Wash. Election Integrity Coal. United v. Hall

634 F.Supp.3d 977

WASHINGTON ELECTION INTEGRITY COALITION UNITED et al., Plaintiffs, v. Mary HALL et al., Defendants.

CASE NO. 3:21-cv-05787-LK

United States District Court, W.D. Washington, at Tacoma

Signed September 30, 2022

Virginia Pearson Shogren, Virginia P. Shogren PC, Sequim, WA, for Plaintiffs.

Tamborine Borrelli, Yelm, WA, Pro Se.

Mary Rose Wiedrich, Olympia, WA, Pro Se.

Tiffany Nevils, Yelm, WA, Pro Se.

Bobbie Leland, Olympia, WA, Pro Se.

Sharon Huster, Yelm, WA, Pro Se.

Amy Britsas, Olympia, WA, Pro Se.

Keyra Perez, Yelm, WA, Pro Se.

Tammie Corbin, Yelm, WA, Pro Se.

Allen Corbin, Yelm, WA, Pro Se.

Sherie Suter, Rainier, WA, Pro Se.

Peggy Normet, Yelm, WA, Pro Se.

Diane Schmidt, Yelm, WA, Pro Se.

Jorge Delgado, Yelm, WA, Pro Se.

Eugene DeLozier, Yelm, WA, Pro Se.

Flora Hernandez, Yelm, WA, Pro Se.

Taiz Cepeda, Yelm, WA, Pro Se.

Joe Keeslar, Yelm, WA, Pro Se.

Jane Futterman, Thurston County Prosecuting Attorney's Office (Civil), Civil Division, Olympia, WA, Callie A. Castillo, Lane Powell PC, Seattle, WA, for Defendants Mary Hall, Thurston County.

ORDER DENYING MOTION TO REMAND, DENYING MOTION TO INTERVENE, AND DISMISSING THE CASE SUA SPONTE FOR LACK OF SUBJECT MATTER JURISDICTION

Lauren King, United States District Judge

This matter comes before the Court on Washington Election Integrity Coalition United's ("WEICU's") motion to remand. Dkt. No. 13. The Court finds sua sponte that the individual Plaintiffs lack Article III standing. Because the Court has no supplemental jurisdiction over the remaining state law claims, and because remand to state court would be futile, the Court dismisses the case.

I. BACKGROUND

This action is one of several nearly identical actions originally filed in state court by WEICU and numerous pro se plaintiffs in counties across Washington, and one of six such actions that have been removed to this Court.¹ Plaintiffs filed their complaint in Thurston County Superior Court on September 21, 2021. Dkt. No. 1-2 at 1. Their claims center on the conduct of the November 2020 general election in Thurston County, Washington.

The individual Plaintiffs² bring claims against the Thurston County Auditor Mary Hall for (1) using an uncertified voting system; (2) allowing or facilitating fraudulent alterations of the voting results (which Plaintiffs describe as "vote flipping, additions, and/or deletions"); (3) maintaining records of County elector party preference and identifying County electors' ballots by party preference; and (4) violating the United States Constitution and the Washington State Constitution. Dkt. No. 1-2 at 4-10, 12-15. For each of these alleged "wrongful acts," the individual Plaintiffs seek declaratory and injunctive relief. Id. They also seek damages against the Auditor for civil rights violations under 42 U.S.C. §§ 1983 and 1988. Id. at 15-16. WEICU's sole claim is against the Auditor and Thurston County under Washington's Public Records Act ("PRA"), Wash. Rev. Code §§ 42.56.001-42.56.900, for wrongfully denying WEICU's records request for "original ballots, ballot images, spoiled ballots, adjudication records, ballot envelopes, and returned ballots for the Election." Id. at 10. WEICU seeks to "compel Defendants to provide access to public records from the Election for a full forensic audit." Id.

Defendants removed the case to this Court on October 22, 2021. Dkt. No. 1. On October 28, 2021, WEICU filed a motion to remand. Dkt. No. 13.

II. DISCUSSION

Defendants removed this action on the basis that this Court has original jurisdiction over it under 28 U.S.C. § 1331. Dkt. No. 1 at 2. 28 U.S.C. § 1441 allows a defendant to remove an action filed in state court to federal district court where the federal district court has original jurisdiction.³ The Ninth Circuit "strictly construe[s] the removal statute against removal jurisdiction," and "[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). "The 'strong presumption' against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. Ultimately, if a district court lacks subject matter jurisdiction over a removed action, it usually has the duty to remand it, for "removal is permissible only where original jurisdiction exists at the time of removal or at the time of the entry of final judgment[.]" Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 43, 118 S.Ct. 956, 140 L.Ed.2d 62 (1998); see 28 U.S.C. § 1441(a).

Because the Court lacks subject matter jurisdiction over Plaintiffs' federal claims, it cannot exercise supplemental jurisdiction over any of Plaintiffs' state law claims and must either remand or dismiss the entire case. The Court dismisses the Plaintiffs' claims because remand to state court would be futile.

A. Because the Individual Plaintiffs Do Not Have Article III Standing, this Court Lacks Subject Matter Jurisdiction over Their Claims

At the outset, the Court recognizes that the right at issue in this case—the right to vote and have that vote counted—is "a fundamental matter in a free and democratic society." Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). But a voter seeking relief in federal court for alleged violations of constitutional rights must have standing to do so, including "a personal stake in the outcome, distinct from a generally available grievance about government." Gill v. Whitford, — U.S. —, 138 S. Ct. 1916, 1923, 201 L.Ed.2d 313 (2018) (cleaned up). "[A] suit brought by a plaintiff without Article III standing is not a 'case or controversy,' and an Article III federal court therefore lacks subject matter jurisdiction over the suit." Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). Article III's "case or controversy" requirement thus obligates federal courts to determine, as an initial matter, whether plaintiffs have standing to bring suit. Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007). This is true even where the parties have not raised the issue. See Fed. R. Civ. P 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action."); 28 U.S.C. § 1447(c) ("If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."); D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008) ("[B]oth the Supreme Court and this court have held that whether or not the parties raise the issue, federal courts are required sua sponte to examine jurisdictional issues such as standing." (cleaned up)).

"To establish Article III standing, an injury must be 'concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.' " Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149, 130 S.Ct. 2743, 177 L.Ed.2d 461 (2010)). "For an injury to be 'particularized,' it 'must affect the plaintiff in a personal and individual way.' " Spokeo, Inc. v. Robins, 578 U.S. 330, 339, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016) (quoting Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130). The injury must also be "concrete"; "that is, it must actually exist." Id. at 339-40, 136 S.Ct. 1540.

The Supreme Court has "consistently held that a plaintiff raising only a generally available grievance about government—claiming only harm to his and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large—does not state an Article III case or controversy." Lance, 549 U.S. at 439, 127 S.Ct. 1194 (quoting Lujan, 504 U.S. at 573-74, 112 S.Ct. 2130 (1992)); see also Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ("[T]he Court has held that when the asserted harm is a 'generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not warrant exercise of jurisdiction."). Accordingly, and in recognition "that a person's right to vote is 'individual and personal in nature,' " courts have long held that " 'voters who allege facts showing disadvantage to themselves as individuals have standing to sue' to remedy that disadvantage." Gill, 138 S. Ct. at 1929 (emphasis added) (quoting Reynolds, 377 U.S. at 561, 84 S.Ct. 1362 and Baker v. Carr, 369 U.S. 186, 206, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). Plaintiffs fail to show such disadvantage and therefore lack Article III standing.

1. Plaintiffs Do Not Allege that They Suffered Any "Concrete, Particularized, and Actual or Imminent" Injury from the Alleged Misconduct by the Auditor

Plaintiffs' claims each follow a similar pattern: they allege a violation of law, ask the Court to declare the Auditor's duties under the law and enjoin her from violating the law, and then state that they "will suffer irreparable injury" from violations of their constitutional rights:

Allegation

Requested Declaration/Injunction

"Injury"

Plaintiffs "are informed and believe" that the Auditor used an uncertified voting system. Dkt. No. 1-2 at 4.

Declare "Plaintiffs' rights and the duties of Auditor as they pertain to the Uncertified Voting System" used in the 2020 election and in future elections, and restrain the Auditor from using any uncertified voting system. Id. at 5-6.

"Plaintiffs will suffer irreparable injury in that their fundamental rights under the Washington State Constitution and/or United States Constitution . . . will be further violated." Id. at 5-6.

Plaintiffs "are informed and believe" that the Auditor "allow[ed] and/or facilitate[ed] electronic manipulation of the voting results from the [2020] Election," and that "a portion of the state-wide vote flipping, additions and/or

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