UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

Transcription

1 DRAFT -- WORK PRODUCT/ATTORNEY CLIENT PRIVILEGED UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS BOB BARR, WAYNE A. ROOT, LIBERTARIAN PARTY OF MASSACHUSETTS, and LIBERTARIAN NATIONAL COMMITTEE, INC., Case No.: 1:08-cv NMG Plaintiffs, v. WILLIAM F. GALVIN, in his official capacity as Secretary of the Commonwealth of Massachusetts, Defendant. Reply Memorandum in Support of Plaintiffs Motion for Preliminary Injunction The Secretary s Opposition ( Opposition or Opp. ) to Plaintiffs Motion for Preliminary Injunction (Plaintiffs Motion ) does not overcome the clear constitutional infirmities raised by Plaintiffs Motion. Rather than confront those constitutional deficiencies, the Secretary s Opposition instead erects a straw man and argues at length that the 10,000 signature requirement for minor party presidential candidates is constitutional. (Opp. at ) But Plaintiffs do not challenge the 10,000 signature requirement for minor parties. On the contrary, and as the Secretary acknowledges, the Libertarians met the 10,000 signature requirement and will have a candidate on the ballot. (Opp. at 7.) The question raised by Plaintiffs Motion is whether the Secretary s refusal to put the correct Libertarian candidates on the ballot withstands constitutional scrutiny. It does not because the Massachusetts substitution statute, Massachusetts General Law chapter 53, section 14, is unconstitutionally vague and because the Secretary s decision in this case to forbid substitution prevents the correct candidates from appearing on the ballot without any corresponding state interest.

2 I. Plaintiffs Vagueness Challenge Remains Intact and Unanswered While the Secretary devotes a great portion of his Opposition to arguing that the 10,000 signature requirement is constitutional (Opp. at 10-16), he only addresses the Massachusetts substitution statute, Massachusetts General Law chapter 53, section 14, in the closing paragraphs of his twenty-page brief and argues little more than that the statute does not apply. 1 In an effort to sidestep the vagueness challenge, the Secretary first suggests that the statute is not vague because it is evident that section 14 has no application here. (Opp. at 18.) Yet, the Secretary cites no textual basis for excluding presidential and vice presidential candidates from the reach of the statute, and even interprets the exact same language found in section 14 to include presidential and vice presidential candidates in other sections of chapter Additionally, if section 14 does not apply to presidential and vice presidential candidates, then there is a statutory mechanism for substitution for all positions except President and Vice President, a result surely without basis. The Secretary also asserts that the provisions of chapter 53, section 14, allowing withdrawal and replacement are not intended to provide a mechanism by which a candidate can plan in advance to substitute. (Opp. at 19.) If this were the case, it is only through guesswork that one would so conclude the statute includes no such restriction and is otherwise silent on the matter. Duke v. Connell, 790 F. Supp. 50, 54 (D.R.I. 1992) (stating that a ballot access statute is unconstitutionally vague if a reasonable person must necessarily guess at its meaning and where the applicable coverage of the statute may be unclear ) (citing Hynes v. Mayor of Oradell, The Secretary furthermore never addresses the leading case on point, Anderson v. Firestone, 499 F. Supp (N.D. Fl. 1980), instead citing a litany of cases that have validated ballot access requirements not at issue here. 2 The Secretary does not refute Plaintiffs argument that state officer is specifically defined as including any candidate chosen at a state election and that a state election specifically includes elections at which candidates for the national offices of President and Vice President are selected. Mass. Gen. Laws ch. 50, 1. In fact, the Secretary cites Massachusetts General Laws chapter 53, section 7 as dictating the procedures for presidential candidates to submit nominating papers, (Opp. at 4.), conveniently ignoring the fact that section 7 makes no reference to presidential candidates, instead referencing [e]very nomination paper of a candidate for a state office. (Emphasis added.) 2

3 U.S. 610, (1976)). Compounding the uncertainty is the fact that the Secretary originally took the position, when asked a year ago, that the Libertarian candidates could in fact plan in advance to substitute. (See Ex. 1 to Pls. Mem. (K. Green of Oct. 26, 2007).) Next, the Secretary suggests that the substitution provisions of chapter 53, section 14 would not aid Plaintiffs in any event because Plaintiffs would still be required to secure 10,000 signatures for the substitution candidates. (Opp. at 19.) Again, the text does not support this reading and in fact allows for substitution well after signatures for candidates are due indeed, that is the very purpose of the statute. Compounding the vagueness of the statute is the fact that, while simultaneously arguing that the statute would require Plaintiffs to re-collect signatures if they wanted to substitute candidates, the Secretary has allowed substitution when the deadline for submission of signatures had past. (See, e.g., Opp. at 7 n.3.) It is precisely the uncertainty that this statute imposes, and the Secretary s wavering interpretation of it, that cause it to be unconstitutionally vague and allow the Secretary an assumed unreviewable discretion. Duke, 790 F. Supp. at 54 ( The fact that an unduly vague law deprives a court of the ability to review potentially arbitrary or discriminatory decisions of public officials, is one of the principal reasons for the void-for-vagueness doctrine. ). On the last page of its brief, Defendant asserts that to the extent plaintiffs vagueness claim turns on the proper interpretation of section 14, the Court should decline to reach it because the matter would be one of pure state law beyond this Court s reach. (Opp. at 20 (citing Socialist Workers Party v. Davoren, 378 F. Supp (D. Mass. 1974)).) However, in Davoren there was no uncertainty concerning what the relevant state officials require[d]. (Opp. at 20.) Here, Plaintiffs challenge the unconstitutional vagueness of the Massachusetts regime and the unchecked discretion of the Secretary that results therefrom. The Secretary admittedly has no policy regarding substitution under the vague statute and allows substitution in his sole discretion. This 3

4 leaves candidates, parties, and voters with no certainty as to the standard (because there is none) and leaves minor parties, like the Libertarians here, with no explanation for the ever-changing position of the Elections Division. In this case, the fact that the Elections Division assured Plaintiffs that substitution would be allowed and then reneged only highlights Plaintiffs assertion that the Secretary here acts with impermissible unfettered discretion. The Secretary s actions implicate the federal constitutional rights of Plaintiffs and of citizens of this Commonwealth to freely associate and vote for candidates for the offices of President and Vice President of the United States of America. As such, they are ripe for review by this Court. 3 II. The Secretary s Regime Remains Unconstitutional Refusing to acknowledge that the Massachusetts statute provides any guidance, the Secretary s position is that he in effect has authority to put the Libertarians to one of two choices: (1) schedule their convention for a date after the deadline for collection of signatures, at which point substitution would be allowed, or (2) re-collect signatures after the late-may convention and after 7,000 had already been collected in reliance on the Election Division s advice. Not only is this sort of unfettered discretion unconstitutional as discussed above, but putting the Libertarians to this choice is, in and of itself, unconstitutional. A. Strict Scrutiny Applies First, however, is the issue of what standard applies. While the Secretary asserts that his actions should be judged by a standard less searching than strict scrutiny (Opp. at 12-13), there is no basis for such leniency. In fact, two Supreme Court cases cited by the Secretary apply strict 3 See, e.g., Hagans v. Lavine, 415 U.S. 528 (1974) (finding that federal court was correct to reach a decision where implicating constitutional rights); Martin v. Hunter s Lessee, 14 U.S. 304, 344 (1816) ( The courts of the United States can, without question, revise the proceedings of the executive and legislative authorities of the states, and if they are found to be contrary to the constitution, may declare them to be of no legal validity. ); Duke, 790 F. Supp. at

5 scrutiny when evaluating signature requirement regimes. 4 Courts are universal in acknowledging that [t]he right to vote is heavily burdened if that vote may be cast only for major-party candidates at a time when other parties or other candidates are clamoring for a place on the ballot. Anderson v. Celebrezze, 460 U.S. 780, (1983) (applying strict scrutiny); see also Green Party of Connecticut v. Garfield, 537 F. Supp. 2d 359, 379 (D. Conn. 2008) ( Because the [campaign finance law] is alleged to burden a fundamental constitutional right, specifically, minorparty political opportunity, I will apply strict scrutiny to the law ). Plaintiffs have put forth uncontested affidavit evidence that they could not afford to start over and re-collect signatures after June 5, (Affidavit of George Phillies 23.) This is precisely the kind of economic burden to which the First Circuit applied strict scrutiny in Perez- Guzman v. Gracia, 346 F.3d 229 (1st Cir. 2003). The Secretary s attempt to distinguish Perez- Guzman as involving notary requirements not present here fails; it was the financial burden of the notary requirement that was found to severely burden plaintiffs in Perez-Guzman, just as the Secretary s position here would severely burden Plaintiffs. 5 B. The Secretary Has Failed To Articulate Any Compelling State Interest While the Secretary asserts in the alternative that his actions pass constitutional muster under strict scrutiny (Opp. at 14), they clearly do not. The Secretary simply does not defend this assertion other than to assert repeatedly that the state has an interest in requiring 10,000 signatures 4 See American Party of Texas v. White, 415. U.S. 767 (1974) ( We agree with the District Court that whether the qualifications for ballot position are viewed as substantial burdens on the right to associate or as discriminations against the parties... their validity depends on whether they are necessary to further compelling state interests. ) (citation omitted) (emphasis added); Storer v. Brown, 415 U.S. 724 (1974) ( If the required signatures approach 10% of the eligible pool of voters, is it necessary to serve the State s compelling interest in a manageable ballot to require that the task of signature gathering be crowded into 24 days? ) (emphasis added). These two cases were handed down on the same day. 5 Equally unconvincing is the Secretary s reliance on Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1996) as an example of a case requiring less searching review. In Timmons the issue was whether the New Party would be allowed to have a candidate who was already going to appear on the general election ballot as another party s candidate also appear as the New Party candidate. While a prohibition on allow parties to have a candidate appear on the ballot twice may not severely burden constitutional rights, a prohibition on appearing on the ballot at all does severely burden such rights. 5

6 as a prerequisite for a minor party to get its candidate on the ballot. (Opp. at ) Again, Plaintiffs have satisfied this requirement. The Secretary advances no interest, compelling or otherwise, to justify his refusal to allow substitution. Any assertion that the Secretary is seeking to uphold some fundamental state interest in preventing voter confusion, which the Secretary does not claim here other than by fleeting reference (Opp. at 1), would be unpersuasive given that the Secretary would admittedly allow substitution in other cases, such as where the minor party schedules its convention after the signature submission deadline. If voter confusion were an issue, it would be no less present when the convention is held late. Similarly, voter confusion would result equally from allowing substitution with respect to Vice-Presidential candidates, which the Secretary apparently would allow. (Opp. at 17.) Further, to the extent the Secretary is concerned with voter confusion, he maximizes confusion by barring substitution and thereby ensuring that the wrong Libertarian candidates will appear on the ballot. Substitution should be allowed here to prevent such problems. Barr and Root are the Libertarian Party s national candidates, on the ballot in almost every state and running a national campaign. Printing the wrong names on the ballot can only lead to voter confusion and frustration. As to the democratic process and frivolous candidacies issue, the Secretary himself notes, Barr... has performed better in national polls than any Libertarian Party presidential candidate in history.... In Massachusetts, polls have showed Barr winning as much as 5 percent of the vote. 6 (Ex. B to Aff. in Supp. of Opp.) If crowded ballots are the issue, the ballot will be no more crowded if Barr and Root are substituted for Phillies and Bennett. The Secretary has enunciated no clear public interest to be served by his actions here. 7 6 The fact that Phillies and Barr may have differing political views is irrelevant. (See, e.g., Massachusetts Democratic primary selection of Hillary Clinton and the placement of Barack Obama on the general election ballot.) It is simply the nature of political parties that members have different views and it is not the place of the courts to involve themselves in such political questions. 7 The First Circuit has admonished that it will not invoke justifications out of whole cloth on the State s behalf. Cool Moose Party v. Rhode Island, 183 F.3d 80, 88 (1st Cir. 1999) (rejecting requirement that only party members 6

7 C. The Secretary Cannot Argue a Public Interest in Preventing Substitution Here when Substitution Has Been Permitted in the Past Further highlighting the merits of Plaintiffs equal protection claim that the severe, discriminatory burden here outweighs any purported benefit is the fact that the Secretary has openly allowed substitution in similar cases in at least the last three elections. The Secretary allowed candidate substitution for the Reform Party in The Secretary states that this was because the Reform Party held its convention in August, after the deadline for submitting nominating papers. 8 (Opp. at 17.) One struggles to understand the logic behind the Secretary s attempt to distinguish the 2000 Reform Party case from the instant case. By the Secretary s logic, a show of public support, via signatures, for the Reform Party candidate was no longer necessary because the date for submitting those signatures had passed. In effect, the Secretary simply invites all minor parties to hold their conventions after the date for submitting nominating papers, when substitution is apparently permissible. The Secretary also attempts to distinguish its position regarding the U.S. Taxpayers Party in 1996 from the instant case to no avail. (Opp. at 17 n.10.) That the U.S. Taxpayers Party did not obtain the required signatures to qualify for ballot access takes nothing away from the fact that, had the party qualified for ballot access, the Secretary would have allowed substitution. In fact, the Elections Division went out of its way to note that this office has permitted substitution before, and will continue to permit substitution for precisely the reasons Plaintiffs seek substitution -- to avoid an interpretation of the election laws which burdens the constitutional rights of independent and minor party candidates for President to obtain ballot access. (Ex. 5 to Pl. s Motion.) be permitted to participate in party primaries). 8 Notably, the Secretary only now says that the late timing of the convention was the reason for allowing substitution for the Reform Party in In 2004, responding to questions raised by Ralph Nader s independent campaign, the Secretary said substitution was allowed in 2000 because the Reform Party was a national party that conducted a national convention at which delegates conducted a nominating process, exactly like the Libertarian Party. (Ex. B to Aff. of Michelle K. Tassinari.) The constantly evolving reasoning behind the Secretary s substitution decisions illustrates the arbitrary and unconstitutionally unpredictable nature of the current scheme. 7

8 The Secretary s argument that Plaintiffs suggest incorrectly that the Secretary expressed his approval of substitution in 2004 regarding Ralph Nader s campaign reflects the unrestricted discretion the Secretary wields in making these decisions. (Opp. at 17 n.10.) There is nothing incorrect[] or, indeed, suggest[ive] about the Secretary s statement that his office would find some way, if Nader were to be certified, to substitute Camejo s name. The substitution is not their problem. It s whether Nader will be on the ballot. The Secretary adds that in any event, the Secretary subsequently notified the Nader campaign that substitution of Camejo s name would not be allowed. Id. Far from supporting the Secretary s position, this precisely indicates what is wrong and, indeed, unconstitutional about the current substitution scheme. The Secretary and the Elections Division not only set their own substitution standard, but act as its sole enforcer, extending and retracting the possibility of substitution at will to the detriment of minor parties and voters. III. Estoppel is Appropriate Against the Secretary The Secretary concedes that estoppel is available against the government but asserts it is available only in extreme circumstances. (Opp. at 21.) The Secretary, however, fails to explain why violations of the rights to vote, free speech and association do not qualify. The Secretary further states that estoppel only lies against the government when government agents have been guilty of affirmative misconduct. Id. However, as one district court recently explained: The standard for affirmative misconduct appears to be only moderately demanding. In an effort to define what constitutes affirmative misconduct, the First Circuit in Akbarin v. Immigration and Naturalization Serv. set forth a two-part test: (1) was the government s action error, and (2) did the government s misconduct induce the petitioner to act in a way he or she would not otherwise have acted. Griffin v. Reich, 956 F. Supp. 98, (D. R.I. 1997) (citing Akarbin, 669 F.2d 839, 843 (1st Cir. 1982) and United States v. Ortiz-Perez, 858 F. Supp. 11, (D. R.I. 1994)). Here, the 8

9 governmental error was that the Elections Division informed Plaintiffs in writing that substitution would be allowed when it fact it would not be, inducing Plaintiffs to expend tremendous resources in vain collecting signatures with Phillies listed as the candidate. Furthermore, Plaintiffs do not allege mere negligence. (Opp. at 21.) An attorney at the Elections Division was asked for advice, on which she knew plaintiffs intended to rely. She specifically noted she would research the issue and respond. ( from K. Green to G. Phillies, September 21, 2007, attached hereto as Exhibit A.) She then deliberated on the question for over a month and responded with a clear answer supported by precedent. These are not circumstances suggesting negligent behavior, particularly in light of the Commonwealth s documented history of allowing substitution in similar cases. Lastly, by the time the Secretary reversed position, it was too late as the Libertarians had already collected 7,000 signatures and uncontradicted affidavit testimony establishes that the Libertarians lacked the financial resources to start over, notwithstanding the Secretary s spurious suggestion that they could have proceeded with volunteers. (Opp. at 18 n.11.) granted. CONCLUSION For the reasons stated above, Plaintiffs Motion for Preliminary Injunction should be Respectfully submitted, BOB BARR, WAYNE A. ROOT, THE LIBERTARIAN PARTY OF MASSACHUSETTS, and THE LIBERTARIAN NATIONAL COMMITTEE, INC., 9

10 By their attorneys, /s/ Matthew C. Baltay Matthew C. Baltay, Esq., BBO # Jennifer Behr, Esq., BBO # Amrish V. Wadhera, Esq., BBO # FOLEY HOAG LLP 155 Seaport Blvd. Boston, MA (617) John Reinstein, Esq., BBO # American Civil Liberties Union of Massachusetts 99 Chauncy Street, Suite 310 Boston MA, Dated: September 9, 2008 (617) Certificate of Service I hereby certify that a copy of the foregoing, filed through the CM/ECF system, will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies shall be served by first class mail postage prepaid on all counsel who are not served through the CM/ECF system on September 9, /s/ Matthew C. Baltay Matthew C. Baltay 10