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Schulz v. State

June 4, 2008



Presently before the Court are fifty-two (52) Motions to dismiss the Plaintiffs' Amended Complaint (Dkt. No. 21) filed by the Defendants in this case: the fifty States and Commonwealths of the United States ("State Defendants" or "States"), the State Boards of Elections of eight (8) of the States ("Election Board Defendants" or "State Election Boards"), and eighty-six (86) individuals involved in their states' election process ("Individual Defendants"), who are Defendants individually and in their official capacity (collectively "Defendants").*fn2 Dkt. No. 22, 23, 24, 36, 39, 70, 94, 95, 99, 108, 111, 128, 133, 135, 136, 140, 144, 147, 149, 152, 154, 162, 163, 164, 166, 167, 168, 169, 170, 171, 172, 175, 179, 180, 183, 184, 185, 186, 188, 189, 190, 192, 194, 195, 196, 197, 198, 199, 200, 203, 204, 205. Plaintiffs consist of over 150 individuals, proceeding pro se, who reside in and intend to vote in each of the fifty states' primary and general elections. Plaintiffs responded to the Motions to dismiss on December 28, 2007 and filed a cross-Motion for summary judgment. Dkt. No. 223. The cross-Motion for summary judgment has been stayed pending the Court's decision on the Motions to dismiss. Dkt. No. 233. Replies to Plaintiffs' response have been received by the Court by several of the Defendants, while some Defendants have adopted the Replies of other Defendants or notified the Court of their intention not to reply.

I. Background

Plaintiffs' Amended Complaint, filed on November 1, 2007, asserts that the vote counting process for the 2008 elections violates the Plaintiffs' voting rights, contract rights, and Constitutional rights. See Amended Complaint ("A.C.") ¶¶ 228-62 (Dkt No. 21). Plaintiffs allege that Defendants violate their rights by using "machines and/or computers" for vote casting and counting, by failing to count ballots by hand, by failing to keep ballots "in public view or in the public custody before the votes are counted and publicly posted at each and every voting station," and by failing to publicly announce the number of votes cast for candidates at each voting station. A.C. ¶¶ 218-20.

In their first cause of action, Plaintiffs allege that the voting procedures used by Defendants infringe on Plaintiffs' right to vote as articulated by the Supreme Court in Burdick v. Takushi, 504 U.S. 428 (1992). A.C. at ¶ 247. In their second cause of action, Plaintiffs allege that the voting procedures are a violation of Plaintiffs' "contract rights," based on the assertion that "[f]ormally registering with the State to vote . . . is a contract." A.C. at ¶ 252. For the third cause of action, Plaintiffs submit a set of voting procedures that they allege Defendants are Constitutionally required to follow during the 2008 primary and general elections. Id. at ¶ 262.

Plaintiffs seek a permanent injunction preventing Defendants from conducting any election in the 2008 election cycle and beyond unless the election: (1) is "open, verifiable, transparent, machine-free, and computer-free," (2) "rel[ies] exclusively on paper ballots, hand marked and hand counted," and (3) "during which said paper ballots [] remain in full public view until the results of the hand counting is publicly announced at that vote station." A.C. at ¶ 268.

In their Motions to dismiss, Defendants argue primarily that (1) the States and the Election Board Defendants are protected from suit by sovereign immunity and/or are not a proper party because they are not persons within the meaning of 42 U.S.C. § 1983,(2) this Court lacks personal jurisdiction over the Individual Defendants, and (3) the Complaint fails to state a cause of action.

II. Discussion

A. Standing

Several Defendants argue that the out of state Plaintiffs lack standing as against the Individual Defendants in the State.*fn3 The Plaintiffs have the burden to establish standing to sue each Defendant. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 107 (1998); Whitmore v. Arkansas, 495 U.S. 149, 154-56 (1990). To establish standing, each Plaintiff must prove that a real injury is present or threatened at the time the Complaint is filed, and will likely continue or occur if the Defendants' conduct is not checked by the Court. Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 189-91 (2000); Whitmore, 495 U.S. at 158.

Plaintiffs alleged in the Amended Complaint that "[e]ach Plaintiff is suing his or her State among others," but do not distinguish between the States and the Individual Defendants. A.C. at ¶ 3 (Dkt. No. 21). Plaintiffs have not alleged that any of them are able to or intend to vote in any election other than in their own state of residence, or that their votes might not be accurately tabulated in a state in which they do not reside. Accordingly, because Plaintiffs not residing in the same state as the Individual Defendants in any given state cannot be harmed by conduct of those Individual Defendants in their own states, each of the Plaintiffs' standing is limited so as to only have standing against the Individual Defendants in the Plaintiff's own state.

B. Personal Jurisdiction*fn4

A plaintiff bears the burden of establishing that the Court has personal jurisdiction over each of the defendants. Florczak v. Staffieri, No. 3:06-cv-0064, 2006 WL 1085173, at *1 (N.D.N.Y. Apr. 25, 2006). At the pleading stage, a plaintiff is required to make at least a prima facie showing that such jurisdiction exists. Id. (citing A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 79-90 (2d Cir. 1993)).

Personal jurisdiction over a non-domiciliary defendant in a diversity or federal question case, like the instant action, is determined by reference to the law of the state in which the court sits, unless otherwise provided by federal law. Fed. R. Civ. P. 4(k)(1)(A); Hoffritz for Cutlery, Inc. v. Amajac, Ltd., 763 F.2d 55, 57 (2d Cir.1985). Because New York's long-arm statute does not extend as far as federal due process permits, the analysis of whether this Court has personal jurisdiction over a particular defendant proceeds in two steps. Wing Shing Products v. Simaltex Manufactory Co., 479 F. Supp. 2d 388 (S.D.N.Y. 2007); Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305 F.3d 120, 124 (2d Cir. 2002). The Court must first determine if New York law would confer upon its courts the jurisdiction to reach the defendant. Bank Brussels Lambert, 305 F.3d at 124. If there is a basis for jurisdiction under New York law, the Court must then determine whether New York's extension of jurisdiction in such a case would be permissible under the Due Process Clause of the Fourteenth Amendment. Id.

Under New York law, a court may exercise personal jurisdiction over a non-domiciliary defendant in one of two ways. The Court may either exercise general jurisdiction if the defendant "does business" in New York, pursuant to N.Y. C.P.L.R. § 301, or it may exercise specific jurisdiction if the defendant falls under New York's long-arm statute, N.Y. C.P.L.R. § 302. Maggi v. Women's College Hospital, No. 03-0768, 2007 WL 841765, at *2 (N.D.N.Y. Mar. 19, 2007). A Court may have general jurisdiction under N.Y. C.P.L.R. § 301, which "authorize[s] the exercise of jurisdiction over a foreign corporation if the defendant 'does business' in New York in the 'traditional sense.'" Ball v. Metallurgie Hoboken-Overpelt, S.A., 902 F.2d 194, 198 (2d Cir. 1990) (quoting Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 536, 43, 227 N.E.2d 851, 53 (emphasis in original), cert. denied, 389 U.S. 923 (1967)). "The latter phrase has been consistently ...

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