Acosta v. Democratic City Comm.

288 F.Supp.3d 597

Orlando A. ACOSTA, et al., Plaintiffs,

v.DEMOCRATIC CITY COMMITTEE, et al., Defendants.

CIVIL ACTION NO. 17–1462

United States District Court, E.D. Pennsylvania.

Signed January 22, 2018

Filed January 23, 2018

Orlando A. Acosta, Philadelphia, PA, pro se.

Matthew B. Weisberg, Weisberg Law PC, Morton, PA, Brian R. Mildenberg, Mildenberg Law Firm PC, Philadelphia, PA, for Plaintiffs.

Marni Jo Snyder, Law Offices of M.J. Snyder LLC, Adam C. Bonin, The Law Office of Adam C. Bonin, Anthony George Kyriakakis, Dilworth Paxson LLP, Karl S. Myers, Stradley, Ronon, Stevens & Young, LLP, Benjamin H. Field, City of Philadelphia Law Department, Philadelphia, PA, Kathleen Marie Kotula, Timothy E. Gates, Pennsylvania Dept. of State Office of Chief Counsel, Harrisburg, PA, for Defendants.

OPINION

Slomsky, District Judge.

I. INTRODUCTION...608

II. BACKGROUND...611

A. Pennsylvania Elections...611

B. Factual Background...613

1. The Special Election and the Participants...613

2. Alleged Voter Coercion, Intimidation, and Other Misconduct that Occurred During the Special Election...614

a. Actions of Government Actors...614

b. Actions of Democratic Party Actors...614

c. Actions of Other Unidentified Actors...615

3. Alleged Tampering with Materials, Malfunctioning of Voting Machines, and Improper Chain of Custody Procedures for Voting Equipment...618

4. Results of the Special Election...619

C. Procedural History...619

III. STANDARD OF REVIEW...621

IV. ANALYSIS...622

A. Plaintiffs' Claims Are Not Moot...623

B. Plaintiffs Were Not Required to Bring Their Claims in State Court First...624

C. Eleventh Amendment Immunity...625

1. The Eleventh Amendment Bars Suit Against the Pennsylvania Department of State on Constitutional and State Law Claims...626

2. The Eleventh Amendment Does Not Bar Suit Against Secretary Cortés on Constitutional Claims, But It Does Bar Suit on State Law Claims...627

D. Emilio Vazquez, the Democratic Committee, and the Six Ward Leaders Are Not State Actors and Cannot Be Subject to Liability Pursuant to 42 U.S.C. § 1983...628

1. Democratic Committee Is Not a State Actor...629

2. Six Ward Leaders Are Not State Actors...632

3. Emilio Vazquez, as a Write–In Candidate, Is Not a State Actor...634

E. Speaker Turzai, Secretary Cortés, and the Individual City Commissioners Had No Personal Involvement in the Alleged Wrongful Conduct, and Plaintiffs Have Not Plausibly Pled a Claim for Failure to Train or Supervise by Cortés and the City Commissioners...636

1. Claims Against Speaker Turzai Will Be Dismissed Because He Had No Personal Involvement in the Alleged Wrongful Conduct...637

2. Claims Against Secretary Cortés Will Be Dismissed Because He Had No Personal Involvement in the Alleged Wrongful Conduct and Because Plaintiffs Have Not Plausibly Pled a Claim for Failure to Train or Supervise...638

3. Claims Against the Individual City Commissioners Will Be Dismissed Because They Had No Personal Involvement in the Alleged Wrongful Conduct and Because Plaintiffs Have Not Plausibly Pled a Claim for Failure to Train or Supervise...639

F. Claims Against the City Commissioners' Office Will Be Dismissed Because Plaintiffs Have Not Plausibly Pled a Policy or Custom of Failure to Train or Supervise...640

G. Plaintiffs' Claims for Violations of Their First and Fourteenth Amendment Rights...643

H. Plaintiffs Acosta and Lloyd Have Not Plausibly Pled a Violation of the Voting Rights Act...647

I. Election Board Workers and Election Officers Are Not Necessary or Indispensable Parties...648

J. Pennsylvania Election Code Claims Will Be Dismissed Without Prejudice...650

K. Claims Against the Committee of Seventy and Leslie Acosta Will Be Dismissed Without Prejudice...651

L. Plaintiffs Will Be Granted Leave to Amend the Complaints Against All Defendants Except Against the Pennsylvania Department of State...652

V. CONCLUSION...654

I. INTRODUCTION

At the heart of this action is the integrity of a special election held on March 21, 2017 for Pennsylvania State Representative for the 197th Legislative District in Philadelphia. The special election was ordered by Pedro Cortés, then Secretary of the Commonwealth of Pennsylvania,¹ after Leslie Acosta, the elected State Representative, was not seated in the General Assembly due to a prior felony conviction. On March 31, 2017, after the official vote count in the special election was certified, Democratic write-in candidate, Emilio Vazquez, was declared the presumptive winner.

The instant litigation concerns two related lawsuits filed after Vazquez was declared the winner: Acosta et al. v. Democratic City Committee et al., Civil Action No. 17–1462, and Little et al. v. Vasquez et al., Civil Action No. 17–1562. Plaintiffs in the first action ("Acosta action") are defeated write-in candidates Orlando A. Acosta and Edward Lloyd, proceeding pro se. (Doc. No. 11 ¶¶ 1–2.) Plaintiffs in the second action ("Little action") are defeated Republican candidate Lucinda Little, defeated write-in Green Party candidate Cheri Honkala, Republican City Committee of Philadelphia, and the Republican Party of Pennsylvania ("Little Plaintiffs"). (Doc. No. 2 ¶¶ 1–5.) On August 10, 2017, the actions were consolidated by Order of this Court. (Doc. No. 53.)

Plaintiffs allege that during the special election, numerous instances of coercion, intimidation, and misconduct occurred, which caused the election to be held in an unfair manner. To remedy these alleged injustices, Plaintiffs bring this action under 42 U.S.C. § 1983² against Vazquez and various parties, including state and local government officials and entities they claim were involved in the execution of the election.³ Plaintiffs allege that the manner in which the election was conducted violated the First and Fourteenth Amendments to the United States Constitution, as well as the Pennsylvania Election Code.⁴ Plaintiffs seek declaratory relief that their First and Fourteenth Amendment rights of association, right to vote, and right to speech, as well as their Fourteenth Amendment right to fundamental due process⁵ were violated. Plaintiffs also seek a preliminary and a permanent injunction barring recognition of the validity of and implementation of the election results. They further request that this Court order a new special election. Defendants have filed Motions to Dismiss, which are now ripe for a decision.⁶ For reasons that follow, the Motions to Dismiss will be granted in their entirety, but Plaintiffs will be granted leave to file amended Complaints.

II. BACKGROUND

A. Pennsylvania Elections

To put in context the facts of this case, a brief background on the electoral process in Pennsylvania is required. Elections in Pennsylvania are governed by the Pennsylvania Election Code. See 25 Pa. Stat. §§ 2600 et seq. An election in Pennsylvania can take the form of a general, municipal, primary, or special election. § 2602(f). A special election is defined as any election other than a regular, general, municipal, or primary election. § 2602(v). A special election is ordered when a vacancy occurs in either house of the Pennsylvania General Assembly. § 2778. The presiding officer of the house issues a writ of election to the proper county board of election and the Secretary of the Commonwealth. Id.

Under the Pennsylvania Election Code, the Secretary of the Commonwealth has numerous responsibilities. § 2621. Among other duties, the Secretary must (1) determine "the forms of nomination petitions and papers"; (2) "examine and reexamine voting machines, and approve or disapprove them for use"; (3) "certify to county boards of elections for primaries and elections the names of candidates"; (4) and "develop a voluntary professional certification and poll worker training program for county election officials in consultation with county boards of elections." § 2621(a)–(c), (f.1).

Candidates for special elections are nominated by political parties⁷ through nomination certificates or by political bodies⁸ through nomination papers, all filed with the Secretary of the Commonwealth. § 2779. Thereafter, the Secretary of the Commonwealth must certify to the proper county board the names, residences, and political parties or bodies of all candidates whose nomination certificates or papers have been filed with him. § 2786. All special elections must be held in accordance with the Pennsylvania Election Code, similar to any other election. § 2787.

Each political party is directed by a State committee, which is chosen in accordance with the party's rules. § 2834. Each political party's State committee may make rules for governing the party not inconsistent with law, and such rules are not effective until a certified copy has been filed with the office of the Secretary of the Commonwealth. Id. Each political party also may have a county committee, which makes rules for the party within that county. § 2837.

Each county in Pennsylvania has a board of elections. The board of elections has "jurisdiction over the conduct of primaries and elections in such county." § 2641(a). The county board of elections consists of the commissioners of that county "or any officials or board who are performing or may perform the duties of the county commissioners." § 2641(b). When an election occurs, the board has various responsibilities to ensure that the election is run according to the Pennsylvania Election Code.⁹ Each county board of elections also may make regulations for conducting elections. § 2644.

The county board of elections selects and fixes the polling places¹⁰ within each election district.¹¹ § 2726(a). It also delivers the proper voting machines to the polling places, § 3012(a), and supplies each polling place with voting equipment and materials, § 2730(a). Included in the materials are two sample ballots that represent the face of the voting machine and provide directions for voting on the machine. § 3012(c)(2). Sample ballots must be posted outside the booths inside the polling place. Id.

Each election district has a district election...