COUNTY OF RICHLAND
ROBERT DURDEN INGLIS;
FRANK HEINDEL,
Plaintiffs,
v.
THE SOUTH CAROLINA
REPUBLICAN PARTY & DREW
MCKISSICK, State Chairman of
the South Carolina Republican
Party, in his official capacity.
Defendants.

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IN THE COURT OF COMMON PLEAS
Civil Action No. 2019-CP-4005486

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS

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STATE OF SOUTH CAROLINA

 INTRODUCTION ........................................................................................................... 1
BACKGROUND .............................................................................................................. 2
STANDARD OF REVIEW .............................................................................................. 4
ARGUMENT ................................................................................................................... 5
I.

Plaintiffs have standing ....................................................................................... 5
A. Plaintiffs have constitutional standing ........................................................... 5
B. Plaintiffs have public interest standing .......................................................... 9

II. This case is justiciable and does not present a political question ................... 11
III. Plaintiffs are entitled to sue under the Declaratory Judgments Act .............. 14
IV. Defendants violated sections 7–11–10, 7–11–20, and 7–11–30 of the Election
Law...................................................................................................................... 17
A. Sections 7–11–10 and 7–11–30 apply to presidential preference primaries
19
B. Defendants’ conduct violates either 7–11–20(B)(2) or 7–11–20(A). ............. 23
V. Defendants violated the Due Process Clause of the South Carolina
Constitution. ....................................................................................................... 27
VI. Neither the statutes at issue nor the relief requested violate the First
Amendment ........................................................................................................ 30
VII. The remaining equitable factors support granting a preliminary injunction 35
A. Plaintiffs have established irreparable harm ............................................... 36
B. No bond should be required ........................................................................... 37
CONCLUSION .............................................................................................................. 39

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TABLE OF CONTENTS

 Plaintiffs here are South Carolina Republican voters who intended to vote in
the 2020 Republican primary and still wish to do so. This case is about the
unlawful decision of the State Executive Committee of the South Carolina
Republican Party to cancel its “First in the South” presidential primary.
South Carolina’s election laws create democratic safeguards to ensure that
elections—including primaries—are fair. The law requires that a political party
select its preferred candidate through either a primary election or a state party
convention. S.C. Code Ann. § 7–11–10. A party cannot choose a lawless third
option of simply allowing a small cabal of party bosses to select their preferred
candidate, without any input from the party’s voters. See id. To further guarantee
that voters, and not party bosses, have a say, the law also requires a supermajority
of party voters to twice approve any switch from using a primary to using a state
convention to select candidates. Id. § 7–11–30. Moreover, the law requires a party
to follow its own internal rules. Id. § 7–11–20. And the South Carolina Republican
Party’s rules, in turn, require the party to hold a presidential primary unless the
voters at a state convention decide otherwise.
Defendants have violated all of these requirements. Instead, the State
Executive Committee has chosen which candidate to support by fiat, and in doing
so, excluded Republican voters from the process entirely—in violation of the law
and its own rules.

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INTRODUCTION

 have standing because they have plead a concrete injury-in-fact that is traceable to
defendants’ conduct and can be redressed by a remedy from this Court. And despite
defendants’ protestations, plaintiffs have not raised a political question. Quite to
the contrary, plaintiffs have raised a simple question of statutory interpretation of
South Carolina’s Election Laws, the likes of which South Carolina courts routinely
address. This Court should deny defendants’ motion to dismiss.
BACKGROUND
On September 7, 2019, the Executive Committee of the South Carolina
Republican Party (“S.C. GOP”) voted to cancel the S.C. GOP’s 2020 presidential
primary. Compl. ¶ 47. Rob Godfrey, who served as a top advisor to former South
Carolina Governor Nikki Haley, called the cancellation “a shady backroom deal
where a small group of party insiders made a big decision that stops hundreds of
thousands of voters from participating in the process.” Id. ¶ 49.
Plaintiffs filed this lawsuit to enforce the democratic safeguards guaranteed
by party rules, state law, and the South Carolina Constitution. Plaintiffs intended
to vote in the 2020 Republican primary and still wish to do so.
Bob Inglis is a registered voter in Greenville County, South Carolina. Pls.’
Mot. for Preliminary Injunction, Ex. 1, Aff. of Robert Durden Inglis (“Aff. of Mr.
Inglis”) ¶ 1; Compl. ¶ 12. He previously represented South Carolina as a
Republican in the United States Congress from 1993-–1999 and from 2005–2011.
Aff. of Mr. Inglis ¶ 2; Compl. ¶ 13. Mr. Inglis has voted regularly in South Carolina,

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All of defendants’ arguments in its motion to dismiss are incorrect. Plaintiffs

 Inglis ¶ 3; Compl. ¶ 14. He views primary elections as the place where he, as a
member of the Republican Party, can shape how the party looks and feels; and he
intended to vote in the 2020 South Carolina Republican presidential preference
primary—a vote that he recognizes is “particularly influential” due to South
Carolina’s “First in the South” status. Aff. of Mr. Inglis ¶ 5; Compl. ¶ 15. As a
result, the decision to cancel the primary harmed Mr. Inglis because it denied him
his right to vote in the primary and his best chance to have a voice in his party’s
selection of a presidential candidate. Aff. of Mr. Inglis ¶ 6; Compl. ¶ 16.
Plaintiff Frank Heindel is a registered voter in Charleston County, South
Carolina. Pls.’ Mot for Preliminary Injunction, Ex. 2, Aff. of Frank Heindel (“Aff. of
Mr. Heindel”) ¶ 1; Compl. ¶ 17. Mr. Heindel regularly votes, including in the South
Carolina Republican primaries in 2000, 2002, 2004, 2008, and 2012, and he has
donated to the South Carolina Republican Party. Aff. of Mr. Heindel ¶¶ 2–3;
Compl. ¶¶ 18–19. Mr. Heindel intended to vote in the 2020 Republican presidential
primary, and he still desires to do so because he believes that voting in a primary is
part of having a healthy debate, a healthy party, and a healthy democracy. Aff. of
Mr. Heindel ¶¶ 4–5; Compl. ¶¶ 20–21. Cancelling the primary harms Mr. Heindel
because it denies him the right to vote and deprives him of the opportunity to
express his political views and to participate in the democratic process. Aff. of Mr.
Heindel ¶¶ 6–7; Compl. ¶¶ 20–21.

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including in numerous Republican primaries, for over three decades. Aff. of Mr.

 Rules 12(b)(1) and 12(b)(6) of the South Carolina Rules of Civil Procedure do
not have identical standards of review. In particular, the rules differ as to whether
this Court needs to accept the well-pleaded allegations of the complaint as true.
Under Rule 12(b)(1), this Court “examines whether the complaint fails to
state facts upon which jurisdiction can be founded.” Rega v. Rega, No. 19-259, 2019
WL 4466977, at *3 (D.S.C. Sept. 17, 2019) (interpreting Federal Rule 12(b)(1)).
When resolving a Rule 12(b)(1) motion, the Court “may consider undisputed facts
and any jurisdictional facts that it determines.” Id. (same). As a result, the Court
may review “affidavits and other evidence outside the pleadings . . . in support of a
motion to dismiss based on lack of jurisdiction.” Baird v. Charleston Cty., 333 S.C.
519, 529, 511 S.E.2d 69, 74 (1999).
Under Rule 12(b)(6), by contrast, the complaint should be “construed liberally
and the Court must presume all well plead facts to be true.” Charleston Cty. School
Dist. v. Harrell, 393 S.C. 552, 557, 713 S.E.2d 604, 607 (2011). So a Rule 12(b)(6)
dismissal is improper “[i]f the facts alleged and inferences reasonably deductible
from the allegations set forth in the complaint, viewed in the light most favorable to
the plaintiff on any theory.” Doe v. Bishop of Charleston, 407 S.C. 128, 134, 754
S.E.2d 494, 497 (2014). “The complaint should not be dismissed merely because the
court doubts the plaintiff will prevail in the action.” Id.

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STANDARD OF REVIEW

 I.

Plaintiffs have standing.
A. Plaintiffs have constitutional standing
The right to vote is “the most basic of political rights,” and interference with

that right satisfies the injury-in-fact requirement of constitutional standing. FEC v.
Akins, 524 U.S. 11, 25 (1998).1 The U.S. Supreme Court has “long recognized that a
person’s right to vote is individual and personal in nature” and that “voters who
allege facts showing disadvantage to themselves as individuals have standing to sue
to remedy that disadvantage.” Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018). Thus,
“any person whose right to vote is impaired . . . has standing to sue.” Gray v.
Sanders, 372 U.S. 368, 375 (1963) (citing Baker v. Carr, 369 U.S. 186, 204–08
(1962); Smith v. Allwright, 321 U.S. 649 (1944)).
Plaintiff Inglis has established the concrete and particularized harm of being
denied the opportunity to vote in the South Carolina primary for his presidential
candidate of choice and to participate in shaping the Republican party, as he has
done for the past three decades and still wishes to do. Compl. ¶¶ 14–16; Aff. of Mr.
Inglis ¶ 6. Plaintiff Heindel has established the concrete and particularized harm of

The South Carolina Supreme Court has adopted the U.S. Supreme Court’s
articulation of the “irreducible constitutional minimum of standing,” which consists
of three elements: (1) the plaintiff must have suffered an “injury in fact;” (2) there
must be a causal connection between the injury and the conduct complained of; and
(3) it must be likely, as opposed to merely speculative, that the injury will be
“redressed by a favorable decision.” Sea Pines Ass’n for Prot. of Wildlife, Inc., 345
S.C. 594, 601, 550 S.E.2d 287, 291 (2001) (internal citations omitted) (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 559–61 (1992)).
1

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ARGUMENT

 he has done since at least 2000, and to express his political views as a participant in
the democratic process. Compl. ¶¶ 20–21; Aff. of Mr. Heindel ¶ 7.
That plaintiffs were deprived of the right to vote in a primary, rather than in
a general election, changes nothing. The Supreme Court recognized decades ago
that primary voters have standing to challenge unconstitutional incursions upon
their voting rights. Gray, 372 U.S. at 374–75 (holding that voter had standing to
challenge unequal primary vote-counting method). And “where the primary is by
law made an integral part of the election machinery,” a voter’s right to participate
in the primary is constitutionally protected “just as is the right to vote at the
election.” United States v. Classic, 313 U.S. 299, 318 (1941); see also Gray, 372 U.S.
at 374–75. That’s the case here: South Carolina law makes “the primary an
integral part of the procedure of choice,” and “the primary effectively controls the
choice” of the party delegates. Classic, 313 U.S. at 318; see Pls.’ Mem. of Law in
Supp. of Pls.’ Mot. for Preliminary Injunction (“Pls.’ Mem.”), Part I, pp. 6–20; see
also Part IV, infra; Defs.’ Mem. in Supp. of Mot. to Dismiss & Opp. to Pls.’ Mot. for
Prelim. Injunction (“Defs.’ Mem.”) at 5 (acknowledging that when a primary is held,
“the state’s delegates are officially bound to vote for the winner of the South
Carolina presidential preference primary on the first ballot of nominations at the
convention”). Defendants’ assertion that “the plaintiffs have no legally protected

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being deprived of the ability to vote in the South Carolina Republican primary, as

 wrong. Defs.’ Mem. at 10.2
Defendants are also wrong that “the plaintiffs’ alleged interest is no different
than that of the general public.” Defs.’ Mem. at 12. That other South Carolina
voters who intended to cast a primary vote share plaintiffs’ harm makes it no less
an injury-in-fact. Although “the fact that an interest is abstract and the fact that it
is widely shared go [often] hand in hand,” “their association is not invariable.”
Akins, 524 U.S. at 24. “[W]here a harm is concrete, though widely shared, the [U.S.
Supreme] Court has found ‘injury in fact.’” Id. And being deprived of the right to
vote is the quintessential concrete harm that is widely shared. Id. at 25 (impairing
voting rights is “sufficiently concrete and specific such that the fact that it is widely
shared does not deprive . . . [it of] its vindication in the federal courts”); Schlesinger
v. Reservists Comm. to Stop the War, 418 U.S. 208, 223 n.13 (1974).
Nonetheless, defendants claim that plaintiffs’ injury is not cognizable because
they still have the ability to lobby party delegates to support plaintiffs’ favored
candidate. Defs.’ Mem. at 20. But the Constitution tolerates no such cheapening of
the right to vote, which is one of the fundamental personal rights included within
the concept of liberty protected by the Due Process Clause. See United States v.
Texas, 252 F. Supp. 234, 250 (W.D. Tex. 1966), summarily aff’d, 384 U.S. 155

To the extent defendants are attempting to shoehorn their merits arguments here,
those arguments have no bearing on plaintiffs’ standing. See Bell v. Hood, 327 U.S.
678, 682 (1946) (“Jurisdiction . . . is not defeated as respondents seem to contend, by
the possibility that the averments might fail to state a cause of action[.]”).
2

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interest in voting in a political party’s presidential preference primary” is just

 illegally deprive plaintiffs of this fundamental right, replace it with a futile exercise,
and then cry “no harm, no foul.” If “lobbying” party officials were viewed as an
adequate substitute for primaries and conventions, it’s hard to see why the
Legislature and the GOP itself would have bothered to institute laws and rules to
protect those more formalized forms of political participation from arbitrary
elimination.
Defendants appear to concede the causal connection between their actions
and plaintiffs’ injury. Defs.’ Mem. at 13. Indeed, it cannot be disputed that up until
September 7, 2019, plaintiffs had the right and intention to participate in the South
Carolina Republican primary. On that day, however, the Executive Committee of
the S.C. GOP unlawfully took that right away. Thus, plaintiffs were injured.
Yet defendants argue that plaintiffs’ requested relief cannot redress their
injury because they can’t show that their preferred candidate would win the
primary, and President Trump “would still win South Carolina in a landslide
anyway.” Defs.’ Mem. at 13. Regardless of whom plaintiffs intend to vote for, that
argument misses the point. Plaintiffs ask for nothing more than their right to vote
back, not for a guarantee of any particular outcome. That is enough to establish
standing, even if casting a primary vote “invariably, sometimes or never determines
the ultimate choice” of the candidate. Classic, 313 U.S. at 318.

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(1966); Anderson v. Celebrezze, 460 U.S. 780, 787 (1983). Defendants cannot

 Even if the Court finds that plaintiffs lack constitutional standing, it should
confer standing under the public-importance exception. Under that doctrine, “a
court may confer standing upon a party when an issue is of such public importance
as to require its resolution for future guidance.” Baird, 333 S.C. at 531, 511 S.E.2d
at 75. In that circumstance, a plaintiff need not prove a concrete or particularized
injury, S.C. Pub. Interest Found. v. S.C. Dep’t of Transp., 421 S.C. 110, 118, 804
S.E.2d 854, 858–59 (2017), nor show that he has “an interest greater than other
potential plaintiffs.” Davis v. Richland Cty. Council, 372 S.C. 497, 500, 642 S.E.2d
740, 742 (2007). A court determining whether to confer public importance standing
should strike an appropriate balance between affording “access to the judicial
process to address alleged injustices” and avoiding “numerous lawsuits at the
expense of both judicial economy and the freedom from frivolous lawsuits.” S.C.
Pub. Interest Found., 421 S.C. at 118, 804 S.E.2d at 859 (internal quotation marks
omitted). But the key consideration is whether resolution is needed for future
guidance, as that is what makes an issue transcend a purely private matter and rise
to the level of public importance. Id.
Few public functions are as likely to recur as the presidential primary. And
given defendants’ extreme position that the decision to hold or cancel the primary
“rests solely with the Party,” Defs.’ Mem. at 23, this likely won’t be the last time the
Party exceeds the scope of its power or attempts to exclude Republican voters from
the candidate-selection process. Moreover, since September 7, Republican voters

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B. Plaintiffs have public interest standing

 the next Republican candidate for President is a matter of monumental public
importance.3 So has the state Republican Party itself in the recent past. See Pls.’
Mem. at 1 & n.1. This Court should grant public-importance standing to ensure
that all South Carolina parties have future guidance as to when and how a primary
may be canceled. South Carolina courts have granted public-importance standing
in far less compelling circumstances than these—in cases asserting, for example,
that a preservation society exceeded its authority by conveying property,4 that a
county exceeded its authority by issuing hospital bonds,5 that a school district
violated its procurement regulations by entering into construction contracts without
following the prescribed competitive sealed-bidding procedure,6 and that the state
Department of Transportation’s expenditure of public funds to inspect private

Richard Eckstrom, A Dumb Thing to Do, Moultrie News (Sept. 19, 2019); Rouzy
Vafaie, S.C. Republicans Step Away from Democracy by Canceling 2020 Primary,
Charleston City Paper (Sept. 18, 2019); Arthur Ravenel Jr., Letters to the Editor:
GOP Decision to Not Hold Primary Was Wrong, The Post & Courier (Oct. 3, 2019);
Barbara E. Boylston, Letters to the Editor: Lawsuit Over GOP President Primary
Right Call, The Post & Courier (Oct. 10, 2019); John Webster, Ed Dutton & Greg
Sisk, Opinion: Why Readers Are Angry That SC GOP is Canceling 2020 Presidential
Primary, Greenville News (Sept. 11, 2019); CBS News, Iowa and New Hampshire
Won’t Cancel 2020 GOP Primaries (Sept. 11, 2019) (quoting criticism of the S.C.
GOP by Rob Godfrey and Chip Felkel, two veteran South Carolina Republican
operatives); Brian Hicks, If the South Carolina GOP Really Wants Polls to Decide
Elections …, The Post & Courier (Sept. 11, 2019) (reporting that “polls show nearly
two-thirds of South Carolina Republicans want their primary, no matter what”).
4 Evins v. Richland Cty. Historic Pres. Comm’n, 341 S.C. 15, 21, 532 S.E.2d 876, 879
(2000).
5 Baird, 333 S.C. at 531, 511 S.E.2d at 75.
6 Sloan v. Sch. Dist. of Greenville Cty., 342 S.C. 515, 523, 537 S.E.2d 299, 303 (Ct.
App. 2000).
3

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across the state have made it abundantly clear that participating in the selection of

 public import of this one, where a statewide election was summarily canceled in
violation of constitutional, legislative, and state-party directives to the contrary.
II.

This case is justiciable and does not present a political question.
Although the subject matter of this case may be politics, that does not mean

it’s a non-justiciable political question. “The nonjusticiability of a political question
is primarily a function of the separation of powers.” Segars-Andrews v. Judicial
Merit Selection Comm’n, 387 S.C. 109, 121, 691 S.E.2d 453, 460 (2010) (internal
quotation marks omitted). Thus, “[t]he fundamental characteristic of a
nonjusticiable ‘political question’ is that its adjudication would place a court in
conflict with a coequal branch of government.” Id. at 121–22 (internal quotation
marks omitted).
Here, defendants never specify what coequal branch of government they
believe this question is properly committed to. On the contrary, they argue
strenuously that the S.C. GOP is not acting as a government entity when it oversees
the primary process. See Defs.’ Mem. at 14, 18. But defendants can’t have it both
ways: if, in their view, the conduct of primaries is properly left to the S.C. GOP as “a
private entity,” then it can’t also present a nonjusticiable political question.
In fact, the conduct of primaries is not unreviewably entrusted to any of the
political branches. Rather, the South Carolina constitution vests the “legislative
power” in the General Assembly. S.C. Const., art. III, § 1. The General Assembly,

7

S.C. Pub. Interest Found., 421 S.C. at 119, 804 S.E.2d at 859.
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bridges violated the state Constitution.7 None of those cases even approached the

 a whole, and the primary process, specifically. See generally S.C. Code Ann. tit. 7
(“Elections”); id., tit. 7, ch. 9 (“Party Organization”); id., tit. 7, ch. 11 (“Designation
and Nomination of Candidates”). Plaintiffs are asking the Court to interpret the
language of three provisions of the South Carolina Election Law—sections 7–11–10,
7–11–20, and 7–11–30—as well as the Due Process Clause of the South Carolina
Constitution, article I, section 3. That is “emphatically the province and duty of the
Judicial Department.” Marbury v. Madison, 5 U.S. 137, 177 (1803). Indeed, “[i]t is
the duty of this Court to interpret and declare the meaning of the constitution” and
laws. See Segars-Andrews, 387 S.C. at 123, 691 S.E.2d at 461 (citing Abbeville Cty.
Sch. Dist. v. State, 335 S.C. 58, 515 S.E.2d 535 (1999)).
Defendants seem to flip the political question doctrine on its head, and
instead argue that this issue is non-justiciable unless the S.C. GOP is a state actor.
See Defs.’ Mem. at 17–18. That’s wrong. See Segars-Andrews, 387 S.C. at 121–23,
691 S.E.2d at 460–61. The case that defendants cite for that proposition, Wymbs v.
Republican State Executive Committee of Florida, addresses a different issue: when
a federal court will hesitate to intervene in certain issues, given that a federal court
“is one of limited jurisdiction.” 719 F.2d 1072, 1076 (11th Cir. 1983). This Court is a
court of general jurisdiction, and the South Carolina Supreme Court’s decisions—
not an inapposite decisions of the Eleventh Circuit—are controlling.
Defendants also urge that this case is nonjusticiable because they raise a
First Amendment defense to the merits of plaintiffs’ claims. Defs.’ Mem. at 15–16.

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in turn, has passed a series of laws to govern political parties generally, elections as

 their First Amendment arguments, are precisely the type of issue that this Court
must adjudicate. As the South Carolina Supreme Court has explained, the courts
cannot reject as “no law suit” a bona fide controversy as to whether some action
denominated “political” exceeds constitutional authority.’” Segars-Andrews, 387
S.C. at 123, 691 S.E.2d at 460 (quoting Baker, 369 U.S. at 210–11). That is why
South Carolina courts routinely adjudicate the meaning of the Election Laws
contained in Title 7. See, e.g., Gantt v. Selph, 423 S.C. 333, 814 S.E.2d 523 (2018),
reh’g denied, (June 27, 2018) (determining that a particular election-related issue
was not a political question, and analyzing § 7–5–230); Tempel v. S.C. State Election
Comm’n, 400 S.C. 374, 381–82, 735 S.E.2d 453, 456–57 (2012) (analyzing § 7–11–
55); Willis v. Wukela, 379 S.C. 126, 128, 665 S.E.2d 171, 172 (2008) (analyzing § 7–
13–350); see also Jones v. S.C. Republican Party, 425 S.C. 339, 343–45, 822 S.E.2d
333, 335–36 (2018) (analyzing whether a candidate for sheriff was qualified under §
23–11–110). And that is why courts—both federal and state—routinely consider
First Amendment challenges to election laws. See, e.g., N.Y. State Bd. of Elections v.
Lopez Torres, 552 U.S. 196, 203 (2008); Greenville Cty. Republican Party Exec.
Comm. v. South Carolina, 824 F. Supp. 2d 655, 668 (D.S.C. 2011); see also infra p.
30.
This case raises routine questions of statutory interpretation, and despite
defendants’ arguments, is plainly within the power of this Court to decide. See
Marbury, 5 U.S. at 177; Segars-Andrews, 387 S.C. at 123, 691 S.E.2d at 461.

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But that argument is nonsensical. Defendants’ arguments on the merits, including

 Plaintiffs are entitled to sue under the Declaratory Judgments Act.
Defendants’ assertion that sections 7–11–10, –20, and –30 of the South

Carolina Code “do not confer a right to sue” upon plaintiffs, Defs.’ Mem. at 9–10,
adds no strength to their attempt to close the courthouse doors on this lawsuit.
Although the statutes do not explicitly confer a right to sue, the South Carolina
Supreme Court has entered declaratory and injunctive relief in election cases as a
matter of course. For example, in Beaufort County v. South Carolina State Election
Commission, the Court entered a declaratory judgment (and accompanying
injunction) clarifying that section 7–11–20(B)(2) required the state and county
election commissions to conduct the S.C. GOP’s 2012 primary election. 395 S.C. 366,
377–78, 718 S.E.2d 432, 438–39 (2011). In Tempel v. South Carolina State Election
Commission, the Court ordered the State Election Commission to hold a special
primary under section 7–11–55 after determining that the nominee from the initial
Republican Party primary election was disqualified. 400 S.C. at 382, 735 S.E.2d at
457. And in South Carolina Libertarian Party v. South Carolina State Election
Commission, the Court ruled on the Libertarian Party’s petition for declaratory and
injunctive relief concerning whether section 7–11–30(A) applied to the party. 407
S.C. 612, 614, 757 S.E.2d 707, 707 (2014); see also Jones, 425 S.C. at 344–45, 822
S.E.2d at 335–36 (denying declaratory and injunctive relief on the merits of a
challenge under § 23–11–110 to successful sheriff candidate’s qualifications). The
controversy here calls even more urgently for judicial review.

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III.

 request for declaratory judgment, as plaintiffs have requested here. See Sunset Cay,
LLC v. City of Folly Beach, 357 S.C. 414, 423, 593 S.E.2d 462, 466 (2004) (referring
to the Declaratory Judgments Act, § 15–53–20, which specifically provides that
“[c]ourts of record within their respective jurisdictions shall have power to declare
rights, status and other legal relations whether or not further relief is or could be
claimed”). Where a “complaint seeking a Declaratory Judgment sets forth a
justiciable controversy it is not subject to demurrer on the ground that it fails to
state a cause of action.” Hardwick v. Liberty Mut. Ins. Co., 243 S.C. 162, 167, 133
S.E.2d 71, 72 (1963) (internal quotation marks omitted). The “justiciable
controversy” standard is met “[w]here a concrete issue is present, and there is a
definite assertion of legal rights and a positive legal duty with respect thereto,
which are denied by the adverse party.” Dantzler v. Callison, 227 S.C. 317, 321, 88
S.E.2d 64, 66 (1955) (citing S.C. Elec. & Gas Co. v. S.C. Pub. Serv. Auth, 215 S.C.
193, 216, 54 S.E.2d 777, 787 (1949)). In determining whether a complaint meets
this standard, the court is not concerned with whether the plaintiff is right on the
merits, but only with whether he is entitled to a declaration of rights. Id.
Whether to grant declaratory judgment rests in the trial court’s sound
discretion. Ott v. Tindal, 297 S.C. 395, 398, 377 S.E.2d 303, 305 (1989). In
exercising its discretion, a court should liberally construe the Declaratory
Judgments Act to accomplish its “purpose of affording a speedy and inexpensive
method of deciding legal disputes and of settling legal rights and relationships,

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A “proper vehicle” for bringing such a controversy before the Court is a

 Sunset Cay, LLC, 357 S.C. at 423–24, 593 S.E.2d at 466. While “the existence of
another remedy and the presence of complicated issues of fact” may be considered,
neither is grounds for dismissal. Guimarin & Doan, Inc. v. Georgetown Textile &
Mfg. Co., 249 S.C. 561, 567, 155 S.E.2d 618, 621 (1967). Adjudicating declaratory
judgment actions is “especially appropriate” where “the meaning of a statute is in
question” and “where enabling legislation contains no special review provisions.”
Ott, 297 S.C. at 398, 377 S.E.2d at 305.
These factors favor the Court’s exercise of discretion to grant declaratory
judgment here. A speedy resolution of this matter is necessary to avoid the
irreversible extinguishment of plaintiffs’ right to vote in a South Carolina primary
at all, let alone in a “First in the South” primary. Defendants’ actions have put the
meaning of 7–11–10, –20, –30 in question. But the statute contains no special
provisions for either a court or a state agency to review the legality of defendants’
actions. And the key facts are not in dispute. Declaratory judgment is appropriate.
The Court may also issue preliminary and permanent injunctive relief to
enforce a declaratory judgment. The South Carolina Supreme Court has routinely
upheld, and occasionally even directed, the issuance of preliminary and permanent
injunctive relief in declaratory judgment actions. See, e.g., Richland Cty. v. S.C.
Dep’t of Revenue, 422 S.C. 292, 312, 811 S.E.2d 758, 768–69 (2018); Compton v. S.C.
Dep’t of Corr., 392 S.C. 361, 365, 709 S.E.2d 639, 641 (2011); City of Myrtle Beach v.

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without awaiting a violation of the rights or a disturbance of the relationship.”

 v. Baker, 269 S.C. 528, 530–31, 238 S.E.2d 214, 214–15 (1977).8, 9
IV.

Defendants violated sections 7–11–10, 7–11–20, and 7–11–30 of the
Election Law.
Defendants have violated sections 7–11–10, 7–11–20, and 7–11–30 of the

South Carolina Election Law. The Election Law imposes certain democratic
safeguards on political parties to ensure that they use a fair and inclusive process to
determine who they support in the general election.
The first of these safeguards, section 7–11–10 of the South Carolina Election
Law, specifies that a party must choose its preferred candidates for the general
election through either a primary or a party convention. S.C. Code Ann. § 7–11–10;
see also Tempel, 400 S.C. at 379, 735 S.E.2d at 455 (explaining that even a
candidate who was certified as the nominee after being unopposed in the primary
was still “selected” through a primary, because all candidates must be selected by
either a primary or a convention). Here, however, the Executive Committee—using

Where the South Carolina Supreme Court has overturned the issuance of
injunctive relief in declaratory judgment actions, it’s done so on the merits, not on
the grounds that a lower court lacked power to issue injunctive relief. See, e.g.,
Foothills Brewing Concern, Inc. v. City of Greenville, 377 S.C. 355, 360, 660 S.E.2d
264, 267 (2008); Doe v. S.C. Med. Malpractice Liab. Joint Underwriting Ass’n, 347
S.C. 642, 648–49, 557 S.E.2d 670, 673–74 (2001); accord. Cullen v. McNeal, 390 S.C.
470, 481, 702 S.E.2d 378, 384 (Ct. App. 2010).
9 South Carolina courts’ issuance of preliminary and permanent injunctive relief in
declaratory judgment actions also comports with federal practice. See, e.g., Powell
v. McCormack, 395 U.S. 486, 499 (1969) (“A declaratory judgment can . . . be used as
a predicate to further relief, including an injunction.”); Horn & Hardart Co. v. Nat’l
Rail Passenger Corp., 843 F.2d 546, 548 (D.C. Cir. 1988).
8

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Richardson, 280 S.C. 167, 173–74, 311 S.E.2d 922, 926 (1984); Redwood Food Corp.

 Republican Party will support President Donald Trump to be the Republican
candidate for the office of President of the United States. See Aff. of Katon E.
Dawson ¶¶ 6–7 (noting that the Executive Committee has “decided” to “throw the
South Carolina Republican Party’s support behind the sitting President . . . for the
Republican nomination.”).
The second of these safeguards, section 7–11–30, requires that if a party
wishes to change from using a primary to using a convention to select whom it will
support in the general election, it must observe certain procedures to ensure that
the party’s members—and not just a politburo of party bosses—support canceling
the primary. Specifically, section 7–11–30 requires a party’s voters to ratify any
switch from a primary to a convention by both “a three-fourths vote of the total
membership of the convention” and a vote by “a majority of voters in that party’s
next primary election [to] approve the use of the convention nomination process.”
S.C. Code Ann. § 7–11–30(A)(1), (A)(2).
Here, by the plain terms of section 7–11–30, the S.C. GOP already has chosen
not to switch from its usual practice—holding a presidential primary—to holding a
convention, because a majority of members in its last convention did not “approve
the use of the convention nomination process,” nor did “three-fourths” of voters at
its last primary. Thus, because a party must select the candidate it supports for the
general election through either a primary or a state convention, and the S.C. GOP

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neither a primary nor a convention—unilaterally decided that the South Carolina

 to hold a presidential primary.
The third safeguard, contained in section 7–11–20, requires that a political
party follow its own rules, to the extent that those rules don’t conflict with the law.
S.C. Code Ann. § 7–11–20. Section 7–11–20(B) further explains that there is no
exception to that rule for presidential preference primaries; rather, “the State
Election Commission must conduct the presidential preference primary in
accordance with the provisions of this title and party rules.” Id. § 7–11–20(B)(2)
(emphasis added). Here, the S.C. GOP’s rules are crystal clear: “Unless decided
otherwise by the state party convention within two (2) years prior to each
presidential election year, the South Carolina Republican Party shall conduct a
statewide presidential preference primary on a date selected by the chairman of the
party.” S.C. GOP Rule 11(b)(1). The South Carolina Republican Party has not
properly “decided otherwise,” that is, against holding a primary—because to do so,
it would have had to follow the procedure in section 7–11–30, which it failed to do.
Thus, the S.C. GOP is obligated by its own rules, in addition to the law, to hold a
presidential preference primary.
A. Sections 7–11–10 and 7–11–30 apply to presidential preference
primaries.
Defendants argue that they are not constrained by sections 7–11–10 and 7–
11–30 because those provisions do not apply to presidential preference primaries.
See Defs.’ Mem. at 20–24. They are wrong.

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forewent its chance to switch to a state convention during this cycle, it is obligated

 meaning without resort to subtle or forced construction to limit or expand the
statute’s operation.’” State v. Sweat, 386 S.C. 339, 350, 688 S.E.2d 569, 575 (2010)
(quoting Sloan v. Bd. of Physical Therapy Exam’rs, 370 S.C. 452, 469, 636 S.E.2d
598, 607 (2006)). Here, the plain meaning of the text is unambiguous: “A party may
choose to change from nomination of candidates by primary to a method to
nominate candidates by convention for all offices including, but not limited to,
Governor, United States Senator, United States House of Representatives, Circuit
Solicitor, State Senator, and members of the State House of Representatives . . . .”
S.C. Code Ann. § 7–11–30 (emphases added). “All” has a plain and unambiguous
meaning: all. Moreover, the phrase “including, but not limited to,” likewise has a
straightforward meaning: that the list provided is a set of examples, not an
exhaustive list. See Antonin Scalia & Bryan J. Garner, Reading Law: The
Interpretation of Legal Texts 132–33 (2012) (explaining that “include does not
ordinarily introduce an exhaustive list,” and the phrase “including but not limited
to” is intended to “defeat the negative-implication canon”).
This textual analysis of section 7–11–30 alone is enough. But when read in
context with the rest of the Election Law, it becomes clear that defendants’ theory is
not supported by the structure and context of the Election Law as a whole. See
Defs.’ Mem. at 23. The Election Law as a whole (Title 7 of the South Carolina Code)
provides a comprehensive scheme to govern the many aspects of elections, including
political parties, qualifications of candidates, elections themselves, and primaries.

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First and foremost, a “[c]ourt should give words ‘their plain and ordinary

 the relatively rare occasions when it needs to carve out presidential preference
primaries and treat them differently, it does so quite explicitly. See, e.g., S.C. Code
§ 7–11–20(A), (B)(2) (distinguishing presidential preference primaries from other
primaries, in both the text, and title of the section). Thus, when Title 7 does not
draw that distinction, the Court should not read it in. See Hodges v. Rainey, 341
S.C. 79, 87, 533 S.E.2d 578, 582 (2000) (“When the language of a statute is clear and
explicit, a court cannot rewrite the statute[.]”); Whitfield v. United States, 543 U.S.
209, 216–17 (2005) (“Congress has included an express overt-act requirement in at
least 22 other current conspiracy statutes, clearly demonstrating that it knows how
to impose such a requirement when it wishes to do so. Where Congress has chosen
not to do so, we will not override that choice[.]” (citation omitted)). In other words,
the fact that the General Assembly knows how to separate out presidential
preference primaries when it needs to supports plaintiffs’ interpretation of the
statutory scheme, not defendants’.
Specific sections of the statute reinforce this interpretation. For example,
section 7–13–15 requires most primaries, but not presidential ones, to be conducted
on the second Tuesday in June. It states:
(B) Except as provided in subsection (A) or unless otherwise specifically
provided for by statute or ordinance, the following primaries must be
conducted by the State Election Commission and the county boards of voter
registration and elections on the second Tuesday in June of each general
election year:

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Quite reasonably, Title 7 treats primaries as a whole in a consistent manner; and on

 (2) primaries for [several specified state offices].
S.C. Code Ann. § 7–13–15(B) (emphasis added).
The same section defines “federal offices” to include the office of President—
which is why the statute needs to explicitly exclude the presidential primary when it
comes to scheduling primaries for the second Tuesday in June. (The reason, of
course, for exempting presidential primaries from the second Tuesday in June
requirement is to maintain South Carolina’s status as the “First in the South” to
allow its voters to weigh in on the presidential contest—a status that the S.C.
GOP’s unlawful actions threaten to destroy for Republican voters such as plaintiffs.)
In short, it is clear that the Election Law’s reference to “offices” includes the office of
the President, unless otherwise specified because the word offices—like any other
word in a statute—should be “presumed to bear the same meaning throughout a
text.” Scalia & Garner, supra, at 170. Thus, the procedural requirements in section
7–11–30, which govern how a “party may choose to change from nomination of
candidates by primary to a method to nominate candidates by convention for all
offices,” speaks to contests for the office of the President no less than to any other
office.
Further, all of the interpretive tools discussed in plaintiffs’ memorandum in
support of its motion for injunctive relief lend further support to the conclusion that

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(1) primaries for federal offices, excluding a presidential preference
primary for the Office of President of the United States as provided
pursuant to Section 7-11-20(B); and

 Mem. at 16–20.
B. Defendants’ conduct violates either 7–11–20(B)(2) or 7–11–20(A).
Defendants argue that because 7–11–20(B)(2) allows parties to “decide”
whether to have a presidential preference primary, they can simply opt out of using
a primary or a state convention to select who they support for president—and
instead, not follow party rules and use neither. Defs.’ Mem. at 22–23.
Not so. The purported basis for this argument is found in § 7–11–20(B)(2),
which states, in relevant part: “If the state committee of a certified political
party . . . decides to hold a presidential preference primary election, the State
Election Commission must conduct the presidential preference primary in
accordance with the provisions of this title and party rules.” (Emphasis added).
Defendants ask this Court to wrench this provision out of the context of the rest of
the Election Law, as if the single word “decides” gave a party’s state committee free
rein to opt out of the entire legal framework laid out by the General Assembly. But
the South Carolina Supreme Court has made clear that courts must read statutory
terms in context, interpreting the statute “as a whole.” Browning v. Hartvigsen,
307 S.C. 122, 125, 414 S.E.2d 115, 117 (1992); Hill v. York Cty. Natural Gas Auth.,
384 S.C. 483, 682 S.E.2d 809, 811–12 (2009) (“[W]ords in a statute must be
construed in context.” (quoting S. Mut. Church Ins. Co. v. S.C. Windstorm and Hail
Underwriting Ass’n, 306 S.C. 339, 342, 412 S.E.2d 377, 379 (1991)); see also Scalia &
Garner, supra, at 167 (“Context is the primary determinant of meaning.”).

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section 7–11–30 refers to all primaries, including presidential primaries. See Pls.’

 two options—a primary or a convention—and lets the party decide which to follow.
Crucially, however, the party must make that decision in accordance with the law.
Section 7–11–30 lays out the procedural steps that a party must follow if it decides
to switch from the primary option to the convention option. And here, because
defendants have not followed those steps—that is, because a majority of Republican
voters in the last primary and a supermajority of party members at the state
convention did not choose to use a state convention to select their candidate—
defendants have already “decide[d]” to hold a presidential preference primary under
7–11–20(B)(2). What has locked defendants into their choice to use a primary is
their own decision to refrain from obtaining Republican party voters’ support for
opting out of a primary and into using a state convention to select their preferred
candidate. If defendants wanted to opt out of holding a presidential preference
primary, they had the opportunity to do so—provided it was a choice by the party
voters, in accordance with section 7–11–30.
The General Assembly’s preference for primaries is no accident. As the
Chairman of the State Election Commission explained in a 2014 court filing
discussing the 2013 amendments—amendments that were passed after the last
time a major political party canceled a presidential primary10—to section 7–11–30:

10The

General Assembly amended section 7–11–30 in 2013 to strengthen a party’s
obligation to obtain the approval of the voters—and not just party leaders—before
switching from a primary to a convention. See Equal Access To The Ballot Act, Act.
No. 61 (2013). Previously, a party was required to obtain the approval of threefourths of the convention membership. See S.C. Code Ann. § 7–11–30 (2012). After
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Reading this text in context, the meaning is clear. Section 7–11–10 lays out

 Resp. Br. of Appellees at 40–41, Greenville Cty. Republican Party Exec. Comm. v.
Way, No. 13-2170 (4th Cir. Mar. 31, 2014), ECF No. 30-1. Thus, far from
undermining plaintiffs’ argument, the General Assembly’s use of the word “decides”
in section 7–11–20(B) strengthens it. The party’s obligation to “decide” whether to
use a primary or a state convention to select its preferred candidate is an important
one that must be undertaken in accordance with the law—and the law establishes a
preference for a primary. Defendants already have decided to use a presidential
preference primary—by failing to follow section 7–11–30’s procedures for opting out
of having one.
In the alternative, even if this Court determines that defendants’ actions are
not governed by 7–11–20(B)(2), that doesn’t mean that defendants are free of any
legal requirements when picking which presidential candidate to support. Section
7–11–20(B)(2) is, by its very terms, an exception to subsection 7–11–20(A) that
requires the State Election Commission to pay for a presidential preference primary
by a major political party. So if subsection 7–11–20(B)(2) doesn’t apply, the right
2013, the party is required to obtain approval of both three-fourths of the
convention membership and a majority of primary voters. Defendants argue that
because the South Carolina Republican Party has canceled primaries in the past (in
2004 and 1984), it can cancel this primary. Defs.’ Mem. at 26. But even if past
practice were determinative of current law (which it isn’t), their argument isn’t
applicable—the law changed in a relevant way in 2013, and canceled primaries
before that are inapposite.
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South Carolina, through its General Assembly, has historically recognized,
and does today, a preference for the party primary. The State’s decision to
impose a three-fourths vote requirement to use a convention to nominate in
lieu of a primary simply demonstrates the State’s desire to be assured that
such decision is done with serious reflection and with a consensus of party
members attending the convention.

 subsection 7–11–20(A) (“Except as provided in subsection (B) . . . “)). And
subsection 7–11–20(A) requires the defendants to conduct conventions for “any . . .
office”—which, as explained above, includes the office of President of the United
States—“in accordance with the provisions of this title and with party rules.” As a
result, if subsection 7–11–20(B)(2) does not govern, then subsection 7–11–20(A) does
apply—and thus the ultimate conclusion that defendants are legally bound by
section 7–11–20 to follow their own rules remains correct. As explained above,
defendants have undoubtedly violated their own rules by canceling the primary.11
*

*

*

Defendants have violated sections 7–11–10, 7–11–20, and 7–11–30 of the
South Carolina Election Law. The law requires the S.C. GOP to use either a
primary or a state convention to determine who it supports as for President. See
S.C. Code Ann. §§ 7–11–10, 7–11–30. Instead, the party has chosen to use neither.
Moreover, the South Carolina Election Law requires the S.C. GOP to follow its own
rules. Id. § 7–11–20. Those rules require the party to “conduct a statewide
presidential preference primary” unless “decided otherwise by the state party
convention within two (2) years prior to each presidential election year.” S.C. GOP
Rule 11(b)(1). The party never placed this choice before a state convention. The
Defendants suggest that Rule 2(a), which provides that “[t]he spirit and not the
letter of each Rule shall be controlling,” and that “[s]ubstantial compliance with a
Rule shall be sufficient,” permits them to cancel the primary. Defs.' Mem. at 26.
But contravening the letter and intent of Rule 11(b)(1) neither vindicates its spirit
nor constitutes “substantial compliance.”
11

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conclusion isn’t anything goes: it’s that defendants’ activities are governed by

 Republican voters of their voice in the primary process.
V.

Defendants violated the Due Process Clause of the South Carolina
Constitution.
Although the Court need not reach the issue, given that section 7–11–20

alone compels the S.C. GOP to follow its rules, the party’s failure to follow its rules
also violates South Carolina’s Due Process Clause.
The Due Process Clause provides that no person “shall . . . be deprived of life,
liberty, or property without due process of law.” S.C. Const. art. I, § 3. It prohibits
state action that “arbitrarily and capriciously” deprives individuals of protected
liberty interests, e.g., Dunes W. Golf Club, LLC v. Town of Mount Pleasant, 401 S.C.
280, 300, 737 S.E.2d 601, 611 (2013); see also Worsley Cos., Inc. v. Town of Mount
Pleasant, 339 S.C. 51, 56, 528 S.E.2d 657, 660 (2000); and a government body’s
failure to “follow its own regulations” is a quintessential type of arbitrary and
capricious conduct prohibited by the Due Process Clause, see Triska v. Dep’t of
Health & Envtl. Control, 292 S.C. 190, 194, 355 S.E.2d 531, 533 (1987); Wilkinson v.
Legal Servs. Corp., 27 F. Supp. 2d 32, 48 (D.D.C. 1998) (“The requirement that
agencies are bound by their own rules reflects the broader principle, found in the
Due Process Clause, that government officials are bound by the rule of law.”).12

South Carolina follows federal precedent in determining the scope of the
protections afforded by the South Carolina Constitution’s Due Process Clause. See,
e.g., Rivers v. State, 327 S.C. 271, 276–79, 490 S.E.2d 261, 263–65 (1997); S.C. Nat’l
Bank v. Cent. Carolina Livestock Mkt., Inc., 289 S.C. 309, 313, 345 S.E.2d 485, 488
(1986); see also S.C. Ambulatory Surgery Ctr. Ass’n v. S.C. Workers’ Comp. Comm’n,
12

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S.C. GOP has therefore broken its own rules, as well as the law, and has deprived

 only that the S.C. GOP is not bound by those tenets because the right to vote in a
primary is not a protected liberty interest and because their decision did not
constitute state action. Defs.’ Mem. at 24–25. They’re wrong on both counts.
The Supreme Court has long held that the right to vote is a liberty interest
protected by the Due Process Clause. See United States v. Texas, 252 F. Supp. at
250; Anderson, 460 U.S. at 787. And it is beyond debate that the right to vote
includes the right to vote in primary elections. See supra at p. 6.
The S.C. GOP’s decision to cancel its primary also constitutes state action.
In Gray v. Sanders, the Supreme Court held that a party’s actions become state
action where a state “puts its power behind the rules of the party.” 372 U.S. at 374.
More recently, in New York State Board of Elections v. Lopez Torres, the Supreme
Court explained that where a state gives certain parties the right to have their
candidates appear with party endorsement on the general-election ballot, the
actions of the party become state action. 552 U.S. at 203. Here, South Carolina has
both put its power behind the S.C. GOP Rules and given the party the right to have
its candidates appear on the ballot beside the party’s name, regardless of how it
chooses those candidates. S.C. Code Ann. §§ 7–11–20; 7–13–320(C).13 Its
nomination of candidates is therefore state action.

389 S.C. 380, 391, 699 S.E.2d 146, 152 (2010) (holding that Due Process clauses of
the state and federal constitution are equivalent to each other, as well as to Article
I, § 22 of the state constitution).
13 The involvement does not end there. Section 7–11–10 of South Carolina’s
Election Law limits the candidates for a general election to those nominated “by
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Defendants don’t dispute these tenets of Due Process doctrine. They argue

 state actor subject to constitutional limitations. Defs.’ Mem. at 11 n.1., 24–25. But
they’re wrong to suggest that the decision to hold a primary is what converts the a
party’s actions into state action. Id. at 24–25. Instead, it is a state’s decision to give
a party a “special role” in the election process that converts the party’s action to
state action. See Lopez Torres, 552 U.S. at 203. So where, as here, a state “giv[es]
certain parties the right to have their candidates appear with party endorsement on
the general-election ballot,” those parties’ nominating processes are state action.
Id.; see also Cal. Democratic Party v. Jones, 530 U.S. 567, 573 (2000); Rice v.
Elmore, 165 F.2d 387, 391 (4th Cir. 1947).
Nor do Defendants cite any case holding that political parties must only abide
by constitutional restraints on racial discrimination when they nominate
candidates. Cf. Defs.’ Mem. at 6, 18 & n.3.14 “When [party] officials participate in

political party primary, by political party convention, or by petition.” Section 7–11–
20, in turn, provides that only “certified political part[ies]” may nominate
candidates by primary or convention.
The one case defendants point to–a 1983 decision from the Eleventh Circuit–for
the proposition that Courts have “hesitated to find state action when . . . racial
discrimination is not involved” simply mischaracterizes decisions in which courts
found it unnecessary to reach the issue. Compare Wymbs, 719 F.2d at 1077; with
Cousins v. Wigoda, 419 U.S. 477, 483 n.4 (1975) (explicitly “intimat[ing] no views
upon the merits” of the state action question); O’Brien v. Brown, 409 U.S. 1, 2, 5
(1972) (entertaining “grave doubts”, not about party action constituting state action
in general, but about the D.C. Circuit’s decision to weigh in on the Democratic Party
Credential Committee’s “recommendation” to unseat delegates); and Ripon Soc’y,
Inc. v. Nat’l Republican Party, 525 F.2d 567, 576 (D.C. Cir. 1975) (declining to reach
the issue). Indeed, the Eleventh Circuit itself declined to reach the question.
Wymbs, 719 F.2d at 1086.
14

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Defendants concede that when the S.C. GOP holds a primary election, it is a

 de facto if not de jure, and as such must observe the limitations of the Constitution.”
Rice, 165 F.2d at 391. Parties don’t get to pick and choose which provisions of the
constitution to comply with when they nominate candidates for a general election.15
VI.

Neither the statutes at issue nor the relief requested violate the First
Amendment.
Defendants suggest that it is unconstitutional to require a party to observe

basic democratic safeguards before switching from a primary to a convention to
select its preferred candidate for the general election. That claim gets First
Amendment law precisely backwards.

The State Executive Committee’s decision to cancel the S.C. GOP’s primary was
also ultra vires and void under principles of South Carolina corporate law. In
general, corporations may exercise only those powers granted to them by law, their
charters, and any bylaws made pursuant thereto. Fisher v. Shipyard Vill. Council
of Co-Owners, Inc., 415 S.C. 256, 271, 781 S.E.2d 903, 911 (2016). Any action a
corporation takes outside the scope of those powers is ultra vires and void. See, e.g.,
id. at 271, 781 S.E.2d at 911; Trost v. Sea Mark Tower Prop. Owners Ass’n, Inc., No.
2004–UP–284, 2004 WL 6310042, at *1, 3–4 (S.C. Ct. App. Apr. 29, 2004).
15

The S.C. GOP and its State Executive Committee are akin to corporations. Like
corporations, the certified party and its State Executive Committee are creatures of
state law. See S.C. Code Ann. § 7–9–10 (establishing certified parties); id. § 7–9–90
(establishing state executive committees). Just as a corporation’s Board is bound by
the corporations’ bylaws, the State Executive Committee is bound by the S.C. GOP
Rules. No rule allows the Committee to violate the Rules—instead, Rule 2(h)
specifically prohibits the Committee from altering the Rules itself. When the State
Executive Committee violated those rules, it therefore acted ultra vires and, just
with the ultra vires act of a Board of Directors for a corporation, the Committee’s
ultra vires act should be voided.

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what is a part of the state’s election machinery, they are election officers of the state

 too plain for argument . . . that a State may require parties to use the primary
format for selecting their nominees, in order to assure that intraparty competition is
resolved in a democratic fashion.” Cal. Democratic Party, 530 U.S. at 572 (Scalia, J.)
(internal quotation marks omitted) (emphasis added); see also Lopez Torres, 552
U.S. at 205 (Scalia, J.) (“[W]e have . . . permitted States to set their faces against
‘party bosses’ by requiring party-candidate selection through processes more
favorable to insurgents, such as primaries”).16 That interpretation of the First
Amendment binds this Court. See James v. City of Boise, Idaho, 136 S. Ct. 685, 686
(2016) (“[A]ny . . . state . . . court . . . is bound by this Court’s interpretation of
federal law.”).
Defendants’ First Amendment–based defense therefore fails at the outset.
Given that South Carolina could have constitutionally mandated that the S.C. GOP
hold a primary, a fortiori it may impose the lesser requirement that the party follow
its own rules and get the support of primary voters before switching from a primary
to a convention. See Greenville Cty. Republican Party Exec. Comm., 824 F. Supp. 2d

See also Tashjian v. Republican Party of Conn., 479 U.S. 208, 237 (1986) (Scalia,
J., dissenting) (“[T]here is no reason why the State is bound to honor . . . a party’s
democratically expressed desire that its candidates henceforth be selected by
convention rather than by primary, or by the party’s executive committee in a
smoke-filled room.”); Lightfoot v. Eu, 964 F.2d 865, 872–73 (9th Cir. 1992) (noting
“no government interest” was “more compelling” than ensuring that party system
did not interfere with “cleaner, more efficient government,” and that therefore “the
State’s interest in enhancing the democratic character of the election process
overrides whatever interest the Party has in designing its own rules for nominating
candidates.”).
16

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As the United States Supreme Court has explained, “We have considered it

 political parties’ internal processes. It only indirectly impacts parties by placing
requirements on the parties’ efforts to utilize the convention method as an
alternative to an open primary.”).17
Defendants cite Tashjian v. Republican Party of Connecticut, 479 U.S. 208
(1986), and Democratic Party of the United States v. Wisconsin ex rel. La Follette,
450 U.S. 107 (1981), apparently for the remarkable proposition that any state
regulation of presidential party primaries is unconstitutional. Defs.’ Mem. at 25.
But neither decision went nearly that far, for obvious reasons. After all, were it
otherwise, a state could not pass a statute prohibiting a segregated presidential
primary or convention—a result that cannot possibly be correct. Cf. Terry v.
Adams, 345 U.S. 461 (1953) (holding that a whites only pre-primary election is
unlawful).
Far from holding that state parties may select their preferred presidential
candidates according to whatever procedures they wish, Tashjian and La Follette
hold that the First Amendment limits the ability of states to override party rules
concerning who may participate in party conventions and primaries. Tashjian
invalidated a Connecticut statute that barred independent voters from participating
in party primaries, notwithstanding party rules welcoming such voters. See 479
U.S. at 210–11. And La Follette held that the First Amendment prevents a state

On appeal, the Fourth Circuit denied a request to vacate this ruling because the
appellant lacked standing to appeal. See Greenville Cty. Republican Party Exec.
Comm. v. Greenville Cty. Election Comm’n, 604 F. App’x 244, 253 (4th Cir. 2015).
17

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at 668 (“The convention nomination statute does not have any direct [e]ffect on

 party’s own rules. See 450 U.S. at 121–22. Those cases are thus doubly
inapplicable here. First, plaintiffs do not seek to compel the S.C. GOP to exclude
any voters, as in Tashjian, or to accept any particular national delegates, as in La
Follette. Second, and crucially, unlike the states in Tashjian and La Follette,
plaintiffs aren’t asking this Court to order the S.C. GOP to break any party rules.
On the contrary, they demand only that the state party follow its own rules—an
obligation backed by state law. The freedom of expressive association can’t be
twisted into a right of an organization to flout its own binding rules.18
That is particularly true in a case like this one, where the state law at issue
establishes neutral procedural requirements to ensure that the electoral process is
fair, transparent, and not controlled by the whims of party bosses. The U.S.
Supreme Court has repeatedly observed that “government must play an active role
in structuring elections . . . if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic processes.” Burdick v.
Takushi, 504 U.S. 428, 433 (1992) (internal quotation mark omitted). For that
reason, the Court has held that First Amendment claims in the electoral context are
governed by a balancing test, under which courts weigh “the character and
magnitude of the asserted injury to the rights . . . that the plaintiff seeks to

Defendants also cite Ripon Soc’y, Inc., 525 F.2d 567, see Defs.’ Mem. at 25, in
which the D.C. Circuit rejected an attempt to apply the “one-person, one-vote”
principle to a national party convention, see id. at 587–88. But that case is totally
inapposite here, where plaintiffs merely seek to enforce the S.C. GOP’s obligation to
follow state law and its own rules.
18

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from compelling a national party convention to seat a delegation in violation of the

 the burden imposed by its rule, taking into consideration the extent to which those
interests make it necessary to burden the plaintiff’s rights.” Id. at 434 (quoting
Anderson, 460 U.S. at 789 (internal quotation marks omitted)). It is that balancing
test that governs the First Amendment issues here, not an annotation last updated
in 1947, see Defs.’ Mem. at 26 (quoting Determination of Controversies Within
Political Party, 169 A.L.R. 1281 § III (1947)).
As explained above, South Carolina’s “compelling” interest in ensuring that
intraparty competition is resolved in a fair manner “overrides whatever interest the
Party has in designing its own rules for nominating candidates.” Lightfoot, 964
F.2d at 873; see also, e.g., Alaskan Indep. Party v. Alaska, 545 F.3d 1173, 1180 (9th
Cir. 2008) (holding that a “state’s interest in eliminating the fraud and corruption
that frequently accompanied party-run nominating conventions is compelling, and
that a democratic primary is narrowly tailored to advance these state interests.”).
Thus, we end up back where we started: the provisions of the Election Law that
prevent primaries from being unilaterally cancelled by party bosses are
constitutional because the state’s compelling goals of fairness and transparency
outweigh any supposed First Amendment interests the S.C. GOP may have in
violating its own rules. See Cal. Democratic Party, 530 U.S. at 572; Lopez Torres,
552 U.S. at 205; Greenville Cty. Republican Party Exec. Comm., 824 F. Supp. 2d at
668.

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vindicate against the precise interests put forward by the State as justifications for

 The remaining equitable factors support granting a preliminary
injunction.
In addition to demonstrating a likelihood of success on the merits, plaintiffs

have satisfied the remaining factors supporting a preliminary injunction.
Defendants concede that plaintiffs have no adequate remedy at law. Defs.’ Mem. at
28–29. All that remains is whether plaintiffs will be irreparably harmed, Poynter
Invs., Inc. v. Century Builders of Piedmont, Inc., 387 S.C. 583, 586–87, 694 S.E.2d
15, 17 (2010), and whether a bond is necessary to secure defendants’ interests
during the pendency of a preliminary injunction, S.C. R. Civ. P. 65(c).
But first, a point of clarification: plaintiffs do not seek a “mandatory”
preliminary injunction, requiring heightened scrutiny. Cf. Defs.’ Mem. at 18–20.
Instead, plaintiffs seek a prohibitory injunction aimed at “maintain[ing] the status
quo and prevent[ing] irreparable harm while a lawsuit remains pending.” Pashby v.
Delia, 709 F.3d 307, 319 (4th Cir. 2013) (quoting Sun Microsystems, Inc. v. Microsoft
Corp., 333 F.3d 517, 524 (4th Cir. 2003)). The “last uncontested status between the
parties which preceded the controversy,” id. (quoting Aggarao v. MOL Ship Mgmt.
Co., 675 F.3d 355, 378 (4th Cir. 2012)), was not that the S.C. GOP retained
“discretion on whether to decide to hold a presidential preference primary,” Defs.’
Mem. at 19. The last uncontested status was that the S.C. GOP would conduct its
“First in the South” presidential primary election in accordance with S.C. GOP Rule

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VII.

 the status quo by unlawfully cancelling the primary.19
A. Plaintiffs have established irreparable harm.
Plaintiffs will undoubtedly suffer irreparable harm absent an injunction from
this Court. The denial of the opportunity to vote constitutes the archetype of an
irreparable injury that cannot be repaired with a later award of monetary damages.
See, e.g., League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 247 (4th
Cir. 2014) (“Courts routinely deem restrictions on fundamental voting rights
irreparable injury.”); Am. Civil Liberties Union of Ky. v. McCreary Cty., Ky., 354
F.3d 438, 445 (6th Cir. 2003) (“[I]f it is found that a constitutional right is being
threatened or impaired, a finding of irreparable injury is mandated.”), aff’d sub
nom. McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844 (2005).
Unlike challenges concerning the way in which an election will be conducted, there
will be no opportunity for plaintiffs to raise their challenge after they are
disenfranchised. Cf. Denman v. City of Columbia, 387 S.C. 131, 141, 691 S.E.2d
465, 470 (2010) (finding that plaintiff would not suffer irreparable harm because,
among many other reasons, he could contest the election afterward).

Defendants’ reliance on De La Fuente v. S.C. Democratic Party, 164 F. Supp. 3d
794 (D.S.C. 2016), is misplaced. There, a candidate sought a preliminary injunction
requiring the Democratic Party to place him on a ballot he was never on to begin
with. Id. at 796–97. The Court characterized the requested relief as a “mandatory”
preliminary injunction because the candidate sought “to alter the status quo.” Id. at
798. Here, in contrast, plaintiffs seek only to return to the state of things prior to
the S.C. GOP State Executive Committee’s decision to cancel its primary.
19

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11(b)(1) and state law. This contest precipitated from defendants’ decision to alter

 Plaintiffs do not contend that they have some absolute right to vote in an early
primary; all plaintiffs claim is a right to vote in the S.C. GOP’s “First in the South”
primary, unless and until it is canceled in compliance with party rules and the law.
See supra at pp. 22–26. Unless defendants lawfully cancel the primary, plaintiffs
will be irreparably harmed by being prevented from exercising their right to vote in
that election.
B. No bond should be required.
This Court should deny defendants’ request for a bond for three reasons.
First, defendants have not identified, let alone established, any “costs and
damages” they might incur during the course of an injunction for which a bond
would be necessary. As plaintiffs’ brief in support of their motion for a preliminary
injunction explained, the only potential expense that an injunction would create is
the cost of holding an election, and that cost would be borne by the State Election
Commission, not defendants. See Pls.’ Mem. at 24–25. Defendants do not contest
this point. Nor do they identify any other cost or damage that they would incur as a
result of an injunction.
While defendants quibble with the notion of a “nominal bond,” the case they
cite holds only that a bond that would not provide the enjoined party with sufficient
security is inadequate. See Defs.’ Mem. at 29–30; Atwood Agency v. Black, 374 S.C.
68, 73, 646 S.E.2d 882, 884 (2007). Where, as here, defendants identify no costs
they will incur, a nominal bond would more than suffice. As the Fourth Circuit has

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Defendants simply mischaracterize plaintiffs’ claims in arguing otherwise.

 that the circumstances otherwise warrant it, the court may fix the amount of the
bond accordingly. In some circumstances, a nominal bond may suffice.” Hoechst
Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 421 n.3 (4th Cir. 1999).20
Indeed, the court there cited approvingly a Second Circuit decision explaining that
“the district court may dispense with security where there has been no proof of
likelihood of harm to the party enjoined.” Int’l Controls Corp. v. Vesco, 490 F.2d
1334, 1356 (2d Cir. 1974).
Second, defendants cannot rebut plaintiffs’ explanation, in their opening
brief, that this Court maintains discretion as to whether to require a bond at all.
The two cases defendants cite do not construe Rule 65(c), but instead construe much
older and distinct statutes. See Headdon v. State Hwy. Dep’t, 14 S.E.2d 586, 588
(S.C. 1941); Hunt v. Smith, 18 S.C. Eq. 277, 280 (1 Rich. Eq.) (1845). Those cases
can hardly be said to supersede the extensive and persuasive federal precedent
plaintiffs have cited demonstrating that courts exercise discretion in cases
vindicating important constitutional rights.
Third, defendants are wrong to suggest that an injunction bond should or
could cover their attorneys’ fees. South Carolina follows the “American Rule,”
under which “attorneys’ fees and costs are not recoverable unless authorized by
contract or statute.” Maybank v. BB&T Corp., 416 S.C. 541, 580, 787 S.E.2d 498,

The Note to South Carolina Rule of Civil Procedure 65(c) specifies that it is
“substantially” the Federal Rule of Civil Procedure 65(c).
20

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explained: “Where the district court determines that the risk of harm is remote, or

 (“Under the ‘American Rule,’ the parties to a lawsuit generally bear the
responsibility of paying their own attorneys’ fees.”). “Consistent with this general
rule against fee-shifting, it has long been established that a prevailing party may
not generally collect as damages against an injunction bond attorneys’ fees
expended in litigating the injunction.” Nokia Corp. v. InterDigital, Inc., 645 F.3d
553, 560 (2d Cir. 2011); see Tullock v. Mulvane, 184 U.S. 497, 509–14 (1902);
Fireman’s Fund Ins. Co. v. S.E.K. Constr. Co., 436 F.2d 1345, 1352 (10th Cir.1971)
(“Under [Rule 65(c)] attorneys’ fees . . . are not recoverable.”).
Finally, defendants are wrong to suggest that plaintiffs’ counsel should pay
the bond. The vindication of South Carolinians’ voting rights should not be
predicated on a $100,000 ransom. Such a bond would chill any future attempts of
South Carolina citizens to challenge violations of the election law.
CONCLUSION
For the reasons stated above, the Court should deny the motion to dismiss
and grant a preliminary injunction ordering the Executive Committee of the South
Carolina Republican Party to: (1) inform the State Election Commission that it will
hold a presidential preference primary election in February 2020; and (2) withdraw
its delegate allocation plan submitted to the Republican National Convention on
October 1, 2019, and to resubmit a delegate allocation plan following the final
resolution of this action that is consistent with the orders of this Court.

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518 (2016); S.C. Dep’t of Transp. v. Revels, 411 S.C. 1, 9, 766 S.E.2d 700, 704 (2014)

 Respectfully submitted,
By: /s/ Bess DuRant
Thornwell F. Sowell III, SC Bar No. 5197
Bess DuRant, SC Bar No. 77920
SOWELL & DuRANT LLC
1325 Park St., Suite 100
Columbia, SC 29201
Telephone: (803) 722-1100
Facsimile: (803) 281-8890
bsowell@sowelldurant.com
bdurant@sowelldurant.com
Cameron Kistler (pro hac vice)21
Rachel F. Homer (pro hac vice)
UNITED TO PROTECT DEMOCRACY, INC.
2020 Pennsylvania Avenue, NW, #163
Washington, D.C. 20006
Telephone: (202) 579-4582
Facsimile: (929) 777-8428
cameron.kistler@protectdemocracy.org
rachel.homer@protectdemocracy.org
John Langford (pro hac vice)
UNITED TO PROTECT DEMOCRACY, INC.
555 W. 5th St.
Los Angeles, CA 90013
Telephone: (202) 579-4582
Facsimile: (929) 777-8428
Email: john.langford@protectdemocracy.org
Deana K. El-Mallawany (pro hac vice)
UNITED TO PROTECT DEMOCRACY, INC.
15 Main Street, Suite 312
Watertown, MA 02472
Telephone: (202) 579-4582
Facsimile: (929) 777-8428
Plaintiffs’ initial complaint contained a clerical error in its signature block. In
subsequent filings, the signature block has been corrected from “The Protect
Democracy Project, Inc.” to “United to Protect Democracy, Inc.”
21

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Dated: October 18, 2019

 Counsel for plaintiffs

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deana.elmallawany@protectdemocracy.org