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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 WASHINGTON ELECTION INTEGRITY CASE NO. 3:21-cv-05746-LK 11 COALITION UNITED et al., ORDER DENYING MOTION TO 12 Plaintiffs, REMAND, GRANTING MOTION v. TO DISMISS, AND DENYING GREG KIMSEY et al., 14 Defendants. 15 16 This matter comes before the Court on Washington Election Integrity Coalition United’s 17 (“WEICU’s”) motion to remand and a motion to dismiss filed by Clark County and Clark County 18 Auditor Greg Kimsey (“Defendants”). Dkt. Nos. 16, 17. Because the individual Plaintiffs lack 19 Article III standing and the Court has no supplemental jurisdiction over the remaining state law 20 claims, and because remand to state court would be futile, the Court dismisses 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 Clark County Superior 2 Court on September 16, 2021. Dkt. No. 1-1 at 1. Their claims center on the conduct of the 3 November 2020 general election in Clark County, Washington. 4 The individual Plaintiffs2 bring claims against the Clark County Auditor for (1) allowing 5 or facilitating fraudulent alterations of the voting results (which Plaintiffs describe as “vote
6 flipping, additions, and/or deletions”); (2) maintaining records of County elector party preference 7 and identifying County electors’ ballots by party preference; and (3) violating the United States 8 Constitution and the Washington State Constitution. Dkt. No. 1-1 at 4–12. For each of these alleged 9 “wrongful acts,” the individual Plaintiffs seek declaratory and injunctive relief. Id. They also seek 10 damages against the Auditor for civil rights violations under 42 U.S.C. §§ 1983 and 1988. Id. at 11 13. WEICU’s sole claim is against the Auditor and Clark County under Washington’s Public 12 Records Act (“PRA”), Wash. Rev. Code §§ 42.56.001–42.56.900, for wrongfully denying 13 WEICU’s records request for “original ballots, ballot images, spoiled ballots, adjudication records, 14 ballot envelopes, and returned ballots for the Election.” Dkt. No. 1-1 at 7–9. WEICU seeks to
15 “compel Defendants to provide access to public records from the Election for a full forensic audit.” 16 Id. at 8. 17 Defendants removed the case to this Court on October 7, 2021. Dkt. No. 1. On October 22, 18 19 20 1 The five other removed actions are Washington Election Integrity Coalition United v. Fell, No. C21-1354-LK; Washington Election Integrity Coalition United v. Anderson, No. C21-5726-LK; Washington Election Integrity 21 Coalition United v. Wise, No. C21-1394-LK; Washington Election Integrity Coalition United v. Bradrick, No. C21- 1386-LK; and Washington Election Integrity Coalition United v. Hall, No. C21-5787-LK. 22 2 The individual Plaintiffs are Brett Simpson, Bonnie Grieco, Jonette Molyneux, Ross Merritt, Tamara Shaw, Harlyn Thompson, Kimberlee Elbon, Robert Ward, Constance Cooke, Doreen Rose, Shirley Mozena, James Mozena, 23 Michelle Dawson, Lindsey Nichols, Joseph Kent, Roxanne Pearce, David Machado, Joshua Bradley, Bennett Esrael, Jake Farmer, Rich Audette, Maria Bruemmer, Joseph Gibson, Eric Hargrave, Wendy Keeline, Phillip Hogan, Marili 24 Haas, Ike Haas, Frank Gmelin, Tricia Shoup, Jen Holbrook, Stephen Clements, Kimberly Anderson, and Susan Audette. Dkt. No. 1-1 at 15–22. 1 2021, WEICU filed a motion to remand.3 Dkt. No. 16. On October 25, 2021, Defendants moved 2 to dismiss Plaintiffs’ claims under Federal Rules of Civil Procedure 12(b)(2), (4), (5), and (6). Dkt. 3 No. 17. 5 Oddly, Defendants removed this action on the basis that this Court has original jurisdiction
6 over it under 28 U.S.C. § 1331, Dkt. No. 1 at 2, and then sought to dismiss the action on the basis 7 that the individual Plaintiffs lack Article III standing to bring their claims, Dkt. No. 17 at 4–6. The 8 only other Plaintiff at that time was WEICU, which purported to assert only a state law claim. Dkt. 9 No. 1-1 at 7–9. 10 28 U.S.C. § 1441 allows a defendant to remove an action filed in state court to federal 11 district court where the federal district court has original jurisdiction. The Ninth Circuit “strictly 12 construe[s] the removal statute against removal jurisdiction,” and “[f]ederal jurisdiction must be 13 rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 14 980 F.2d 564, 566 (9th Cir. 1992). “The ‘strong presumption’ against removal jurisdiction means
15 that the defendant always has the burden of establishing that removal is proper.” Id. Ultimately, if 16 a district court lacks subject matter jurisdiction over a removed action, it usually has the duty to 17 remand it, for “removal is permissible only where original jurisdiction exists at the time of removal 18 or at the time of the entry of final judgment[.]” Lexecon, Inc. v. Milberg Weiss Bershad Hynes & 19 Lerach, 523 U.S. 26, 43 (1998); see 28 U.S.C. § 1441(a). 20 Because the Court lacks subject matter jurisdiction over Plaintiffs’ federal claims, it cannot 21 exercise supplemental jurisdiction over any of Plaintiffs’ state law claims and must either remand 22 23 3 WEICU had previously filed a “Motion to Strike Notice of Removal” seeking remand. Dkt. No. 12. However, 24 because WEICU filed the motion without being represented by counsel, the Court struck the motion. Dkt. No. 14. An attorney for WEICU then made an appearance on October 17, 2021. Dkt. No. 15. 1 or dismiss the entire case. The Court dismisses the Plaintiffs’ claims because remand to state court 2 would be futile. 3 A. Because the Individual Plaintiffs Do Not Have Article III Standing, this Court Lacks Subject Matter Jurisdiction over Their Claims 4 At the outset, the Court recognizes that the right at issue in this case—the right to vote and 5 have that vote counted—is “a fundamental matter in a free and democratic society.” Reynolds v. 6 Sims, 377 U.S. 533, 561–62 (1964). But a voter seeking relief in federal court for alleged violations 7 of constitutional rights must have standing to do so, including “a personal stake in the outcome, 8 distinct from a generally available grievance about government.” Gill v. Whitford, 138 S. Ct. 1916, 9 1923 (2018) (cleaned up). “[A] suit brought by a plaintiff without Article III standing is not a ‘case 10 or controversy,’ and an Article III federal court therefore lacks subject matter jurisdiction over the 11 suit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). Article III’s “case or 12 controversy” requirement thus obligates federal courts to determine, as an initial matter, whether 13 plaintiffs have standing to bring suit. Lance v. Coffman, 549 U.S. 437, 439 (2007). 14 As the party invoking federal jurisdiction, Defendants bear the burden of establishing the 15 existence of a case or controversy under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 16 561 (1992); see also Tailford v. Experian Info. Sols., Inc., 26 F.4th 1092, 1099 (9th Cir. 2022). 17 “To establish Article III standing, an injury must be ‘concrete, particularized, and actual or 18 imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” 19 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Monsanto Co. v. Geertson Seed 20 Farms, 561 U.S. 139, 149 (2010)). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff 21 in a personal and individual way.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting 22 Lujan, 504 U.S. at 560 n.1). The injury must also be “concrete”; “that is, it must actually exist.” 23 Id. at 339–40. Because Defendants themselves argue that the individual Plaintiffs lack Article III 24 1 standing, Dkt. No. 17 at 4–6, they have failed to meet their burden to establish that the Court has 2 subject matter jurisdiction over these claims, see Britton v. Cnty. of Santa Cruz, No. 19-CV-04263- 3 LHK, 2020 WL 4197609, at *4 (N.D. Cal. July 22, 2020). 4 Defendants urge the Court to dismiss Plaintiffs’ claims because they raise only generalized 5 grievances and do not identify any particularized individual injury. Dkt. No. 17 at 4–6. These
6 challenges are evaluated under Federal Rule of Civil Procedure 12(b)(1). Maya v. Centex Corp., 7 658 F.3d 1060, 1067 (9th Cir. 2011). Defendants advance both factual and facial challenges to the 8 individual Plaintiffs’ standing. In reviewing a factual challenge, the court may consider materials 9 beyond the complaint, Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 10 2003), “weigh the evidence[,] and satisfy itself as to the existence of its power to hear the case,” 11 Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). In reviewing a facial 12 attack, however, the inquiry is confined to the allegations in the complaint, and the court assumes 13 all materials allegations in the complaint are true. Savage, 343 F.3d at 1039 n.2. However, “[t]his 14 is not to say that plaintiff may rely on a bare legal conclusion to assert injury-in-fact, or engage in
15 an ‘ingenious academic exercise in the conceivable’ to explain how defendants’ actions caused his 16 injury.” Maya, 658 F.3d at 1068 (internal footnotes omitted) (quoting United States v. Students 17 Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689–90 (1973)). 18 The Supreme Court has “consistently held that a plaintiff raising only a generally available 19 grievance about government—claiming only harm to his and every citizen’s interest in proper 20 application of the Constitution and laws, and seeking relief that no more directly and tangibly 21 benefits him than it does the public at large—does not state an Article III case or controversy.” 22 Lance, 549 U.S. at 439 (quoting Lujan, 504 U.S. at 573–74 (1992)); see also Warth v. Seldin, 422 23 U.S. 490, 499 (1975) (“[T]he Court has held that when the asserted harm is a ‘generalized 24 grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone 1 normally does not warrant exercise of jurisdiction.”). Accordingly, and in recognition “that a 2 person’s right to vote is ‘individual and personal in nature,’” courts have long held that “‘voters 3 who allege facts showing disadvantage to themselves as individuals have standing to sue’ to 4 remedy that disadvantage.” Gill, 138 S. Ct. at 1929 (emphasis added) (quoting Reynolds, 377 U.S. 5 at 561 and Baker v. Carr, 369 U.S. 186, 206 (1962)). As Defendants contend, Plaintiffs fail to
6 show such disadvantage and therefore lack Article III standing. 7 1. Plaintiffs Do Not Allege that They Suffered Any “Concrete, Particularized, and Actual or Imminent” Injury from the Alleged Misconduct by the Auditor 8 Plaintiffs’ claims each follow a similar pattern: they allege a violation of law, ask the Court 9 to declare the Auditor’s duties under the law and enjoin her from violating the law, and then state 10 that they “will suffer irreparable injury” from violations of their constitutional rights: 11 Allegation Requested “Injury” 12 Declaration/Injunction Plaintiffs “are informed and Declare “Plaintiffs’ rights and the “Plaintiffs will suffer irreparable believe” that the Auditor duties of Auditor with regard to the injury in that their fundamental 13 “allow[ed] and/or facilitate[ed] alleged vote flipping, additions rights under the Washington State electronic manipulation of the and/or deletions before, during Constitution and/or United States 14 voting results from the [2020] and/or after the [2020] Election,” Constitution . . . will be further Election,” and that “a portion of and to restrain the Auditor from violated.” Id. at 5. the state-wide vote flipping, “allowing and/or facilitating 15 additions and/or deletions occurred electronic manipulation of the in the County’s Election overseen voting results for any election held 16 by Auditor.” Dkt. No. 1-1 at 4. in the County.” Id. at 5–6. Plaintiffs “are informed and Declare “Plaintiffs’ rights and the Same as above. See id. 17 believe” that the Auditor allowed or duties of Auditor with regard to the facilitated (1) maintenance of a alleged party preference conduct,” 18 record of County voters’ party and restrain the Auditor from preference and (2) identification of “allowing and/or facilitating party County voters’ ballots cast in the preference tracking and/or ballot 19 2020 election by party preference. identification.” Id. at 7. I d. at 6. 20 Auditor’s conduct violated the Declare “Plaintiffs’ rights and the Same as above, id. at 12, and: United States Constitution, duties of Auditor, as they pertain to 21 including the Fourteenth the [2020] Election and future “Because Auditor failed to follow Amendment. Id. at 10–12. elections in the County,” and state and federal law,” County 22 restrain the Auditor from allowing voters “were denied their or facilitating vote flipping, fundamental right of suffrage 23 a ad lld oi wti io nn gs oa rn fd a/ co ir l id tae tl ie nt gio pn as, r ta yn d/or w “hi ath do tu ht e d vu ae l up er o oc fe ts hs e o irf vla ow te” s and preference tracking and/or ballot diluted, and the will of said voters 24 identification. Id. at 12. denied, without due process of 1 Allegation Requested “Injury” Declaration/Injunction 2 law,” and County voters’ ballots “were not treaty equally nor given equal levels of protection under the 3 law.” Id. at 11.
4 In none of these allegations do Plaintiffs claim that they suffered any “concrete, 5 particularized, and actual or imminent” injury from the Auditor’s alleged misconduct. Although 6 Plaintiffs do not explain their theory of vote dilution, it appears to be based on general allegations 7 of election irregularities that affected the votes of all “qualified electors” in the County. See Dkt. 8 No. 1-1 at 11 (because “Auditor failed to follow state and federal law,” “[q]ualified electors who 9 voted similarly had the value of their votes diluted”). “As courts have routinely explained, vote 10 dilution is a very specific claim that involves votes being weighed differently and cannot be used 11 generally to allege voter fraud.” Bowyer v. Ducey, 506 F. Supp. 3d 699, 711 (D. Ariz. 2020). See 12 also Feehan v. Wis. Elections Comm’n, 506 F. Supp. 3d 596, 609 (E.D. Wis. Dec. 9, 2020) 13 (plaintiff lacked standing where his “alleged injuries are injuries that any Wisconsin voter suffers 14 if the Wisconsin election process were . . . so riddled with fraud, illegality, and statistical 15 impossibility” that its results could not be certified); Martel v. Condos, 487 F. Supp. 3d 247, 253 16 (D. Vt. 2020) (“A vote cast by fraud or mailed in by the wrong person through mistake has a 17 mathematical impact on the final tally and thus on the proportional effect of every vote, but no 18 single voter is specifically disadvantaged.”); Paher v. Cegavske, 457 F. Supp. 3d 919, 926 (D. 19 Nev. 2020) (“Plaintiffs’ purported injury of having their votes diluted due to ostensible election 20 fraud may be conceivably raised by any Nevada voter.”); Am. C.R. Union v. Martinez-Rivera, No. 21 2:14-CV-026-AM-CW, 2015 WL 13650011, at *7 (W.D. Tex. Feb. 23, 2015) (speculative 22 complaints of “potential vote dilution are nothing but a generalized grievance about government, 23 complaining that an official should be required to follow the law.”). While Plaintiffs speculate that 24 the Auditor tracked or identified ballots by “party preference,” Dkt. No. 1-1 at 6, they do not 1 suggest that any votes were weighed differently, including their own. Thus, although allegations 2 of vote dilution may create standing in some circumstances, they do not do so here. 3 Similarly, Plaintiffs never assert that they were personally harmed by any of Defendants’ 4 alleged conduct with respect to the manipulation of voting results or the tracking of party 5 preference. See generally Dkt. No. 1-1. To the extent Plaintiffs argue more broadly that they
6 maintain an interest in government officials conducting an election in conformity with the 7 Constitution, “they merely assert a ‘generalized grievance’ stemming from an attempt to have the 8 Government act in accordance with their view of the law.” Wis. Voters All. v. Pence, 514 F. Supp. 9 3d 117, 120 (D.D.C. 2021). See also Lujan, 504 U.S. at 576 (“the public interest in proper 10 administration of the laws” is insufficient to create Article III standing, regardless of “the source 11 of the asserted right”); Wood v. Raffensperger, 981 F.3d 1307, 1314 (11th Cir. 2020) (“An injury 12 to the right ‘to require that the government be administered according to the law’ is a generalized 13 grievance.” (quoting Chiles v. Thornburgh, 865 F.2d 1197, 1205–06 (11th Cir. 1989))), cert. 14 denied, 141 S. Ct. 1379 (2021); Ickes v. Whitmer, No. 1:22-CV-817, 2022 WL 4103030, at *3
15 (W.D. Mich. Sept. 8, 2022) (finding that “Plaintiffs likely do not have standing to raise [their] 16 concern about [allegedly uncertified] machines used in the November 2022 election or the possible 17 destruction of records” because they “have only a generalized grievance that would be common 18 among all people who cast a vote in the November 2022 election and not a particularized, 19 individual injury”). 20 Plaintiffs also lack standing to assert their claims under 42 U.S.C. §§ 1983 and 1988 21 because those claims are derivative of their other claims, which the Court has already found they 22 lack standing to assert. Sections 1983 and 1988 do not create standing where it is otherwise lacking. 23 See Save Our Valley v. Sound Transit, 335 F.3d 932, 936 (9th Cir. 2003) (“One cannot go into 24 court and claim a ‘violation of § 1983’—for § 1983 by itself does not protect anyone against 1 anything.” (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002))); 42 U.S.C. § 1988 (granting 2 discretion to accord attorney’s fees to the “prevailing party” in a suit under § 1983).4 3 Defendants’ motion to dismiss the individual Plaintiffs’ claims was opposed by WEICU 4 and joined by all but two of the individual Plaintiffs,5 Dkt. Nos. 29, 31, but Plaintiffs’ opposition 5 briefs fail to demonstrate that any of the individual Plaintiffs have standing. WEICU’s opposition
6 contends that WEICU has standing to bring its PRA claim under section 42.56.550 of the Revised 7 Code of Washington, Dkt. No. 29 at 3, but it does not address Article III standing at all. See 8 generally id.; Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985) (“Standing to sue in any 9 Article III court is, of course, a federal question which does not depend on the party’s prior 10 standing in state court.”). The individual Plaintiffs’ notice of joinder also fails to address the 11 standing issue. See generally Dkt. No. 31. 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. 25 at 4–8; Dkt. No. 28 at 4–5. 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 4 The Court does not consider Defendants’ argument that Plaintiffs failed to serve Auditor Greg Kimsey in his personal 22 capacity because the Court has already found that it lacks subject matter jurisdiction to hear the claims naming him as a defendant. See Dkt. No. 17 at 3–4; Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007) 23 (“[A] federal court has leeway to choose among threshold grounds for denying audience to a case on the merits.” (cleaned up)). Finally, because the Court finds in favor of Defendants on their facial challenges to Plaintiffs’ standing, it does not address their factual challenges. 24 5 Michelle Dawson and David Machado did not sign the notice of joinder. Dkt. No. 31 at 6. 1 “and must dismiss all claims.” Herman Fam. Revocable Tr. v. Teddy Bear, 254 F.3d 802, 806 (9th 2 Cir. 2001); see also Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 664 (9th Cir. 2002) 3 (“[W]ith the dismissal of [plaintiff’s] federal constitutional claim for lack of standing, we have no 4 authority to retain jurisdiction over [his] state law claims.”). 5 Because the Court does not have subject matter jurisdiction over Plaintiffs’ federal claims
6 due to their lack of Article III standing, it has no discretion under 28 U.S.C. § 1367(c) to adjudicate 7 the remaining claims. Without subject matter jurisdiction, the Court is left to either dismiss or 8 remand Plaintiffs’ claims. See Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1196–98 (9th Cir. 9 2016). 10 B. Plaintiffs’ Claims Are Dismissed Because Remand Would Be Futile 11 “If at any time before final judgment it appears that the district court lacks subject matter 12 jurisdiction” over a case that has been removed from state court, “the case shall be remanded.” 28 13 U.S.C. § 1447(c); see also Polo, 833 F.3d at 1196 (a district court lacking subject matter 14 jurisdiction “generally must remand the case to state court, rather than dismiss it” (emphasis in
15 original)). Usually, “[r]emand is the correct remedy because a failure of federal subject-matter 16 jurisdiction means only that the federal courts have no power to adjudicate the matter. State courts 17 are not bound by the constraints of Article III.” Polo, 833 F.3d at 1196 (emphasis in original). 18 However, the Ninth Circuit has held that a district court may dismiss a case rather than remand it 19 to state court where it is “certain that a remand to state court would be futile.” Bell v. City of 20 Kellogg, 922 F.2d 1418, 1425 (9th Cir. 1991). Because remand of Plaintiffs’ claims to state court 21 is certain to be futile, the Court dismisses the claims instead of remanding them. 22 1. The Futility Exception 23 There is some doubt about the continued vitality of the futility exception. A few months 24 after the Ninth Circuit decided Bell, the Supreme Court issued an opinion in which it noted that 1 “the literal words of § 1447(c)” give “no discretion to dismiss rather than remand an action” over 2 which a district court lacks original jurisdiction. Int’l Primate Prot. League v. Administrators of 3 Tulane Educ. Fund, 500 U.S. 72, 89 (1991) (quoting Maine Ass’n of Interdependent 4 Neighborhoods v. Comm’r, Maine Dep’t of Hum. Servs., 876 F.2d 1051, 1054 (1st Cir. 1989)). 5 Although the Supreme Court “did not reject the futility doctrine outright,” the Ninth Circuit has
6 expressed concern that “[i]n the wake of International Primate, a number of other circuits have 7 expressly rejected the futility doctrine,” and it “may no longer be good law.” Polo v. Innoventions 8 Int’l, LLC, 833 F.3d 1193, 1197–98 (9th Cir. 2016) (citing Hill v. Vanderbilt Capital Advisors, 9 LLC, 702 F.3d 1220, 1225–26 (10th Cir. 2012) (collecting cases)). Despite this lingering doubt, 10 the Ninth Circuit in Polo declined to overrule Bell: “Polo has not argued that Bell is no longer 11 controlling law, and we decline to so hold sua sponte.” Id. at 1198. The Ninth Circuit reiterated 12 that, under the Bell rule, a district court may dismiss a case “only when the eventual outcome of 13 [the] case after remand is so clear as to be foreordained[.]” Id. 14 Since the 2016 decision in Polo, some district courts in the Ninth Circuit have concluded
15 that the futility exception is now merely “[h]istorical[].” Morgan v. Bank of Am., N.A., No. 2:20- 16 CV-00157-SAB, 2020 WL 3979660, at *2 (E.D. Wash. July 14, 2020); see also Washington v. 17 City of Sunnyside, No. 1:20-CV-3018-RMP, 2021 WL 4197368, at *2 (E.D. Wash. Aug. 26, 2021); 18 Mendoza v. Aldi Inc., No. 219CV06870ODWJEMX, 2019 WL 7284940, at *2 (C.D. Cal. Dec. 27, 19 2019); Alvarado v. Univ. of S. California, No. CV 17-3671-GW(AJWX), 2017 WL 8116092, at 20 *5 (C.D. Cal. Sept. 21, 2017). However, other district courts have continued to apply the exception. 21 See, e.g., Strojnik v. Super 8 Worldwide Inc., No. C21-0927-PHX-DWL, 2022 WL 613227, at *3 22 (D. Ariz. Mar. 2, 2022); Ross v. Hawaii Nurses’ Ass’n Off. & Pro. Emps. Int’l Union Loc. 50, 290 23 F. Supp. 3d 1136, 1148 (D. Haw. 2018); Advocs. for Individuals With Disabilities LLC v. MidFirst 24 Bank, 279 F. Supp. 3d 891, 895 & n.1 (D. Ariz. 2017). 1 There is good reason to embrace the concerns expressed in Polo about the validity of the 2 futility doctrine: as the Supreme Court and other courts have noted, it appears to contradict the 3 mandatory language of 28 U.S.C. § 1447(c). Int’l Primate, 500 U.S. at 89; Esteves v. SunTrust 4 Banks, Inc., 615 F. App’x 632, 636–37 (11th Cir. 2015) (“The Supreme Court has noted that the 5 literal words of § 1447(c) give district courts no discretion to dismiss rather than remand an action
6 when subject-matter jurisdiction is lacking . . . Whether the matter is justiciable under state law is 7 a matter for the state court to decide.”) (cleaned up); Wallace v. ConAgra Foods, Inc., 747 F.3d 8 1025, 1033 (8th Cir. 2014) (“If . . . the case did not originate in federal court but was removed 9 there by the defendants, the federal court must remand the case to the state court from whence it 10 came.” (emphasis in original)); Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557–58 (10th Cir. 11 2000) (“The plain language of § 1447(c) gives no discretion to dismiss rather than remand an 12 action removed from state court over which the court lacks subject-matter jurisdiction.”); 13 Bromwell v. Michigan Mut. Ins. Co., 115 F.3d 208, 214 (3d Cir. 1997) (“In light of the express 14 language of § 1447(c) and the Supreme Court’s reasoning in International Primate, we hold that
15 when a federal court has no jurisdiction of a case removed from a state court, it must remand and 16 not dismiss on the ground of futility.”).6 17 18 6 It also seems counter to the long-established principle that “[w]ithout jurisdiction the court cannot proceed at all in 19 any cause” for a court without jurisdiction to effectively decide the merits of a case. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868). This is especially true where defendants have engaged in the “dubious strategy” of removing the case on the basis that the federal court has original jurisdiction under 28 U.S.C. § 1331, Dkt. No. 1 at 2, only to 20 then move to dismiss on the basis that the plaintiffs’ claims do not establish Article III standing, Dkt. No. 17 at 4–6.. See Collier v. SP Plus Corp., 889 F.3d 894, 895–97 (7th Cir. 2018) (noting that defendants’ “dubious strategy” of 21 removing on the basis that “the district court had federal-question jurisdiction” and then “mov[ing] to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of Article III standing” “resulted in a significant waste of federal judicial resources, much of which was avoidable.”); Perna v. Health One Credit Union, 983 F.3d 22 258, 273 (6th Cir. 2020) (“there is something ‘anomalous’ about the [defendant] removing this suit to federal court on the ground that the court had jurisdiction and then arguing to the very same court that it lacks jurisdiction”); Zanotti 23 v. Invention Submission Corp., No. 18-CV-5893 (NSR), 2020 WL 2857304, at *11 (S.D.N.Y. June 2, 2020) (“[I]f InventHelp Defendants were truly concerned about expense and the preservation of judicial resources, their litigation 24 strategy would not have involved invoking this Court's jurisdiction only to immediately challenge it on standing grounds.”). 1 However, the Ninth Circuit has upheld application of the futility exception in several cases 2 since Bell. See, e.g., Strojnik v. Driftwood Hosp. Mgmt., LLC, No. 21-16060, 2022 WL 1642234, 3 at *1 (9th Cir. May 24, 2022) (“The district court properly denied [plaintiff’s] motion to remand 4 the actions to state court because remand would have been futile.”); Glob. Rescue Jets, LLC v. 5 Kaiser Found. Health Plan, Inc., 30 F.4th 905, 920 n.6 (9th Cir. 2022) (“A narrow ‘futility’
6 exception to this general rule permits the district court to dismiss an action rather than remand it if 7 there is ‘absolute certainty’ that the state court would dismiss the action following remand.”); 8 Marshall v. Motel 6 Operating LP, 825 F. App’x 527, 528 (9th Cir. 2020) (“[W]e have recognized 9 a futility exception to the remand mandate in § 1447(c)[.]”); Rodriguez v. U.S. Healthworks, Inc., 10 813 F. App’x 315, 316 (9th Cir. 2020) (noting that the futility doctrine applies “when a district 11 court has ‘absolute certainty’ that a state court would ‘simply dismiss the action on remand’” 12 (quoting Polo, 833 F.3d at 1198)). Because the Ninth Circuit explicitly declined to overrule Bell 13 in Polo and has continued to apply the doctrine after Polo, the Court concludes that Bell remains 14 binding precedent and therefore addresses whether it is certain that remand would be futile.
15 2. Dismissal of Plaintiffs’ Claims on Remand Is Effectively “Foreordained” 16 In this case, dismissal of Plaintiffs’ claims upon remand is effectively “foreordained.” Polo, 17 833 F.3d at 1198. This action is one of eight nearly identical actions originally filed in state court 18 in counties across Washington, six of which were removed to this Court. See supra at 2 n.1 (listing 19 removed cases). Both of the cases that remained in state courts have already been dismissed, 20 although appeals are currently pending. See Wash. Election Integrity Coal. United v. Beaton, No. 21 21-2-50572-11 (Wash. Sup. Ct. Dec. 13, 2021), appeal filed sub nom. Wash. Election Integrity 22 Coal. United v. Franklin Cnty., No. 391574 (Wash. Ct. App. Div. III Sept. 6, 2022); Wash. Election 23 Integrity Coal. United v. Schumacher, No. 21-2-00042-22 (Wash. Sup. Ct. Mar. 28, 2022), appeal 24 filed sub nom. Schulz v. Schumacher, No. 388841 (Wash. Ct. App. Div. III May 4, 2022). In 1 Schumacher, the court concluded that “Plaintiffs’ election claims are untimely and barred by 2 statute and the equitable doctrine of laches, that the respective Plaintiffs each lack standing to bring 3 the election claims alleged, . . . that Plaintiffs fail to state an election claim upon which relief may 4 be granted,” and “that Plaintiffs fail to state a claim upon which relief may be granted under the 5 Public Records Act.” No. 21-2-00042-22, slip. op. at 2 (Mar. 28, 2022). The court further found
6 that “Plaintiffs’ claims are frivolous and advanced without reasonable cause, are not well grounded 7 in fact or warranted by existing law or a good faith argument for the extension, modification, or 8 reversal of existing law or the establishment of new law, and were interposed for improper 9 purposes.” Id. Similarly, in Beaton, the court found that, “for the reasons stated in Defendants’ 10 Motion, Plaintiffs lack standing and have failed to state a claim upon which relief can be granted.” 11 No. 21-2-50572-11, slip. op. at 1 (Dec. 13, 2021). 12 The claims in the complaints that were dismissed in Schumacher and Beaton are nearly 13 identical to the claims in this case: Beaton and Schumacher both included nearly identical claims 14 of allowing or facilitating vote flipping, additions and/or deletions, party preference tracking, and
15 federal and state constitutional violations premised on those claims, as well as PRA claims. See 16 generally Second Amended Verified Complaint, Schumacher, No. 21-2-00042-22 (Wash. Sup. Ct. 17 Jan. 18, 2022) (“Schumacher Complaint”); First Amended Verified Complaint, Beaton, No. 21-2- 18 50572-11 (Wash. Sup. Ct. Oct. 11, 2021) (“Beaton Complaint”). Substantial portions of all three 19 complaints appear to be copied verbatim from one another. See generally Schumacher Complaint; 20 Beaton Complaint; Dkt. No. 1-1. 21 Although there are some differences between the allegations in each of these cases, those 22 differences are minor and could not plausibly justify a different outcome. For example, some of 23 the allegations in Beaton and Schumacher are absent from the complaint in this case: in Beaton, 24 plaintiffs included in their allegations of vote manipulation that “for several weeks during the 1 Election, Auditor experienced problems with the signature verification system used to verify ballot 2 envelope signatures, including without limitation, lost access to the state-supplied signature 3 database.” Beaton Complaint at 7; see also Schumacher Complaint at 5 (nearly identical 4 allegation). Plaintiffs in Beaton alleged that defendants used an uncertified voting system, Beaton 5 Complaint at 4, while in Schumacher, plaintiffs also alleged that “the Auditor’s office experienced
6 a ransomware attack that, among other things, blocked access to County computers and election 7 systems which continued to be shut down through certification of the Election.” Schumacher 8 Complaint at 4–5. These allegations are made in addition to all the same allegations made in the 9 complaint in this case, and for purposes of remand futility amount to an inconsequential difference. 10 In addition to the other grounds for dismissal, all of Plaintiffs’ state law claims other than 11 the PRA claim share a common defect: they depend upon Section 29A.68.013 of the Revised Code 12 of Washington (“Section 13”) as a vehicle for Plaintiffs’ requested relief. Dkt. No. 1-1 at 4, 6. As 13 relevant here, Section 13 states that a judge “shall, by order, require any person charged with error, 14 wrongful act, or neglect to forthwith correct the error, desist from the wrongful act, or perform the
15 duty and to do as the court orders” where an affidavit of an elector demonstrates that “[a]n error 16 or omission has occurred or is about to occur in the official certification of any . . . election,” or 17 that certain wrongful acts have been performed by, or a neglect of duty has occurred on the part 18 of, an election officer. Wash. Rev. Code § 29A.68.013. Importantly, Section 13 sets a strict time 19 limit: the elector’s affidavit “shall be filed with the appropriate court no later than ten days 20 following the official certification of the . . . election.” Id. The complaint was filed on September 21 16, 2021, well past ten days after the certification of the 2020 general election. Dkt. No. 1-1 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. 1-1 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 13.7 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 “original ballots, ballot images, spoiled ballots, 17 adjudication records, ballot envelopes, and returned ballots” was wrongly denied on the grounds 18 that the documents being requested were exempt by statute. Dkt. No. 1-1 at 8. 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 7 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. See also Dkt. No. 31 at 4 (“Plaintiffs pro se agree that there is no state court cause of action for state constitutional actions”). 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. 1-1 at 8, 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. 1-1 at 8 (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 1-1 at 8. 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. 1-1 at 8–9, 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 9, 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. 11 For the reasons stated above, the Court DENIES WEICU’s motion to remand, Dkt. No. 16, 12 and GRANTS Defendants’ motion to dismiss Plaintiffs’ claims, Dkt. No. 17, without prejudice. 13 See Collier, 889 F.3d at 897 (a suit dismissed for lack of jurisdiction cannot also be dismissed with 14 prejudice). The Washington State Democratic Central Committee’s Motion to Intervene, Dkt. No.
15 22, is DENIED as moot. 16 Dated this 30th day of September, 2022. 17 A 18 Lauren King United States District Judge 19 20 21 22 23 24