Opinion
C. A. 3:22-2872-SAL-PJG
08-16-2023
Donna Zigmantanis; Faith M. Dowden; Meredith Mumpower; Jennifer Newton; Yelizaveta Liokumovich; Ahman Jacob Lemus Chavez; James Darryl Robinson; Michael D. Brady; Michele Nelson; Nancy B. Tiller; Paige Bickar; Alison K. Starosky; India Roark Springs; Allison Case Morgan, Plaintiffs, v. Wanda Hemphill; Chris Whitmire; John Wells; Joanne Day; Linda McCall; Clifford J. Edler; Scott Mosely, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
The above-named plaintiffs, proceeding pro se, filed this civil action seeking injunctive relief related to South Carolina's election procedures. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the motion to dismiss or for judgment on the pleadings filed by Defendants Wanda Hemphill, John Wells, Joanne Day, Linda McCall, Clifford J. Edler, and Scott Mosely (“Election Commission Defendants”) and the motion to dismiss filed by Chris Whitmire. (ECF Nos. 68 & 71.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised the plaintiffs of the summary judgment and dismissal procedures and the possible consequences if they failed to respond adequately to the defendants' motions. (ECF No. 69 & 73.) The plaintiffs filed a response in opposition to the Election Commission Defendants' motion and a response in support of Whitmire's motion. (ECF Nos. 76 & 77.) Having reviewed the record presented and the applicable law, the court finds the defendants' motions should be granted.
BACKGROUND
The following allegations are taken as true for purposes of resolving the defendants' motions. The defendants are all current members of the South Carolina Election Commission, except for Chris Whitmire, who is a former member. The plaintiffs, all South Carolina voters, bring this action under a variety of federal and state constitutional and statutory provisions, claiming that South Carolina's voting and election systems are unlawful. In particular, the plaintiffs claim that South Carolina's use of electronic voting machines prevents the state from reliably counting votes and exposes voters' confidential information in violation of federal law. The plaintiffs generally allege that the defendants have unlawfully “federalized” state elections by partnering with federal agencies for added cybersecurity, but they also allege that the voting machines are not in compliance with federal and state law. The plaintiffs further allege that South Carolina's voting machines are susceptible to foreign interference because they are connected to the internet and that the state contracts with a foreign vendor. The plaintiffs ask the court to enjoin South Carolina's use of its current voting machines, end its partnership with federal agencies, require paper ballots and same-day voting, disband the South Carolina Election Commission and county election commissions, require that the office of the South Carolina Secretary of State remain an elected position, and decertify elections held since 2020.
The plaintiffs support Whitmire's motion to dismiss since Whitmire no longer serves as a member of the Election Commission. Consequently, Whitmire's motion should be granted.
DISCUSSION
A. Rule 12(b) Standards
Dismissal under Federal Rule of Civil Procedure 12(b)(1) examines whether the complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
To resolve a jurisdictional challenge under Rule 12(b)(1), the court may consider undisputed facts and any jurisdictional facts that it determines. The court may dismiss a case for lack of subject matter jurisdiction on any of the following bases: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Johnson v. United States, 534 F.3d 958, 962 (8th Cir. 2008) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)).
On the other hand, a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “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. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A claim is facially plausible when the factual content allows the court to reasonably infer that the defendant is liable for the misconduct alleged. Id. When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court “may also consider documents attached to the complaint, see Fed.R.Civ.P. 10(c), as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic.” Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (citing Blankenship v. Manchin, 471 F.3d 523, 526 n.1 (4th Cir. 2006)).
Further, while the federal court is charged with liberally construing a complaint filed by pro se litigants to allow the development of a potentially meritorious case, see, e.g., Erickson, 551 U.S. 89, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts which set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Defendants' Motions
1. Failure to State a Claim
Initially, the court notes that the plaintiffs' Amended Complaint, although lengthy and factually detailed, fails to provide fair notice to the defendants as to what claims the plaintiffs raise against them, and what facts the plaintiffs rely upon to support those claims. The Federal Rules of Civil Procedure provide that
[a] pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Fed. R. Civ. P. 8(a). In their Amended Complaint, the plaintiffs provide a list of “constitutional questions” (ECF No. 13 at 16-18), cite to various federal and state statutes and constitutional provisions throughout the pleading, and make allegations about deficiencies in the state's voting system. However, the plaintiffs do not expressly identify what legal causes of action they raise in this case, and importantly, they do not explain which allegations in the pleading are meant to support those causes of action. Considering the length and complexity of the plaintiffs' pleading, the court finds that the Amended Complaint violates Rule 8's requirement that the plaintiffs provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”
The United States Court of Appeals for the Fourth Circuit has previously found that pleadings such as the plaintiffs' Amended Complaint violate Rule 8. For example, in North Carolina v. McCuirt, the Fourth Circuit stated:
The complaint before us is both long and complex and fails to state its claims clearly enough for the defendants to know how to defend themselves.... It is virtually impossible to separate the legally significant from the legally insignificant facts in this factual background and then to match them with claims purportedly made in the complaint. ...
[S]imply to discover who is being charged in each count becomes indeterminate.
...
[T]he complaint in its present form does not permit the defendants to figure out what legally sufficient claim the plaintiffs are making and against whom they are making it. Accordingly, we readily conclude that the district court did not abuse its discretion in dismissing plaintiffs' complaint under Rule 12(b)(6) for failure to comply with Rule 8(a).North Carolina v. McGuirt, 114 Fed.Appx. 555, 558-59 (4th Cir. 2004). Similarly, here, the plaintiffs' Amended Complaint does not allow the defendants to determine what causes of action the plaintiffs raise against them, nor does it reveal what allegations the plaintiffs rely upon to support those claims. Consequently, the court concludes that on that basis alone, the Amended Complaint should be summarily dismissed.
The court also made this finding in a previous Report and Recommendation on motions to dismiss filed by other defendants. (ECF No. 48.) The plaintiffs have not sought to amend their pleading. Accordingly, it appears the plaintiffs intend to stand on the allegations and claims as pled in the Amended Complaint. Britt v. DeJoy, 45 F.4th 790, 796-97 (4th Cir. 2022).
2. Lack of Standing
The defendants argue that regardless of the precise claims raised in the Amended Complaint, the plaintiffs lack standing to bring them. The court agrees.
The United States Constitution limits federal court jurisdiction to “Cases” and “Controversies.” U.S. Const. art. III, § 2 (“Article III Standing”). “One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013) (internal quotation marks omitted); see also Pye v. United States, 269 F.3d 459, 466 (2001) (“Standing is a threshold jurisdictional question which ensures that a suit is a case or controversy appropriate for the exercise of the courts' judicial powers under the Constitution of the United States.”) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998)).
To satisfy the constitutional standing requirement, a plaintiff must provide evidence to support the conclusion that: (1) “the plaintiff . . . suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) “there [is] a causal connection between the injury and the conduct complained of”; and (3) “it [is] likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”White Tail Park, Inc. v. Stroube, 413 F.3d 451, 458 (4th Cir. 2005) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)); see also David v. Alphin, 704 F.3d 327, 333 (4th Cir. 2013) (quoting Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 273, 74 (2008)). The party invoking jurisdiction bears the burden of establishing these elements. Lujan, 504 U.S. at 561.
The plaintiffs here fail to demonstrate that they have suffered an injury in fact because their alleged injuries are speculative. The plaintiffs allege that South Carolina's voting system is susceptible to hacking and foreign interference, but they fail to make any allegation that they have lost the ability to vote, that their votes have been diluted, or that their personal data has been compromised. They also fail to allege that such injuries are imminent. See, e.g., Heindel v. Andino, 359 F.Supp.3d 341, 353 (D.S.C. 2019) (finding that the plaintiff's allegations that South Carolina's voting machines were vulnerable to hacking was too speculative to plausibly show an injury in fact), judgment vacated on other grounds, appeal dismissed, No. 19-1204, 2019 WL 7781470 (4th Cir. Nov. 5, 2019); accord Lake v. Hobbs, 623 F.Supp.3d 1015, 1028 (D. Ariz. 2022), appeal filed No. 22-16413 (9th Cir. Sept. 16, 2022); Schulz v. Kellner, No. 1:07-CV-0943 LEK/DRH, 2011 WL 2669456, at *6 (N.D.N.Y. July 7, 2011); Landes v. Tartaglione, C/A No. 04-3163, 2004 WL 2415074, at *3 (E.D. Pa. Oct. 28, 2004), aff'd, 153 Fed.Appx. 131 (3d Cir. 2005). Instead, the plaintiffs appear to merely disagree with the form and manner of security of South Carolina's election system without making any allegations that they suffered harm or will imminently suffer harm as the result of the security system.
The plaintiffs' Amended Complaint also raises prudential standing concerns. As explained by the defendants, the plaintiffs fail to allege that they suffered any injury that is personal or individualized to them, as opposed to an injury that is equally shared by the general public. Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009) (“[W]hen 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.”) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). The plaintiffs' generalized grievances about South Carolina failing to follow federal and state law in the way it conducts its elections fails to plausibly demonstrate any particularized injury to the plaintiffs themselves. See, e.g., Lance v. Coffman, 549 U.S. 437, 438 (2007) (holding that a suit by four Colorado voters challenging the state's compliance with the federal elections clause alleged an injury that “is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past”). Consequently, the plaintiffs lack Article III standing, and prudential standing concerns counsel against adjudicating the plaintiffs' claims.
RECOMMENDATION
Based on the foregoing, the court recommends that the defendants' motions to dismiss be granted. (ECF Nos. 68 & 71.)
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).