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FULANI v. McAULIFFE

September 7, 2005.

LENORA B. FULANI, et al., Plaintiffs,
v.
TERRY MaAULIFFE, DEMOCRATIC NATIONAL COMMITTEE, JOHN F. KERRY, JOHN EDWARDS, et al., Defendants.



The opinion of the court was delivered by: LORETTA PRESKA, District Judge

OPINION AND ORDER

This is yet another in a long line of cases in which Plaintiff Lenora Fulani has misused the courts in an attempt to pursue a political agenda which she is not able to accomplish at the ballot box. For the reasons set out below, this misguided effort also fails.*fn1

Plaintiffs Lenora Fulani, Cathy Stewart, Nancy Ross, David Cherry, Jason Olson, Evelyn Dougherty, Jennifer Bullock, Linda Curtis, Mary Ann Bock, Murray Dabby and the Committee for a Unified Independent Party (collectively, "Plaintiffs") allege that Defendants Terry McAuliffe, the Democratic National Committee ("DNC"), John F. Kerry, John Edwards, Michael Madigan, Michael Clifford, Toby Moffet, Jeff Merrick, David Jones, and Darrell McGraw, (collectively, "Defendants") in connection with any number of unnamed parties, conspired to keep Ralph Nader ("Nader") and Peter Camejo ("Camejo") off of the ballot in states across the country as independent candidates for the offices of President and Vice President of the United States. Defendants McAuliffe, DNC, Kerry, Edwards, Madigan, Clifford, Moffet, Merrick and McGraw have all filed motions to dismiss. Because Plaintiffs' Complaint fails to establish any deprivation of a federal right, plead any conspiracy, or satisfy the specific requirements of 42 U.S.C. §§ 1983 or 1985, Defendants' motions are granted.

  I. Background

  The individual plaintiffs in this action are registered voters in the states of New York, Illinois, California, Massachusetts, Pennsylvania, Texas and Georgia. The Committee for a Unified Independent Party ("CUIP") is a national not-for-profit organization dedicated to the expansion of political participation and the development of a third political party. Plaintiffs all supported the candidacy of Nader and Camejo for President and Vice President of the United States, respectively, ("Nader-Camejo") in 2004.

  Defendant DNC functions as the leadership and administrative body of the Democratic Party. Defendant McAuliffe was the Chairman of the DNC during the 2004 Presidential election. Defendants Kerry and Edwards were the Democratic candidates for the offices of President and Vice President of the United States, respectively. Defendant Madigan is the Speaker of the Illinois House of Representatives and the Chairperson of the Illinois Democratic Party. Defendant Clifford is the Kanawha County Prosecutor in the State of West Virginia, and Defendant McGraw is the Attorney General of the State of West Virginia. Defendant Moffet is a former Congressman from the State of Connecticut. Defendant Merrick is the Chair of the Multnomah County Democratic Party organization in Portland, Oregon. Defendant Jones is the president of a website with the web address of www.TheNaderFactor.com.

  According to Plaintiffs, in early 2004, once Nader declared his intention to run for President, Defendants began a concerted, organized conspiracy to "prevent Nader from obtaining a line on the ballot in as many states as possible, and, thereby, impede the development" of a third national political party.*fn2 (Compl., ¶ 27.) Plaintiffs allege that: (1) Defendant McAuliffe issued public statements "about the importance of eliminating Nader as a factor" in the election; (2) Defendant Jones "orchestrated a paid media and propaganda campaign" to combat Nader-Camejo's efforts at ballot access; (3) Defendant Moffet coordinated a national plan to "drain [Nader's] resources" and trained lawyers to help in that effort; (4) Defendant Clifford announced that he was commencing a criminal investigation of persons collecting Nader-Camejo petition signatures in West Virginia; (5) Defendant McGraw announced that he would file a lawsuit challenging the Nader-Camejo petition in West Virginia; (6) Defendant Merrick caused the Nader-Camejo nominating caucus in Portland to be crowded with Democratic activists, thus preventing Nader-Camejo from reaching the required 1000 supporter threshold; (7) Defendant Madigan directed government workers to challenge the Nader-Camejo petition in Illinois; (8) various defendants persuaded the Michigan Secretary of State not to recognize Nader-Camejo as the 2004 Reform Party candidates; (9) various defendants caused an organization called Citizens for Ethics and Responsibility in Washington to file complaints with the Federal Election Commission ("FEC") against Nader-Camejo; and (10) Democratic Party lawyers and operatives generally reviewed Nader-Camejo nominating petitions "with a fine tooth comb" and instituted challenges against the petitions in Arizona, Colorado, Illinois, Iowa, Maine, Michigan, Missouri, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania and Wisconsin. (Compl., ¶ 29.)

  Based on these allegations, Plaintiffs claim that: (1) pursuant to 42 U.S.C. § 1983, Defendants have engaged in a conspiracy to deny Plaintiffs' right to vote and participate as independents in the presidential election, thwarting Plaintiffs' constitutionally protected goal of developing a third national political party; and (2) pursuant to 42 U.S.C. § 1985, Defendants have engaged in a conspiracy to deny Plaintiffs' right to vote and right to equal protection under the laws. Collectively, Defendants' motions to dismiss argue that Plaintiffs' Complaint is deficient in four ways: (1) it fails to allege any actionable deprivation of a federal right; (2) it fails to allege any underlying conspiracy; (3) it fails to satisfy the state action requirement of § 1983; and (4) it fails to satisfy the race- or class-based discrimination requirement of § 1985.*fn3 Because Defendants' arguments are, in fact, correct on each of these grounds, their motions to dismiss are granted.

  II. Standard for a Motion to Dismiss

  In deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), I must view the complaint in the light most favorable to the plaintiff. Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir. 1985) (citing Conley v. Gibson, 355 U.S. 41, 47-48 (1957)). I must accept as true the factual allegations stated in the complaint, Zinermon v. Burch, 494 U.S. 113, 118 (1990), and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Hertz Corp. v. City of N.Y., 1 F.3d 121, 125 (2d Cir. 1993). A motion to dismiss can be granted only if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

  III. Discussion

  A. Failure to Establish Any Constitutional Violations

  Sections 1983 and 1985 do not in themselves create any substantive right but merely provide remedies for deprivations of rights established elsewhere. See Albright v. Oliver, 510 U.S. 266, 271 (1994); United Bhd. of Carpenters and Joiners, Local 610 v. Scott, 463 U.S. 825, 833 (1983). Both sections, therefore, require a plaintiff to establish with specificity the rights of which he has been deprived. See Albright, 510 U.S. at 271; Scott, 463 U.S. 833.

  Plaintiffs maintain that they have been deprived of their "right to vote and participate as independents in the election" and "equal protection of the laws." (Compl., ¶¶ 36, 39.) However, the facts as alleged do not constitute any such deprivations. Initially, it is not an unconstitutional deprivation of the right to vote for states to regulate their own elections by passing and enforcing laws regarding ballot access. Further, the speech which Plaintiffs complain of — ...


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