Jorgensen et al v. NH Secretary of State et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Karen Testerman, et al.
v. 	Case No. 24-cv-20-LM-AJ
NH Secretary of State, et al.
REPORT AND RECOMMENDATION
Plaintiffs Karen Testerman and David Testerman1 sued New
Hampshire Secretary of State David Scanlan, the New Hampshire
Republican State Committee and its Chairman, Chris Ager,
claiming that the defendants, individually and collectively,
violated their rights by allowing voters who were previously
undeclared or otherwise not affiliated the with the New
Hampshire Republican Party vote in the New Hampshire
presidential primary in January 2024. See Compl. (Doc. No. 1).
They assert that allowing this category of what plaintiff Karen
Testerman described as “five-minute Party members” to vote in
the Republican primary interferes with their First Amendment
right of association with the political party of their choice.
Presently before the court is the plaintiffs’ Third Emergency
1 Two other plaintiffs, Patricia Jorgensen and Nikki
McCarter, voluntarily dismissed their claims and are no longer
part of this case. See Feb. 15, 2024, End. Ord. granting
motions.
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Motion for Injunctive Relief (Doc. No. 40), which has been
referred to the undersigned Magistrate Judge for a Report and
Recommendation.2 After reviewing the parties’ submissions and
conducting oral argument,3 the court recommends that the district
judge deny plaintiffs’ motion for injunctive relief.4
The plaintiffs seek a preliminary injunction pursuant to
Fed. R. Civ. P. 65(a). Pltf. Mot. (Doc. No. 40) at 1. “A
preliminary injunction is an extraordinary remedy never awarded
as of right.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24
2 The plaintiffs target their requested relief to the
upcoming state primaries. 	They ask this court to order the
Secretary of State to instruct all moderators to mark all
ballots issued to registered Undeclared voters and Same-day
registered voters with an indelible red inkstamp in the upper
right corner of the ballot in order to preserve the ballots for
later audit “if found necessary.”
3 The court has also considered the plaintiffs’ unopposed
exhibits (Doc. No. 52) and the parties agreed-upon facts. Doc.
No. 54). 	In addition, plaintiffs filed a witness affidavit
(Doc. No. 58), and submitted proffers regarding testimony they
would have elicited from other witnesses identified on their
witness list. (Doc. No. 52). 	The court overruled defendants’
objections to the affidavit and proffer, and has considered the
evidence in its analysis to the extent it is relevant to the
issues in dispute.
4 The defendants argue that this case is moot, as the
January 2024 primaries and candidate selection process have
concluded. 	While the court is sympathetic to this argument, the
plaintiffs request for injunctive relief asserts the same legal
arguments as the original complaint, but instead targets the
upcoming New Hampshire State primary, scheduled to take place on
September 10, 2024. 	In allowing this motion to proceed, the
court is giving great deference to plaintiffs’ pro se status,
and does so without prejudice to the arguments the defendants
raise in their respective motions to dismiss.
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(2008). To obtain a preliminary injunction, the moving party
must show: (1) a likelihood of success on the merits; (2) that
it is likely to suffer irreparable harm in the absence of a
preliminary injunction; (3) that the balance of equities weighs
in the movant's favor; and (4) that the injunction would serve
the public interest. Arborjet, Inc. v. Rainbow Treecare Sci.
Advancements, Inc., 794 F.3d 168, 171 (1st Cir. 2015). The
movant's likelihood of success on the merits is the “main
bearing wall” of the court’s analysis. 	Ocean State Tactical,
LLC v. Rhode Island, 95 F.4th 38, 42 (1st Cir. 2024) , petition
for cert. docketed, No. 24-131 (U.S. Aug. 6, 2024) (citing W
Holding Co. v. AIG Ins. Co. - Puerto Rico, 748 F.3d 377, 383
(1st Cir. 2014)); 	see also Norris on behalf of A.M. v. Cape
Elizabeth Sch. Dist., 969 F.3d 12, 22 (1st Cir. 2020)
(“Likelihood of success on the merits is the most important of
the four preliminary injunction factors.” ) (cleaned up).
A. 	Likelihood of Success on the Merits
On January 23, 2024, the day of the New Hampshire
Presidential Primary, Chief Judge McCafferty denied plaintiff’s
second motion for injunctive relief on two alternative grounds,
each applicable to a different construction of the plaintiffs’
complaint. (Doc. No. 7). She first noted that each of the three
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counts of the complaint5 specifically allege that the defendants’
actions were depriving the New Hampshire Republican Party
(“NHRP”) of its First Amendment right of freedom of association,
as opposed to any rights belonging to the individual plaintiffs.
Order (Doc. No. 7) at 2. 	Construing the complaint as seeking
relief on behalf of the NHRP, Judge McCafferty found against the
plaintiffs because pro se plaintiffs can only represent
themselves in litigation. 	Id. at 2-3. 	Alternatively construing
the complaint as being brought only on plaintiffs’ own behalf,
Judge McCafferty ruled that the plaintiffs lacked standing to
assert the NHRP’s constitutional rights. 	Id. at 3. Judge
McCafferty accordingly held that the plaintiffs failed to
establish a likelihood of success on the merits and were
therefore not entitled to injunctive relief.
Even if the court assumes, arguendo, that the plaintiffs
“inferred” that their own rights were being violated, see Pltf.
Proposed Findings and Rulings (“PFR”) (Doc. No. 53) at 7 n.2,
they have offered no authority that persuades the court to reach
a conclusion different from Judge McCafferty’s. 	That is, the
plaintiffs lack standing to pursue these claims, as their
Constitutional rights are not implicated.
5 On August 29, 2024, the court denied Plaintiffs’ motion to
amend their complaint. As such, the original complaint (Doc. No.
1), remains the operative document.
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As Judge Laplante observed in dismissing plaintiff Karen
Testerman’s earlier lawsuit challenging the defendants’ actions
in advance of the 2024 New Hampshire Presidential primary,
standing is a Constitutional prerequisite to filing suit in
federal court:
“Under Article III of the Constitution, a plaintiff
needs a ‘personal stake’ in the case.” Biden v.
Nebraska, 143 S. Ct. 2355, 2365 (2023) (quoting
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021)). More specifically, “the plaintiff must have
suffered an injury in fact—a concrete and imminent
harm to a legally protected interest, like property or
money—that is fairly traceable to the challenged
conduct and that is likely to be redressed by the
lawsuit.” Id. (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)). In addition to these
constitutional considerations, prudential limitations
“prevent courts from “adjudicating ‘questions of broad
social import where no individual rights would be
vindicated and … limit access to the federal courts to
those litigants best suited to assert a particular
claim.’ ” Conservation Law Found. Of New England,
Inc., 950 F.2d 38, 41 (1 st Cir. 1991) (alterations in
original) (quoting Phillips Petroleum Co. v. Shutts,
472 U.S. 797, 804 (1985)).
Testerman v. NH Sec’y of State, No. 23-CV-499-JL-AJ, 2024 WL
1482751, at *2 (D.N.H. Jan. 9, 2024) (appeal filed, No. 24-1316
(1st Cir. Apr. 3, 2024).6
6 At various times during oral argument, plaintiffs
described their claims as “vote dilution.” 	Not only is that
claim not contained in plaintiffs’ complaint, but Judge Laplante
squarely rejected it in the earlier litigation.
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In an effort to persuade the court to depart from Judge
McCafferty’s earlier ruling, the plaintiffs have, over the
course of various pleadings in this case, cited to numerous
cases which, they assert, support their argument that they have
standing to pursue the three First Amendment claims in their
complaint. 	In short, none of the cases support plaintiffs’
position.
For example, plaintiffs cite Rosario v. Rockefeller, 410
U.S. 752 (1973), for the proposition that a state may “require
party registration for a reasonable period of time” to thwart
so-called “party raiders” (voters who might have had an
affiliation with a different party) from voting in a primary
election. 	Pltf. PFR (Doc. No. 53) at 7-8. That holding,
however, does not mandate the exclusion of “party raiders” under
the instant plaintiffs’ argument that “raiding” impacts the
rights of “regular” Party voters. 	It simply allows a State to
limit the impact of such voters. 	Most importantly for the
standing inquiry, the plaintiffs in Rosario, unlike the
plaintiffs in this case, were completely barred from voting in
the Party primary of their choice if they missed a registration
deadline. 	They alleged that they were deprived of their right
to vote and to associate with the party of their choice. 	Those
plaintiffs’ injury, and therefore their standing, is obvious –
they were not permitted to vote. 	The plaintiffs here are free
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to vote in the Republican Party primary if they so choose. Or,
they could have changed their affiliation to another party, or
unaffiliated entirely and made their decision on primary day.
In fact, the only discussion of standing in Rosario undercuts
plaintiffs’ argument. 	In a footnote, the Court noted that a
group of plaintiffs who were not subject to the time limitation
on party registration lacked standing to assert that the
requirement was unconstitutional. 	410 U.S. at 759 n.9.
The plaintiffs also rely on Bd. Of Elections v. Lopez
Torres, 552 U.S. 196 (2008), a case in which candidates alleged
that New York’s laws for political parties' nominating
candidates for certain elected judges violated their political
association rights under the First Amendment. The plaintiffs
here cite the case for the proposition that “[a] political party
has a First Amendment right to limit its membership as it
wishes, and to choose a candidate -selection process that will
in its view produce the nominee who best represents its
political platform.” Pltf. Repl. (Doc. No. 42) at 2. 	Reliance
on this case is somewhat perplexing, as the assertion of the
Party’s rights is an unremarkable proposition that does not
support plaintiffs’ standing to sue. Moreover, Lopez Torres
contains no analysis whatsoever of the plaintiffs’ standing in
that case. Finally, a full and fair reading of the Supreme
Court’s opinion implicitly undercuts, rather than supports, the
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plaintiffs’ standing argument, as the Court observed that the
plaintiffs were “in no position to rely on the right that the
First Amendment confers on political parties to structure their
internal party processes and to select the candidate of the
party’s choosing.” 	552 U.S. at 203. 	So it is here.
Another case plaintiffs cite is Clingman v. Beaver, 544
U.S. 581 (2005), which held that Oklahoma’s 	“semi-closed”
primary system – pursuant to which a political party may invite
only its own registered members and voters registered as
Independents to vote in its primary – did not violate the right
to freedom of association of the Oklahoma Libertarian Party or
individual Oklahomans registered as Democrats and Republicans.
Id. at 584. 	As with Lopez Torres, however, Clingman contains no
analysis of the plaintiffs’ standing. 	Moreover, the fact that a
state can prevent members of other parties from voting in a
party’s primaries, does not mean that it is required to do so.
See id. at 588 (“The question is whether the Constitution
requires that voters who are registered in other parties be
allowed to vote in the [Libertarian Party]’s primary.”). Unlike
the plaintiffs in Clingman, the plaintiffs in this case are not
being prevented from voting in the primary of their choice.
Thus, while Clingman did not address standing, the two sets of
plaintiffs are not valid comparators.
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In further support of their motion for injunctive relief,
the plaintiffs also rely on a list of cases they cited in their
objection to this court’s recommended denial of their motion to
amend. (Doc. No. 47). 	As Judge McCafferty found, however, these
cases do not support plaintiff’s standing in this case. See Aug.
29, 2024 Order (“The cases cited by the plaintiffs in their
objection do not support their argument that they have standing
to assert the claims in the proposed amended complaint.”).
The plaintiffs make the blanket assertion that “a single
voter, or group of voters” can have standing to challenge an
infringement of their associational rights. Pltf. Obj. (Doc. No.
47) ¶ 8. But that observation, while correct, does not address
the shortcoming in the plaintiffs’ claim of standing in this
case, or the court’s analysis, which is unrelated to the number
of plaintiffs. For example, in Bullock v. Carter, 405 U.S. 134
(1972), the plaintiffs were three political candidates who could
not run in a primary election because they could not afford a
filing fee. And in Burdick v. Takushi, 504 U.S. 428 (1992), the
plaintiff was a single voter who was prohibited by state law
from submitting a write-in vote for a candidate not on the
ballot. Id. at 430-31. 	Although standing was not a litigated
issue in Burdick, the plaintiff, unlike the plaintiffs in this
case, was alleging that he was unable to vote for the candidate
of his choice. 	Thus, his standing was clear. And finally, a
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cited case from this District is another example of the
plaintiffs’ reliance on inapposite cases. In Young v. Gardner,
497 F. Supp. 396 (D.N.H. 1980), two New Hampshire voters
challenged certain New Hampshire election provisions which
impacted their ability to change their party registration. 	Id.
at 398. While standing was not a litigated issue, the plaintiffs
in Young were the individuals whose rights were allegedly
affected, as they were not permitted to change their
registration. 	Once again, this contrasts with the present
plaintiffs, whose ability to register and cast votes in the
primary and for the candidates of their choice are unaffected by
the defendants’ alleged actions.
The plaintiffs have provided no evidence to indicate that
their right to affiliate with the party of their choice and vote
accordingly has been impaired. 	They concede that they remain
Republican Party voters eligible to vote in the primary.7 They
have provided the court with no persuasive authority that they
have Article III standing to prevent other voters from casting
votes in the Republican primary, even if, as plaintiffs argue,
undeclared voters are treated differently than those who
7 Rather, it appears that it is the plaintiffs who seek to
prevent other voters from affiliating with the party of their
choice.
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plaintiffs believe are more “committed” to the Republican Party.8
As such, they have failed to demonstrate that they have standing
to sue, and accordingly, they have failed to demonstrate a
likelihood of success on the merits.
Although continuing further would be “matters of idle
curiosity” in the absence of a likelihood of merits success, New
Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9
(1st Cir. 2002), the court addresses the three remaining
injunction factors both as a matter of completeness and in
deference to plaintiffs’ pro se status.9
B. Irreparable Harm
To the extent that the plaintiffs claim irreparable harm
from being forced to “associate” with voters who, they maintain,
should not be allowed to vote in the Republican primary, New
Hampshire law provides them with a remedy. Pursuant to N.H. Rev.
Stat. Ann. § 659:29:
Any voter at any state or presidential primary
election may challenge any other voter offering to
declare himself as a member of a party or to vote the
ballot of a party. Such challenged voter shall not be
8 The court notes that the plaintiffs’ complaint does not
contain a claim for violation of their equal protection rights,
though they attempted to assert on in their unsuccessful motion
to amend.
9 Among other arguments, defendant Scanlan also argues that
the Eleventh Amendment prevents this court from ordering a state
official to follow state law. The court declines to address this
Constitutional issue, in light of the plaintiff’s lack of
Article III standing.
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allowed to so declare or so vote until he makes an
oath or affirmation that he affiliates with and
generally supports the candidates of the party.
The plaintiffs, in the absence of injunctive relief can address
their claimed injuries by invoking this provision of New
Hampshire law.10
C. 	Balance of Harms and Public Interest
These two factors overlap in this case. 	The plaintiffs’
requested relief is to have the ballots of certain voters marked
and sequestered for some unstated period of time until this case
is finally resolved. Plaintiffs assert that these voters are
engaging in fraud and illegal election manipulation by “party-
raiding.” 	However, plaintiffs offer nothing more than
speculation as to those voters’ motives for voting in a
particular primary. 	Moreover, the voter would have no
opportunity to challenge the marking and sequestration of their
ballot. 	Such a result is arguably more harmful to these voters
considering that the potential failure to count their votes is
based only on plaintiffs’ speculation as to their motives.
Accordingly both the balance of harms and public interest
inquiries weigh against the plaintiffs. In the end, the court
resolves all four injunction factors against plaintiffs.
10 At oral argument, plaintiff Karen Testerman acknowledged
this remedy but asserted that effecting such challenges across
New Hampshire’s hundreds of voting locations would be
logistically difficult.
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Conclusion
Based on the foregoing, the district judge should deny
plaintiffs’ third emergency motion for injunctive relief. (Doc.
No. 40). 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). The fourteen-day period may be
extended upon motion. Only those issues raised in the
objection(s) to this Report and Recommendation are subject to
review in the district court. See Sch. Union No. 37 v. United
Nat'l Ins. Co., 617 F.3d 554, 564 (1st Cir. 2010). Any issues
not preserved by such objection(s) are precluded on appeal. See
id. 	Failure to file any objections within the specified time
waives the right to appeal the district court's Order. See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
___________ 	______________
Andrea K. Johnstone
United States Magistrate Judge
September 6, 2024
cc: 	David Testerman, pro se
Karen Testerman, pro se
Counsel of Record
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