# Opposition Brief — Fulani v. Hogsett > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1948%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1991 - **Citation:** 501 U.S. 1206 ## Text } Supreme Court, WS FiLED MAY 16 1991 —, No. 90-1608 4 a o OFFICE OP THE CLERK IN THE Supreme Court of the United States October Term, 1990 LeENORA B. FULANI, ef. al.., Petitioners, VS. Joseru H. HoGsert, in his official capacity as Secretary of the State of Indiana, ef a/. Respondents. BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT LINLEY E. PEARSON Attorney General of Indiana ROBERTS. SPEAR Chief Counsel (Counsel of Record) JOHN M. WHITE Deputy Attorney General Office of Indiana Attorney General 219 State House Indianapolis, IN 46204 (317) 282-6316 Attorneys for Responderts Joseph H. Hogsett, Evan Bayh, Alan Mills, Timothy Durham and Robert L. Wright Graphics LTD. Tndianapelis, IN ter QUESTIONS PRESENTED 1. Whether the Seventh Circuit correctly applied the doc- trine of laches to bar relief in this case. 2. Whether the District Court correctly decided that Peti- tioners failed to present an actual case or controversy, Peti- tioners failed to allege any facts sufficient to establish a depri- vation of their civil rights, and that Petitioners’ claim was moot. PARTIES TO THE PROCEEDINGS The petitioners, who were plaintiffs and appellants below, are Lenora B. Fulani, Mamie Moore, Lenora B. Fulani’s Com- mittee for Fair Elections, New Alliance Party, Julie Joy and Mary Forrest (hereinafter “Fulani Plaintiffs”). The respondents, who were defendants and appellees below, are Joseph H. Hogsett, Secretary of the State of Indiana; the State Election Board of Indiana; Evan Bayh, Governor of Indi- ana; and Alan Mills, Timothy Durham, and Robert L. Wright, Members of the Indiana State Election Board (hereinafter “State Defendants”);! and Carlton E. Curry, intervenor-defen- dant-appellee below. ' Prior to the conclusion of this case in the Court of Appeals, all of the original defendants, who were sued in their official capacities only, were succeeded in their respective offices by the above named respondents. There- fore the above respondents were automatically substituted as parties under FED. Ro APP. Po 48(Co0). See Fudani e. Hogsett, 917 F.2d 1028 (1990). TABLE OF CONTENTS a yc sess sak sv sar seese, gn Nee ua ceeecbccnce EE eee eeu ca cacccuce B. Course of Proceeding Below ...........0..00.... C. Facts Relevant to Issue Presented. ............ Reasons Why the Writ Should Not Issue I. II. ITl. IV. THE SEVENTH CIRCUIT'S APPLICA- TION OF LACHES TO BAR ALL RELIEF IN THIS CASE WAS PROPER AND IS CONSISTANT WITH PRIOR DECISIONS OF THIS COURT......... PETITIONERS’ EFFORT TO OBTAIN EQUITABLE RELIEF WITH RESPECT TO THE 1988 ELECTION [S NOW MOOT AND THEIR REQUEST FOR MONE- TARY DAMAGES IS BARRED BY THE ELEVENTH AMENDMENT .......... THE DECISION BELOW IS NOT INCONSISTENT WITH THE DECI- SION OF THE EIGHTH CIRCUIT... PETITIONERS’ ENTIRE CASE RESTED ON CONCLUSORY AND SPECULATIVE ALLEGATIONS BASED UPON A HYPOTHETICAL SET Page: Ic Ic Conclusion OF FACT INSUFFICIENT TO INVOKE FEDERAL SUBJECT MATTER JURIS- ENC ae oe arta e aren scene 9 PETITIONERS FAILED TO PRESENT ANY CIRCUMSTANCES OR FACTS THAT WOULD ESTABLISH A VIO- LATION OF THEIR CIVIL RIGHTS OR OTHERWISE PRESENT A SIGNIFI- CANT QUESTION OF FEDERAL LAW 12 TABLE OF AUTHORITIES (Cases: Pages: Aetea Life lusurance Co. v. Haworth, 300 U.S. NRE a ear TN cia Oe en Seer ae 10 Alabama State Federation of Labor «v McAdory, 325 See IES Sok cs Wee coe Pea ea leiled be 10) Baum v. Landig, 5385 F.2d 1016 (7th Cir, 1976) 2002... 1} Chase v. McMasters, 573 F.2d 1011 (8th Cir, 1978)... s Kdelman v. Jordan, AVS US. 651 A9TA) 20 eee. s Biv parte Young, 209 U.S. 123 (1908) 20.0 és Fulani v. Hogsett, 917 F.2d 1028 (1990) 20 ee. i] Gamza vo. Aquirre, 619 F.2d 449 (Sth Cir. 1980) 0020... le Giertsen 0. Board of Blection Commissioners of City of Chicago, 751 F.2d 199 (7th Cin 1984) 20. t) Golden vo Zwickler, 894 ULS. 108 (1969). 0 ee lt) Illinois State Board of Blections « Socialist Workers Party, 4 US. 173 1979) - 4 Jones v. State ex rel. Wilson. 152 Ind. HO, 55D NE. 229 Ste pact kone Ae Toes a one nor re Ld, 16 Ke nlucky hs Graham. (3 is Jd { 1985). : ~ Lunn ev Simpson, 207 Ind. 680, 194 NOB. 341 (1985 lo, 16 Manifold « Blunt. S63 F.2d T3268 (Sth Cir LOSSY). oe denied U.S , 250 S.A. 248. 10% L.Rd.2d 192 (1989 S15 Pennhurst State School and Hospital « Halderman, ABS U.S. 89 (1984) . Powel . Met Cir pasate YQ | ~ Sit) 19 Public Service Commission of Utah, etal. v. Wycoff Co. fc., S06 C2 AS a ew U Rew Rhee aea ee 10) Railroad Commission of Texas v. Pullman Co., 312 U.S. GG Ca ee ee re es eeasncccikss 16 Snowden vo Hughes, 321 U.S. 1 (1944)... eee, 12, 15 Southern Pacific Terminal Company v. Interstate Com- merce Commission, 219 ULS. 498 (1911). ........ 7 State ex rel. Harry v. Ice, 207 Ind, 65, 191 N.E. 155 CHSGA) . . «5 a's ste areca at a 16 Steffel v. Thompson, 415 U.S, 452 (1974)... ee. 10) Timms vo Metropolitan School District of Wabash County, Indiana, 722 F.2d 1310 (7th Cir. 1983)... () United Public Workers v Mitchell, 330 U.S. 75 (1947). 10 Warth v. Seldin, 422 U.S. 490 (1975) .. wc ec ee es 10 Weinstein v. Bradford, 423 U.S. 147 (1975). 2.0. 0... 7 Williams v. Rhodes, 393 U.S. 23 (1968) .....0.0..0.0..005. (} Constitution, Statutes and Rules: U.S. CONST. ART. IESECTION 1, CLAUSE 2 .... i) Article IIT of the Constitution. ....0.0.0.0.0....000000.. 1 10, 11 First Amendment... 3s cease eeee nee eae eka es 4, 13 Eleventh AmendMeeel 2c 4ccrrc ua aa eee aes sacs Hh, Fourteenth Ament. cos ereekiac se eho ee eee 4 12 U.S.C. $1068 . i355 eee er 1 2; 4,7, 8 IC 3-10-4-Me) .. . ec eee ee 2 IC 3-11-4-19.. . .. cin ibe a SS IC 3-11-10-26.. . ce 0 ee eee s yy AD. a 0) cath cues il Othe) ISA, C. Wright, A. Miller & FE. Cooper, Federal Practice gE a ee s No. 90-1608 IN THE Supreme Court of the United States October Term, 1990 LeENORA B. FULANI, ef. al., Petitioners, Vs. JosePH H. HoGsert, in his official capacity as Secretary of the State of Indiana, ef a/. Respondents. BRIEF IN OPPOSITION TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT STATEMENT OF THE CASE A. NATURE OF THE CASE Fulani Plaintiffs seek review of the Seventh Circuit's affir- mance of the District Court’s dismissal of their complaint for declaratory and injunctive relief and damages, filed pursuant to 42 U.S.C.§1983. B. COURSE OF PROCEEDING BELOW Fulani Plaintiffs filed their five count Complaint pursuant to 12 U.S.C. $1983, on October 18, 1988. Petitioners alleged a violation of their right to political speech, equal protection of the law, discrimination against their political program and beliefs, discrimination on the basis of their race and sex, vio- lation of their right to free speech and association, and violation of Indiana election law. State Defendants filed their Motion to Dismiss the Complaint on October 21, 1988. Intervening Defendant, Carlton E. Curry, filed his Motion to Dismiss on October 20, 1988. On October 25, 1988 the District Court granted the motions to dismiss and dismissed the Complaint in its entirety. The United States Court of Appeals for the Seventh Circuit affirmed the District Court on November &, 1990. c. FACTS RELEVANT TO ISSUE PRESENTED The pertinent facts of the case were never in dispute and were submitted to the District Court by joint stipulation of the Parties.“ At the time this suit was initiated Indiana law required that the names of all candidates for presidential elec- tors were to be certified to the Secretary of State by noon on August 1, before the general election. The names of the Presi- dential and Vice-Presidential candidates had to be certified to the Secretary of State before noon, September 1, before the general election. IC 3-10-4-5(¢).* App. 16a. The Fulani Plaintiffs certified the names of their candidates for presidential electors to the Secretary of State prior to All references to the facts and opinions below are to the appendix ntained in the Petition for Writ of Certiorari and are cited to the appropri- e page thereof as, “App. a.” The statute has since been amended to require that the names of the ectors and the candidates both be certified to the Secretary of State by noon nh September 1, preceding the general election. [C 3-10-4-5(¢). August 1, 1988 and certified the names of their candidates for President and Vice-President to the Secretary of State prior to September 1, 1988. App. 16a. The Republican Party candidates for presidential electors were not certified to the Indiana Secretary of State until August 4, 1988. The Democratic Party candidates for presiden- tial electors were not certified to the Indiana Secretary of State until August 8, 1988. Both the Democratic and Republican Party candidates for presidential electors were however, prop- erly selected under Indiana law at their respective state con- ventions prior to August 1, 1988. The Presidential and Vice- Presidential candidates for both the Republican and Demo- cratic Parties were duly certified to the Secretary of State prior to the September 1, 1988 deadline. App. 17a. The names Fulani and Moore as candidates for the New Alliance Party for President and Vice-Presideni of the United States, along with the names of Michael Dukakis and Lloyd Bentson for the Democratic Party and George Bush and Dan Quayle for the Republican Party appeared on the Indiana ballot for the November &, 1988 general election. The Fulani Plaintiffs filed suit on October 18, three weeks prior to the polling date for the 1988 presidential election and sought declaratory and injunctive relief to remove the names of both the Republican and Democratic candidates for President and Vice-President from the ballot in Indiana. By that time, the ballots had already been printed and absentee voting had already begun. IC 3-11-4-13; IC 3-11-10-26. The Fulani Plain- tiffs also sought monetary damages. The Fulani Plaintiffs claimed that allowing the Republican and Democratic candidates on the ballot, without their electors having been certified by August 1, violated their right to political speech, to hold political beliefs and espouse programs, and to equal protection under the First and Fourteenth Amendments. The Fulani Plaintiffs also attempted to invoke the court’s pendent jurisdiction over a state law claim. The Fulani Plaintiffs’ central claim throughout their Complaint was: Upon information and belief, had the Fulani-Moore cam- paign failed to file the New Alliance Party candidates for presidential electors in a timely fashion or failed to comply with the requirements of the Indiana Election Code in any other respect, Fulani and Moore would not have been listed on the Indiana ballot. App. 19a. This allegation was realleged in each of the claims for relief. The District Court found that because the Fulani Plaintiffs’ Complaint was premised upon a hypothetical situation about what the State Defendants might have done in a different factual setting, it failed to present the court with an actual case or controversy for adjudication. Therefore, the trial court held that it was without subject matter jurisdiction to hear the case under Article III of the Constitution. The District Court also found that the Complaint failed to present a claim upon which relief could be granted under equal protection analysis because: (1) the claim was moot to the extent that the Fulani Plaintiffs’ candidates had in fact been listed on the ballot, (2) due to its hypothetical nature, the claim failed to present an actual case or controversy for adjudication, and (3) the Fulani Plaintiffs failed to allege any facts to show intentional or pur- poseful discrimination on the part of the State Defendants. The District Court further found that the Fulani Plaintiffs failed to show that any action by the State Defendants deprived the Fulani Plaintiffs of a federally secured right under either the First or the Fourteenth Amendments and failed to allege any facts to show that the State Defendants discriminated against the Fulani Plaintiffs on account of their sex or race. Having found no independent federal subject matter jurisdiction, the District Court dismissed the state law claim. The District Court noted, but did not rule, that given the timing of the suit and the election, the State Defendants presented a strong argument for the application of laches. The District Court dismissed the Complaint in its entirety. a | The Fulani Plaintiffs appealed the District Court’s decision to the Seventh Circuit. The Seventh Circuit found that the claims for declaratory relief and monetary damages presented a live controversy between the parties and were not moot. The Seventh Circuit further found that the Fulani Plaintiffs had standing to sue. In doing so the Seventh Circuit found that the increased competition the Fulani Plaintiffs had to face was an injury, fairly traceable to the actions of the State Defendants, which could be remedied by an award of damages to redress the increased outlay of campaign money. However, the Seventh Circuit ruled that the claim was bar- red by laches. The Seventh Circuit noted that the action taken by the Secretary of State, which formed the basis of the Com- plaint, was taken and available for public inspection in August and early September, 1988. The Seventh Circuit then held that the failure of the Fulani Plaintiffs to file their Complaint until October 18, 1988, after the ballots were printed and absentee voting had begun, was fatal to their claim for any relief. Because the Seventh Circuit disposed of the case on laches, it did not reach the merits of the other issues involving equal protection, section 1983 or pendent jurisdiction. REASONS WHY THE WRIT SHOULD NOT ISSUE I. THE SEVENTH CIRCUIT’S APPLICATION OF LAC- HES TO BAR ALL RELIEF IN THIS CASE WAS PROPER AND IS CONSISTANT WITH PRIOR DECI- SIONS OF THIS COURT. The Seventh Circuit found that the Fulani Plaintiffs’ failure to file their Complaint until October 18, 1988, three weeks prior to the November & general election, when the actions of the State Defendants were taken and available for public inspection as early as August 1988, prejudiced the State Defen- dants. The Seventh Circuit noted the extreme difficulty, if not impossibility, of providing another set of ballots at that late date along with the confusion and risk of interference with the rights of the absentee voters as the prejudice caused by the 6 unwarranted delay. App. 10a-lla. The application of laches in such a case is consistent with this Court’s decision in Williams v. Rhodes, 393 U.S. 23, 24-35 (1968). While the Seventh Circuit could have addressed the merits of the Complaint for Declara- tory Relief, there was no requirement that it do so. The Fulani Plaintiffs were asking the Seventh Circuit to rule on either the constitutionality of the hypothetical set of facts that never took place, nor likely to take place in the future, or a question of purely state law. The Seventh Circuit's failure to address the claim for declaratory relief is certainly not worthy of this Court’s review. Il. PETITIONERS’ EFFORT TO OBTAIN EQUITABLE RELIEF WITH RESPECT TO THE 1988 ELECTION IS NOW MOOT AND THEIR REQUEST FOR MONE- TARY DAMAGES IS BARRED BY THE ELEVENTH AMENDMENT. Before the filing of the appeal to the Seventh Circuit, the 1988 Election was held, presidential electors from Indiana were elected, the electors cast Indiana’s twelve Electoral Votes for the Republican nominees for President and Vice-President, the Electoral College as a whole has elected George Bush and Dan Quayle President and Vice-President, and they have now been sworn into those offices. Hence, to the extent the Fulani Plaintiffs seek review of the denial of their request for injunctive or other equitable relief with respect to the 1988 election, the issue is now moot. See Griertsen v. Board of Election Commissioners of City of Chi- cago, 751 F.2d 199, 202 (7th Cir. 1984) (appeal from injunction preventing enforcement of election law requirement in primary election dismissed as moot, because primary election had been held since the filing of the appeal). See also Timms v. Metro- politan School District of Wabash County, Indiana, 722 F.2d 1310, 1314 (7th Cir. 1983) (“It is settled that our jurisdiction requires ‘an actual controversy . . . to exist at all stages of the appellate review”') (citation omitted) (affirming dismissal of handicap discrimination claim under, inter alia, 42 U.S.C. §1983, and holding that appeal of request for injunction to prevent child’s exclusion from instruction program was mooted when she passed maximum age of program eligibility). The Fulani Plaintiffs cannot avoid mootness by invoking the “capable of repetition, yet evading review” doctrine of South- ern Pacific Terminal Company v. Interstate Commerce Com- mission, 219 U.S. 498, 515 (1911). The circumstances of this case, both the major parties missing the apparent state law deadline for certifying their presidential elector slates to the Secretary of State of Indiana, are so unusual as make it almost inconceivable that they could be replicated in the future. This court has held that a case must satisfy two tests to avoid mootness under the “capable of repetition, yet evading review” doctrine: (1) the challenged action must have been in its dura- tion too short to be fully litigated prior to its cessation or expiration, and (2) there must be a reasonable expectation that the same complaining party would be subject to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149 (1975). This test, as articulated in Weinstein v. Bradford, was applied by the Supreme Court in /llinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173 (1979): “Although the first branch of the test is satisfied here, appellant has presented no evidence that the Chicago Board will repeat its allegedly unauthorized actions in the future.” Jd. 440 U.S. at 187. Simi- larly, the Fulani Plaintiffs in the instant case have made, and can make, absolutely no showing that anything remotely sim- ilar to the unique factual circumstances of this case is likely to occur in the future. Hence, the likelihood that the Fulani Plain- tiffs will again be subject to the same actions by the State Defendants is nil. Nor does the existence of a claim for damages revive the case. The State Defendants, of course, recognize that a claim for damages may survive a mootness attack. Powell ». McCor- mack, 395 U.S. 846 (1969). Such a claim, however, may only keep a case alive to the extent of determining whether there is a viable damage claim. If a valid immunity defense exists, the damage claim will be barred and will not resuscitate the rest of the case. Chase v. McMasters, 573 F.2d 1011, 1015, 1020 (&th Cir. 1978). “A determination that the Defendants are immune like- wise terminates any sustaining aid from a damages claims.” 13A C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure, §3533.3 “Mootness — Changed Circumstances,” at 269 (2nd Ed. 1984). In this case, the State Defendants are sued in their official capacities only. The damage claims against them are, therefore, barred by the Eleventh Amendment to the Constitution of the United States. Kentucky v. Graham, 473 U.S. 159 (1985). The Fulani Plaintiffs cannot save their other claims from being mooted by the events subsequent to the filing of this case in the District Court. The Fulani Plaintiffs may not rely on Ex parte Young, 209 U.S. 123 (1908), to avoid the Eleventh Amendment problem under the doctrine that a suit brought against state officials, even in their official capacities, to enjoin them prospectively from enforcing an unconstitutional statute, is not barred by the Eleventh Amendment. This Court, discussing the Young case, has noted that “the theory of Young has not been provided an expansive interpretation.” Pennhurst State School and Hospi- tal v. Halderman, 465 U.S. 89, 102 (1984). The Court specifi- cally noted, at 465 U.S. at 102-103, that while the Young doctrine permitted prospective injunctive relief, it did not extend to retroactive monetary relief, 104 S.Ct. at 909, citing Edeiman v. Jordan, 415 U.S. 651, 666-667 (1974). Thus, the damage claim is barred by the Eleventh Amendment, and the rest of the Fulani Plaintiffs’ case is moot. If. THE DECISION BELOW IS NOT INCONSISTENT WITH THE DECISION OF THE EIGHTH CIRCUIT. The Fulani Plaintiffs admit that the decision below and the decision in Manifold v. Blunt, 863 F.2d 1368 (8th Cir. 1989), cert. denied, US. , 110 S.Ct. 242, 107 L.Ed.2d 192 (1989), are not contradictory. (Page 50, Petition for Writ Cer- tiorari). Indeed, Manifold dealt with an equal protection chal- lenge to a statute requiring new parties to submit the names of their presidential electors prior to established parties. The Eighth Circuit found that such a requirement did not violate equal protection. No such statute or requirement is present in this case and the issues involved in the two cases are not relevant to one another. Petitioners are trying to assert that, because Missouri offi- cials chose to strictly enforce their filing deadline for the names of presidential electors, as a matter of federal law Indiana election officials must do the same. The Constitution does not require that each of the states conform to a single method and manner of selecting presidential electors. U.S. CONST. ART. Il SECTION 1, CLAUSE 2. Petitioners’ alleged conflict between the strict and liberal enforcement of the filing dead- lines in Missouri and Indiana simply does not present a signifi- cant federal question worthy of this Court’s review. IV. PETITIONERS’ ENTIRE CASE RESTED ON CON- CLUSORY AND SPECULATIVE ALLEGATIONS BASED UPON A HYPOTHETICAL SET OF FACTS INSUFFICIENT TO INVOKE FEDERAL SUBJECT MATTER JURISDICTION. The basis for every claim asserted by the Fulani Plaintiffs in this case was their conclusory, speculative and hypothetical allegation that “[uJpon information and belief, had the Fulani- Moore campaign failed to file the New Alliance Party candi- dates for presidential electors in a timely fashion. . ., Fulani and Moore would not have been listed on the Indiana ballot.” App. 19a. The undisputed evidence shows that the New Alliance Party candidates for presidential electors were cer- tified in a timely fashion and Fulani and Moore were listed on the Indiana ballot. The patently speculative and hypothetical nature of this core allegation demonstrates that the Complaint failed on its face to satisfy the first test of any Federal action namely, presentation of a justiciable case or controversy over 10 which an Article III court may constitutionally exercise sub- ject matter jurisdiction. To establish subject matter jurisdiction, a party must estab- lish that an actual case or controversy exists between the plaintiff and defendant. Warth v. Seldin, 422 U.S. 490, 498 (1975). The controversy between plaintiffs and defendants must be more than imaginary or speculative. There must be a “live and acute controversy” to satisfy Article III standing. Steffel v. Thompson, 415 U.S. 452, 459 (1974). The case or controversy requirement is designed to insure that the federal courts do not issue advisory opinions on situations not before the court. Federal courts may not render “an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241 (1937). The rule against “decid[ing] abstract, hypothetical or con- tingent questions” is “no less strict in a declaratory judgment proceeding than in any other type of suit,” Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945); see also, Golden v. Zwickler, 394 U.S. 103, 108 (1969); United Public Workers v. Mitchell, 330 U.S. 75, 89 (1947). To establish an actual controversy “the disagreement must not be nebulous or contingent but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effects it decision will have on the adversaries, and some useful purpose to be achieved in deciding them.” Public Service Commission of Utah, et al. v. Wycoff Co. Inc., 344 U.S. 237, 244 (1952). The hypothetical and advisory nature of the Complaint here is easily discernible. The underlying cause of action was clearly conditioned on events that had not occurred, 7.e., the spec- ulative allegation that the respondents “would not” have put the Fulani Plaintiffs’ candidates for President and Vice-Presi- dent on the ballot iftheir presidential elector nominees had not been certified by August 1. In fact, the elector nominees were so certified and its candidates for President and Vice-President were on the ballot. In most cases, the courts refused to exercise jurisdiction 1] because the action rested on contingent future events that had not yet occurred and might or might not take place. Here, the Fulani Plaintiffs’ action rested soley on speculation about hypo- thetical past events that concededly did not occur, had no possibility whatever of occurring in she future, and were con- tradicted by the events that occurred in fact. As the District court correctly concluded: The plaintiffs’ alleged disparate treatment is premised on a hypothetical situation. The plaintiffs request the Court to act based on the plaintiffs’ beliefs of what the defen- dants would have done in a hypothetical situation. This case is in a somewhat peculiar posture in that most requests for advisory opinions present prospective hypo- thetical events. This case, however, combines retro- spective or past events with a request for judgment on what might have happened if past events had occurred differently. Regardless of the timing of the hypothetical occurrences, the allegations in this suit do not present an actual case or controversy for adjudication, and thus the Court is without subject matter jurisdiction to hear the claim. App. 22a-238a. The Fulani Plaintiffs have framed the question that they wish to present to this Court as one concerning the alleged misapplication of laches by the Seventh Circuit to bar declara- tory relief. This question, especially in this case, is simply not worthy of this Court’s consideration. The reasons and argu- ments that petitioners advance in favor of granting the writ rest on conclusory and speculative allegations based upon a hypothetical state of facts which is insufficient to invoke federal jurisdiction under Article III] of the Constitution. This case is clearly not worthy of review by this Court. 12 V. PETITIONERS FAILED TO PRESENT ANY CIR- CUMSTANCES OR FACTS THAT WOULD ESTAB- LISH A VIOLATION OF THEIR CIVIL RIGHTS OR OTHERWISE PRESENT A SIGNIFICANT QUES- TION OF FEDERAL LAW. The Fulani Plaintiffs failed to allege any particularized facts to support their conclusory allegation of civil rights depriva- tions by the State Defendants. Nor could the Fulani Plaintiffs possibly allege any particularized facts, as the basis for all of their claims was pure speculation about what the State Defen- dants might have done given a totally different set of facts. The District Court properly concluded below that the Fulani Plain- tiffs “failed to allege any facts with the particularity of inten- tional and purposeful discrimination sufficient to invoke the equal protection clause.” App. 26a. This Court previously stated in Snowden v. Hughes, 321 U.S. 1 (1944): The unlawful administration by state officers of a state statute fair on its face resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. Id. 321 U.S. at 8. This Court went on to state: The lack of any allegations in the complaint here, tending to show a purposeful discrimination between persons or classes of persons is not supplied by the opprobrious epithets “willful” and “malicious” applied to the Board's failure to certify petitioner as a successful candidate, or by characterizing that failure as unequal, unjust, and oppressive administration of the laws of Illinois. These epithets disclose nothing as to the purpose or conse- quences of the failure to certify, other than that petitioner has been deprived of the nomination and election. Id. 321 U.S. at 10. 13 The Fulani Plaintiffs’ conclusory allegations about the hypothesized conduct of the State Defendants does not allege the type of invidious discrimination necessary to state a claim for a violation of the equal protection clause under 42 U.S.C. $1983. Snowden, supra; see also Baum v. Lundig, 535 F.2d 1016, 1019 (7th Cir. 1976); Gamza v. Aquirre, 619 F.2d 449, 454 (5th Cir. 1980). Leaving aside the hypothetical nature of the allegations, it is clear that the Fulani Plaintiffs did not begin to allege, much less “with particularity,” any “intentional and purposeful, overt actions” by the State Defendants that could establish the requi- site “element of intentional or purposeful discrimination.” Nowhere was there any allegation of any specific facts showing that the State Defendants, in certifying the Republican and Democratic Party Candidates for presidential electors, were intentionally or purposefully discriminating against the Fulani Plaintiffs on the basis of race, sex, national origin, political belief or any other invidious classification conceivably redressable via a §1983 action. Nor were there any facts alleged to support any alleged violation of the Fulani Plaintiffs’ rights under the First Amendment. Furthermore, as noted by the District Court, the equal protection claims were without merit because “|t|he Equal Protection Clause only guarantees like treatment to persons similarly situated.” App. 28a. Because the presidential elector nominees of those parties involved were not certified at the same time (either all before or all after August 1), the Fulani Plaintiffs elector nominees were not similarly situated to their major party counterparts for the purposes of an equal protec- tion claim. Had the Republican, Democratic and New Alliance arty presidential elector candidates all been certified on the same date, and had the State Defendants put the major party but not the minor party candidates on the ballot, a complaint alleging equal protection and similar claims might have stated a claim upon which relief could be granted, But it is clear that these events did not take place. 14 Aside from the hypothetical nature of the claims, the Fulani Plaintiffs misinterpret and misstate Indiana election law. They alleged that “[t]he Indiana cases insist on strict enforcement of filing deadlines and other ballot access deadlines.” (Page 39 of Petition for Writ of Certiorari). Petitioners also made this claim below. Indiana courts would not have necessarily treated the slight delay in advising the Secretary of State of the identity of already duly nominated Republican and Democratic presiden- tial elector candidates (whose names did not even appear on the Indiana ballot) as grounds for precluding Indiana citizens from voting for either of the major party candidates for President and Vice-President in the 1988 Election. The Indiana Supreme Court has held that an election offi- cial’s acceptance of candidate filings that fail to comply strictly with statutory requirements will effectively cure the defect if the underlying purposes of the law are fulfilled: The town clerk, acting as [the election] board, might doubtless have refused to accept the [nomination] certifi- cate until rendered in due form, but, having accepted it without objection, and as satisfactory to him, the purpose of the law was fulfilled. It enabled him to place upon the official ballot the names of the several candidates that had actually been nominated, and which of right should have been placed there; and, the correct result having been reached, the form of procedure becomes unimportant. Jones v. State ex rel. Wilson, 153 Ind. 440, 448-49, 55 N.E. 229, 232 (1899). In the present case, the Indiana Secretary of State likewise accepted “without objection” and as “satisfactory” the certifications of the major party presidential elector candidates “that had been actually nominated” (in this case by their respective State Party Conventions). And, since the names of candidates for electors did not even appear on the Indiana ballot, it is abundantly clear that his doing so fulfilled “the purpose of the law”; ?.e., ensuring that elector candidates had in fact been nominated for the Presidential and Vice-Presiden- ae eee reel tial candidates whose names did appear on the ballot. Furthermore, Indiana law is clear that even those require- ments that may be considered “mandatory” if a challenge is brought before election officials have placed a candidate's name on the ballot will not be so viewed after ballots are prepared: In an action against [election officials], brought before an election, involving the names of the candidates to be placed on the ballot by them, the statutory provisions referred to are treated as mandatory, and they will be enjoined from p/acing a name upon the ballot'that had not been submitted to them pursuant to the statute, but after the election commissioners have acted and placed a name upon the ballot, and after the election, the provisions of the statue are considered directory only, and the names of candidates will be treated as having been legally placed upon the ballot by the election board “unless an essential element of the election is affected, or there is an express declaration in the statute that the act is essential to a valid election, or that its omission will render the election void.” Lumm v. Simpson, 207 Ind. 680, 683-84, 194 N.E. 341, 342 (1935) (emphasis added; citations omitted). In this case, the State Defendants had already placed the names of the Republican and Democratic candidates for President and Vice- President on the Indiana ballot. Indeed, since absentee voting in Indiana started before the regular polling date, the 198 Election was already underway in Indiana when this action was filed.4 ' Plaintiffs insistence that every provision of every Indiana election stat- ute demands rigid and literal compliance in every circumstance is not advanced by their reliance on Manifold v. Bliant, 863 F.2d 1368 (8th Cir, 1988) cert, denved, WOS.Ct. 242 (1989). The holdings in Manifold and similar Federal cases, that a State's strict enforcement of a given election law requirement may be constitutionally permussible, scarcely supports any proposition that strict enforcement of the literal requirements of the Indiana filing provision Plaintiffs sought to put at issue here is somehow constitutionally required. Furthermore, the decisions of State officials in Missouri or in any other State other than Indiana about the election statutes of those States have no bearing in any event on the decisions of Indiana State officials on the proper interpretation and application of Indiana election statutes. 16 Indiana cases also emphasize that the purpose of Indiana election laws is to ensure that voters have a free and fair opportunity to express their collective will, and that election statutes will be liberally construed to achieve that objective: the purpose of the law and the efforts of the court are to secure to the elector an opportunity to freely and fairly cast his ballot, and to uphold the will of the electorate and prevent disfranchisement. In the absence of fraud, actual or suggested, statutes will be liberally construed to accomplish this purpose. State ex rel. Harry v. Ice, 207 Ind. 65, 71, 191 N.E. 155, 157 1954). Accord, eg., Lumm v. Simpson, supra, 207 Ind. at 683, 194 N.E. at 342; Jones v. State ex rel. Wilson, supra, 153 Ind. at 446, 55 N.E. at 231. Indeed, it is most likely that the Indiana courts would reject, as inimical to the fundamental election law purpose of giving the electorate a free opportunity t0 choose its political leaders, a draconian statutory construction that would have required the removal of George Bush and Michael Dukakis from the ballot. If there remains any doubt as to how the Indiana Courts would resolve the state law issue, the Federal Courts must then abstain from deciding the issue under Railroad Commis- sion of Texas v. Pullman Co., 312 U.S. 496 (1941). lhe Fulani Plaintiffs failed to allege any facts to establish a violation of their civil rights under either the First or the Fourteenth Amendments or otherwise present a significant question of federal law. Therefore, the Petition for Writ of Certiorari to the Seventh Circuit should be denied, as the District Court correctly decided the case below even if the Seventh Circuit erred in its laches determination. 17 CONCLUSION For the foregoing reasons, respondents respectfully urge that the Petition for Writ of Certiorari be denied. Respectfully submitted, LINLEY E. PEARSON Attorney General of Indiana ROBERT S. SPEAR Chief Counsel (Counsel of Record) JOHN M. WHITE Deputy Attorney General Office of Indiana Attorney General 219 State House Indianapolis, IN 46204 (317) 232-6316 Attorneys for Respondents Joseph H. Hogsett, Evan Bayh, Alan Mills, Timothy Durham and Robert L. Wright --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1948%3A2. Public record. Not legal advice.