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Clark v. Schwab

United States District Court, D. Kansas

September 26, 2019

SCOTT SCHWAB, in his official capacity as the Secretary of State of Kansas; and RONNIE METSKER, in his official capacity as the Johnson County Election Commissioner, Defendants.


          CARLOS MURGUIA United States District Judge.

         This matter is before the court on plaintiffs’ Motion for Preliminary Injunction (Doc. 3), defendant’s Motion to Dismiss for Lack of Jurisdiction (Doc. 13), and plaintiffs’ Motion for Hearing or Decision on the Existing Record (Doc. 25).


         This case is a request for prospective relief from the enforcement of two Kansas election laws: Kan. Stat. Ann. §§ 25-2430 and 25-2810. Section 25-2430 (“the electioneering statute”) provides, in relevant part:

(a) Electioneering is knowingly attempting to persuade or influence eligible voters to vote for or against a particular candidate, party or question submitted. Electioneering includes wearing, exhibiting or distributing labels, signs, posters, stickers or other materials that clearly identify a candidate in the election or clearly indicate support or opposition to a question submitted election within any polling place on election day or advance voting site during the time period allowed by law for casting a ballot by advance voting or within a radius of 250 feet from the entrance thereof. Electioneering shall not include bumper stickers affixed to a motor vehicle that is used to transport voters to a polling place or to an advance voting site for the purpose of voting. . . .
(c) Electioneering is a class C misdemeanor.

Id. Section 25-2810 (“the control statute”) provides, in relevant part:

(a) Each election board shall have control of its voting place and election procedure under the sole supervision of the secretary of state, county election officer, deputy county election officers and the supervising judge. . . .
(h)(2) The secretary of state may adopt rules and regulations to implement the provisions of this section.

Id. § 25-2810. Plaintiffs’ challenges can be divided into (1) prosecution-based challenges pursuant to the electioneering statute, and (2) discretion-based challenges pursuant to the control statute. The only relevant defendant at this time is defendant Scott Schwab, in his official capacity as the Secretary of State of Kansas.[1] Both the ability and willingness of defendant Schwab to take enforcement action under the above statutes are strongly contested.

         Plaintiffs are James W. Clark, Roseanne Rosen, Kansas for Change, Inc., and Daniel DeGroot. Defendants at the time of filing were Scott Schwab, in his official capacity as the Secretary of State of Kansas; and Ronnie Metsker, in his official capacity as the Johnson County Election Commissioner. Only defendant Schwab is relevant for the court’s evaluation of plaintiffs’ Motion for Preliminary Injunction and defendant’s Motion to Dismiss.

         Plaintiffs allege that the electioneering statute is geographically overbroad and that the control statute leads to chilling of speech. All plaintiffs except for Kansas for Change state that they fear arrest or criminal prosecution under an election official’s prospective application of the electioneering statute. (Doc. 1, at 2–3.) Kansas for Change states that it “would like to continue running petition drives at polling places but is chilled from doing so under the Secretary of State’s policy granting Sedgwick County election judges unfettered discretion pursuant to [the control statute].” (Id. at 3–4.)

         Plaintiff Clark states that he fears arrest and prosecution pursuant to the electioneering statute. He states that he “engaged in non-electioneering speech within [the buffer zone] and was improperly censored by a county election official under the state’s policy of unfettered discretion, ” and he fears arrest and prosecution pursuant to the electioneering statute. (Id. at 3, 5.)[2]

         Plaintiff Rosen alleges both fears of censorship and criminal penalties under the electioneering statute. (Id.) She states that she “engaged in non-electioneering speech on private property [within the buffer zone] and was ejected by Defendant Metsker pursuant to his application of [the electioneering statute].” (Id. at 5.)[3]

         Plaintiff Kansas for Change states that its members “have been asked to leave polling locations because election judges determined that their non-electioneering activities would still be prohibited.” (Id. at 6.)[4] Plaintiff would like to continue its election day petitioning and engagement efforts to support marijuana decriminalization within the electioneering buffer zone, but “fear [its members] will be subject to exclusion and arrest under the Secretary of State’s application of [the control statute].” (Id.)

         Plaintiff DeGroot has engaged in and wishes to continue in similar decriminalization advocacy on election day within the electioneering buffer zone. (Id.) Plaintiff previously volunteered to collect signatures, and upon arriving for his shift “was informed that his fellow volunteers had been accused of violating the electioneering statute by the election judge and that police were called to the scene.” (Id.) Plaintiff “is hesitant because he does not want to be arrested for electioneering or ejected from the polling location by an election judge exercising their discretion under [the control statute].” (Id. at 7.)[5]

         In sum, the facts for all plaintiffs are generally similar: (1) plaintiffs engaged in or sought to engage in non-electioneering speech within electioneering buffer zone (whether election protection efforts or marijuana decriminalization efforts); (2) plaintiffs were informed that their non-electioneering speech could not occur within the buffer zone, either due to a misapplication of the electioneering statute or due to an application of the control statute; and (3) plaintiffs would like to continue their advocacy within the buffer zone on election day, but fear adverse consequences. Plaintiffs Clark and Kansas for Change add that they also wish to engage in partisan speech within the buffer zone on election day; Clark “on private and public property” (Id. at 15) and Kansas for Change “on public property near polling locations” (Id. at 16).[6] Both Clark and Kansas for Change fear arrest (individually or for its members) if they engage in partisan speech within the buffer zone. (See Id . at 3, 17).

         While the factual content of both parties’ cited authority is generally not contested, the context and meaning of that content and its resulting legal sufficiency are strongly disputed. The court will summarize and address plaintiffs’ relevant authority to either their electioneering and control challenges within each challenge’s analysis below.


         The instant case is before the court on plaintiffs’ motion for a preliminary injunction and defendant’s motion to dismiss for lack of subject matter jurisdiction. Defendant Schwab moves to dismiss for both Eleventh Amendment immunity and lack of standing.

         A. Subject Matter Jurisdiction

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) generally takes one of two forms: either a facial challenge or a factual challenge. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001) (citing Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)). Id. A facial attack challenges the allegations in the complaint regarding subject matter jurisdiction. Id. In reviewing a facial attack, the court must accept the complaint’s allegations as true. A factual attack “go[es] beyond allegations contained in the complaint and challenge[s] the facts upon which subject matter jurisdiction is based.” Id. In reviewing a factual attack, the court “has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve jurisdictional facts.” Id. (citation omitted). The court’s reference to evidence outside the pleadings does not convert a Rule 12(b)(1) motion into one for summary judgment unless the jurisdictional question is intertwined with the merits. Id.; see Wheeler v. Hurdman, 825 F.2d 257, 259 (10th Cir. 1897). Defendant Schwab offers extra-pleading material in support of his motion and the jurisdictional issues raised are not intertwined with the merits of this case, so the court will consider materials outside the pleadings.


         A. Eleventh Amendment

         “The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in federal court against a state and arms of the state.” Wagoner Cnty. Rural Water Dist. No. 2 v. Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009). An official-capacity suit is treated as a suit against the state entity, and “[t]he type of relief sought by a plaintiff suing a State in court is irrelevant to the question whether a suit is barred by the Eleventh Amendment.” Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 745 (2002); see Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013). Although the effect of this immunity does not change, there is an exception to its application when a plaintiff seeks prospective relief against alleged ongoing violations of federal law. Peterson, 707 F.3d at 1205 (citing Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1154 (10th Cir. 2011)); see Ex parte Young, 209 U.S. 123, 157 (1908).

         The Ex parte Young exception requires “that [the] officer must have some connection with the enforcement of the act, ” rather than merely functioning to make the state a party. Ex parte Young, 209 U.S. at 157. The Tenth Circuit has clarified that “[d]efendants are not required to have a ‘special connection’ to the unconstitutional act or conduct. Rather, state officials must have a particular duty to ‘enforce’ the statute in question and a demonstrated willingness to exercise that duty.” Peterson, 707 F.3d at 1205 (quoting Prarie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007)). The parties dispute both whether defendant Schwab has a willingness to enforce the electioneering statute, and whether he has either a duty or a willingness to enforce the control statute. To resolve these disputes, the court must address the type of conduct that shows enforcement of a challenged duty and the circumstances that show a willingness to exercise that enforcement.

         1. Ex parte Young: Connection and Willingness to Exercise Enforcement Duty

         An official’s “[c]onnection to the enforcement of an act may come by way of another state law, an administrative delegation, or a demonstrated practice of enforcing a provision.” Id. at 1207. Multiple Tenth Circuit decisions provide guidance on which connections to enforcement will show a particular duty and willingness to exercise enforcement powers outside of traditional prosecution. Decisions from this District and the Sixth and Eighth Circuits provide further guidance in the context of election law.

         Kitchen v. Herbert shows that the court will not ignore an official defendant’s stated intent and ability to use other state laws to engage in unlawful enforcement. 755 F.3d 1193 (10th Cir. 2014). Wagnon, Cressman v. Thompson, and Russell v. Lundergan-Grimes each demonstrate how an official defendant shows a willingness to exercise enforcement duties through administrative provisions. Russell, 784 F.3d 1037 (6th Cir. 2015); Cressman, 719 F.3d 1139 (10th Cir. 2013); Wagnon, 476 F.3d 818. Fish v. Kobach and Missouri Protection & Advocacy Services, Inc. v. Carnahan further show the ways that an official may be made to defend based on a demonstrated practice of enforcing a provision. Fish, 189 F.Supp. 3d 1107');">189 F.Supp. 3d 1107 (D. Kan. 2016); Carnahan, 499 F.3d 803 (8th Cir. 2007).

         In Wagnon, the Tenth Circuit found state officials to be proper defendants under Ex parte Young based on the officials’ exercise of administrative power. A federally recognized Kansas Indian tribe sued the state’s Secretary of Revenue, Director of Vehicles, and Superintendent of the Highway Patrol, seeking to enjoin the state’s practice of refusing to recognize the Nation’s vehicle registrations and titles outside the Reservation. 476 F.3d at 820. The court rejected defendants’ Eleventh Amendment arguments because the “Director of Vehicles, manages vehicle registrations and titles and supervises vehicle reciprocity; [and] the Secretary of Revenue[] is the State official-in connection with the [Director of Vehicles]-who decided to deny the validity of the Tribe’s registrations; and . . . [the] Superintendent of the Kansas Highway Patrol[] enforces traffic and other laws of the state related to highways, vehicles, and drivers of vehicles.” Id. at 828. Together, these decisions by the Director and Secretary first used administrative power to alter the legal status of plaintiffs on Kansas roads, and the Superintendent’s Highway Patrol next took traditional enforcement action based on that status. See Id . This set of administrative actions: first, altering the validity of prospective enforcement, and second, engaging in traditional enforcement, gave meaningful effect to the challenged statutes. See id. 6 n.15.

         In contrast, Cressman illustrates that not all administrative actions show enforcement. In a First Amendment challenge to religious art on Oklahoma license plates, the court found that a clerk’s authority to interpret the relevant licensing statute was insufficient enforcement power to bring her within the Ex parte Young exception. See Cressman, 719 F.3d at 1146 & n.8 (noting enforcement duty as part of both standing and immunity). However, the court allowed the suit to proceed against multiple Tax Commission officials, as the administering body for the state’s Motor Vehicle Division. Rejecting the challenge to the clerk, the court stated, “the authority to interpret and administer a statute is not the same as the authority to enforce a statute.” Id.[7]

         Kitchen similarly demonstrates that an official’s un-exercised statutory powers may still show a willingness to exercise enforcement. See 755 F.3d at 1202–03. The Kitchen defendants, the Governor and Attorney General of Utah, had “explicitly taken the position . . . that they ha[d] ample authority to ensure that the Salt Lake County Clerk return[ed] to her former practice of limiting marriage licenses to man-woman couples in compliance with [the challenged] Utah law.” Id. at 1202. The law in question, Utah’s Amendment 3, limited the definition of “marriage” to man-woman couples. Id. at 1200. Faced with this clear official intent, the court took notice of both defendants’ statutory power to commence enforcement proceedings against clerks violating Amendment 3 and defendants’ coordination of agency action pending review of the district court’s injunction, finding “that the Governor’s and the Attorney General’s actual exercise of supervisory power and their authority to compel compliance from county clerks and other officials provide the requisite nexus between them and [the Amendment].” Id. at 1203–04.[8]

         Turning specifically to election law cases, our District’s decision in Fish and the Eighth Circuit’s decision in Carnahan show when ongoing violations will satisfy a willingness to enforce regardless of official intent. The Sixth Circuit’s decision in Russell suggests circumstances where the Tenth Circuit’s approach in Wagnon may be extended beyond the creation of new enforcement.

         In Fish, a voting rights challenge to a Kansas law requiring motor-votor applicants to present documentary proof of citizenship (DPOC), the court determined that the state’s Secretary of Revenue could be required to defend despite his disavowal of either ability or intent to disqualify pending voter registrations. See 189 F.Supp. 3d at 1125–26. While the court recognized the Secretary’s lack of express enforcement power, his agency’s ongoing gathering and transmission of information necessary to disqualify registrants showed sufficient willingness to facilitate enforcement of the DPOC requirement. See Id . at 1126.

         In Russell, a similar electioneering challenge to the instant case, the Sixth Circuit found that Kentucky’s Secretary of State had a duty to administer state election laws and provide training to state and local personnel, as well as the power to adopt regulations to carry out those duties. See 784 F.3d at 1047–49. The court noted that “KSBE-of which Secretary Grimes is the chair-is busily engaged in administering Kentucky’s election laws, including [Kentucky’s electioneering provision].” Id. at 1048. The court identified that “KSBE acted when it promulgated [a state regulation] authorizing an exemption to [Kentucky’s electioneering statute] for bumper stickers on cars while voting.” Id. While Kentucky’s Secretary of State had not created the sort of new liability faced by the Tenth Circuit in Wagnon, the Sixth Circuit was persuaded that the Secretary’s prior use of administrative power to define conduct as “not electioneering” showed sufficient willingness to exercise that enforcement power. See Ky. Rev. Stat. Ann. § 117.235(3)(c) (“Electioneering . . . shall not include . . . exceptions established by the State Board of Elections through the promulgation of administrative regulations.”).

         Finally, in Carnahan, the Eighth Circuit determined that Missouri’s Secretary of State was not immune to a suit seeking to enjoin the state’s refusal of voter registration to persons under guardianship. Missouri law made the Secretary “responsible for overseeing the [challenged] voter registration process, ” and the Secretary’s continued involvement in that process made him an appropriate defendant. Carnahan, 499 F.3d at 807.[9]

         2. The Electioneering Statute

         Plaintiffs argue that Secretary Schwab’s willingness to exercise his enforcement duties is met through his various statutory enforcement powers, administrative guidance, and prior statements and actions by his Office. Plaintiffs identify prior prosecutions under the electioneering statute; testimony by Secretary Schwab’s Office in favor of recent legislation; the continued availability of an online election crime reporting form and hotline; and both an interpretive guidance e-mail and new Election Manual promulgated after this case’s filing. The court will summarize the relevant facts for each theory before turning to the sufficiency of plaintiffs’ showing.

         i. Statutory Power, Prior Prosecutions, and Legislative Testimony

         The electioneering statute may be enforced by the Secretary of State, the Kansas Attorney General, or the District Attorney or County Attorney where the electioneering took place. Kan. Stat. Ann. § 25-2435(a). This jurisdiction is not shared; whichever office files first takes individual jurisdiction over the matter, and subsequent filing by the other two offices is not permitted. Id. § 25- 2435(b). The Secretary of State’s Office did not have authority to prosecute election crimes prior to the tenure of Secretary Kobach.[10] Recent, though unsuccessful, amendments have sought to restore the former status quo by removing this power from the Secretary of State’s office and have been supported by both Secretary Schawb and Attorney General Derek Schmidt.[11] The state Attorney General’s Office has testified that it now has an enforcement group more suited to the prosecution of election crimes without diverting resources from other departments.[12] While the Secretary of State‚Äôs Office ...

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