Washington Election Integrity Coalition United v. Wise

Opinion

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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-01394-LK 11 COALITION UNITED et al., ORDER GRANTING MOTION TO 12 Plaintiffs, REMAND, DENYING MOTION TO v. DISMISS, DENYING MOTION 13 FOR SANCTIONS, AND DENYING JULIE WISE et al., MOTION TO INTERVENE 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 King County and Director of 18 King County Elections Julie Wise (“Defendants”). Dkt. Nos. 12, 17. Because the individual 19 Plaintiffs lack Article III standing and the Court has no supplemental jurisdiction over the 20 remaining state law claims, and because remand to state court is not certain to be futile, the Court 21 remands the case. However, the Court retains jurisdiction over Defendants’ motion for sanctions, 22 and denies it. Dkt. No. 26. 23 24 2 This action is one of several nearly identical actions originally filed in state court by 3 WEICU and numerous pro se plaintiffs in counties across Washington, and one of six such actions 4 that have been removed to this Court.1 Plaintiffs filed their complaint in King County Superior 5 Court on September 22, 2021. Dkt. No. 1 at 1–2. Their claims center on the conduct of the

6 November 2020 general election in King County, Washington. 7 The individual Plaintiffs2 bring claims against the Director of King County Elections 8 (“Director”) for (1) using an uncertified voting system; (2) allowing or facilitating fraudulent 9 alterations of the voting results (which Plaintiffs describe as “vote flipping, additions, and/or 10 deletions”); (3) maintaining records of County elector party preference and identifying County 11 electors’ ballots by party preference; (4) allowing or facilitating “loosely connected zip ties on 12 ballot collection and/or storage boxes,” thereby preventing a secure chain of custody and allowing 13 for the insertion or removal of ballots; and (5) violating the United States Constitution and the 14 Washington State Constitution. Dkt. No. 1-1 at 5–12, 14–17. For each of these alleged “wrongful

15 acts,” the individual Plaintiffs seek declaratory and injunctive relief. Id. They also seek damages 16 against the Director for civil rights violations under 42 U.S.C. §§ 1983 and 1988. Id. at 17–18. 17 WEICU’s sole claim is against the Director and King County under Washington’s Public Records 18 Act (“PRA”), Wash. Rev. Code §§ 42.56.001–42.56.900, for wrongfully denying WEICU’s 19 records request for “original ballots, ballot images, spoiled ballots, adjudication records, ballot 20 21 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 22 Coalition United v. Anderson, No. C21-5726-LK; Washington Election Integrity Coalition United v. Bradrick, No. C21-1386-LK; and Washington Election Integrity Coalition United v. Hall, No. C21-5787-LK. 23 2 The individual Plaintiffs are Doug Basler, Howard Ferguson, Diana Bass, Timofey Samoylenko, Mary Hallowell, Samantha Bucari, Ronald Stewart, Lydia Zibin, and Catherine Dodson. Dkt. No. 1-1 at 20–22. Plaintiff Amy Behope’s 24 claims were dismissed pursuant to a stipulation between Behope and Defendants. Dkt. No. 24. 1 envelopes, and returned ballots for the Election.” Dkt. No. 1-1 at 12. WEICU seeks to “compel 2 Defendants to provide access to public records from the Election for a full forensic audit.” Id. 3 Defendants removed the case to this Court on October 13, 2021. Dkt. No. 1. On October 4 20, 2021, Defendants answered the complaint, Dkt. No. 10, and filed counterclaims seeking 5 declaratory relief stating that ballots, ballot images, and ballot envelopes containing voter

6 signatures are exempt from disclosure under the PRA, and injunctive relief precluding WEICU 7 from obtaining ballots, ballot images, or ballot envelopes containing voter signatures under the 8 PRA. Id. at 18–19. Defendants amended their answer and counterclaims on November 8, 2021. 9 Dkt. No. 21. 10 On October 22, 2021, WEICU filed a motion to remand. Dkt. No. 12. On November 4, 11 2021, Defendants moved to dismiss Plaintiffs’ claims under Federal Rule of Civil Procedure 12(c). 12 Dkt. No. 17. 14 Oddly, Defendants removed this action on the basis that this Court has original jurisdiction

15 over it under 28 U.S.C. § 1331, Dkt. No. 1 at 2, and then sought to dismiss the action on the basis 16 that the individual Plaintiffs lack Article III standing to bring their claims, Dkt. No. 17 at 9–11. As 17 Defendants acknowledged, the only other Plaintiff at that time was WEICU, which purported to 18 assert only a state law claim. Dkt. No. 1-1 at 12–14; Dkt. No. 17 at 20. 19 28 U.S.C. § 1441 allows a defendant to remove an action filed in state court to federal 20 district court where the federal district court has original jurisdiction. The Ninth Circuit “strictly 21 construe[s] the removal statute against removal jurisdiction,” and “[f]ederal jurisdiction must be 22 rejected if there is any doubt as to the right of removal in the first instance.” Gaus v. Miles, Inc., 23 980 F.2d 564, 566 (9th Cir. 1992). “The ‘strong presumption’ against removal jurisdiction means 24 that the defendant always has the burden of establishing that removal is proper.” Id. Ultimately, if 1 a district court lacks subject matter jurisdiction over a removed action, it usually has the duty to 2 remand it, for “removal is permissible only where original jurisdiction exists at the time of removal 3 or at the time of the entry of final judgment[.]” Lexecon, Inc. v. Milberg Weiss Bershad Hynes & 4 Lerach, 523 U.S. 26, 43 (1998); see 28 U.S.C. § 1441(a). 5 A. Because the Individual Plaintiffs Do Not Have Article III Standing, this Court Lacks Subject Matter Jurisdiction over Their Claims 6 At the outset, the Court recognizes that the right at issue in this case—the right to vote and 7 have that vote counted—is “a fundamental matter in a free and democratic society.” Reynolds v. 8 Sims, 377 U.S. 533, 561–62 (1964). But a voter seeking relief in federal court for alleged violations 9 of constitutional rights must have standing to do so, including “a personal stake in the outcome, 10 distinct from a generally available grievance about government.” Gill v. Whitford, 138 S. Ct. 1916, 11 1923 (2018) (cleaned up). “[A] suit brought by a plaintiff without Article III standing is not a ‘case 12 or controversy,’ and an Article III federal court therefore lacks subject matter jurisdiction over the 13 suit.” Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004). Article III’s “case or 14 controversy” requirement thus obligates federal courts to determine, as an initial matter, whether 15 plaintiffs have standing to bring suit. Lance v. Coffman, 549 U.S. 437, 439 (2007). 16 As the party invoking federal jurisdiction, Defendants bear the burden of establishing the 17 existence of a case or controversy under Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 18 561 (1992); see also Tailford v. Experian Info. Sols., Inc., 26 F.4th 1092, 1099 (9th Cir. 2022). 19 “To establish Article III standing, an injury must be ‘concrete, particularized, and actual or 20 imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’” 21 Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Monsanto Co. v. Geertson Seed 22 Farms, 561 U.S. 139, 149 (2010)). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff 23 in a personal and individual way.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016) (quoting 24 1 Lujan, 504 U.S. at 560 n.1). The injury must also be “concrete”; “that is, it must actually exist.” 2 Id. at 339–40. Because Defendants themselves argue that the individual Plaintiffs lack Article III 3 standing, Dkt. No. 17 at 9–11, they have failed to meet their burden to establish that the Court has 4 subject matter jurisdiction over these claims, see Britton v. Cnty. of Santa Cruz, No. 19-CV-04263- 5 LHK, 2020 WL 4197609, at *4 (N.D. Cal. July 22, 2020).

6 Defendants urge the Court to dismiss Plaintiffs’ claims because they raise only generalized 7 grievances and do not identify any particularized individual injury. Dkt. No. 17 at 9–11. These 8 challenges are evaluated under Federal Rule of Civil Procedure 12(b)(1). Maya v. Centex Corp., 9 658 F.3d 1060, 1067 (9th Cir. 2011). The inquiry is confined to the allegations in the complaint, 10 and the court assumes all materials allegations in the complaint are true. Savage v. Glendale Union 11 High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). However, “[t]his is not to say that plaintiff 12 may rely on a bare legal conclusion to assert injury-in-fact, or engage in an ‘ingenious academic 13 exercise in the conceivable’ to explain how defendants’ actions caused his injury.” Maya, 658 F.3d 14 at 1068 (internal footnotes omitted) (quoting United States v. Students Challenging Regulatory

15 Agency Procedures (SCRAP), 412 U.S. 669, 689–90 (1973)). 16 The Supreme Court has “consistently held that a plaintiff raising only a generally available 17 grievance about government—claiming only harm to his and every citizen’s interest in proper 18 application of the Constitution and laws, and seeking relief that no more directly and tangibly 19 benefits him than it does the public at large—does not state an Article III case or controversy.” 20 Lance, 549 U.S. at 439 (quoting Lujan, 504 U.S. at 573–74 (1992)); see also Warth v. Seldin, 422 21 U.S. 490, 499 (1975) (“[T]he Court has held that when the asserted harm is a ‘generalized 22 grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone 23 normally does not warrant exercise of jurisdiction.”). Accordingly, and in recognition “that a 24 person’s right to vote is ‘individual and personal in nature,’” courts have long held that “‘voters 1 who allege facts showing disadvantage to themselves as individuals have standing to sue’ to 2 remedy that disadvantage.” Gill, 138 S. Ct. at 1929 (emphasis added) (quoting Reynolds, 377 U.S. 3 at 561 and Baker v. Carr, 369 U.S. 186, 206 (1962)). As Defendants contend, Plaintiffs fail to 4 show such disadvantage and therefore lack Article III standing. 5 1. Plaintiffs Do Not Allege that They Suffered Any “Concrete, Particularized, and Actual or Imminent” Injury from the Alleged Misconduct by the Director 6 Plaintiffs’ claims each follow a similar pattern: they allege a violation of law, ask the Court 7 to declare the Director’s duties under the law and enjoin her from violating the law, and then state 8 that they “will suffer irreparable injury” from violations of their constitutional rights: 9 Allegation Requested Declaration/Injunction “Injury” 10 Plaintiffs “are informed and Declare “Plaintiffs’ rights and the “Plaintiffs will suffer believe” that the Director used an duties of Director as they pertain to the irreparable injury in that their 11 uncertified voting system. Dkt. No. Uncertified Voting System” used in the fundamental rights under the 1-1 at 5. 2020 election and in future elections, Washington State Constitution and restrain the Director from using and/or United States 12 any uncertified voting system. Id. at 6– Constitution . . . will be further 7. violated.” Id. at 6–7. 13 Plaintiffs “are informed and Declare “Plaintiffs’ rights and the Same as above. See id. believe” that the Director duties of Director with regard to the 14 “allow[ed] and/or facilitate[ed] alleged vote flipping, additions and/or electronic manipulation of the deletions before, during and/or after the 15 voting results from the [2020] [2020] Election,” and restrain the Election,” and that “a portion of Director from “allowing and/or the state-wide vote flipping, facilitating electronic manipulation of 16 additions and/or deletions occurred the voting results for any election held in the County’s [2020] Election in the County.” Id. at 8. 17 overseen by Director.” Id. at 7–8. Plaintiffs “are informed and Declare the “Plaintiffs’ rights and the Same as above. See id. at 10. 18 believe” that the Director allowed duties of Director with regard to the or facilitated (1) maintenance of a alleged party preference conduct,” and 19 record of County voters’ party restrain the Director from “allowing preference and (2) identification of and/or facilitating party preference County voters’ ballots cast in the tracking and/or ballot identification.” 20 2020 election by party preference. Id. at 10. Id. at 9. 21 22 23 24 1 Allegation Requested Declaration/Injunction “Injury” Plaintiffs “are informed and Declare “Plaintiffs’ rights and the Same as above. See id. at 12. 2 believe” that Director allowed duties of Director with regard to the and/or facilitated "loosely above alleged wrongful acts” and 3 connected zip ties on ballot restrain Director from “allowing and/or collection and/or storage boxes facilitating loosely connected zip ties preventing a secure chain of on ballot collection and/or storage 4 custody and allowing, inter alia, boxes preventing a secure chain of space for insertion and/or removal custody and allowing, inter alia, space 5 of original ballots." Id. at 11. for insertion and/or removal of original ballots.” Id. at 11. 6 Director’s conduct violated the Declare “Plaintiffs’ rights and the Same as above, id. at 16, and: United States Constitution, duties of Director, as they pertain to the including the Fourteenth [2020] Election and future elections in “Because Director failed to 7 Amendment. Id. at 14–16. the County,” and restrain the Director follow state and federal law,” from using an uncertified voting County voters “were denied 8 system, allowing or facilitating vote their fundamental right of flipping, additions and/or deletions, suffrage without due process 9 allowing or facilitating party preference of law” and “had the value of tracking and/or ballot identification, their votes diluted, and the will and/or allowing or facilitating “loosely of said voters denied, without 10 connected zip ties on ballot collection due process of law,” and a nd/or storage boxes.” Id. at 16–17. County voters’ ballots “were 11 not treaty equally nor given equal levels of protection under the law.” Id. at 15–16. 12

In none of these allegations do Plaintiffs claim that they suffered any “concrete, 13 particularized, and actual or imminent” injury from the Director’s alleged misconduct. Although 14 Plaintiffs do not explain their theory of vote dilution, it appears to be based on general allegations 15 of election irregularities that affected the votes of all “qualified electors” in the County. See Dkt. 16 No. 1-1 at 15 (because “Director failed to follow state and federal law,” “[q]ualified electors who 17 voted similarly had the value of their votes diluted”). “As courts have routinely explained, vote 18 dilution is a very specific claim that involves votes being weighed differently and cannot be used 19 generally to allege voter fraud.” Bowyer v. Ducey, 506 F. Supp. 3d 699, 711 (D. Ariz. 2020). See 20 also Feehan v. Wis. Elections Comm’n, 506 F. Supp. 3d 596, 609 (E.D. Wis. Dec. 9, 2020) 21 (plaintiff lacked standing where his “alleged injuries are injuries that any Wisconsin voter suffers 22 if the Wisconsin election process were . . . so riddled with fraud, illegality, and statistical 23 impossibility” that its results could not be certified); Martel v. Condos, 487 F. Supp. 3d 247, 253 24 1 (D. Vt. 2020) (“A vote cast by fraud or mailed in by the wrong person through mistake has a 2 mathematical impact on the final tally and thus on the proportional effect of every vote, but no 3 single voter is specifically disadvantaged.”); Paher v. Cegavske, 457 F. Supp. 3d 919, 926 (D. 4 Nev. 2020) (“Plaintiffs’ purported injury of having their votes diluted due to ostensible election 5 fraud may be conceivably raised by any Nevada voter.”); Am. C.R. Union v. Martinez-Rivera, No.

6 2:14-CV-026-AM-CW, 2015 WL 13650011, at *7 (W.D. Tex. Feb. 23, 2015) (speculative 7 complaints of “potential vote dilution are nothing but a generalized grievance about government, 8 complaining that an official should be required to follow the law.”). While Plaintiffs speculate that 9 the Director tracked or identified ballots by “party preference,” Dkt. No. 1-1 at 9, they do not 10 suggest that any votes were weighed differently, including their own. Thus, although allegations 11 of vote 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 the use of an uncertified voting system, the manipulation of voting 14 results, the tracking of party preference, or the use of zip ties on ballot collection and storage boxes.

15 See generally Dkt. No. 1-1. Even to the extent that their allegations regarding the use of zip ties, 16 construed charitably, can be interpreted as asserting an injury personal to Plaintiffs, any such injury 17 is too uncertain and speculative to confer Article III standing. Plaintiffs assert that the use of 18 “loosely connected zip ties on ballot collection and/or storage boxes prevent[ed] a secure chain of 19 custody and allow[ed], inter alia, space for insertion and/or removal of original ballots.” Dkt. No. 20 1-1 at 11. But the claim that the use of loosely connected zip ties “allowed space for” the improper 21 insertion or removal of ballots is merely speculation about possible injury that is insufficient to 22 establish an injury-in-fact for purposes of Article III standing. See Clapper, 568 U.S. at 409 (a 23 threatened injury must be “certainly impending” to constitute injury in fact). 24 1 To the extent Plaintiffs argue more broadly that they maintain an interest in government 2 officials conducting an election in conformity with the Constitution, “they merely assert a 3 ‘generalized grievance’ stemming from an attempt to have the Government act in accordance with 4 their view of the law.” Wis. Voters All. v. Pence, 514 F. Supp. 3d 117, 120 (D.D.C. 2021). See also 5 Lujan, 504 U.S. at 576 (“the public interest in proper administration of the laws” is insufficient to

6 create Article III standing, regardless of “the source of the asserted right”); Wood v. Raffensperger, 7 981 F.3d 1307, 1314 (11th Cir. 2020) (“An injury to the right ‘to require that the government be 8 administered according to the law’ is a generalized grievance.” (quoting Chiles v. Thornburgh, 9 865 F.2d 1197, 1205–06 (11th Cir. 1989))), cert. denied, 141 S. Ct. 1379 (2021); Ickes v. Whitmer, 10 No. 1:22-CV-817, 2022 WL 4103030, at *3 (W.D. Mich. Sept. 8, 2022) (finding that “Plaintiffs 11 likely do not have standing to raise [their] concern about [allegedly uncertified] machines used in 12 the November 2022 election or the possible destruction of records” because they “have only a 13 generalized grievance that would be common among all people who cast a vote in the November 14 2022 election and not a particularized, individual injury”).

15 Plaintiffs also lack standing to assert their claims under 42 U.S.C. §§ 1983 and 1988 16 because those claims are derivative of their other claims, which the Court has already found they 17 lack standing to assert. Sections 1983 and 1988 do not create standing where it is otherwise lacking. 18 See Save Our Valley v. Sound Transit, 335 F.3d 932, 936 (9th Cir. 2003) (“One cannot go into 19 court and claim a ‘violation of § 1983’—for § 1983 by itself does not protect anyone against 20 anything.” (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002))); 42 U.S.C. § 1988 (granting 21 discretion to accord attorney’s fees to the “prevailing party” in a suit under § 1983).3 22

23 3 The Court does not consider Defendants’ argument that individual Plaintiffs have conceded that the motion to dismiss has merit because they failed to file any opposition, Dkt. No. 31 at 4, because the Court has already found that it lacks subject matter jurisdiction to hear the individual Plaintiffs’ claims. See Sinochem Int’l Co. v. Malaysia Int’l Shipping 24 1 WEICU opposes Defendants’ motion to dismiss the individual Plaintiffs’ claims, but its 2 opposition fails to demonstrate that it or any of the individual Plaintiffs have standing. Although 3 the opposition brief argues that Defendants improperly removed the case to federal court, Dkt. No. 4 29 at 2, it does not address the standing issue at all. See generally id.; Phillips Petroleum Co. v. 5 Shutts, 472 U.S. 797, 804 (1985) (“Standing to sue in any Article III court is, of course, a federal

6 question which does not depend on the party’s prior standing in state court.”). 7 Because Plaintiffs have asserted only generalized grievances, the Court finds that Plaintiffs 8 lack Article III standing to assert their federal claims. 9 2. The Court Lacks Supplemental Jurisdiction over Plaintiffs’ State Law Claims and Defendants’ Counterclaims 10 WEICU and Defendants dispute whether the Court may exercise supplemental jurisdiction 11 over Plaintiffs’ state law claims. Dkt. No. 25 at 4–5; Dkt. No. 28 at 5. 12 Under 28 U.S.C. § 1367(a), a district court “shall have” supplemental jurisdiction over 13 claims that form part of the “same case or controversy” as claims within the court’s original 14 jurisdiction. However, “if the court dismisses [all federal claims] for lack of subject matter 15 jurisdiction, it has no discretion” under Section 1367 to adjudicate the plaintiff’s state-law claims 16 “and must dismiss all claims.” Herman Fam. Revocable Tr. v. Teddy Bear, 254 F.3d 802, 806 (9th 17 Cir. 2001); see also Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 664 (9th Cir. 2002) 18 (“[W]ith the dismissal of [plaintiff’s] federal constitutional claim for lack of standing, we have no 19 authority to retain jurisdiction over [his] state law claims.”). 20 Because the Court does not have subject matter jurisdiction over Plaintiffs’ federal claims 21 due to their lack of Article III standing, it has no discretion under 28 U.S.C. § 1367(c) to adjudicate 22 23 Corp., 549 U.S. 422, 431 (2007) (“[A] federal court has leeway to choose among threshold grounds for denying 24 audience to a case on the merits.” (cleaned up)). 1 the remaining state law claims, including Defendants’ counterclaims. Dkt. No. 21 at 13–19. 2 Without subject matter jurisdiction, the Court is left to either dismiss or remand the claims 3 in this case. See Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1196–98 (9th Cir. 2016). 4 B. The Case Is Remanded Because It Is Not Certain that Remand of Defendants’ Counterclaims Would Be Futile 5 “If at any time before final judgment it appears that the district court lacks subject matter 6 jurisdiction” over a case that has been removed from state court, “the case shall be remanded.” 28 7 U.S.C. § 1447(c); see also Polo, 833 F.3d at 1196 (a district court lacking subject matter 8 jurisdiction “generally must remand the case to state court, rather than dismiss it” (emphasis in 9 original)). Usually, “[r]emand is the correct remedy because a failure of federal subject-matter 10 jurisdiction means only that the federal courts have no power to adjudicate the matter. State courts 11 are not bound by the constraints of Article III.” Polo, 833 F.3d at 1196 (emphasis in original). 12 However, the Ninth Circuit has held that a district court may dismiss a case rather than remand it 13 to state court where it is “certain that a remand to state court would be futile.” Bell v. City of 14 Kellogg, 922 F.2d 1418, 1425 (9th Cir. 1991).4 Here, it is not certain that remand of Defendants’ 15 counterclaims would be futile. 16 Defendants assert two counterclaims. First, they seek declaratory relief under Section 17 42.56.070 of the Revised Code of Washington clarifying their obligations under the PRA; 18 specifically, that “ballots, ballot images and voter signatures on ballot envelopes are exempt from 19 public disclosure under the Public Records Act[.]” Dkt. No. 21 at 13, 18. Second, Defendants seek 20

21 4 There is some doubt about the continued vitality of the futility exception. See Int’l Primate Prot. League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 89 (1991); Polo v. Innoventions Int’l, LLC, 833 F.3d 1193, 1197– 22 98 (9th Cir. 2016) (“[i]n the wake of International Primate, a number of other circuits have expressly rejected the futility doctrine,” and it “may no longer be good law.”). However, the Ninth Circuit has upheld application of the futility exception in several cases since Bell. See, e.g., Strojnik v. Driftwood Hosp. Mgmt., LLC, No. 21-16060, 2022 23 WL 1642234, at *1 (9th Cir. May 24, 2022); Glob. Rescue Jets, LLC v. Kaiser Found. Health Plan, Inc., 30 F.4th 905, 920 n.6 (9th Cir. 2022); Marshall v. Motel 6 Operating LP, 825 F. App’x 527, 528 (9th Cir. 2020); Rodriguez v. U.S. 24 Healthworks, Inc., 813 F. App’x 315, 316 (9th Cir. 2020). 1 a permanent injunction under Section 42.56.540 of the Revised Code of Washington “precluding 2 WEICU from obtaining ballots, ballot images and voter signatures on ballot envelopes.” Id. at 19. 3 Defendants’ interpretation of the PRA appears to have merit. Under the PRA, “[a]n agency 4 may lawfully withhold production of records if a specific exemption applies.” White v. Clark Cnty. 5 (White I), 401 P.3d 375, 378 (Wash. Ct. App. 2017). “There are three sources of PRA exemptions:

6 (1) enumerated exemptions contained in the PRA itself, (2) any other statute that exempts or 7 prohibits disclosure, and (3) the Washington Constitution.” Id. (cleaned up). The “other statute” 8 exemption is found in Section 42.56.070(1) of the Revised Code of Washington: “Each agency, in 9 accordance with published rules, shall make available for public inspection and copying all public 10 records, unless the record falls within the specific exemptions of . . . this chapter, or other statute 11 which exempts or prohibits disclosure of specific information or records.” Washington courts have 12 squarely held that both Section 29A.60.110 of the Revised Code of Washington and Section 434- 13 261-045 of the Washington Administrative Code create a statutory exemption for ballots and ballot 14 images under the “other statute” exemption. White I, 401 P.3d at 378–80.

15 Section 434-261-045 of the Washington Administrative Code “unambiguously requires 16 that ballots be kept in secure storage at all times other than during processing, duplication, 17 inspection, and tabulation and states that they can only be accessed in accordance with RCW 18 29A.60.110 and 29A.60.125.” White I, 401 P.3d at 379–80 (emphasis in original). And Section 19 29A.60.110 of the Revised Code of Washington “unambiguously requires that tabulated ballots be 20 kept in sealed containers and can be opened by the canvassing board only in . . . specified 21 situations”: (1) as part of the canvass, (2) to conduct recounts, (3) to conduct a random check under 22 RCW 29A.60.170, (4) to conduct an audit under RCW 29A.60.185, or (5) by order of the superior 23 court in a contest or election dispute. White I, 401 P.3d at 379 (emphasis in original); see also 24 Wash. Rev. Code § 29A.60.110(2). None of these situations appears to apply here. Furthermore, 1 Section 29A.68.013 of the Revised Code of Washington sets a strict ten-day time limit for election 2 contests, and that time limit has long passed with respect to the 2020 election. All of the records 3 that are the subject of Defendants’ counterclaims—“ballots, ballot images and voter signatures on 4 ballot envelopes,” Dkt. No. 21 at 19—thus appear to fall under the “other statute” exemption. 5 Because the failure of Defendants’ counterclaims is not “so clear as to be foreordained,”

6 Polo, 833 F.3d at 1198, the Court must remand them to state court along with the rest of the case. 7 See Platt v. Moore, 15 F.4th 895, 909 (9th Cir. 2021) (“Section 1447(c) requires remand of the 8 entire ‘case’ when jurisdiction is lacking[.]”). And because the Court has determined that remand 9 of Defendants’ counterclaims is not certain to be futile, it need not address the futility of remanding 10 the remaining claims in the case. 11 C. Defendants’ Motion for Sanctions 12 Despite its lack of subject matter jurisdiction over the claims in this case, the Court retains 13 jurisdiction over Defendants’ motion for sanctions, Dkt. No. 26, under Federal Rule of Civil 14 Procedure 11. See Willy v. Coastal Corp., 503 U.S. 131, 138 (1992); Retail Flooring Dealers of

15 Am., Inc. v. Beaulieu of Am., LLC, 339 F.3d 1146, 1150 (9th Cir. 2003). Defendants ask this Court 16 to impose sanctions on Plaintiffs under Rule 11 because Plaintiffs failed to make an adequate 17 factual inquiry into their claims and because “[t]hey filed their claims despite substantial authority 18 that they lack standing.” Dkt. No. 26 at 7–11. Because the Court is disposing of this case based on 19 Article III standing grounds only and otherwise makes no findings as to Plaintiffs’ claims or their 20 standing in state court due to its lack of subject matter jurisdiction, the Court declines to impose 21 sanctions. 23 For the reasons stated above, the Court GRANTS WEICU’s motion to remand, Dkt. No. 24 12, DENIES Defendants’ motion to dismiss Plaintiffs’ claims, Dkt. No. 17, and DENIES 1 Defendants’ motion for sanctions, Dkt. No. 26. The Washington State Democratic Central 2 Committee’s Motion to Intervene, Dkt. No. 14, is DENIED as moot. The Court accordingly 3 ORDERS that: 4 1. Pursuant to 28 U.S.C. § 1367(c), all further proceedings in this case are 5 REMANDED to the Superior Court for King County in the State of Washington;

6 2. Pursuant to 28 U.S.C. § 1447(c), the Clerk of the Court shall mail a certified copy 7 of this Order to the Clerk of the Court for the Superior Court for King County 8 Washington; 9 3. The Clerk of the Court shall also transmit the record herein to the Clerk of the Court 10 for the Superior Court for King County, Washington; and 11 4. The Clerk of the Court shall CLOSE this case. 12 Dated this 30th day of September, 2022. 13 A 14 Lauren King United States District Judge 15 16 17 18 19 20 21 22 23 24