United States District Court, D. Arizona
ORDER
Honorable Diane J. Humetewa, United States District Judge.
This
matter is before the Court on the following Motions:
Plaintiffs' Motion for Preliminary and Permanent
Injunctions (Doc. 14); Plaintiffs' Motion to Consolidate
Trial on the Merits with a Hearing on the Motion for
Preliminary and Permanent Injunctions (Doc. 16); and
Defendants' Motion to Dismiss the First Amended Complaint
(Doc. 21). The matters are fully briefed.[1] The Court held
oral argument on the Motion to Dismiss and the Motions for
Preliminary and Permanent Injunction on April 12, 2019, and
took this matter under advisement. Plaintiffs subsequently
filed a Motion for Status Conference.[2] (Doc. 65). On June 20, 2019,
Plaintiffs filed a Notice of Appeal. (Doc. 68). Plaintiffs do
not appeal an Order of this Court, but contend they are
appealing an “effective denial of Plaintiffs'
Motion” for Preliminary and Permanent Injunction.
(Id.).[3]
Plaintiffs
request the Court to declare unconstitutional an Arizona
statute that establishes the procedures for appointment to
the United States Senate when a vacancy in that office
arises, arguing that the statute violates the Seventeenth
Amendment to the Constitution.
I.
Background[4]
United
States Senator John S. McCain III died on August 25, 2018,
leaving vacant an Arizona Senate seat he had held for over
thirty years. Senator McCain was re-elected to a six-year
term on November 8, 2016, a term scheduled to end on January
3, 2023. The next scheduled general election for that seat
was to be held in November of 2022. On September 4, 2018,
Arizona Governor Doug Ducey appointed former Senator Jon Kyl
to the vacant seat. On September 5, 2018, Governor Ducey
issued a writ of election pursuant to A.R.S. § 16-222
(“Section 16-222” or “the Statute”)
setting the dates of the special elections to fill the
remainder of the term: a primary election to be held on
August 25, 2020, and a general election to be held on
November 3, 2020. The individual elected in the 2020 general
election will serve out the term's remaining two years.
Senator Kyl resigned his seat effective December 31, 2018,
and Governor Ducey then appointed Representative Martha
McSally, who presently occupies the seat.[5]
Plaintiffs
are a group of registered Arizona voters, comprising an
Independent, two Democrats, a Libertarian, and a Republican.
(Doc. 13 at 3). Plaintiffs filed their original Complaint
(Doc. 1) along with a Motion for a Preliminary Injunction or
in the Alternative for a Permanent Injunction (Doc. 2) on
November 28, 2018. Those pleadings sought “an order
directing the defendant Governor to issue a writ of election
as required by the Seventeenth Amendment to fill the current
vacancy in Arizona's representation in the Senate.”
(Doc. 1 at 2). On December 12, 2018, Plaintiffs filed a
Motion to Amend their Complaint, and also withdrew their
initial Motion for Injunction. (Doc. 11). Plaintiffs then
filed a renewed Motion for Preliminary and Permanent
Injunction and a First Amended Complaint (“FAC”),
alleging three claims: (1) 42 U.S.C. § 1983
(“Section 1983”) deprivation of the right to vote
under the Seventeenth Amendment; (2) Section 1983 violation
of the Elections Clause and Seventeenth Amendment; and (3)
Section 1983 violations of the Elections Clause,
Qualifications Clause and the First Amendment. (Doc. 13). The
FAC acknowledged that Governor Ducey had issued a writ of
election on September 5, 2018, and that requested relief was
removed from Plaintiffs' complaint. (Doc. 13). Defendants
seek dismissal of Plaintiffs' FAC, arguing that
Plaintiffs have failed to state a claim on Counts One and Two
of their FAC, and that they do not have standing to assert
Count Three. (Doc. 21). For reasons that will become clear,
the Court will first analyze Defendants' Motion to
Dismiss.
II.
Motion to Dismiss Legal Standards
Under
Fed.R.Civ.P. 12(b)(6), a district court must dismiss a
complaint if it fails to state a claim upon which relief can
be granted. To survive a Rule 12(b)(6) motion to dismiss, the
plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim
is facially plausible when the plaintiff pleads facts that
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). There must be “more than a sheer
possibility that a defendant has acted unlawfully.”
Id. In other words, while courts do not require
“heightened fact pleading of specifics, ” a
plaintiff must allege facts sufficient to “raise a
right to relief above the speculative level.” See
Twombly, 550 U.S. at 555.
Establishing
the plausibility of a complaint's allegations is
“context-specific” and “requires the
reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. Although a
plaintiff's specific factual allegations may be
consistent with a plaintiff's claim, a district court
must assess whether there are other “more likely
explanations” for a defendant's conduct such that a
plaintiff's claims cross the line “from conceivable
to plausible.” Id. at 680-81 (quoting
Twombly, 550 U.S. at 570). This standard represents
a balance between Rule 8's roots in relatively liberal
notice pleading and the need to prevent “a plaintiff
with a largely groundless claim” from
“‘tak[ing] up the time of a number of other
people, with the right to do so representing an in
terrorem increment of settlement value.'”
Twombly, 550 U.S. at 557-58 (quoting Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347
(2005)).
Before
proceeding to the analysis on the Motion to Dismiss and
Motion for Preliminary and Permanent Injunction, the Court
must consider other legal standards.
III.
Seventeenth Amendment[6]
The
U.S. Constitution grants powers to the states to fill
vacancies in the U.S. Senate that may occur as a result of
death, resignation, or removal from office. The Seventeenth
Amendment to the Constitution governs the procedure for
filling vacancies that arise in the Senate. U.S. Const.
amend. XVII. The Amendment states, in relevant part:
When vacancies happen in the representation of any state in
the Senate, the executive authority of such state shall issue
writs of election to fill such vacancies: Provided, that the
legislature of any state may empower the executive thereof to
make temporary appointments until the people fill the
vacancies by election as the legislature may direct.
U.S. Const. amend. XVII.
Unlike
the procedure for filling vacancies in the U.S. House of
Representatives, which can be filled only by special
election, the Seventeenth Amendment gives the state
legislatures the authority to establish procedures for
filling vacancies in the Senate. U.S. Const. amend. XVII. If
a vacancy occurs for any reason, such as a senator's
death, resignation, or expulsion, the Seventeenth Amendment
permits state legislatures to empower the governor to appoint
a replacement until a special election can take place.
Id. Since ratification of the Seventeenth Amendment
in 1913, all fifty states have enacted legislation on the
matter.[7] The majority of the states allow the
governor to make a temporary appointment pending a special
election.[8]
Article
I, Section 4, often referred to as the Elections Clause,
grants the individual states the power to determine the
“Times, Places and Manner of holding Elections for
Senators and Representatives, ” subject to conflicting
federal law. U.S. Const. art. I, § 4; see also Wash.
State Grange v. Wash. State Republican Party, 552 U.S.
442, 451 (2008) (“The States possess a broad power to
prescribe the Times, Places, and Manner of holding Elections
for Senators and Representatives.”). Based on the
authority granted to it by the Seventeenth Amendment, in
conjunction with the Elections Clause, the Arizona
Legislature passed a statute outlining the procedures for
filling vacancies in the U.S. Senate. Section 16-222(c)
states:
For a vacancy in the office of United States senator, the
governor shall appoint a person to fill the vacancy. That
appointee shall be of the same political party as the person
vacating the office and, except as provided in subsection D
of this section, shall serve until the person elected at the
next general election is qualified and assumes office.
Section 16-222(d) states that:
If a vacancy in the office of United States senator occurs
more than one hundred fifty days before the next regular
primary election date, the person who is appointed pursuant
to subsection C of this section shall continue to serve until
the vacancy is filled at the next general election.
If a vacancy in the office of United States senator occurs
one hundred fifty days or less before the next regular
primary election date, the person who is appointed shall
serve until the vacancy is filled at the second regular
general election held after the vacancy occurs, and the
person elected shall fill the remaining unexpired term of the
vacated office.
A.R.S. § 16-222(d).
Senator
McCain died on August 25, 2018, three days prior to the
primary election scheduled for August 28, 2018. Therefore,
the initial vacancy occurred “one hundred fifty days or
less before the next regular primary election date.”
Pursuant to Section 16-222, Governor Ducey appointed former
Senator Jon Kyl to fill the vacant seat and issued a writ of
election for the vacancy, to occur at the next general
election on November 3, 2020. Senator Kyl resigned the seat
effective December 31, 2018, creating another vacancy.
Governor Ducey appointed Martha McSally to fill that vacancy,
and pursuant to the Statute, she “shall continue to
serve until the vacancy is filled at the next general
election.”[9]
IV.
Analysis
Plaintiffs'
renewed Motion for Preliminary and Permanent
Injunction[10] asks this Court to order the
“Governor of Arizona to issue a writ of election that
will call a special election, at the earliest reasonably
practicable date but not longer than one year, ” from
the date of Sen. McCain's death. (Doc. 14 at 2).
Plaintiffs' FAC contains three counts alleging: (1)
Section 1983 deprivation of the right to vote under the
Seventeenth Amendment; (2) Section 1983 violation of the
Elections Clause and Seventeenth Amendment; and (3) Section
1983 violations of the Elections Clause, Qualifications
Clause and the First Amendment. (Doc. 13). Plaintiffs also
seek the Court to “retain continuing jurisdiction of
this case for other relief that may be appropriate to ensure
a special election consistent with the rights of plaintiffs
as declared above.” (Id.). For their requested
injunctive relief, Plaintiffs request the Court to order the
Governor to “issue a writ of election that will call a
special election, at the earliest reasonably practicable date
but in not longer than one year.” (Doc. 14 at 2) (sic).
Plaintiffs' memorandum of law in support of their Motion
for injunctive relief largely mirrors the relief sought in
the FAC.
At the
hearing, the Court asked Plaintiffs what specific relief they
were seeking. Counsel for Plaintiffs stated that they were
asking for the Court to declare: (1) that the 27-month
appointment is unconstitutional as it exceeds a
“temporary” appointment pursuant to the
Seventeenth Amendment and that, “by waiting more than
one congressional term to fill the vacancy by election,
” the Statute violates the Constitution; (2) that
Section 16-222's requirement that the executive
“shall” appoint someone to a vacancy be declared
unconstitutional so that the executive would have the option
to hold a special election immediately; and (3) that the
“same political party” requirement in Section
16-222 is unconstitutional. (Doc. 61).
A.
Standard of Review
As an
initial matter, the Court must determine what standard of
review to apply to the Constitutional issues raised in this
case. Plaintiffs argue that, in application, Section 16-222
imposes a severe restriction on their right to vote, and thus
strict scrutiny applies to the Defendants' justifications
for “delaying” the special election.
Defendants argue that the Statute imposes reasonable and
nondiscriminatory restrictions on the Plaintiffs' First
and Fourteenth Amendment rights to vote and thus they are not
required to show the Statute is narrowly tailored to advance
a compelling state interest. (Doc. 21 at 4-5).
1.
Legal Standards
Individuals
have a protected right to vote under the First and Fourteenth
Amendments to the Constitution. Indeed, “voting is of
the most fundamental significance under our constitutional
structure.” Illinois Bd. of Elections v. Socialist
Workers Party, 440 U.S. 173, 184 (1979). “These
associational rights, however, are not absolute and are
necessarily subject to qualification if elections are to be
run fairly and effectively.” Munro v. Socialist
Workers Party, 479 U.S. 189, 193 (1986). As to the right
to vote, the Supreme Court has noted that the Constitution
“does not confer the right of suffrage upon any one,
” Minor v. Happersett, 88 U.S. 162, 178
(1874), and that “the right to vote, per se,
is not a constitutionally protected right.” San
Antonio Independent School Dist. v. Rodriguez, 411 U.S.
1, 35, n.78 (1973). For instance, states retain “broad
power to prescribe the Times, Places and Manner of holding
Elections for Senators and Representatives.”
Tashjian v. Republican Party of Conn., 479 U.S. 208,
217 (1986) (internal citation omitted). However, a
state's broad “power is not absolute.”
Wash. State Grange, 552 U.S. at 451.
Therefore,
there must be a balance between the right of the state to
manage its elections and the right of the individual to vote.
Id. The standard of review for laws regulating a
person's First and Fourteenth Amendment rights to vote
was analyzed by the Supreme Court in Burdick v.
Takushi, 504 U.S. 428 (1992). There, the Supreme Court
held that states “must play an active role in
structuring elections, ” and that “[e]lection
laws will invariably impose some burden upon individual
voters.” Id. at 433. “Consequently, not
every voting regulation is subject to strict scrutiny.”
Pub. Integrity All., Inc. v. City of Tucson, 836
F.3d 1019, 1024 (9th Cir. 2016). Rather, “a more
flexible standard applies.” Id. (quoting
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
“A court considering a challenge to a state election
law must weigh ‘the character and magnitude of the
asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to
vindicate' against ‘the precise interests put
forward by the State as justifications for the burden imposed
by its rule,' taking into consideration ‘the extent
to which those interests make it necessary to burden the
plaintiff's rights.'” Id. Courts
“have repeatedly upheld as ‘not severe'
restrictions that are generally applicable, evenhanded,
politically neutral, and protect the reliability and
integrity of the election ...