French v. County of Luzerne

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM FRENCH and : CIVIL ACTION NO. 3:23-538

MELYNDA ANNE REESE,

: (JUDGE MANNION)

Plaintiffs

:

v.

:

COUNTY OF LUZERNE,

LUZERNE COUNTY BOARD OF :

ELECTIONS and

REGISTRATION, and LUZERNE :

COUNTY BUREAU OF

ELECTIONS, :

Defendants :

MEMORANDUM

“[V]oters in Luzerne County through no fault of their own, were

disenfranchised and denied the fundamental right to vote.”1 Those are the

exact words used by the Luzerne County Court of Common Pleas when

describing the county’s now infamous 2022 general election. Plaintiffs are

two such voters who were unable to vote on November 8, 2022, simply

because Luzerne County did not order enough ballot paper. They bring this

suit against Luzerne County and its election related agencies (“Defendants”)

not to challenge the election’s results but vindicate their constitutional rights

1 In Re: Extension of Time of Polls to Remain Open in the 2022 General

Election, Luzerne County Court of Common Pleas, No. 09970 of 2022.

via declaratory and injunctive relief. Presently before the court is Defendants’

Motion to Dismiss (Doc. 13). For the reasons stated below that motion is

DENIED in part and GRANTED in part.

I. Background

The background of this case is taken from the factual allegations set

forth in Plaintiffs’ complaint, (Doc. 13), which the court must accept as true

for the purposes of Defendants’ motion to dismiss.

Luzerne is a county of the third class organized and existing under the

laws of the Commonwealth of Pennsylvania. Counties like Luzerne are

responsible for running elections in compliance with state and federal law.

The Luzerne County Board of Elections and Registration (“Board”) oversees

elections, and the Luzerne County Bureau of Elections (“Bureau”)

administers elections on behalf of the Board. In Luzerne County voters make

their choices on electronic voting machines but once they are done those

machines print out their ballots on sheets of paper, which are placed in ballot

boxes and tabulated.

However, in November 2022 Defendants did not order enough ballot

paper for all eligible voters in Luzerne County, who wished to vote, to actually

vote. As a result, at least 40 out of approximately 170 polling places across

the county ran out of the paper necessary to print, cast, and tabulate voters’

ballots. These shortfalls were not the product of unpredictably high turnout,

as evidenced by the fact that some polling places ran out of paper within an

hour of opening. In fact, Defendants were warned ahead of time about

possible ballot paper shortages.

Still Defendants had no plan in place for when paper began to run out.

Instead, individual polling places were left to fend for themselves without any

guidance or assistance from Defendants. In some locations election workers

were instructed to purchase paper at office supply stores. While at other

locations, voters brought their own paper. Amid this chaos lines to vote grew

and some election workers instructed otherwise qualified and registered

voters to cast provisional ballots, which are typically used when a voter’s

qualifications cannot be determined and only counted after the Board

adjudicates them on a case-by-case basis. Nonetheless in other instances,

voters were turned away completely.

At Defendants request the Luzerne County Court of Common Pleas

took the extraordinary step of allowing polls to remain open an extra two

hours. However, this decision came after many voters had already cast

provisional ballots or been turned away. Plaintiffs are two such voters. On

the morning of election day Plaintiff William French went to vote at his local

polling place in Freeland but was told upon arrival there was not enough

paper for him to vote and to return later. French returned that afternoon but

was told for second time to come back later. French, who is disabled and

uses a cane, feared walking at night so he could not return that evening and

in turn did not have an opportunity to vote.

On the morning of election day Plaintiff Melynda Anne Reese and her

ill husband also went to vote at their local polling place in Shickshinny. Upon

arriving Reese was told there was only enough paper for her husband to vote

and that she would have to return later. Reese did return that afternoon and

again that evening but faced significant lines both times. Due to his illness

Reese’s husband could not wait in line with her nor could she leave him

alone. So, she did not vote. At 9:15 pm, an election official phoned Reese to

inform her that ballots were now available. However, Reese’s husband had

already taken sleeping medication, so they were not able to return to the

polls for a fourth time and in turn Reese also did not have the opportunity to

vote.

Despite the issues on election day, the Board certified Luzerne

County’s election results by a vote of 3 to 2. Plaintiffs thereafter brought this

suit not to overturn the results of the election but vindicate their rights to vote,

which they allege were violated by inter alia Defendants’ failure to order

enough ballot paper. Defendants acknowledge that they failed the voters of

Luzerne County on November 8, 2022, but argue that they did not violate

Plaintiffs’ constitutional rights and accordingly filed his motion to dismiss. The

motion has been fully briefed and is ripe for decision.

II. Legal Standard

A. Motion to Dismiss

In rendering a decision on a motion to dismiss, a court should not

inquire “whether a plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416

U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The

court must accept as true the factual allegations in the complaint and draw

all reasonable inferences from them in the light most favorable to the plaintiff.

Innis v. Wilson, 334 F. App'x 454, 456 (3d Cir. 2009) (citing Phillips v. Cnty

of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008)).

However, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do

not suffice.”).

Under the pleading regime established by [Bell Atl. Corp. v.]

Twombly, 550 U.S. 544 (2007) and Iqbal, a court reviewing the

sufficiency of a complaint must take three steps. First, it must

“tak[e] note of the elements [the] plaintiff must plead to state a

claim.” Iqbal, 556 U.S. at 675. Second, it should identify

allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id. at 679. Finally,

“[w]hen there are well-pleaded factual allegations, [the] court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Id. at 679.

Connelly v. Lane Const. Corp., 809 F.3d 780, 787–88 (3d Cir. 2016) (internal

citations, quotations and footnote omitted). Elements are sufficiently alleged

when the facts in the complaint “show” that the plaintiff is entitled to relief.

Iqbal, 556 U.S. at 679 (quoting FED.R.CIV.P. 8(a)(2)). At the second step,

the court distinguishes between legal conclusions, which are discounted in

the analysis, and allegations of historical fact, which are assumed to be true

even if “unrealistic or nonsensical,” “chimerical,” or “extravagantly fanciful.”

Iqbal, 556 U.S. at 681. Deciding whether a claim is plausible is a “context-

specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id.

B. 42 U.S.C. §1983

42 U.S.C. §1983 is the vehicle by which private citizens may seek

redress for violations of federal constitutional rights committed by state

officials. To state a cause of action under §1983, a plaintiff must allege that:

(1) the conduct complained of was committed by persons acting under color

of state law; and (2) the conduct violated a right, privilege, or immunity

secured by the Constitution or laws of the United States. See Harvey v.

Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005).

Nevertheless, local government entities can be held liable under '1983

only if Plaintiffs show that the violation of their federally protected rights

resulted from the enforcement of a “policy” or “custom” of Defendants. See

Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 694 (1978). A court may find

that a municipal policy exists when a “‘decisionmaker possess[ing] final

authority to establish municipal policy with respect to the action’ issues an

official proclamation, policy, or edict.” Andrews v. City of Philadelphia, 895

F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475

U.S. 469, 481, (1986)).

It is also possible for a court to find the existence of a municipal policy

in “the isolated decision of an executive municipal policymaker.” City of St.

Louis v. Praprotnik, 485 U.S. 112, 139 (1988). “A course of conduct is

considered to be a ‘custom’ when, though not authorized by law, ‘such

practices of state officials [are] so permanent and well settled’ as to virtually

constitute law.” Andrews, 895 F.2d at 1480 (citations omitted). There must

be a “direct causal link” between the municipal policy or custom and the

alleged constitutional violation. City of Canton, Ohio v. Harris, 489 U.S. 378,

385 (1989).

It is undisputed that Defendants are state actors for the purposes of

§1983. Thus, the issue here is whether Plaintiffs plausibly plead a violation

of their constitution rights as a result of Defendants’ policies and practices.

III. Discussion

A. Proper Parties

Since Defendant Luzerne County Bureau of Elections is a department

within Luzerne County government and not a sperate legal entity a claim

against both the County and the Bureau would be redundant. Accordingly,

the court will dismiss the Bureau from the case.

B. Count I - Violation of the First and Fourteenth Amendments

Right to Vote - Inadequate Supplies

Defendants do not dispute that they failed to provide adequate supplies

during the 2022 general election, but they do claim that this failure was not

deliberate. Moreover, they assert that Plaintiffs’ right to vote was not outright

denied because Plaintiffs could have voted if not for their own or spouse’s

health. Accordingly, Defendants argue that Plaintiffs have failed to state a

plausible claim. The court disagrees.

“Undeniably the Constitution of the United States protects the right of

all qualified citizens to vote, in state as well as in federal elections and to

have their votes counted.” Reynolds v. Sims, 377 U.S. 533, 554 (1964)

(internal citation omitted). The right to vote can be denied outright or where

the government imposes substantial burdens on the right to vote. See, Storer

v. Brown, 415 U.S. 724, 729-730 (1974); see also Burdick v. Takushi, 504

U.S. 428, 433 (1992) (“Because “voting is of the most fundamental

significance under our constitutional structure,” a state actor can violate the

right to vote by placing significant burdens on the exercise of the right.)

(internal citation omitted).

Here Plaintiffs plausibly plead that Defendants made affirmative

directives, decisions, and decrees (i.e., had a policy) to order an insufficient

number of ballots.2 As a result of that policy Plaintiffs were both initially

outright denied the right to vote and told to come back later, did come back

2 Defendants claim the issue on November 8, 2022, was a “general

paper supply issue” and not an individual balloting problem because ballots

were technically cast using an electronic vote machine. But the shortage of

paper still meant that the voting machines could not print out voters’ ballots.

So effectively Defendants failed to supply enough ballots.

later, and were still faced with substantial burdens that further prevented

them from voting. Defendants claim that Plaintiffs fail to allege that the ballot

shortage could have only occurred due to Defendants’ policy, but

Defendants fail to offer any alternative explanation. For example, Defendants

do not argue that they ordered enough ballots, and that number was not

delivered. If discovery reveals that this was the case, then Defendants could

prevail at summary judgment. But for now, merely claiming to not have

deliberately ordered insufficient ballots does not defeat Plaintiffs’ claim.

Furthermore, ill health does not undermine a person’s constitutional

rights. While the health of French and Reese’s spouse may have made the

burden placed on their rights to vote more substantial, it does not change the

fact that Defendants still burdened their rights to vote. If Defendants had

ordered enough ballots Plaintiffs or their spouse’s health would not have

prevented them from voting. Thus, there is a direct causal link between the

identified policy and the alleged violation. Since Defendants have not

otherwise shown Plaintiffs failed to adequately plead this claim, their motion

to dismiss Count I will be denied.

C. Count II - Violation of the First and Fourteenth Amendments -

Failure to Train

Defendant3 argues that Plaintiffs cannot assert a failure to train claim

because they do not allege a pattern of violations. It is true that if the policy

at issue relates to a failure to train or supervise municipal employees, “liability

under section 1983 requires a showing that the failure amounts to ‘deliberate

indifference’ to the rights of persons with whom those employees will come

into contact.” Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)

(citation omitted). Such a failure [to train or supervise municipal employees]

“can ordinarily be considered deliberate indifference only where the failure

has caused a pattern of violations.” Berg v. Cty. of Allegheny, 219 F.3d 261,

276 (3d Cir. 2000).

However, “the unconstitutional consequences of failing to train could

be so patently obvious that a city could be liable under §1983 without proof

of a pre-existing pattern of violations.” Connick v. Thompson, 563 U.S. 51,

64, (2011) See also Robinson v. Fair Acres Geriatric Ctr., 722 F. App'x 194,

199 (3d Cir. 2018) citing Canton, 489 U.S. at 390. (A plaintiff may also show

deliberate indifference by presenting evidence “that in light of the duties

3 Defendant Luzerne County Board of Elections and Registration is not

authorized to hire or train Luzerne County election personnel. Accordingly,

Defendant Luzerne County is the only proper Defendant for Count II.

assigned to [the relevant employees,] the need for more or different training

is so obvious, and the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the [municipality] can

reasonably be said to have been deliberately indifferent to the need.”)

The unconstitutional consequences of failing to give guidance let alone

train election workers on how to manage ballot shortages is so patently

obviously that the Plaintiffs here need not plead a pattern of pre-existing

violations. Even if the failures on November 8, 2022, were an isolated

incident, those failures were so acute that the training (or lack thereof)

election workers received was so obviously inadequate that Defendant could

reasonably be said to have been deliberately indifferent to Plaintiffs’ rights to

vote. Regardless Plaintiffs have also pled a deeply concerning pattern of

voting rights violations in Luzerne County including but not limited to an

election worker throwing away voters’ ballots and voting machines printing

ballots with errors.

Defendant claims that these issues are distinct from those that

occurred on November 8, 2022, but that is a question of fact not appropriate

for consideration on a motion to dismiss. Moreover, Defendant seemingly

claims that its one success in detecting voter fraud, which like ordering

enough ballot paper is the bare minimum expected for an election authority,

forgives its multitude of other failures. Defendant is wrong and its motion to

dismiss Count II will be denied.

D. Count III - Violation of the Fourteenth Amendment - Equal

Protection

Defendants argue that Plaintiffs fail to plead an equal protection

violation because they do not challenge any state law or regulation or any

policy or procedure of Defendants. Moreover, Defendants argue that

Plaintiffs fail to allege they are part of protected class.

The Fourteenth Amendment to the United States Constitution states,

in relevant part that no state shall “deny to any person within its jurisdiction

the equal protection of the laws.” U.S. Consti. Amend. XIV, '1; See also

Donald J. Trump for President, Inc., v. Boockvar, 502 F. Supp. 3d 899, 917–

18. (“The principle of equal protection is fundamental to our legal system

because, at its core, it protects the People from arbitrary discrimination at the

hands of the State.”) “In decision after decision, [the Supreme Court] has

made clear that a citizen has a constitutionally protected right to participate

in elections on an equal basis with other citizens in the jurisdiction.” Dunn v.

Blumstein, 405 U.S. 330, 336, (1972).

Contrary to Defendants’ assertions Plaintiffs do identify a policy of the

Defendants, i.e., not ordering enough ballot paper, that had an

unconstitutional affect. Plaintiffs do not allege this policy diluted their votes.

Instead, they allege that by allocating an inadequate amount of paper to 40

of approximately 170 polling places, including both of Plaintiffs’ polling

locations, Defendants subjected Plaintiffs’ ability to vote to a different

standard from other voters based solely on where they lived.

Defendants are correct that geography is not a protected class, but

multiple courts have found unequal treatment of ballots based on where

voters live unconstitutional. See Bush v. Gore, 531 U.S. 98, 106 (2000)

(holding equal protection violation occurred because “the standards for

accepting or rejecting contested ballots might vary not only from county to

county but indeed within a single county from one recount team to another.”);

League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008)

(holding that allegations voters were forced to wait from two to twelve hours

to vote because of inadequate allocation of voting machines could establish

an equal protection claim that voters right to vote was denied or severely

burdened based on where the voter lived.); Pierce v. Allegheny County

Board of Elections, 324 F.Supp. 684 (W.D. Pa. 2003) (holding that an equal

protection claim was pleaded where plaintiff alleged that counties applied

different standards to the counting of absentee ballots delivered by third

parties.).

Just earlier this year the Western District of Pennsylvania denied a

motion to dismiss an equal protection challenge to Pennsylvania’s rules for

counting absentee ballots. See Pennsylvania State Conference of the

NAACP v. Schmidt, 2023 WL 3902954 (W.D. Pa. June 8, 2023). Defendants

try to distinguish this case based on the fact it dealt with the specific issue of

counting ballots whereas here the issue was availability of ballots. The court

does not see this distinction. Plaintiffs’ ballots were not counted because

Defendants did not make available an adequate number of ballots. Had

Plaintiffs lived in a voting precinct with adequate paper they would have cast

a ballot that would have been counted.

While most equal protection cases address disparate treatment of

voters among, not within counties, a case not cited by Plaintiffs but key to

the finding in League of Women Voters, found that a village’s failure to

provide adequate voting facilities to all voters, deprived some voters of the

equal protection of law. See Ury v. Santee, 303 F. Supp. 119, 126 (N.D. Ill.

1969). In Ury substantially more voters were assigned to certain precincts

than others, but each precinct had the same number of election judges. As

a result, voters assigned to precincts with more voters had to wait in

substantially longer lines than voters assigned to precincts with less voters.

On this basis the court found an equal protection violation and eventually

invalidated the results of the contested election.

Plaintiffs here are not seeking to overturn election results, but their

case is analogous to Ury. Voters at precincts with less paper faced more

substantial burdens on their right to vote than voters at precincts with more

paper. Defendants offer no explanation for this discrepancy. They only offer

assurances that the events of November 8, 2022, were a “freak accident”

and that there was no nefarious motive behind the inequitable allocation of

paper. The court is not convinced at this stage of the litigation. As a result,

Defendant’s motion to dismiss Count III will be denied.

E. Count IV - Violation of Fourteenth Amendment - Procedural Due

Process

Defendants argue that Plaintiffs’ due process claim fails because the

Fourteenth Amendment does not guarantee against errors in election

administration. In making their arguments both parties blur the lines between

substantive and procedural due process but ultimately Plaintiffs do

acknowledge that they are only making a procedural due process claim.

Accordingly, the court will only consider arguments that pertain specifically

to procedural due process.

To state a claim under §1983 for deprivation of procedural due process

rights, a plaintiff must allege that (1) he was deprived of an individual interest

that is encompassed within the Fourteenth Amendment's protection of “life,

liberty, or property,” and (2) the procedures available to him did not provide

“due process of law.” Hill v. Borough of Kutztown, 455 F.3d 225, 233–34 (3d

Cir. 2006).

Neither the Supreme Court, nor the Third Circuit have deemed the right

to vote a liberty interest under the Fourteenth Amendment. Plaintiffs cite a

footnote in a Fourth Circuit case (about municipal land annexation) to support

the position that the right to vote is a liberty interest. See Barefoot v. City of

Wilmington, N. Carolina, 37 F. App'x 626, 635, n. 5 (4th Cir. 2002). They

further cite League of Women Voters for the additional proposition that

inadequate allocations of voting machines and long wait times indicate due

process violations. 548 F. 3d at 477-78. However, League of Women Voters

also found “that Ohio's voting system impinges on the fundamental right to

vote does not, however, implicate procedural due process” because the right

is not a protected liberty interest. Id. at 479.

Whereas elsewhere the court finds this case analogous to League of

Women Voters, under which Plaintiffs have not adequately pled that such an

infringement implicates procedural due process. Since Plaintiffs only plead

a claim for procedural not substantive due process, the court will grant

Defendants’ motion to dismiss Count IV.

IV. Conclusion

For the foregoing reasons Defendant Luzerne County Bureau of

Election will be dismissed from this case, Defendant Luzerne County Board

of Elections and Registration will be Dismissed from Court II, Defendants’

Motion to Dismiss (Doc. 13) Counts I, II, and III will be DENIED, and

Defendants Motion to Dismiss (Doc. 13) Count IV will be GRANTED. An

appropriate order follows.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: December 4, 2023

23-0538-01