UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS DR. SHIVA ...

Case 1:20-cv-12080-MLW Document 16 Filed 12/04/20 Page 1 of 10

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

DR. SHIVA AYYADURAI,

Plaintiff,

v.

WILLIAM FRANCIS GALVIN, in his official capacity as the Secretary of the Commonwealth of Massachusetts,

Defendant.

CIVIL ACTION NO. 1:20-cv-12080-MLW

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

Dated: December 4, 2020

MAURA HEALEY ATTORNEY GENERAL

Anne Sterman (BBO No. 650426) Adam Hornstine (BBO No. 666296) Assistant Attorneys General Office of the Attorney General One Ashburton Place Boston, MA 02108 617-963-2048 Anne.Sterman@ Adam.Hornstine@

Case 1:20-cv-12080-MLW Document 16 Filed 12/04/20 Page 2 of 10

TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1

ALLEGATIONS OF THE COMPLAINT.......................................................................................2

ARGUMENT ...................................................................................................................................2

I.

STANDARDS OF REVIEW...............................................................................................2

II. PLAINTIFF'S CLAIM IS MOOT BECAUSE THE ELECTION RESULTS HAVE BEEN CERTIFIED..............................................................................................................4

III. PLAINTIFF DOES NOT IDENTIFY A PRIVATE RIGHT OF ACTION........................5

CONCLUSION............................................................................................................................... 7

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INTRODUCTION Plaintiff Shiva Ayyadurai ran for the Republican party's nomination for U.S. Senate in 2020. On September 1, 2020, he lost his primary election by approximately twenty percentage points. He did not seek a recount, although state law provided him a vehicle to do so. Nor did he notice an election contest, as state law also allowed him to do. Instead, nearly three months after the primary election, and three weeks after the general election, he asks this Court to interfere with the administration of a state election by creating a private cause of action where none exists so as to stop Secretary of the Commonwealth William F. Galvin from certifying the results of the Senate race ? even though the Secretary is not the state official charged with certifying election results. He seeks this significant and untimely remedy in conjunction with a similarly untimely request for an order to hand recount of the ballots from the September 1, 2020 primary, even though the deadline for doing so has long since passed, the results of the election have now been officially certified by the Governor's Council, and his request is based on a fundamental misunderstanding of how ballots are marked, tabulated, and maintained by the Commonwealth. The Court should dismiss this extraordinary suit for two reasons: (1) Plaintiff's request is moot because the election results have now been certified and transmitted to the United States Senate by the Governor and Council;1 and (2) the sole legal claim in this suit does not provide a private right of action. Accordingly, Plaintiff's Complaint fails both because this Court lacks jurisdiction and because he fails to state a plausible claim.

1

The Governor and Council, not the Secretary, are responsible for certifying the results of

the general election under Massachusetts state law. See Mass. Gen. Laws Ann. ch. 54, ? 115.

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ALLEGATIONS OF THE COMPLAINT Plaintiff Shiva Ayyadurai ran unsuccessfully for the Republican party's nomination for U.S. Senate in the September 1, 2020 Massachusetts primary election. Compl. at 4. Following his loss during the September 1 primary election, which Plaintiff alleges was contrary to his internal polling that showed him leading in all counties in the Commonwealth, Plaintiff's campaign submitted public records requests in various cities and towns across the Commonwealth seeking the list of voters who participated in the primary in each of those cities and towns. Compl. at 4-5. Plaintiff alleges that in all of the seven cities/towns that provided data in response to his campaign's request, the number of tabulated votes exceeded the number of voters shown to have voted. Compl. at 5. Based on his alleged engineering and mathematical expertise, Plaintiff allegedly determined that his votes had been weighted thus causing his loss. Compl. at 5-6. He further alleges that the electronic tabulation equipment used by many municipalities creates ballot images, but that the Secretary's office has confirmed that it deleted those ballot images in violation of federal law. Compl. at 7-13. As a result, he alleges that the paper ballots from the September 1, 2020 primary must be hand audited, and he asks this court to enjoin the certification of the November 3, 2020 election. Compl. at 14.

ARGUMENT I. STANDARDS OF REVIEW.

To survive a jurisdictional challenge under Rule 12(b)(1), the party asserting jurisdiction bears the burden of demonstrating the existence of federal subject matter jurisdiction. See Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003). This rule is a large umbrella, "overspreading a variety of different types of challenges to subject-matter jurisdiction," including considerations of mootness and the existence of federal question jurisdiction. Valent?n v. Hospital Bella Vista, 254 F.3d 358, 362-63 (1st Cir. 2001). There are two types of Rule

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12(b)(1) challenges, facial and factual. If the 12(b)(1) motion does not dispute subject matter allegations, then it challenges only the facial sufficiency of the complaint. Torres?Negr?n v. J & N Records, LLC, 504 F.3d 151, 162 n.8 (1st Cir. 2007). If the 12(b)(1) motion disputes the subject matter allegations, then it challenges the factual basis for subject matter jurisdiction. Id.

Under a facial challenge, the moving party challenges jurisdiction based on the allegations in the complaint. See Valentin, 254 F.3d at 363. A facial attack only requires a court to examine the complaint and determine whether the plaintiff "has sufficiently alleged a basis of subject matter jurisdiction." Torres?Negr?n, 504 F.3d at 162. By contrast, when "a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1) involves factual questions ... the court must determine whether the relevant facts, which would determine the court's jurisdiction, also implicate elements of the plaintiff's cause of action." Id. at 162?63. "[I]f the facts relevant to the jurisdictional inquiry are not intertwined with the merits of the plaintiff's claim, ... `the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.'" Id. at 163 (citation omitted). However, "where the jurisdictional issue and substantive claims are so intertwined the resolution of the jurisdictional question is dependent on factual issues going to the merits, the district court should employ the standard applicable to a motion for summary judgment." Id. (internal citation, quotation, and punctuation omitted).

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, a complaint must allege facts sufficient "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The grounds of entitlement to relief set forth in the complaint must constitute "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. In evaluating this motion to dismiss,

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