Memo of Law to Notice of Motion - Doc 7

7/31/2019 Memo of Law to Notice of Motion - Doc 7

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Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss Complaint

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............................................................................... ii

INTRODUCTION ............................................................................................... 1

STATEMENT OF THE CASE ........................................................................... 1

A. The Republican Party Presidential Nominating Process ................ 1

B. Procedures for Resolving Disputes Concerning Delegates ............ 3

C. The Complaint ................................................................................. 4

I. THIS CASE SHOULD BE DISMISSED BECAUSEPLAINTIFFS HAVE NOT PLAUSIBLY ALLEGEDANY VIOLATIONS OF FEDERAL LAW ............................................. 5

II. PLAINTIFFS HAVE NOT PLED FRAUDWITH THE REQUISITE PARTICULARLITY ....................................... 10

III. THIS COURT SHOULD DISMISS PLAINTIFFS’CHALLENGES TO THE DELEGATE SELECTIONPROCESS AND ALLEGED VIOLATIONS OF PARTYRULES IN VARIOUS STATE CONVENTIONS ................................... 12

IV. PLAINTIFFS ARE NOT ENTITLED TO HAVE DELEGATES TOTHE REPUBLICAN NATIONAL CONVENTION BE “UNBOUND”AND FREE TO IGNORE THE RESULTS OF THEIR STATES’PRESIDENTIAL PREFERENCE PRIMARY ELECTIONS .................. 15

CONCLUSION .................................................................................................... 20

Case 8:12-cv-00927-DOC-JPR Document 7-2 Filed 07/05/12 of 26 Page ID #:151



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TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal¸

556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) .................... passim

Bell Atlantic Corp. v. Twombly,550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ..................... passim

Bell v. Univ. of Cal. Davis Med. Ctr., No. CIV S-11-1864(MCE) (DAD) (PS), 2012 U.S. Dist. LEXIS 52577(E.D. Cal. Apr. 12, 2012) .............................................................................. 10

Bly-Magee v. Cal.,

236 F.3d 1014 (9th Cir. 2001) ............................................................ 6, 11, 12

California Democratic Party v. Jones,530 U.S. 567, 120 S. Ct. 2402, 147 L. Ed.2d 502 (2000) ............................ 14

Cousins v. Wigoda,419 U.S. 477, 95 S. Ct. 541, 42 L. Ed. 2d 595 (1975) ............................ 14, 15

Crockett v. California, No. CV 12-1741-DOC (SP),2012 U.S. Dist. LEXIS 81412 (C.D. Cal. May 22, 2012) ............................ 10

Democratic Party of United States v. Wisconsin,450 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 (1981) .......................... 13, 14

Ebeid v. Lungwitz,

616 F.3d 93 (9th Cir. 2010) ........................................................................... 11 Eu v. San Francisco Cnty. Democratic Cent. Comm.,

489 U.S. 214, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989) ............................ 14

Morse v. Republican Party of Virginia,517 U.S. 186, 116 S. Ct. 1186, 134 L. Ed. 2d 347 (1985) ..................... 17, 18

N.Y. State Board of Elections v. Lopez Torres,552 U.S. 196, 128 S. Ct. 791, 169 L. Ed. 2d 665 (2008) ...................... 14 – 16

O’Brien v. Brown,409 U.S. 1, 92 S. Ct. 2718, 34 L. Ed. 2d 1 (1972) ........................... 14, 16, 19

Ossenberg v. Hunter , No. SA CV 10-957-DOC(E),2010 U.S. Dist. LEXIS 70485 (C.D. Cal. July 8, 2010) ............................... 10

Ray v. Blair ,343 U.S. 214, 72 S. Ct. 654, 96 L. Ed. 894 (1952) ................................. 20, 21

Republican State Cent. Comm. v. Ripon Soc’y, Inc.,409 U.S. 1222, 93 S. Ct. 1475, 34 L. Ed. 2d 717 (1972) .................. 15, 16, 19




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Savage v. Glendale Union High Sch. Dist.,343 F.3d 1036 (9th Cir. 2003) ........................................................................ 5

U.S. ex rel. SmithKline Beecham, Inc.,245 F.3d 1048 (9th Cir. 2001) ....................................................................... 12

William O. Gilley Enters. v. Atl. Richfield Co.,

588 F.3d 659, 667-68 (9th Cir. 2009) ............................................................. 9

FEDERAL CONSTITUTIONAL PROVISIONS

U.S. Const., amend XIV ............................................................................................ 1

U.S. Const., amend. XII ........................................................................................... 20

U.S. Const., art. II, § 1 ............................................................................................. 20

FEDERAL STATUTES

28 U.S.C. § 1331 ...................................................................................................... 19

42 U.S.C. § 1971 ...................................................................................... 6 -7, 17 - 18 42 U.S.C. § 1973c .................................................................................................... 18

STATE STATUTES

Ariz. Rev. Stat. §16-243(B) ....................................................................................... 3

Calif. Elec. Code, § 6461(c) ............................................................................................................ 3

Del. Code Ann. tit. 15, § 3107 ................................................................................... 3

N.H. Rev. Stat. Ann. § 659:93 ................................................................................... 3

N.H. Rev. Stat. Ann. § 655.51 ................................................................................... 3

N.M. Stat. 1-15A-9(C)(1) .......................................................................................... 3

Oregon Rev. Stat. § 248.315(3) ................................................................................. 3

RULES

Fed. R. Civ. P. 9(b) ........................................................................................... passim

Fed. R. Civ. P. 8(a) ........................................................................................... passim

Fed. R. Civ. P. 10(b) .................................................................................................. 7

Fed. R. Civ. P. 12(b)(6) ............................................................................................. 6

REGULATIONS

11 C.F.R. § 100.2(e) .......................................................................................... 17, 18

OTHER AUTHORITIES




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v


The Rules of the Republican Party (Aug. 6, 2010) .......................................... passim

Rules of the Republican Party of the State of Del., Art. XI, § 3................................ 3

Rules of the Republican Party of Texas, Rule 38, § 10 ............................................. 3




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1


INTRODUCTION

This lawsuit is a quixotic crusade for a court order allowing delegates to the

2012 Republican National Convention in Tampa, Florida (“Convention”), to be

held this upcoming August, to ignore the results of their respective states’

presidential preference primary elections and vote for whomever they wish as the

Republican nominee for President of the United States. See Compl. at 14-15, 25.

Plaintiffs also ask this Court to order that new state conventions be held in various

unspecified states throughout the country, because the delegate selection process at

those conventions allegedly was unfair, inaccurate, and executed in violation of

party rules. The extraordinary relief Plaintiffs seek would represent a dramatic and

unprecedented intrusion into the internal affairs of the Republican Party in direct

violation of the First and Fourteenth Amendments, see U.S. Const., amend XIV,

and is flatly contrary to over a half-century of established precedents.

This Court need not even reach that issue, however, because Plaintiffs’ vague

and rambling complaint wholly fails to state a valid cause of action within this

Court’s jurisdiction. The sweeping allegations that the thousands of named and

“John Doe” Plaintiffs make against the Republican National Committee (“RNC”)and nearly every state-level Republican party and Republican state committee chair

in the country do not even come close to satisfying the pleading requirements of

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929

(2007), and Ashcroft v. Iqbal¸ 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868

(2009). To the extent they allege that Defendants engaged in election-related fraud,

Plaintiffs have not even attempted to plead their claims with the particularity

required by Fed. R. Civ. P. 9(b).

STATEMENT OF THE CASE

A. The Republican Party Presidential Nominating Process

Every four years, the Republican National Committee (“RNC”) holds a

national convention at which delegates from throughout the nation convene to vote




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on the Republican Party’s candidates for President and Vice President of the United

States. See Compl., Ex. 2, The Rules of the Republican Party, R. 12, at 14. (Aug. 6,

2010) (hereafter, “ RNC Rules”). The RNC Rules provide a formula for calculating

the number of delegates each state is entitled to send to the Convention. Id . at R.

13, at 14-15. Every state is entitled to three types of delegates:

● Automatic delegates — The Republican National Committeeman, RepublicanNational Committeewoman, and chairman of the state Republican Party from eachstate automatically are named delegates to the Convention, id . at R. 13(a)(2), at 15;

● Congressional district delegates — Each state is entitled to select three“district delegates” for each congressional district it has in the U.S. House of Representatives, id . at R. 13(a)(3), at 15;

● At-large delegates —Each state also is entitled to 10 “at large delegates,” id .

at R. 13(a)(1), at 15, as well as additional “bonus” at-large delegates based onwhether that State supported the Republican nominee for President in the lastelection cycle, and the extent to which it has elected Republican candidates tovarious state and federal-level offices, id . at R. 13(a)(5)-(6), at 15-16.

Each state also may select one alternate delegate for each congressional

district delegate and at-large delegate to which it is entitled. Id at R. 13(b), at 16.

Special rules govern the allocation of delegates to the District of Columbia and U.S

territories, id . at R. 13(a)(4), at 15, R. 15(c)(6), at 21.

The RNC Rules provide that each state shall select its congressional district

and at-large delegates in accordance with the rules of the applicable Republican

state party and, to the extent it is compatible with the applicable state party rules,

state law. Id . R. 15(a)(1)-(3), at 18. Each state is free to decide how to select its

delegates and alternates to the national Convention, including by holding a primary

election, or holding congressional district and state conventions to select them. Id .

R. 15(c)(1)(i), (iii), at 19.Regardless of the selection method, at-large delegates

must be selected on a statewide basis, id . R.15(c)(8), at 21, while congressional

district delegates must be elected by their respective districts, id . R. 15(c)(9), at 21.

Crucially, the RNC Rules provide that either a state party or state law may

bind delegates to the National Convention to vote in accordance with the outcome




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of that state’s presidential preference primary election. Id . R. 15(a)(1)-(4), at 18,

R.15(c)(1)(i) at 19; see also R. 14(a) at 17. Consistent with Rule 15, many states

require delegates to a political party’s national convention to cast their votes for that

party’s nominee for President of the United States, at least on the first round of

balloting at the Convention, in accordance with the results of that state’s

presidential preference primary election. Some state laws and party rules provide

that the candidate who receives the plurality in the state’s presidential primary

election is entitled to have all the delegates from that state “bound” to him. See,

e.g., Ariz. Rev. Stat. §16-243(B); Del. Code Ann. tit. 15, § 3107 and Rules of the

Republican Party of the State of Del., Art. XI, § 3. Other state laws and party rules

provide that any candidate who receives a minimum percentage of the vote in that

state’s primary is entitled to have a proportional percentage of the delegates from

that state bound to him. See, e.g., N.M. Stat. 1-15A-9(C)(1); N.H. Rev. Stat. Ann.

§659:93. Some state laws and party rules reinforce these “binding” requirements by

requiring delegates to the national Convention to sign pledges affirming that they

will vote for the candidate to whom they are bound. See, e.g., Calif. Elec. Code, §

6461(c); Oregon Rev. Stat. § 248.315(3); N.H. Rev. Stat. Ann. § 655.51; Rules of the Republican Party of Texas, Rule 38, § 10.

B. Procedures for Resolving Disputes Concerning Delegates

The RNC Rules establish procedures through which aggrieved individuals

may challenge delegates’ elections. Challenges to congressional district delegates

from a particular state generally must be brought before either that state’s

convention or the state Republican committee. RNC Rules, supra R. 20, at 29. If,

however, the contest “arises of out of the irregular or unlawful action of the state

committee or state convention, the [RNC] may take jurisdiction thereof” and

resolve the contest. Id . All contests affecting at-large delegates must be resolved

by the RNC. Id

Any resident of a state who was eligible to participate in that state’s delegate




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selection process may file an election contest with the RNC against delegates or

alternates from that state. Id . R. 22(b), at 30. To initiate a contest, a petitioner must

file a notice with the Secretary of the RNC and send a copy to the challenged

delegate at least 30 days before the Convention. Id . R. 22(a), at 29. A few weeks

before the Convention, both the challenger and the challenged delegates or

alternates (collectively, “the parties”) must file “statement[s] of position,” along

with supporting affidavits and other evidence, with the RNC Secretary. Id . R.

23(b), at 30.

The RNC’s Committee on Contests shall “promptly” hear each contest,

identify the legal and factual issues involved, and prepare a report containing its

recommendations concerning those issues. Id . R. 23(c)-(d), at 31. The parties have

eight days to file written objections to the Contests Committee report. Id . R. 23(e),

at 31. The RNC then votes on whether to accept the Contests Committee’s

recommendations. Id . R. 23(c), (f), at 31-32.

If a party disagrees with the RNC’s determination, it may appeal that ruling

to the national Convention’s Credentials Committee. Id . R. 24(b), at 32.The

Credentials Committee must issue a report resolving any such disputes, which theConvention as a whole must vote to approve or reject. Id . R. 26(a), at 33; see also

id . R. 21, at 29. A person whose election as a delegate has been challenged before

the RNC generally may not vote in either the Convention or any committee of the

Convention until the contest is resolved. Id . R. 21, at 29.

C. Complaint

Because this is a Motion to Dismiss, Defendants must assume Plaintiffs’

factual allegations, to the extent they are intelligible, to be true. Savage v. Glendale

Union High Sch. Dist., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). Defendants, and

this court, need not so credit mere conclusory statements unsupported by well-

pleaded factual allegations. Iqbal, 556 U.S. at 677. Based on the Complaint, there

appear to be three main groups of plaintiffs:




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i. individuals who have been elected and certified as delegates to theConvention and will be credentialed as such, but wish to challenge state lawsor party rules binding them to vote, at least in the first round of balloting, fora particular candidate for the Republican nomination for President, see Compl. 17, 25 (hereafter, “Certified Plaintiffs”);

ii. individuals who received sufficient votes at a congressional district orstate convention to be elected as delegates to the national Convention, butwill not be credentialed, certified, or seated as delegates, because they refuseto pledge to cast their vote in accordance with the outcomes of theirrespective states’ presidential preference primary elections, as required bystate law or state party rules, see id . at 17, 25 (hereafter, “UncertifiedPlaintiffs”); and

iii. individuals who did not receive sufficient votes at a congressional districtor state convention to be elected as delegates to the national Convention, andcomplain that the delegate elections were not “fair,” were conducted inviolation of party rules or state law, or were tainted by fraud, id . at 17,25(hereafter, “Unelected Plaintiffs”).

Compl. at 14.

However inartfully, Plaintiffs seek a declaration that state laws and party

rules which “bind” delegates to the Republican National Convention to cast their

votes for the Republican Party’s nominee for President in accordance with the

results of those states’ respective presidential primary elections violate the federal

Voting Rights Act, 42 U.S.C. § 1971, and the Rules of the Republican National

Committee (“RNC”). Compl. at 15-16, 18. Plaintiffs also ask this Court to

impound all ballots and other voting-related materials from state conventions across

the country, id . at 18, so that this Court may recount them and decide whether to

require Defendants to hold new state conventions to elect different delegates to the

national Convention, id . at 27-28, ¶ 5.

I. THIS CASE SHOULD BE DISMISSED BECAUSE PLAINTIFFSHAVE NOT PLAUSIBLY ALLEGED ANY VIOLATIONS OF

FEDERAL LAW.Plaintiffs’ complaint fails to state a plausible claim f or relief under Fed. R.

Civ. P. 8(a) and should therefore be dismissed.1 Plaintiffs’ sole intelligible claim

under federal law, that Defendants have somehow violated the Voting Rights Act,

1A motion to dismiss for failure to meet the pleading requirements of either Rule 8(a) or 9(b) is,

technically, a motion to dismiss for failure to state claim upon which relief can be granted underFed. R. Civ. P. 12(b)(6). Bly-Magee v. Cal., 236 F.3d 1014, 1018 (9th Cir. 2001).

Case 8:12-cv-00927-DOC-JPR Document 7-2 Filed 07/05/12 of 26 Page ID#:159



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42 U.S.C. § 1971 (the “VRA”), is supported by little more than sweeping

conclusory allegations masquerading as factual allegations. Because Plaintiff’s

VRA claim is unsupported by plausible factual allegations, this Court should

dismiss Plaintiff’s complaint under Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007), and Ashcroft v. Iqbal¸ 556 U.S. 662 (2009).

Under Fed. R. Civ. P. 8(a)(2) a pleading must contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” While this

pleading standard does not require “detailed factual allegations,” Twombly, 550

U.S. at 555, it does require “more than an unadorned the-defendant-harmed-me

accusation.” Iqbal, 556 U.S. at 678. Simply put, in order to survive a motion to

dismiss, a complaint “must contain sufficient factual matter, accepted as true, to

‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550

U.S. at 570). This plausibility standard requires more than a “sheer possibility that

a defendant has acted unlawfully.” Id. Indeed, where a complaint pleads facts

“merely consistent with” the defendant’s liability, it “stops short of the line between

possibility and plausibility of entitlement to relief” required by Rule 8(a).

Twombly, 550 U.S. at 557; see also Iqbal, 556 U.S. at 679. Furthermore, “the tenetthat a court must accept as true all of the allegations contained in a complaint is

inapplicable to legal conclusions.” Twombly, 550 U.S. at 557.

To state a claim under the VRA, Plaintiffs must allege that Defendants acted,

or attempted, to “intimidate, threaten, [or] coerce” Plaintiffs for the purpose of

interfering with Plaintiffs’ right to vote as they choose for President in any primary,

general, or special election.42 U.S.C. § 1971. Hence, Plaintiffs must “plead

sufficient factual matter” to show that [Defendants] intimidated, threatened or

coerced Plaintiffs for the purpose of interfering with Plaintiffs’ right to vote for

their choice for President. Iqbal, 556 U.S. at 677.

A court considering a motion to dismiss “can choose to begin by identifying

pleadings [within the complaint] that, because they are no more than conclusions,




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are not entitled to the assumption of truth.” Id. So too here; Plaintiffs’ complaint is

a virtual litany of conclusory statements which should not be assumed to be true

under Twombly and Iqbal:

Plaintiffs include “. . .Delegates elected, but being denied certificationdue to their refusal to surrender their voting rights in accordance withthe free exercise of their conscience and not be bound to the nomineeof Defendant’s [sic] choice.” Comp. p. 14, lines 10-13.

2

Defendants have intentionally violated Federal Laws [sic] andSupreme Court Decisions [sic] by seeking to bind Delegates to theCandidate [sic] of Defendants’ [sic] choice and these Defendants haverefused to follow Federal Law [sic].” Comp. p. 16, lines 15-18.

“. . . in almost every state in the United States Defendants engaged in ascheme to intimidate and harass Delegates who were supporting aCandidate [sic] that Defendants did not approve of.” Comp. p. 17,

lines 3-5. “Defendants have further harassed and intimidated Plaintiffs with

untimely Rule [sic] changes designed to deny a quorum or tomanipulate Delegates supporting a particular Candidate to be deprivedof a fair election as a Delegate.” Comp. p.17, lines 11-13.

“Defendants have unlawfully used State Bylaws [sic] and in somecases State Laws [sic] to harass and intimidate Delegates from votingtheir conscience.” Comp. p. 17, lines 17-18.

“Defendants have altered the voting ballot results to fraudulentlyreflect an outcome that is inconsistent with the actual voting ballot

results for the purpose of certifying a fraudulently selected slate of Delegates. . .” Comp. p. 17, lines 24-26.

Every one of these statements is precisely the sort of bare assertion of

illegality disregarded by the Court in Twombly and Iqbal. As in those cases, “[i]t is

the conclusory nature of [the] allegations, rather than their extravagantly fanciful

nature, that disentitles them to the presumption of truth.” Iqbal, 556 U.S. at 681.

The court should therefore strip these conclusory statements from Plaintiffs’

complaint before evaluating its sufficiency under Rule 8(a).

Though the conclusory statements catalogued above form the lion’s share of

the pleadings in Plaintiffs’ complaint, some factual allegations remain. Under

2 Because Plaintiffs did not format their Complaint with numbered paragraphs as required by Fed.R. Civ. P. 10(b), Defendants cite to allegations by their location on certain pages of the complaint.




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Twombly and Iqbal, because these remaining factual allegations are consistent with

both a vast conspiracy to disenfranchise Plaintiffs and the “obvious alternative

explanation”— that Defendants lawfully sought to vindicate their legitimate interest

Plaintiffs’ observation of party rules and procedures—Plaintiffs’ allegations do not

plausibly suggest an entitlement to relief. Twombly, 550 U.S. at 567. These

allegations include:3

Defendants’ harassment of Plaintiffs “included the use of violenceintimidating demands that Delegates sign affidavits under penalty ofperjury with the threat of criminal prosecution for perjury as well asfinancial penalties and fines if the Delegate fails to vote as instructed by Defendants rather than vote the Delegate’s conscience as mandated by the US Statutes [sic] and US Supreme Court Decisions [sic] cited.”Comp. p. 17, lines 5-10.

Defendants used “threats of violence including dressing security typepeople in dark clothing searching out supporters of a CandidateDefendants do not approve of [sic] to harass and intimidate saidDelegates from voting their conscience.” Comp. p. 17, lines 14-16.

“. . . the RNC and its Chairman are . . . promoting and toleratingefforts to bind Delegates to a particular candidate instead of protectingDelegates from the intimidation Delegates are being subjected to. . . .”Comp. p. 24, lines 12-15.

“The Republican National Committee and State Republican Parties[sic] have intimidated all Delegates to become bound to one candidate

. . . .” Comp. p. 24, lines 24-27.

“Many Delegates are required to sign Affidavits [sic] under Penalty ofPerjury [sic] declaring the Delegate agrees to be bound to onecandidate.” Comp. p. 25, lines 1-2.

“Fines and criminal prosecutions are threatened against Delegates ifthey fail to vote as told rather than vote their conscience.” Comp. p25, lines 2-4.

“Delegates who refuse to sign the Affidavit are told they may not serveas Delegates. . . .” Comp. p. 25, lines 5-6

“Certain Delegates have already been denied their credentials becausethey will not sign such an affidavit.” Comp. p. 25, lines 7-8.

“Plaintiffs are suffering irreparable harm because their right to vote inaccordance with their conscience on the first and all ballots of theConvention is being impeded by threats of monetary fines, criminalsanctions, and/or removal from their status as a Certified Delegate [sic]

3 Plaintiffs make other allegations consistent with — but insufficient to state — a claim for electionfraud. These are address in Section II, infra.




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to participate in the Convention unless they submit to State PartyRules, State Laws, [sic] or the demands of political operativesrequiring signatures on affidavits promising to be bound to a particularcandidate under penalty of perjury, all in violation of U.S. FederalStatutes [sic] and Supreme Court Rulings [sic].” Comp. p. 26, lines11-18.

While a generous reading of these pleadings may permit the court to infer the

possibility of intimidation, threats or coercion in violation of the VRA, they do not

render such violations of the VRA plausible. See Iqbal at 679 (“wher e the well-

pleaded facts do not permit the court to infer more than the mere possibility of

misconduct, the complaint has alleged —but it has not ‘shown’ – ‘that the pleader is

entitled to relief.’”); see also William O. Gilley Enters. v. Atl. Richfield Co., 588

F.3d 659, 667-68 (9th Cir. 2009) (dismissing Sherman Act conspiracy claims

noting the complaint’s claims of a vast conspiracy “are not in keeping with the

spirit of Twombly.”)

This case involves 122 named plaintiffs, over 110 named defendants, and a

host of unnamed defendants. The Complaint broadly refers to various state

conventions, delegate bindings, and numerous other independent events that all

involved different people and occurred at different times, in different places aroundthe country. These overbroad allegations are woefully insufficient to give any of

the defendants even general notice as to the specific claims being raised against

each of them. “Although the Federal Rules of Civil Procedure adopt a flexible

pleading policy, a complaint must give the defendant fair notice of the plaintiff's

claims and must allege facts that state the elements of each claim plainly and

succinctly.” Bell v. Univ. of Cal. Davis Med. Ctr., No. CIV S-11-1864 (MCE)

(DAD) (PS), 2012 U.S. Dist. LEXIS 52577, at *4 (E.D. Cal. Apr. 12, 2012).

Particularly where a complaint “names over a dozen defendants,” it is subject

to dismissal if it “fails to identify any individual defendant or defendants when

referring to specific causes of action and the actions allegedly taken against [the

plaintiff].” Id .; see also Crockett v. California, No. CV 12-1741-DOC (SP), 2012




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U.S. Dist. LEXIS 81412, at *20 (C.D. Cal. May 22, 2012) (dismissing complaint

and noting that, “because plaintiff has failed to allege a single fact regar ding any

defendant individually, it is impossible for the court to be certain what plaintiff

intends.”); Ossenberg v. Hunter , No. SA CV 10-957-DOC(E), 2010 U.S. Dist.

LEXIS 70485, at *6 (C.D. Cal. July 8, 2010) (dismissing complaint because it

“does not clearly allege what each Defendant allegedly did or did not do to harm

Plaintiff”).

As discussed below, the RNC, the state parties and their members, like all

political parties, enjoy broad freedom of association under the First and Fourteenth

Amendments to the Constitution, including the right to choose the party’s

presidential candidate in a manner the party determines best. It should come as no

surprise that, consistent with this freedom, some state parties have chosen to bind

their delegates to the Republican National Convention to reflect the results of

caucuses, straw polls and/or primary elections. On the facts alleged by Plaintiffs,

the actions attributed to unspecified persons were likely lawfully undertaken by

members of the Republican Party seeking to ensure that persons elected as

delegates followed party rules and procedures. As between this “obviousalternative explanation” for the actions attributed to unspecified Defendants and the

“purposeful, invidious” and illegal activities Plaintiff s ask the court to infer, that

Defendants violated the VRA is simply not a plausible contention. Iqbal, 556 U.S.

at 682. Hence, the Complaint fails to plausibly state a claim for violation of the

VRA under Rule 8(a), and it should therefore be dismissed.

II. PLAINTIFFS HAVE NOT PLED FRAUD

WITH THE REQUISITE PARTICULARLITY

In addition to their claim under the VRA, Plaintiffs’ Complaint also can be

read — generously — to allege that Defendants have engaged in election fraud. To

the extent the court finds the Complaint makes such an allegation, these allegations

must not only meet the pleading requirements under Rule 8, but also must satisfy




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the heightened pleading requirements of Fed. R. Civ. P. 9(b). Bly-Magee v. Cal.,

236 F.3d 1014, 1018 (9th Cir. 2001). In particular, Plaintiffs must plead the

“circumstances constituting [the alleged] fraud,” with particularity, including the

“who, what, when, where and how” of the alleged misconduct. Ebeid v. Lungwitz,

616 F.3d 93, 998 (9th Cir. 2010). These particularity requirements serve:

not only to give notice to defendants of the specific fraudulent conductagainst which they must defend, but also to deter the filing of complaints as a pretext for the discovery of unknown wrongs, toprotect defendants from the harm that comes from being subject tofraud charges, and to prohibit plaintiffs from unilaterally imposingupon the court, the parties and society enormous social and economiccosts absent some factual basis.

Bly-Magee, 236 F.3d at 1018 (internal quotations, citations and alterations omitted).

Plaintiffs have not even attempted to plead their claims with the particularity

required by Fed. R. Civ. P. 9(b). Thus, any claim for election-related fraud must be

dismissed.

Plaintiffs have made the following factual allegations consistent with a claim

Defendants (or some subset of Defendants) engaged in election-related fraud:

Defendants “altered the voting ballot results to fraudulently

reflect an outcome that is inconsistent with the actual votingballot results.” Comp. p. 17, lines 24-25.

“There has been a systematic campaign of election fraud at StateConventions [sic],” Comp. p. 25, lines 21-22, including:

o A voting machine in Arizona was programmed to “countRon Paul votes as Governor Romney votes.” Comp. p. 25lines 22-23.

o Defendants engaged in “ballot stuffing, meaning the sameperson casting ballots in several states” Comp. p. 25, lines23-24.

o Defendants “alter[ed] and falsif[ied] ballot totals for eachcandidate.” Comp. p. 25, lines 24-25.

o Def endants “use[d] violence at several StateConventions.” Comp. p. 25, line 25.

o Defendants “alter[ed] procedural rules to prevent votes being cast for Ron Paul.” Comp. p. 25, lines 25-26.




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Such allegations are precisely the kind of vague pleading flatly prohibited by

Rule 9(b).

Plaintiffs make no particularized allegations as to who (among the hundreds

of Defendants) engaged in any of these alleged acts of wrongdoing, what exactly

was done(with the exception that a voting machine “in Arizona” was allegedly

tampered with by unnamed persons), where (with the exception of the voting

machine “in Arizona”) it was done, or how the alleged fraud (like the purported

machine tampering) was accomplished. Defendants cannot possibly defend

themselves against an allegation of fraud founded on such general and sweeping

allegations. See U.S. ex rel. SmithKline Beecham, Inc., 245 F.3d 1048, 1051-52

(9th Cir. 2001) (affirming dismissal because complaint’s failure to give particulars

of fraudulent conduct alleged).So, to the extent the court reads a claim for election-

related fraud in Plaintiff’s Complaint, it should be dismissed under Rule 9(b).

III. THIS COURT SHOULD DISMISS PLAINTIFFS’ CHALLENGESTO THE DELEGATE SELECTION PROCESS AND ALLEGEDVIOLATIONS OF PARTY RULES IN VARIOUS STATECONVENTIONS.

Plaintiffs broadly allege that, because various congressional district and state

conventions throughout the country were conducted unfairly, fraudulently, and in

violation of state and/or national party rules, this Court should order the

impoundment of all ballots and materials related to the election of delegates and,

when necessary, order that new conventions be held. Compl. 18; see also Compl.

at 16. The previous Parts of this Memorandum establish that Plaintiffs’ allegations

are not sufficiently “plausible” to survive scrutiny under Fed. R. Civ. P. 8(a), see

supra Part I, and their generalized claims of election fraud are far too vague to

satisfy the heightened pleading standards of Fed. R. Civ. P. 9(b), see supra Part II.

Even if this Court chooses to overlook such fatal flaws with the Complaint, it

still should dismiss Plaintiffs’ challenges to the delegate selection process because

that is an internal party dispute that should be resolved in accordance with the




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RNC’s established procedures, see supra p. 4-5, including either challenges before

state parties, RNC Rules, supra R. 20, at 29, or election contests before the RNC’s

Committee on Contests, id . R. 22-23, at 29-31, with initial resolution by the RNC

itself, id . R. 23(c), (f), at 31-32, a right of appeal to the Convention’s Committee on

Credentials, id . R. 24(b), at 32, and ultimate adjudication by the Convention as a

whole, id . R. 26(a), at 33; see also id . R. 21, at 29.

Political parties and their members enjoy broad freedom of association under

the First and Fourteenth Amendments. Democratic Party of United States v.

Wisconsin, 450 U.S. 107, 121, 101 S. Ct. 1010, 1019, 67 L. Ed. 2d 82, 94 (1981).

“Freedom of association means . . . that a political party has a r ight to identify the

people who constitute the association, and to select a standard bearer who best

represents the party's ideologies and preferences.” Eu v. San Francisco Cnty.

Democratic Cent. Comm., 489 U.S. 214, 224, 109 S. Ct. 1013, 1020-21, 103 L. Ed.

2d 271, 283 (1989) (quotation marks and citations omitted). It also “encompasses a

political party’s decisions about the identity of, and the process for electing, its

leaders.” Id . at 229; see also N.Y. State Board of Elections v. Lopez Torres, 552

U.S. 196, 202, 128 S. Ct. 791, 797, 169 L. Ed. 2d 665, 672 (2008). These rights are at their apex when the party is engage in selecting its

presidential nominee. California Democratic Party v. Jones, 530 U.S. 567, 575,

120 S. Ct. 2402, 2408, 147 L. Ed.2d 502, 510 (2000). “That process often

determines the party’s positions on the most significant public policy issues of the

day, and even when those positions are predetermined it is the nominee who

becomes the party’s ambassador to the general electorate in winning it over to the

party's views.” Id . “[B]eing saddled with an unwanted, and possibly antithetical,

nominee would . . . severely transform” the party. Id . at 579; see also Eu, 489 U.S.

at 231 n.21. Thus, political parties must be free to select delegates to national

conventions free from state interference. Democratic Party of United States v.

Wisconsin, 450 U.S. 107, 121-22 (1981).




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Because a political party’s process of electing delegates and ultimately

choosing a presidential nominee is constitutionally protected, “[i]t has been

understood since our national political parties first came into being as voluntary

associations of individuals that the convention itself is the proper forum for

determining intra-party disputes as to which delegates shall be seated.” O’Brien v.

Brown, 409 U.S. 1, 4, 92 S. Ct. 2718, 2720, 34 L. Ed. 2d 1, 6 (1972) (per curiam);

accord Cousins v. Wigoda, 419 U.S. 477, 491, 95 S. Ct. 541, 549, 42 L. Ed. 2d 595,

605 (1975) (holding that the “convention itself is the proper forum” for determining

which delegates should be seated); Republican State Cent. Comm. v. Ripon Soc’y,

Inc., 409 U.S. 1222, 1226, 93 S. Ct. 1475, 1478, 34 L. Ed. 2d 717, 720-21 (1972)

(Rehnquist, C.J., in chambers); see also Wisconsin, 450 U.S. at 124 (holding that a

court may not “substitute its own judgment for that of the Party” regarding “the

makeup of a State’s delegation to the party’s national convention,” because that

decision is “protected by the Constitution”).

The Supreme Court likewise has rejected the argument that relying on

conventions to elect delegates or determine nominees is constitutionally suspect,

even when party leaders can exert significant control and influence over them. In N.Y. State Board of Elections v. Lopez Torres, 552 U.S. 196, 201 (2008), the

plaintiff repeatedly failed to obtain the Republican nomination for a seat on the

New York Supreme Court at the party’s convention. She alleged that the

convention system unduly “burdened the rights of challengers seeking to run

against candidates favored by the party leadership,” because “party leaders can

control delegates.” Id . at 201-02. She argued that she did not have a sufficiently

“fair chance of prevailing” in the party’s candidate-selection processes. Id . at 203.

The Supreme Court flatly rejected her claims. It held that the success that

party leaders had in facilitating the election of their preferred candidates at

conventions “says nothing more than that the party leadership has more widespread

support than a candidate not supported by the leadership.” Id . It added, “None of




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our cases establishes an individual’s constitutional right to have a ‘fair shot’ at

winning the party’s nomination. . . . What constitutes a ‘fair shot’ is . . . hardly a

manageable constitutional question for judges.” Id . Furthermore, “traditional

electoral practice gives no hint of even the existence, much less the content, of a

constitutional requirement for a ‘fair shot’ at party nomination.” Id . at 206. It

concluded by noting, “Party conventions, with their attendant ‘smoke-filled rooms’

and domination by party leaders, have long been an accepted manner of selecting

party candidates.” Id .

Thus, to the extent that Plaintiffs contend that the convention process was

unfair, the rules (or changes in the rules) favored other candidates or delegates, or

party leaders worked to defeat them, those are not justiciable issues and do not state

a valid claim. Lopez Torres, 552 U.S. at 206.To the extent they contend that party

rules were violated or fraud occurred, the only proper forum for such claims is an

election contest before the Committee on Contests. O’Brien, 409 U.S. at 4;

Cousins, 419 U.S. at 491; Ripon Soc’y, 409 U.S. at 1226 (Rehnquist, C.J., in

chambers). This Court therefore should dismiss the Complaint.

IV. PLAINTIFFS ARE NOT ENTITLED TO HAVE DELEGATES TOTHE REPUBLICAN NATIONAL CONVENTION BE “UNBOUND”AND FREE TO IGNORE THE RESULTS OF THEIR STATES’PRESIDENTIAL PREFERENCE PRIMARY ELECTIONS.

The Certified and Elected Plaintiffs allege that the RNC and Chairman

Priebus are violating federal law and RNC rules by allowing delegates to the

national Convention to be bound to vote for certain candidates at the Convention

based on the outcomes of their respective states’ presidential preference primary

elections. Compl. at 16, 18, 24.Plaintiffs have failed to identify any federal statute

or U.S. Supreme Court ruling that actually prohibits the binding of delegates to

national conventions, however.

First, Plaintiffs contend that binding delegates violates the Voting Rights

Act, Compl. at 16, which provides:




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No person, whether acting under color of law or otherwise, shallintimidate, threaten, coerce, or attempt to intimidate, threaten, orcoerce any other person for the purpose of interfering with the right of such person to vote or to vote as he may choose, or of causing suchother person to vote for, or not to vote for, any candidate for the officeof President. . . . at any general, special, or primary election held

solely or in part for the purpose of selecting or electing any such

candidate.

42 U.S.C. § 1971(b) (emphasis added). By its plain terms, this provision applies

only to general, special, or primary elections, and does not govern voting by

delegates at national political conventions. Plaintiffs attempt to circumvent this

limitation by simply omitting the italicized language from their complaint. Compl.

at 16. They later cite regulations that the Federal Election Commission (“FEC”)

promulgated pursuant to the Federal Election Campaign Act of 1971(e) stating that

political conventions are considered “elections” for purposes of federal campaign

finance law, see 11 C.F.R. § 100.2(e), cited by Compl. at 23-24, but those

regulations do not apply to the Voting Rights Act, and the FEC does not have

authority to interpret that statute. Thus, because national political conventions are

not covered by § 1971(b), Plaintiffs cannot state a claim under this statute.

Second , Plaintiffs cite a provision of the Voting Rights Act that relates

exclusively to the use of federal observers at elections, and is therefore inapplicable

to this case. See Compl. at 18, citing 42 U.S.C. § 1971(e). Moreover, the cited

provision simply defines the term “vote” as including “all action necessary to make

a vote effective,” 42 U.S.C. § 1971(e), and does not contain any language barring

States or state parties from binding delegates to national conventions.

Third , Plaintiffs argue that the U.S. Supreme Court “held in Morse v.

Republican Party of Virginia, 517 U.S. 186 (1985) [sic] [,] that an interference inthe right of a Delegate to vote in accordance with the Delegate’s own conscience

undermines the effectiveness of the vote.” Compl. at 19. To the contrary, the

Morse Court held only that the Virginia Republican Party’s decision to impose a

fee on delegates wishing to attend a state convention to determine the state party’s

nominee for U.S. Senate was subject to preclearance under § 5 of the Voting Rights




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“allow[s] delegates to vote as those cho[o]se even if state law bound them to vote

for a particular candidate.” Compl., Ex. B, at 1. On the other hand, the

Memorandum goes on to state:

During the debate on the “Unit Rule” amendment, there was someconcern raised that the new language would be interpreted by some toprohibit the individual states from adopting rules that would bind orallocate delegates to specific candidates. The proponents, however,gave assurances that it was not their intention to effect [sic] any“legal” or “moral” obligation of the delegates.

Based upon the concern raised that this provision would erroneously be read to prohibit states to bind or allocate delegates[,] a concertedeffort was made to defeat the amendment. That effort to reject theaddition of the new “Unit Rule” language based on that concern,failed, 59 to 41.

Id . (emphasis added). Thus, the memorandum strongly suggests that Rule 38 does

not, in fact, prohibit States or state parties from binding delegates to the results of

their presidential primary elections.

In any event, an alleged violation of a national party’s rules is not a federal

claim over which this Court may exercise subject-matter jurisdiction, see 28 U.S.C.

§ 1331, and this clearly is not a diversity case, cf . Compl. 2-13. Thus, this Court

lacks jurisdiction to consider Plaintiffs’ claim. Even moving beyond this threshold

jurisdictional issue, the proper forum for the enforcement of party rules —

particularly a Rule allegedly touching upon something as critical as the binding of

delegates — is the Convention itself, not this Court. Cf. O’Brien, 409 U.S. at 4;

Cousins, 419 U.S. at 491; Ripon Soc’y, 409 U.S. at 1226 (Rehnquist, C.J., in

chambers).

Thus, Plaintiffs have not identified any federal law that prohibits States or

state Republican parties from binding delegates to vote in accordance with the

results of those states’ respective presidential primaries. Consequently, there is

nothing legally objectionable about Republican party officials requiring individuals

who have been elected as delegates to the national Convention to pledge that they

will cast their votes in accordance with such laws or party rules, as a condition of




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being credentialed and seated. Cf . Compl. ¶ 25.

U.S. Supreme Court precedent further confirms the propriety of binding

delegates. In Ray v. Blair , 343 U.S. 214, 72 S. Ct. 654, 96 L. Ed. 894 (1952), the

chair of the Alabama Democratic Party refused to certify the plaintiff as a candidate

in the state’s Democratic primary election for the office of presidential elector. The

plaintiff had refused to sign a pledge stating that he will aid and support “the

nominees of the National Convention of the Democratic Party for President and

Vice-President of the United States.” The Alabama Supreme Court held that the

pledge was unconstitutional because it “restricted the freedom of a federal elector to

vote in his Electoral College for his choice for President.” Id . at 215.

The U.S. Supreme Court vacated the writ of mandamus, holding that a state

political party may require a person to pledge to cast his electoral vote for that

party’s presidential nominee as a condition of serving as a presidential elector. The

Court held that “[t]he requirement of a pledge from the candidate participating in

primaries to support the nominee . . . protects a party from intrusion by those with

adverse political principles.” Id . at 221-22. The Court went on to hold that neither

the constitutional provision dealing with presidential electors, see U.S. Const., art.II, § 1, nor the Twelfth Amendment, see U.S. Const., amend. XII, requires a state

political party to accept as candidates people who refuse to pledge to support that

party’s candidates. Id . at 225. It explained that such pledges ensure that a party’s

candidates represent “the philosophy and leadership of that party.” Id . at 227.

If presidential electors, who at least nominally are state officers, may be

bound to vote in the electoral college for a particular candidate for President of the

United States, it would be anomalous to hold that delegates to a political party’s

national convention cannot be bound to vote for the nominee for President chosen

by the people of that state. Just as state’s electors may be required to pledge to cast

their electoral votes based on the popular will as expressed in that states’

presidential general election, so too may a state party’s delegates be required to




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pledge to cast their convention votes based on the popular will as expressed in that

state’s presidential preference primary. Thus, Ray further confirms the legitimacy

of state laws and party rules binding delegates to the Republican National

Convention. Plaintiffs’ prayer for an order allowing delegates to “vote their

consciences” therefore is baseless, and their claims should be dismissed.

CONCLUSION

For these reasons, Plaintiffs ask that this Court dismiss the Complaint with

prejudice.

Dated: July 5, 2012 Respectfully submitted,

BELL, McANDREWS & HILTACK, LLP

By: /s/ Charles H.Bell, Jr._CHARLES H. BELL, JR.

Attorney for DefendantsREPUBLICAN NATIONALCOMMITTEE, ET AL.




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PROOF OF SERVICE

I, the undersigned, declare under penalty of perjury that:

I am a citizen of the United States, over the age of 18, and not a party to thewithin cause of action. My business address is 455 Capitol Mall, Suite 600,Sacramento, CA 95814.

On July 5, 2012, I served the following:

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANTS’ MOTION TO DISMISS COMPLAINT PURSUANT TO

FED. R. CIV. P. 8(A), 9(B) AND 12(B)(6)

on the following party(ies) in said action:

Richard C. Gilbert, Esq.Law Offices of Gilbert & Marlow

950 W. 17th Street, Suite DSanta Ana, CA 92706Telephone: (714) 667-1038Email: [email protected]

Plaintiffs

X BY U.S. MAIL: By placing said document(s) in a sealed envelope anddepositing said envelope, with postage thereon fully prepaid, in the UnitedStates Postal Service mailbox in Sacramento, California, addressed to saidparty(ies), in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date orpostage meter date is more than one day after date of deposit for mailing inaffidavit.

X BY ELECTRONIC MAIL: By causing true copy(ies) of PDF versions of said document(s) to be sent to the e-mail address of each party listed.

I declare under penalty of perjury under the laws of the State of Californiathat the foregoing is true and correct, and that this declaration was executed on July5, 2012 at Sacramento, California.

/s/ Shannon DiazSHANNON DIAZ


Memo of Law to Notice of Motion - Doc 7

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Transcript of Memo of Law to Notice of Motion - Doc 7