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Librace v. Thurston

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

April 23, 2019

DAVID LIBRACE PLAINTIFF
v.
JOHN THURSTON, Arkansas Secretary of State, et al. DEFENDANTS

          RECOMMENDED DISPOSITION

         I. Procedure for Filing Objections:

         This Recommended Disposition (“Recommendation”) has been sent to Judge James M. Moody Jr. Any party to this suit may file written objections to this Recommendation. Objections should be specific and should include the factual or legal basis for the objection. To be considered, objections must be received in the office of the Court Clerk within 14 days of this Recommendation.

         If no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record. By not objecting, the parties may waive the right to appeal questions of fact.

         II. Introduction:

         Mr. Librace filed this suit without the help of a lawyer on November 26, 2018, claiming election irregularities and fraud in the November 6, 2018 general election in Phillips County, Arkansas. (Docket entry # 2) Mr. Librace sued Mark Martin, [1] in his official capacity as Arkansas Secretary of State (“Secretary of State”), as well as the Phillips County Election Commission (“Commission”) and its individual commissioners, all in their official capacities (“separate defendants”). (Id.)

         Mr. Librace's claims stem from a November 8, 2018 article that appeared in the Arkansas Democrat Gazette titled “Some Counties Late Reporting Vote Results.”[2] (#2, #37) In the article, Defendant Mark Lynn is quoted as explaining that the Commission's delay in verifying election results was caused by absentee ballots having been “fouled up” and some provisional votes having been illegally submitted. (Id. at 3) Relying exclusively on the article, Mr. Librace asserts that the election results were flawed and that he and the citizens of Phillips County were denied their right to have their “vote counted and voice heard.” (Id.)

         Mr. Librace also broadly asserts that similar voting irregularities occurred in the May 2018 primary election. (#2 at 4, #37 at 4) He contends that the Defendant Commission had a duty to report and investigate fraud; that the State should not accept the official results absent an investigation;[3] and that the Defendants violated his rights guaranteed by 42 U.S.C. § 1983 and the Fourteenth Amendment to have his vote counted pursuant to state and federal constitutional procedures. (Id.)

         In his complaint and in a separate motion, Mr. Librace sought temporary injunctive relief and the prevention of “any further form of harassment and slander.” (#2 at 5, #5) Judge Moody denied the request for emergency injunctive relief on December 19, 2018. (#6) Mr. Librace has since amended his complaint to include a request for declaratory relief, another request for injunctive relief, and a demand for civil penalties. (#37)

         Defendants have moved to dismiss both the original and amended complaints. (#7, #33, #40, #44) The Secretary of State argues that Mr. Librace's claims should be dismissed because he lacks standing, has alleged no injury in fact, and has failed to state a claim. (#7, #44) (relying on 28 U.S.C. § 1915(e); Fed. R. Civ. P 12(b)(1), 12(b)(2), and 12(b)(6)). Separate defendants have also moved to dismiss, arguing that Mr. Librace has failed to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (#33, #40) For the reasons set forth below, Mr. Librace's claims against all of the Defendants should be dismissed because he lacks standing and has failed to state a federal claim for relief.

         III. Analysis:

         A. Standing

         An assertion that a claim arises under federal law does not in itself establish jurisdiction. Rather, a plaintiff must also establish standing to bring the claim. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Standing is a jurisdictional issue that cannot be waived. Sierra Club v. Robertson, 28 F.3d 753, 757 n.4 (8th Cir. 1994). To establish standing, a plaintiff must show that he suffered an injury in fact that is fairly traceable to the conduct of the defendant and that the injury is likely to be redressed by a favorable judgment. Lujan, 504 U.S. at 560-61, see also Demien Constr. Co. v. O'Fallon Fire Prot. Dist., 812 F.3d 654, 656 (8th Cir. 2016). Mr. Librace has not demonstrated that he has standing to bring this case.

         “A citizen's right to a vote free of arbitrary impairment by state action has been judicially recognized as a right secured by the Constitution, when such impairment resulted from dilution by a false tally, or by a refusal to count votes from arbitrarily selected precincts, or by a stuffing of the ballot box.” Baker v. Carr, 369 U.S. 186, 208 (1962) (internal citations omitted). Mr. Librace has demonstrated none of these impairments.

         Importantly, Mr. Librace has not asserted that he is a registered voter or even that he voted in the November 6, 2018 election. In his response to the Defendants' motions to dismiss, Mr. Librace raised for the first time that he was a mayoral candidate in Helena-West Helena, but he still has not asserted that he voted or that his vote was not fairly counted. (#46) He does not identify a single other voter whose vote was not counted, a fraudulent provisional vote that was counted, or any specific allegations of known fraud. And, as for the alleged election irregularities, Mr. Librace has not demonstrated that any of the defendants verified fraudulent election results. Rather, relying exclusively on comments in a newspaper article, Mr. Librace asserts that he and ...


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