Emrit v. NH Secretary of State et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Ronald Satish Emrit
v. 	Case No. 17-cv-489-PB
William M. Gardner,
Secretary of State, and
New Hampshire Democratic Party
REPORT AND RECOMMENDATION
Plaintiff Ronald Satish Emrit, proceeding in forma
pauperis, has filed a second amended complaint, doc. No. 5, that
is before this court for preliminary review, pursuant to LR
4.3(d) and 28 U.S.C. § 1915(e)(2). 	Plaintiff’s allegations fail
to state a claim for relief. 	The district judge should
therefore dismiss the complaint.1
1 Although not dispositive, the court notes that other federal
district courts have uniformly rejected nearly identical
complaints plaintiff has filed. 	See Emrit v. Dunlap, No. 1:17-
cv-402-GZS, 2018 WL 1321567 (D. Me. Mar. 14, 2018), appeal
dismissed, No. 18-1221, 2018 WL 4381529 (1st Cir. June 12,
2018); Emrit v. Oliver, No. 17cv1024 JCH/GBW, 2018 WL 626254
(D.N.M. Jan. 30, 2018), aff’d,735 F. App’x 501 (10th Cir. 2018);
Emrit v. Gale, No. 4:17CV3133, 2018 WL 618414 (D. Neb. January
29, 2018); Emrit v. Kobach, No. 17-CV-2593-CM-GLR, 2018 WL
878959 (D. Kan. Jan. 24, 2018) (rep. and rec., aff'd Feb. 13,
2018); Emrit v. Sec'y of State of Haw., No. 17-00504 DKW-RLP,
2018 WL 264851 (D. Haw. Jan. 2, 2018); Emrit v. Simon, No. 17-
CV-4605 (SRN/SER), 2017 U.S. Dist. LEXIS 193755 (D. Minn. Nov.
14, 2017) (rep. and rec., aff'd Dec. 8, 2017); Emrit v. Murray,
No. 2:17-CV-174-SWS, 2017 U.S. Dist. LEXIS 193944 (D. Wyo. Oct.
31, 2017); Emrit v. Lawson, No. 1:17-cv-03624-JMS-TAB, 2017 WL
4699279 (S.D. Ind. Oct. 19, 2017), appeal dismissed, No. 17-
3322, 2018 WL 2144109 (7th Cir. Feb. 6, 2018).
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I. 	Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings filed in forma pauperis. 	See LR 4.3(d). 	The
magistrate judge may 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). 	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. 	Hernandez-Cuevas
v. Taylor, 723 F.3d 91, 102 (1st Cir. 2013) (citing Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted)).
Although a pro se plaintiff's complaint is subject to “less
stringent standards than formal pleadings drafted by lawyers,”
Haines v. Kerner, 404 U.S. 519, 520 (1972), this is “not to say
that pro se plaintiffs are not required to plead basic facts
sufficient to state a claim[,]” Ferranti v. Moran, 618 F.2d 888,
890 (1st Cir. 1980). 	To allege a civil action in federal court,
it is not enough for a plaintiff merely to allege that a
defendant acted unlawfully; a plaintiff must affirmatively
allege facts that identify the manner in which the defendant
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subjected the plaintiff to a harm for which the law affords a
remedy. 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
II. 	Plaintiff’s Allegations
Plaintiff has sued New Hampshire Secretary of State William
M. Gardner and the New Hampshire Democratic Party. 	He asserts
that they violated various constitutional and statutory rights
by refusing to place him on the 2016 presidential primary and
general election ballots. 	He seeks damages for the alleged 2016
violations and an injunction mandating his placement on the
ballot in 2020.
The operative, second amended complaint, consists of 24
pages and 89 paragraphs of often-scattershot digressions. 	Much
of the complaint has no apparent relationship to the defendants
or to the relief plaintiff ultimately seeks, but instead
addresses such diverse matters as plaintiff’s mental illness,
international travel, divorce case in Florida, bankruptcy, law
school curriculum, and contacts with FBI and CIA agents about
his psychic abilities which, he asserts, he can use to help
those agencies. 	As relevant to his suit, Emrit alleges that he:
• 	was a Democratic candidate for President in 2016;
• 	was placed on an official ballot only in Palm Beach County,
Florida;
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• 	was told by several secretaries of state that in order to
get placed on the ballot in the primary or general
election, he would have to get a minimum number of
petitions signed from the constituents of each jurisdiction
in which he wanted to run for president in the general
election.
Plaintiff does not allege that he contacted either of the
defendants or their representatives. 	Although plaintiff alleges
that he filed as a candidate with the Federal Elections
Commission, he does not allege any facts as to other steps he
took, if any, to qualify as a candidate for president in New
Hampshire during 2016. 	Construing his complaint liberally,
however, the court will proceed, for purposes of this review, as
though defendant Gardner was one of the “several secretaries of
state” who informed plaintiff of ballot signature requirements.
III. 	Claims
Plaintiff asserts that New Hampshire’s signature
requirements violated: 1) his right to equal protection under
the Fifth and Fourteenth Amendments; 2) his substantive due
process rights under the Fifth and Fourteenth Amendments; and 3)
Title VII of the Civil Rights Act of 1964, which, he asserts,
protects his right to run for president.
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IV. 	Analysis
A. 	New Hampshire Election Laws
New Hampshire election law provides three methods of
nominating a candidate for placement on a general election
ballot. 	Libertarian Party N.H. v. New Hampshire, 154 N.H. 376,
378 (2006). 	The first is by a party’s primary. 	Id.; N.H. Rev.
Stat. Ann. § 652:11. 	“As an alternative to nomination by party
primary, a candidate may have his or her name placed on the
ballot for the state general election by submitting the
requisite number of nomination papers.” 	N.H. Rev. Stat. Ann.
§ 655:40. 	Presidential candidates using this process must
present the signatures of 3,000 registered voters — 1,500 from
each congressional district in the state. Id. § 655:42(I).
A party's candidate for elective office is chosen in a
primary election conducted according to the same procedures used
for the general election, except as otherwise provided. Id. §
655:35. 	Prospective candidates for party nomination secure a
place on the primary ballot by, inter alia, filing a specified
number of signed primary petitions. Id. § 655:19–c, I, III.
The court addresses each of plaintiff’s claims in turn.
B. 	Validity of Signature Requirements
The court first considers whether ballot signature
requirements may be deemed constitutionally valid. 	Generally
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speaking, “[t]he Elections Clause gives states authority ‘to
enact the numerous requirements as to procedure and safeguards
which experience shows are necessary in order to enforce the
fundamental right involved.’” 	U.S. Term Limits, Inc. v.
Thornton, 514 U.S. 779, 834 (1995) (quoting Smiley v. Holm, 285
U.S. 355, 366 (1932)). 	States are thus entitled to adopt
“generally applicable and evenhanded restrictions that protect
the integrity and reliability of the electoral process itself.”
Anderson v. Celebrezze, 460 U.S. 780, 788 n.9 (1983).
More specifically, the Court has repeatedly observed that
states can require candidates to demonstrate a preliminary
showing of support. 	See, e.g., Munro v. Socialist Workers
Party, 479 U.S. 189, 193 (1986) (“modicum of support among the
potential voters for the office”); Anderson, 460 U.S. at 788–89
n.9 (“preliminary showing of substantial support”); Am. Party of
Texas v. White, 415 U.S. 767, 782 (1974) (“significant,
measurable quantum of community support”); Lubin v. Panish, 415
U.S. 709, 715 (1974) (“serious candidates with some prospects of
public support”); Jenness v. Fortson, 403 U.S. 431, 442 (1971)
(“significant modicum of support”); see also Ill. State Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 183–84
(1979) (“A procedure inviting or permitting every citizen to
present himself to the voters on the ballot without some means
of measuring the seriousness of the candidate's desire and
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motivation would make rational voter choices more difficult
because of the size of the ballot and hence would tend to impede
the electoral process.”) (quoting Lubin, 415 U.S. at 715). 	The
Supreme Court has upheld, for example, challenges to signature
requirements, even those equaling five percent of the eligible
voting base. 	Am. Party of Tex. v. White, 415 U.S. at 789
(“Demanding signatures equal in number of 3% or 5% of the vote
in the last election is not invalid on its face . . . .”);
Jenness, 403 U.S. at 438 (“[W]e cannot say that Georgia’s 5%
petition requirement violates the Constitution.”). 	Nothing
plaintiff pleads here suggests that New Hampshire’s ballot
signature requirements would not similarly pass muster under the
Elections Clause. 	The court next turns to plaintiff’s claimed
constitutional violations.
C. 	Due Process (Count 2)
Emrit asserts that New Hampshire’s signature requirements
violate his substantive and procedural due process rights. 	He
alleges that he was deprived of an opportunity to run for
president in 2016, which he asserts was his right as an American
citizen, and that there is no compelling government objective in
requiring him to obtain a minimum number of petitions/signatures
in order to be placed on the ballot. 	He adds that, “[a]t the
very least, the plaintiff should have been given notice and a
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hearing with regards to his not being placed on the 2016 ballot
. . . and he should be given a notice and a hearing in the
future if he will be excluded from the ballot in 2020.”
The Due Process Clause provides that “no State shall ...
deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, § 1. 	To state a
procedural due process claim, a plaintiff the “plaintiff must
allege facts which, if true, establish that the plaintiff (1)
had a property interest of constitutional magnitude and (2) was
deprived of that property interest without due process of law.
Clukey v. Town of Camden, 717 F.3d 52, 54-55 (1st Cir. 2013).
Emrit has failed to allege a plausible procedural due
process claim. 	He does not have a protected interest in having
unrestricted access to the primary and general election ballots
in New Hampshire. 	See Tiraco v. N.Y State Bd. Of Elections, 963
F. Supp. 2d 184, 194 (E.D.N.Y. 2013) (“An individual has no
property or liberty interest in an elected office. 	Nor does he
have such an interest in being elected, or in appearing on a
ballot.”) (citation and internal quotations marks omitted). 	In
the absence of such a protected interest, plaintiff fails to
state a procedural due process claim.
Plaintiff’s substantive due process claim also fails as
there are no allegations of any conduct by defendants that would
shock the conscience. 	See Cty. of Sacramento v. Lewis, 523 U.S.
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833, 845-46 (1998) (observing that substantive due process
claims involve only the most “egregious official conduct” that
“shocks the conscience.”). 	Compliance with generally
applicable, valid state laws is not such behavior. 	Indeed,
“[e]ven bad faith violations of state law are not necessarily
tantamount to unconstitutional deprivations of due process.”
Farris v. Poore, 841 F. Supp. 2d 436, 441 (D. Me. 2012) (citing
Chongris v. Bd. of Appeals of Town of Andover, 811 F.2d 36, 43
(1st Cir. 1987)). 	Accordingly, Count 2 should be dismissed.
D. 	Equal Protection (Count 1)
While signature requirements are, in and of themselves,
generally deemed to be valid, the right to equal protection may
be threatened if they “fall unequally on similarly situated
candidates.” 	Libertarian Party of Me. v. Diamond, 992 F.2d 365,
370 (1st Cir. 1993). 	A claimed equal protection violation “must
be grounded in a showing of substantial discrimination.” 	Barr
v. Galvin, 626 F.3d 99, 109 (1st Cir. 2010).
The Equal Protection Clause of the Fourteenth Amendment
provides that no state shall “deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. 	The clause essentially directs “that all
persons similarly situated should be treated alike.” 	City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). 	To
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plead a viable equal protection claim, a plaintiff must allege
facts indicating selective treatment “compared with others
similarly situated . . . based on impermissible considerations
such as race, religion, intent to inhibit or punish the exercise
of constitutional rights, or malicious or bad faith intent to
injure a person.” 	Barrington Cove Ltd. P'ship v. R.I. Hous. &
Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001) (emphasis
omitted). 	The operative complaint fails to satisfy this
requirement.
As he did in connection with his due process claims, Emrit,
an African-American, claims that there is no compelling
government objective in requiring him to obtain a minimum number
of petitions/signatures in order to be placed on the ballot. 	He
does not challenge the specific number of petitions or
signatures required. 	Instead, he disagrees with having to
submit any petitions. 	But, as the court has noted, such
measures have repeatedly passed constitutional muster. 	Emrit
fails to allege any facts that show he was, or would be, treated
differently from those who are not African-American by being
required to provide a certain number of petition signatures to
be placed on an election ballot. As he has not grounded his
claim in any showing of race-based discrimination, the district
judge should dismiss plaintiff’s equal protection claim.
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E. 	Title VII (Count 3)
Count Three, asserting violations of Title VII of the Civil
Rights Act of 1964, fails to state a claim against either
defendant because Title VII prohibits unlawful employment
practices. 	See 42 U.S.C. § 2000e-2. 	The plaintiff does not,
allege that either defendant is or was his employer. 	Count 3,
therefore, should be dismissed.
F. 	State Action
Finally, the amended complaint fails to state a claim
against the New Hampshire Democratic Party for violations of
Emrit’s federal constitutional rights for the additional reason
that it alleges no facts from which one reasonably could
conclude that the New Hampshire Democratic Party acted under
color of state law. 	See Missert v. Trs. of Boston Univ., 73 F.
Supp. 2d 68, 70-73 (D. Mass. 1999) (dismissing plaintiff's
claims of due process and equal protection violations against
private institution that was not engaged in state action).
Political parties are private parties, and “[p]rivate
parties are largely unrestrained by the constitution[.]” 	King
v. Friends of Kelly Ayotte, 860 F. Supp. 2d 118, 121, 124-25
(D.N.H. 2012) (holding that, for purposes of plaintiff's claim
of violation of his First Amendment rights, conduct of political
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defendants, including New Hampshire Republican State Committee,
was not state action).
A private party may be considered come a state actor if
that party “assumes a traditional public function when
performing the challenged conduct; or if the challenged conduct
is coerced or significantly encouraged by the state; or if the
state has so far insinuated itself into a position of
interdependence with the private party that it was a joint
participant in the challenged activity.” 	Santiago v. Puerto
Rico, 655 F.3d 61, 68-69 (1st Cir. 2011) (citation and internal
punctuation omitted). 	But Emrit alleges no facts suggesting
that the New Hampshire Democratic Party engaged in any conduct
affecting him, let alone conduct that could be construed as
state action. 	The exceptions to the state action requirement do
not apply here.
IV. 	Conclusion
For the foregoing reasons, the district court should
dismiss this action in its entirety for failure to state a claim
upon which relief can be granted. 	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 objection
period may be extended upon motion. Failure to file objections
within the specified time waives the right to appeal the
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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
November 27, 2018
cc: 	Ronald Satish Emrit, pro se
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