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12345678910111213141516171819202122232425262728STEPTOE & JOHNSON
LLP
Collier Center201 East Washington StreetSuite 1600Phoenix, Arizona 85004-2382Telephone: (602) 257-5200Facsimile: (602) 257-5299David J. Bodney (006065)Aaron J. Lockwood (025599)Attorneys for defendant John S. McCainUNITED STATES DISTRICT COURTDISTRICT OF ARIZONAClark Hamblin,Plaintiff,vs.Barack Obama and John S. McCain,Defendants.))))))))))))No. CV 09-00410-PHX-ROS
REPLY IN SUPPORT OF JOHNS. McCAIN
’
S MOTION TODISMISS PLAINTIFF
’
SAMENDED COMPLAINT
(Assigned to the HonorableRoslyn O. Silver)Preliminary StatementWhile plaintiff 
’
s Responsive Memorandum (the
“
Response
”
) may amplifyhis theory of the case, it does not squarely join issue with any of the defenses that formthe basis of defendant
’
s Motion to Dismiss: namely, that (1) plaintiff Clark Hamblinlacks standing to challenge the eligibility of Sen. John S. McCain for the presidency; (2)Sen. McCain
’
s eligibility is a political question, not subject to judicial review; and (3)Hamblin cannot satisfy the elements of 42 U.S.C. §§1983 or 1985, or of intentionalinfliction of emotional distress as a matter of Arizona law. Because Hamblin cannotovercome these defects
 – 
by amendment, or by issuing a
“
Decree
”
to give 80% of hisrequested damages award to
“
others
”
[Resp., Ex. S]
 – 
the Court should dismiss theAmended Complaint with prejudice.
 
-2-12345678910111213141516171819202122232425262728ArgumentI.HAMBLIN LACKS STANDING TO INVOKE THE COURT
’
SJURISDICTION.First and foremost, plaintiff cannot satisfy the constitutional standingrequirements of an injury in fact. [Mot. at 4-5] Recasting his allegations, Hamblin nowargues that he
“
could in fact cast NO ballot in Arizona in 2008
”
as a result of McCain
’
sallegedly
“
illegal appearance
”
in the election. [Resp. at 4] Plaintiff fails to explain,however, how McCain
’
s presence on the ballot prevented him from voting for any of theother candidates whom Hamblin believed to be eligible. Nor does plaintiff offer anylegal support for his argument.
Cf. Hollander v. McCain
, 566 F. Supp. 2d 63, 69(D.N.H. 2008) (holding that the inclusion of an ineligible candidate on the ballot inflictsno injury because voters can vote for someone else). In brief, plaintiff has failed toallege any injury sufficient to confer standing.Even if plaintiff could somehow assert a cognizable injury, it wouldnevertheless amount to no more than a generalized grievance. [Mot. at 5-6] Hamblindoes not
 – 
and cannot
 – 
argue that his alleged injury is unique from any ostensiblysuffered by all other voters. To the contrary, Hamblin expressly concedes that hisallegations raise
“
a situation imposed on many.
”
[Resp. at 9] Because plaintiff has notbeen affected in
“
a personal and individual way,
”
he does not have standing to sue.
 Lujan v. Defenders of Wildlife
, 504 U.S. 555, 560 n.1 (1992).Moreover, the Court cannot redress plaintiff 
’
s alleged injury as requiredfor him to have standing. First, the Court cannot impose damages on McCain forexercising his First Amendment right to run for elected office. [Mot. at 6-8] Second,even if the Court somehow found McCain to be ineligible for the presidency, McCain
’
scampaign concluded more than seven months ago, and the Court has no authority to
“
negat[e] the 2008 election
”
and provide Hamblin
“
the possibility of electing alegitimate President.
”
[Resp. at 7-8] Such claims for prospective equitable relief 
 – 
whichare not prayed for in the Amended Complaint
 – 
are entirely moot.
See Lujan
, 504 U.S. at
 
-3-12345678910111213141516171819202122232425262728564 (
“
Past exposure to illegal conduct does not in itself show a present case orcontroversy regarding injunctive relief... if unaccompanied by any continuing, presentadverse effects.
”
) (citation omitted). As such, Hamblin
’
s alleged injury is not judiciallyredressable, which is a basic element of standing.
 Id.
at 561.In short, plaintiff cannot satisfy the constitutional requirements necessaryto invoke the Court
’
s subject-matter jurisdiction.
See, e.g.
,
 Renne v. Geary
, 501 U.S.312, 316 (1991) (justiciability is a jurisdictional matter). For this reason alone, theComplaint must be dismissed.II.FUNDAMENTALLY, HAMBLIN
’
S LAWSUIT PRESENTS A POLITICALQUESTION INAPPROPRIATE FOR JUDICIAL REVIEW.As explained in the Motion, the U.S. Constitution empowers the votersand political branches of government to determine the eligibility of presidentialcandidates. [Mot. at 8-10] This Court cannot decide Sen. McCain
’
s eligibility withoutsuperseding their judgment, and in turn violating the political question doctrine.Hamblin
’
s Response fails to recognize that this determination of eligibility is aprerequisite to
all
of his claims. [
Cf.
Resp. at 8] Indeed, McCain could not possiblymake a
“
sworn false statement of material fact
”
on an election document [
ibid 
], orotherwise interfere with Hamblin
’
s right to vote, if McCain is in fact eligible for thepresidency, which, as the Motion explains, he is. [Mot. at 12-14] Accordingly, thepolitical question doctrine provides a second, independent basis for the Complaint
’
sdismissal.III.HAMBLIN
’
S AMENDED COMPLAINT FAILS TO STATE A CLAIM UPONWHICH RELIEF CAN BE GRANTED.The Motion to Dismiss provides several reasons why the AmendedComplaint fails to state a viable claim for relief under either federal or state law. [Mot.at 11-17] Plaintiff ignores many of these reasons in his Response, focusing instead onMcCain
’
s status as a
“
natural born Citizen.
”
The Court need not decide Sen. McCain
’
scitizenship status, however, because McCain
’
s presidential campaign did not constitutestate action, and because the Natural Born Citizen Clause does not confer any rights on
of 00

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