Tedards v. Ducey

          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 ...