STEPHEN W. CARLSON, Plaintiff,
MARK RITCHIE, Minnesota Secretary of State in his official capacity, and BERT BLACK, Minnesota Secretary of State legal adviser in his official capacity, Defendants.
Stephen W. Carlson, pro se.
Nathan J. Hartshorn and Oliver J. Larson, Minnesota Attorney General's Office, Counsel for Defendants.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's First Amended Complaint [Docket No. 18], Defendants' Motion to Strike Plaintiff's Responsive Memorandum as Untimely [Docket No. 30], and Plaintiff's Motion for Continuance [Docket No. 34]. The Court heard oral argument on March 15, 2013.
A. Factual Background
1. The Parties and the SVRS
Plaintiff Stephen W. Carlson was the Independence Party candidate for the U.S. House of Representatives for Minnesota's Fourth Congressional District in November 2012. (Am. Compl. ¶ 1.) He finished in third place in that election. (2012 State of Minnesota General Election Canvassing Report at 20.) Congresswoman Betty McCollum won that election. (Id.)
Defendant Mark Ritchie is the Minnesota Secretary of State. Defendant Bert Black is an in-house legal adviser for the Office of Secretary of State. (Am. Compl. ¶¶ 3-4.)
On October 17, 2012, before the 2012 general election, Carlson purchased a compilation of data about his potential constituents in the Fourth Congressional District, culled from the Statewide Voter Registration System ("SVRS"). (Am. Compl. ¶¶ 4-5.) The SVRS complies with the federal Help America Vote Act ("HAVA"), which requires that every state that has a voter-registration system maintain a single computerized list "that contains the name and registration information of every legally registered voter in the State and assigns a unique identifier to each legally registered voter in the State." 42 U.S.C. § 15483(a)(1)(A). The SVRS is a statewide centralized voter registration computer database that is used by Minnesota's counties and the Office of Secretary of State. Minn. Stat. §§ 201.021, 201.022.
Minnesota voter registration applications allow but do not require that registrants provide an email address. Minn. Stat. § 201.071, subd. 1 ("The registration application may include the voter's email address, if provided by the voter, and the voter's interest in serving as an election judge, if indicated by the voter.").
Under Minnesota Statute § 201.091, subdivision 4,
[t]he county auditor shall make available for inspection a public information list which must contain the name, address, year of birth, and voting history of each registered voter in the county. The telephone number must be included on the list if provided by the voter. The public information list may also include information on voting districts.
Further, "the secretary of state shall provide copies of the public information lists in electronic or other media to any voter registered in Minnesota within ten days of receiving a written or electronic request accompanied by payment of the cost of reproduction." Id., subd. 5. "An individual who inspects or acquires a copy of a public information list may not use any information contained in it for purposes unrelated to elections, political activities, or law enforcement." Id.
The statute further provides that election officials are prohibited from providing SVRS data to a member of the public or "in response to a law enforcement inquiry" that includes
a voter's date of birth or any part of a voter's Social Security number, driver's license number, identification card number, military identification card number, or passport number.
Minn. Stat. § 201.091, subd. 9.
Carlson alleges that he intended to use email addresses contained on the SVRS to contact voters as part of his campaign. (Am. Compl. ¶¶ 8, 15.)
2. Carlson's Purchase of SVRS Data
Carlson alleges than unnamed "employees" of the Office of the Secretary of State "offered... verbally" to sell him the email addresses submitted by voters in the Fourth Congressional District that are contained in the SVRS. (Am. Compl. ¶¶ 5-6.) He purchased the public information list for the voters in the Fourth Congressional District for $30; however, the compact disc that Carlson received did not contain voter email addresses. (Id. ¶¶ 5, 22.) Carlson alleges that "it can be assumed, or can be shown, that others have received these email lists that were offered to me." (Id. ¶ 22.)
3. Carlson's Future Plans
Carlson avers that he intends to be a 2014 candidate for Congress in the 4th District or the U.S. Senate race. (Carlson Decl. ¶ 4.) He further claims that he is considering seeking the Minnesota Democratic Farmer Labor ("DFL") endorsement or asking DFL voters to vote in the Independence Party nomination process. (Id.)
B. Procedural History
On October 30, 2012, Carlson filed a Complaint in this Court against Defendants Bert Black, in his official capacity as legal advisor to the Minnesota Secretary of State, and Mark Ritchie, in his official capacity as the Minnesota Secretary of State. He filed an Amended Complaint on November 2, 2012.
Also on November 2, Carlson filed a Motion for Preliminary Injunction, requesting that the Court order the Secretary of State to release the email addresses to him before the election. [Docket No. 6] The Court denied that motion that same day because Carlson did not provide proof of service or fulfill the requirements for an ex parte temporary restraining order. [Docket No. 8]
On November 5, Carlson filed a verified version of his Amended Complaint. [Docket No. 12] This Amended Complaint alleges: Count One: wrongful withholding of contacts (based on Defendants' withholding of voters' email addresses) and Count Two (based on constitutional violations by the Minnesota DFL in its selection Betty McCollum).
On November 5, the Court again denied the Motion for a Preliminary Injunction, this time on the grounds that Carlson was unlikely to succeed on the merits of his claim that the Secretary of State was required to provide the voter email addresses to him. [Docket No. 15]
On December 11, 2012, Defendants filed the instant motion to dismiss the Amended Complaint. Carlson filed his Opposition to the motion to dismiss on February 22, at least fifty days late under the Local Rules. Defendants have filed a motion to strike his Opposition brief as untimely.
On December 21, 2012, Carlson filed a petition pursuant to Minnesota Statute § 204B.44, before the Minnesota Supreme Court seeking declaratory and injunctive relief. His petition contained a First Amendment claim based on who can participate in and vote at precinct caucuses; an assertion that Ritchie violated the Minnesota Government Data Practices Act and the First Amendment rights to political association and speech by withholding email addresses of registered voters in the Fourth Congressional District; and a claim that the state district court violated his First Amendment right of ...