) FAITH TWO EAGLE, EDMOND MESTETH; and ) DEFENDANT GANT S ELMER KILLS BACK, JR. ) MEMORANDUM IN ) SUPPORT OF MOTION Plaintiffs, ) TO DISMISS ) (Fed.R.Civ.P. 12(b)(1),(6)) v. ) AND ) OPPOSING ENTRY OF JASON GANT, in his official capacity as SOUTH ) PRELIMINARY OR DAKOTA SECRETARY OF STATE, SHANNON ) PERMANENT INJUNCTION CONTY, SOUTH DAKOTA, FALL RIVER ) COUNTY, SOUTH DAKOTA, SHANNON ) COUNTY BOARD OF COMMISSIONERS, FALL ) RIVER BOARD OF COMMISSIONERS, JOE ) FALKENBUEG, ANNE CASSENS, MICHAEL P. ) ORTNER, DEB RUSSELL, and JOE ALLEN, in ) their official capacity as members of the County ) Board of Commissioners for Fall River County, ) South Dakota, BRYAN J. KEHN, DELORIS ) HAGMAN, EUGENIO B. WHITE HAWK, ) WENDELL YELLOW BULL, and LYLA ) HUTCHISON in their official capacity as ) members of the County Board of ) Commissioners for Shannon County, ) South Dakota, SUE GANJE, in her official ) capacity as the County Auditor for Shannon ) and Fall River Counties, and JAMES SWORD, ) in his official capacity as Attorney for ) Shannon County and Fall River Counties, ) Defendants. )

2 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 2 of 26 PageID #: 329 Defendant Jason Gant ( Gant ), in his official capacity as Secretary of State, submits this Memorandum of Law in support of his Motion to Dismiss pursuant to Fed.R.Civ.P 12(b)(1),(6) and in opposition of Plaintiffs Motion for Temporary and Permanent Injunction (Doc. 2). Facts Plaintiffs filed their Complaint (Doc. 1) on January 13, The Complaint was filed against Jason Gant, in his official capacity as South Dakota Secretary of State, the Shannon County and Fall River County Commissions, the individual members of both Commissions, in their official capacities, Sue Ganje in her official capacity as County Auditor and Jim Sword in his official capacity as State s Attorney. The Complaint is 26 pages long and contains 114 paragraphs alleging violations against the named defendants. It follows with an additional 6 paragraphs of requested relief. Aside from being named in the Parties section of the Complaint, the only allegation specific to Gant 1 is paragraph 103 which alleges: 103. Secretary of State Gant has not agreed to provide funding from HAVA or any other source to assist with early voting for the full 46 days authorized by South Dakota law in Shannon County, and has only indicated a willingness to consider reimbursement requests for early voting in Shannon County. Ex. 20, Letter from Secretary of State Gant to Steven D. Sandven (December 30, 2011). 1 Paragraph 101 alleges: Plaintiffs have requested that Shannon County, Fall River County and the State of South Dakota provide at least one early voting location in Shannon County in the 2012 primary and general elections. Aside from naming Gant in his official capacity, the State of South Dakota itself is not a named party to this litigation. 2

3 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 3 of 26 PageID #: 330 The Complaint alleges that Shannon County will only provide 6 days of early voting. Complaint at 102. Each of the three claims against Defendants alleges only that they failed to establish early voting places within Shannon County for a full six (6) week period. See Complaint at 108, 111, 114. Standard Judgment on the pleadings is appropriate where no material issues of fact remains to be resolved and the movant is entitled to judgment as a matter of law. Clemons v. Crawford, 585 F.3d 1119, 1124 (8 th Cir. 2009)(citation omitted). The Complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Junk v. Terminex Int l Co., 628 F.3d 439, 445 (8 th Cir. 2010)(quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Plaintiffs must show that success on the merits is more than a sheer possibility, although this is not a probability requirement. Braden v. Wal-Mart Stores, 588 F.3d 585, 594 (8 th Cir. 2009)(quoting Iqbal, 129 S.Ct. at 1949). The factual content of the complaint as a whole must allo[w] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. Moreover, although a court must generally take factual allegations as true, legal conclusions and indeterminate factual allegations cannot be used to survive a motion to dismiss. Id. Additionally, the Eight Circuit has addressed the requirement of a defendant acting under color of law under 42 U.S.C as both a subject 3

4 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 4 of 26 PageID #: 331 matter jurisdiction issue and a failure to state a claim for relief. See Nichols v. Tower Grove Bank, 497 F.2d 404, 406 (8 th Cir. 1974); Hayden v. Bracy, 744 F.2d 1338, 1342 (8 th Cir. 1984). Subject matter jurisdiction provides the better analysis. Polk County v. Dodson, 454 U.S. 312, 336, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981)(Blackmun, J., dissenting). Failure to show Article III standing and a successful assertion of Eleventh Amendment immunity also fall within the realm of subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); Edelman v. Jordan, 415 U.S. 651 (1974). Argument I. Secretary of State Gant s Motion to Dismiss a. Plaintiffs Complaint Fails to State a Cause of Action Against Secretary of State Gant under Fed.R.Civ.P 12(b)(6) Plaintiffs Complaint (Doc. 1) alleges three claims for relief. The first claim alleges a violation of the 14 th Amendment to the United States Constitution and 42 U.S.C 1983, the second that the Defendant violated state law in contravention of the Voting Rights act, and the third alleges Defendants violated Section 2 of the Voting Rights Act of Claim One: 108. The Defendants have acted under the color of state law to deprive the voters of Shannon County of the equal protection of the laws by failing to establish early voting places within Shannon County for a full six (6) week period as enjoyed by almost every other registered voter in the State of South Dakota in violation of the Fourteenth Amendment and 42 U.S.C (emphasis added). 4

5 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 5 of 26 PageID #: 332 Claim Two: 111. The Defendants have acted under the color of State law to deprive the voters of Shannon County equal elections by arbitrarily failing to establish early voting polling places within Shannon County for a full six (6) week period as enjoyed by almost every other registered voter in the State of South Dakota in violation of the Constitution of the State of South Dakota. (emphasis added). Claim Three: 114. Defendants Failure to establish early voting polling places within Shannon County for a full six (6) week period has resulted in Indians, including the Plaintiffs, having less opportunity than other members of the electorate to participate in the political process and elect representatives of their choice, in violation of Section 2 of the Voting Rights Act. (emphasis added). Each of Plaintiffs claims is contingent upon the allegation that Defendants failed to establish early voting polling places within Shannon County. Despite Plaintiffs assertion to the contrary, Shannon County is not an unincorporated county. Unincorporated county status was abolished in South Dakota by House Bill 1197 in See attached Session Law (Exhibit 1). As a result, formerly unincorporated counties were no longer attached to adjoining counties for government and administration. See Oglala Sioux Tribe of Pine Ridge Indian Reservation, 770 F.3d 730, (8 th Cir. 1985). Once organized, the counties became responsible for their own governance but were provided the ability to contract with adjoining counties for other governmental services. H.B. 1197, 54 Sess In 1982, under this authority, Shannon County adopted a home rule charter, pursuant to Article IX of the State Constitution. See attached Charter (Exhibit 2). The Charter, as amended on a 5

6 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 6 of 26 PageID #: 333 few occasions, allows Shannon to contract with adjoining counties for the services of Auditor, Register of Deeds, Treasurer and State s Attorney. Id. Shannon County continues to be governed by its own county commissioners. As recognized by the Plaintiffs themselves, the Secretary of State is not involved in establishing early voting places within Shannon County. See Complaint (Doc. 1) at 66 ( The approval process for early voting includes the Shannon County Board of Commissioners, the Fall River County Board of Commissioners, the Fall River County Auditor, the United States Department of Justice, and the Shannon County State s Attorney ). Moreover, the Secretary of State has no authority under South Dakota law to establish early voting places within South Dakota counties. Rather, that responsibility is statutorily placed with each county. See generally SDCL Title 12 Elections. There is no authority for the Secretary of State to establish early voting polling places or to deliver absentee ballots to voters. The statutes cited by Plaintiffs in support of their Complaint illustrate this concept. See Complaint (Doc. 1) The Secretary of State cannot establish polling places. In this regard, SDCL provides: Designation of precincts and polling places by county commissioners--changes--separate voter lists of special voting districts. The board of county commissioners shall by resolution provide for election precincts throughout its county and shall designate polling places within such precincts. The board shall establish new election precincts if required by the provisions of this chapter and may by resolution change the boundaries of election precincts already established. The county auditor shall be able to provide separate lists of voters living within the boundaries of each 6

7 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 7 of 26 PageID #: 334 municipality, ward, school district, and any other special voting district. (emphasis added). Likewise, the Secretary of State does not have authority to provide ballots to voters of the county. Printed ballots to be provided--candidates listed--sample ballots-- Submitted questions. The county auditor shall provide printed ballots for each election in which the voters of the entire county participate. Except as provided in , printed ballots for a primary election shall contain the name of each candidate who has filed for nomination and is approved. The printed ballots for the election of officers shall contain the name of each candidate whose nomination has been certified or filed with the county auditor in the manner provided by law unless the candidate is deemed elected by having no opposition. The names of the candidates shall appear on the ballot exactly as listed in the declaration of candidacy of the candidates' nominating petitions. Sample ballots shall be printed on paper of a different color from the official ballot but in the same form. The sample ballots and official ballots shall be printed and in the possession of the county auditor not later than forty-eight days prior to a primary or general election. Absentee voting shall begin no earlier and no later than forty- six days prior to the election. The county auditor shall also prepare the necessary ballots if any question is required to be submitted to the voters of the county. Ballots for general elections shall be of the style and form prescribed in to , inclusive. SDCL (emphasis added). The above statute clearly and unambiguously requires that [t]he county auditor shall provide printed ballots for each election in which the voters of the entire county participate. Absentee voting authorized by SDCL is to be carried out by the person in charge of the election. SDCL states in pertinent part: Application for absentee ballot--contents--address to which ballot sent--stamping date of receipt--delivery. An absentee voter desiring to vote by mail may apply to the person in charge of the election for an absentee ballot.the person in charge of the election shall stamp the application with the date it was received. The person in charge of the election shall preserve a record of the 7

8 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 8 of 26 PageID #: 335 name, mailing address, and voting precinct of each applicant and, except as provided by , deliver a copy of the record to the superintendent of the election board of the home precinct of the applicant. For the purposes of Title 12 Elections, the person in charge of the election is defined by SDCL (7) as the county auditor in all cases except local elections when a comparable official for that unit of government is assigned responsibility. SDCL (7) provides: (7) Person in charge of an election, or person charged with the conduct of an election, the county auditor in all cases except local elections for a municipality, school district, township, or other political subdivision, in which the officer having the position comparable to the auditor in that unit of government if not specifically designated by law; Given the statutory framework above, Plaintiffs Complaint contains no viable claim that Secretary of State Gant acted or failed to act with regard to the claims pled by Plaintiffs, more specifically that Gant unconstitutionally failed to establish early voting polling places or provide for absentee voting 2. 2 The only authority for the Secretary of State to conduct an election is found SDCL However, for SDCL to apply, the governing board must determine that the election cannot be conducted and the person charged with conducting the election must sign and deliver a declaration of emergency to the Secretary of State. At that point the Secretary of State may conduct the election. It is undisputed that none of the prerequisites allowing implementation of this statute have occurred. Moreover, a persistent lack of funding would not create the emergency necessary to implement SDCL as the county is required to reimburse the Secretary of State within 90 days after certifying the election. Even under an emergency scenario, the county is still liable for its own election expenses. SDCL provides: Procedure for secretary of state to conduct election in emergency-- Reimbursement of expenses. If the person charged with the conduct of an election and the governing board determine that an election cannot be conducted, the person charged with the conduct of an election shall sign a declaration of emergency and deliver it to the secretary of state prior to the election. The secretary of state may conduct the election for that county or 8

9 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 9 of 26 PageID #: 336 In order to survive a motion to dismiss, the complaint must plead content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 129 S.Ct at Plaintiffs Complaint fails to allege any scenario under which Secretary of State Gant is responsible for the alleged misconduct namely that Gant failed to establish early voting polling places in Shannon County. Accordingly, the State requests Plaintiffs Complaint against Gant be dismissed. b. Plaintiffs Lack Article III Standing Under 12(b)(1) For the Same reasons as cited above, Plaintiffs claims allege no injury traceable to any action on the part of Secretary Gant. To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an injury in fact, (2) a causal relationship between the injury and the challenged conduct, (3) that the injury likely will be redressed by a favorable decision. Pucket v. Hot Springs School District No. 23-2, 526 F.3d 1151, 1165 (8 th Cir. 2008)(internal quotations omitted)(citations omitted). When considering the causation and redressability prongs, standing is substantially more difficult to prove when the government s alleged unlawful regulation is of someone else. Lujan v. Defenders of Wildlife, 504 U.S. 555 at (1992). Read in its best light, the only mention of Secretary of State Gant involves payment to the County of funds to help the County provide early voting. At best, Plaintiffs political subdivision until the election has been certified. Any reasonable and necessary expenses incurred by the secretary of state to conduct the election shall be reimbursed by the county or political subdivision within ninety days after the election has been certified. 9

10 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 10 of 26 PageID #: 337 are not asserting that they are entitled to the funds but rather that the County is entitled to such funds. Their burden in proving standing, therefore, is substantially more difficult. Id. Plaintiffs have failed to show they suffered an injury in fact of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Lujan, 504 U.S. at 560 (citations and quotations omitted). There must also be a causal connection between the injury and conduct complained of which is fairly traceable to the challenged conduct of the Defendant. Id. Plaintiffs have not alleged facts to support the contention that they will in fact be denied the right to vote. (See argument under Injunction below). In addition, as described above and later in this brief with regard to Eleventh Amendment Immunity, Plaintiffs allege no action that is traceable to the Secretary of State. A failure to make this showing deprives Plaintiffs of the ability to sue Gant. See Brown v. Medtronic, 628 F.3d 451, 455 (8th Cir. 2010). This causality requirement of Lujan is entirely consistent with the long-standing rule that a plaintiff may not sue a state official who is without any power to enforce the complained-of statute. Okpalobi v. Foster, 244 F.3d 405, 426 (5 th Cir. 2001)(citations omitted). Because the actions complained of are not within the Secretary of State s authority, redressiblity is also lacking because Gant could not order or direct the remedy requested. Id. The State respectfully requests this Court dismiss all claims against Secretary of State Gant with prejudice. 10

11 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 11 of 26 PageID #: 338 c. Defendant Gant is entitled to Eleventh Amendment Immunity on all claims Claim One and Three of Plaintiffs Complaint alleges violations of federal law. See Complaint (Doc. 1). Suits against state officials in their official capacities are treated as suits against the state and are therefore barred by the Eleventh Amendment. In re SDDS. Inc., 97 F.3d 1030, 1035 (8th Cir. 1996). The Eleventh Amendment bars any suit in federal court against a state or state agency, regardless of the nature of the relief sought unless Congress has abrogated the State s immunity or a state has consented to suit or waived its immunity. Buckner v. Lawrence, 2011 WL at *3 (E.D. Ark. Nov. 15, 2011). Here, the State has not consented to suit nor has Congress abrogated the state s immunity. Ex parte Young, however, recognized an exception to this bar for suits against state officials in their official capacities for prospective injunctive relief to prevent future violations of federal law. Fond Du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253, 255 (8 th Cir. 1995)(referencing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). The exception found in Ex parte Young, is inapplicable, however, in two instances: (1) it cannot be used to compel an executive official to undertake a discretionary task; and (2) it cannot be used if the suit is, in reality, against the state. Seminole Tribe v. Florida, 11 F.3d 1016, 1028 (11 th Cir. 1994)(affirmed Seminole Tribe v. Florida, 116 S.Ct (1996)). The general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would 11

12 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 12 of 26 PageID #: 339 operate against the latter. Penhurst State School and Hosp. v. Halderman, 465 U.S. 89, (1984). In such cases, all relief is barred regardless of whether Plaintiff seeks injunctive or monetary relief. Id. Injunctive relief under Ex parte Young is allowed despite an Eleventh Amendment defense based on the theory that when an official acts unconstitutionally he or she is stripped of his official or representative character. Penhurst, 465 U.S. at 104 (citation omitted). In order for the fiction of Ex parte Young to apply, the Court must find a particular connection with the duty to enforce the statue in question coupled with a willingness to exercise that duty must be found. See Okpalobi, 244 F.3d at (5 th Cir. 2001)(providing an extensive discussion of Eleventh Amendment immunity and Article III standing). The general duty to see that the laws of the state are implemented will not suffice to meet this standard. Id. Rather, the connection must include the right and power to enforce the statutes of the state, including, of course, the act in question. Id. The inquiry into this connection should include: (1) the ability of the official to enforce the statute at issue under his statutory or constitutional powers, and (2) the demonstrated willingness of the official to enforce the statute. Id. In the case at bar, as described above, Gant is granted no authority to establish early voting polling places, engage in the distribution of absentee ballots or expend state funds for the payment of county election expenses. It is an elemental fact that a state official cannot be enjoined to act in any way that 12

13 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 13 of 26 PageID #: 340 is beyond his authority to act in the first place. Okpalobi, 244 F.3d at 427. Given that the statutes complained of are not within the authority of the Secretary of State, the fiction of Ex parte Young will not allow an injunction against Gant. As a result of the failed connection between Gant s authority and the actions complained of, Plaintiffs allegations that Defendant Gant failed to establish early voting places in Shannon County, provide absentee ballots to Shannon County residents and failed to pay for Shannon County s election expenses do not challenge the actions of Gant, rather they challenge State governmental policies. See Seminole Tribe, 11 F.3d at 1029 (challenge was really to duties of the state, not named official) 3. Plaintiffs challenge, therefore, is not against the actions or inactions of Gant but rather against the State of South Dakota itself for failing to establish a system that requires Gant to act in the manner proposed by Plaintiffs. Secretary of State Gant does not have the requisite connection with, nor has not acted in a manner to enforce the provisions of law that Plaintiffs claim result in violation of federal law. In this case, all relief, including injunctive relief against Gant, is barred by the Eleventh Amendment. Reproductive Health Services v. Nixon, 428 F.3d 1139, 1145 (8 th Cir. 2005). 3 The fact that HAVA, a federal program, is tangentially involved does not work to abrogate the State s immunity. See Eldeman v. Jordan, 415 U.S. 651, 673 (stating The mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts. ). 13

14 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 14 of 26 PageID #: 341 In addition to the above, Claim Two of Plaintiffs Complaint is likewise barred by the Eleventh Amendment. Claim Two appears to allege that the Defendants violated the South Dakota Constitution Articles VII, 1 and VI, (sic). Complaint (Doc. 1) at 110. To the extent Plaintiffs allege a state law claim, it is precluded by the State s Eleventh Amendment Immunity. The Eleventh Amendment bars federal court jurisdiction over state law claims against unconsenting states or state official when the state is the real, substantial party in interest, regardless of the remedy sought [t]his constitutional bar applies with equal force to pendent state law claims. Cooper v. St. Cloud State University, 226 F.3d 964, 968 (8th Cir. 2000)(citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984)). For claims alleging violations of state law, prospective injunctive relief allowed by Ex Parte Young is unavailable to Plaintiffs. Pennhurst, 465 U.S. at 106 (stating that it is difficult to think of a greater intrusion on state sovereignty that when a federal court instructs state officials on how to conform their conduct to state law. ); Entergy, Arkansas v. Nebraska, 210 F.3d 997, 897 (8 th Cir. 2000). With the assertion of Eleventh Amendment immunity the State law claims are barred in all respects. d. The Secretary of State did not act under color of state law and cannot be sued under 42 U.S.C Alternatively, and in conjunction with the above, the arguments and authorities cited above illustrate that Gant cannot be held liable under 42 U.S.C U.S.C states in pertinent part: 14

15 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 15 of 26 PageID #: 342 Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State..., subjects, or causes to be subjected, any citizen of the United States or other person within the Jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured In order to state a claim against Defendant Gant, Plaintiffs must show that the Secretary of State acted under the color of state law and that the Secretary s wrongful conduct deprived Plaintiffs of a constitutionally protected right. Zutz v. Nelson, 601 F.3d 842, 848 (8 th Cir. 2010)(citing Schmidt v. City of Bella Villa, 557 F.3d 564, 571 (8 th Cir. 2009)). Accordingly, a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law. Id. (citing West v. Atkins, 487 U.S. 42, (1988)). As described above, Secretary of State Gant has no authority to establish early voting polling places in Shannon County nor may he conduct absentee voting in Shannon County. As such, Gant did not act under the color of state law and therefore did not cause the alleged injury to Plaintiffs. As such, Gant may not be held liable for or enjoined under 42 U.S.C as requested in Plaintiffs Complaint. Accordingly, the State requests that Gant be dismissed from the 1983 claim pursuant to Fed.R.Civ.P 12(b)(1). e. Although Not Plead as a Cause of Action, Plaintiffs Cannot Require Gant to Fund County Elections As noted earlier, Plaintiffs sole factual allegation specific to Gant states: 103. Secretary of State Gant has not agreed to provide funding from HAVA or any other source to assist with early voting for the full 46 days authorized by South Dakota law in Shannon 15

16 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 16 of 26 PageID #: 343 County, and has only indicated a willingness to consider reimbursement requests for early voting in Shannon County. Ex. 20, Letter from Secretary of State Gant to Steven D. Sandven (December 30, 2011). Plaintiffs Complaint provides no authority, nor does it state a claim for relief, for the proposition that the Secretary of State is responsible for funding the election responsibilities of the several counties. While no cause of action is presented, the Relief section of the Complaint requests that the Court order Defendants to establish and fund with HAVA or other state funds at least one early voting location in Shannon County for the full 46-day time period authorized by South Dakota law Complaint at 4. Plaintiffs are not entitled to this relief as they have not sufficiently pleaded a claim upon which relief can be granted Fed.R.Civ.P 12(b)(6). An attempt by Plaintiffs to amend the Complaint to state a claim against Gant for failure to fund Shannon County s elections would be futile and should be rejected by the Court. See Thompson-El v. Jones, 876 F.2d 66, 67 (8 th Cir. 1989)(Court may deny leave to amend based on futility of amendment)(citing Forman v. Davis, 371 U.S. 178, S.Ct. 227, 230, 9 L.Ed.2d 222 (1962)). The issue was addressed in the South Dakota Supreme Court case Duxbury v. Harding, 490 N.W.2d 740 (S.D. 1992). In Duxbury, the Court analyzed an appropriation of state funds to reimburse counties for expenses 16

17 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 17 of 26 PageID #: 344 incurred in holding a presidential primary 4. In finding a general fund appropriation of such moneys in violation of the State Constitution, the Court held: A program intended to reimburse counties for presidential primary expenses, however, does not constitute an ordinary expense of any branch of government. Nor does a county expense become a state expense simply by requiring it to be paid to the counties by the secretary of state. Additionally, this expenditure does not fit within the definition of a current expense of a state institution because a county is not a state institution. As Duxbury makes clear, election expenses of a county are not expenses of the state even if those expenses are paid by or reimbursed through the Secretary of State s Office. Furthermore, and going even further than Duxbury, there is currently no state statutory authorization allowing the expenditure of state funds to support the election responsibilities of the counties. Plaintiffs have not and cannot allege a claim for relief under the Help America Vote Act ( HAVA ). HAVA does not itself create a private right of action. Sandusky County Democratic Party v. Blackwell, 387 F.3d. 565, 572 (6 th Cir. 2004). In order to create a private right of action that may be enforceable though a 1983 claim, a particular statute must, intend to create a federal right by using language that evinces an individual entitlement. See generally Gonzaga University v. Doe, 536 U.S. 273 (2002)(citations omitted). It appears that only one section of HAVA has been found to create a private right 4 The appropriation was to reimburse counties for election expenses under SDCL SDCL which allowed the state to reimburse counties for election expenses was repealed in See Session Law 1997, ch 75, 7. 17

18 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 18 of 26 PageID #: 345 of action. In Sandusky the Court found a private right of action under HAVA with respect to the right to cast a provisional ballot. The Court relied on portions of 302 of HAVA which spoke to the right of an individual to cast a provisional ballot. Sandusky, 387 F.3d at Section 2 of HAVA which discusses payments to the State contains no such individual entitlement language. See Generally 42 U.S.C Rather, before receiving funds, the State must file a State plan with the Election Assistance Commission outlining how the State intends to demonstrate that it is in compliance with the relevant provisions of HAVA including how the State will monitor the distribution payments to units of local government. 42 U.S.C Before it goes into effect, a State plan must be open to public comment for 30 days and published in the Federal Register. 42 U.S.C Once in effect, the State may not make any material changes in the administration of the Plan unless the Plan is: (A) is developed and published in the Federal Register in accordance with section of this title in the same manner as the State plan; (B) is subject to public notice and comment in accordance with section of this title in the same manner as the State plan; and (C) takes effect only after the expiration of the 30-day period which begins on the date the change is published in the Federal Register in accordance with subparagraph (A). 42 U.S.C (a)(11). South Dakota s latest plan was published in the Federal Register on July 12, Fed.Reg. Vol. 75, No. 132 (July 12, 18

19 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 19 of 26 PageID #: )(Exhibit 3). South Dakota s plan provides for reimbursement to the counties for HAVA authorized expenditures. See Id. at Unlike Sandusky where the court found individual entitlement language under HAVA 302, the funding provisions of HAVA fund in Section 2 contain no rights-creating language critical to showing the requisite congressional intent to create new rights and allowing a private cause of action. Gonzaga University, 536 U.S. at 287 (citing Alexander v. Sandoval, 532 U.S. 275, (2001)). Rather than creating a private cause of action, the relevant sections of Section 2 of HAVA speak to obligations between the State and the Election Assistance Commission. Furthermore, to the extent the State s actions are not material changes, the state is specifically given discretion in carrying out the plan. 42 U.S.C (c). 42 U.S.C additionally provides: No action may be brought under this Act against a State or other jurisdiction on the basis of any information contained in the State plan filed under this subpart. The leeway granted to the states and the Congressional grant of immunity under this part illustrate that Congresses did not to create a federal private right of action. County of Nassau v. New York, 724 F.Supp.2d 295, (D.N.Y. 2010); See also Forjone v. California, 425 Fed.Appx. 73, WL (C.A.2(N.Y.))(unpublished)(finding no private cause of action based on the manner of distribution to the State of HAVA funds). 19

20 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 20 of 26 PageID #: 347 For similar reasons, the United States Supreme Court vacated a temporary restraining order issued under HAVA directing the Ohio Secretary of State to update Ohio s voter registration database. Brunner v. Ohio Republican Party, 555 U.S. 5 (2008). In the brief opinion the Court wrote: We express no opinion on the question of whether HAVA is being properly implemented. Respondents, however, are not sufficiently likely to prevail on the question of whether Congress has authorized the District Court to enforce 303 in an action brought by a private litigant to justify the issuance of a TRO. Id. at 5 (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309(2002); Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1151, 149 L.E.2d 517 (2001)). Here, like in Brunner, the Plaintiffs would be unable to demonstrate a private right of action under HAVA and any claim made against Defendant Gant in this regard should be dismissed with prejudice. II. Preliminary and Permanent Injunction An injunction is an extraordinary remedy reserved for instances where the right to relief is clear. Crow Creek Sioux Tribal Farms, Inc. v. United States Internal Revenue Service, 684 F. Supp.2d 1152, 1156 (D. S.D. 2010)(citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 102, S.Ct. 1798, 72 L.Ed.2d 91 (1982)). Where an injunction seeks to enjoin a duly enacted statute, the Court must make a threshold finding that the moving party is likely to prevail on the merits. Planned Parenthood v. Rounds, 530 F.3d 724, (8 th Cir. 2008). This more rigorous standard helps to ensure that preliminary injunctions that 20

21 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 21 of 26 PageID #: 348 thwart a state s presumptively reasonable democratic processes are pronounced only after an appropriately differential analysis. Planned Parenthood, 530 F.3d at 733. If this threshold showing is made, the court may then proceed to examine the remaining Dataphase factors. Planned Parenthood, 530 F.3d at 732. The Dataphase factors are: (1) the threat of irreparable harm to the Plaintiffs; (2) the state of the balance of harm and the injury that granting the injunction will inflict on the Defendant; (3) the probability Plaintiffs will succeed on the merits; and (4) the public interest. See Dataphase Systems Inc. v. CL Systems Inc., 640 F.2d 109, 113 (8th Cir. 1981)(en banc). In Winter v. Natural Resources Defense Council, Inc., the United States Supreme Court clarified that plaintiffs seeking preliminary relief must demonstrate that irreparable injury is likely in the absence of an injunction. Winter, 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008)(italics in original). Initially, based on the above arguments and authorities the State submits that Plaintiffs fail to meet the threshold requirement that they are likely to prevail on the merits. Planned Parenthood v. Rounds, 530 F.3d 724, (8 th Cir. 2008). As such, the State would submit that an analysis of the remaining factors is not necessary. In the event the Court wishes to examine the Dataphase factors, the State submits the following. 1. Threat of Irreparable harm Plaintiffs have not conclusively demonstrated that Shannon County will not provide early voting for the same number of days as allowed in other 21

22 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 22 of 26 PageID #: 349 counties. Plaintiffs base their claim that early voting will only be allowed in Shannon County for 6 days on minutes of the Shannon County Commission and an article in the Rapid City Journal. See Complaint at 102. Because the time in which early voting has not yet begun, Shannon County could yet allow early voting for the number of days suggested by Plaintiffs. See SDCL (absentee voting begins April 20, 2012). Even if it is assumed that Shannon County will allow 6 days of early voting, Plaintiffs have not shown that they themselves will be unable to cast a vote for candidates of their choice and thus fail to allege irreparable harm. Plaintiffs provide general data regarding turnout numbers related to absentee voting in Shannon County. Whether or not Plaintiffs citations provide statistical support for their theory in general is irrelevant. For irreparable harm to be shown, the injury alleged must be actual and not theoretical. Injunctive relief will not be granted against something merely feared as liable to occur at some indefinite time. Wisconsin Gas Co. v. Federal Energy Regulatory Commission, 758 F.2d 669, 674 (D.C. 1985). Plaintiffs have failed to allege that they will not be able to vote on the days already suggested by the county, by mail in ballot, by driving to Fall River to vote or by voting on election day in Shannon County. Without such a showing, Plaintiffs cannot demonstrate that irreparable harm is likely to occur. Id. The bare allegations of what might occur will not suffice - the Court must decide whether the harm will in fact occur. Id. For the purposes of obtaining 22

23 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 23 of 26 PageID #: 350 an injunction, Plaintiffs simply fail to sufficiently allege that their individual rights to vote will in fact be denied or abridged by the Defendants actions. Furthermore, for the reasons described above, Plaintiffs will not be able to show the alleged harm would directly result from the actions of Defendant Gant. Id. 2. The state of the balance of harm and the injury that granting the injunction will inflict on the Defendant. As noted above, the State asserts that Plaintiffs have not shown irreparable harm, nor have they illustrated that the harm would be a direct result of Gant s actions. Any balance of harm, therefore, cannot weigh in favor of Plaintiffs and against Gant. An injunction against Gant, on the other hand, would impose significant harm on the State of South Dakota. If the injunction were granted as requested by Plaintiffs, the Court would, in essence, be declaring the statutory framework imposing election duties on the counties unconstitutional. Additionally, the Court would have to implicitly overrule the South Dakota Supreme Court s constitutional analysis holding that county election expenses are not expenses of the state or find that the South Dakota Constitutional provisions are unconstitutional under federal law. Such a broad rewrite of South Dakota statutes and jurisprudence should, by all accounts, be considered harmful to Secretary of State Gant and the State of South Dakota. 23

24 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 24 of 26 PageID #: The probability Plaintiffs will succeed on the merits. As described above, Gant does not believe that Plaintiffs will succeed on the merits. Rather than restate the above arguments and authorities, Gant reincorporates them under this section. 4. The public interest The final two Dataphase factors are intertwined with each other the public interest with the likelihood-of-success factor. As described above, Plaintiffs Complaint fails to allege a claim for relief against Gant, Plaintiffs lack Article III standing and Gant is entitled to Eleventh Amendment immunity. Nonetheless, Plaintiffs request for relief requests this Court ignore certain substantive state statutory and constitutional provisions in order to hold Gant responsible for establishing early voting locations, absentee voting and paying for county expenses with state funds. The South Dakota constitutional provisions coupled with the Legislature s enactment of the various provisions and the South Dakota Supreme Court s interpretation of the same, place the establishment of polling places, absentee voting and funding elections squarely with each county. As both the legislative and judicial branch of South Dakota s government have spoken to this issue, a strong public interest in maintaining the current constitutional and statutory framework exists. Public policy is primarily determined by the constitution, statutes, common law, and judicial decisions of a state. Twin City Pipe Line Co. v. Harding Glass Co., 283 U.S. 353, 357 (1931). 24

25 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 25 of 26 PageID #: 352 Here, both the likelihood of success of the merits and the public interest weigh in favor of declining to issue an injunction against Secretary of State Gant. It is also worth noting that there is no indication that the public interest in Plaintiffs voting in this upcoming election or any other election will be denied or abridged by the actions of Gant. Conclusion Based on the above arguments and authorities, Gant respectfully request that the Court dismiss, with prejudice, all claims raised in Plaintiffs Complaint (Doc. 1). In the event that the claims are not dismissed, Defendant Gant requests the Court find insufficient grounds to issue a preliminary or permanent injunction against him. Dated this 14 th day of February, MARTY J. JACKLEY ATTORNEY GENERAL /s/ Richard M. Williams Richard M. Williams 1302 E. Hwy 14, Suite 1 Pierre, SD Rich.Williams@state.sd.us 25

26 Case 5:12-cv KES Document 44 Filed 02/14/12 Page 26 of 26 PageID #: 353 CERTIFICATE OF SERVICE The undersigned hereby certifies on February 14, 2012, a copy of the DEFENDANT GANT S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS AND OPPOSING ENTRY OF TEMPORARY OR PERMANENT INJUNCTION was served through CM/ECF system upon the following: STEVEN D. SANDVEN SARA FRANKENSTEIN Sandven Law Office PO Box North Dakota Avenue Rapid City, SD Sioux Falls, SD sfrankenstein@gpnalaw.com ssadvenlaw@aol.com /s/ Richard M. Williams Richard M. Williams 1302 E. Hwy 14, Suite 1 Pierre, SD Rich.Williams@state.sd.us 26