THE UNITED STATES DISTRICT COURT FOR THE …moritzlaw.osu.edu/electionlaw/litigation/documents/JohnsonsAmended... · the united states district court for the southern district of

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THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

VOTING FOR AMERICA, INC. *

BRAD RICHEY AND *

PENELOPE MCFADDEN *

*

Plaintiffs *

*

Vs. * No. 12-CV-00044

*

HOPE ANDRADE AND *

CHERYL E. JOHNSON *

*

Defendants *

DEFENDANT CHERYL JOHNSON’S AMENDED

BRIEF IN SUPPORT OF HERMOTION TO DISMISS

COME NOW THE DEFENDANT Cheryl Johnson, and pursuant to Fed.R.Civ.P.

Rule 12(b) (1) & (6) files this amended brief in support of her motion to dismiss; this

amendment is to clarify the prior filing (Document 10) Attachments to the original brief

are incorporated herein by reference.

TABLE OF CONTENTS

TABLE OF AUTHORITIES 3

STATEMENT OF THE PROCEEDINGS 5

STATEMENT OF PARTIES 5

STATEMENT OF THE ISSUES 5

I. THE PLAINTIFF’S CLAIMS AGAINST JOHNSON 5

SHOULD BE DISMISSED FOR LACK OF

JURISDICTION UNDER FED.R.CIV.P. RULE 12(B)(1).

II. THE PLAINTIFF’S CLAIMS AGAINST JOHNSON 5

SHOULD BE DISMISSED FOR FAILURE TO

STATE A CLAIM FED.R.CIV.P. RULE 12(B)(6).

Case 3:12-cv-00044 Document 22 Filed in TXSD on 04/13/12 Page 1 of 21

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STATEMENT OF PLEADED FACTS 6

STATEMENT OF THE PLAINTIFF’S CLAIMS 7

SUMMARY OF THE ARGUMENT 8

ARGUMENT AND AUTHORITIES 9

I. THE PLAINTIFF’S CLAIMS AGAINST JOHNSON 9

SHOULD BE DISMISSED FOR LACK OF

JURISDICTION UNDER FED.R.CIV.P. RULE 12(B)(1).

a. Standards under Rule 12(b)(1). 9

b. The plaintiffs do not have standing to proceed 11

against Cheryl Johnson under the NVRA

i. VFA has no standing under the NVRA 11

ii. Neither Richey or McFadden have standing under the NVRA 12

c. The plaintiffs do not have standing to proceed against 13

Cheryl Johnson under the First and Fourteenth Amendments

d. The plaintiffs have no standing under the Election Code 15

or the Voting Rights Act of 1965 as related to SB 14.

e. Conclusion under Rule 12(b)(1). 16

II. THE PLAINTIFF’S CLAIMS AGAINST JOHNSON 17

SHOULD BE DISMISSED FOR FAILURE TO STATE

A CLAIM UNDER FED.R.CIV.P. RULE 12(B)(6).

a. Standards under Rule 12(b)(6). 17

b. The plaintiffs have failed to state a claim 18

against Cheryl Johnson upon which relief maybe granted.

c. Conclusion under Rule 12(b)(6) 19

PRAYER FOR RELIEF 19

CERTIFICATE OF SERVICE 20


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APPENDIX (attached to original Brief)

TABLE OF AUTHORITIES

Supreme Court

Albright v. Oliver,

510 U.S. 266, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994) 14

Arizona Christian School Tuition Organization v. Winn

131 S.Ct. 1436, 179 L.Ed.2d 523 (2011). 10

Ashcroft v. Iqbal,

556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) 18

Bd. Of County Comm. Of Bryan County v. Brown,

520 U.S. 397, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997), 14

Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007). 17

Carey v. Population Servs. Int'l,

431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977) 10

City of Canton v. Harris

489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). 14

Erickson v. Pardus,

551 U.S. 89, 127 S. Ct. 2197, 167 L.Ed.2d 1081 (2007) 17

Kentucky v. Graham,

473 U.S. 159, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), 14

Lujan v. Defenders of Wildlife,

504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). 12, 13

Monell v. New York City Dep't of Social Services,

436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). 14

Fifth Circuit

Colle v. Brazos County,

981 F.2d 237 (5TH

Cir. 1997) 15


4

Lowery v. Texas A&M Univ. Sys.

117 F.3d 242, 245-47 (5th Cir. 1997). 17

Johnston v. Harris Cty. Flood Control Dist.,

869 F.2d 1565, 1574 (5th Cir.1989). 14

Piotrowski v. City of Houston,

51 F.3d 512, 517 (5th Cir. 1995) 15

Ramming v. U.S.

281 F.3d 158, (5th Cir. 2001). 9

Spiller v. City of Texas City Police Dept.,

130 F.3d 162, 167 (5th Cir. 1997). 15

Stern v. Hinds County, Miss.,

2011 WL 3557343 *1 (5th Cir. 2011) 14

Other Circuits

Harkless v. Bruner,

545 F.3d 445 (6th Cir. 2008) 11

US District- Texas

Graniczny v, City of El Paso et al,

2011 WL 3666610 (W.D.Tex. 2011). 18

US District- Other States

Comer v. Murphy Oil USA, Inc.

--- F.Supp.2d ----, 2012 WL 933670 (S.D.Miss.,2012) 10

Diaz v. Cobb,

475 F.Supp2d 1270, 1279 (SD Fla, 2007) 15

Project Vote/Voting For America, Inc. v. Long,

752 F.Supp.2d 697. E.D.Va.,2010 12


5

STATEMENT OF THE PROCEEDINGS

The plaintiffs filed this case asserting various claims under the National Voter

Registration Act, violation of the First and Fourteenth Amendments, and Section 5 of

the Voting Rights Act. The Defendants are Hope Andrade, Secretary of State and

Cheryl Johnson in her official capacity as the Galveston CountyTax Assesor/Collector

of Taxes and Voter Registrar. Johnson was served on March 5, 2012 and this is the first

responsive pleading filed in the case by the Johnson.

STATEMENT OF PARTIES

The plaintiff Voting for America, Inc. is a self described nonprofit charitable

organization organized in the District of Columbia whose mission is to encourage people

to vote.

Plaintiff Brad Richey represents he is a resident of Galveston County.

Plaintiff Penelope McFadden represents she is a resident of Galveston County.

Defendant Hope Andrade is the Secretary of State for the State of Texas and is

sued in her official capacity only.

Defendant Cheryl Johnson is the Tax Assessor Collector of the County of

Galveston and is also the voter registrar of Galveston County. She is sued in her official

capacity only.

STATEMENT OF THE ISSUES.

I. THE PLAINTIFF’S CLAIMS AGAINST JOHNSON SHOULD BE

DISMISSED FOR LACK OF JURISDICTION UNDER

FED.R.CIV.P. RULE 12(B)(1).

II. THE PLAINTIFF’S CLAIMS AGAINST JOHNSON SHOULD BE

DISMISSED FOR FAILURE TO STATE A CLAIM FED.R.CIV.P. RULE

12(B)(6).


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STATEMENT OF PLEADED FACTS.

The pleaded facts are set forth in pages 15 through 22 of the Complaint.

Essentially, Voting for America asserts it wishes to conduct voter registration drives in

Texas. “By persuading citizens to join the political process, Voting for America seeks to

achieve immediate and political change in advance of elections…”.1 The “use of paid

canvassers is essential to the success of Voting for America’s voter registration drives”:2

In 2010, Project Vote sent a request to the Harris County Texas Voter Registrar

requesting inspection of rejected voter applications. The County Attorney for Harris

County requested an opinion from the Texas Attorney General whether such records

were exempt from disclosure. Voting for America complained to the Secretary of State

about Harris County’s withholding of the documents, but to date the Secretary of State

has not made them available.3 Plaintiff Richey claims to have been placed on the voter

suspension list.4 McFadden has struggled with both registering to vote and maintaining

her registration status and her name is frequently misspelled in voter registration

records.5 McFadden and Richey sought to participate as VDR’s but were discouraged

in light of the onerous requirements of the State of Texas and the County of Galveston.6

Finally, Richey and McFadden went to the polls in 2011 and were told they were on the

suspension list; despite being in possession of voter registration certificates both were

required to show photo ID’s.7

1 Complaint Para 43.

2 Complaint Para 52

3 Complain Para 59-66 Exhibits C & D. It is noteworthy that the letter from Voting for America to the

Secretary of State does not actually request any records whatsoever. 4 Complaint Para 70.

5 Complaint Para 71.

6 Complaint Para 72; no requirements of Galveston are mentioned.

7 Complaint Para 73 & 74


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STATEMENT OF THE PLAINTIFF’S CLAIMS

The main thrust of this case is a broad based challenge to various portions of the

Texas Elections Code involving the appointment, duties, and activities of deputy voter

registrars (referred to as VDR’s in the complaint). The plaintiffs specifically identify the

following portions of the Texas Election Code as the source of their legal woes8:

i. a citizen must be first be appointed a VDR before being able to

distribute and collect voter registration forms under Election Code

13.031;

ii. the requirement that a VDR may only work with registration materials in

the County of their residence under Election Code §13.038;

iii. the requirement that a VDR carry and produce on request a certificate of

appointment under Election Code 13.033;

iv. the requirement that a VDR participate in mandatory training under

Election Coe §13.031;

v. the requirement that a VDR check the application for completeness and

issue a receipt to the applicant and duplicate tot eh registrar under

Election Code 13.039;

vi. that the VDR deliver the application to the registrar personally, and the

interpretation by the Secretary of State that anyone handling an

application must be a VDR, under Election Code 13.042;

vii. the prohibition against groups compensating VDR at voting drives based

on the number of registrations they obtain under Election Code 13.008;

viii. the restriction that VDR’s be eligible to register to vote in Texas- which

in essence requires VDR’s to be residents of the State of Texas.

Based largely on their interpretation that the provisions of the Election Code

impose a burden upon them, the plaintiffs articulate the following theories of recovery:

I. Voting for America asserts the Texas Election Code violates the National Voting

Rights Act, 42 USC 1973gg-1973gg-109.

8 Complaint Paras 21 through 38.

9 Complaint page 22, Para 76 et seq..


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II. Voting for America asserts the Texas Election Code restrictions regarding

VDR’s violates the First Amendment Guarantees of Free Speech and Association

Facially and Applied as to Voting for America in violation of 42 USC 1983.10

III. Voting for America asserts Texas Law governing VDRs burdens Voter

Registration Speech and Political Association in violation of the First

Amendment and 42 USC 198311

.

IV. Voting for America asserts Tex.Election Code 13.008 is unconstitutionally

overbroad and vague in violation of the First and Fourteenth Amendments and

42 USC 198312

V. Voting for America asserts Tex. Election Code 13.036 and 13.039 are

unconstitutionally vague and in violation of the Fourteenth Amendment and 42

USC 1983.13

VI. Voting for America Asserts that the Galveston County Registrar’s Enforcement

of SB 14 violates the Equal Protection Clause of the Fourteenth Amendment14

.

VII Voting for America assert that Enforcement of SB 14 violates the Voting Rights

Act of 1965 and 42 USC 1973c and 42 USC 1973 gg-6(b).

VIII. Voting for America asserts that the Galveston County Registrar has placed voters

on the suspension list in violation of Tex.Election Code §15.051-053.15

SUMMARY OF THE ARGUMENT

None of the plaintiffs have an actual case or controversy with Johnson; they are

unable to articulate any action traceable to Johnson which has caused any injury under

any of the theoretical approaches taken by the plaintiffs; hence dismissal is proper under

Rule 12(b)(1).

In rhe same vein, the plaintiffs have failed to plead more than a formulaic

recitation of conclusions so as to allow the Court to conclude that the plaintiffs have

10

Complaint page 26 Para 92 et seq. 11

Complaint page 30 Para 106 et seq. 12

Complaint page 31 Para 109-111 13

Complaint page 31 Para 112- 113 14

Complaint page 32 Para 114- 120 15

Complaint page 34 Para 126-129


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stated an adequate claim for relief; hence dismissal would also be proper under Rule

12(b)(6).

ARGUMENT AND AUTHORITIES

I. THE PLAINTIFF’S CLAIMS AGAINST JOHNSON SHOULD BE

DISMISSED FOR LACK OF JURISDICTION UNDER

FED.R.CIV.P. RULE 12(B)(1).

a. Standards under Rule 12(b)(1).

Motions filed under Rule 12(b)(1) of the Federal Rules of Civil Procedure allow a

party to challenge the subject matter jurisdiction of the district court to hear a case.

Ramming v. U.S. 281 F.3d 158, 161 (5th Cir. 2001). To establish subject matter

jurisdiction, a party must show that an actual case or controversy exits between himself and

the party from whom relief is sought; standing is an essential element in the determination

of whether a true case or controversy exists.

Under Article III, the Federal Judiciary is vested with the “Power” to resolve not

questions and issues but “Cases” or “Controversies.” This language restricts the

federal judicial power “to the traditional role of the Anglo–American courts.”

Summers v. Earth Island Institute, 555 U.S. 488, ––––, 129 S.Ct. 1142, 1148,

173 L.Ed.2d 1 (2009).

* * *

To state a case or controversy under Article III, a plaintiff must establish

standing. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556

(1984). The minimum constitutional requirements for standing were explained in

Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351

(1992).

“First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a

legally protected interest which is (a) concrete and particularized, and (b) ‘actual

or imminent, not “conjectural” or “hypothetical.” ’ Second, there must be a

causal connection between the injury and the conduct complained of—the injury

has to be ‘fairly ... trace[able] to the challenged action of the defendant, and not

... th[e] result [of] the independent action of some third party not before the

court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the

injury will be ‘redressed by a favorable decision.’ ” Id., at 560–561, 112 S.Ct.

2130 (citations and footnote omitted).


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In requiring a particular injury, the Court meant “that the injury must affect the

plaintiff in a personal and individual way.” Id., at 560, n. 1, 112 S.Ct. 2130. The

question now before the Court is whether respondents, the plaintiffs in the trial

court, satisfy the requisite elements of standing.

Arizona Christian School Tuition Organization v. Winn 131 S.Ct. 1436, 1424 179

L.Ed.2d 523 U.S.,2011.

This “causation element does not require a party to establish proximate cause, but

only requires that the injury be ‘fairly traceable’ to the defendant.’ League of United Latin

Amer. Citizens v. City of Boerne, 659 F.3d 421, 431 (5th Cir.2011). In order to

demonstrate this element, the plaintiff must show “that it is substantially probable ... that

the challenged acts of the defendant, not of some absent third party, will cause the

particularized injury of the plaintiff.” Ctr. for Biological Diversity v. U.S. Dep't of the

Interior, 563 F.3d 466, 478 (D.C.Cir.2009) see also Allen v. Wright, 468 U.S. 737, 759

(1984) (noting that the chain of causation asserted by the plaintiffs is particularly weak

where it involves numerous third parties). “The more attenuated or indirect the chain of

causation between the [defendant's] conduct and the plaintiff's injury, the less likely the

plaintiff will be able to establish a causal link sufficient for standing.” Ctr. for Biological

Diversity, 563 F.3d at 478 (citing Allen, 468 U.S. at 757–58). Comer v. Murphy Oil USA,

Inc.--- F.Supp.2d ----, 2012 WL 933670 *7S.D.Miss.,2012.March 20, 2012

In the instance of multiple plaintiffs, if the Court determines that any one of the

Plaintiffs has standing, the Court has jurisdiction and may proceed with the case. See

Carey v. Population Servs. Int'l, 431 U.S. 678, 682, 97 S.Ct. 2010, 52 L.Ed.2d 675

(1977) (recognizing that when at least one plaintiff has standing to challenge all aspects

of asserted claims, a court need not determine the standing of other plaintiffs)


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b. The plaintiffs do not have standing to proceed against Cheryl Johnson under

the NVRA

The failure of the plaintiffs to establish standing under i) the National Voter

Registration Act 42 USC 1973gg-1973gg-10 and ii) their claims the Texas Election Code

provision violate of the First and Fourteenth Amendment pursuant to 42 USC 1983, are

discussed separately as follows. In neither instance can they establish standing to proceed

against Cheryl Johnson.

i. VFA has no standing under the NVRA.

The gravamen of the ponderous tome presented by Voting for America is that the

Secretary of State interprets the various sections of the Election Code relating to VDR’s in

a manner repugnant to Voting for America.

Granted, the complaint also expresses their ire relating to the Voter Registrar of

Harris County and the County Attorney of Harris County requesting an opinion of the

Attorney General of the State of Texas as to whether rejected voter registration applications

could be withheld as confidential under the provisions of the Texas Open Records Act.

But nowhere is this litany of railings against the provisions of the Texas Election Code, its

interpretations by the Secretary of State, or even the actions of the fine folks in Harris

County, does there appear a complaint by VFA related to Cheryl Johnson.

And thus VFA has no standing to complain about Cheryl Johnson. First, under the

NVRA, each State is required to name a chief election official for the State responsible for

implementing the provisions of the NVRA. 42 USC 42 USC 1973gg-8. In Texas, the

Secretary of State has been designated the chief election official. Texas Election Code

§31.001. So certainly the Texas Secretary of State is a proper person against whom suit

can be brought under the provisions of the NVRA, See: Harkless v. Bruner, 545 F.3d


12

445 (6th

Cir. 2008). There is some slender authority to suggest a Texas County Voter

Registrar who had run afoul of the NVRA might be a proper defendant 16

See. Project

Vote/Voting For America, Inc. v. Long, 752 F.Supp.2d 697. E.D.Va.,2010. However,

while the VFA expresses its indignation regarding the action of Harris County in not

producing certain information it had requested under the NVRA, there is no description of

any action taken by Cheryl Johnson. And in the absence of such a recitation in the

complaint, VFA has not shown …”a causal connection between the injury and the

conduct [which is] ... trace[able] to the challenged action of the defendant, and not ...

th[e] result [of] the independent action of some third party not before the court. Lujan v.

Defenders of Wildlife, 504 US 555, 560–561, 112 S.Ct. 2130, (1992)(citations and

footnote omitted). So any standing to sue Johnson under the NVRA must lie with either

Richey of McFadden.

ii. Neither Richey or McFadden have standing under the NVRA

McFadden and Richey each claim they sought to participate as VDR’s but were

discouraged in light of the onerous requirements of the State of Texas and the County of

Galveston.17

McFadden could not have been that discouraged, she is in fact a VDR in

Galveston County; attached are redacted copies of her application and certificate. And

although Richey has served as an Election Judge with the Galveston County Clerk’s

Office, Johnson has no record of his ever applying to be a VDR.18

McFadden claims she

has struggled with both registering to vote and maintaining her registration status and

16

The defendant does not agree that a Texas County Registrar may actually be a proper defendant under the NVRA; but rather, given her total lack of culpability in this case suggest that question need to be reached to adjudicate this case as to her. 17

Complaint Para 72; no requirements of Galveston are mentioned. 18

Affidavit of Cheryl Johnson attached.


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her name is frequently misspelled in voter registration records.19

While names indeed

should be spelled correctly in voter records, the voting records are spelled in the exact

manner in which McFadden registered as a VDR; curiously, it is spelled differently in

the style of this lawsuit. And while Plaintiff Richey claims to have been placed on the

voter suspension list20

neither has ever been on the suspension list and both have, in fact

been registered to vote.21

McFadden in fact voted in 2010, and Richey stormed out after

being asked for ID due to an erroneous flag on the roll caused by a computer

programming error22

.

In view of the fact that McFadden is a VDR in Galveston County, and both Richey

and McFadden are registered to vote in Galveston County, they have failed to show any

action of Cheryl Johnson which has caused them any injury so as to allow the Court to

assert jurisdiction over her. See, Lujan ” Id., at 560–561, 112 S.Ct. 2130. And in the

absence of a casually connected injury, the Court cannot invoke jurisdiction over

Johnson under the provisions of the NVRA.

c. The plaintiffs do not have standing to proceed against Cheryl Johnson

under the First and Fourteenth Amendments

The plaintiffs allege through their complaint that various section of the Texas

Election Code violate the First and Fourteenth Amendments and 42 USC 1983. See. eg.

Counts III23

and Count IV24

of the Complaint.

19

Complaint Para 71. 20

Complaint Para 70. 21

See affidavit of Cheryl Johnson. 22

This computer programming error is explained in the documents accompanying Ms. Johnsons affidavit; due to a data conversion programming error, some voters were flagged to produce identification when they in fact were registered voters, a photo ID was not required to vote. 23

Complaint page 30. 24

Complaint page 31.


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If the plaintiffs are asserting a claim resting merely on 42 USC 1983 per se, that

must be dismissed

42 USC §1983 does not create substantive rights, but rather is merely a

procedural rule that provides a private cause of action for redressing a violation of

federal law or “vindicating federal rights elsewhere conferred.” Albright v. Oliver, 510

U.S. 266, 114 S.Ct. 807, 811, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan, 443

U.S. 137, 99 S.Ct. 2689, 2694 n. 3, 61 L.Ed.2d 433 (1979)). “Thus, an underlying

constitutional or statutory violation is a predicate to liability under § 1983.” Johnston v.

Harris Cty. Flood Control Dist., 869 F.2d 1565, 1574 (5th Cir.1989).

Further, a suit against Johnson is her official capacity is in fact a suit against

Galveston County; an official-capacity claim “is, in all respects other than name, to be

treated as a suit against the [government] entity,” Kentucky v. Graham, 473 U.S. 159,

166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), Stern v. Hinds County, Miss., 2011 WL

3557343 *1 (5th

Cir. 2011). And to set forth a cognizable § 1983 claim against a

governmental entity, a plaintiff must allege that (1) agents of the entity, while acting

under color of state law, (2) violated the plaintiff's constitutional rights, and (3) that a

municipal policy or policy of inaction was the moving force behind the violation. City of

Canton v. Harris, 489 U.S. 378, 379, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). This

requirement is a sine qua non of governmental liability; 42 USC 1983 liability may not

be premised on respondeat superior, rather the allegedly unconstitutional action must be

pursuant to an official municipal policy of some nature. Monell v. New York City Dep't

of Social Services, 436 U.S. 658, 690, 691-94, 98 S.Ct. 2018, 2035-37, 56 L.Ed.2d 611

(1978). Bd. Of County Comm. Of Bryan County v. Brown, 117 S. Ct. 1382, 1389


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(1997), Spiller v. City of Texas City Police Dept., 130 F.3d 162, 167 (5th

Cir. 1997).

The plaintiff must establish that a custom or policy affirmatively links the municipality

to and directly caused the constitutional violation alleged. Colle v. Brazos County, 981

F.2d 237, 244; Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th

Cir.)

In no instance have the plaintiff’s even hinted of any policy of Cheryl Johnson’s

which has caused any injury to any of the plaintiffs. The plaintiffs have decried the

interpretations of the Secretary of State implementing the various provisions of the

Texas Election Code; noted their ire of the actions of Harris County officials in seeking

an opinion of the Attorney General regarding the Open Records Act; and have noted

some concerns or Richey and McFadden , discussed above and incorporated herein by

reference; but nowhere do any of the plaintiff articulate any injury resulting from any

custom policy or practice of Cheryl Johnson so as to establish standing to support a

claim under 42 USC 1983. Accordingly, the Johnson should be dismissed under this

theory. Diaz v. Cobb, 475 F.Supp2d 1270, 1279 (SD Fla, 2007)

d. The plaintiffs have no standing under the Election Code or the Voting

Rights Act of 1965 as related to SB 14.

It is notable at this juncture that as the Voter Registrar of Galveston County,

Cheryl Johnson has nothing to do with the actual conduct of elections. As Mr. Richey

certainly knows, that facet is handled by the County Clerk of Galveston County; and

thus when Mr. Richey had his unfortunate experience, he directed a copy of his

complaint to the Secretary of State to the County Clerk of Galveston County. The

County Clerk forwarded a copy of the complaint to Ms. Johnson, for an explanation of


16

how his name came to be flagged, and in her response notes that “photo ID is not

required to vote”.25

Johnson agrees that SB 14 has not been pre cleared by the US Department of

Justice. She represents there is no need for the Court to enter into an examination of

whether the Texas Election Code violates any federally protected right; that issue is

pending before the United States District Court for the District of Columbia. In Case No.

12-CV-128, State of Texas vs. Eric Holder, Jr.

And that notwithstanding, the plaintiff’s still have not established any injury

occasioned by any act of Ms. Johnson. For in the case of Ms. McFadden, she has actually

voted in 2010, and in the instance of Mr. Richey, he could have waited a moment for the

election judge to verify with Ms. Johnson’s office that he was, in fact, registered to vote; or

could have used a provisional ballot and provided alternative identification, such as a water

bill, after voting. Again, this entire circumstance was caused by a programming deficiency

in the conversion of County data into the Secretary of State’s voting system, as opposed to

an actual requirement of the County.

But because McFadden voted, and Richey chose not to, there has been no injury

occasioned by Cheryl Johnson so as to confer jurisdiction of the plaintiff’s claims over her.

e. Conclusion under Rule 12(b)(1).

None of the plaintiffs have established an actual case or controversy so as to allow

this Court to assert jurisdiction over Cheryl Johnson. Most of the recitations throughout the

complaint relate to actions and interpretations of the Secretary of State; or Harris County.

McFadden is the deputy voter registrar she aspires of becoming, and in no instance have

the plaintiff any harm resulting from any action of defendant Cheryl Johnson. This suit

25

Documents attached to the affidavit attached.


17

should be dismissed pursuant to Rule 12(b)(1), but if it is not, dismissal under Rule

12(b)(6) is proper.

II. THE PLAINTIFF’S CLAIMS AGAINST JOHNSON SHOULD BE

DISMISSED FOR FAILURE TO STATE A CLAIM FED.R.CIV.P. RULE

12(B)(6).

a. Standards under Rule 12(b)(6).

A complaint in federal court may be dismissed under Fed.R.Civ.P. Rule 12(b)(6)

when the plaintiff fails to state a claim against a defendant. In Rule 12(b)(6) motion

practice, a complaint is to be liberally construed in favor of the plaintiff, and all facts

pleaded in the complaint taken as true. Lowery v. Texas A&M Univ. Sys. 117 F.3d 242,

245-47 (5th

Cir. 1997). Dismissal under Fed.R.Civ.P. Rule 12(b)(6) is appropriate if the

[f]actual allegations fail to raise a right to relief above the speculative level, even

assuming that all the allegations in the complaint are true “(even if doubtful in fact).”

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965, 167 L.Ed.2d

929 (2007).

Although recitation of “[s]pecific facts are not necessary”; the pleaded facts

should be sufficient to give the defendant fair notice of what grounds the various claims

of the plaintiff rest on. Erickson v. Pardus, 551 U.S. 89, 93, 127 S. Ct. 2197, 2200, 167

L.Ed.2d 1081 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555, 127 S. Ct. at

1964. Even so, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

relief’ requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964

- 65 (citing Papasan v. Allain, 478 U.S.265, 286, 106 S. Ct. 2932, 92 L.Ed.2d 209

(1986). If the pleaded facts do not permit the court to infer more than the mere


18

possibility of misconduct, the complaint has alleged--but it has not ‘show[n]’--‘that the

pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 at 1950,

173 L.Ed.2d 868 (2009). .

b. The plaintiffs have failed to state a claim against Cheryl Johnson

upon which relief maybe granted.

The applicable facts which support dismissal for failure to state a claim have been

discussed above and that discussion is incorporated herein by reference. But suffice to say,

the various allegations by the plaintiffs go to the actions and interpretations of the Secretary

of State, and do not implicate Cheryl Johnson in any way. Certainly, given the lack of any

nexus between Johnson and the complaint by VFA, the facts “do not permit the court to

infer more than the mere possibility of misconduct” and therefore VFA has not shown it

is entitled to relief from Johnson. Ashcroft, Id at 1950. There is no showing of any

action by Johnson is violation of the NVRA; and it is curious that the claim asserts more

factual allegations regarding Harris County Texas officials but stands mute as to specific

identification by any action of Johnson to support the filing of this complaint in the

Galveston Division of the Southern District of Texas.

As to the claims under the First and Fourteenth Amendment, the plaintiffs have

failed to state a claim entirely due to the failure to even mention the existence of a policy

they impute to Johnson which is a necessity for showing liability under 42 USC 1983;

the plaintiffs’ failure to articulate a custom policy or practice supported by factual bases,

as opposed to vague conclusions are insufficient to state a claim and dismissal under

Rule 12(b)(6) is warranted. Graniczny v, City of El Paso et al, 2011 WL 3666610

(W.D.Tex. 2011).


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And finally as to the causes of action regarding the purported implementation of

SB 14; as shown in the discussion under Rule 12(b)(1), there has been in fact no

requirement of a picture ID, and no deprivation of any rights have resulted from any act of

Johnson in her official capacity.

C. Conclusion under Rule 12(b)(6)

The plaintiffs are not required to plead every single fact in support of their claims.

In this official capacity case, there is no heightened pleading requirement as would exist

had Johnson been sued individually. Nonetheless, the plaintiffs are required to assert more

than some conclusory assertions that Cheryl Johnson, in her capacity as the Voter Registrar

of Galveston County, has undertaken an action which has violated their rights in some form

or fashion. They have failed to do so, and this case should be dismissed against her in its

entirety for failure to state a claim.

PRAYER FOR RELIEF

WHEREFORE, premises considered the defendant Cheryl Johnson is her official

capacity prays the instant suit be dismissed and that she go hence with her costs.

Respectfully submitted,

/s Donald S. Glywasky /s

Donald S. Glywasky

SBN 08041700

Fed. ID No. 8003

County Legal Department

County Courthouse 5th

Floor

722 Moody

Galveston, Texas 77550

(409) 770-5562

(409) 770-5560 (fax)

Attorney in charge for Cheryl Johnson

County Tax Assessor Collector and

Voter Registrar


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Certificate of Service

I certify opposing counsel are known user of the Court’s electronic filing

system and a copy of this document will be made upon him through that system

on the day of filing.

/s Donald S. Glywasky /s


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