ELECTRONICALLY FILED 11/20/2012 1:19 PM CV-2012-001053.

00 CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA FLORENCE CAUTHEN, CLERK

IN THE CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA

HUGH McINNISH, et al., Plaintiffs, v. BETH CHAPMAN, Secretary of State, Defendant.

DEFENDANT’S RENEWED MOTION TO DISMISS

Pursuant to Rules 12 and 56 of the Alabama Rules of Civil Procedure, the Defendant, Beth Chapman, sued in her official capacity as the Secretary of State for the State of Alabama, renews her motion to dismiss Plaintiffs’ claims. In support of this motion, and in opposition to Plaintiffs’ motion for summary judgment, Defendant states as follows: 1. Plaintiffs seek a writ of mandamus requiring Secretary Chapman to investigate

the qualifications of Presidential candidates and to remove unqualified candidates from the November 2012 general election ballot. Their claim is directed primarily toward President

the qualifications of candidates certified by a political party. Plaintiffs filed a motion for

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summary judgment and moved to shorten Defendant’s time for a response. The Defendant asserts that Plaintiffs’ suit is rendered moot following the occurrence of

the 2012 elections, and particularly in light of Alabama voters’ decision to support Mitt Romney for President. However, should the Court find that Plaintiffs’ claims are not mooted on those grounds, the claims still fail for five reasons: (1) The Secretary of State has no legal duty to investigate the qualifications of a candidate; (2) in regard to candidates for President, the

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Obama and is based on the incorrect premise that Secretary Chapman has a duty to investigate

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CIVIL ACTION NUMBER CV-2012-001053

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authority to adjudge qualifications rests with Congress; (3) the Court lacks subject matter

Plaintiffs’ claim was filed too late. 2.

The Presidential election having now taken place, Plaintiffs’ claims are moot.

Plaintiffs ask the Court to order the Secretary to remove President Obama’s name from the

when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Barber v. Cornerstone Cmty. Outreach, Inc., 42 So. 3d 65, 70-71 (Ala. 2010), quoting Cnty. Of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). See also Bell v. Eagerton, 908 So.2d 204 (Ala. 2002) (holding that the occurrence of an election itself and the plaintiff’s failure to obtain an injunction to stop the election mooted case). Moreover, although President Obama won re-election based on the total tally of electoral votes nationwide, he did not carry the State of Alabama, where a substantial majority of voters (60.7%) opted to support Republican candidate Mitt Romney. See Alabama Election Results, available at http://elections.nytimes.com/2012 /results/states/alabama (last accessed Nov. 19, 2012). The removal of President Obama’s name

the election. 3.

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has no duty to investigate the qualifications of candidates except in a very specific set of circumstances: she is responsible for refusing to certify a candidate only when she has knowledge gained from an official source while performing her duties as prescribed by law, that a candidate has not met a certifying qualification. Attorney General’s Opinion No. 1998-200

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from Alabama ballots would thus have done nothing to alter the state or the national results of

Even were the claims not moot, as a matter of Alabama law, the Secretary of State

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ballot. Obviously, it is impossible now to give Plaintiffs the relief they seek. “[A] case is moot

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jurisdiction over Plaintiffs’ claims; (4) Plaintiffs have failed to join necessary parties; and (5)

(copy attached as Exhibit A).1 The Secretary of State receives nominations of hundreds of

nominations and verify each candidate’s qualifications without being given credible reason to doubt them. 4.

Rather, political parties retain responsibility for verifying the qualifications of

will conduct the appropriate background check or risk that its nominee’s election will be derailed by an objection in Congress.” Keyes v. Bowen, 117 Cal.Rptr.3d 207 (Cal.App. 2010). Relevant here, the Democratic Party provides for both pre- and post-primary election processes for challenging the qualifications of a candidate, and plaintiffs have failed to avail themselves of either of these opportunities to challenge President Obama’s placement on the ballot. The language of Ala. Code § 17-14-31(a) also underscores the responsibility of party officials, rather than the Secretary of State, to determine a candidate’s eligibility: “the Secretary of State shall certify…the names of all candidates for President and Vice President who are nominated by any national convention or other like assembly of any political party…” The section in fact requires

a political party, implicitly relegating the duty to examine their fitness for office to party

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officials.

5.

Ala. Code § 17-16-44 bars Alabama courts from ascertaining the “legality, conduct or results of any election except so far as authority to do so [is] specially and specifically enumerated and set down by statute.” Wood v. Booth, 990 So.2d 314 (Ala. 2008)(citing Ala. Code § 17-5-6 (now §

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As referenced therein, former §17-7-1 is now codified at § 17-9-3, and former § 17-16-40 is now codified at § 1713-22.

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the Secretary of State to certify all Presidential candidates who have secured the endorsement of

Additionally, this Court lacks subject matter jurisdiction over Plaintiffs’ claims.

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their candidates: “[a]ny investigation of eligibility is best left to each party, which presumably

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candidates from the political parties. It would simply be impossible for her to go behind those

17-16-44)). At this stage, the Court would be forced to look back at the results of an election

were harmed by the President’s presence on the ballot. Contrary to Plaintiffs’ assertion in their Motion for Summary Judgment that “this lawsuit does not seek to question the legality of the

election, nor does it impact the “conduct” of the election, nor does it contest the results of an

of the results of the Presidential election. 6.

Furthermore, only Congress has the authority to judge the qualifications of

Presidential candidates following an election. Robinson v. Bowen, 567 F.Supp.2d 1144, 1447 (N.D. Cal. 2008). A central authority to adjudge qualifications for President makes far more sense than 50 separate states each making their own judgment concerning qualifications: [T]he truly absurd result would be to require each state’s election official to investigate and determine whether the proffered candidate met eligibility criteria of the United States constitution, giving each the power to override a party’s selection of a presidential candidate. The presidential nominating process is not subject to each of the 50 states’ election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results. Were the courts of 50 states at liberty to issue injunctions restricting certification of dulyelected presidential electors, the result could be conflicting rulings and delayed transition of power in derogation of statutory and constitutional deadlines. Keyes v. Bowen, 117 Cal.Rptr.3d 207 (Cal.App. 2010)(emphasis added).

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7.

Obama, the other candidates whose interests are at stake, and affected presidential electors. Ala.R.Civ.P. 19. 8.

complaint, ballots had already been printed and sent to absentee voters, rendering their alteration impossible. Whether construed as an untimely contest of the nominating process (see Wood v.

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Plaintiffs have also failed to join one or more necessary parties, namely, President

Finally, Plaintiffs’ claim was filed too late. At the time of Plaintiffs’ initial

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election,” adjudicating Plaintiffs’ complaint at this stage would inherently involve the evaluation

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that has already occurred in order to resolve the basic question of whether Plaintiffs’ interests

Booth, 990 So.2d 314 (Ala. 2008); Roper v. Rhodes, 988 So. 2d 471 (Ala. 2008)), or through the

agreeing with the result)), Plaintiffs’ claim has been time-barred from the moment it was filed. WHEREFORE, this Court should dismiss Plaintiffs’ complaint with prejudice. Respectfully submitted,

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Attorneys for Secretary of State Beth Chapman

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OFFICE OF THE ATTORNEY GENERAL 501 Washington Avenue Montgomery, Alabama 36130 Telephone: (334) 242-7300 Facsimile: (334) 353-8440 mfleming@ago.state.al.us jimdavis@ago.state.al.us lhowell@ago.state.al.us

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s/ Laura E. Howell Margaret L. Fleming (FLE001) James W. Davis (DAV103) Laura E. Howell (HOW084) Assistant Attorneys General

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LUTHER STRANGE (ASB-0036-G42L) Attorney General BY:

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lens of laches (see Roper, 988 So. 2d at 481 (Murdock, J., dissenting in the reasoning but

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 20th day of November, 2012, I filed the foregoing document via the Alafile system, which will send electronic notification of such filing to the following counsel of record: L. Dean Johnson 4030 Balmoral Dr., Suite B Huntsville, AL 35801 Johnson_dean@bellsouth.net

s/ Laura E. Howell Of Counsel

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Larry Klayman Klayman Law Firm 2020 Pennsylvania Ave. NW, Suite 800 Washington, DC 20006 leklayman@gmail.com

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