Paige v. State of Vermont Sec'y of State ( 2016 )


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  • Paige v. State of Vermont Sec’y of State, No. 780-12-15 Wncv (Tomasi, J., Jan. 15, 2016).
    [The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
    accompanying data included in the Vermont trial court opinion database is not guaranteed.]
    STATE OF VERMONT
    SUPERIOR COURT                                                                                           CIVIL DIVISION
    Washington Unit                                                                              Docket No. 780-12-15 Wncv
    H. Brooke Paige,
    Plaintiff
    v.
    State of Vermont,
    Secretary of State,
    Attorney General,
    Defendants
    Entry Order on Motion for Temporary Injunctive Relief
    This matter came before the Court today for a hearing on Plaintiff’s motion
    for temporary injunctive relief requiring the Secretary of State to take action to
    investigate the constitutional qualifications of certain presidential candidates and
    to remove those candidates who are not so qualified from the ballots that will be
    used in Vermont’s presidential primary. Plaintiff appeared and represented
    himself. Defendants appeared and were represented by Assistant Attorney General
    Todd Daloz. After giving Plaintiff the opportunity to expand upon his original
    filings at the hearing and taking testimony from the Secretary of State’s Director of
    the Elections, the Court makes the following determinations.
    Analysis
    Plaintiff’s motion for injunctive relief faces a high hurdle. “An injunction is
    an extraordinary remedy, the right to which must be clear.” Okemo Mountain, Inc.
    v. Town of Ludlow, 
    171 Vt. 201
    , 212 (2000). Plaintiff’s request for preliminary
    injunctive relief requires the Court to consider: “(1) the threat of irreparable harm
    to the movant; (2) the potential harm to the other parties; (3) the likelihood of
    success on the merits; and (4) the public interest.” In re J.G., 
    160 Vt. 250
    , 255 n.2
    (1993). To establish irreparable harm, a party “must show that there is a
    continuing harm which cannot be adequately redressed by final relief on the merits
    and for which money damages cannot provide adequate compensation.” Kamerling
    v. Massanari, 
    295 F.3d 206
    , 214 (2d Cir. 2002) (internal quotations omitted). In
    addition, the purported irreparable harm “must be shown to be actual and
    imminent, not remote or speculative.” 
    Id. In this
    case, the interests of others and of the public weigh strongly against
    an injunction. Vermont’s presidential primary is set for March 1, 2016. Petitions to
    include major party candidates on the presidential primary ballots were due to be
    filed with the Secretary of State on January 11, 2016. By law, the Secretary is
    required to circulate ballots to the town clerks by today. 17 V.S.A. § 2479. The
    evidence at trial shows that the ballots have been finalized. The Secretary has
    already sent the ballots out to clerks and to out-of-state military personnel. If the
    Secretary (and potentially this Court) were to engage in the tasks requested by
    Plaintiff, it would place him out of compliance with the timing requirements of the
    law and would almost certainly result in a delay of Vermont’s primary election.
    Candidates seeking this national office, their supporters, and their parties rely on
    the established sequence of primary elections. Vermont voters also count on and
    plan for the duly set election day. The Court believes that any action that threatens
    to disrupt and delay that contest is harmful to the citizenry and definitely not in the
    public interest.1
    Plaintiff’s allegation that he will suffer irreparable harm in the absence of an
    injunction is insufficient to overcome those important interests. Indeed, his concern
    that only constitutionally qualified candidates appear on the primary ballot is not
    particular to him but would be shared by all citizens. The fact that he has professed
    a desire to be a presidential primary candidate for the Republican party does not
    increase the nature of the alleged harm. Plaintiff, in fact, did not submit a
    sufficient number of signatures to qualify for the Republican primary election
    ballot. He has not established that placing purportedly “unqualified” candidates on
    the ballot somehow precluded him from obtaining the requisite number of
    signatures. Similarly, his contention that the inclusion of those names on the ballot
    would thwart his attempt to win the primary as a write-in candidate is nothing
    more than rank conjecture.
    Lastly, Plaintiff has little chance of success on the merits of his claims. The
    Court notes that this Court has rejected similar causes of action brought by this
    same party in 2012. See Paige v. Condos, Docket No. 611-8-12 Wncv [the First
    Action]. There, the Court concluded, inter alia, that Plaintiff lacked standing to
    pursue his claims and that the political question doctrine made the case non-
    justiciable. (A copy of the Court’s ruling dismissing the First Action is appended to
    this Order.) The Court adopts that same reasoning in this case with the following
    additional points.
    First, Plaintiff’s contention that he is, not just a citizen, but also a candidate
    for the presidency of the United States is not likely to alter the conclusion that he
    lacks standing to pursue his claims. In the election context, some courts have
    recognized the doctrine of “competitive standing,” which grants standing to a
    1
    At the hearing, Plaintiff suggested that the Secretary could cure the problem by
    sending out blank ballots as replacements for the current ballots. Candidates and
    their supporters have worked hard to have the candidates’ names placed on the
    primary ballots. The Court believes requiring blank ballots would be unfair and
    prejudicial to them and would be confusing to Vermont voters.
    2
    competitor or her party to challenge the inclusion of candidates on an election
    ballot. Drake v. Obama, 
    664 F.3d 774
    , 782 (9th Cir. 2011). Even assuming this
    Court would adopt that standard, to establish standing, the competitor must have a
    “chance of prevailing in the election.” 
    Id. In this
    instance, Plaintiff appears to
    have asserted his status as a candidate primarily as a means to pursue this lawsuit.
    Plaintiff has not set forth facts from which the Court could conclude that he is a
    true “competitor” in the presidential primary. The fact that he has declared himself
    a write-in candidate is simply not enough to confer standing. As a number of courts
    have held, if such a declaration “’were sufficient, any citizen could obtain standing
    (in violation of Article III of the U.S. Constitution) by merely self-declaring.’”
    Grinols v. Electoral College, No. 2:12-cv-2997, 
    2013 WL 2294885
    , at *8 (E.D. Cal.
    May 23, 2013) (quoting Sibley v. Obama, No. 12–5198, 
    2012 WL 6603088
    at *1 (D.C.
    Cir. Dec.6, 2012)).
    Here, Plaintiff conceded at hearing that he has raised no money for his
    candidacy, has no website specifically dedicated to his campaign, and has no paid
    staff. Plaintiff indicated that he was not seeking to be and had not been added to
    the primary ballot in any other state, with the exception of California. Although he
    has qualified for the primary ballot in California, Plaintiff admitted that he was not
    campaigning there and had no chance of winning that state’s primary. In the
    absence of more compelling evidence of his competitiveness for the presidency, the
    Court cannot conclude that he is a true competitor for purposes of standing.
    Second, as Americans, we trust and rely principally on the electoral process
    to illuminate the qualifications of candidates for President and reveal the most
    favored candidate. The Twelfth Amendment to the Constitution vests Congress
    with the responsibility to count electoral votes, and it can refuse to count votes if it
    deems they have been cast for an unqualified candidate. U.S. Const. Amend. XII.
    Federal law sets out a clear congressional mechanism for objecting to the electoral
    votes for any particular candidate. 3 U.S.C. § 15. The Twentieth Amendment
    provides the process that is to be followed if an elected candidate for President or
    Vice-President is not deemed “qualified” to serve. U.S. Const. Amend. XX; Grinols,
    
    2013 WL 2294885
    , at *6.
    In the Court’s view, that congressional process provides the remedy if there is
    a question regarding the qualifications of a candidate for President, at least in the
    first instance. Accord Robinson v. Bowen, 
    567 F. Supp. 2d 1144
    , 1147 (N.D. Cal.
    2008). Failure to follow such a path would likely lead to varied results from state
    courts across the country as to whether a particular candidate meets the
    constitutional qualifications to ascend to the presidency. Accordingly, the Court
    concludes that Plaintiff’s Complaint likely presents a non-justiciable political
    question.
    Plaintiff has also noted various alleged improprieties in the forms used by the
    Secretary in connection with the primary election and the with the Secretary’s
    approach to counting the signatures needed to place a candidate on the ballot. The
    hearing evidence did show what appear to be some questionable approvals of
    3
    signatures by the Secretary. But, under Vermont law, unless there is reason to
    suspect fraud, the Secretary’s role is simply to confirm that he can “identify the
    name of the person who signed.” 17 V.S.A. § 2358(c)(1). Even if the Secretary
    erred in approving an occasional signature, the undisputed evidence is that
    presidential candidates submit two to three times the number of signatures needed
    to attain the ballot. The present evidence does not come close to raising a concern
    that any candidate was placed on the ballot without sufficient valid signatures.
    Plaintiff’s points regarding the wording of the voter signature and candidate
    consent forms are worthy of consideration by the Secretary, but they are not so
    significant as to make the forms legally deficient. In short, Plaintiff’s claims
    concerning the forms and the signature review also do not plainly warrant
    injunctive relief.
    Conclusion
    No doubt, Plaintiff cares deeply about the issues raised in this case, has
    expended significant time and energy on the arguments presented, and has
    impressive knowledge of our nation’s history. Those attributes, while admirable,
    cannot be the stars that guide the Court’s consideration of the legal issues in this
    matter.
    In light of the all the foregoing, Plaintiff has failed to establish that he has a
    clear right to injunctive relief. Plaintiff’s motion for preliminary injunctive relief is
    denied.
    Electronically signed on January 15, 2016 at 04:01 PM pursuant to V.R.E.F.
    7(d).
    ________________________
    Timothy B. Tomasi
    Superior Court Judge
    4
    

Document Info

Docket Number: 780

Filed Date: 1/15/2016

Precedential Status: Precedential

Modified Date: 4/23/2018