Blankenship v. Newsom

477 F.Supp.3d 1098

Donald BLANKENSHIP, et al., Plaintiffs,

v.Gavin NEWSOM, et al., Defendants.

Case No. 20-cv-04479-RS

United States District Court, N.D. California.

Signed August 3, 2020

Gautam Dutta, Business, Energy, and Election Law, PC, Redwood City, CA, for Plaintiffs.

Lara Haddad, California Department of Justice Government Law Section, Los Angeles, CA, for Defendants.

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER & PRELIMINARY INJUNCTIVE RELIEF

RICHARD SEEBORG, United States District Judge

I. INTRODUCTION

Plaintiff Donald Blankenship is the 2020 presidential nominee of the Constitution Party.¹ He contends that but for the unconstitutional application of California law, his name would rank among the candidates printed on the California ballot for the upcoming general election. This argument builds upon crisis: because collecting a certain number of signatures before a certain deadline is one way a minor party presidential candidate can secure a spot on California's general election ballot, and because signature collection has been hampered by government-imposed restrictions occasioned by the COVID-19 pandemic, Blankenship insists his access to the ballot faces imminent irreparable harm. With the deadline looming, he now moves to enjoin California from demanding his timely submission of the requisite signatures. California's Governor and Secretary of State oppose the motion in their official capacity, countering that Blankenship's prospective injury springs principally from his own inaction. For the reasons set forth herein, the motion is denied.

II. BACKGROUND

A. The California Elections Code

The Constitution Party, formerly the U.S. Taxpayers Party, is a national political party recognized by the Federal Election Commission. It is not, however, one of California's six ballot-qualified parties, and therefore may not place its nominee automatically on the State's general election ballot.² On May 2, 2020, at a virtual convention, the Constitution Party named Blankenship, a former coal executive and West Virginia senatorial candidate, as its presidential nominee for the November election. He now endeavors to appear on the California general election ballot. The State provides two avenues for candidates like Blankenship³ to achieve this goal: § 8400 and § 5151(c)(1) of the California Elections Code.

Section 8400 instructs a presidential candidate seeking ballot access to provide local officials with "[n]omination papers ... signed by voters of the state equal to not less in number than 1 percent of the registered voters of the state at the time of the close of registration prior to the preceding general election." Cal. Elec. Code § 8400. Two further requirements attach to a candidate's successful use of this provision. First, each signature gathered must be "wet," meaning handwritten in ink by an eligible voter. Although the traditional method for collecting "wet" signatures is in-person solicitation in high-traffic public areas, California permits candidates to circulate nomination papers to prospective supporters, who may then sign in the presence of a notary or election official. This circulation may occur via traditional or electronic means. Second, "nomination papers shall be prepared, circulated, signed, and delivered ... for examination no earlier than 193 days before the election and no later than 5 p.m. 88 days before the election." Cal. Elec. Code § 8403(a)(2). Thus, to avail himself of § 8400 ballot access in the November 3, 2020 general election, Blankenship must submit the "wet" signatures of some 196,964 registered California voters (one percent of the entire number of registered California voters eligible to vote in the last general election) gathered between April 24, 2020 (193 days before the election) and August 7, 2020 (88 days before the election).

Alternatively, § 5151(c)(1) sets forth how the nominee of a party that is not ballot-qualified in California may attain his party's ballot-qualification, thereby ensuring an appearance on the general election ballot. Cal. Elec. Code § 5151(c)(1). Under this provision, a party qualifies for the ballot when "it appears to the Secretary of State ... that voters equal in number to at least 0.33 percent of the total number of voters registered on the 123^rd day before the presidential general election have declared their preference for that party." Id. Unlike § 8400, § 5151(c)(1) does not carry a "wet" signature requirement. This means that a minor party candidate hoping to grow his party's ranks to the ballot-qualification threshold may employ a diverse variety of tactics, ranging from traditional in-person solicitation, to direct mail campaigns, to email or social media advertisements. See Cal. Elec. Code § 2158(b)(4). Voters swayed by such efforts may register with the candidate's party by filling out either a physical form or the California Online Voter Registration, and need not do so in the presence of a notary or election official. See id. ; see also Frequently Asked Questions , California Secretary of State Website, https://www.sos.ca.gov/elections/frequently-asked-questions/ (explaining that "[i]n order to change your political party preference ... [y]ou can re-register to vote by completing a voter registration application online"). Thus, to avail himself of § 5151(c)(1) ballot access in the November 3, 2020 general election, Blankenship would have had to ensure that as of July 3, 2020 (123 days before the election), roughly 62,000 California voters (approximately 0.33% of California's registered voting public as of that date) had registered with the Constitution Party.

Historically, when presented with two such routes to the ballot, candidates have selected the easier of the two.⁴ Because § 5151(c)(1) requires gaining the support of fewer voters by more permissive means, one might therefore expect the nominee of a non-ballot-qualified party to pursue the California ballot through that provision. Blankenship, for whatever reason—litigation related or otherwise—has opted to tie his fortunes exclusively to § 8400, a high hurdle made even more challenging by virtue of the present COVID-19 pandemic.

B. State Response to COVID-19

On March 4, 2020, California Governor Gavin Newsom met the then-emergent COVID-19 public health crisis by declaring a State of Emergency. On March 19, 2020, Governor Newsom issued Executive Order N-33-20 ("the Stay-at-Home Order"), requiring all California residents to comply with the directives of the State's Public Health Officer. Those directives ordered "all individuals living in the State of California to stay home ... except as needed to maintain continuity of operations of [16 specified] critical infrastructure sectors ...." Order of the State Public Health Officer, Mar. 19, 2020, Haddad Decl., Ex. 3, Dkt. 13-1 at 14. Three days later—over a month before the opening of the § 8400 signature-gathering window—the State Public Health Officer issued guidance categorizing "election personnel" as "Essential Critical Infrastructure Workers." Haddad Decl., Ex. 5, Dkt. 13-1 at 41. Through May and June, California's website dedicated to disseminating information about the pandemic labeled "the collection and dropoff of ballots, or other election-related activities" as "essential activity." Quirarte Decl., Dkt. 13-2 at 2-3. Beginning June 5, that same website explicitly identified "the collection of signatures to qualify candidates or measures for the ballot" as a permissible activity, but encouraged signature-seekers to "adhere to physical distancing and other applicable public health directives." Id. at 3.

While the California government did all this, Blankenship did little. More specifically, he did not attempt any "wet" signature solicitation; he did not reach out to any arm of California government for clarification on whether and how he might attempt such solicitation; he did not re-direct any planning or personnel to § 5151(c)(1) efforts; and indeed, the record is silent on any commitment by Blankenship of campaign resources to an effort to appear on the California ballot. Instead, he elected to sue. On July 7, 2020, over two months after the § 8400 signature-gathering window had opened, Blankenship brought an as-applied constitutional challenge to that statute and its accompanying deadline, characterizing the obstacle of "wet" signature collection under Governor Newsom's Stay-at-Home Order as an infringement of his First and Fourteenth Amendment rights. Later that day he filed the instant motion, seeking an order (i) temporarily restraining California from enforcing its "filing deadline and signature requirements,"⁵ and (ii) requiring California to extend the deadline and decrease the signature requirement before printing its general election ballot. Pls.' Mot., Dkt. 2 at 18. The State opposes the motion, arguing that because Blankenship has not made an adequate merits showing, he is not entitled to emergency injunctive relief.

III. LEGAL STANDARD

A temporary restraining order may issue upon a showing "that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition." Fed. R. Civ. P. 65(b)(1)(A). In the usual run of cases, the purpose of such an order is to preserve the status quo and prevent irreparable harm "just so long as is necessary to hold a hearing, and no longer." Granny Goose Foods, Inc. v. Brotherhood of Teamsters , 415 U.S. 423, 439, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). A request for a temporary restraining order is evaluated by the same factors that generally apply to a preliminary injunction. See Stuhlbarg Int'l. Sales Co. v. John D. Brush & Co. , 240 F.3d 832, 839 n.7 (9th Cir. 2001).

To obtain preliminary injunctive relief in the form of a temporary restraining order, the moving party bears the heavy burden of demonstrating that "he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of...