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Voters Organized for Integrity of Elections v. Baltimore City Elections Board

United States District Court, D. Maryland

October 13, 2016

VOTERS ORGANIZED FOR THE INTEGRITY OF ELECTIONS et al., Plaintiffs
v.
BALTIMORE CITY ELECTIONS BOARD et al., Defendants

          MEMORANDUM

          James K. Bredar, United States District Judge

         I. Background

         The organization entitled Voters Organized for the Integrity of City Elections (“VOICE”), along with six individuals-Hassan Giordano, Cortly D. Witherspoon, Dwayne Benbow, William T. Newton, Donald Morton Glover, and Charlie Metz-filed this lawsuit on June 1, 2016, against the Baltimore City Elections Board (“City Board”), Armstead B.C. Jones, Sr., the Maryland State Board of Elections (“State Board”), and Linda H. Lamone.[1] Plaintiffs seek invalidation of the April 26, 2016, primary election (“Primary”) in Baltimore City, appointment of federal observers, and other relief. (Compl., ECF No. 1.) Pending before the Court is Defendants' motion to dismiss (ECF No. 10), which has been briefed (ECF Nos. 11 and 12) and is ready for decision. No hearing is necessary. Local Rule 105.6 (D. Md. 2016). The motion will be granted.

         II. Standard of Dismissal for Failure to State a Claim

         A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' . . . Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

         III. Allegations of the Complaint

         VOICE is alleged to be a voluntary “watchdog” association of Baltimore voters from various political backgrounds and party affiliations “who are collectively concerned about the lack of (a) integrity in the City election process and (b) the public's ability to have confidence in city election results.” (Am. Compl. ¶ 4.) The individual Plaintiffs, with one exception, are registered Democratic voters in Baltimore; the one who is not is Plaintiff Newton, who is a Republican voter in Baltimore County, and who unsuccessfully ran for the Republican nomination for the Seventh Congressional District, which encompasses part of Baltimore County and part of Baltimore City; Newton lost his bid by 45 votes. (Id. ¶¶ 5-10.) Newton and Metz are Caucasian, while the other individual Plaintiffs are African-American. (Id.) Metz ran for the Democratic nomination for the Tenth Councilmanic District in Baltimore and lost by 130 votes. (Id. ¶ 8.) Giordano, Witherspoon, Benbow, Glover, and Metz cast votes in the Primary (Benbow voted via provisional ballot). (Id. ¶¶ 41, 61, 62, 65, 78, 85.)

         About the Primary, Plaintiffs allege the City Board “conducted and completed a Primary election process that was fraught with so many errors, omissions and irregularities that it produced seriously questionable results that are unable to be reconciled.” (Id. ¶ 14.) Plaintiffs fault the use of a paper ballot system, the machinery implementing the system, the lack of training given to election judges, “and the humongous number of irregularities, inclusive of misinformation, and illegal activity arising out of at least one candidates [sic] bid for office”; they claim the result from these problems was a violation of the Fourteenth Amendment and Fifteenth Amendment rights of all Plaintiffs and the First Amendment rights of the two candidate Plaintiffs. (Id. ¶ 16.)

         Plaintiffs claim that both the African-American votes and the Caucasian votes were “diluted and/or suppressed.” (Id. ¶ 19.) They also implicitly allege that jurisdictions with greater numbers of Caucasian voters carried a lower risk than the City, whose population is 63.7% African-American (id. ¶ 17), of votes not being counted. (Id. ¶ 20.) They further claim “that the ‘probabilistic injury' as herein alleged is enough injury in fact to confer standing in the undemanding Article III sense.” (Id. ¶ 21.) They contend their case presents violations of the Equal Protection Clause (id. ¶ 17), the Voting Rights Act (id. ¶ 22), and Maryland state election laws (id. ¶ 24).

         Specific problems alleged include a failure of some election judges to show for work, late opening of some polling places, misinformation given to voters about their voting precincts, voters' ability to cast regular ballots (perhaps, more correctly, inability to cast regular ballots), failure of some election judges to respect voters' right to vote secretly, inadequate supply in some polling places of provisional ballots, some election returns not being accounted for on election night because of missing thumb drives, some Baltimore County voters voting in the City's mayoral primary, some ballots having blanks for the wrong councilmanic districts, the counting of provisional ballots, a letter wrongly advising some three dozen ex-offenders they could not register to vote, 1, 100 more votes counted than the number of voters deemed qualified to vote, belated opening to the public of the State Board's vote reconciliation process, and the small number of precincts found not to have discrepancies between number of registered voters and number of votes cast compared to the much greater number of precincts with discrepancies. (Id. ¶¶ 29-55.) After the State Board initially decertified the election results and conducted its review (id. ¶ 46), the City Board recertified the results

despite the factual data showing that: (a) some 1, 188 votes cast were not guaranteed to have been cast by legitimate Baltimore City voters, (b) around 1685 provisional ballots were mishandled and 2, 379 ballots were disqualified for voting in the wrong Primary, and (c) the overwhelming evidence that many potential voters had been adversely affected by the handling of the Primary by either being (i) turned away, (ii) misinformed, (iii) ill-advised, or (iv) not properly instructed on the voting systems, process, machinery, and/or procedures, by City officials and poorly trained election judges.

(Id. ¶ 57.)

         Plaintiffs also make allegations specific to each individual Plaintiff. They allege as to Giordano, “Given the fact that over 1, 188 votes that were counted, but not properly vetted to determine whether they were cast by eligible voters, Giordano's vote was more likely than not diluted by the staggering number of irregularities that plagued the April 26, 2016, primary election . . . .” (Id. ¶ 61.) As to Witherspoon, Plaintiffs allege he voted in the 7th councilmanic district “where poorly trained election judges presided” (¶ 62) and “where at least one of the eight thumb drives containing ballot results was lost and never recovered. Based upon all of the irregularities . . ., Witherspoon's vote was likely diluted . . . .” (id. ¶ 64).[2] Next, Plaintiffs allege Glover voted in the 9th councilmanic district “where poorly trained election judges presided” and, further, where he “observed a mayoral campaign worker attempting to intimidate his neighbor”; Glover “collected information from [the neighbor's] daughter . . . who alleged that she and many other residents were recruited to vote for a particular mayoral candidate in exchange for $50.00 - $100.00.” (Id. ¶ 65.) Similarly to Giordano, Glover's vote was allegedly “more likely than not diluted” because of the “over 1, 188 votes that were counted, but not properly vetted.” (Id. ¶ 67.) Also, “[t]he offer of jobs and payment diluted the vote of Glover and other citizens who were not paid to vote.” (Id. ¶ 71.)

         Regarding Newton, who unsuccessfully ran for a seat in Congress, Plaintiffs allege the irregularities make the outcome of his race “substantially disputable.” (Id. ¶ 72.) Additionally, they allege, “The vote buying scheme was solely aimed at minority voters, which had the impact of diluting the minority voting support of Newton and other Caucasian candidates.” (Id. ¶ 74.) Also, Plaintiffs allege,

The various facts set forth above impaired Newton's First Amendment rights to run an unfettered campaign for office. The act of certifying an election with a grossly inaccurate tabulation and report of votes cast for Newton, imposed severe burdens on . . . ...

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