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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 WASHINGTON ELECTION INTEGRITY CASE NO. 2:21-cv-01386-LK 11 COALITION UNITED et al., ORDER DENYING MOTION TO 12 Plaintiffs, REMAND, DENYING MOTION TO v. INTERVENE, AND DISMISSING 13 THE CASE SUA SPONTE FOR DIANA BRADRICK et al., LACK OF SUBJECT MATTER 14 JURISDICTION Defendants. 15 16 This matter comes before the Court on Washington Election Integrity Coalition United’s 17 (“WEICU’s”) motion to remand. Dkt. No. 11. The Court finds sua sponte that the individual 18 Plaintiffs lack Article III standing. Because the Court has no supplemental jurisdiction over the 19 remaining state law claims, and because remand to state court would be futile, the Court dismisses 20 the case. 21 I. BACKGROUND 22 This action is one of several nearly identical actions originally filed in state court by 23 WEICU and numerous pro se plaintiffs in counties across Washington, and one of six such actions 24 1 that have been removed to this Court.1 Plaintiffs filed their complaint in Whatcom County Superior 2 Court on September 10, 2021. Dkt. No. 1-2 at 1. Their claims center on the conduct of the 3 November 2020 general election in Whatcom County, Washington. 4 The individual Plaintiffs2 bring claims against Whatcom County Auditor Diana Bradrick 5 for (1) permitting, overseeing, or directing the alteration of ballots; (2) engaging in a “cover-up
6 campaign” to mislead the public regarding the alleged ballot tampering; (3) using open sleeves to 7 store ballots completed online rather than the “security envelopes” required by state law; (4) using 8 an uncertified voting system; and (5) violating the United States Constitution and the Washington 9 State Constitution. Id. at 4–6, 8–16. For each of these alleged “wrongful acts,” the individual 10 Plaintiffs seek declaratory and injunctive relief. Id. at 9–10, 12–16, 18. They also seek damages 11 against the Auditor for civil rights violations under 42 U.S.C. §§ 1983 and 1988. Id. at 17. 12 WEICU’s sole claim is against the Auditor and Whatcom County under Washington’s Public 13 Records Act (“PRA”), Wash. Rev. Code §§ 42.56.001–42.56.900, for wrongfully denying 14 WEICU’s records request for “ballots or electronic images of the ballots from the 2020 November
15 election.” Dkt. No. 1-2 at 6 (internal quotation marks omitted). WEICU seeks to “compel 16 Defendants to provide access to ballots or electronic images of the ballots from the Election.” Id. 17 Whatcom County and Bradrick (“Defendants”) removed the case to this Court on October 18 12, 2021. Dkt. No. 1. On October 22, 2021, WEICU filed a motion to remand. Dkt. No. 11. 19 II. DISCUSSION 20 Defendants removed this action on the basis that this Court has original jurisdiction over it 21
22 1 The five other removed actions are Washington Election Integrity Coalition United v. Fell, No. C21-1354-LK; Washington Election Integrity Coalition United v. Kimsey, No. C21-5746-LK; Washington Election Integrity 23 Coalition United v. Wise, No. C21-1394-LK; Washington Election Integrity Coalition United v. Anderson, No. C21- 5726-LK; and Washington Election Integrity Coalition United v. Hall, No. C21-5787-LK. 24 2 The individual Plaintiffs are Darcy Lynn Hocker, Joseph Grant, and Evelyn Hopf. Dkt. No. 1-2 at 1. 1 under 28 U.S.C. § 1331. Dkt. No. 1 at 2. 28 U.S.C. § 1441 allows a defendant to remove an action 2 filed in state court to federal district court where the federal district court has original jurisdiction.3 3 The Ninth Circuit “strictly construe[s] the removal statute against removal jurisdiction,” and 4 “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first 5 instance.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992). “The ‘strong presumption’
6 against removal jurisdiction means that the defendant always has the burden of establishing that 7 removal is proper.” Id. Ultimately, if a district court lacks subject matter jurisdiction over a 8 removed action, it usually has the duty to remand it, for “removal is permissible only where 9 original jurisdiction exists at the time of removal or at the time of the entry of final judgment[.]” 10 Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 43 (1998); see 28 U.S.C. § 11 1441(a). 12 Because the Court lacks subject matter jurisdiction over Plaintiffs’ federal claims, it cannot 13 exercise supplemental jurisdiction over any of Plaintiffs’ state law claims and must either remand 14 or dismiss the entire case. The Court dismisses the Plaintiffs’ claims because remand to state court
15 would be futile. 16 A. Because the Individual Plaintiffs Do Not Have Article III Standing, this Court Lacks Subject Matter Jurisdiction over Their Claims 17 At the outset, the Court recognizes that the right at issue in this case—the right to vote and 18 have that vote counted—is “a fundamental matter in a free and democratic society.” Reynolds v. 19 Sims, 377 U.S. 533, 561–62 (1964). But a voter seeking relief in federal court for alleged violations 20 of constitutional rights must have standing to do so, including “a personal stake in the outcome, 21 22 3 The Defendants’ notice of removal “was sufficient to advise [P]laintiff[s] that [D]efendants were relying on federal 23 question jurisdiction as a basis for removal, and the fact that the notice did not specify which subsection of § 1441 [D]efendants were relying on does not mean that the notice was defective[.]” Kabealo v. Davis, 829 F. Supp. 923, 927 24 (S.D. Ohio 1993). 1 distinct from a generally available grievance about government.” Gill v. Whitford, 138 S. Ct. 1916, 2 1923 (2018) (cleaned up). “[A] suit brought by a plaintiff without Article III standing is not a ‘case 3 or controversy,’ and an Article III federal court therefore lacks subject matter jurisdiction over the 4 suit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). Article III’s “case or 5 controversy” requirement thus obligates federal courts to determine, as an initial matter, whether
6 plaintiffs have standing to bring suit. Lance v. Coffman, 549 U.S. 437, 439 (2007). This is true 7 even where the parties have not raised the issue. See Fed. R. Civ. P 12(h)(3) (“If the court 8 determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”); 9 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks 10 subject matter jurisdiction, the case shall be remanded.”); D’Lil v. Best W. Encina Lodge & Suites, 11 538 F.3d 1031, 1035 (9th Cir. 2008) (“[B]oth the Supreme Court and this court have held that 12 whether or not the parties raise the issue, federal courts are required sua sponte to examine 13 jurisdictional issues such as standing.” (cleaned up)). 14 “To establish Article III standing, an injury must be ‘concrete, particularized, and actual or
15 imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” 16 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Monsanto Co. v. Geertson Seed 17 Farms, 561 U.S. 139, 149 (2010)). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff 18 in a personal and individual way.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting 19 Lujan, 504 U.S. at 560 n.1). The injury must also be “concrete”; “that is, it must actually exist.” 20 Id. at 339–40. 21 The Supreme Court has “consistently held that a plaintiff raising only a generally available 22 grievance about government—claiming only harm to his and every citizen’s interest in proper 23 application of the Constitution and laws, and seeking relief that no more directly and tangibly 24 benefits him than it does the public at large—does not state an Article III case or controversy.” 1 Lance, 549 U.S. at 439 (quoting Lujan, 504 U.S. at 573–74 (1992)); see also Warth v. Seldin, 422 2 U.S. 490, 499 (1975) (“[T]he Court has held that when the asserted harm is a ‘generalized 3 grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone 4 normally does not warrant exercise of jurisdiction.”). Accordingly, and in recognition “that a 5 person’s right to vote is ‘individual and personal in nature,’” courts have long held that “‘voters
6 who allege facts showing disadvantage to themselves as individuals have standing to sue’ to 7 remedy that disadvantage.” Gill, 138 S. Ct. at 1929 (emphasis added) (quoting Reynolds, 377 U.S. 8 at 561 and Baker v. Carr, 369 U.S. 186, 206 (1962)). Plaintiffs fail to show such disadvantage and 9 therefore lack Article III standing. 10 1. Plaintiffs Do Not Allege that They Suffered Any “Concrete, Particularized, and Actual or Imminent” Injury from the Alleged Misconduct by the Auditor 11 Plaintiffs’ claims each follow a similar pattern: they allege a violation of law, ask the Court 12 to declare the Auditor’s duties under the law and enjoin her from violating the law, and then state 13 that they “will suffer irreparable injury” from violations of their constitutional rights: 14 Allegation Requested Declaration/Injunction “Injury” 15 Bradrick “acted in error and/or neglect Declare “Plaintiffs’ rights and the “[T]he legislature has never by not adhering to the security duties of Defendant Bradrick, in the approved the use of sleeves” 16 envelope requirement of RCW form of an order striking the sleeve and “[t]he open sleeves used 29A.40.091(1), and such acts directly option” from the regulation and by Defendant Bradrick allow facilitated the wrongful acts alleged requiring Bradrick to use a security for unfettered access to ballots 17 herein,” Dkt. No. 1-2 at 9, e.g., a envelope instead. Id. at 10. prior to tabulation, are an County resident “observed suspicious invitation to ballot tampering” 18 activity taking place in a livestream that “violate[s] Plaintiffs’ right video from the Whatcom County to absolute secrecy in Elections ballot tabulation process” preparing and depositing their 19 and recorded a video that “appears to ballots.” Id. at 10. demonstrate ballot tampering and 20 other election irregularities,” id. at 4, Bradrick “permit[ed]/overs[aw] and/or 21 direct[ed] the alteration, and possible outright crossing out, of electors’ votes and insertion of votes for an 22 opposing candidate by an election worker working by herself with no 23 election observers present,” id. at 4–5, and “Bradrick appears to have engaged in wrongful acts in the form 24 of a cover-up campaign to mislead the 1 Allegation Requested Declaration/Injunction “Injury” public and prevent the public from 2 learning the truth, further implicating Defendant Bradrick,” id. at 5. 3 Plaintiffs “are informed and believe” Declare “Plaintiffs’ rights and the “Plaintiffs will suffer that Bradrick used an “uncertified duties of Defendant Bradrick, as irreparable injury in that their voting system to tabulate votes for the they pertain to the electronic voting fundamental rights under the 4 [2020] Election.” Id. at 11. system” used in the 2020 election Washington State Constitution and in future elections, and restrain and/or United States 5 Bradrick from using any uncertified Constitution . . . will be further voting system. Id. at 12–13. violated.” Id. at 13. 6 Bradrick’s conduct violated the Declare “Plaintiffs’ rights and the Same as above, id. at 16, and: United States Constitution, including duties of Defendant Bradrick, as 7 the Fourteenth Amendment. Id. at 13– they pertain to the [2020] Election “Because Director failed to 15. and future elections in Whatcom follow state and federal law,” County,” and restrain the Bradrick County voters “were denied 8 from “[a]llowing, facilitating, or their fundamental right of directing election staff or any other suffrage without due process 9 person to tamper with ballots in any of law” and “had the value of illegal fashion,” “[e]ngaging in a their votes diluted, and the will of said voters denied, without 10 campaign to mislead the public due process of law,” and about wrongful acts,” “[p]ermitting County voters’ ballots “were unsecured ballot handling or 11 processing,” “[u]sing open sleeves,” not treaty equally nor given equal levels of protection and/or “[u]sing an Uncertified under the law.” Id. at 15. 12 Voting System.” Id. at 16.
13 In none of these allegations do Plaintiffs claim that they suffered any “concrete, 14 particularized, and actual or imminent” injury from the Auditor’s alleged misconduct. Although 15 Plaintiffs do not explain their theory of vote dilution, it appears to be based on general allegations 16 of election irregularities that affected the votes of all “qualified electors” in the County. See Dkt. 17 No. 1-2 at 15 (because “Defendant Bradrick failed to follow state and federal law,” “[q]ualified 18 electors who voted similarly had the value of their votes diluted”). “As courts have routinely 19 explained, vote dilution is a very specific claim that involves votes being weighed differently and 20 cannot be used generally to allege voter fraud.” Bowyer v. Ducey, 506 F. Supp. 3d 699, 711 (D. 21 Ariz. 2020). See also Feehan v. Wis. Elections Comm’n, 506 F. Supp. 3d 596, 609 (E.D. Wis. Dec. 22 9, 2020) (plaintiff lacked standing where his “alleged injuries are injuries that any Wisconsin voter 23 suffers if the Wisconsin election process were . . . so riddled with fraud, illegality, and statistical 24 1 impossibility” that its results could not be certified); Martel v. Condos, 487 F. Supp. 3d 247, 253 2 (D. Vt. 2020) (“A vote cast by fraud or mailed in by the wrong person through mistake has a 3 mathematical impact on the final tally and thus on the proportional effect of every vote, but no 4 single voter is specifically disadvantaged.”); Paher v. Cegavske, 457 F. Supp. 3d 919, 926 (D. 5 Nev. 2020) (“Plaintiffs’ purported injury of having their votes diluted due to ostensible election
6 fraud may be conceivably raised by any Nevada voter.”); Am. C.R. Union v. Martinez-Rivera, No. 7 2:14-CV-026-AM-CW, 2015 WL 13650011, at *7 (W.D. Tex. Feb. 23, 2015) (speculative 8 complaints of “potential vote dilution are nothing but a generalized grievance about government, 9 complaining that an official should be required to follow the law.”). Plaintiffs do not suggest that 10 any votes were weighed differently, including their own. Thus, although allegations of vote 11 dilution may create standing in some circumstances, they do not do so here. 12 Similarly, Plaintiffs never assert that they were personally harmed by any of Defendants’ 13 alleged conduct with respect to ballot tampering, misleading statements, the use of an uncertified 14 voting system, or the use of ballot sleeves. See generally Dkt. No. 1-2.
15 To the extent Plaintiffs argue more broadly that they maintain an interest in government 16 officials conducting an election in conformity with the Constitution, “they merely assert a 17 ‘generalized grievance’ stemming from an attempt to have the Government act in accordance with 18 their view of the law.” Wis. Voters All. v. Pence, 514 F. Supp. 3d 117, 120 (D.D.C. 2021). See also 19 Lujan, 504 U.S. at 576 (“the public interest in proper administration of the laws” is insufficient to 20 create Article III standing, regardless of “the source of the asserted right”); Wood v. Raffensperger, 21 981 F.3d 1307, 1314 (11th Cir. 2020) (“An injury to the right ‘to require that the government be 22 administered according to the law’ is a generalized grievance.” (quoting Chiles v. Thornburgh, 23 865 F.2d 1197, 1205–06 (11th Cir. 1989))), cert. denied, 141 S. Ct. 1379 (2021); Ickes v. Whitmer, 24 No. 1:22-CV-817, 2022 WL 4103030, at *3 (W.D. Mich. Sept. 8, 2022) (finding that “Plaintiffs 1 likely do not have standing to raise [their] concern about [allegedly uncertified] machines used in 2 the November 2022 election or the possible destruction of records” because they “have only a 3 generalized grievance that would be common among all people who cast a vote in the November 4 2022 election and not a particularized, individual injury”). 5 Plaintiffs also lack standing to assert their claims under 42 U.S.C. §§ 1983 and 1988
6 because those claims are derivative of their other claims, which the Court has already found they 7 lack standing to assert. Sections 1983 and 1988 do not create standing where it is otherwise lacking. 8 See Save Our Valley v. Sound Transit, 335 F.3d 932, 936 (9th Cir. 2003) (“One cannot go into 9 court and claim a ‘violation of § 1983’—for § 1983 by itself does not protect anyone against 10 anything.” (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002))); 42 U.S.C. § 1988 (granting 11 discretion to accord attorney’s fees to the “prevailing party” in a suit under § 1983). 12 Because Plaintiffs have asserted only generalized grievances, the Court finds that Plaintiffs 13 lack Article III standing to assert their federal claims. 14 2. The Court Lacks Supplemental Jurisdiction over Plaintiffs’ State Law Claims
15 WEICU and Defendants dispute whether the Court may exercise supplemental jurisdiction 16 over Plaintiffs’ state law claims. Dkt. No. 18 at 4–7; Dkt. No. 19 at 5–6. 17 Under 28 U.S.C. § 1367(a), a district court “shall have” supplemental jurisdiction over 18 claims that form part of the “same case or controversy” as claims within the court’s original 19 jurisdiction. However, “if the court dismisses [all federal claims] for lack of subject matter 20 jurisdiction, it has no discretion” under Section 1367 to adjudicate the plaintiff’s state-law claims 21 “and must dismiss all claims.” Herman Fam. Revocable Tr. v. Teddy Bear, 254 F.3d 802, 806 (9th 22 Cir. 2001); see also Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 664 (9th Cir. 2002) 23 (“[W]ith the dismissal of [plaintiff’s] federal constitutional claim for lack of standing, we have no 24 authority to retain jurisdiction over [his] state law claims.”). 1 Because the Court does not have subject matter jurisdiction over Plaintiffs’ federal claims 2 due to their lack of Article III standing, it has no discretion under 28 U.S.C. § 1367(c) to adjudicate 3 the remaining claims. Without subject matter jurisdiction, the Court is left to either dismiss or 4 remand Plaintiffs’ claims. See Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1196–98 (9th Cir. 5 2016).
6 B. Plaintiffs’ Claims Are Dismissed Because Remand Would Be Futile 7 “If at any time before final judgment it appears that the district court lacks subject matter 8 jurisdiction” over a case that has been removed from state court, “the case shall be remanded.” 28 9 U.S.C. § 1447(c); see also Polo, 833 F.3d at 1196 (a district court lacking subject matter 10 jurisdiction “generally must remand the case to state court, rather than dismiss it” (emphasis in 11 original)). Usually, “[r]emand is the correct remedy because a failure of federal subject-matter 12 jurisdiction means only that the federal courts have no power to adjudicate the matter. State courts 13 are not bound by the constraints of Article III.” Polo, 833 F.3d at 1196 (emphasis in original). 14 However, the Ninth Circuit has held that a district court may dismiss a case rather than remand it
15 to state court where it is “certain that a remand to state court would be futile.” Bell v. City of 16 Kellogg, 922 F.2d 1418, 1425 (9th Cir. 1991). Because remand of Plaintiffs’ claims to state court 17 is certain to be futile, the Court dismisses the claims instead of remanding them. 18 1. The Futility Exception 19 There is some doubt about the continued vitality of the futility exception. A few months 20 after the Ninth Circuit decided Bell, the Supreme Court issued an opinion in which it noted that 21 “the literal words of § 1447(c)” give “no discretion to dismiss rather than remand an action” over 22 which a district court lacks original jurisdiction. Int’l Primate Prot. League v. Administrators of 23 Tulane Educ. Fund, 500 U.S. 72, 89 (1991) (quoting Maine Ass’n of Interdependent 24 Neighborhoods v. Comm’r, Maine Dep’t of Hum. Servs., 876 F.2d 1051, 1054 (1st Cir. 1989)). 1 Although the Supreme Court “did not reject the futility doctrine outright,” the Ninth Circuit has 2 expressed concern that “[i]n the wake of International Primate, a number of other circuits have 3 expressly rejected the futility doctrine,” and it “may no longer be good law.” Polo v. Innoventions 4 Int’l, LLC, 833 F.3d 1193, 1197–98 (9th Cir. 2016) (citing Hill v. Vanderbilt Capital Advisors, 5 LLC, 702 F.3d 1220, 1225–26 (10th Cir. 2012) (collecting cases)). Despite this lingering doubt,
6 the Ninth Circuit in Polo declined to overrule Bell: “Polo has not argued that Bell is no longer 7 controlling law, and we decline to so hold sua sponte.” Id. at 1198. The Ninth Circuit reiterated 8 that, under the Bell rule, a district court may dismiss a case “only when the eventual outcome of 9 [the] case after remand is so clear as to be foreordained[.]” Id. 10 Since the 2016 decision in Polo, some district courts in the Ninth Circuit have concluded 11 that the futility exception is now merely “[h]istorical[].” Morgan v. Bank of Am., N.A., No. 2:20- 12 CV-00157-SAB, 2020 WL 3979660, at *2 (E.D. Wash. July 14, 2020); see also Washington v. 13 City of Sunnyside, No. 1:20-CV-3018-RMP, 2021 WL 4197368, at *2 (E.D. Wash. Aug. 26, 2021); 14 Mendoza v. Aldi Inc., No. 219CV06870ODWJEMX, 2019 WL 7284940, at *2 (C.D. Cal. Dec. 27,
15 2019); Alvarado v. Univ. of S. California, No. CV 17-3671-GW(AJWX), 2017 WL 8116092, at 16 *5 (C.D. Cal. Sept. 21, 2017). However, other district courts have continued to apply the exception. 17 See, e.g., Strojnik v. Super 8 Worldwide Inc., No. C21-0927-PHX-DWL, 2022 WL 613227, at *3 18 (D. Ariz. Mar. 2, 2022); Ross v. Hawaii Nurses’ Ass’n Off. & Pro. Emps. Int’l Union Loc. 50, 290 19 F. Supp. 3d 1136, 1148 (D. Haw. 2018); Advocs. for Individuals With Disabilities LLC v. MidFirst 20 Bank, 279 F. Supp. 3d 891, 895 & n.1 (D. Ariz. 2017). 21 There is good reason to embrace the concerns expressed in Polo about the validity of the 22 futility doctrine: as the Supreme Court and other courts have noted, it appears to contradict the 23 mandatory language of 28 U.S.C. § 1447(c). Int’l Primate, 500 U.S. at 89; Esteves v. SunTrust 24 Banks, Inc., 615 F. App’x 632, 636–37 (11th Cir. 2015) (“The Supreme Court has noted that the 1 literal words of § 1447(c) give district courts no discretion to dismiss rather than remand an action 2 when subject-matter jurisdiction is lacking . . . Whether the matter is justiciable under state law is 3 a matter for the state court to decide.”) (cleaned up); Wallace v. ConAgra Foods, Inc., 747 F.3d 4 1025, 1033 (8th Cir. 2014) (“If . . . the case did not originate in federal court but was removed 5 there by the defendants, the federal court must remand the case to the state court from whence it
6 came.” (emphasis in original)); Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557–58 (10th Cir. 7 2000) (“The plain language of § 1447(c) gives no discretion to dismiss rather than remand an 8 action removed from state court over which the court lacks subject-matter jurisdiction.”); 9 Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 214 (3d Cir. 1997) (“In light of the express 10 language of § 1447(c) and the Supreme Court’s reasoning in International Primate, we hold that 11 when a federal court has no jurisdiction of a case removed from a state court, it must remand and 12 not dismiss on the ground of futility.”).4 13 However, the Ninth Circuit has upheld application of the futility exception in several cases 14 since Bell. See, e.g., Strojnik v. Driftwood Hosp. Mgmt., LLC, No. 21-16060, 2022 WL 1642234,
15 at *1 (9th Cir. May 24, 2022) (“The district court properly denied [plaintiff’s] motion to remand 16 the actions to state court because remand would have been futile.”); Glob. Rescue Jets, LLC v. 17 Kaiser Found. Health Plan, Inc., 30 F.4th 905, 920 n.6 (9th Cir. 2022) (“A narrow ‘futility’ 18 exception to this general rule permits the district court to dismiss an action rather than remand it if 19 there is ‘absolute certainty’ that the state court would dismiss the action following remand.”); 20 Marshall v. Motel 6 Operating LP, 825 F. App’x 527, 528 (9th Cir. 2020) (“[W]e have recognized 21 a futility exception to the remand mandate in § 1447(c)[.]”); Rodriguez v. U.S. Healthworks, Inc., 22
23 4 It also seems counter to the long-established principle that “[w]ithout jurisdiction the court cannot proceed at all in any cause” for a court without jurisdiction to effectively decide the merits of a case. Ex parte McCardle, 74 U.S. (7 24 Wall.) 506, 514 (1868). 1 813 F. App’x 315, 316 (9th Cir. 2020) (noting that the futility doctrine applies “when a district 2 court has ‘absolute certainty’ that a state court would ‘simply dismiss the action on remand’” 3 (quoting Polo, 833 F.3d at 1198)). Because the Ninth Circuit explicitly declined to overrule Bell 4 in Polo and has continued to apply the doctrine after Polo, the Court concludes that Bell remains 5 binding precedent and therefore addresses whether it is certain that remand would be futile.
6 2. Dismissal of Plaintiffs’ Claims on Remand Is Effectively “Foreordained” 7 In this case, dismissal of Plaintiffs’ claims upon remand is effectively “foreordained.” Polo, 8 833 F.3d at 1198. This action is one of eight nearly identical actions originally filed in state court 9 in counties across Washington, six of which were removed to this Court. See supra at 2 n.1 (listing 10 removed cases). Both of the cases that remained in state courts have already been dismissed, 11 although appeals are currently pending. See Wash. Election Integrity Coal. United v. Beaton, No. 12 21-2-50572-11 (Wash. Sup. Ct. Dec. 13, 2021), appeal filed sub nom. Wash. Election Integrity 13 Coal. United v. Franklin Cnty., No. 391574 (Wash. Ct. App. Div. III Sept. 6, 2022); Wash. Election 14 Integrity Coal. United v. Schumacher, No. 21-2-00042-22 (Wash. Sup. Ct. Mar. 28, 2022), appeal
15 filed sub nom. Schulz v. Schumacher, No. 388841 (Wash. Ct. App. Div. III May 4, 2022). In 16 Schumacher, the court concluded that “Plaintiffs’ election claims are untimely and barred by 17 statute and the equitable doctrine of laches, that the respective Plaintiffs each lack standing to bring 18 the election claims alleged, . . . that Plaintiffs fail to state an election claim upon which relief may 19 be granted,” and “that Plaintiffs fail to state a claim upon which relief may be granted under the 20 Public Records Act.” No. 21-2-00042-22, slip. op. at 2 (Mar. 28, 2022). The court further found 21 that “Plaintiffs’ claims are frivolous and advanced without reasonable cause, are not well grounded 22 in fact or warranted by existing law or a good faith argument for the extension, modification, or 23 reversal of existing law or the establishment of new law, and were interposed for improper 24 purposes.” Id. Similarly, in Beaton, the court found that, “for the reasons stated in Defendants’ 1 Motion, Plaintiffs lack standing and have failed to state a claim upon which relief can be granted.” 2 No. 21-2-50572-11, slip. op. at 1 (Dec. 13, 2021). 3 The claims in the complaints that were dismissed in Schumacher and Beaton are nearly 4 identical to the claims in this case: Beaton contained a nearly identical claim for use of an 5 uncertified voting system, and Beaton and Schumacher both included nearly identical claims for
6 violations of the federal and state constitutions and the PRA; both cases also contained allegations 7 of vote flipping, additions, and/or deletions that are similar to the allegations of ballot tampering 8 in this case. See generally Second Amended Verified Complaint, Schumacher, No. 21-2-00042- 9 22 (Wash. Sup. Ct. Jan. 18, 2022) (“Schumacher Complaint”); First Amended Verified Complaint, 10 Beaton, No. 21-2-50572-11 (Wash. Sup. Ct. Oct. 11, 2021) (“Beaton Complaint”). Substantial 11 portions of all three complaints appear to be copied verbatim from one another. See generally 12 Schumacher Complaint; Beaton Complaint; Dkt. No. 1-2. 13 Although there are some differences between the allegations in each of these cases, those 14 differences are minor and could not plausibly justify a different outcome. For example, some of
15 the allegations in Beaton and Schumacher are absent from the complaint in this case: in Beaton, 16 plaintiffs included in their allegations of vote manipulation that “for several weeks during the 17 Election, Auditor experienced problems with the signature verification system used to verify ballot 18 envelope signatures, including without limitation, lost access to the state-supplied signature 19 database.” Beaton Complaint at 7; see also Schumacher Complaint at 5 (nearly identical 20 allegation). In Schumacher, plaintiffs also alleged that “the Auditor’s office experienced a 21 ransomware attack that, among other things, blocked access to County computers and election 22 systems which continued to be shut down through certification of the Election.” Schumacher 23 Complaint at 4–5. These allegations are made in addition to all the same allegations made in the 24 complaint in this case, and for purposes of remand futility amount to an inconsequential difference. 1 The complaint in this case does contain claims that are not present in either Beaton or 2 Schumacher: Plaintiffs argue that the Auditor permitted, oversaw, or directed “the alteration, and 3 possible outright crossing out, of electors’ votes,” and engaged in a “cover-up campaign to mislead 4 the public and prevent the public from learning the truth[.]” Dkt. No. 1-2 at 5. Plaintiffs also argue 5 that the “wrongful acts alleged . . . were facilitated in part by the lack of ballot security envelopes
6 for the ballots available online,” and that the Auditor failed to “adher[e] to the security envelope 7 requirement of RCW 29A.40.091(1).” Dkt. No. 1-2 at 9. But dismissal of these claims on remand 8 is just as assured as that of the claims that have already been specifically considered and rejected 9 in Schumacher and Beaton. This is because all of Plaintiffs’ state law claims other than the PRA 10 claim share a common defect: they depend upon Section 29A.68.013 of the Revised Code of 11 Washington (“Section 13”) as a vehicle for Plaintiffs’ requested relief. Dkt. No. 1-2 at 4–5, 8–10, 12 10. As relevant here, Section 13 states that a judge “shall, by order, require any person charged 13 with error, wrongful act, or neglect to forthwith correct the error, desist from the wrongful act, or 14 perform the duty and to do as the court orders” where an affidavit of an elector demonstrates that
15 “[a]n error or omission has occurred or is about to occur in the official certification of any . . . 16 election,” or that certain wrongful acts have been performed by, or a neglect of duty has occurred 17 on the part of, an election officer. Wash. Rev. Code § 29A.68.013. Importantly, Section 13 sets a 18 strict time limit: the elector’s affidavit “shall be filed with the appropriate court no later than ten 19 days following the official certification of the . . . election.” Id. The complaint was filed on 20 September 10, 2021, well past ten days after the certification of the 2020 general election. Dkt. 21 No. 1-2 at 1. 22 Plaintiffs do not allege that they complied with the time limit for filing actions under 23 Section 13. Rather, they argue that the 10-day limitations period does not apply to their claims 24 because they “are not seeking de-certification of the Election.” Dkt. No. 1-2 at 3. But the plain 1 language of Section 13 makes no exceptions, nor is relief under the section limited to de- 2 certification of the election. See Wash. Rev. Code § 29A.68.013. Plaintiffs expressly seek 3 injunctive relief under Section 13, and they are therefore required to satisfy Section 13’s 4 requirements before they may obtain any such relief. See In re Feb. 14, 2017, Special Election on 5 Moses Lake Sch. Dist. #161 Proposition 1, 413 P.3d 577, 580 (Wash. Ct. App. 2018) (the statute
6 “demands that an election contest be filed within ten days of the election’s certification”); see also, 7 e.g., Reid v. Dalton, 100 P.3d 349, 354 (Wash. Ct. App. 2004) (“Filing an action for declaratory 8 judgment, rather than one for direct relief, d[oes] not avoid the statute of limitation” for an election 9 challenge; “[w]here . . . a special statute of limitation applies, even a declaratory judgment action 10 is subject to the same statutory limitation.”). There is no colorable argument that Plaintiffs have 11 brought or can bring valid claims under Section 13.5 12 3. The Dismissal of WEICU’s PRA Claim Is Also “Foreordained” 13 WEICU’s PRA claim is also doomed under Washington law because Washington courts 14 have already decisively rejected its legal theory. WEICU seeks to “compel Defendants to provide
15 access to public records from the Election for a full forensic audit,” and asserts that a records 16 request it made under the PRA in August 2021 for “access to ballots or electronic images of the 17 ballots” was wrongly denied on the grounds that the documents being requested were exempt by 18 statute. Dkt. No. 1-2 at 6. 19 Under the PRA, “[a]n agency may lawfully withhold production of records if a specific 20 exemption applies.” White v. Clark Cnty. (White I), 401 P.3d 375, 378 (Wash. Ct. App. 2017). 21 “There are three sources of PRA exemptions: (1) enumerated exemptions contained in the PRA 22
5 Plaintiffs’ claims under the Washington State Constitution must also fail because the Washington Supreme Court 23 has “clearly established that the right to contest an election ‘rests solely upon, and is limited by, the provisions of the statute relative thereto,’” Becker v. Cnty. of Pierce, 890 P.2d 1055, 1058 (Wash. 1995) (quoting Quigley v. Phelps, 24 132 P. 738, 738 (Wash. 1913))—here, Section 13. 1 itself, (2) any other statute that exempts or prohibits disclosure, and (3) the Washington 2 Constitution.” Id. (cleaned up). The “other statute” exemption is found in Section 42.56.070(1) of 3 the Revised Code of Washington: “Each agency, in accordance with published rules, shall make 4 available for public inspection and copying all public records, unless the record falls within the 5 specific exemptions of . . . this chapter, or other statute which exempts or prohibits disclosure of
6 specific information or records.” Washington courts have squarely held that both Section 7 29A.60.110 of the Revised Code of Washington and Section 434-261-045 of the Washington 8 Administrative Code create a statutory exemption for ballots and ballot images under the “other 9 statute” exemption. White I, 401 P.3d at 378–80. 10 Section 434-261-045 of the Washington Administrative Code “unambiguously requires 11 that ballots be kept in secure storage at all times other than during processing, duplication, 12 inspection, and tabulation and states that they can only be accessed in accordance with RCW 13 29A.60.110 and 29A.60.125.” White I, 401 P.3d at 379–80 (emphasis in original). And Section 14 29A.60.110 of the Revised Code of Washington “unambiguously requires that tabulated ballots be
15 kept in sealed containers and can be opened by the canvassing board only in . . . specified 16 situations”: (1) as part of the canvass, (2) to conduct recounts, (3) to conduct a random check under 17 RCW 29A.60.170, (4) to conduct an audit under RCW 29A.60.185, or (5) by order of the superior 18 court in a contest or election dispute. White I, 401 P.3d at 379 (emphasis in original); see also 19 Wash. Rev. Code § 29A.60.110(2). None of these situations apply here. WEICU lacks the 20 authority to conduct a recount, random check, or audit. And, as discussed above, Plaintiffs failed 21 to file a timely election contest. Wash. Rev. Code § 29A.68.013; see also Becker, 890 P.2d at 1058. 22 Thus, WEICU’s arguments are without merit: Section 29A.60.110 of the Revised Code of 23 Washington does not authorize unsealing, and Section 434-261-045 of the Washington 24 Administrative Code—which provides procedures for handling damaged ballots—expressly states 1 that “ballots must be sealed in secure storage at all times, except during duplication, inspection by 2 the canvassing board, tabulation, or to conduct an audit under RCW 29A.60.185.” All of the 3 records WEICU requested fall under the “other statute” exemption. 4 WEICU makes several other arguments in support of its PRA claim, but those arguments 5 have already been rejected by Washington courts or are clearly contrary to existing law. First,
6 WEICU relies on its own interpretations of the Washington Constitution to argue that ballots 7 should be disclosed, Dkt. No. 1-2 at 7, but Washington courts have already rejected those 8 interpretations and have also held that Washington’s election statutes provide the sole means of 9 contesting an election. See Becker, 890 P.2d at 1058 (holding that the state constitution does not 10 create an independent right of action, and the election statutes are the only means of contesting an 11 election). Second, WEICU argues that the Washington Constitution “guarantees secrecy only in 12 the preparation and deposit of ballots, and says nothing about secrecy following an election[.]” 13 Dkt. No. 1-2 at 7 (emphasis in original). But under the PRA, “tabulated ballots are exempt in their 14 entirety from disclosure.” White I, 401 P.3d at 380. Third, WEICU argues that the Washington
15 Constitution “does not prohibit public access to unidentifiable ballots after an election.” Dkt. No. 16 1-2 at 7. Courts have rejected this proposition, too: “RCW 29A.60.110 and WAC 434-261-045 17 provide categorical exemptions, not conditional ones,” and “no amount of redaction will transform 18 the ballots into some other type of record.” White I, 401 P.3d at 380; see also White v. Skagit Cnty. 19 (White II), 355 P.3d 1178, 1185 (Wash. Ct. App. 2015) (“The constitutional mandate of absolute 20 secrecy could not be adequately accomplished by just having government employees use their own 21 discretion as to what is identifying on a ballot and what needs redaction.” (emphasis in original)). 22 Fourth, WEICU cites various Washington statutes and regulations permitting access to ballots or 23 ballot images, Dkt. No. 1-2 at 7–8, but those statutes and regulations only permit access under a 24 limited set of specified circumstances that do not exist here, as already explained. Finally, WEICU 1 asserts that “[n]umerous courts outside of Washington State have ruled that ballots are public 2 records and subject to inspection,” id. at 8, but Washington courts have found such cases 3 unpersuasive because “they were decided within different statutory frameworks and under 4 different factual circumstances,” White II, 355 P.3d at 1184. And these courts’ interpretation of 5 the statutory framework at issue here weighs decisively against WEICU’s claims. For these
6 reasons, it is a “foreordained” conclusion that WEICU’s PRA claim would be dismissed on 7 remand, as the virtually identical claims in Schumacher and Beaton already have been. 8 In sum, remand of Plaintiffs’ claims would be futile: dismissal of the claims is 9 “foreordained” because they are clearly foreclosed by Washington law. Polo, 833 F.3d at 1198. 10 IV. CONCLUSION 11 For the reasons stated above, the Court DENIES WEICU’s motion to remand, Dkt. No. 11, 12 and sua sponte DISMISSES Plaintiffs’ claims without prejudice. See Collier, 889 F.3d at 897 (a 13 suit dismissed for lack of jurisdiction cannot also be dismissed with prejudice). The Washington 14 State Democratic Central Committee’s Motion to Intervene, Dkt. No. 14, is DENIED as moot.
15 Dated this 30th day of September, 2022. 16 A 17 Lauren King United States District Judge 18 19 20 21 22 23 24