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Vermin Love Supreme v. Kansas State Elections Board

United States District Court, D. Kansas

July 6, 2018

VERMIN LOVE SUPREME, Plaintiff,
v.
KANSAS STATE ELECTIONS BOARD; SECRETARY OF STATE KRIS KOBACH in his official and personal capacity; GOVERNOR JEFF COLYER in his official and personal capacity; GOVERNOR'S CHIEF COUNSEL BRANT LAUE in his official and personal capacity; KANSAS ATTORNEY GENERAL DEREK SCHMIDT in his official and personal capacity; ELEECTIONS DIRECTOR BRYAN CASKEY in his official capacity, Defendants.

          MEMORANDUM OF LAW

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This case arises out of the Kansas State Elections Board's decision granting a residency-based objection to Plaintiff Vermin Love Supreme's candidacy for the office of Kansas Attorney General and thus, precluding him from appearing on the ballot in the upcoming Republican primary election. Plaintiff filed this action alleging violations of the U.S. Constitution, including violations of his First Amendment, procedural due process, and substantive due process rights, as well as similar violations of the Kansas Constitution. On July 3, 2018, the Court heard arguments from both parties regarding Plaintiff's Emergency Ex Parte Motion for a Temporary Restraining Order and Preliminary Injunction (Docs. 4, 5, 8).[1] Because Plaintiff did not meet his burden to satisfy the requisite elements this Court must consider when determining whether to grant a preliminary injunction, the Court orally denied Plaintiff's motion. This Memorandum of Law adopts the Court's prior statements and further explains the Court's July 3, 2018, decision.

         I. Factual and Procedural Background

         Plaintiff is a resident of the Commonwealth of Massachusetts. On June 1, 2018, he filed his Declaration of Intention to run for the office of Kansas Attorney General. The Executive Director of the Kansas Republic Party, Jim Joice, filed an objection to Plaintiff's candidacy based on Plaintiff's residency. The Kansas State Elections Board (“Board”) held a hearing on Joice's objection on June 11, 2018. Plaintiff, represented by counsel, argued that his residency was irrelevant because Kansas law did not require candidates for public office to be Kansas residents. While shortly before the hearing Plaintiff had faxed the Board a receipt indicating that he had obtained a rental property in Kansas for a $1 monthly rate, he did not argue that he was a resident of Kansas or that he intended to become a resident of Kansas.

         The Board orally granted Joice's objection at the conclusion of the hearing, precluding Plaintiff from appearing on the ballot for the August 2018 Republic primary. It issued a written order to the same effect on June 27, 2018. The Board's order referenced a declaratory judgment issued by Judge Watson in the District Court for Shawnee County, Kansas, which concluded that existing Kansas law requires candidates for governor to be Kansas residents. It also noted that the two participating Board members[2] disagreed with Plaintiff's position that Judge Watson's order only applied to candidacy requirements for individuals seeking to run for governor. Rather, the order notes that Secretary Kobach and Mr. Laue stated their belief that Judge Watson's order applied to all state office positions.

         Judge Watson issued the declaratory judgment referenced by the Board on May 31, 2018, the day before Plaintiff filed his declaration of intention.[3] The dispute before Judge Watson involved whether Kansas law requires candidates for governor and lieutenant governor to be Kansas residents. In its 14-page memorandum and order, the court analyzed and interpreted various Kansas election laws, including constitutional and statutory provisions that apply to the offices of attorney general, governor, and lieutenant governor. While most of the provisions analyzed by the court apply equally to the offices of attorney general, governor, and lieutenant governor, [4] the court noted a few statutes applicable only to candidates running for governor and lieutenant governor.[5] These statutes, however, largely mirror the corollary statutes applicable to the office of Attorney General, and the Court's analysis appears as though it would apply equally to these corollary statutes.[6] Additionally, the court rejected arguments that the Kansas Constitution's silence on residency reflects an intention to allow out-of-state candidates for Kansas offices, as well as an argument that a recent legislative enactment demonstrates that existing Kansas law does not contain a residency requirement.[7] After analyzing the parties' respective arguments, Judge Watson concluded:

There is no single Kansas statute that explicitly requires candidates for Governor and Lieutenant Governor to be Kansas residents. A variety of other statutes imply such a residency requirement. There is an ambiguity in the law requiring the Court to employ canons of statutory construction. Construing the statutes discussed above in pari materia, it is clear that the Kansas Legislature intended to require candidates for Governor and Lieutenant Governor to be Kansas residents. This construction avoids unreasonable results and is consistent with a common sense approach to resolving the question at hand. . . . It is the judgment of this Court that existing Kansas law requires candidates for the offices of Governor and Lieutenant Governor of the State of Kansas to be Kansas residents.[8]

         Plaintiff filed this action on June 22, 2018, alleging violations of his rights to free speech, association, and petition under the Kansas and U.S. Constitutions, violations of his procedural due process rights under the Kansas and U.S. Constitutions, and violations of his substantive due process rights under the Kansas and U.S. Constitutions. He also filed a motion seeking injunctive relief to order the state of Kansas to include his name on the ballot for the upcoming Republican primary.

         On July 3, 2018, the Court held a hearing on Plaintiff's motion for a temporary restraining order. After hearing argument from both parties, the Court denied Plaintiff's motion. This memorandum of law adopts the Court's statements made on the record during the hearing and provides further elaboration for the Court's decision.

         II. Legal Standard

         Before this Court may grant Plaintiff's request for a preliminary injunction, Plaintiff must establish four factors: “(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the harm that the preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will not adversely affect the public interest.”[9] “Because a preliminary injunction is an extraordinary remedy, the movant's right to relief must be clear and unequivocal.”[10] Further, because the temporary restraining order sought by Plaintiff would upset the status quo, Plaintiff must satisfy a heightened standard “with regard to the likelihood of success on the merits and with regard to the balance of harms.”[11]

         III. Analysis

         A. Plaintiff has not demonstrated a substantial likelihood of prevailing on the merits.

         Plaintiff's Complaint asserts three claims premised on alleged violations of the U.S. Constitution and three corollary claims premised on alleged violations of the Kansas Constitution. The Court addresses Plaintiff's federal constitutional claims below and concludes that Plaintiff has not met his burden to demonstrate a likelihood of prevailing on the merits of his federal claims. The Court also concludes that Plaintiff does not have a likelihood of prevailing on the merits of his Kansas constitutional claims as it is unlikely this Court will exercise jurisdiction over such claims.[12]

         1. First Amendment claim and the Pullman[13] doctrine

         Plaintiff's First Amendment claim requires the Court to accept a certain interpretation of Kansas election laws-that Kansas law contains no residency requirement for candidates running for Kansas Attorney General.[14] Defendant argues that Kansas law as it stands today includes a residency requirement, making Plaintiff ineligible to run for Kansas Attorney General and precluding his First Amendment claim. Plaintiff argues that Kansas law contains no such requirement and that the Board's action in keeping him off the ballot violates his First Amendment rights, as well as the First Amendment rights of the voters who may have voted for him. Because Plaintiff's First Amendment claim rests entirely upon the meaning of Kansas election laws, the Court must consider, in determining whether Plaintiff has met his burden to show a substantial likelihood on the merits of his claims, whether the Court will likely exercise its discretion to abstain from hearing Plaintiff's First Amendment claim.

         “Abstention from the exercise of federal jurisdiction is the exception, not the rule.”[15]Indeed, absent exceptional circumstances, this Court should not exercise its judicial discretion to dismiss a suit otherwise properly before it.[16] The Court may abstain, however, in certain narrow circumstances, including under the Pullman abstention doctrine “when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.”[17]Pullman abstention is appropriate when: ‘(1) an uncertain issue of state law underlies the federal constitutional claim; (2) the state issues are amenable to interpretation and such an interpretation obviates the need for or substantially narrows the scope of the constitutional claim; and (3) an incorrect decision of state law . . . would hinder important state law policies.' ”[18]

         Plaintiff's First Amendment claim satisfies each of the requirements for Pullman abstention. First, Plaintiff's claim appears to rest on an uncertain issue of state law-whether Kansas requires candidates for the office of Attorney General to be Kansas residents. Neither party points the Court to any Kansas Supreme Court or appellate decision interpreting the relevant Kansas laws at issue here.[19] Rather, the only Kansas decision addressing a similar issue-whether the candidates for governor and lieutenant governor must be Kansas residents-concluded that candidates must be Kansas residents.[20] Second, the state law issue in question here is amenable to an interpretation that obviates Plaintiff's constitutional claim. While this Court does not opine on how Kansas election laws should be interpreted, it notes that Kansas election laws may reasonably be interpreted to require a residency requirement for candidates for the office of Attorney General. Judge Watson's reasoned order, albeit it in the context of residency requirements for candidates for governor and lieutenant governor, demonstrates that Kansas election laws are amenable to an interpretation that requires candidates to be Kansas residents.[21]

         Finally, an incorrect decision of state law would significantly hinder important state law policies. Kansas has a significant interest in the integrity of its elections, the seriousness of its candidates, and the fair, honest, and orderly election process.[22] Further, as noted by Defendants, residency requirements often serve an important purpose and help safeguard citizens from “raiders” who are not seriously committed to the interests of the community for which they seek office.[23] An incorrect decision in Plaintiff's favor and at odds with the only Kansas authority to decide the issue would hinder these important interests.

         This Court is loath to interfere with an election of Kansas officials based on ambiguous Kansas statutes that are subject to varying reasonable interpretations, one of which follows the only state authority to speak on the issue and would obviate Plaintiff's claim. Accordingly, although the Court does not decide to abstain today, given the record currently before the Court, it believes that it will likely follow the lead of other courts to have entertained similar arguments and abstain upon a proper motion to do so.[24] Given the likelihood that the Court will abstain from hearing the merits of Plaintiff's First Amendment claim, Plaintiff has failed to meet his burden to show a likelihood of success on the merits of that claim.

         2. Procedural Due Process

         Courts assessing whether a procedural due process violation has occurred must engage in a two-step inquiry, requiring the Court to ask: “(1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process.”[25] Procedural due process does not prevent the government from depriving an individual of a constitutionally protected interest, but rather, merely requires that the government provide that individual with a fair procedure in doing so. “The essence of procedural due process is the provision to the affected party of some kind of notice and some kind of hearing.”[26]

         Plaintiff claims that Defendants arbitrarily disqualified him from appearing on the ballot, depriving him of his due process rights under the Fourteenth Amendment, and that K.S.A. § 25-308, on its face and as applied, allows the Board to arbitrarily decide who may appear on the ballot, in violation of “the rights guaranteed to the Plaintiff by the Fourteenth Amendment.” Defendants argue that Plaintiff's cause of action fails because it cannot meet either of the necessary prongs of a valid procedural due process claim.

         Here, Plaintiff has not met his burden to show a substantial likelihood of success in meeting either prong of the relevant inquiry. Plaintiff's motion for a temporary restraining order does not set forth the well-known two-step inquiry noted above; nor does it attempt to show how the inquiries are satisfied here. Indeed, Plaintiff fails to specifically identify the constitutionally protected interest of which Defendants allegedly deprived him. To the extent he claims a constitutionally protected interest in running for Kansas Attorney General, he has failed to cite any legal authority granting him a constitutionally protected interest in doing so. Rather, the Tenth Circuit has noted that there is no fundamental ...


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