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Charles H. Bell, Jr. (Cal. Bar No. 060553) Brian T. Hildreth (Cal. Bar No. 214131) Bell, McAndrews, & Hiltachk, LLP 455 Capitol Mall, Suite 600 Sacramento, CA 95814 Telephone: (916) 442-7757 Facsimile: (916) 442-7759 Attorneys for Defendants, REPUBLICAN NATIONAL COMMITTEE,ET AL.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION RONALD REAGAN COURTHOUSE Case No. SACV 12 00927 DOC (JPRx) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION TO DISMISS COMPLAINT PURSUANT TO FED. R. CIV. P. 8(A), 9(B) AND 12(B)(6) Date: August 6, 2012 Time: 8:30 a.m. Dept: Courtroom 9D Judge: Honorable David O. Carter

DELEGATES TO THE REPUBLICAN ) NATIONAL CONVENTION, et al., ) ) Plaintiffs, ) ) vs. ) ) REPUBLICAN NATIONAL ) COMMITTEE, et al., ) ) Defendants. ) ) ) ) )

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TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................... ii INTRODUCTION ............................................................................................... 1 STATEMENT OF THE CASE ........................................................................... 1 A. B. C. I. The Republican Party Presidential Nominating Process ................ 1 Procedures for Resolving Disputes Concerning Delegates ............ 3 The Complaint................................................................................. 4

THIS CASE SHOULD BE DISMISSED BECAUSE PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED ANY VIOLATIONS OF FEDERAL LAW ............................................. 5 PLAINTIFFS HAVE NOT PLED FRAUD WITH THE REQUISITE PARTICULARLITY ....................................... 10 THIS COURT SHOULD DISMISS PLAINTIFFS CHALLENGES TO THE DELEGATE SELECTION PROCESS AND ALLEGED VIOLATIONS OF PARTY RULES IN VARIOUS STATE CONVENTIONS ................................... 12 PLAINTIFFS ARE NOT ENTITLED TO HAVE DELEGATES TO THE REPUBLICAN NATIONAL CONVENTION BE UNBOUND AND FREE TO IGNORE THE RESULTS OF THEIR STATES PRESIDENTIAL PREFERENCE PRIMARY ELECTIONS .................. 15

II. III.

12 13 14 15 16

IV.

CONCLUSION.................................................................................................... 20
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TABLE OF AUTHORITIES CASES Ashcroft v. Iqbal 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) .................... passim Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) ..................... passim Bell v. Univ. of Cal. Davis Med. Ctr., No. CIV S-11-1864 (MCE) (DAD) (PS), 2012 U.S. Dist. LEXIS 52577 (E.D. Cal. Apr. 12, 2012) .............................................................................. 10 Bly-Magee v. Cal., 236 F.3d 1014 (9th Cir. 2001) ............................................................ 6, 11, 12 California Democratic Party v. Jones, 530 U.S. 567, 120 S. Ct. 2402, 147 L. Ed.2d 502 (2000) ............................ 14 Cousins v. Wigoda, 419 U.S. 477, 95 S. Ct. 541, 42 L. Ed. 2d 595 (1975) ............................ 14, 15 Crockett v. California, No. CV 12-1741-DOC (SP), 2012 U.S. Dist. LEXIS 81412 (C.D. Cal. May 22, 2012) ............................ 10 Democratic Party of United States v. Wisconsin, 450 U.S. 107, 101 S. Ct. 1010, 67 L. Ed. 2d 82 (1981) .......................... 13, 14 Ebeid v. Lungwitz, 616 F.3d 93 (9th Cir. 2010) ........................................................................... 11 Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989) ............................ 14 Morse v. Republican Party of Virginia, 517 U.S. 186, 116 S. Ct. 1186, 134 L. Ed. 2d 347 (1985) ..................... 17, 18 N.Y. State Board of Elections v. Lopez Torres, 552 U.S. 196, 128 S. Ct. 791, 169 L. Ed. 2d 665 (2008) ...................... 14 16 OBrien v. Brown, 409 U.S. 1, 92 S. Ct. 2718, 34 L. Ed. 2d 1 (1972) ........................... 14, 16, 19 Ossenberg v. Hunter, No. SA CV 10-957-DOC(E), 2010 U.S. Dist. LEXIS 70485 (C.D. Cal. July 8, 2010) ............................... 10 Ray v. Blair, 343 U.S. 214, 72 S. Ct. 654, 96 L. Ed. 894 (1952) ................................. 20, 21 Republican State Cent. Comm. v. Ripon Socy, Inc., 409 U.S. 1222, 93 S. Ct. 1475, 34 L. Ed. 2d 717 (1972) .................. 15, 16, 19
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Savage v. Glendale Union High Sch. Dist., 343 F.3d 1036 (9th Cir. 2003) ........................................................................ 5 U.S. ex rel. SmithKline Beecham, Inc., 245 F.3d 1048 (9th Cir. 2001) ....................................................................... 12 William O. Gilley Enters. v. Atl. Richfield Co., 588 F.3d 659, 667-68 (9th Cir. 2009) ............................................................. 9 FEDERAL CONSTITUTIONAL PROVISIONS

U.S. Const., amend XIV ............................................................................................ 1

7

U.S. Const., amend. XII ........................................................................................... 20

8

U.S. Const., art. II, 1 ............................................................................................. 20

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FEDERAL STATUTES
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28 U.S.C. 1331...................................................................................................... 19
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42 U.S.C. 1971...................................................................................... 6 -7, 17 - 18

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42 U.S.C. 1973c .................................................................................................... 18

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STATE STATUTES
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Ariz. Rev. Stat. 16-243(B) ....................................................................................... 3

15 Calif. Elec. Code, 6461(c) ............................................................................................................ 3 16

Del. Code Ann. tit. 15, 3107 ................................................................................... 3

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N.H. Rev. Stat. Ann. 659:93 ................................................................................... 3

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N.H. Rev. Stat. Ann. 655.51 ................................................................................... 3

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N.M. Stat. 1-15A-9(C)(1) .......................................................................................... 3

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Oregon Rev. Stat. 248.315(3) ................................................................................. 3

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RULES
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Fed. R. Civ. P. 9(b) ........................................................................................... passim

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Fed. R. Civ. P. 8(a) ........................................................................................... passim

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Fed. R. Civ. P. 10(b) .................................................................................................. 7

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Fed. R. Civ. P. 12(b)(6) ............................................................................................. 6

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REGULATIONS
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11 C.F.R. 100.2(e) .......................................................................................... 17, 18

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OTHER AUTHORITIES

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The Rules of the Republican Party (Aug. 6, 2010) .......................................... passim

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Rules of the Republican Party of the State of Del., Art. XI, 3................................ 3
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Rules of the Republican Party of Texas, Rule 38, 10 ............................................. 3

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INTRODUCTION This lawsuit is a quixotic crusade for a court order allowing delegates to the 2012 Republican National Convention in Tampa, Florida (Convention), to be held this upcoming August, to ignore the results of their respective states presidential preference primary elections and vote for whomever they wish as the Republican nominee for President of the United States. See Compl. at 14-15, 25.

Plaintiffs also ask this Court to order that new state conventions be held in various unspecified states throughout the country, because the delegate selection process at those conventions allegedly was unfair, inaccurate, and executed in violation of party rules. The extraordinary relief Plaintiffs seek would represent a dramatic and unprecedented intrusion into the internal affairs of the Republican Party in direct violation of the First and Fourteenth Amendments, see U.S. Const., amend XIV, and is flatly contrary to over a half-century of established precedents. This Court need not even reach that issue, however, because Plaintiffs vague and rambling complaint wholly fails to state a valid cause of action within this Courts jurisdiction. The sweeping allegations that the thousands of named and John Doe Plaintiffs make against the Republican National Committee (RNC) and nearly every state-level Republican party and Republican state committee chair in the country do not even come close to satisfying the pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). To the extent they allege that Defendants engaged in election-related fraud, Plaintiffs have not even attempted to plead their claims with the particularity required by Fed. R. Civ. P. 9(b). STATEMENT OF THE CASE A. The Republican Party Presidential Nominating Process Every four years, the Republican National Committee (RNC) holds a national convention at which delegates from throughout the nation convene to vote
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on the Republican Partys candidates for President and Vice President of the United States. See Compl., Ex. 2, The Rules of the Republican Party, R. 12, at 14. (Aug. 6, 2010) (hereafter, RNC Rules). The RNC Rules provide a formula for calculating the number of delegates each state is entitled to send to the Convention. Id. at R. 13, at 14-15. Every state is entitled to three types of delegates: Automatic delegatesThe Republican National Committeeman, Republican National Committeewoman, and chairman of the state Republican Party from each state automatically are named delegates to the Convention, id. at R. 13(a)(2), at 15; Congressional district delegatesEach state is entitled to select three district delegates for each congressional district it has in the U.S. House of Representatives, id. at R. 13(a)(3), at 15; At-large delegatesEach state also is entitled to 10 at large delegates, id. at R. 13(a)(1), at 15, as well as additional bonus at-large delegates based on whether that State supported the Republican nominee for President in the last election cycle, and the extent to which it has elected Republican candidates to various state and federal-level offices, id. at R. 13(a)(5)-(6), at 15-16. Each state also may select one alternate delegate for each congressional

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district delegate and at-large delegate to which it is entitled. Id at R. 13(b), at 16.

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Special rules govern the allocation of delegates to the District of Columbia and U.S.
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territories, id. at R. 13(a)(4), at 15, R. 15(c)(6), at 21.

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The RNC Rules provide that each state shall select its congressional district
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and at-large delegates in accordance with the rules of the applicable Republican
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state party and, to the extent it is compatible with the applicable state party rules,
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state law. Id. R. 15(a)(1)-(3), at 18. Each state is free to decide how to select its
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delegates and alternates to the national Convention, including by holding a primary

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election, or holding congressional district and state conventions to select them. Id.
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R. 15(c)(1)(i), (iii), at 19.Regardless of the selection method, at-large delegates

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must be selected on a statewide basis, id. R.15(c)(8), at 21, while congressional

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district delegates must be elected by their respective districts, id. R. 15(c)(9), at 21.
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Crucially, the RNC Rules provide that either a state party or state law may
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bind delegates to the National Convention to vote in accordance with the outcome
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of that states presidential preference primary election. Id. R. 15(a)(1)-(4), at 18, R.15(c)(1)(i) at 19; see also R. 14(a) at 17. Consistent with Rule 15, many states require delegates to a political partys national convention to cast their votes for that partys nominee for President of the United States, at least on the first round of balloting at the Convention, in accordance with the results of that states presidential preference primary election. Some state laws and party rules provide that the candidate who receives the plurality in the states presidential primary election is entitled to have all the delegates from that state bound to him. See, e.g., Ariz. Rev. Stat. 16-243(B); Del. Code Ann. tit. 15, 3107 and Rules of the Republican Party of the State of Del., Art. XI, 3. Other state laws and party rules provide that any candidate who receives a minimum percentage of the vote in that states primary is entitled to have a proportional percentage of the delegates from that state bound to him. See, e.g., N.M. Stat. 1-15A-9(C)(1); N.H. Rev. Stat. Ann. 659:93. Some state laws and party rules reinforce these binding requirements by requiring delegates to the national Convention to sign pledges affirming that they will vote for the candidate to whom they are bound. See, e.g., Calif. Elec. Code, 6461(c); Oregon Rev. Stat. 248.315(3); N.H. Rev. Stat. Ann. 655.51; Rules of the Republican Party of Texas, Rule 38, 10. B. Procedures for Resolving Disputes Concerning Delegates

The RNC Rules establish procedures through which aggrieved individuals may challenge delegates elections. Challenges to congressional district delegates from a particular state generally must be brought before either that states convention or the state Republican committee. RNC Rules, supra R. 20, at 29. If, however, the contest arises of out of the irregular or unlawful action of the state committee or state convention, the [RNC] may take jurisdiction thereof and resolve the contest. Id. All contests affecting at-large delegates must be resolved by the RNC. Id Any resident of a state who was eligible to participate in that states delegate
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selection process may file an election contest with the RNC against delegates or alternates from that state. Id. R. 22(b), at 30. To initiate a contest, a petitioner must file a notice with the Secretary of the RNC and send a copy to the challenged delegate at least 30 days before the Convention. Id. R. 22(a), at 29. A few weeks before the Convention, both the challenger and the challenged delegates or alternates (collectively, the parties) must file statement[s] of position, along with supporting affidavits and other evidence, with the RNC Secretary. Id. R. 23(b), at 30. The RNCs Committee on Contests shall promptly hear each contest, identify the legal and factual issues involved, and prepare a report containing its recommendations concerning those issues. Id. R. 23(c)-(d), at 31. The parties have eight days to file written objections to the Contests Committee report. Id. R. 23(e), at 31. The RNC then votes on whether to accept the Contests Committees recommendations. Id. R. 23(c), (f), at 31-32. If a party disagrees with the RNCs determination, it may appeal that ruling to the national Conventions Credentials Committee. Id. R. 24(b), at 32.The Credentials Committee must issue a report resolving any such disputes, which the Convention as a whole must vote to approve or reject. Id. R. 26(a), at 33; see also id. R. 21, at 29. A person whose election as a delegate has been challenged before the RNC generally may not vote in either the Convention or any committee of the Convention until the contest is resolved. Id. R. 21, at 29. C. Complaint Because this is a Motion to Dismiss, Defendants must assume Plaintiffs factual allegations, to the extent they are intelligible, to be true. Savage v. Glendale Union High Sch. Dist., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). Defendants, and this court, need not so credit mere conclusory statements unsupported by wellpleaded factual allegations. Iqbal, 556 U.S. at 677. Based on the Complaint, there appear to be three main groups of plaintiffs:
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i. individuals who have been elected and certified as delegates to the Convention and will be credentialed as such, but wish to challenge state laws or party rules binding them to vote, at least in the first round of balloting, for a particular candidate for the Republican nomination for President, see Compl. 17, 25 (hereafter, Certified Plaintiffs); ii. individuals who received sufficient votes at a congressional district or state convention to be elected as delegates to the national Convention, but will not be credentialed, certified, or seated as delegates, because they refuse to pledge to cast their vote in accordance with the outcomes of their respective states presidential preference primary elections, as required by state law or state party rules, see id. at 17, 25 (hereafter, Uncertified Plaintiffs); and iii. individuals who did not receive sufficient votes at a congressional district or state convention to be elected as delegates to the national Convention, and complain that the delegate elections were not fair, were conducted in violation of party rules or state law, or were tainted by fraud, id. at 17, 25(hereafter, Unelected Plaintiffs). Compl. at 14. However inartfully, Plaintiffs seek a declaration that state laws and party rules which bind delegates to the Republican National Convention to cast their votes for the Republican Partys nominee for President in accordance with the results of those states respective presidential primary elections violate the federal Voting Rights Act, 42 U.S.C. 1971, and the Rules of the Republican National Committee (RNC). Compl. at 15-16, 18. Plaintiffs also ask this Court to impound all ballots and other voting-related materials from state conventions across the country, id. at 18, so that this Court may recount them and decide whether to require Defendants to hold new state conventions to elect different delegates to the national Convention, id. at 27-28, 5. I. THIS CASE SHOULD BE DISMISSED BECAUSE PLAINTIFFS HAVE NOT PLAUSIBLY ALLEGED ANY VIOLATIONS OF FEDERAL LAW. Plaintiffs complaint fails to state a plausible claim for relief under Fed. R. Civ. P. 8(a) and should therefore be dismissed.1 Plaintiffs sole intelligible claim under federal law, that Defendants have somehow violated the Voting Rights Act,
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A motion to dismiss for failure to meet the pleading requirements of either Rule 8(a) or 9(b) is, technically, a motion to dismiss for failure to state claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6). Bly-Magee v. Cal., 236 F.3d 1014, 1018 (9th Cir. 2001). 5
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42 U.S.C. 1971 (the VRA), is supported by little more than sweeping conclusory allegations masquerading as factual allegations. Because Plaintiffs VRA claim is unsupported by plausible factual allegations, this Court should dismiss Plaintiffs complaint under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal 556 U.S. 662 (2009). Under Fed. R. Civ. P. 8(a)(2) a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. While this pleading standard does not require detailed factual allegations, Twombly, 550 U.S. at 555, it does require more than an unadorned the-defendant-harmed-me accusation. Iqbal, 556 U.S. at 678. Simply put, in order to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. (quoting Twombly, 550 U.S. at 570). This plausibility standard requires more than a sheer possibility that a defendant has acted unlawfully. Id. Indeed, where a complaint pleads facts merely consistent with the defendants liability, it stops short of the line between possibility and plausibility of entitlement to relief required by Rule 8(a). Twombly, 550 U.S. at 557; see also Iqbal, 556 U.S. at 679. Furthermore, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Twombly, 550 U.S. at 557. To state a claim under the VRA, Plaintiffs must allege that Defendants acted, or attempted, to intimidate, threaten, [or] coerce Plaintiffs for the purpose of interfering with Plaintiffs right to vote as they choose for President in any primary, general, or special election.42 U.S.C. 1971. Hence, Plaintiffs must plead sufficient factual matter to show that [Defendants] intimidated, threatened or coerced Plaintiffs for the purpose of interfering with Plaintiffs right to vote for their choice for President. Iqbal, 556 U.S. at 677. A court considering a motion to dismiss can choose to begin by identifying pleadings [within the complaint] that, because they are no more than conclusions,
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are not entitled to the assumption of truth. Id. So too here; Plaintiffs complaint is a virtual litany of conclusory statements which should not be assumed to be true under Twombly and Iqbal: Plaintiffs include . . .Delegates elected, but being denied certification due to their refusal to surrender their voting rights in accordance with the free exercise of their conscience and not be bound to the nominee of Defendants [sic] choice. Comp. p. 14, lines 10-13.2 Defendants have intentionally violated Federal Laws [sic] and Supreme Court Decisions [sic] by seeking to bind Delegates to the Candidate [sic] of Defendants [sic] choice and these Defendants have refused to follow Federal Law [sic]. Comp. p. 16, lines 15-18. . . . in almost every state in the United States Defendants engaged in a scheme to intimidate and harass Delegates who were supporting a Candidate [sic] that Defendants did not approve of. Comp. p. 17, lines 3-5. Defendants have further harassed and intimidated Plaintiffs with untimely Rule [sic] changes designed to deny a quorum or to manipulate Delegates supporting a particular Candidate to be deprived of a fair election as a Delegate. Comp. p.17, lines 11-13. Defendants have unlawfully used State Bylaws [sic] and in some cases State Laws [sic] to harass and intimidate Delegates from voting their conscience. Comp. p. 17, lines 17-18. Defendants have altered the voting ballot results to fraudulently reflect an outcome that is inconsistent with the actual voting ballot results for the purpose of certifying a fraudulently selected slate of Delegates. . . Comp. p. 17, lines 24-26.

Every one of these statements is precisely the sort of bare assertion of illegality disregarded by the Court in Twombly and Iqbal. As in those cases, [i]t is the conclusory nature of [the] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth. Iqbal, 556 U.S. at 681. The court should therefore strip these conclusory statements from Plaintiffs complaint before evaluating its sufficiency under Rule 8(a). Though the conclusory statements catalogued above form the lions share of the pleadings in Plaintiffs complaint, some factual allegations remain. Under

Because Plaintiffs did not format their Complaint with numbered paragraphs as required by Fed. R. Civ. P. 10(b), Defendants cite to allegations by their location on certain pages of the complaint. 7
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Twombly and Iqbal, because these remaining factual allegations are consistent with both a vast conspiracy to disenfranchise Plaintiffs and the obvious alternative explanationthat Defendants lawfully sought to vindicate their legitimate interest Plaintiffs observation of party rules and proceduresPlaintiffs allegations do not plausibly suggest an entitlement to relief. Twombly, 550 U.S. at 567. These allegations include:3 Defendants harassment of Plaintiffs included the use of violence, intimidating demands that Delegates sign affidavits under penalty of perjury with the threat of criminal prosecution for perjury as well as financial penalties and fines if the Delegate fails to vote as instructed by Defendants rather than vote the Delegates conscience as mandated by the US Statutes [sic] and US Supreme Court Decisions [sic] cited. Comp. p. 17, lines 5-10. Defendants used threats of violence including dressing security type people in dark clothing searching out supporters of a Candidate Defendants do not approve of [sic] to harass and intimidate said Delegates from voting their conscience. Comp. p. 17, lines 14-16. . . . the RNC and its Chairman are . . . promoting and tolerating efforts to bind Delegates to a particular candidate instead of protecting Delegates from the intimidation Delegates are being subjected to. . . . Comp. p. 24, lines 12-15. The Republican National Committee and State Republican Parties [sic] have intimidated all Delegates to become bound to one candidate . . . . Comp. p. 24, lines 24-27. Many Delegates are required to sign Affidavits [sic] under Penalty of Perjury [sic] declaring the Delegate agrees to be bound to one candidate. Comp. p. 25, lines 1-2. Fines and criminal prosecutions are threatened against Delegates if they fail to vote as told rather than vote their conscience. Comp. p. 25, lines 2-4. Delegates who refuse to sign the Affidavit are told they may not serve as Delegates. . . . Comp. p. 25, lines 5-6 Certain Delegates have already been denied their credentials because they will not sign such an affidavit. Comp. p. 25, lines 7-8. Plaintiffs are suffering irreparable harm because their right to vote in accordance with their conscience on the first and all ballots of the Convention is being impeded by threats of monetary fines, criminal sanctions, and/or removal from their status as a Certified Delegate [sic]

Plaintiffs make other allegations consistent withbut insufficient to statea claim for election fraud. These are address in Section II, infra. 8
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to participate in the Convention unless they submit to State Party Rules, State Laws, [sic] or the demands of political operatives requiring signatures on affidavits promising to be bound to a particular candidate under penalty of perjury, all in violation of U.S. Federal Statutes [sic] and Supreme Court Rulings [sic]. Comp. p. 26, lines 11-18. While a generous reading of these pleadings may permit the court to infer the possibility of intimidation, threats or coercion in violation of the VRA, they do not render such violations of the VRA plausible. See Iqbal at 679 (where the wellpleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has allegedbut it has not shown that the pleader is entitled to relief.); see also William O. Gilley Enters. v. Atl. Richfield Co., 588 F.3d 659, 667-68 (9th Cir. 2009) (dismissing Sherman Act conspiracy claims noting the complaints claims of a vast conspiracy are not in keeping with the spirit of Twombly.) This case involves 122 named plaintiffs, over 110 named defendants, and a host of unnamed defendants. The Complaint broadly refers to various state conventions, delegate bindings, and numerous other independent events that all involved different people and occurred at different times, in different places around the country. These overbroad allegations are woefully insufficient to give any of the defendants even general notice as to the specific claims being raised against each of them. Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Bell v. Univ. of Cal. Davis Med. Ctr., No. CIV S-11-1864 (MCE) (DAD) (PS), 2012 U.S. Dist. LEXIS 52577, at *4 (E.D. Cal. Apr. 12, 2012). Particularly where a complaint names over a dozen defendants, it is subject to dismissal if it fails to identify any individual defendant or defendants when referring to specific causes of action and the actions allegedly taken against [the plaintiff]. Id.; see also Crockett v. California, No. CV 12-1741-DOC (SP), 2012
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U.S. Dist. LEXIS 81412, at *20 (C.D. Cal. May 22, 2012) (dismissing complaint and noting that, because plaintiff has failed to allege a single fact regarding any defendant individually, it is impossible for the court to be certain what plaintiff intends.); Ossenberg v. Hunter, No. SA CV 10-957-DOC(E), 2010 U.S. Dist. LEXIS 70485, at *6 (C.D. Cal. July 8, 2010) (dismissing complaint because it does not clearly allege what each Defendant allegedly did or did not do to harm Plaintiff). As discussed below, the RNC, the state parties and their members, like all political parties, enjoy broad freedom of association under the First and Fourteenth Amendments to the Constitution, including the right to choose the partys presidential candidate in a manner the party determines best. It should come as no surprise that, consistent with this freedom, some state parties have chosen to bind their delegates to the Republican National Convention to reflect the results of caucuses, straw polls and/or primary elections. On the facts alleged by Plaintiffs, the actions attributed to unspecified persons were likely lawfully undertaken by members of the Republican Party seeking to ensure that persons elected as delegates followed party rules and procedures. As between this obvious alternative explanation for the actions attributed to unspecified Defendants and the purposeful, invidious and illegal activities Plaintiffs ask the court to infer, that Defendants violated the VRA is simply not a plausible contention. Iqbal, 556 U.S. at 682. Hence, the Complaint fails to plausibly state a claim for violation of the VRA under Rule 8(a), and it should therefore be dismissed. II. PLAINTIFFS HAVE NOT PLED FRAUD WITH THE REQUISITE PARTICULARLITY In addition to their claim under the VRA, Plaintiffs Complaint also can be readgenerouslyto allege that Defendants have engaged in election fraud. To

26

the extent the court finds the Complaint makes such an allegation, these allegations
27

must not only meet the pleading requirements under Rule 8, but also must satisfy
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the heightened pleading requirements of Fed. R. Civ. P. 9(b). Bly-Magee v. Cal., 236 F.3d 1014, 1018 (9th Cir. 2001). In particular, Plaintiffs must plead the circumstances constituting [the alleged] fraud, with particularity, including the who, what, when, where and how of the alleged misconduct. Ebeid v. Lungwitz, 616 F.3d 93, 998 (9th Cir. 2010). These particularity requirements serve: not only to give notice to defendants of the specific fraudulent conduct against which they must defend, but also to deter the filing of complaints as a pretext for the discovery of unknown wrongs, to protect defendants from the harm that comes from being subject to fraud charges, and to prohibit plaintiffs from unilaterally imposing upon the court, the parties and society enormous social and economic costs absent some factual basis. Bly-Magee, 236 F.3d at 1018 (internal quotations, citations and alterations omitted).

11

Plaintiffs have not even attempted to plead their claims with the particularity
12

required by Fed. R. Civ. P. 9(b). Thus, any claim for election-related fraud must be
13

dismissed.
14

Plaintiffs have made the following factual allegations consistent with a claim
15

Defendants (or some subset of Defendants) engaged in election-related fraud:

16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants altered the voting ballot results to fraudulently reflect an outcome that is inconsistent with the actual voting ballot results. Comp. p. 17, lines 24-25. There has been a systematic campaign of election fraud at State Conventions [sic], Comp. p. 25, lines 21-22, including: o o o o o A voting machine in Arizona was programmed to count Ron Paul votes as Governor Romney votes. Comp. p. 25, lines 22-23. Defendants engaged in ballot stuffing, meaning the same person casting ballots in several states Comp. p. 25, lines 23-24. Defendants alter[ed] and falsif[ied] ballot totals for each candidate. Comp. p. 25, lines 24-25. Defendants use[d] violence at Conventions. Comp. p. 25, line 25. several State

Defendants alter[ed] procedural rules to prevent votes being cast for Ron Paul. Comp. p. 25, lines 25-26.
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Such allegations are precisely the kind of vague pleading flatly prohibited by Rule 9(b). Plaintiffs make no particularized allegations as to who (among the hundreds of Defendants) engaged in any of these alleged acts of wrongdoing, what exactly was done(with the exception that a voting machine in Arizona was allegedly tampered with by unnamed persons), where (with the exception of the voting machine in Arizona) it was done, or how the alleged fraud (like the purported machine tampering) was accomplished. Defendants cannot possibly defend themselves against an allegation of fraud founded on such general and sweeping allegations. See U.S. ex rel. SmithKline Beecham, Inc., 245 F.3d 1048, 1051-52 (9th Cir. 2001) (affirming dismissal because complaints failure to give particulars of fraudulent conduct alleged).So, to the extent the court reads a claim for electionrelated fraud in Plaintiffs Complaint, it should be dismissed under Rule 9(b). III. THIS COURT SHOULD DISMISS PLAINTIFFS CHALLENGES TO THE DELEGATE SELECTION PROCESS AND ALLEGED VIOLATIONS OF PARTY RULES IN VARIOUS STATE CONVENTIONS. Plaintiffs broadly allege that, because various congressional district and state conventions throughout the country were conducted unfairly, fraudulently, and in

18

violation of state and/or national party rules, this Court should order the
19

impoundment of all ballots and materials related to the election of delegates and,
20

when necessary, order that new conventions be held. Compl. 18; see also Compl.
21 22 23

at 16. The previous Parts of this Memorandum establish that Plaintiffs allegations are not sufficiently plausible to survive scrutiny under Fed. R. Civ. P. 8(a), see supra Part I, and their generalized claims of election fraud are far too vague to

24

satisfy the heightened pleading standards of Fed. R. Civ. P. 9(b), see supra Part II.
25

Even if this Court chooses to overlook such fatal flaws with the Complaint, it
26 27

still should dismiss Plaintiffs challenges to the delegate selection process because that is an internal party dispute that should be resolved in accordance with the

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RNCs established procedures, see supra p. 4-5, including either challenges before state parties, RNC Rules, supra R. 20, at 29, or election contests before the RNCs Committee on Contests, id. R. 22-23, at 29-31, with initial resolution by the RNC itself, id. R. 23(c), (f), at 31-32, a right of appeal to the Conventions Committee on Credentials, id. R. 24(b), at 32, and ultimate adjudication by the Convention as a whole, id. R. 26(a), at 33; see also id. R. 21, at 29. Political parties and their members enjoy broad freedom of association under the First and Fourteenth Amendments. Democratic Party of United States v. Wisconsin, 450 U.S. 107, 121, 101 S. Ct. 1010, 1019, 67 L. Ed. 2d 82, 94 (1981). Freedom of association means . . . that a political party has a right to identify the people who constitute the association, and to select a standard bearer who best represents the party's ideologies and preferences. Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 224, 109 S. Ct. 1013, 1020-21, 103 L. Ed. 2d 271, 283 (1989) (quotation marks and citations omitted). It also encompasses a political partys decisions about the identity of, and the process for electing, its leaders. Id. at 229; see also N.Y. State Board of Elections v. Lopez Torres, 552 U.S. 196, 202, 128 S. Ct. 791, 797, 169 L. Ed. 2d 665, 672 (2008). These rights are at their apex when the party is engage in selecting its presidential nominee. California Democratic Party v. Jones, 530 U.S. 567, 575, 120 S. Ct. 2402, 2408, 147 L. Ed.2d 502, 510 (2000). That process often determines the partys positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the partys ambassador to the general electorate in winning it over to the party's views. Id. [B]eing saddled with an unwanted, and possibly antithetical, nominee would . . . severely transform the party. Id. at 579; see also Eu, 489 U.S. at 231 n.21. Thus, political parties must be free to select delegates to national conventions free from state interference. Democratic Party of United States v. Wisconsin, 450 U.S. 107, 121-22 (1981).
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Because a political partys process of electing delegates and ultimately choosing a presidential nominee is constitutionally protected, [i]t has been understood since our national political parties first came into being as voluntary associations of individuals that the convention itself is the proper forum for determining intra-party disputes as to which delegates shall be seated. OBrien v. Brown, 409 U.S. 1, 4, 92 S. Ct. 2718, 2720, 34 L. Ed. 2d 1, 6 (1972) (per curiam); accord Cousins v. Wigoda, 419 U.S. 477, 491, 95 S. Ct. 541, 549, 42 L. Ed. 2d 595, 605 (1975) (holding that the convention itself is the proper forum for determining which delegates should be seated); Republican State Cent. Comm. v. Ripon Socy, Inc., 409 U.S. 1222, 1226, 93 S. Ct. 1475, 1478, 34 L. Ed. 2d 717, 720-21 (1972) (Rehnquist, C.J., in chambers); see also Wisconsin, 450 U.S. at 124 (holding that a court may not substitute its own judgment for that of the Party regarding the makeup of a States delegation to the partys national convention, because that decision is protected by the Constitution). The Supreme Court likewise has rejected the argument that relying on conventions to elect delegates or determine nominees is constitutionally suspect, even when party leaders can exert significant control and influence over them. In N.Y. State Board of Elections v. Lopez Torres, 552 U.S. 196, 201 (2008), the plaintiff repeatedly failed to obtain the Republican nomination for a seat on the New York Supreme Court at the partys convention. She alleged that the convention system unduly burdened the rights of challengers seeking to run against candidates favored by the party leadership, because party leaders can control delegates. Id. at 201-02. She argued that she did not have a sufficiently fair chance of prevailing in the partys candidate-selection processes. Id. at 203. The Supreme Court flatly rejected her claims. It held that the success that party leaders had in facilitating the election of their preferred candidates at conventions says nothing more than that the party leadership has more widespread support than a candidate not supported by the leadership. Id. It added, None of
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our cases establishes an individuals constitutional right to have a fair shot at winning the partys nomination. . . . What constitutes a fair shot is . . . hardly a manageable constitutional question for judges. Id. Furthermore, traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a fair shot at party nomination. Id. at 206. It concluded by noting, Party conventions, with their attendant smoke-filled rooms and domination by party leaders, have long been an accepted manner of selecting party candidates. Id. Thus, to the extent that Plaintiffs contend that the convention process was unfair, the rules (or changes in the rules) favored other candidates or delegates, or party leaders worked to defeat them, those are not justiciable issues and do not state a valid claim. Lopez Torres, 552 U.S. at 206.To the extent they contend that party rules were violated or fraud occurred, the only proper forum for such claims is an election contest before the Committee on Contests. OBrien, 409 U.S. at 4; Cousins, 419 U.S. at 491; Ripon Socy, 409 U.S. at 1226 (Rehnquist, C.J., in chambers). This Court therefore should dismiss the Complaint. IV. PLAINTIFFS ARE NOT ENTITLED TO HAVE DELEGATES TO THE REPUBLICAN NATIONAL CONVENTION BE UNBOUND AND FREE TO IGNORE THE RESULTS OF THEIR STATES PRESIDENTIAL PREFERENCE PRIMARY ELECTIONS. The Certified and Elected Plaintiffs allege that the RNC and Chairman Priebus are violating federal law and RNC rules by allowing delegates to the

21

national Convention to be bound to vote for certain candidates at the Convention

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based on the outcomes of their respective states presidential preference primary elections. Compl. at 16, 18, 24.Plaintiffs have failed to identify any federal statute

24

or U.S. Supreme Court ruling that actually prohibits the binding of delegates to
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national conventions, however.

26

First, Plaintiffs contend that binding delegates violates the Voting Rights
27

Act, Compl. at 16, which provides:

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No person, whether acting under color of law or otherwise, shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with the right of such person to vote or to vote as he may choose, or of causing such other person to vote for, or not to vote for, any candidate for the office of President. . . . at any general, special, or primary election held solely or in part for the purpose of selecting or electing any such candidate. 42 U.S.C. 1971(b) (emphasis added). By its plain terms, this provision applies only to general, special, or primary elections, and does not govern voting by delegates at national political conventions. Plaintiffs attempt to circumvent this limitation by simply omitting the italicized language from their complaint. Compl. at 16. They later cite regulations that the Federal Election Commission (FEC) promulgated pursuant to the Federal Election Campaign Act of 1971(e) stating that political conventions are considered elections for purposes of federal campaign finance law, see 11 C.F.R. 100.2(e), cited by Compl. at 23-24, but those regulations do not apply to the Voting Rights Act, and the FEC does not have authority to interpret that statute. Thus, because national political conventions are not covered by 1971(b), Plaintiffs cannot state a claim under this statute. Second, Plaintiffs cite a provision of the Voting Rights Act that relates exclusively to the use of federal observers at elections, and is therefore inapplicable to this case. See Compl. at 18, citing 42 U.S.C. 1971(e). Moreover, the cited provision simply defines the term vote as including all action necessary to make a vote effective, 42 U.S.C. 1971(e), and does not contain any language barring States or state parties from binding delegates to national conventions. Third, Plaintiffs argue that the U.S. Supreme Court held in Morse v. Republican Party of Virginia, 517 U.S. 186 (1985) [sic] [,] that an interference in the right of a Delegate to vote in accordance with the Delegates own conscience undermines the effectiveness of the vote. Compl. at 19. To the contrary, the Morse Court held only that the Virginia Republican Partys decision to impose a fee on delegates wishing to attend a state convention to determine the state partys nominee for U.S. Senate was subject to preclearance under 5 of the Voting Rights
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Act, 42 U.S.C. 1973c, because certain counties in Virginia were covered jurisdictions, and that 10 of the Voting Rights Act, id. 1973h, creates a private right of action. 517 U.S. 186, 221, 116 S. Ct. 1186, 1206-07, 134 L. Ed. 2d 347, 374 (1996). Morse is wholly inapposite to this case. Section 5 of the Voting Rights Act applies only to certain covered jurisdictions with a history of racial discrimination in voting, see id. 1973c, and requires that either the U.S. Department of Justice or the U.S. District Court for the District of Columbia approve any changes in those states election-related laws, practices, and procedures to ensure they will not have a racially discriminatory impact. The Complaint, in contrast, is leveled indiscriminately against nearly every state Republican party in the nation, does not allege that their state laws or party rules involving the binding of delegates recently have been changed, and do not assert that binding delegates is racially discriminatory. Thus, neither 5 nor Morse are applicable. Fourth, Plaintiffs quote at length from the Federal Election Campaign Act of 1971 and regulations that the FEC promulgated pursuant to it, see Compl. 19-24, quoting 11 C.F.R. 100.2 (defining term for purposes of the campaign finance act); id. 108.7 (providing that federal campaign finance laws supersede state campaign finance laws), but none of those provisions purport to restrict political parties or States from binding delegates to national political conventions. Finally, Plaintiffs claim that a memorandum prepared by the RNCs legal counsel interpreting RNC Rule 38, the so-called Unit Rule, agrees with the legal arguments that Delegates are free to vote their conscience on all ballots. Compl. at 24. The Memorandum upon which Plaintiffs rely, however, see Compl., Ex. A, is internally contradictory and cryptic at best. Rule 38 provides, No delegate or alternate delegate shall be bound by any attempt of any state or congressional district to impose the unit rule. RNC Rules, supra, R. 38, at 37.On the one hand, the Memorandum states that this Rule
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allow[s] delegates to vote as those cho[o]se even if state law bound them to vote for a particular candidate. Compl., Ex. B, at 1. On the other hand, the Memorandum goes on to state: During the debate on the Unit Rule amendment, there was some concern raised that the new language would be interpreted by some to prohibit the individual states from adopting rules that would bind or allocate delegates to specific candidates. The proponents, however, gave assurances that it was not their intention to effect [sic] any legal or moral obligation of the delegates. Based upon the concern raised that this provision would erroneously be read to prohibit states to bind or allocate delegates[,] a concerted effort was made to defeat the amendment. That effort to reject the addition of the new Unit Rule language based on that concern, failed, 59 to 41. Id. (emphasis added). Thus, the memorandum strongly suggests that Rule 38 does not, in fact, prohibit States or state parties from binding delegates to the results of their presidential primary elections. In any event, an alleged violation of a national partys rules is not a federal claim over which this Court may exercise subject-matter jurisdiction, see 28 U.S.C. 1331, and this clearly is not a diversity case, cf. Compl. 2-13. Thus, this Court lacks jurisdiction to consider Plaintiffs claim. Even moving beyond this threshold jurisdictional issue, the proper forum for the enforcement of party rules particularly a Rule allegedly touching upon something as critical as the binding of delegatesis the Convention itself, not this Court. Cf. OBrien, 409 U.S. at 4; Cousins, 419 U.S. at 491; Ripon Socy, 409 U.S. at 1226 (Rehnquist, C.J., in chambers). Thus, Plaintiffs have not identified any federal law that prohibits States or state Republican parties from binding delegates to vote in accordance with the results of those states respective presidential primaries. Consequently, there is nothing legally objectionable about Republican party officials requiring individuals who have been elected as delegates to the national Convention to pledge that they will cast their votes in accordance with such laws or party rules, as a condition of
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being credentialed and seated. Cf. Compl. 25. U.S. Supreme Court precedent further confirms the propriety of binding delegates. In Ray v. Blair, 343 U.S. 214, 72 S. Ct. 654, 96 L. Ed. 894 (1952), the chair of the Alabama Democratic Party refused to certify the plaintiff as a candidate in the states Democratic primary election for the office of presidential elector. The plaintiff had refused to sign a pledge stating that he will aid and support the nominees of the National Convention of the Democratic Party for President and Vice-President of the United States. The Alabama Supreme Court held that the pledge was unconstitutional because it restricted the freedom of a federal elector to vote in his Electoral College for his choice for President. Id. at 215. The U.S. Supreme Court vacated the writ of mandamus, holding that a state political party may require a person to pledge to cast his electoral vote for that partys presidential nominee as a condition of serving as a presidential elector. The Court held that [t]he requirement of a pledge from the candidate participating in primaries to support the nominee . . . protects a party from intrusion by those with adverse political principles. Id. at 221-22. The Court went on to hold that neither the constitutional provision dealing with presidential electors, see U.S. Const., art. II, 1, nor the Twelfth Amendment, see U.S. Const., amend. XII, requires a state political party to accept as candidates people who refuse to pledge to support that partys candidates. Id. at 225. It explained that such pledges ensure that a partys candidates represent the philosophy and leadership of that party. Id. at 227. If presidential electors, who at least nominally are state officers, may be bound to vote in the electoral college for a particular candidate for President of the United States, it would be anomalous to hold that delegates to a political partys national convention cannot be bound to vote for the nominee for President chosen by the people of that state. Just as states electors may be required to pledge to cast their electoral votes based on the popular will as expressed in that states presidential general election, so too may a state partys delegates be required to
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Memorandum of Points and Authorities in Support of Defendants Motion to Dismiss Complaint

pledge to cast their convention votes based on the popular will as expressed in that states presidential preference primary. Thus, Ray further confirms the legitimacy of state laws and party rules binding delegates to the Republican National Convention. Plaintiffs prayer for an order allowing delegates to vote their consciences therefore is baseless, and their claims should be dismissed. CONCLUSION For these reasons, Plaintiffs ask that this Court dismiss the Complaint with prejudice. Dated: July 5, 2012 Respectfully submitted, BELL, McANDREWS & HILTACK, LLP By: /s/ Charles H.Bell, Jr._ CHARLES H. BELL, JR. Attorney for Defendants REPUBLICAN NATIONAL COMMITTEE, ET AL.

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Proof of Service Memorandum of Points and Authorities in Support of Defendants Motion to Dismiss Complaint

PROOF OF SERVICE I, the undersigned, declare under penalty of perjury that: I am a citizen of the United States, over the age of 18, and not a party to the within cause of action. My business address is 455 Capitol Mall, Suite 600, Sacramento, CA 95814. On July 5, 2012, I served the following: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS MOTION TO DISMISS COMPLAINT PURSUANT TO FED. R. CIV. P. 8(A), 9(B) AND 12(B)(6) on the following party(ies) in said action: Richard C. Gilbert, Esq. Law Offices of Gilbert & Marlow 950 W. 17th Street, Suite D Santa Ana, CA 92706 Telephone: (714) 667-1038 Email: richardsocal714@aol.com X Plaintiffs

BY U.S. MAIL: By placing said document(s) in a sealed envelope and depositing said envelope, with postage thereon fully prepaid, in the United States Postal Service mailbox in Sacramento, California, addressed to said party(ies), in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY ELECTRONIC MAIL: By causing true copy(ies) of PDF versions of said document(s) to be sent to the e-mail address of each party listed.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on July 5, 2012 at Sacramento, California. /s/ Shannon Diaz SHANNON DIAZ