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3:12-cv-01543-CMC

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UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION ) ) ) ) ) v. ) ) The State of South Carolina State Election ) Commission and the State of South Carolina,) Defendant. ) __________________________________ ) Ann Smith, Tommie Reece, John Pettigrew, Bob Shirley, Robert Tinsley, and others similarly situated, Plaintiffs,

1543-CMC C.A. No: 3:12-CV-____________


MOTION AND MEMORANDUM FOR AN ex parte EMERGENCY TEMPORARY RESTRAINING ORDER AND PERMANENT INJUNCTION

Plaintiffs, appearing before this Honorable Court, would respectfully move pursuant to FRCP 65 for an ex parte Temporary Restraining Order: 1) Staying the immediate and permanent enforcement of Anderson et al. v. South Carolina Election Commission et al., Slip Opinion number 27120, 2012 S.C. LEXIS 100, filed May 2, 2012 (S.C. Sup. Ct) and rehearing 2012 S.C. LEXIS 99 decided May 3, 2012 (S.C. Sup. Ct.), and Florence County Democratic Party et al. v. Florence County Republican Party et. al, Slip Opinion No. 27128, 2012 S.C. LEXIS 116, June 5, 2012 (S.C. Sup. Ct); and 2) Temporarily restraining Defendants and requiring that they either a) return Plaintiffs names (and those similarly situated) to the ballots for the primaries to be held on Tuesday, June 12, 2012; or b) postpone the primaries scheduled for Tuesday, June 12, 2012 pending resolution of this matter by this Court. I. Background/Facts Plaintiffs are a collection of individual Democratic and Republican candidates, who on behalf of themselves and other similarly situated, are seeking this Courts relief

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because they were decertified as candidates and removed from their respective primary ballots following three recent decisions from the South Carolina Supreme Court1 Plaintiff Ann Smith (hereinafter referred to as Plaintiff Smith) is a citizen and resident of Anderson County and was a candidate for Anderson County Council District Six (6) for the Republican nomination. The Anderson County Council District Six (6) seat is currently held by Ken Waters. Plaintiff Smith was advised by her Anderson County Republican Party Chairman (Dan Harvell) that her candidate paperwork would be in order so long as all her documents were received by the local party and filed with the State of South Carolina by noon on the 30th of March, 2012. On that date, Plaintiff Smith tendered her Statement of Intention of Candidacy (SIC) in person to Mr. Harvell, which was hand-receipted by him at 11:31 a.m. on 3/30/2012. (See Exhibit A to the Complaint). Immediately thereafter, Mr. Harvell assisted Plaintiff Smith in completing her electronic filing of her Statement of Economic Interests Report, (SEI) which was confirmed as received by the South Carolina Ethics Commission at 11:41:50 a.m. (See Exhibit B to the Complaint) i.e. ten minutes after her SIC was physically received by Harvell. As Plaintiff Smith was leaving the Anderson County Republican Party Headquarters, her opponent, incumbent Ken Waters, entered the offices to file his SIC. Importantly, Mr. Waters was considered exempt from S.C. Code Ann. 8-13-1356
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Anderson et al. v. South Carolina Election Commission et al., Slip Opinion

number 27120, 2012 S.C. LEXIS 100, filed May 2, 2012 (S.C. Sup. Ct) and rehearing 2012 S.C. LEXIS 99 decided May 3, 2012, and Florence County Democratic Party et al. v. Florence County Republican Party et. al, Slip Opinion No. 27128, 2012 S.C. LEXIS 116, June 5, 2012 (S.C. Sup. Ct).

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(Supp. 2011), as interpreted by the South Carolina Supreme Court in Anderson v. S.C. Election Comm'n, Op. No. 27120 (S.C. Sup. Ct. filed May 2, 2012), and was not required to simultaneously file an SEI at the filing of his SIC as was Plaintiff Smith. After the South Carolina Supreme Courts decision in the case of Anderson v. S.C. Election Comm'n, Op. No. 27120 (S.C. Sup. Ct. filed May 2, 2012), Plaintiff Smith was recertified by the Anderson County Republican Party as eligible to remain on the ballot because she was deemed to have met the standard of S.C. Code Ann. 8-13-1356, which provides that [a] candidate must file a statement of economic interests for the preceding calendar year at the same time and with the same official with whom the candidate files a declaration of candidacy or petition for nomination. However, after the South Carolina Supreme Courts subsequent decision in the case of Florence County Democratic Party et al. v. Florence County Republican Party et. al, (S.C. Sup. Ct. filed June 5, 2012), and as a result of a rehearing request in the case of Anderson v. S.C. Election Comm'n, Op. No. 27120 (S.C. Sup. Ct. filed May 2, 2012), the South Carolina Supreme Court determined that the only method for non-exempt individuals to comply with the Courts interpretation of S.C. Code Ann. 8-13-1356 was to have filed a paper copy of an SEI. This requirement is found nowhere in the text of the statute, but, rather, was the result of the common law interpretation by the South Carolina Supreme Court. Accordingly, on June 7, 2012, Plaintiff Smith was decertified and removed from the ballot. Plaintiff Tommie Reece (hereinafter referred to as Plaintiff Reece) is a citizen and resident of Greenville County and was a candidate for State Senate District Six (6), which covers the Northwestern portion of Greenville County. Plaintiff Reece currently sits on the School Board for Greenville County and had a 2011 SEI already on file pursuant to

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S.C. Code Ann. 8-13-1110(B)(8). Plaintiff Reece filed for candidacy for State Senate District 6 with the Greenville County Republican Party on March 29, 2012. Because she was already a public official pursuant to S.C. Code Ann. 8-13-1110(B)(8), with a current SEI on file, the Greenville County Republican Party initially declared Reece to be exempt from the additional SEI filing requirements. The Chair requested Plaintiff Reeces 2011 SEI and Plaintiff Reece provided the copy of her 2011 SEI already on file. (See Exhibit C to the Complaint). Thereafter, upon further request, Plaintiff Reece filed a 2012 SEI form on March 30 and provided a copy of it as well to the Greenville County Republican Party. (See Exhibit D to the Complaint). Plaintiff Reece was initially certified and then re-certified after the Anderson case because she was deemed by her party to be exempt as a public official from S.C. Code Ann. 8-13-1356 pursuant to S.C. Code Ann. 8-13-1110(B)(8). However, after the case of Florence County Democratic Party et al. v. Florence County Republican Party et. al, Slip Opinion No. 27128, June 5, 2012 (S.C. Sup. Ct), and as a result of a rehearing request in the case of Anderson et al. v. South Carolina Election Commission et al., Slip Opinion number 27120, filed May 2, 2012 (S.C. Sup. Ct), the South Carolina Supreme Courts ruling was thereafter interpreted by the Greenville County Republican Party to mean that one not only have an SEI on file, but that the SEI on file be for the same seat one is currently seeking. (i.e. the candidate must be the current incumbent of that seat). Since Plaintiff Reeces SEI on file was for the office which she currently holds (i.e. Greenville County School Board Member) rather than the office she seeks (i.e. State Senate District Six (6)), she was decertified as a candidate and removed from the ballots of Greenville County. Plaintiff Reece was notified of the decertification decision at 4:45 p.m. on Thursday, June

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7, 2012. Reeces opponent, incumbent State Senator Mike Fair, remains on the ballot. Conversely, Democratic candidates in an exactly similar race for State Senate District Sevens (7) seat in Southern Greenville County (Karl Allen, Lillian Brock-Flemming and Leola Robinson-Simpson) have all been deemed exempt from the simultaneous filing requirement by their local Democratic party because they are all currently sitting public officials, though none are the incumbent of State Senate District 7. (Sen. Ralph Anderson is not seeking re-election and it is an open seat.) As of this filing, all of the State Senate District Seven (7) Democratic contenders remain on the ballot in Greenville County. Plaintiff John Pettigrew (hereinafter referred to as Plaintiff Pettigrew) is a citizen and resident of Edgefield County. Plaintiff Pettigrew was a candidate for the Republican nomination for the newly drawn State Senate District Twenty-Five (25) seat which now includes all of Edgefield County and portions of Aiken, Lexington, McCormick and Saluda Counties. Pettigrew is a former Mayor of Edgefield and served in the SC House of Representatives, as well as serving as county administrator and on the staff of Senator Strom Thurmond. Plaintiff Pettigrew filed his SIC with the Edgefield County Republican Party Chairman on or around 10:30 a.m. on March 30, 2012. (Exhibit E to the Complaint) Plaintiff Pettigrew had previously completed SEIs in his previous government roles and was advised that he need only file the SEI within 10 days of receiving or expending $500.00. On April 6, 2012, Plaintiff Pettigrew filed his SEI. (Exhibit F to the Complaint). After the Anderson ruling, Pettigrews name was removed from the ballot.

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Plaintiff Bob Shirley (hereinafter Plaintiff Shirley) was a Democratic contender for South Carolina House of Representatives District Eleven (11). The incumbent, Paul Agnew, is not seeking re-election and that seat is an open seat as well. Plaintiff Shirley previously served in the House of Representatives in the early 1990s. Plaintiff Shirleys Democratic opponent, Lee Garrett, is the current mayor of Calhoun Falls. While Plaintiff Reece has been decertified because her SEI was not for the exact office she is now seeking, Plaintiff Shirleys opponent, has been deemed exempt from the SEI filing requirement because he is currently a public official, even though his SEI on file was for his mayoral position and not for the position of South Carolina House of Representatives District Eleven (11). After making several attempts to complete the SIC online, Plaintiff Shirley received a letter from the House Legislative Ethics Committee advising that he was late in filing his report. Plaintiff Shirley personally went to the Ethics Commission on April 30, 2012 and they assisted him in filing his SEI report. (Exhibit G to the Complaint). Plaintiff Shirley was then assured that his candidacy would be fine and that he would be placed on the ballot. After the ruling in the Anderson case, Plaintiff Shirley was decertified and removed from the ballot. As of this filing, Garrett remains on the ballot. Plaintiff Robert Tinsley (hereinafter referred to as Plaintiff Tinsley), is a citizen and resident of Greenwood County and was a Democratic candidate for the position of Eight Circuit Solicitor. The Eighth Circuit spans the South Carolina counties of Abbeville, Greenwood, Laurens and Newberry. Plaintiff Tinsley personally completed his SEI, SIC and pledge at the State Democratic Party Headquarters in Columbia, South Carolina on March 30, 2012 at 11:45 a.m. (Exhibit H to the Complaint). The first item

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completed by Tinsley was the SEI, though the person who assisted Plaintiff Tinsley did not provide him with a copy. That representative of the State Democratic Party did, however, assure him it was printed to his file and was sent to the S.C. Ethics Commission and Election Commission. Also, the Democratic Party computer supposedly verified adequate filing. (Exhibit I to the Complaint). The Ethics Commission later asserted the SEI was not received until 12:23 p.m. on March 30, 2012. Despite this, the Election Commission stated to a reporter (on tape) that they can not tell when Tinsleys was received. After the decision in Anderson case, Tinsley was de-certified and his name removed from the ballot. The State of South Carolina (hereinafter referred to as Defendant State) is the body politic of the residents of the State of South Carolina and is represented through the executive, legislative and judicial branches within the State of South Carolina. The legislative, executive and judicial branches within the State of South Carolina are responsible for promulgating statutory laws, including election laws, and the judiciary and executive branches are responsible for enforcing and interpreting said laws. Specifically, in the last month, the judicial branch of the Defendant State of South Carolina has reinterpreted the 1992 act, as amended in 1996. Such interpretation has changed votes and voting as defined by the Voting Rights Act of 1965, as amended and has caused Plaintiffs and other similarly situated to be removed from the ballot. II. LAW AND APPLICATION A. Voting Rights Act of 1965, as Amended The Voting Rights Act of 1965 (42 U.S.C. 19731973aa-6) is a landmark piece of national legislation in the United States that outlawed discriminatory voting

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practices that had been responsible for the widespread disenfranchisement of African American voters in the United States. Echoing the language of the 15th Amendment, the Act prohibits states from imposing any voting qualification or prerequisite to voting, or standard, practice, or procedure ... to deny or abridge the right of any citizen of the United States to vote on account of race or color. Initially, Congress intended the Act to outlaw the practice of requiring otherwise qualified voters to pass literacy tests in order to register to vote, a principal means by which Southern states had prevented African-Americans from exercising the franchise. The Act was signed into law by President Lyndon B. Johnson, who had earlier signed the landmark Civil Rights Act of 1964 into law. The Act established extensive federal oversight of elections administration, providing that states with a history of discriminatory voting practices (so-called covered jurisdictions) could not implement any change affecting voting without first obtaining the approval of the Department of Justice - a process known as preclearance. These enforcement provisions applied to states and political subdivisions (mostly in the South) that had previously used a device to limit voting and in which less than 50 percent of the population was registered to vote in 1964. The Act has been renewed and amended by Congress four times, the most recent being a 25-year extension signed into law by President George W. Bush in 2006. In Allen v. State Board of Elections, 393 U.S. 544, 565 (1969), the United States Supreme Court stated that the coverage of Section 5 was to be given a broad interpretation. Any change affecting voting, even though it appears to be minor or indirect is subject to the Section 5 review requirement.

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South Carolina is such a covered jurisdiction pursuant to the Voting Rights Act of 1965, as amended. (42 U.S.C. 1973c). Specifically, Section Five (5) of the Voting Rights Act of 1965, as amended, prohibits the enforcement in any covered jurisdiction of: any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on the date used to determine coverage, until either: (1) A declaratory judgment is obtained from the U.S. District Court for the District of Columbia that such qualification, prerequisite, standard, practice, or procedure neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group, or (2) It has been submitted to the Attorney General and the Attorney General has interposed no objection within a 60-day period following submission. 28 C.F.R. 51.1 Vote and voting are defined in the Act, to include all action necessary to make a vote effective in any primary, special, or general election, including, but not limited to, registration, listing pursuant to this Act, or other action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate totals of votes cast with respect to candidates for public or party office and propositions for which votes are received in an election. 28 C.F.R. 51.2. Even [c]ertain activities of political parties are subject to the preclearance requirement of section 5. A change affecting voting effected by a political party is subject to the preclearance requirement: (a) If the change relates to a public electoral function of the party and (b) if the party is acting under authority explicitly or implicitly granted by a covered jurisdiction or political subunit subject to the preclearance requirement of section 5. 28 C.F.R. 51.7. Page 9 of 20

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Importantly, Section 5 of the Voting Rights Act further requires that, prior to enforcement of any change affecting voting, the jurisdiction that has enacted or seeks to administer the change must either: (a) Obtain a judicial determination from the U.S. District Court for the District of Columbia that the voting change neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group. (b) make to the Attorney General a proper submission of the change to which no objection is interposed. It is unlawful to enforce a change affecting voting without obtaining preclearance under section 5. The obligation to obtain such preclearance is not relieved by unlawful enforcement. 28 C.F.R. 51.10 (emphasis added) Examples of such changes which require preclearance from the Department of Justice include, [a]ny change affecting the eligibility of persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective offices. 28 C.F.R. 51.13(g). In a series of rulings by the South Carolina Supreme Court on May 2, 2012, May 3, 2012 and June 5, 2012,2 the South Carolina Supreme Court altered the before then general interpretation of S.C. Code Ann. 8-13-1356, enacted in 1991 and thereafter amended in 1996, and placed immediately in force a change affecting the eligibility of persons to become or remain candidates, to obtain a position on the ballot in primary or general elections, or to become or remain holders of elective offices without the State obtaining preclearance from the U.S. Department of Justice. These actions are in clear violation of the Voting Rights Act of 1965, as amended and as interpreted in 28 C.F.R. 51.13(g).

Anderson et al. v. South Carolina Election Commission et al., Slip Opinion number 27120, 2012 S.C. LEXIS 100, filed May 2, 2012 (S.C. Sup. Ct) and rehearing 2012 S.C. LEXIS 99 decided May 3, 2012, and Florence County Democratic Party et al. v. Florence County Republican Party et. al, Slip Opinion No. 27128, 2012 S.C. LEXIS 116, June 5, 2012 (S.C. Sup. Ct).

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As a result of these actions, at least 215 Democratic and Republican hopefuls across the state have been removed from the ballots for allegedly failing to properly file their SEI simultaneously with their SIC. Fifteen of out 23 challengers in Anderson and Pickens counties who filed to run in March 2012 have now been deemed ineligible. In Oconee County alone, 11 of 13 candidates faced the same fate, prompting election officials to entirely cancel the Republican primary. Plaintiffs have suffered personal harm in that they each have been removed from their partys primary ballot with Plaintiffs like Reece and Smith being removed less than a week before the primary elections were to occur. In all cases, candidates were removed from the ballots within a 45 day period prior to the election when voters had already been sent (and most of those have cast) their absentee ballots. Because of the dictates of the South Carolina Supreme Courts decision, Plaintiffs have no other adequate remedy at law other than to turn to this Court and seek enforcement of their federally protected Constitutional and statutory rights. Plaintiffs have standing to enforce the mandates of Section Five of the Voting Rights Act of 1965, as amended. 28 C.F.R. 51.63. (See also 5 U.S.C. 301; 28 U.S.C. 509, 510, and 42 U.S.C. 1973b, 1973c.) As the Voting Rights Act of 1965 was passed to fully enforce the 15th Amendments goals. Violation of the Voting Rights Act is likewise a constitutional violation. B. 42 U.S.C. 1983 (violation of the due process provisions of the 14th Amendment and voting right guarantees of the 15th Amendment) To state a claim under [section] 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the

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alleged deprivation was committed under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Philips v. Pitt Cnty. Meml Hosp., 572 F.3d 176, 180 (4th Cir. 2009). S.C. Code Ann. 8-13-1356 states with regard to the filing of statements of economic interests by candidates for public office: (A) This section does not apply to a public official who has a current disclosure statement on file with the appropriate supervisory office pursuant to Sections 813-1110 or 8-13-1140. (B) A candidate must file a statement of economic interests for the preceding calendar year at the same time and with the same official with whom the candidate files a declaration of candidacy or petition for nomination. (C) The official with whom the candidate files a declaration of candidacy or petition for nomination, no later than five business days after candidacy books close, must file a copy of the statement with the appropriate supervisory office. (D) An individual who becomes a candidate other than by filing must, no later than fifteen business days after becoming a candidate, file a statement of economic interests for the preceding calendar year with the appropriate supervisory office. (E) An officer authorized to receive declarations of candidacy and petitions for nominations under the provisions of Chapter 11 of Title 7 may not accept a declaration of candidacy or petition for nomination unless the declaration or petition is accompanied by a statement of economic interests. If the candidates name inadvertently appears on the ballot, the officer authorized to receive declarations of candidacy or petitions for nomination must not certify the candidate subsequent to the election. (F) If the candidate files for office before January first of the year in which the election is held, he must file a supplementary statement covering the preceding calendar year no later than April first of the year in which the election is held. (G) A candidate who is not a public official otherwise filing a statement has the same disclosure requirements as a public official with the exception of reporting gifts. (H) The State Ethics Commission must furnish to each clerk of court in the State forms on which the statement of economic interests shall be filed.

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The South Carolina Supreme Court has interpreted S.C. Code Ann. 8-13-1356 to mean that S.C. Code Ann 8-13-1356 is satisfied if an individual, when filing a Statement of Intention of Candidacy (SIC), provides the political party with a paper copy of a Statement of Economic Interest (SEI), whether previously electronically filed or not . The Court then clarified that their opinion could only be complied with in that exact fashion and no other. Anderson v. S.C. Election Commn, 2012 S.C. LEXIS 99 *1, decided May 3, 2012 (S.C. Sup. Ct.) As affirmed in Bush v. Gore, 531 U.S. 98, 104 (2000), The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. The United States Supreme Court also cautioned that [h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one persons vote over that of another. Id. at 104-105. It stressed, [i]t must be remembered that the right of suffrage can be denied by a debasement or dilution of the weight of a citizens vote just as effectively as by wholly prohibiting the free exercise of the franchise. Id. at 105. In the case at bar, like the Bush v. Gore case, the standards for removing or leaving candidates on the ballot, might vary not only from county to county but indeed within a single county from one recount team to another. In this case, it is not a recount team, but rather the political parties. In Greenville County, Democratic State Senate candidates who are a public official remain on the ballot for a new position while Republican State Senate candidates who are a public official are decertified and

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removed. These inconsistencies from county to county and party to party within the same county are clearly an unequal protection of the law as applied. Furthermore, the promulgation of laws by incumbents which allow incumbents to make more difficult hurdles for non-incumbents also violates the letter and the spirit of the 14th Amendments Constitutional requirements. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. Bush v. Gore, 531 U.S. 98, 109 (2000). South Carolinas application of this cumbersome and labyrinthic procedure only to non-incumbents has no measurable justification for the burden it imposes i.e. the fundamental loss of a right to participate in the electoral process via being a candidate for office. Accordingly, S.C. Code Ann. 8-13-1356, as interpreted by the South Carolina Supreme Court, violates the Plaintiffs due process guarantee under the Fourteenth Amendment in that it unreasonably imposes an undue burden upon non-incumbents for no measurable justification. Furthermore, as recounted above, S.C. Code Ann. 8-13-1356 as applied by the local political parties and the county election commissions is unconstitutional as applied because the manner in which it is being applied is grossly inconsistent throughout the State. Candidates in the same county, but of a different party, remain on the ballot because they are deemed by their party to be exempt, while other candidates who have filed REIs, but for a different office have been removed from the ballot (i.e. Plaintiff Reece). Conversely, some Plaintiffs (i.e. Plaintiff Shirley) have been removed from the

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ballot while their challengers remain on the ballot because the challenger previously filed REI from another public position they hold. S.C. Code Ann. 8-13-1356 as interpreted by the Anderson I & II and Florence cases that a non-incumbent must simultaneously file a paper copy of their SEI with their SIC and do so in a paper copy form, creates an unreasonable burden to a non-incumbent that the incumbent is not burdened with. If a regulation was adopted to burden disfavored viewpoints or modes of expression, a court applies strict scrutiny. Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 512 (4th Cir. 2002). A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiffs rights. Burdick v. Takushi, 504 U.S. 428, 434 (1992). In this case, there is no explanation for this disparate, cumbersome and labyrinthic process that only applies to non-incumbents of the seat being sought. C. Injunction requirements (1) Standing

Before exercising jurisdiction over this matter, this Court must assure itself that the action satisfies Article Ills case or controversy requirements. U.S. CONST. ART. III, 2. To establish standing, (1) a plaintiff must have suffered an injury in fact, which is an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical; (2) the injury must have been

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caused by the defendants complained-of actions; and (3) a plaintiffs injury or threat of injury must likely be redressable by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The plaintiff has the burden of establishing standing. See id. at 561. Plaintiffs have clear standing under the Voting Rights Act to bring this claim. 28 C.F.R. 51.63. (See also 5 U.S.C. 301; 28 U.S.C. 509, 510, and 42 U.S.C. 1973b, 1973c.) (a) Particularized harm In the case at bar, all the plaintiffs have suffered particularized harm in that after the significant investment they each made emotionally and financially in their own campaigns, they have now been removed from their partys primary ballot and they are forced to seek, if at all, a petition candidacy as an independent candidate, rather than one affiliated with their party. Their fundamental right to participate in the electoral process by offering themselves as a candidate for office has been denied them. (b) Defendants proximately caused the harm As set forth in the Plaintiffs Complaint and earlier in this motion, the Defendants actions by and through its legislature passing this law that only applied to non-incumbents and judiciarys actions in interpreting this law in a way that has caused Plaintiffs to be decertified and removed from the ballot are the proximate cause of the harm to Plaintiffs. (c) Appropriate redress The South Carolina Supreme Court has now thrice ruled on this issues and has indicated its growing weariness with the same. No case before now has yet to challenge

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the underlying core unconstitutionality of the law or the preclearance issues required under the Voting Rights Act. The issues involved in this suit are all Federal Constitutional and Federal statutory claims. This Court clearly has original jurisdiction to hear these claims and to impose a remedy that will correct the constitutional defects that have occurred thus far. In fact, this Court is the only Court that can correct these Constitutional defects in an appropriate and timely manner. (2) Winter requirements Plaintiffs seek a temporary restraining order, the issuance of which is governed by the same general standards as the grant of a preliminary injunction. Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 422 (4th Cir. 1999). A plaintiff seeking a preliminary injunction must establish: 1) that s/he is likely to succeed on the merits; 2) that s/he is likely to suffer irreparable harm in the absence of preliminary relief; 3) that the balance of equities tips in his/her favor; and 4) that the injunction is in the public interest. Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008); see also Real Truth about Obama, Inc. v. Federal Election Comn, 575 F.3d 342, 346-47 (4th Cir. 2009). (a) Likelihood of success on the merits. The plaintiffs in this case have presented clear and unambiguous violations of the Voting Rights Act of 1965, as amended, as well as due process violations. Defendants never obtained pre-clearance from the Department of Justice before effecting this immediate change in the law for candidates and the same is facially a violation of the Voting Rights Act. Also, the law at issue is targeted to exempt incumbent legislators while imposing unduly harsh requirements on non-incumbents

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seeking their seats. Given the strength of the combined claims of Plaintiffs, Plaintiffs have a high likelihood of success on the merits. (b) likely to suffer irreparable harm in the absence of preliminary relief; The South Carolina primary elections are Tuesday, June 12th, beginning at 7:00 a.m. If the State were enjoined by being required to add the Plaintiffs and others similarly situated back onto the ballots, they would suffer little appreciable harm therefrom. In fact, many voters have already cast their absentee ballots with the names of Plaintiffs (and others similarly situated) on them. There would be little harm to Defendants for this process other than a mere inconvenience of programming the name of Plaintiffs (and others similarly situated) back into the electronic voting machines. Additionally, there would be little harm to enjoining the primaries until this matter were resolved. In either case, this would be a much lesser harm than allowing the primaries to go forward, only to declare them defective later and require a do-over. The cost involved in putting on two different primaries would be costly to the respective political parties and the candidates and would diminish the publics confidence in the election process. Conversely, if Plaintiffs are forced off their party ballots, they will be harmed irreparably and so will the voters of South Carolina. The plaintiffs and other similarly situated will be forced to seek petition candidacies and to break apart from their parties (as well as break their oaths to their parties regarding running as independent candidates.) (c) that the balance of equities tips in his/her favor;

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In measuring the balance of the equities, the equities lean in the favor of Plaintiffs that they either be added back onto the ballot or the primaries be postponed until the matter can be resolved by this Court. If they are added back and are later

found to be truly ineligible, they have only lost the time invested in their campaign. However, if they are disenfranchised though they would be otherwise eligible, the harm would be irreparable to them and the voters. (d) that the injunction is in the public interest. Finally, the public interest weighs heavily in the favor of Plaintiffs that they either be added back onto the ballot or the primaries be postponed until the matter can be resolved by this Court. Since the outcome of the last ruling of the South Carolina, there has been loud hue and a cry from the citizenry of South Carolina. The legislature has failed to act to correct these problem despite the public outcry for them to do so. The public supports allowing these candidates and others similarly situated to stay on the ballot and the public deserves to have the choice of voting for the candidate of their choice, rather than be thwarted by technical roadblocks written by incumbents to favor themselves. III. Conclusion

For these reasons, this Court should grant the restraining Order Staying the immediate and permanent enforcement of Anderson et al. v. South Carolina Election Commission et al., Slip Opinion number 27120, 2012 S.C. LEXIS 100, filed May 2, 2012 (S.C. Sup. Ct) and rehearing 2012 S.C. LEXIS 99 decided May 3, 2012 (S.C. Sup. Ct.), and Florence County Democratic Party et al. v. Florence County Republican Party et. al, Slip Opinion No. 27128, 2012 S.C. LEXIS 116, June 5, 2012 (S.C. Sup. Ct); and

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3:12-cv-01543-CMC

Date Filed 06/11/12

Entry Number 4

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Temporarily restraining Defendants and requiring that they either a) return Plaintiffs names (and those similarly situated) to the ballots for the primaries to be held on Tuesday, June 12, 2012; or b) postpone the primaries scheduled for Tuesday, June 12, 2012 pending resolution of this matter by this Court. s/Candy M. Kern-Fuller, Esq. Federal Bar # 9149 UPSTATE LAW GROUP, LLC 200 East Main Street Easley, South Carolina 29640 864-855-3114 864-855-3446 (Facsimile) Candy@UpstateLawGroup.com June 11, 2012 ATTORNEY FOR PLAINTIFFS

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