Acosta v. Restrepo

470 F.Supp.3d 161

Jonathan ACOSTA, Jeanine Calkin, Leonardo A. Coie, Jr., Gayle Goldin, Tiara Mack, and Jennifer Rourke, Plaintiffs,

v.Juan PABLO RESTREPO, Bryant A. Estrada, and Emmanuel L. Lyte, solely in their official capacity as members of the Central Falls Board of Canvassers; Alberto Deburgos, solely in his official capacity as Clerk of the Central Falls Board of Canvassers; Janice Pucci, Gary E. Wynkoop, and Nicholas Bianco, solely in their official capacity as members of the North Providence Board of Canvassers; Denise A. Vasques, solely in her official capacity as the Clerk of the North Providence Board of Canvassers; Maria M. Pavao, Robert W. Castle, and Edward Cantone, Jr., solely in their official capacity as members of the Pawtucket Board of Canvassers; Kenneth McGill, solely in his official capacity as Registrar for the Pawtucket Board of Canvassers; Claudia J. Haugen, Renay Brooks Omisore, and Mercedes Bernal, solely in their official capacity as members of the Providence Board of Canvassers; Kathy Placencia, solely in her official capacity as Administrator of Elections for the City of Providence; Edward Murphy, Susan Abramson, and Donna J. McDonald, solely in their official capacity as members of the Warwick Board of Canvassers; Dorothy McCarthy, solely in her official capacity as Director of Elections for the City of Warwick; Nellie Gorbea, solely in her capacity as Rhode Island Secretary of State; Diane C. Mederos, Stephen P. Erickson, Jennifer L. Johnson, Richard H. Pierce, Isadore S. Ramos, David H. Sholes, and William E. West, solely in their official capacity as members of the Rhode Island Board of Elections; and, Peter Neronha, solely in his official capacity as Attorney General of the State of Rhode Island, Defendants.

C.A. No. 1:20-CV-00262-MSM-LDA

United States District Court, D. Rhode Island.

Signed June 25, 2020

Armando E. Batastini, Nixon Peabody LLP, Providence, RI, for Plaintiffs.

Matthew T. Jerzyk, The Law Offices of Matthew Jerzyk LLC, Providence, RI, Michael B. Forte, Olenn & Penza, Warwick, RI, for Defendants Juan Pablo Restrepo, Bryant A. Estrada, Emmanuel L. Lyte, Alberto Deburgos.

Michael B. Forte, Olenn & Penza, Warwick, RI, for Defendants Janice Pucci, Gary E. Wynkoop, Nicholas Bianco, Denise A. Vasques.

Kevin F. McHugh, Providence, RI, for Defendants Claudia J. Haugen, Renay Brooks Omisore, Mercedes Bernal, Kathy Placencia.

Timothy M. Bliss, Center Place, Providence, RI, for Defendants Edward Murphy, Susan Abramson, Donna J. McDonald, Dorothy McCarthy.

Angel Taveras, Greenberg Traurig, LLP, Boston, MA, for Defendant Nellie Gorbea.

Raymond A. Marcaccio, Santiago H. Posas, Oliverio & Marcaccio, LLP, Providence, RI, for Defendants Diane C. Mederos, Stephen P. Erickson, Jennifer L. Johnson, Richard H. Pierce, Isadore S. Ramos, David H. Sholes, William E. West.

Michael W. Field, Miriam Weizenbaum, Office of RI Attorney General, Providence, RI, for Defendant Peter Neronha.

MEMORANDUM AND ORDER

Mary S. McElroy, United States District Judge.

Before the Court is the plaintiffs’ Emergency Motion for Injunctive Relief (ECF No.2), seeking to modify the Rhode Island statutory ballot qualification process due to the extraordinary circumstances wrought by the ongoing COVID-19 pandemic. The Rhode Island ballot qualification process for the state offices at issue in this matter requires in-person solicitation and receipt of signatures, an in-person witness, and use of a common petition form upon which qualified voters sign. See R.I.G.L. §§ 17-14-8, 17-14-10.

As set forth below, because the Court finds that the plaintiffs have met the factors necessary for the issuance of a preliminary injunction, the Court will grant the plaintiffs’ Motion to the extent that it seeks a one-time cessation of the in-person signature requirement and instead calls for the collection of signatures electronically.

I. BACKGROUND

A. The Parties

The six plaintiffs, Jonathan Acosta, Jeanine Calkin, Leonardo A. Cioe, Jr., Gayle Goldin, Tiara Mack, and Jennifer Rourke, are all candidates for the Rhode Island Senate in the upcoming 2020 election. The plaintiffs have brought suit against the members of the Boards of Canvassers in the cities or towns that are included in the Senate Districts for which they seek office; the members of the Rhode Island Board of Elections; the Rhode Island Secretary of State; and the Rhode Island Attorney General.

B. The Candidate Nomination Process For The Rhode Island Senate

The Rhode Island candidate nomination process for the state Senate is governed by R.I.G.L. § 17-14-1 et seq. First, a candidate must file a declaration of candidacy during "the last consecutive Monday, Tuesday, and Wednesday in June."¹ R.I.G.L § 17-14-1. Then, the local boards of canvassers "personally issu[e]" nomination papers to each candidate for the General Assembly. R.I.G.L. 17-14-4.

The candidates are required to obtain the signatures of 100 registered voters who reside in the candidate's senatorial district. R.I.G.L. § 17-14-7. The solicitation, collection, and witnessing of signatures must take place in person. That is, the nomination process requires the collection of "wet" signatures from each person executing a nomination petition, coupled with an attestation from a witness who personally observed the signing of the petition. R.I.G.L. § 17-14-8 ; § 17-14-10.

The plaintiffs explain in their verified Complaint that solicitation of signatures requires contact with far more people than the number required to be collected for the nomination (100) because persons soliciting signatures must "engage in a colloquy with prospective signers regarding their eligibility to sign, and only collect signatures from those who are eligible to sign." (ECF No. 1 ¶ 30.) Further, candidates often collect far more signatures than required to mitigate against the disallowance of certain signatures.² Id. ¶ 31.

Submission of completed nomination papers is made "in hand" at the local board of canvassers office. (ECF No. 1 ¶ 34.)

C. The COVID-19 Pandemic

Since March 2020, the COVID-19 pandemic has affected all aspects of daily life in Rhode Island, throughout the country, and most of the world. This Court previously has observed that "[t]he Center for Disease Control, the government agency with the most expertise and authority in the area of infectious disease, has warned that the virus spreads from person-to-person primarily from close contact and that many of those infected, and thus contagious, have no symptoms." Yanes v. Martin , 464 F.Supp.3d 467, 471 (D.R.I. June 2, 2020). As a result, the Governor ordered vast sectors of the Rhode Island economy to be shut down, issued a stay-at-home order, and the imposition of "social distancing" measures to slow the virus’ spread.

Although some restrictions in Rhode Island now have been relaxed, some sectors of the economy have been reopened, and the number of infections in the state has declined, current Rhode Island Department of Health regulations still require "social distancing" of six feet, and emphasize "minimiz[ing] the time of exposure to the extent possible." See RIDOH Reg. 216-RICR-50-15-7 (June 1, 2020). Additionally, due to the continued presence of the virus, certain groups who are susceptible to severe cases of the disease—namely, senior citizens and persons with preexisting medical conditions—must especially limit their direct contact with other persons.

D. State Action To Date

To date the State has taken no impactful action to modify or suspend the nomination signature requirement in light of the ongoing pandemic. In the Rhode Island House of Representatives, a bill, H-7901-Sub A, was introduced, that sought to modify certain aspects of the signature requirement for federal offices but made no corresponding changes for state and local offices.³ The Rhode Island Board of Elections has discussed the issue on several recent occasions and has reported to this Court that it supports email signature gathering but opposes any of the other relief sought by the plaintiffs. The Rhode Island Secretary of State supports the remote signing of nomination papers (through email or other electronic submission) but does not have the authority to revise the nomination process. (ECF No. 1-1.)

E. The Instant Litigation

Four of the six plaintiffs have attested that they, or a close family member residing with them, suffer from health conditions that would render soliciting nomination signatures from the public medically inadvisable. One other plaintiff is a registered nurse currently treating COVID-19 patients and must avoid contact with all persons outside of his workplace. The final plaintiff's district includes Rhode Island's community that has suffered the greatest COVID-19 impact, Central Falls.

As such, the plaintiffs assert that "the nomination process needlessly exposes candidates, their supporters, and the general public to risks associated with the COVID-19 pandemic with no justifiable countervailing interest." (ECF No 1 ¶ 36.) In support, the plaintiffs have filed affidavits from Michael Fine, M.D. and Konstantine Nicholas Tsiongas, M.D. Both doctors have opined that "[t]he current ‘in person’ signature solicitation and collection process as part of the candidate nomination process carries with it a high risk to the general public's health." (ECF Nos. 1-2 & 1-3.)

The plaintiffs therefore seek a declaratory judgment that the candidate nomination statutory scheme violates the First and Fourteenth Amendments to the United States Constitution "as applied" to the current COVID-19 pandemic and the 2020 election, insofar as the statutes create an unreasonable burden on qualification for candidates to appear on the ballot and fails to track a legitimate government interest, particularly where there are less onerous and much safer options available.

Given that timing is critical (completed nomination papers must be turned into the local boards of canvassers by July 10, 2020), the plaintiffs have filed an ...