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Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 1 of 21 STEVEN A. GELLER, et al., v. Plaintiffs UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-cv-60774-Marra-Johnson DEMOCRATIC NATIONAL COMMITTEE Defendant. / MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT THEREOF The Defendant, the Democratic National Committee ( DNC ), by and through its undersigned attorneys and, pursuant to Rules 12(b)(6) and 56(b) of the Federal Rules of Civil Procedure, respectfully moves the Court for an order granting summary judgment in its favor on the grounds that there is no genuine issue as to any material fact and that the DNC is entitled to judgment as a matter of law. Pursuant to Local Rule 7.5, in support of this Motion, the DNC is submitting a supporting Declaration of Philip McNamara, Director of the DNC s Office of Party Affairs and Delegate Selection and a Statement of Material Facts As To Which the DNC Contends There Is No Genuine Issue To Be Tried. This is the third case brought in Florida s federal courts challenging the decision of the DNC to enforce its rules for the selection of delegates to its 2008 National Convention. Specifically, it is the third such case to challenge the DNC's constitutional right to enforce its rule governing the sequencing and scheduling of Democratic presidential primaries and caucuses (the DNC Timing Rule ) by refusing to seat the delegates selected by the Florida Democratic

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 2 of 21 Party ( FDP ) through a process which violated the Timing Rule. In the two prior cases, the courts granted summary judgment for the DNC, based largely on the DNC s constitutionallyprotected right to establish and enforce such rules. Nelson v. Dean, 528 F. Supp.2d 1271 (N.D. Fla. 2007); DiMaio v. DNC, Case No. 8:08 cv 672-T-26-MAP (M.D. Fla., May 28, 2008) (order granting Motion for Summary Judgment), appeal docketed, No. 08-13241-D (11 th Cir. June 9, 2008). 1 In Nelson v Dean, plaintiffs asserted, and the court rejected, precisely the same two claims as those made by Senator Geller and his co-plaintiff in this case: that the DNC s actions violated voter s rights under the Equal Protection Clause and deprived plaintiffs of procedural due process. In addition, since the Complaint in this case was filed, the DNC s Rules and Bylaws Committee ( DNC RBC ) voted unanimously to seat all of the delegates from Florida. However, consistent with the DNC s Rules which provide for an automatic 50% reduction of the delegate votes of any state party violating the Timing Rule, the RBC s action allows each Florida delegate to cast only one-half vote. That solution was accepted by both the campaigns of Senator Barack Obama (D-Ill.) and Senator Hillary Rodham Clinton (D-NY) and by the Florida DNC member who asked the DNC RBC to reconsider its earlier sanctions. The claims asserted here by plaintiffs are therefore moot, except to the extent plaintiffs may still be seeking to compel the DNC to allow all of the Florida delegates to cast full votes at the Convention. 1 Mr. DiMaio first filed suit against the DNC and the Florida Democratic Party in August 2007. DiMaio v. DNC, Case No. 8:07 cv 01552-RAL-MAP (M.D. Fla., filed August 30, 2007). The case was dismissed with prejudice. DiMaio v. DNC, Case No. 8:07 cv 01552-RAL-MAP (M.D. Fla., October 5, 2007) (order granting Defendants Motions to Dismiss). Mr. DiMaio appealed and the Court of Appeals affirmed the dismissal for lack of standing, but vacated the district court s decision as to the merits and construed dismissal to be without prejudice. DiMaio v DNC, 520 F.3d 1299,1303 (11 th Cir. 2008). 2

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 3 of 21 If plaintiffs are still challenging even that limited sanction on the grounds that it violates plaintiffs constitutional rights, then, based on the undisputed facts, the DNC is entitled to judgment as a matter of law. First, the DNC s sanctions do not represent state action. But even if the DNC were regarded as a state actor, it is well-established that the national political parties have a constitutionally-protected right to determine the method of selection of delegates to their national nominating conventions. The DNC s determination of the sequence and timing of presidential preference primaries and caucuses is a core exercise of that right. The selection of certain states to hold their nominating events before other states does not violate the Equal Protection Clause as long as it rationally advances the party s political goals, which the Timing Rule does. And if the DNC has the right to establish such rules, it must have the right to enforce them through refusal to seat delegates chosen in violations of those rules. Second, the DNC has not caused any deprivation of procedural due process. The DNC RBC decision of which plaintiffs complain has been revoked. The sanction left in place (seating of the Florida delegation with one-half votes) is one imposed automatically under the rules and is not the subject of any deliberative process by the DNC or any of its committees. STATEMENT OF FACTS The Democratic National Committee is the governing body of the Democratic Party of the United States. It is composed of representatives from each of the state Democratic Parties, including Florida, and of various Democratic organizations. (Declaration of Philip McNamara ( McNamara Dec. ) 3). The nominee of the Democratic Party for President of the United States is chosen by the delegates to the Democratic National Convention held in each presidential election year. The National Convention is organized and run by an arm of the DNC. 3

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 4 of 21 The delegates from each state are chosen through a process adopted by the state s Democratic Party. Id. 4-5. Beginning in 1968, each state party s process has been required to comply with principles or rules established by the Democratic National Committee; and for each presidential election starting in 1976, the DNC has established formal Delegate Selection Rules to govern the selection, in each state, of its delegates to the National Convention. Id. 7. These rules require each State Democratic Party to develop a written delegate selection plan and to submit that plan to the DNC s Rules and Bylaws Committee ( DNC RBC ) for review and approval. Id. 9. The delegate selection process in each state involves two basic functions: (i) the allocation of delegate position among presidential candidates, i.e., how many delegates from that state will go to the Convention pledged to each candidate; and (ii) the selection of the actual individuals to fill those position, i.e., the selection of the people who will attend the Convention as delegates and alternates. Id. 10. Generally state parties use either a primary or a caucus/convention system. In a primary system, the state party uses the state-government run or a party-run primary election to allocate delegate positions, and then a party-run meeting (caucus) to fill those positions. Id. 11. In a caucus system, the state party uses a series of party-run meetings caucuses both to allocate delegate positions and to select the persons to fill those positions. A caucus/convention system does not involve use of the state s electoral machinery. Of the 56 states and territories that are sending delegates to the 2008 Democratic National Convention, 20 used a party-run caucus/convention system. Id. 12-13 & Exhibit B. The DNC s Delegate Selection Rules (attached to the McNamara Declaration as Exhibit A) govern all aspects of these processes and reflect the values and ideals of the Party in a variety of ways for example, requiring transparency and openness in the process, ensuring 4

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 5 of 21 participation by all voters who are registered as or identify themselves as Democrats, prohibiting discrimination and requiring affirmative action programs to achieve diversity in the delegations. McNamara Dec. 14. One aspect of the rules that also reflects these values and ideals are the provisions governing the timing of primaries and first-tier caucuses the state party s event at which voters express their preference for President. Id. 15. For the last 39 years, a series of DNC commissions and bodies has wrestled with the complex question of when states should first be able to hold these events and which states, if any, should be allowed to hold events before all other states, and the results of these deliberations have been reflected in the rules for each cycle governing the sequence and timing of primaries and caucuses. Id. These deliberations have involved delicate balancing of the value of showcasing smaller less populous states where more personal retail campaigning is still possible against the competing value of giving a role to larger, more racially, ethnically and economically diverse states. And in setting the timing of caucuses and primaries, the Party has also had to balance the value of giving Democratic voters a longer time period to scrutinize the candidates, by stretching out the process, against the competing value of uniting the Party and rallying around a nominee earlier in the process and thereby conserving resources for the general election. Id. 16. For the last several cycles, the DNC Rules set the earliest date on which a binding primary or first-tier caucus could be held, with exceptions allowing Iowa to hold its caucuses and New Hampshire to hold its primary before that date. Id. 17. Until the 2004 election, that date was the first Tuesday in March. Then, in 2000, the Republican Party for the first time issued rules setting the earliest date for Republican primaries and caucuses as the first Tuesday in 5

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 6 of 21 February. The DNC then matched the Republican rule and set its earliest date for that same day, but with the usual exceptions for Iowa and New Hampshire. Id. 18-19. In December 2005, after a nearly year-long process involving numerous hearings and meetings, a DNC commission (the Price-Herman Commission ) found that the traditional role of Iowa and New Hampshire should be balanced against the need to place candidates before a range of voters more reflective of the Party s geographic, racial and economic diversity. Id. 21-22. The Commission recommended adding 1-2 additional caucuses between the Iowa caucuses and the New Hampshire primary, and 1-2 additional primaries after the New Hampshire contest but before February 5, 2008, the first date on which all other states could start to hold their events. Id. 24. During 2006, the DNC RBC invited state Democratic Parties to apply to be one of the states allowed to hold their nominating contests before February 5. Eleven state parties did so. Florida was not among them. Id. 26-28. After another extensive round of presentations and meetings, the DNC RBC recommended a set of rules providing that the Iowa caucuses would take place no earlier than January 14, 2008; that one caucus would be held between the Iowa caucus and the New Hampshire primary, and that this caucus would be held in Nevada, a state with a significant and growing Latino population, a sizeable Asian American and Pacific Islander community, a strong organized labor presence, and in the western region of the country where the Democratic Party was making electoral gains. The RBC further recommended that one primary be held between the New Hampshire primary and the opening of the window on February 5, and that this primary be held in South Carolina, a southern state in which African- Americans represent a significant share of the Democratic electorate. Id. 29. All other state parties would be required to hold their primaries or first caucuses on or after February 5, 2008. 6

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 7 of 21 In August 2006, the full DNC adopted this rule the Timing Rule as Rule 11A of the Delegate Selection Rules for the 2008 Democratic National Convention by a near-unanimous vote, with Florida s DNC members voicing no objection. McNamara Dec. 30; Delegate Selection Rules attached to McNamara Dec. at Exhibit A. To ensure that the DNC can effectively enforce the Delegate Selection Rules, the rules provide for the imposition of sanctions on state parties violating certain fundamental strictures, including the Timing Rule. The Rules provide that any state party violating that rule automatically loses 50% of its pledged delegate positions and that the DNC members, Democratic Members of the state s congressional delegation and others normally entitled to attend the Convention as unpledged voting delegates will not be permitted to so attend. Id. 31-32; Exhibit A, Rule 20(C)(1)-(3). In addition, the Rules confer on the RBC the authority to impose additional sanctions, including further reductions in the state party s delegation to the Convention. Id. 32; Exhibit A, Rules 20(C)(5) & (6). With the DNC s rules and sanctions a matter of public knowledge, the Florida Legislature proceeded to enact a law, HB 537, changing the state s presidential preference primary from the second Tuesday in March (which would fully comply with the DNC s Rules) to the last Tuesday in January. The bill was signed into law in May 2007, amending section 103.101, Florida Statutes. Id. 40. Even in a state in which the state runs a presidential preference primary, the state s Democratic Party is free to disregard the results of that primary and use a party-run process instead and to allocate delegate positions among presidential candidates accordingly, thereby avoiding any sanctions. Id. 36. Democratic state parties did exactly that in Vermont in 1984; in 7

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 8 of 21 South Dakota in 1988; and in Arizona, Delaware and Washington State in 2000. Id. 36-38. That same option was available to the FDP. Discussions and meetings between the DNC and FDP continued in June, July and August of 2007, during which period the DNC developed a plan for a party-run congressional district caucus system that would comply with DNC rules and afford an opportunity for all Florida Democrats to vote for President. The DNC even offered to cover the entire cost of implementing that system. Id. 43. The FDP rejected this offer. Id. 44. Then, at a meeting on August 25, 2007, the DNC RBC considered Florida s plan to use the January 29 primary in violation of the DNC rules. At that meeting, representatives of the FDP were afforded an extensive opportunity be heard. Id. 47. The RBC discussed the issue at length, carefully weighing the impact of sanctions against the need for the DNC to be able to enforce its rules on timing to vindicate the goals and values underlying those rules, lest the nominating process descend into chaos, with each state free to leapfrog other states in a neverending cycle. Id.. After that discussion, by a voice vote with only one dissenting vote, the DNC RBC found the Florida 2008 Delegate Selection Plan in non-compliance with the timing rule, thereby triggering the automatic reduction of the State Party s delegation by 50% and the disentitlement of the state s DNC members and Democratic Members of Congress to attend the Convention as delegates. As part of the same motion, the DNC RBC voted to further reduce the state s total number of pledged and unpledged delegates to zero, as authorized by the Delegate Selection Rules. Id. 49. Discussions between the DNC and the FDP about holding an alternative process complying with the DNC rules took place at various times during the period from October 2007 8

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 9 of 21 through and including April 2008. These discussions included, among other things, consideration of a new state-run primary taking place in spring of 2008 funded by the State; a new state-run primary taking place in the spring of 2008 funded by private contributions raised by the FDP; and a party-run vote-by-mail process, taking place in the spring of 2008. Id. 55. The FDP ultimately decided, however, that there was not a consensus among its elected officials and Party leaders for pursuing any such alternative process, and so the FDP ultimately did not submit any new plan to the DNC RBC for formal consideration. Id. 57. The DNC s rules provide for resolution, within the Party organization, of disputes relating to the selection of delegates to the Democratic National Convention. Under the Call to the 2008 Democratic National Convention, the DNC RBC has jurisdiction, under the Party s rules, to determine and resolve challenges brought prior to June 29, 2008 concerning the seating of delegates to the Convention. McNamara Dec. 62; challenges brought after, or unresolved as of that date, are taken up by the Convention s Credentials Committee. Id. 63. Two such challenges were received by the RBC relating to the seating of delegates from Florida. The first sought the reinstatement of all of the unpledged delegates from Florida, and the second reinstatement of one-half of the pledged delegates from Florida, as if the automatic sanctions of Rule 20(C)(1), (2) & (3) of the DNC Delegate Selection Rules had been applied to the FDP without the imposition of any further sanctions by the RBC. Id. 65. On May 31, 2008, the DNC RBC met in Washington, D.C., and heard extensive testimony in support of these challenges. The DNC RBC then voted unanimously to seat all of Florida s pledged delegates; to allow the automatic 50% sanction of Rule 20(C)(1) to stay in effect by allowing the pledged delegates to cast one-half vote; and, in recognition of the ambiguity of the DNC Charter in respect of the status of various categories of unpledged 9

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 10 of 21 delegates, to seat the unpledged delegates as well (even though the automatic sanction would preclude any of them from voting at the Convention) and to allow those delegates, too, to cast one-half vote. Id. 66. ARGUMENT I. The DNC s Actions Do Not Violate the Fourteenth Amendment A. The DNC s Sanctions Do Not Constitute State Action To establish a claim under 42 U.S.C. 1983 for deprivation of rights under the Fourteenth Amendment, plaintiffs must show that the alleged deprivation was committed under color of state law.... Section 1983 s state action requirement applies regardless of the nature of the substantive deprivation being alleged. Focus on the Family v. Pinellas Suncoast Transit Authy., 344 F.3d 1263, 1277 (11 th Cir. 2003). Three tests are used to determine whether state action exists: the public function test; (2) the state compulsion test; and (3) the nexus/joint action test. Willis v. Univ. Health Serv., Inc., 993 F.2d 837, 840 (11 th Cir.), cert. denied, 510 U.S. 976 (1993). Here, plaintiffs allege that the DNC is performing a public function in nominating and selecting political candidates because, among other things, the state grants ballot access to the presidential nominee selected by the Convention (Complaint ( Cmplt. ) 22); and that the state-run primary is part of the electoral process and thereby involves the DNC in the electoral machinery of the State of Florida. Id. 32. But the DNC is not performing any public functions or in any way using the electoral machinery of the state in imposing sanctions on its state Democratic Party. The state s primary does not select the presidential nominee who appears on the state s general election ballot; the entire Democratic National Convention does that. And the sanctions involve the allocation and voting strength of delegate positions that are 10

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 11 of 21 not in any way created or assigned by the state. Indeed, those sanctions would have been revoked entirely had the FDP agreed like twenty other state parties to implement a party-run delegate allocation process that complied with the DNC s timing rule (i.e. was held on or after Feb. 5, 2008) which would not involve the state in any way whatsoever. As the Supreme Court held in Cousins v. Wigoda, 419 U.S. 477 (1975), the [s]tates themselves have no constitutionally mandated role in the great task of the selection of Presidential and Vice-Presidential candidates. Id. at 489-90. Since Cousins, no court has held that a national party s enforcement of delegate selection rules constitutes state action. In Williams v. Democratic Party of Georgia, 409 U.S. 809 (1972), the Court summarily affirmed a district court decision holding that national party delegate selection rules did not have to be precleared under the Voting Rights Act ( VRA ). Later, in Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), the Court ruled that a political party s imposition of a registration fee for participation in its state convention in effect constituted state action, for purposes of section 5 of the VRA, because Virginia law directly conferred on the state party the power and authority to use that state convention to select its nominee for U.S. Senate. But in Morse the Court took pains to distinguish that situation from the enforcement of delegate selection rules, with respect to the issue of state action, noting that an earlier case: Morse, 517 U.S. at 201-02. did not concern the selection of nominees for state elective office, but rather a political party s compliance with a rule promulgated by the Democratic National Party governing the selection of delegates to its national convention.[t]he State exercised no control over, and played no part in, the State Party s selection of delegates to the Democratic National Convention. In the two post-morse cases squarely addressing the issue of whether enforcement of national party delegate selection rules constitutes state action, the courts have held that it does 11

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 12 of 21 not. DiMaio v. DNC, Case No. 8:08 cv 672-T-26-MAP (M.D. Fla., May 28, 2008) (order granting Motion for Summary Judgment), appeal docketed, No. 08-13241-D (11 th Cir. June 9, 2008) ; LaRouche v. Fowler, 77 F. Supp. 2d 80, 89 (D.D.C. 1999) (three judge court), aff d w/o opinion, 529 U.S. 1035 (2000)(DNC delegate selection rule not subject to preclearance under Voting Rights Act). In DiMaio, the court considered a voter s challenge to the very same DNC sanctions at issue the instant case. The court held that the plaintiff did not state a claim for violation of his rights under the Fourteenth Amendment because the DNC and the FDP do not exercise any power conferred or delegated by the State of Florida; rather they are private actors.... The DNC, in enforcing its delegate selection rules, is simply refusing to recognize the results of that primary in the allocation of delegates to the Convention. This does not amount to state action. DiMaio, slip op. at 9. B. Even if the DNC Were a State Actor, Its Actions Do Not Violate the Fourteenth Amendment Plaintiffs claim that the DNC violated the Equal Protection Clause in treating Florida Democratic voters and delegates differently than those in other states. Cmplt. 150-51, 154-56. That claim is without merit. Even if the DNC were exercising state action, its decision to impose the sanctions at issue would not violate the Equal Protection Clause. First, it is well-established that, in the creation and enforcement of rules for selecting delegates to its national convention, the national Democratic Party and its adherents enjoy a constitutionally protected right of political association. Cousins v. Wigoda, 419 U.S. 477, 487 (1975). As the Court later held in Democratic Party of the United States v. Wisconsin ex rel. LaFollette, 450 U.S. 107 (1981), a political party s choice among the various ways of determining the makeup of a State s delegation to the party s national convention is protected by the Constitution. Id. at 123-24. In Wymbs v. Republican State Executive Committee of Florida, 719 12

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 13 of 21 F.2d 1071 (11 th Cir. 1983), cert. denied, 465 U.S. 1103 (1984), a Republican voter challenged the national Republican Party s delegate selection rule (reflected in the state party s rules), providing for apportionment of delegates among congressional districts, on the ground that the rule violated one-person-one-vote and therefore ran afoul of the Fourteenth Amendment. The Court held that the case was non-justiciable for several reasons, including that, [w]e think it plain that this court is an inappropriate body to decide how the Florida delegation to the Republican National Convention should be selected. 719 F.2d at 1082. The Court further ruled, however, that even if that were not the case, we would be constrained by the Party s countervailing first amendment rights of free speech and association. Id. at 1084 (emphasis in original). [T]he strong first amendment associational freedoms possessed by political parties limited the district court s ability to tell the Republican Party how to conduct its internal affairs and whom it should represent. Id. at 1086. Second, the DNC s adoption of the Timing Rule represents a core exercise of that right. Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, but also that a political party has a right to... select a standard bearer who best represents the party s ideologies and preferences. Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214, 225 (1989), quoting Ripon Society Inc. v. National Republican Party, 525 F.2d 567, 601 (D.C. Cir. 1975)(en banc)(tamm, J., concurring in result), cert. denied, 424 U.S. 933 (1976). Here a party commission and the DNC RBC, after extensive and lengthy deliberation, recommended rules reflecting a carefully thoughtout determination that a standard bearer best representing the Democratic Party would more likely be chosen through a process that balanced the traditional role of early events in Iowa and New Hampshire with early events in other states better reflecting the Party s racial, ethnic, economic and geographic diversity. Further deliberation resulted in the decision that those states, 13

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 14 of 21 in 2008, should be Nevada and South Carolina. McNamara Dec. 24, 29. The DNC s associational rights are thus squarely implicated by the DNC s decision to adopt the Timing Rule violated by the FDP. Third, because the DNC, unlike a state, has its own constitutionally protected rights to establish and enforce such rules for selecting delegates to the Convention, the DNC s treatment of different voters and/or delegations differently by allowing some state Democratic Parties to hold their primary or caucus before that of Florida does not violate the Equal Protection Clause. At the outset, it is clear that the DNC must have the right to set a schedule for the primaries and caucuses used to award delegates and that the DNC is not required to force all the states to hold events the same day or to allow each state to hold its event whenever it pleases. As the court recently held in Nelson v. Dean, supra, in granting summary judgment to the DNC: Plaintiffs have offered not a single argument and none comes to mind in support of the notion that there can be no national schedule. Plaintiffs have offered not a single argument and none comes to mind in support of the notion that each state must be free to do as it pleases. A national party has a compelling interest in setting a schedule and requiring compliance. [528 F. Supp. 2d at 1280]. Further, even if the DNC s actions were considered state action for purposes of constitutional analysis, unlike the state itself the DNC has its own constitutional rights which must be weighed against those of the voter. For that reason, in analyzing whether a delegate selection rules complies with the Equal Protection Clause, the compelling state interest test does not apply. In Ripon Society, the Court held that the test for compliance of national party delegate selection rules with the Equal Protection Clause would not be compelling state interest, but rather that, the party s choice, as among various ways of governing itself, of the one which seems best calculated to strengthen the party and advance its interests, deserves the 14

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 15 of 21 protection of the Constitution as much if not more than its condemnation. Ripon Society, supra, 525 F.2d at 585. The court determined that the Equal Protection Clause, assuming it is applicable... is satisfied if the representational scheme and each of its elements rationally advance some legitimate interest of the party in winning elections or otherwise achieving its political goals. Id. at 586-87. Accord, LaRouche v. Fowler, 152 F.3d 974, 995 (D.C. Cir. 1998)(Constitution is satisfied if the Party s delegate selection rules rationally advance some legitimate interest of the party in winning elections or otherwise achieving its political goals ); Bachur v. Democratic National Party, 836 F.2d 837, 842 (4 th Cir. 1987). And, as the court held in Nelson v. Dean, with respect to the scheduling and sequencing of presidential preference primaries and caucuses, the DNC s discretion is surely broad at least broad enough to cover any scheduling decision that is not wholly unreasonable. The DNC s schedule easily passes muster. Neither the State of Florida nor the Florida Democratic Party have a right to override the schedule. 528 F. Supp. 2d at 1281. Fourth, if the DNC has the right to promulgate its rules, it must have the right to enforce them. In Democratic Party of the United States v. Wisconsin ex rel. LaFollette, supra, Wisconsin state law provided for a state-run Democratic presidential primary open to Republicans and independents and required delegates to vote in accordance with the results of the primary. The state submitted a delegate selection plan providing for such an open primary. The DNC s Compliance Review Commission (now the RBC) disapproved the plan because the plan violated the DNC delegate selection rule banning open primaries. The DNC indicated that delegates chosen under the plan would not be seated at the 1980 Convention. The State of Wisconsin sued in the state Supreme Court to force the DNC to seat the delegates. The state court ordered that the delegates be seated based on the results of the state-run open primary. The U.S. Supreme Court reversed, ruling that the 15

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 16 of 21 State of Wisconsin could not force the DNC to seat a delegation chosen in contravention of the DNC s rules because such a requirement would violate the party s associational rights protected by the First Amendment. Id. at 122. The Court rejected Wisconsin's argument that its open primary law placed only a minor burden on the national party, holding that a State... may not substitute its own judgment for that of the Party. A political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention is protected by the Constitution. Id. at 123-24 (emphasis added). The Court concluded that Wisconsin was certainly free to conduct a primary that violated the DNC rules, but that if Wisconsin did so, it cannot require that Wisconsin delegates to the National Party Convention vote there in accordance with the primary results, if to do so would violate Party rules. Id. at 126. Likewise, Florida was free to run its presidential preference primary on January 29, 2008, and it did so; plaintiffs were free to vote in that primary, and they did so. Cmplt. 5, 11. But the DNC cannot be compelled to recognize the results of that primary, by giving all Florida delegates full voting strength, if to do so would violate Party rules. LaFollette, 450 U.S. at 126. As the Court held in Nelson, with respect to the very DNC sanctions at issue in this case, [a] national party has a compelling interest in setting a schedule and requiring compliance. And the party has a First Amendment right to exclude delegates selected in derogation of the schedule. Nelson, 528 F. Supp.2d at 1280. Plaintiffs allege that the DNC somehow acted arbitrarily in allowing the state parties of Iowa, New Hampshire and South Carolina to use events held earlier than the specific dates provided in Rule 11(A), while sanctioning the FDP. Cmplt. 77-93, 144-45, 148. That allegation is demonstrably false. The waivers granted for these states were necessitated by FDP s 16

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 17 of 21 own violation of the Timing Rule. The DNC Rules provided, in particular, for South Carolina to hold the first primary in the South, on January 29. When the FDP insisted on using the state-run primary scheduled for the same date, the South Carolina Democratic Party requested permission from the RBC to move its primary earlier and the RBC agreed in order to effectuate the intent of the Timing Rule. McNamara Dec. 60. That in turn led the New Hampshire and Iowa Democratic Parties to request waivers from the RBC to enable them to hold their events approximately the same number of days prior to the other events that had been contemplated by Rule 11(A). Id. 60. By granting these waivers, the DNC RBC was able to carry out the straightforward intent of Rule 11(A) that the only state parties allowed to use binding primaries or caucuses prior to February 5 would be Iowa, Nevada, New Hampshire and South Carolina. Id. 61. With respect to the DNC s enforcement of it Timing Rule against the FDP, plaintiffs also allege, incorrectly, that in effect the DNC was imposing its sanction (originally, no seating of delegates and now seating of delegates with half-votes) because of the FDP s failure to implement an alternative, party-run process that would comply with the rule. Cmplt 109-117. Plaintiffs incorrectly suggest that the DNC was insisting on a caucus system; in fact, other options, such as a vote by mail process in which all Democrats could easily have participated, were also discussed. McNamara Dec. 55. Plaintiffs then suggest that that the DNC s insistence on an alternative, party-run system somehow violated section 5 of the Voting Rights Act, 42 U.S.C. 1973c, because no such alternative system was submitted to the U.S. Department of Justice for preclearance. Cmplt. 130-38. But the Complaint does not actually assert any actual claim under section 5, and with good reason: there never was a final plan that could be submitted for preclearance. A jurisdiction subject to section 5 of the Voting Rights Act 17

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 18 of 21 must obtain either judicial or administrative preclearance before implementing a voting change. Lopez v. Monterey County, 519 U.S. 9, 20 (1996) (emphasis added). The FDP never submitted an alternative plan to the DNC RBC for approval; had it done so, and had such a plan been approved, it was understood that the FDP would have submitted the plan to the Justice Department for preclearance. McNamara Dec. 58. 2 As it turned out, there was nothing to submit. Plaintiffs allegations about how an alternative process would fare in the preclearance process (Cmplt. 139-40) do not even address the full range of options actually considered (including vote by mail) and are an exercise in sheer speculation. The DNC s establishment and enforcement of the Timing Rule represent a core exercise of the DNC s own constitutionally protected rights. These actions did not violate the Equal Protection Clause. II. The DNC s Actions Did Not Deprive Plaintiffs of Procedural Due Process Plaintiffs allege that the DNC RBC s decision in August 2007, to strip the FDP of all of its delegates, was made without adequate opportunity to be heard or consideration of the difficulty faced by the Democratic minority in the State Legislature in resisting the legislation to move the date of the state s primary. Cmplt. 58-76. The discretionary action taken by the RBC in August 2007, however, has now been revoked, leaving in place only the automatic sanction of Rule 20(C)(1) a 50% reduction in delegate votes. Under Rule 20(C)(4) this sanction becomes effective automatically and immediately and without further action of the RBC or any other committee or body of the DNC. (See McNamara Dec. Ex. A at 21). Thus, plaintiffs due process claim is moot. 2 The FDP, not the DNC, would have been required to make the submission since the DNC is not a covered jurisdiction under section 5 with respect to its delegate selection rules. LaRouche v. Fowler, 77 F. Supp.2d at 84-85. 18

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 19 of 21 In any event, even with respect to the original, discretionary taken in August 2007 by the RBC i.e., refusing to seat any of the delegates in Nelson, the Court rejected the identical claim finding that the DNC RBC afforded state party officials a full and fair hearing before voting to enforce the rules and to exclude Florida s entire delegation. Procedural due process if applicable at all required nothing more. 528 F. Supp.2d at 1281. 3 CONCLUSION For the reasons set forth above, there are no genuine issues of material fact, and the DNC is entitled to judgment on both counts of the Complaint as a matter of law. Accordingly, the DNC s Motion for Summary Judgment should be granted. Respectfully submitted, Of counsel: /s/ James M. Miller Joseph E. Sandler James M. Miller (Fla. Bar No. 201308 ) General Counsel, DNC AKERMAN SENTERFITT SANDLER, REIFF & YOUNG PC One Southeast Third Avenue 300 M St., S.E. #1102 25 TH Floor Washington, D.C. 20003 Miami, FL 33131-1714 Te; (202) 479-1111 Tel: (305-374-5600 Fax: 202 479 1115 Fax: 305 374 5095 James.miller@akerman.com 3 In that regard, plaintiffs claim that the DNC RBC acted in derogation of its provable positive steps rule, Rule 20(C)(7) (Cmplt 44-45), is meritless. Rule 20(C)(7) itself gives the RBC wide discretion in that regard the rule provides only that the RBC may determine that all or a portion of a state s delegation may not be reduced based on a demonstration that the state party and all Democratic elected officials took provable, positive steps to try to bring state law into compliance with the DNC Rules. In this case, the RBC was not satisfied that provable, positive steps had been taken. McNamara Dec. 48. 19

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 20 of 21 CERTIFICATE OF SERVICE I hereby certify that on June 12, 2008, I electronically filed the foregoing document with the Clerk of Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notice of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ James M. Miller 20

Case 0:08-cv-60774-KAM Document 6 Entered on FLSD Docket 06/12/2008 Page 21 of 21 SERVICE LIST Steven A. Geller, et al. v. Democratic National Committee Case No. 08-CV-60774-MARRA-JOHNSON United States District Court, Southern District of Florida Benedict P. Kuehne, Esq. Law Office of Benedict P. Kuehne, P.A. Bank of America Tower 100 S.E. 2 nd Street, Suite 3550 Miami, FL 33131-2154 Telephone: (305) 789-5989 Facsimile: (305) 789-5987 E-mail: ben.kuehne@kuehnelaw.com Attorneys for Plaintiffs Steven A. Geller and Barbara Effman Dan R. Stengle, Esq. Hopping Green & Sams, P.A. 123 South Calhoun Street Tallahassee, FL 23214 Telephone: (850) 222-7500 Facsimile: (850) 224-8551 E-mail: dans@ghslaw.com Attorneys for Plaintiffs Steven A. Geller and Barbara Effman Haas A. Hatic, Esq. Greenspoon Marder Hirschfeld Rafkin Ross & Berger 100 W. Cypress Creek Road, Suite 700 Fort Lauderdale, FL 33309 Telephone: (954) 491-1120 Facsimile: (954) 343-6956 E-mail: haas.hatic@greenspoonmarder.com Attorneys for Plaintiffs Steven A. Geller and Barbara Effman James M. Miller, Esq. james.miller@akerman.com Akerman Senterfitt One SE 3 rd Avenue, 28 th Floor Miami, Florida 33131 Telephone: (305) 374-5600 Facsimile: (305) 374-5095 E-mail: James.miller@akerman.com and Joseph E. Sandler General Counsel, DNC SANDLER, REIFF & YOUNG PC 300 M St., S.E. #1102 Washington, D.C. 20003 Tel; (202) 479-1111 Fax: 202 479 1115 Attorneys for Defendant the Democratic National Committee Richard Wayne Epstein, Esq. Greenspoon Marder, P.A. 100 W. Cypress Creek Road, Suite 700 Fort Lauderdale, FL 33309 Telephone: (954) 491-1120 Facsimile: (954) 343-6958 E-mail: richard.epstein@gmlaw.com Attorneys for Plaintiffs Steven A. Geller and Barbara Effman Rebecca Faith Bratter, Esq. Greenspoon Marder Hirschfeld Rafkin Ross & Berger 100 W. Cypress Creek Road, Suite 700 Fort Lauderdale, FL 33309 Telephone: (954) 491-1120 Facsimile: (954) 343-6952 E-mail: rebecca.bratter@greenspoonmarder.com Attorneys for Plaintiffs Steven A. Geller and Barbara Effman 21