Harding v. Edwards

484 F.Supp.3d 299

Jennifer HARDING, et al.

v.John Bel EDWARDS, et al.

CIVIL ACTION 20-495-SDD-RLB

United States District Court, M.D. Louisiana.

Signed September 7, 2020

Ronald Lawrence Wilson, New Orleans, LA, Catherine Meza, Pro Hac Vice, NAACP Legal Defense & Educational Fund, Inc., Frederic Levy, Pro Hac Vice, Scott Garfing, Pro Hac Vice, Covington & Burling LLP, Washington, DC, John W. Fraser, Pro Hac Vice, Covington & Burling, John Z. Morris, Pro Hac Vice, Steve C. Lance, Jr., Pro Hac Vice, Victoria Wenger, Pro Hac Vice, NAACP Legal Defense and Educational Fund, Inc., New York, NY, Joshua Gonzalez, Pro Hac Vice, Morgan Lewis, Pro Hac Vice, Robert D. Fram, Pro Hac Vice, Covington & Burling LLP, San Francisco, CA, for Jennifer Harding, Jasmine Pogue, Louisiana State Conference of the NAACP.

Ronald Lawrence Wilson, New Orleans, LA, Catherine Meza, Pro Hac Vice, NAACP Legal Defense & Educational Fund, Inc., Frederic Levy, Pro Hac Vice, Scott Garfing, Pro Hac Vice, Covington & Burling LLP, Washington, DC, John W. Fraser, Pro Hac Vice, Covington & Burling, John Z. Morris, Pro Hac Vice, Steve C. Lance, Jr., Pro Hac Vice, Victoria Wenger, Pro Hac Vice, NAACP Legal Defense and Educational Fund, Inc., New York, NY, Joshua Gonzalez, Pro Hac Vice, Morgan Lewis, Pro Hac Vice, Robert D. Fram, Pro Hac Vice, Covington & Burling LLP, San Francisco, CA, Phillip Michael Gordon, Pro Hac Vice, Holtzman Vogel Josefiak Torchinsky PLLC, Warrenton, VA, for Power Coalition for Equity and Justice.

Matthew F. Block, John Charles Walsh, Office of the Governor Louisiana State Capitol, Baton Rouge, LA, for John Bel Edwards.

Celia R. Cangelosi, Celia R. Cangelosi, Attorney at Law, Baton Rouge, LA, Jason B. Torchinsky, Holtzman Vogel Josefiak Torchinsky PLLC, Warrenton, VA, for Kyle Ardoin.

RULING

SHELLY D. DICK, CHIEF JUDGE

Before the Court is the Joint Motion to Dismiss Plaintiffs’ Complaint¹ filed by Defendant Louisiana Secretary of State Kyle Ardoin ("Secretary Ardoin") and Intervenor-Defendant Louisiana Attorney General Jeff Landry ("the Attorney General") (collectively, "Defendants"). Due to the time-sensitive nature of these proceedings, the Court did not permit the parties to file Oppositions or Replies.² For the reasons that follow, the Court finds that the Motion shall be GRANTED in part and DENIED in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

In a pair of consolidated cases filed in May³ (the "prior case"), this Court considered a challenge to the State's Emergency Election Plan⁴ , which temporarily expanded early voting and absentee-by-mail voting for the July 2020 and August 2020 elections in response to the public health emergency caused by the COVID-19 pandemic (hereinafter, "the Pandemic"). The plaintiffs⁵ in the prior case asserted that the Emergency Election Plan failed to adequately accommodate Pandemic-related concerns, thus creating an "extremely severe" burden on the plaintiffs’ right to vote. The plaintiffs argued that, notwithstanding the Emergency Election Plan, they could not "safely vote in person," and were "effectively disenfranchised."⁶ Ultimately, this Court dismissed the plaintiffs’ claims without prejudice, finding that they "failed to adequately allege an injury-in-fact sufficient to give rise to standing under Article III" and that their alleged injury was "not traceable to state action."⁷ Plaintiffs again challenge the constitutional adequacy of Louisiana's election law scheme in light of the ongoing risk to public health presented by the Pandemic.

In one respect, the underlying facts have not changed since this Court's Ruling in the prior case. The Pandemic still looms large and Louisiana remains in Phase 2 of the re-opening plan set forth by Governor John Bel Edwards ("Governor Edwards") in coordination with the White House Coronavirus Task Force.⁸ Now, the state is preparing for a series of elections, one of which Secretary Ardoin anticipates will feature voter turnout between four and ten times that of the July and August elections.⁹ Pursuant to the Governor's declaration that a state of emergency prevails with respect to the upcoming November and December elections,¹⁰ Secretary Ardoin developed a different Emergency Election Plan ("the Proposed Plan").¹¹

The contents of the Proposed Plan – which was approved by the relevant House and Senate committees and is now under consideration by the legislature as a whole – are of no moment for purposes of this Ruling , as the Plan will not be the law of the land for the upcoming elections. Governor Edwards did not approve the Plan¹² because, in his words, "it does not follow guidance from public health officials and does not provide for absentee mail-in voting options for people who are at high risk for suffering serious issues relating to COVID-19, those who have been exposed and are in quarantine and those who are caregivers for immunocompromised individuals."¹³ Louisiana Revised Statute § 18:401.3 requires gubernatorial approval to implement an Emergency Election Plan; so, without Governor Edwards’ support, the Proposed Plan will not govern the November and December elections. In the absence of an Emergency Election Plan, the existing statutory election scheme dictates the following procedures for the November 3, 2020 Presidential General and Open Congressional Primary Election:

• A period of early voting between October 20 and 27 (excluding Sunday, October 25) from 8:30 a.m. to 6:00 p.m.;

• An October 30 deadline to request an absentee by mail ballot;

• No Pandemic-specific excuses for requesting an absentee by mail ballot; voting by mail is limited to those specifically authorized to vote by mail by Louisiana Revised Statute § 18:1303 (voters over age sixty-five, military and overseas voters, voters with disabilities, hospitalized voters and voters residing in a nursing home, voters working offshore on election day, voters who expect to be absent from the parish where they vote on election day, and several other categories).¹⁴

Plaintiffs’ Motion for Preliminary Injunction ,¹⁵ which is set for hearing before this Court on September 8 and 9, contends that the failure to implement Pandemic-sensitive voting procedures to augment the State's statutory election scheme amounts to a "concrete violation of Plaintiffs’ constitutional rights."¹⁶

Defendants Landry and Ardoin jointly move to dismiss the Plaintiffs’ Complaint ¹⁷ for the following five reasons: "(1) The Court lacks subject matter jurisdiction because Plaintiffs’ claims present non-justiciable political questions and Plaintiffs lack Article III standing; (2) Plaintiffs fail to state claims upon which relief can be granted because a communicable disease is not state action and is not protected by the Voting Rights Act; (3) Plaintiffs fail to state a claim upon which relief can be granted because they have not sufficiently plead their new claims regarding the Americans with Disabilities Act ("ADA"); (4) any Court order will result in electoral chaos in violation of the Purcell doctrine; and (5) Plaintiffs have failed to join the proper parties."¹⁸ Because time is of the essence as the November election quickly approaches, the Court did not permit the Plaintiffs to file an Opposition to the Motion to Dismiss. The sufficiency of Plaintiffs’ allegations as pleaded in the First Amended Complaint¹⁹ is considered below.

II. LAW AND ANALYSIS

A. Justiciability and Standing

1) Justiciability

Defendants first contend that this suit should be dismissed because it presents a political question and "there are no judicially manageable standards to determine what measures must be taken to regulate elections in light of the Virus."²⁰ In their view, the questions presented by this suit are "political – not judicial – questions that are not addressable by the federal courts."²¹ Yet, Secretary Ardoin has repeatedly declared that an Emergency Election Plan "will [have to] be decided in court" and beseeches the Court to include in its "the critical mechanisms my office needs to administer the election in the extraordinary circumstances of a pandemic."²² On September 3, Secretary Ardoin told Baton Rouge-based television station WAFB that the matter is now before the Court and that he "would think the Court's going to have to order some sort of process."²³ The Secretary's public comments are not binding legal analysis, but the political question argument rings hollow in light of Defendant Ardoin's public embrace of this Court's intervention.

Matters "entrusted to one of the political branches or involve[ ] no judicially enforceable rights"²⁴ Are considered non-justiciable political questions. While so-called political questions may be "outside the courts’ competence and therefore beyond the courts’ jurisdiction,"²⁵ movants do not claim, because they cannot so claim, that the right to vote is not a judicially enforceable right. It is axiomatic that the right to vote is the bedrock of our constitutional democracy, and Court-issued voting rights rulings are legion. Where there is a "lack of judicially discoverable and manageable standards for resolving" an issue, the political question doctrine "protects the separation of powers and prevents federal courts from overstepping their constitutionally defined role."²⁶ Defendants’ argument that this issue presents a political question is limited to their conclusory assertion that "there are no judicially manageable standards"²⁷ to be applied in this case. A mere recitation of the boilerplate law on political question doctrine does not suffice to demonstrate that this Court lacks jurisdiction.

Defendants also offer a quote from a recent case from the District Court for the Northern District of Georgia, where the court stated that granting the plaintiffs’ requested Pandemic-related voting measures would "require the Court to micromanage the State's election process."²⁸ The Northern District of Georgia is not binding authority upon this Court. Moreover, the relief sought by the plaintiffs in...