Case 3:16-cv-06287-WHA Document 1 Filed 10/31/16 Page 1 of 7 1 2 3 4 5 Michael T. Risher (SB# 191627) mrisher@aclunc.org Julia Harumi Mass (SB# 189649) jmass@aclunc.org American Civil Liberties Union Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Telephone: (415) 621-2493 Facsimile: (415) 255-8437 6 7 8 9 10 11 12 13 14 Lori L. Shellenberger (SB#154696) lshellenberger@acluca.org American Civil Liberties Union of San Diego and Imperial Counties P.O. Box 87131 55 San Diego, CA 92138 Telephone: (619) 398-4494 Facsimile: (619) 232-0036 Brendan Hamme (SB# 285293) bhamme@aclusocal.org ACLU of Southern California 1851 East 1st Street, Suite 450 Santa Ana, CA 92705 Telephone: (714) 450-3963 17 Peter Eliasberg (SB# 189110) peliasberg@aclusocal.org ACLU of Southern California 1313 West 8th Street Los Angeles, CA 90017 Telephone: (213) 977-5228 18 Attorneys for Plaintiffs 15 16 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 19 20 21 22 23 American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, and American Civil Liberties Union of San Diego and Imperial Counties 24 25 26 27 28 Civil Case No. ______________ Complaint for declaratory and injunctive relief Plaintiffs, v. Alex Padilla, California Secretary of State Defendant. Complaint for declaratory and injunctive relief Case 3:16-cv-06287-WHA Document 1 Filed 10/31/16 Page 2 of 7 INTRODUCTION 1 1. This is a facial and as-applied challenge to a pair of California statutes that 2 3 prohibit voters from taking photographs of their marked ballots to show their support for 4 particular candidates or issues – so-called “ballot selfies.” The laws in question prohibit voters 5 from showing their marked ballots “to any person in such a way as to reveal its contents.” Cal. 6 Elec. Code §§ 14276, 14291. 2. Nearly every court that has examined similar laws, including the United States Court 7 8 of Appeals – has held that they violate the First Amendment. See Rideout v. Gardner, No. – F.3d., 9 2016 WL 5403593 (1st Cir. Sept. 28, 2016); Rideout v. Gardner, 123 F. Supp. 3.d 218 (D.N.H. 10 2015); Crookston v. Johnson, No. 1:16-cv-1109 (W.D. Mich. Oct. 20, 2016), order stayed 2016 11 WL 6311623 (6th Cir. Oct. 28, 2016); Indiana Civil Liberties Union Found. v. Indiana Sec'y of 12 State, No. 115-cv-01356, 2015 WL 12030168 (S.D. Ind. Oct. 19, 2015). 3. Moreover, the California legislature has already repealed the laws that Plaintiffs 13 14 challenge, illustrating the lack of government interest in their enforcement. But because of the 15 timing of this repeal, the laws continue in effect until January 1, 2017. 4. Despite the unconstitutionality and abandonment by the legislature of these particular 16 17 laws, California law requires state and local officials to enforce all statutes, even if they believe 18 those statutes are unconstitutional, until and unless a court orders them not to. See Lockyer v. City 19 & Cty. of San Francisco, 33 Cal. 4th 1055, 1087-1112 (2004). Consistent with this principle, the 20 California Secretary of State issued a memorandum to local elections officials in October, 21 indicating that that they should continue to enforce the prohibition on ballot selfies during this 22 November’s election, even though the Legislature has voted to repeal the law, effective January 1, 23 2017. 24 5. Plaintiffs therefore request a temporary restraining order and a preliminary injunction 25 to allow their tens of thousands of California members to exercise their First Amendment rights 26 this November. 27 28 -1Complaint for declaratory and injunctive relief Case 3:16-cv-06287-WHA Document 1 Filed 10/31/16 Page 3 of 7 1 2 3 4 5 6 JURISDICTION AND VENUE 6. This action arises under 42 U.S.C. § 1983 and the United States Constitution. This Court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. 7. This Court has personal jurisdiction over Defendant because he is a public official of the State of California who performs official duties within the State. 8. Venue properly lies within this District under 28 U.S.C. § 1391(b). The Defendants 7 performs official duties in this District, and a substantial part of the events or omissions giving rise 8 to Plaintiffs’ claims have occurred or will occur in this District. 9 10 INTRADISTRICT ASSIGNMENT 9. This action may properly be assigned to the San Francisco or Oakland divisions of this 11 Court because a substantial part of the events or omissions which give rise to the claims in this 12 action will occur in Alameda and San Francisco Counties. Plaintiff ACLU-NC resides in San 13 Francisco County and has thousands of members in San Francisco and Alameda Counties, 14 including Jacquelyn Kennedy, who resides in Alameda County and has submitted a declaration in 15 this matter describing the effects of the challenged laws on her. See Local Rule 3-2. 16 THE PARTIES 17 Plaintiffs 18 10. The American Civil Liberties Union is a nationwide nonprofit, nonpartisan 19 organization with over 500,000 members, dedicated to the defense and promotion of the 20 guarantees of individual rights and liberties embodied in the state and federal constitutions. 21 11. Plaintiff American Civil Liberties Union of Northern California (ACLU-NC), founded 22 in 1934 and based in San Francisco, is one of the largest ACLU affiliates, with some 40,000 23 members in the state, thousands of whom live in this District. 24 25 26 27 12. Plaintiff American Civil Liberties Union of Southern California (ACLU-SC), founded in 1923 and based in Los Angeles, has more than 25,000 members in the state. 13. Plaintiff American Civil Liberties Union of San Diego & Imperial Counties, founded in 1933, has thousands of members living in those two counties. 28 -2Complaint for declaratory and injunctive relief Case 3:16-cv-06287-WHA Document 1 Filed 10/31/16 Page 4 of 7 14. The ACLU and its California affiliates have long worked to protect free-speech and 1 2 voting rights. They have expended resources in recent days responding to questions about whether 3 California voters can take ballot selfies. 4 15. Members of each California affiliate vote and wish to post photographs of their 5 marked ballots on their social media accounts to make a statement about the candidates and 6 initiatives they are supporting in the November 2016 general election. But Elections Code 7 §§ 14276 and 14291 are preventing them from doing this. They do not want to violate the law and 8 do not want to cause disruption at the polls, which would occur if they tried to take photographs at 9 the polls but were instructed not to do so by poll workers. 16. For example, Allen Asch is a member of the ACLU of Northern California and the 10 11 chair of its Sacramento Area chapter. Asch is a registered California voter who regularly uses 12 Instagram, Facebook, and Twitter to post information and his opinions about political issues, 13 including ballot initiatives. He has over 120,000 subscribers to his YouTube account, over 10,000 14 followers on Facebook, and over 2,700 followers on Twitter. 15 17. Asch has been covering the 2016 presidential election weekly for the last 183 weeks 16 by compiling and commenting on the week’s media clips. He has also posted the ACLU’s ballot 17 initiative guide to his personal Facebook page and will be making a Halloween display to urge 18 voters to pass Prop 62 and defeat Proposition 66 that he plans to record on video and post on social 19 media. 20 18. Asch, who is a lawyer and a member of the California Bar, understands that the 21 California Elections Code bars voters from showing their marked ballots. For past Election Day 22 social media posts, he has avoided including his marked ballot in photos because of this provision. 23 But he would like to share a photo that shows how he voted on state-wide initiatives this year 24 because he believes a photo makes a stronger statement than simply posting his opinions. 25 19. In addition, it would be particularly important for him to present photographic proof 26 of his vote in the presidential election because of the controversy among Bernie Sanders 27 supporters about whether they should vote for Hillary Clinton. He repeatedly encouraged his 28 -3Complaint for declaratory and injunctive relief Case 3:16-cv-06287-WHA Document 1 Filed 10/31/16 Page 5 of 7 1 followers to vote for Hillary Clinton despite the ambivalence of some, and he thinks it is important 2 that he show his followers that he voted for her. 3 20. However, unless a court order allows him to do so, he will again refrain from posting 4 photographs of his marked ballot, so as not to violate the law. See Ca. Business and Professions 5 Code § 6068(a) (“It is the duty of an attorney to … support the Constitution and laws of the United 6 States and this state.”). Defendants 7 8 9 21. Defendant Secretary of State is the state’s “chief elections officer” with the duty to “administer the provisions of the Elections Code” and ensure that “state election laws are 10 enforced.” Gov’t Code § 12172.5. His office provides guidance to local elections officials thought 11 the state. 12 13 14 22. Defendant is sued in his official capacity only. Need for Injunctive and Declaratory Relief 23. This controversy is ripe for judicial decision, and injunctive and declaratory relief are 15 necessary and appropriate pursuant to 28 U.S.C. §§ 2201 and 2202, so that the parties may know 16 the legal obligations that govern their present and future conduct. This is particularly important 17 here, because California law requires the Secretary to enforce the challenged statutes even if he 18 believes them to be unconstitutional, until and unless a court orders him not to. See Lockyer v. City 19 & Cty. of San Francisco, 33 Cal. 4th 1055, 1087-1112 (2004). 20 24. In the absence of court-ordered relief, Plaintiffs will suffer imminent, immediate, and 21 ongoing irreparable harm in the form a chilling of their free speech rights. No future award of 22 damages can remedy the loss of these constitutional rights. Both the public interest and equity 23 favor granting an injunction to allow Plaintiffs to exercise their constitutional free speech and 24 associational rights. Injunctive relief is therefore necessary and appropriate. 25 26 27 28 -4Complaint for declaratory and injunctive relief Case 3:16-cv-06287-WHA Document 1 Filed 10/31/16 Page 6 of 7 COUNT I: VIOLATION OF THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION (42 U.S.C. § 1983) 1 2 3 25. Plaintiffs hereby re-allege and incorporate by reference the allegations contained in the above paragraphs as though fully set forth herein. 4 26. The provisions of California Elections Code sections 14276 and 14291 violate the 5 First Amendment because they prohibit people from displaying or distributing photographs of their 6 marked ballots. 7 27. Defendant and his agents, acting under color of state law, have threatened to and will 8 enforce and implement the challenged laws against the Plaintiffs’ members, in violation of their 9 First Amendment rights. 10 11 28. As a direct and proximate result of Defendants’ unlawful conduct, Plaintiffs have and will suffer irreparable harm, which will continue absent injunctive relief. 12 13 RELIEF SOUGHT 14 15 16 WHEREFORE, Plaintiffs, on behalf of themselves and their members, seek the following relief: 1. A temporary restraining order, preliminary injunction, and permanent injunction 17 enjoining Defendant Padilla, including his officers, agents, servants, employees, and attorneys, and 18 upon those persons in active concert or participation with, from enforcing California Elections 19 Code sections 14276 and 14291 against, or otherwise interfering with, voters’ taking and 20 distributing images of their marked ballots. 21 22 23 24 25 2. A declaration that California Elections Code sections 14276 and 14291 are unconstitutional, facially and as applied. 3. Costs and attorney’s fees incurred in this action under 42 U.S.C. § 1988 and other applicable laws. 4. Such other and further relief as may be just and proper. 26 27 28 -5Complaint for declaratory and injunctive relief Case 3:16-cv-06287-WHA Document 1 Filed 10/31/16 Page 7 of 7 1 2 DATED: October 31, 2016 Respectfully submitted, 3 By: /s/ Michael T. Risher 4 Michael T. Risher Attorney for Plaintiffs 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- Complaint for declaratory and injunctive relief