United States District Court, E.D. Arkansas, Eastern Division
RECOMMENDED DISPOSITION
I.
Procedure for Filing Objections:
This
Recommended Disposition (âRecommendationâ) 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 ...