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The Peace and Freedom Party, Peta Lindsay, and Richard Becker v. Debra Bowen

April 26, 2012

THE PEACE AND FREEDOM PARTY, PETA LINDSAY, AND RICHARD BECKER,
PLAINTIFFS,
v.
DEBRA BOWEN, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE OF CALIFORNIA,
DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

Plaintiffs seek a preliminary injunction enjoining Defendant "from excluding [Plaintiff] Peta Lindsay from the primary ballot for the Presidential nomination of the Peace and Freedom Party." (Pls.' Mot. for Prelim. Inj. ("Mot.") 1:17-20.) Plaintiffs argue Defendant's "exclusion of Lindsay's name from the primary ballot . . . impacts fundamental First and Fourteenth Amendment rights, as well as usurps the exclusive Constitutional role of Congress in determining the age qualifications of the Presidency[.]" Id. at 1:27-2:1. Plaintiffs further argue such rights will be "irreparably harmed" if her name is not added to the Peace and Freedom Party's presidential ballot, which is "to be submitted for mail-in voters commencing May 7, 2012[.]" Id. at 2:6-12. Defendant opposes the motion. Since "the facts [pertinent to decision on the motion] are not in dispute," no hearing is necessary, and the motion is denied for the reasons stated below. Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir. 1988).

I. LEGAL STANDARD

A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Plaintiffs seeking a preliminary injunction must establish that "(1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) a preliminary injunction is in the public interest." Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th Cir. 2009)(citing Winter, 555 U.S. at 19). Further, the Ninth Circuit's "'serious questions' approach

survives Winter when applied as part of the four-element Winter test." Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). In other words, "'serious questions going to the merits' and a balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction, so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the injunction is in the public interest." Id.

II. BACKGROUND

Plaintiff Peace and Freedom Party is a political party qualified for participation in any primary election in California. CAL. ELEC. CODE §§ 338, 7700. Plaintiff Peta Lindsay is one of multiple candidates seeking the presidential nomination for the Peace and Freedom Party. See Compl. ¶ 4; Decl. of Alexandra Gordon in Supp. of Def.'s Opp'n ("Gordon Decl.") Ex. F, at 3. Plaintiff Richard Becker is a resident of California who "supports the inclusion of Peta Lindsay in the presidential primary preference ballot for the Peace and Freedom Party[.]" (Compl. ¶ 5.)

Defendant Debra Bowen is the Secretary of State of California, and as such, is "the chief election officer of the state." CAL. ELEC. CODE § 10. She is responsible for "administer[ing] the provisions of the [California] Elections Code[,]" and ensuring "that elections are efficiently conducted and that state election laws are enforced." CAL.

GOV'T CODE § 12172.5.

The California Elections Code requires Defendant to "publically announce and distribute to the news media . . . a list of the candidates she . . . intends to place on the ballot" and to "transmit to each elections official a certified list containing the names of the candidates to appear on the Peace and Freedom Party presidential preference primary ballot[.]" CAL. ELEC. CODE §§ 6722, 6951.

Lindsay filed nomination papers for the purpose of being included on the Peace and Freedom Party's presidential primary ballot. (Compl. ¶ 8.) However, she was not included on the Defendant's February 6, 2012 press release, in which Defendant listed the candidates whom she intended to place on the primary ballots. (Def.'s Opp'n ("Opp'n") 2:17-22; Gordon Decl. ¶ 3, Ex. A.) Defendant states she excluded Lindsay because she is "27-years old and therefore ineligible to be President under Article II, Section I, Clause 5 of the U.S. Constitution." (Opp'n 6:10-13.)*fn1

In a letter to Defendant dated February 13, 2012, Lindsay's counsel "requested that [Defendant] immediately reverse [her] unprecedented decision to omit Ms. Lindsay from the Peace and Freedom Party's list of candidates on the . . . primary ballot." (Gordon Decl. Ex. B, at 1.) In the February 13, 2012 letter, Lindsay's attorney "admitt[ed] that Ms. Lindsay is 27-years-old" and states "the U.S. Constitution requires a person to be at least 35-years-old to assume the office of president, not to be listed on the ballot as a candidate." Id. at 3.

Defendant did not include Lindsay on the March 29, 2012 certified list of presidential primary candidates that was distributed to local election officials. (Gordon Decl. Ex. F.)

California's vote-by-mail ballot application process for the 2012 presidential primary is scheduled to begin May 7, 2012. CAL. ELEC.

CODE §§ 3000, et seq.

III. ...


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