PETERSON v. NORTH CAROLINA STATE BOARD OF ELECTIONS

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

VICTORIA PETERSON )

)

Plaintiff, )

)

v. ) 1:20CV260

)

NORTH CAROLINA STATE BOARD OF )

ELECTIONS; DURHAM COUNTY BOARD )

OF ELECTIONS; ALEJANDRA )

JAVIERA CABALLERO, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

THOMAS D. SCHROEDER, Chief District Judge.

Before the court are three separate motions to dismiss

Plaintiff Victoria Peterson’s amended complaint (Doc. 8) filed by

Defendants Alejandra Javiera Caballero, the Durham County Board of

Elections (“DCBE”), and the North Carolina State Board of Elections

(“NCSBE”) (collectively “Defendants”). (Docs. 15, 19, 27.) For

the reasons set forth below, Defendants’ motions will be granted

and Peterson’s complaint will be dismissed.

I. BACKGROUND

The allegations of the complaint and supporting documents,1

taken in the light most favorable to Peterson, show the following:

1 Because a motion to dismiss “tests the sufficiency of a complaint,”

see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.

1992), the court is “generally limited to a review of the allegations

of the complaint itself,” Goines v. Valley Cmty. Servs. Bd., 822 F.3d

159, 165–66 (4th Cir. 2016). However, a court can also consider

documents explicitly incorporated into the complaint by reference or

attached as exhibits, as well as documents submitted by the party moving

Peterson, proceeding pro se, is a resident of Durham, North

Carolina, and was a candidate for the Durham City Council in the

October 2019 municipal at-large primary election. (Doc. 8 at 1-

2.) Caballero was also a candidate in that same election. (Id.

at 2.) Of the ten candidates in that primary election, six would

proceed to the general election held in November 2019. (Id.)

Ultimately, Peterson finished seventh in the primary election,

while Caballero advanced to the general election and was then

elected to a seat on the Durham City Council. (Doc. 29-2 at 3.)

In general, Peterson questions Caballero’s naturalization

status, specifically alleging that Caballero has “refuse[d] to

show any documentation that she is a naturalized citizen of the

United States” and stating that “one must be a citizen or

naturalized to vote, to run for public office, and to hold public

office in the United States of America and Durham, North

Carolina.”2 (Doc. 8 at 1-2.) Peterson further alleges that “every

citizen, including myself, has the right to petition proof of legal

for dismissal if the document was integral to the complaint and there

is no dispute about its authenticity. See id. at 166. Here, defendant

NCSBE has attached several documents to its motion to dismiss concerning

the state election review procedures Peterson used prior to filing her

complaint in this court. (See Doc. 29.) The court finds that these

documents are authentic and integral to the complaint (see Doc. 8 at 3-

4) and will therefore consider them in analyzing the present motions.

2 According to the complaint, Caballero has publicly stated that she

immigrated with her family to the United States from Chile when she was

nine years old and acquired U.S. citizenship at the age of 14. (Doc. 8

at 2.)

citizenship or documents of naturalization from any person who

seeks to participate in representative government and show that he

or she has acquired naturalization as a United States citizen with

the right to vote and participate in the electoral process.” (Id.

at 4.)

Two weeks before the October 2019 primary election, Peterson

spoke to the director of the DCBE and reviewed Caballero’s voter

registration application, in which Caballero affirmed that she was

a citizen of the United States. (Id. at 2.)

On October 10, 2019, Peterson filed an election protest with

the DCBE. (Id. at 3.) On October 11, the DCBE gave preliminary

consideration to Peterson’s petition and unanimously voted to

dismiss it. (Id.) The DCBE found that Peterson’s petition “failed

to establish probable cause that a violation of state law or

irregularity or misconduct occurred.” (Doc. 29-2 at 3.)

On October 14, 2019, Peterson appealed the DCBE’s ruling to

the NCSBE pursuant to N.C. Gen. Stat. § 163-182.11. (Doc. 8 at 3;

Doc. 29-2 at 3.) The executive director of the NCSBE recommended

the NCSBE dismiss the appeal because “it fails to comply with the

filing requirements for election protest appeals and fails to

allege the candidate was not eligible to run for the office

sought.” (Doc. 29-2 at 5.) The appeal was dismissed on October

23 when no other NCSBE member objected to the executive director’s

recommendation. (Id. at 2.)

Peterson then filed a petition for judicial review of the

NCSBE’s decision with the North Carolina Superior Court of Wake

County pursuant to N.C. Gen. Stat. § 163-182.14. (Doc. 8 at 4.)

On February 14, 2020, Superior Court Judge Michael A. Stone

dismissed the case, concluding that the court lacked jurisdiction

because a certificate of election had already been issued to

Caballero in the election at issue. (Doc. 29-6 at 2.)

Peterson filed her initial complaint with this court on March

18, 2020. (Doc. 2.) She subsequently filed an amended complaint

on July 20. (Doc. 8.) In August, each defendant filed a separate

motion to dismiss pursuant to Federal Rules of Civil Procedure

12(b)(1) and 12(b)(6). (Docs. 15, 19, 27.) Peterson responded to

each. (Docs. 34-36.) The matter is fully briefed and ready for

decision.3

II. ANALYSIS

Defendants move to dismiss, arguing that this court lacks

subject matter jurisdiction because Peterson’s complaint fails to

present a federal question and because Peterson is appealing a

3 Peterson has requested a hearing on her complaint and responses. (Doc.

8 at 4.) Under Local Rule 7.3(c), “Motions shall be considered and

decided by the Court on the pleadings, admissible evidence in the

official court file, and motion papers and briefs, without hearing or

oral argument, unless otherwise ordered by the Court.” The court finds

that a hearing is not required on this matter given the simplicity of

the issues.

state court decision in violation of the Rooker-Feldman doctrine.4

Defendants also argue that Peterson has failed to state a claim as

a matter of law.

Subject matter jurisdiction is a “threshold matter” that a

court must consider prior to addressing the merits of the case.

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94–95

(1998); Constantine v. Rectors & Visitors of George Mason Univ.,

411 F.3d 474, 480 (4th Cir. 2005) (“[S]ubject-matter jurisdiction

is a necessary prerequisite to any merits decision by a federal

court.”). The plaintiff bears the burden of proving that subject

matter jurisdiction exists. Evans v. B.F. Perkins Co., 166 F.3d

642, 647 (4th Cir. 1999).

When a defendant argues that a complaint fails to allege any

facts establishing subject matter jurisdiction, a 12(b)(1) motion

is evaluated under the same standard of review as a 12(b)(6) motion

to dismiss. Allen v. Tri-Lift N. Carolina, Inc., No. 1:19CV851,

2020 WL 70984, at *1 (M.D.N.C. Jan. 7, 2020), aff’d, 805 F. App’x

245 (4th Cir. 2020) (citing Adams v. Bain, 697 F.2d 1213, 1219

(4th Cir. 1982)). A motion to dismiss under Rule 12(b)(6) tests

the legal sufficiency of a complaint. Republican Party of N.C. v.

Martin, 980 F.2d 943, 952 (4th Cir. 1992). To survive a Rule

4 The doctrine derives its name from two Supreme Court cases, Rooker v.

Fid. Trust. Co., 263 U.S. 413 (1923), and D.C. Court of Appeals v.

Feldman, 460 U.S. 462 (1983).

12(6)(6) motion, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). In considering the motion, a court will “assume as true

all . . . well-pleaded facts and draw all reasonable inferences in

favor of the plaintiff.” Nanni v. Aberdeen Marketplace, Inc., 878

F.3d 447, 452 (4th Cir. 2017). Rule 12(b)(6) requires “sufficient

factual allegations to raise a right to relief above the

speculative level so as to nudge the claims across the line from

conceivable to plausible.” Sauers v. Winston-Salem/Forsyth Cty.

Bd. of Educ., 179 F. Supp. 3d 544, 550 (M.D.N.C. 2016) (alterations

and quotations omitted).

Peterson brings her case pro se. As such, she is entitled to

a liberal construction of her complaint. See Erickson v. Pardus,

551 U.S. 89, 94. But “generosity is not fantasy.” Bender v.

Suburban Hosp., Inc., 159 F.3d 186, 192 (4th Cir. 1998). The court

is not permitted “to become an advocate for a pro se litigant or

to rewrite his complaint,” Williams v. Guilford Tech. Cmty. Coll.

Bd. of Trustees, 117 F. Supp. 3d 708, 716 (M.D.N.C. 2015), nor

should it “conjure up questions never squarely presented,”

Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

Defendants have moved to dismiss for lack of subject matter

jurisdiction. Peterson responds that this court has jurisdiction

because she lives in Durham, North Carolina, which is located in

the Middle District of North Carolina. (Doc. 34 at 1.) However,

subject matter jurisdiction does not refer to where the parties

live, but to the types of cases a federal court can hear and

decide. Federal courts are courts of limited jurisdiction, meaning

they possess “only that power authorized by Constitution and

statute.” Exxon-Mobil Corp. v. Allapattah Servs., Inc., 545 U.S.

546, 552 (2005) (quotations omitted). In other words, only certain

cases -- those that have been authorized by the U.S. Constitution

or a federal statute -- are allowed to be brought in a federal

court such as this one. Specifically, this court can hear cases

involving federal questions, 28 U.S.C. § 1331, and cases between

citizens of different states when the amount in controversy exceeds

$75,000 (so-called “diversity jurisdiction”), 28 U.S.C. § 1332.

There are no allegations of diversity jurisdiction in

Peterson’s complaint. To establish diversity jurisdiction, the

plaintiff must be a citizen of a different state from that of the

defendants. See 28 U.S.C. § 1332(a). Here, all parties are

citizens of North Carolina. (Doc. 8 at 1; Doc. 20 at 5.) So,

diversity of the parties cannot be a basis for federal

jurisdiction.

To establish federal question jurisdiction, the action must

“aris[e] under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1331. However, even construing the complaint

in the light most favorable to Peterson, she has not presented any

basis for federal question jurisdiction for her case to be heard

by this court. Peterson briefly references two provisions of the

U.S. Constitution in her complaint -- the Fourteenth and Fifteenth

Amendments. (Doc. 8 at 1.) The Fourteenth Amendment generally

defines citizenship and prevents states from infringing on the

rights of citizens. U.S. Const. amend. XIV. The Fifteenth

Amendment provides that the right to vote shall not be abridged on

the basis of race. U.S. Const. amend. XV. Federal claims can be

brought under these Amendments challenging state election

practices that infringe, for example, on a person’s right to vote.

See, e.g., Harper v. Virginia State Bd. of Elections, 383 U.S. 663

(1966). But there are no such allegations here. Nor do these

Amendments establish qualifications to run for or hold public

office. Indeed, the only qualifications in the U.S. Constitution

are for federal offices. See U.S. Const. art. I, §§ 2-3; art. II,

§ 1 (listing the qualifications for U.S. Representative, U.S.

Senator, and President). The qualifications to run for local

office in North Carolina, such as the Durham City Council, are set

out in North Carolina law. See N.C. Const. art. VI; N.C. Gen.

Stat. § 163-294.2.

At its core, then, Peterson’s complaint is about state

election law. She acknowledges as much in her complaint: “I

believe that North Carolina law requires that a thorough

investigation into the validity of the naturalization status [of

Caballero] should have been undertaken.” (Doc. 8 at 4 (emphasis

added).) States retain significant control over their own

elections. See Clingman v. Beaver, 544 U.S. 581, 586 (2005) (“The

Constitution grants States broad power to prescribe the ‘Times,

Places and Manner of holding Elections for Senators and

Representatives,’ Art. I, § 4, cl. 1, which power is matched by

state control over the election process for state offices.”

(quotations and citation omitted)). Further, federal district

courts do not generally intervene to instruct state officials to

follow state election law. See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 106 (1984) (“A federal court’s grant of

relief against state officials on the basis of state law . . .

does not vindicate the supreme authority of federal law. On the

contrary, it is difficult to think of a greater intrusion on state

sovereignty than when a federal court instructs state officials on

how to conform their conduct to state law.”); Democracy N. Carolina

v. N. Carolina State Bd. of Elections, No. 1:20CV457, 2020 WL

6383222, at *7 (M.D.N.C. Oct. 30, 2020) (“In the absence of a

continuing federal violation, any order by this court that the

[North Carolina State Board of Elections] conform their conduct

with state laws is precisely the conduct the Supreme Court

forbids.”).

Here, Peterson takes issue with the process of a local

election, governed by North Carolina election law, and the

decisions of three North Carolina entities that reviewed her

complaint before she filed in this court. Because there is no

federal subject matter jurisdiction plausibly alleged, this court

lacks authority to decide Peterson’s claim.5

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that the Defendants’ motions to

dismiss (Docs. 15, 19, 27) are GRANTED and the complaint is

DISMISSED WITHOUT PREJUDICE.

/s/ Thomas D. Schroeder

United States District Judge

December 29, 2020

5 The court therefore need not address Defendants’ alternative arguments

for dismissal.