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True the Vote v. Hoseman

United States District Court, N.D. Mississippi, Oxford Division

July 7, 2014

THE HONORABLE DELBERT HOSEMAN, in his Official capacity as Secretary of State for the State of Mississippi and the REPUBLICAN PARTY OF MISSISSIPPI, DEFENDANTS

For True the Vote, Donna Knezevich, Joseph Knezevich, Elaine Vechorik, Roy Nicholson, Jane Coln, Doris Lee, Mark Patrick, Julie Patrick, Paul Patrick, Sybil Tribble, Chad Higdon, Jennifer Higdon, David Philley, Plaintiffs: L. Eades Hogue, LEAD ATTORNEY, BEIRNE, MAYNARD & PARSONS, L.L.P., New Orleans, LA.

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This cause comes before the court on its own motion, directing the parties to show cause as to why this case should not be transferred to the Southern District of Mississippi, pursuant to 28 U.S.C. § 1404(a). That statute provides that " [f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." Based upon the allegations of the complaint, it is not clear to this court why this case was filed in the Northern District of Mississippi. Although the complaint does not so indicate, both defendants in this case are residents of Hinds County, and it would appear that the overwhelming majority of the witnesses and evidence in this case are located in the Jackson area. Indeed, defendants' residence aside, plaintiff True the Vote alleges that, immediately prior to the election, it sought but was denied records by " Hinds and Rankin Counties." It thus seems clear that, factually speaking, this case is very strongly centered in the Jackson Division of the Southern District of Mississippi.

It appears that the complaint has been drafted largely to give the impression that it involves Northern District issues when, particularly in light of recent Fifth Circuit precedent discussed below, it actually does not. While a number of plaintiffs in this case do reside in the Northern District, it appears that many, if not most, of them allege nothing more than that they " voted in the 2014 Republican Primary Election and Republican Primary Run-off Election." The same could be said for hundreds of thousands of voters across this state. It is well settled that, to meet the constitutional standing requirement, a plaintiff must allege " personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright,

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468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

It is far from clear that the plaintiffs asserting vote dilution claims suffered a " personal injury" from any instances of double voting which may have occurred in the Republican primary elections, and they allege no facts plausibly suggesting that any such voter fraud was " fairly traceable to the . . . allegedly unlawful conduct" of either of the two defendants in this case.[1] Moreover, the actual relief sought in the complaint relates solely to the release of unredacted voter records, which appears to constitute redress for plaintiffs' National Voter Registration Act claims, rather than for any vote dilution claims.

In light of the foregoing, it appears that the plaintiffs who allege nothing more than having had their votes diluted lack standing to sue and that they may have been added to this case solely to give it a deceptively " northern district" appearance. The court's concerns in this regard are heightened by the fact that the drafter of the complaint frequently seems unaware of the precise nature of the allegations of particular plaintiffs, at times making vague allegations " upon information and belief." It is unclear to this court why a drafter would find it necessary to state matters " upon information and belief" which should be within the personal knowledge of the plaintiffs. Even assuming that some of the northern district plaintiffs sought records from counties in this district (as the complaint appears to vaguely suggest), the fact remains that those counties are not defendants in this lawsuit.

That brings the court to the fact that, standing issues aside, plaintiffs' vote dilution claim fails to assert a coherent theory of liability against either of the two defendants in this case.[2] The vote dilution claim is ostensibly based upon the Equal Protection Clause, but the complaint wholly fails to allege facts detailing what role either defendant had in bringing about any double voting which may have occurred in the Republican and Democratic primary elections. The complaint describes, in vague and conclusory terms, how certain plaintiffs " perceived," from their review of poll books, that certain individuals may have voted in both the Democratic and Republican primary elections. Even assuming that the plaintiffs' perceptions in this regard are accurate, however, the fact remains that defendants cannot be held liable for acts of double voting by private individuals which it did not cause to occur. Persuasive authority from a different circuit raises additional doubts in this regard.

In Osburn v. Cox, 369 F.3d 1283, 1285-86 (11th Cir. 2004), the Eleventh Circuit rejected constitutional challenges by African-American voters who claimed that " the Georgia and DeKalb County Republican party members conceived a plan to run a candidate in the Democratic Primary, funded that candidate, and then encouraged Republican voters to crossover and vote for that candidate." The plaintiffs in

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Osburn alleged that the crossover voting of the Republicans diluted the voting strength of African--American voters and resulted in the defeat of their preferred candidate. Osburn, 369 F.3d at 1286. The Eleventh Circuit in Osburn upheld the dismissal of plaintiffs' claims, writing that " the case law weighs against an individual's right to assert such a claim and is buttressed by the fact that the relief that plaintiffs seek, i.e., to limit the voters who could participate in a Democratic primary to those who plaintiffs consider to be 'Democratic voters,' would likely be held unconstitutional if challenged by the state political party." Osburn, 369 F.3d at 1287. The Court accordingly rejected the plaintiffs' claims on both standing and substantive grounds.

Osburn makes it clear that the phenomenon of " cross-over" voting by members of an opposing party is one which does not inherently involve any violation of the U.S. Constitution, and, indeed, many of the potential remedies for this practice run the risk of violating the Constitution in their own right. It can certainly be argued that, from the perspective of federal law, nothing particularly untoward occurred in Mississippi's 2014 Republican primary run-off election, even assuming that plaintiffs' allegations of cross-over voting are correct. Plaintiffs contend that such voting violated Miss. Code Ann. ยง 23-15-575, which states: " No person shall be eligible to participate in any primary election unless he intends to support the nominations made in which he participates." From the perspective of federal law, however, any such Democratic voters were, arguably, simply U.S. citizens and registered voters expressing their opinions in an election. Regardless of whether one agrees with this argument, there is very serious doubt as to whether any of the Northern District ...

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