Booth v. Cruz

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Christopher Booth
v. Civil No. 15-cv-518-PB
Ted Cruz
REPORT AND RECOMMENDATION
Seeking declaratory and injunctive relief and proceeding in
forma pauperis, plaintiff Christopher Booth has filed a
complaint (doc. no. 1) and an amended complaint (doc. no. 4)1
against Senator Ted Cruz, a candidate in the New Hampshire
Republican Presidential Primary election (“NH Republican
Primary”). Booth asserts that Sen. Cruz’s presence on the NH
Republican Primary ballot encumbers plaintiff’s right to vote.
This matter is here for preliminary review, pursuant to 28
U.S.C. § 1915(e)(2) and LR 4.3(d)(2).
Preliminary Review Standard
In determining whether a pro se pleading states a claim,
the court construes the pleading liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). The magistrate judge may
1A duplicate filing to the Amended Complaint was docketed as
Doc. No. 5 in this case.
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recommend to the district judge that one or more claims be
dismissed if, among other things, the court lacks jurisdiction,
a defendant is immune from the relief sought, or the complaint
fails to state a claim upon which relief may be granted. See 28
U.S.C. § 1915(e)(2); LR 4.3(d)(2). In conducting its
preliminary review, the court construes pro se complaints
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). The complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief.’” See Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Background
Booth alleges that he is an independent New Hampshire
voter. Sen. Cruz is seeking the Republican Party’s nomination
as its candidate for President. Sen. Cruz was born in Canada.
Because his mother was a United States citizen at the time of
his birth, Sen. Cruz is a United States citizen.
Sen. Cruz filed papers with the New Hampshire Secretary of
State, seeking a spot on the NH Republican Primary ballot, which
the Secretary accepted. Booth filed a complaint with the New
Hampshire Ballot Law Commission (“BLC”), asserting that Sen.
Cruz’s birth in Canada renders him ineligible to become the
President of the United States, pursuant to Article II, § 1 of
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the United States Constitution. Article II, § 1 states that:
“No person except a natural born Citizen, or a Citizen of the
United States at the time of the Adoption of this Constitution,
shall be eligible to the Office of President.” U.S. Const., art
II, § 1, cl. 4 (emphasis added).
Booth urged the BLC to overrule the Secretary’s action in
accepting Sen. Cruz’s application, and to remove Sen. Cruz from
the NH Republican Primary ballot.2 The BLC found that, in the
absence of controlling case law defining “natural born citizen”
in the context of Article II, § 1 of the Constitution, it would
not decide that question. The BLC limited its review of Sen.
Cruz’s application to a determination as to whether the
Secretary of State appropriately accepted Sen. Cruz’s filing.
Finding that that Secretary reasonably accepted that filing, the
BLC denied Booth’s challenge.
Booth now brings this action, asserting that his right to
vote is hampered by the presence of Sen. Cruz on the NH
2The BLC heard Booth’s challenge to Sen. Cruz’s candidacy,
pursuant to N.H. Rev. Stat. Ann. § 665:7, which states:
The ballot law commission shall hear and determine
disputes arising over whether nomination papers or
declarations of candidacy filed with the secretary of
state conform with the law. The decision of the
ballot law commission in such cases shall be final as
to questions both of law and fact, and no court shall
have jurisdiction to review such decision.
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Republican Primary ballot. To remedy this asserted violation of
his rights, Booth seeks:
1. Declaratory relief in the form of a ruling from this
court that Sen. Cruz, by virtue of his Canadian birth,
is not a “natural born citizen” within the meaning of
Article II, § 1 of the United States Constitution, and
is thus not eligible to run for the Office of the
President of the United States; or, in the
alternative,
2. Injunctive relief in the form of an order: (a)
directing that Sen. Cruz be removed from the NH
Republican Primary ballot; (b) defining the term
“natural born” in Article II, § 1, and then directing
the BLC to actualize that position in regard to Sen.
Cruz’s appearance on the NH Republican Presidential
ballot; (c) suggesting that the New Hampshire
legislature pass a law requiring a candidate seeking
placement on a New Hampshire ballot in a primary
presidential election to identify their birthplace;
and/or (d) overruling the BLC by sustaining Booth’s
challenge filed before that body.
Discussion
I. Standing
“Article III of the Constitution limits the jurisdiction of
federal courts to ‘Cases’ and ‘Controversies.’” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting
U.S. Const., Art. III, § 2). “The doctrine of standing gives
meaning to these constitutional limits by ‘identify[ing] those
disputes which are appropriately resolved through the judicial
process.’” Susan B. Anthony List, 134 S. Ct. at 2341 (citation
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omitted). “To establish Article III standing, a plaintiff must
show (1) an ‘injury in fact,’ (2) a sufficient ‘causal
connection between the injury and the conduct complained of,’
and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a
favorable decision.’” Id. (citation omitted). The burden to
establish standing lies with the party seeking to invoke the
jurisdiction of a federal court. See id. at 2342.
“An injury sufficient to satisfy Article III must be
concrete and particularized and actual or imminent, not
conjectural or hypothetical.” Id. at 2341 (internal quotation
marks and citation omitted).
[A] plaintiff raising only a generally available
grievance about government – claiming only harm to his
and every citizen’s interest in proper application of
the Constitution and laws, and seeking relief that no
more directly and tangibly benefits him than it does
the public at large – does not state an Article III
case or controversy.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 573-74 (1992).
Here, Booth alleges that Sen. Cruz’s appearance on the NH
Republican Primary ballot encumbers his right to vote. Stripped
of legal conclusions, however, nothing in the complaint suggests
that Sen. Cruz’s presence on the ballot creates any such
hindrance, as Booth remains free to vote for whichever candidate
he chooses, decline to vote for Sen. Cruz or any other
individual on the ballot, or write in a candidate of his choice.
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This court has found that an individual voter challenging
the eligibility of a candidate for President lacks standing to
assert a claim based on the general interests of the voting
public. See Hollander v. McCain, 556 F. Supp. 2d 63, 68 (D.N.H.
2008) (finding, under similar circumstances, that voters
concerned with the eligibility of a candidate on the ballot for
President are “empowered to address that concern on their own by
voting for a different presidential candidate, whose eligibility
is unimpeachable”). “[T]he inclusion of a rival candidate on a
ballot ‘does not impede the voters from supporting the candidate
of their choice,’ and thus does not cause the legally cognizable
harm necessary for standing.” Hollander, 556 F. Supp. 2d at 69
(citation omitted).
Booth lacks standing to bring this action seeking a
determination of Sen. Cruz’s eligibility to run in the NH
Republican Primary, and/or an injunction removing Sen. Cruz from
the NH Republican Primary ballot. Because the court finds
Booth’s lack of standing to be dispositive of this matter, it
does not reach the underlying question of Sen. Cruz’s
eligibility to be President.
II. Ballot Law Commission and State Legislature
While Booth states explicitly that he is not seeking to
appeal the BLC’s decision to this court, he has asked this court
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to advise the BLC as to the meaning of “natural born” in the
context of Article II, § 1 of the Constitution; to reverse the
BLC’s decision; and to suggest the passage of certain laws to
the New Hampshire state legislature. This court does not have
appellate jurisdiction over the BLC. See RSA 665:7 (“The
decision of the ballot law commission . . . shall be final as to
questions both of law and fact, and no court shall have
jurisdiction to review such decision.”). Further, the district
judge should decline Booth’s invitation to provide advice either
to the BLC or to the state legislature, as federal courts are
prohibited from rendering advisory opinions. See Igartua v.
United States, 626 F.3d 592, 606 (1st Cir. 2010).
III. Motion for Summary Judgment (Doc. No. 6)
Booth has filed a motion for summary judgment (doc. no. 6),
requesting that judgment be granted in Booth’s favor due to the
imminence of the February 9, 2016, NH Presidential Primary.
Because Booth has failed to state any claim upon which relief
might be granted in his complaint, and he has not shown an
entitlement to judgment as a matter of law, the motion for
summary judgment should be denied.
Conclusion
For the foregoing reasons, the district judge should
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dismiss the complaint and amended complaint (doc. nos. 1 and 4),
and deny plaintiff’s motion for summary judgment (doc. no. 6).
Any objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. See Fed. R.
Civ. P. 72(b)(2). Failure to file objections within the
specified time waives the right to appeal the district court’s
order. See Garayalde-Rijos v. Mun. of Carolina, 747 F.3d 15,
21-22 (1st Cir. 2014).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
January 20, 2016
cc: Christopher Booth, pro se
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