Liberty Initiative Fund v. Thurston

LIBERTY INITIATIVE FUND, ET AL, PLAINTIFFS v. JOHN THURSTON, in his official capacity as Secretary of State for the State of Arkansas DEFENDANT

No. 4:21CV00460 JM

United States District Court, E.D. Arkansas, Central Division

April 13, 2022

ORDER

James M. Moody Jr United States District Judge

Pending is the Motion to Dismiss filed by Defendant John Thurston, in his official capacity as Secretary of State for the State of Arkansas (the “State”). Plaintiffs Liberty Initiative Fund and U.S. Term Limits are non-profit 501(c)(4) organizations supporting an amendment to the Arkansas Constitution to allow term limits for state legislators. Plaintiff Arkansas Term Limits is the organizational sponsor of an initiative to amend the Arkansas Constitution to allow term limits, Plaintiff Timothy Daniel Jacob is its Chairman and Plaintiff Lawrence Cook is its Treasurer. Plaintiff Accelevate 2020 LLC is a professional petition circulating firm formed in Texas and Plaintiff Trenton Donn Pool is its sole member and President. Pool is also a resident of Texas and a professional petition circulator interested in circulating the current initiative petition sponsored by Arkansas Term Limits.

Plaintiffs challenge Ark. Code Ann. § 7-9-601 regulating the hiring and training of paid canvassers (“Section 601”) § 7-9-103(a)(6) requiring canvassers to be Arkansas residents (“Section 103”), § 7-9-108 regulating the circulation of petitions (“Sections 108”), and § 7-9-109(e) and (f) establishing penalties for falsification (“Section 109”). With the exception of Section 601(d), Plaintiffs contend that Section 601 violates their rights under the First and Fourteenth Amendments. They allege the requirements of Section 601(a)(2)(E)-(G) and Section 601(d) violate the Equal Protection Clause and Section 601(d) also violates the Constitution's prohibition of Ex Post Facto Clause. Plaintiffs allege that the residency requirement of Section 103 violates the First and Fourteenth Amendments, Section 108 violates the Equal Protection Clause and Section 109 violates their First Amendment rights. They contend that certain sections of these statutes not only violate the United States Constitution but also the Arkansas Constitution. Plaintiffs seek a declaration that these laws are unconstitutional and an injunction preventing the Secretary of State from enforcing them.

I. DISCUSSION OF THE LAW

A. Rule 12(b)(1) Motion

“[S]tanding cannot be inferred ... from averments in the pleadings, but rather must affirmatively appear in the record, ” Spencer v. Kemna, 523 U.S. 1, 10-11 (1998), nor will “naked assertion[s] devoid of further factual enhancement” suffice, Ashcroft v. Iqbal, 556 U.S. 662 (2009) (internal quotation marks omitted).

The State argues that Plaintiffs do not have standing to challenge Section 109(e)-(f)), the witness-fraud provision, or Section 108, the fifteen-county requirement, because these statutory provisions mirror state constitutional provisions, and the constitutional provisions are not challenged. Plaintiffs do not oppose the dismissal of Count II relating to witness-fraud. However, they do oppose dismissal of Count XI regarding the fifteen-county requirement of Section 108. Ark. Code Ann. § 7-9-108(a) and (d) (West) provide:

(a) Each initiative or referendum petition ordering a vote upon a measure having general application throughout the state shall be prepared and circulated in fifteen (15) or more parts or counterparts, and each shall be an exact copy or counterpart of all other such parts upon which signatures of petitioners are to be solicited. When a sufficient number of parts are signed by a requisite number of qualified electors and are filed and duly certified by the Secretary of State, they shall be treated and considered as one (1) petition.

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(d) No part of any initiative or referendum petition shall contain signatures of petitioners from more than one (1) county.

Ark. Code Ann. § 7-9-108 (West). The corresponding section of the Arkansas Constitution is Article 5, section 1. Section 1 provides:

Upon all initiative or referendum petitions provided for in any of the sections of this article, it shall be necessary to file from at least fifteen of the counties of the State, petitions bearing the signature of not less than one-half of the designated percentage of the electors of such county.

Ark. Const. art. V, § 1.

“Plaintiffs agree that the state constitutional provision is identical to the statutory provision challenged in this action.” (Resp. to Mot. to Dismiss, ECF No. 19 at p. 37). Plaintiffs respond that it is “because the state constitutional provision is sufficiently identical to the statutory provision that Plaintiffs are requesting to be both enjoined and declared unconstitutional that it is not necessary to also include the state constitutional provision as a separate challenge.” Id. Plaintiffs contend that the Court's declaration that Section 108 is unconstitutional would automatically render the corresponding Arkansas constitutional provision unconstitutional. Therefore, an express claim regarding Article 5 Section 1 in their Complaint is not necessary. In the alternative, Plaintiffs argue that the Court could interpret Plaintiffs' prayer for relief as a request for declaratory judgment regarding the Arkansas constitutional provisions. If those options don't work, Plaintiffs would like the opportunity to amend their complaint for the third time.

Plaintiffs cite We the People PAC v. Bellows, 519 F.Supp.3d 13 (D. Me. 2021) in support of their argument that the failure to specifically challenge Article 5 Section 1 is not fatal to their claim. However, the Maine Court did not consider the same argument. The court did not consider that the relief requested by the plaintiff, i.e., injunction of a statute, would extend to an identical constitutional provision which was not challenged. Plaintiffs have not cited the Court to any other authority supporting this argument.

“A court's equitable power lies only over the merits of the case or controversy before it. When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does not have the authority to issue an injunction.” Pac. Radiation Oncology, LLC v. Queen's Med. Ctr., 810 F.3d 631, 633 (9th Cir. 2015). Plaintiffs concede that the fifteen-county requirement is identical to provisions in Article 5 § 1. They also acknowledge that they did not include a claim in their Complaint challenging the corresponding constitutional provision. See Arizonans for Fair Elections v. Hobbs, 454 F.Supp.3d 910 (D. Ariz. Apr. 17, 2020). Therefore, even if Plaintiffs were successful in this case, the Court could only enjoin the Arkansas statutes and not the constitutional provisions in Article 5 § 1.

The Court cannot read claims into the complaint when they are not there. However, Plaintiffs may amend their Complaint for the limited purpose of adding a challenge to the constitutionality of Article 5, Section 1's fifteen-county requirement. They must do so within ten (10) days from the date of this Order. If the State files a new motion to dismiss, it must be limited to this issue. The Court will not reconsider issues which have been raised in this motion to dismiss.

The State's motion as to Count II is GRANTED. The State's motion as to Count XI is GRANTED without prejudice to Plaintiffs' right to amend the Complaint.

B. Rule 12(b)(6) Motion

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.”Ashcroft v. Iqbal, 556 U.S.622, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The plausibility standard requires a plaintiff to show at the pleading stage that success on the merits is more than a “sheer possibility.”Id. It is not, however, a “probability requirement.”Id. Thus, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and 'that a recovery is very remote and unlikely.”Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).

1. Count I - residency requirement

Section 103(a)(6) states that “[a] person shall not act as a canvasser unless he or she is a resident of this state.” Ark. Code Ann. § 7-9-103 (West). In Count I of the Complaint, Plaintiffs allege that this subsection of the statute violates their First and Fourteenth Amendment rights because it prevents Plaintiff Trenton Donn Pool and Accelevate 2020 LLC from circulating the new term limit initiative sponsored by Plaintiffs Liberty Initiative Fund, U.S. Term Limits, Arkansas Term Limits and Timothy Daniel Jacob. Plaintiffs allege that Section 103 imposes a severe burden on the Plaintiff Sponsors' core political speech and is not narrowly tailored to advance the State's interest in preventing petition fraud.

The State argues that Section 103 does not violate the First or Fourteenth Amendment based on Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001). In Jaeger, plaintiffs filed suit against the State of North Dakota alleging that the statutes requiring circulators of initiative petitions to be North Dakota residents and prohibiting payment of circulators on a per signature basis violated their First and Fourteenth Amendment rights. The district court ruled in favor of the State on summary judgment and plaintiffs appealed. The Eighth Circuit found that the North Dakota residency statute did not unduly restrict speech. Id. at 616. The Court considered the State's evidence that in one year 17, 000 signatures were invalidated and the circulators involved were not North Dakota residents. The circulators fled the state,...