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Vote No on Amendment One, Inc. v. Warner

United States District Court, S.D. West Virginia, Charleston Division

July 24, 2019

VOTE NO ON AMENDMENT ONE, INC., et al., Plaintiffs,
v.
MAC WARNER, Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS E. JOHNSTON, CHIEF JUDGE

         Plaintiffs Vote No. on Amendment One, Inc. (“Vote No. Coalition”), Katherine Lewis (“Lewis”), and Stacy North (“North”) (collectively, “Plaintiffs”) bring this action against West Virginia Secretary of State Mac Warner (“Defendant”), in his official capacity. (ECF No. 2.) Plaintiffs allege that Defendant violated their First Amendment rights by enforcing against them a state statute that prohibits “electioneering” at early voting locations. (Id.)

         Before this Court are Defendant's two motions to dismiss. (ECF Nos. 9, 15.) For the reasons explained more fully herein, Defendant's motions, (ECF Nos. 9, 15), are GRANTED.

         I. BACKGROUND

         Vote No. Coalition organized to oppose “a proposed amendment to the West Virginia Constitution” that appeared “on the ballot for the November 6, 2018 general election in West Virginia.” (ECF No. 2 at 3.) On November 3, 2018, Lewis and North volunteered with Vote No. Coalition to “engage with voters” by holding signs, distributing literature, and answering voters' questions about the proposed amendment at an early voting location in Morgantown, West Virginia. (Id. at 4-5.) Vote No. Coalition instructed Lewis and North “to stand at a location near a dumpster that was approximately 100 feet away from the entrance to the polling location.” (Id. at 4.) A poll worker “informed [them] that they were not quite 100 feet away from the entrance to the polling location and advised them to move next to a red car in a nearby parking lot, ” and Lewis and North complied. (Id. at 5.)

         Twenty minutes after North and Lewis moved to the location near the red car, Defendant “approached Ms. North and informed her that she and Ms. Lewis were not allowed to be anywhere on the property of the polling location-including in the parking lot.” (Id.) Defendant also told North “that there had been a complaint.” (Id.) He instructed North and Lewis to stand “close to a busy road that was located approximately 700 feet from the entrance to the polling location and was not visible from the entrance of the polling location.” (Id. at 6.) From the location Defendant suggested, North and Lewis “had to communicate the Vote No. Coalition's message . . . by holding signage for drivers and passengers to see as they drove past the location.” (Id.) They “did not have the opportunity to have conversations with voters or to provide them literature.” (Id.)

         North, relying on West Virginia Code § 3-9-9, explained to Defendant “that her understanding of the law was that she and Ms. Lewis . . . were entitled to be there, so long as they were 100 feet or more away from the entrance to the polling location.” (Id. at 5, 7.) Defendant, relying on West Virginia Code § 3-3-2a, “advised Ms. North that West Virginia law provided that she and Ms. Lewis could not be anywhere on the property, even if their location was more than 100 feet from the entrance of the polling location.” (Id.)

         Plaintiffs filed a complaint for declaratory and injunctive relief against Defendant, arguing that West Virginia Code § 3-3-2a is unconstitutionally overbroad and that Defendant's enforcement of the statute against Plaintiffs violated their First Amendment rights. (ECF No. 2.) Defendant filed his first motion to dismiss on March 5, 2019. (ECF No. 9.) Plaintiffs filed a timely response, (ECF No. 12), and Defendant filed a reply, (ECF No. 13). Defendant then filed a second motion to dismiss on April 1, 2019. (ECF No. 15.) Plaintiffs filed a timely response, (ECF No. 17), and Defendant filed a timely reply, (ECF No. 19). Both motions to dismiss are fully briefed and ripe for adjudication.

         II. LEGAL STANDARDS

         A. Federal Rule of Civil Procedure 12(b)(1) Motion to Dismiss

         “[A] defendant may challenge [this Court's] subject matter jurisdiction [through a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss] in one of two ways.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). A “facial” challenge to jurisdiction attacks the complaint's allegations of jurisdictional facts. Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017). In that manner, it is similar to a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, in that “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192. A “factual” challenge, on the other hand, involves an assertion “that the jurisdictional allegations of the complaint [are] not true.” 24th Senatorial Dist. Republican Comm. v. Alcorn, 820 F.3d 624, 629 (4th Cir. 2016) (quoting Adams, 697 F.2d at 1219). When ruling on a factual challenge, “[t]here is no presumption of truth, ” and this Court “may . . . go beyond the allegations of the complaint and hold an evidentiary hearing to determine if there are facts to support the jurisdictional allegations.” Id. (internal quotation marks omitted). Defendant's challenge is facial because he relies on the facts alleged in Plaintiffs' complaint.

         B. Federal Rule of Civil Procedure 12(b)(6) Motion to Dismiss

         In general, a pleading must include “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); see McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (stating that this requirement exists “to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007))). However, to withstand a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint must plead enough facts “to state a claim to relief that is plausible on its face.” Wikimedia Found. v. Nat'l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility 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. Stated another way, the factual allegations in the complaint “must be sufficient ‘to raise a right to relief above the speculative level.'” Woods v. City of Greensboro, 855 F.3d 639, 647 (4th Cir. 2017) (quoting Twombly, 550 U.S. at 555). A complaint that alleges enough facts “to satisfy the elements of a cause of action created by [the relevant] statute” will survive a motion to dismiss. Id. at 648 (quoting McCleary-Evans, 780 F.3d at 585).

         In evaluating the sufficiency of a complaint, this Court first “identif[ies] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679. This Court then “assume[s] the[] veracity” of the complaint's “well-pleaded factual allegations” and “determine[s] whether they plausibly give rise to an entitlement to relief.” Id. Review of the complaint is “a context-specific task that requires [this Court] to draw on its judicial experience and common sense.” Id. “[T]o satisfy the plausibility standard, a plaintiff is not required to plead factual allegations in great detail, but the allegations must contain sufficient factual heft to allow a court, drawing on ...


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