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IN THE UNITED STATES DISTRICT COURT

DISTRICT OF NEW MEXICO

DORA ESCOBEDO and LYDIA
OLIVAREZ,
Plaintiffs,
v. Case No. CV 08-1002 WJ /ACT
PATRICK J . ROGERS and
AL ROMERO,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS MOTION TO
DISMISS FIRST AMENDED COMPLAINT
THIS MATTER comes before the Court on Defendants Motion to Dismiss First
Amended Complaint [Doc. 44], filed on March 23, 2009. Having considered the parties briefs
and the applicable law, the Court finds that the Motion is well taken and shall be GRANTED.
BACKGROUND
Plaintiffs claim that, [p]rior to the November 4, 2008 General Election, Defendants
publicly questioned Plaintiffs eligibility to vote, released to the media Plaintiffs names,
addresses, and telephone numbers with the statement that this information was connected to
voter fraud, threatened to turn over Plaintiffs voter registration information to law enforcement
officials for investigation into voter fraud, and appeared at Plaintiffs homes to further intimidate
them from voting. Amended Complaint [Doc. 41] at 1. Plaintiffs allege that these behaviors by
Defendants violated the Voting Rights Act of 1965, 42 U.S.C. 1971(b) and 1973i(b), as well
as 42 U.S.C. 1985. Plaintiffs further allege that they fear: (1) continuing harassment in the
form of public association of their names with accusation of voter fraud and unwanted visits to
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their homes by Defendants; and (2) that Defendants would challenge their eligibility to vote in
the November 2008 General Election and seek to invalidate their ballots before they were
counted. Amended Complaint at 5. Plaintiffs seek a declaration that Defendants violated the
Voting Rights Act and 42 U.S.C. 1985(3), as well as an injunction prohibiting Defendants
from further threatening Plaintiffs or challenging Plaintiffs eligibility to vote. Id. Defendants
move to dismiss Plaintiffs complaint for injunctive relief, arguing that Plaintiffs lack standing to
seek such relief, that Plaintiffs claim is moot, and that the Amended Complaint should be
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because it fails to state a claim
upon which relief can be granted.
ANALYSIS
I. HARASSMENT CLAIM
The Court will first consider whether Plaintiffs are entitled to an injunction to prevent
Defendants from further threatening or, as the Court will loosely use the term, harassing them by
publicly distributing information about them and calling into question their eligibility to vote,
and by making unwanted visits to their homes. For the reasons stated below, the Court finds that
Plaintiffs do not have standing to bring such a claim and it should therefore be dismissed.
In order to satisfy Article IIIs standing requirements, a plaintiff must show that: (1) she
has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent,
not hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Whether or not standing
exists depends in part upon the type of relief sought. See Friends of the Earth, Inc. v. Laidlaw
Environmental Services, Inc., 528 U.S. 167, 185 ([A] plaintiff must demonstrate standing
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separately for each form of relief sought.) (citing Lyons, 461 U.S. at 109). Where injunctive
relief is sought, it is the plaintiffs burden to establish standing by demonstrating that, if
unchecked by the litigation, the defendants allegedly wrongful behavior will likely occur or
continue, and that the threatened injury is certainly impending. Laidlaw, 528 U.S. at 190
(internal citations and quotations omitted). For example, in Los Angeles v. Lyons, the Supreme
Court held that a plaintiff lacked standing to seek an injunction against the enforcement of a
police chokehold policy because he had not credibly allege[d] that he faced a realistic threat
from the future application of the Citys policy. 461 U.S. 95, 107 n.7 (1983). The Lyons Court
further noted, It is the reality of the threat of repeated injury that is relevant to the standing
inquiry, not the plaintiffs subjective apprehensions. Id. at 108 n.8 (emphasis in original).
With respect to the alleged harassment, Plaintiffs Amended Complaint fails to
demonstrate any imminent injury. The events giving rise to this law suit took place in the weeks
leading up to the 2008 General Election, an election which generated historic numbers of newly
registered voters and, not surprisingly, a particularly strong interest on the part of both major
political parties in preventing and exposing voter fraud. There does not appear to be much
disagreement between the parties that both the media attention and the unwanted home visits
received by the Plaintiffs were directly related to the 2008 General Election. Plaintiffs have
presented no evidence, other than their own subjective worries, that these activities are likely to
continue now that the Election is over. Indeed, at the November 4, 2008 injunction hearing,
Defendant Patrick Rogers testified that he has never been to the home of either Plaintiff and had
no intention of ever doing so. At that same hearing, Defendant Al Romero testified that,
although he had previously visited the homes of the Plaintiffs, he had no intention of ever doing
so again. No evidence to the contrary was presented. Therefore, much like the plaintiff in Lyons,
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Plaintiffs have not met their burden of demonstrating a realistic, immediate threat of future harm.
This is one of the circumstances, described by J ustice Ginsburg in Laidlaw, where the prospect
that a defendant will engage in (or resume) harmful conduct [is] too speculative to support
standing. Laidlaw, 528 U.S. at 190.
II. UNFAIR INVALIDATION OF BALLOTS
Plaintiffs also seek an injunction to prevent the ballots they cast in the 2008 General
Election from being unfairly challenged and invalidated by Defendants. At the time Plaintiffs
filed their complaint in this case, the 2008 General Election was still upcoming, and it may be
that at the time Plaintiffs had a colorable argument that there was an impending threat that their
ballots would be improperly invalidated. However, even if Plaintiffs could at one point have
obtained an injunction to prevent the unjust invalidation of their ballots, this concern is now
moot.
It is axiomatic that federal courts are without power to decide questions that cannot
affect the rights of litigants in the case before them. DeFunis v. Odegaard, 416 U.S. 312, 316
(1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971). See also Oyler v. Allenbrand,
23 F.3d 292, 294 (10th Cir. 1994) (stating that a case becomes moot when the issues presented
are no longer live or the parties lack a legally cognizable interest in the outcome, and further
stating that mootness deprives a court of jurisdiction) (quoting Nakell v. Attorney General, 15
F.3d 319, 323 (4th Cir. 1994). The 2008 General Election has been over for almost six months
now. The issue of whether Plaintiffs would be prevented from voting in the 2008 General
Election has long since ceased to be live, and any power this Court ever had to affect
Plaintiffs participation in that Election dissipated when the Election ended. Moreover, the
testimony at the injunction hearing held on November 4, 2008 indicated that Plaintiff Olivarezs
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absentee ballot had already been accepted and tabulated by the Bernalillo County Clerk and that
Plaintiff Escobedo intended to vote using a provisional ballot. Since the undisputed evidence
established that Plaintiff Olivarezs vote in the 2008 General Election was counted, and since no
evidence was presented indicating that Plaintiff Escobedos provisional ballot was not counted,
the issue of whether Plaintiffs ballots were unfairly disqualified is doubly moot. Accordingly,
the Court finds that Plaintiffs claim for injunctive relief to prevent Defendants from unfairly
disqualifying Plaintiffs ballots is denied as moot.
Finally, in paragraph F of their Prayer for Relief, Plaintiffs request that the Court enjoin
Defendants, their officers, agents, employees and all persons in active concert with them, from
undertaking activities which are designed to intimidate, threaten or coerce voters concerning
their right to vote in an election or which are designed to in any way interfere with or discourage
lawful exercise of the franchise. The Court declines to do so. To grant such broad relief would
seem to violate well established principles of prudential standing, which generally prohibit a
plaintiff from asserting another persons legal rights or from adjudicating a generalized
grievance. See Allen v. Wright, 468 U.S. 737, 751 (1984); Bd. of County Commrs of
Sweetwater County v. Geringer, 297 F.3d 1108, 1112 (10th Cir. 2002) (reiterating and detailing
the requirements of prudential standing). Furthermore, Defendants do have a right to investigate
possible voter fraud for purposes of determining the viability of a potential law suit, and they
also have a right to challenge a ballot whose validity is genuinely in question using the process
established by the Board of Elections. Therefore, the Court believes there is a significant risk
that an injunction of the kind requested by Plaintiffs in paragraph F, broadly prohibiting
Defendants from doing anything that might interfere with the exercise of the franchise by any
voter, would constitute an unconstitutional prior restraint on Defendants First Amendment right
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The Court also notes that, to the extent Plaintiffs Complaint is a request for declaratory relief, it is
dismissed for the same reasonslack of standing and mootnessthat for the basis for the Courts dismissal of
Plaintiffs request for injunctive relief.
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to free speech. See OConnor v. City and County of Denver, 894 F.2d 1210, 1220 (10th Cir.
1990) (Governmental action constitutes a prior restraint when it is directed to suppressing
speech because of its content before the speech is communicated.) (internal citations and
quotations omitted).
Having determined that Plaintiffs claims should be dismissed on standing and mootness
grounds, the Court finds that there is no need to reach the question of whether dismissal for
failure to state a claim pursuant to Rule 12(b)(6) would be appropriate.
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CONCLUSION
Plaintiffs lack standing to pursue their claim for an injunction against intimidation and
harassment because they have failed to establish any imminent harm. Plaintiffs claim for an
injunction against the alleged unfair disqualification of their ballots in the 2008 General Election
is moot because: (1) that election is long since over; and (2) the record indicates that Plaintiff
Olivarez cast an absentee ballot in the 2008 General Election, and that it was counted; and (3)
the record further indicates that, as of November 4, 2008, Plaintiff Escobedo intended to vote by
provisional ballot, and there is no evidence that she was prevented from doing so or that her vote
was not counted.
THEREFORE, IT IS ORDERED that Defendants Motion to Dismiss the First Amended
Complaint [Doc. 44] is hereby GRANTED, thereby resulting in dismissal of this case.
_______________________________
UNITED STATES DISTRICT J UDGE
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