South Carolina Cases April 01, 2024: Castro v. Trump

Case Description

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REPORT AND RECOMMENDATION

Shiva V. Hodges United States Magistrate Judge

John Anthony Castro (“Plaintiff”) states he is a “Republican primary presidential candidate” for the 2024 Presidential election, argues that Donald John Trump (“Trump”) is disqualified from serving as President of the United States under Section 3 of the 14th Amendment to the United States Constitution, and asks this court: (1) to declare the South Carolina Republican Party's (“SCGOP”) $50,000 fee unconstitutional and issue an injunction preventing SCGOP from enforcing it (“Filing Fee Claim”); (2) to declare “all state Presidential ballot access laws as unconstitutional based on inconsistency” as a violation of Plaintiff's right to equal protection as

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guaranteed by the 14th Amendment to the Constitution (“Equal Protection Claim”); and (3) to issue an injunction preventing South Carolina Election Commission (“SEC”) Executive Director Howard M. Knapp (“Knapp”) (collectively “Election Defendants”) from accepting or processing Trump's ballot access documentation (“Ballot Claim”). [ECF No. 54 ¶¶ 2, 20-22, 24].

This matter comes before the court on the motions to dismiss Plaintiff's second amended complaint filed by the Election Defendants and Trump [ECF Nos. 61, 69], as well as SCGOP's motion for summary judgment [ECF No. 80]. Pursuant to Roseboro v. Garrison , 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the applicable procedures and the possible consequences if he failed to respond adequately to the filed motions. [ECF Nos. 67, 71, 81]. The motions having been fully briefed [ECF Nos. 73, 74, 87, 89], they are ripe for disposition.

For the following reasons, the undersigned recommends the district judge grant all pending motions, dismissing this case in full, rendering previous motions filed by the parties and previous report and recommendation issued by the undersigned moot as to the issues addressed herein. [ See ECF Nos. 23, 28, 49].

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I. Factual and Procedural Background

A. Plaintiff's Allegations

In his operative complaint, Plaintiff's primary allegation is that Trump is disqualified from serving as President of the United States under Section 3 of the 14th Amendment to the United States Constitution. [ECF No. 54 ¶ 24]. Addressing his interest in bringing this lawsuit, Plaintiff alleges that he is “actively competing against [Trump] for the nomination of the Republican Party to pursue the Office of the Presidency in the general election in 2024,” id. ; that he is one of “only 162 Republican Party candidates for the Presidency,” id. ¶ 34; that he will be “competing for the same political position” and “appealing to the same voter base” as Trump, id. ¶ 30; that he will allocate campaign finances to pursuing this class of voters, id. ; that he has “spoken to thousands of voters” who tell him they would vote for him if Trump is not a Republican Party candidate, id. ¶ 31; and that if Trump is on the ballot, it will inhibit his ability to secure votes and to raise funds, id. ¶ 33.

Plaintiff further alleges that South Carolina law codified at S.C. Code Ann. § 7-11-20 and § 7-11-70 does not permit him to be a petition candidate in South Carolina in the general election, making winning the primary his only path to the Republican nomination for President. Id. ¶ 9. He also complains about the portion of S.C. Code Ann. § 7-11-20 that permits political

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parties to charge a certification fee for candidates, arguing that the $50,000 filing fee set by SCGOP for ballot access is unconstitutionally burdensome. Id. ¶¶ 10-11.

B. Procedural Background

Plaintiff originally filed this case on September 7, 2023. [ See ECF No. 1]. On September 19, 2023, Plaintiff filed an emergency motion for temporary restraining order (“TRO”) and expedited preliminary injunction hearing consolidated with a preliminary bench trial on the merits concerning his Ballot Claim. [ECF No. 14]. The undersigned issued a report and recommendation, recommending the district judge deny Plaintiff's motion (“R&R I”). [ECF No. 16].

Thereafter, Elections Defendants and Trump both moved for dismissal of Plaintiff's complaint. [ECF Nos. 23, 28]. Plaintiff then filed an emergency motion for TRO and expedited preliminary injunction hearing consolidated with a preliminary bench trial on the merits concerning his Filing Fee and

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Equal Protection Claims. [ECF No. 43]. The undersigned issued a report and recommendation, recommending the district judge grant Election Defendants' motion to dismiss in part and Trump's motion to dismiss in full, dismissing Plaintiff's Ballot Claim and Equal Protection Claim, but allowing Plaintiff's Filing Fee Claim to proceed against Elections Defendants and SCGOP, also noting that if the district judge accepted these recommendations, Plaintiffs motion for temporary restraining order as to his Filing Fee and Equal Protection Claims would be rendered moot (“R&R II”). [ECF No. 49].

Thereafter, Elections Defendants and Trump filed their instant motions to dismiss, seeking dismissal of Plaintiff's second amended complaint [ECF Nos. 61, 69], and SCGOP filed its instant motion for summary judgment, seeking dismissal of Plaintiff's Filling Fee Claim. [ECF No. 80].

On January 30, 2024, the district judge issued an order, adopting R&R I, adopting in part and holding in abeyance in part R&R II, and denying Plaintiff's motion for TROs and expedited preliminary injunction hearings consolidated with preliminary bench trial (“January 30, 2024 Order”). [ECF No. 90]. Plaintiff timely appealed the January 30, 2024 Order to the Fourth Circuit, where it remains pending. [ See ECF No. 92].

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II. Discussion

A. Standard on Motion to Dismiss

Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be founded. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991).

A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards , 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from

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dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier , 238 F.3d 567, 577 (4th Cir. 2001).

Pro se complaints are held to a less stringent standard than those drafted by attorneys. Gordon v. Leeke , 574 F.2d 1147, 1151 (4th Cir. 1978). A federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. Erickson v. Pardus , 551 U.S. 89, 94 (2007). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. Fine v. City of N.Y. , 529 F.2d 70, 74 (2d Cir. 1975). The mandated liberal construction afforded to pro se pleadings means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Nevertheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dept of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

B. Standard on Motion for Summary Judgment

The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the

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movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. S ee Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto , 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts

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that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller , 901 F.2d 387.

C. Analysis

1. The Court's Jurisdiction

The January 30, 2024 Order denied Plaintiff's TRO motions and also stated in relevant part as follows:

Finally, the Court notes Castro asks, in the event the Court denies a TRO, it convert his motion into a preliminary injunction motion. For the reasons stated in this order, Castro has failed to show harm sufficient to support a preliminary injunction. The Court will therefore overrule this objection, as well.... Accordingly, the Court will overrule Castro's objections as to the Fee TRO as well. To the extent Castro seeks the same injunctive relief under his Equal Protection Clause claim, his arguments fail for the same reasons. And, because of Castro's failure to show harm, the Court will also refrain from converting this motion into a preliminary injunction motion, as well.

[ECF No. 90 at 5-6]. Plaintiff thereafter appealed this order to the Fourth Circuit. [ECF No. 92].

The Fourth Circuit has stated as follows:

Absent exceptional circumstances, the denial of a motion for a temporary restraining order is considered interlocutory and is not appealable. Office of Personnel Mgmt. v. Am. Fed'n of Gov't Emps. , 473 U.S. 1301, 1303-04 (1985). Exceptional circumstances exist where the denial effectively decides the merits of the case. See Virginia v. Tenneco, Inc. , 538 F.2d 1026, 1029-30 (4th Cir. 1976).

Holmes v. Milgram , No. 23-1205, 2023 WL 7298571, at *1 (4th Cir. Nov. 6, 2023).

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Here, the order at issue did not effectively decide the merits of the case. Accordingly, the district court retains jurisdiction to continue to adjudicate the case. See, e.g., Wright v. U.S. Bureau of Prisons , No. 87-7102, 1987 WL 38675 (4th Cir. Sept. 28, 1987) (“‘notice of appeal from a nonappealable order does not render void for lack of jurisdiction acts of the trial court taken in the interval between the filing of the notice and the dismissal of the appeal.'”) (citing United States v. Dunbar , 611 F.2d 985, 987 (5th Cir.1980)).

To the extent the court's January 30, 2024 Order denied preliminary injunctive relief, an order denying a preliminary injunction is an immediately appealable interlocutory order. See 28 U.S.C. § 1292(a)(1). Generally, “a duly filed notice of appeal deprives a district court of jurisdiction over all issues relating to the subject matter thereof.” Wolfe v. Clarke , 718 F.3d 277, 281 n.3 (4th Cir. 2013) (citing In re Grand Jury Proceedings Under Seal , 947 F.2d 1188, 1190 (4th Cir. 1991)).

However, numerous courts, including in this circuit, have held that an appeal of interlocutory injunction does not deprive the district court of jurisdiction to proceed in a case:

Plaintiff has appealed the denial of the request for temporary and preliminary relief to the Fourth Circuit “‘Although an appeal usually deprives the district court of jurisdiction to proceed, an appeal under 28 U.S.C. § 1292(a)(1) from the denial of an interlocutory injunction is an exception to that norm.'” Brennan v. William Paterson Coll. , 492 Fed.Appx. 258, 263 (3d Cir. 2012) (quoting In re Mann , 311 F.3d 788, 793 (7th Cir. 2002)); accord

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Thomas v. Bd. of Ed., Granville Cent. Sch. Dist. , 607 F.2d 1043, 1047 n.7 (2d Cir. 1979); Abramson v. Univ. of Hawaii , 594 F.2d 202, 211 n.8 (9th Cir. 1979). Thus, the Court retains jurisdiction over this action while Plaintiff's Fourth Circuit appeal is pending.

Williams v. 21st Mortg. Corp. , C/A No. PX 16-1210, 2017 WL 1133706, at *3 n.3 (D. Md. Mar. 27, 2017), aff'd, 704 Fed.Appx. 302 (4th Cir. 2017); see also Pueblo of Pojoaque v. State , 233 F.Supp.3d 1021, 1088 (D.N.M. 2017) (“The Tenth Circuit has recognized the exception for interlocutory injunction appeals in at least two circumstances.”) (citing Free Speech v. Fed. Election Comm'n , 720 F.3d 788, 791 (10th Cir. 2013); Colorado v. Idarado Mining Co. , 916 F.2d 1486, 1490 n.2 (10th Cir. 1990)); Wright & Miller, 16 Fed. Prac. & Proc. Juris. § 3921.2 (3d ed.) (“Ordinarily an interlocutory injunction appeal under § 1292(a)(1) does not defeat the power of the trial court to proceed further with the case.”).

In sum, the district court retains jurisdiction in this case during the pendency of Plaintiff's appeal of the denial of the motion for TRO and, to the extent the district court so held, the denial of the motion for preliminary injunction.

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2. Ballot Claim and Plaintiff's Standing

The court first addresses Plaintiff's primary argument in this case-his Ballot Claim-and his standing to challenge Trump's presence on the South Carolina Republican primary ballot as a candidate in the 2024 Presidential election.

“Article III of the Constitution provides that federal courts may consider only ‘[c]ases' and ‘[c]ontroversies.'” U.S. Const. art. III, § 2. Thus, “a plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has a personal stake in the outcome[.]” Gill v. Whitford , 138 S.Ct. 1916, 1923 (2018) (citation omitted).

To establish standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant[s], and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins , 578 U.S. 330, 338 (2016), as revised (May 24, 2016). An injury in fact is “an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Id. at 339 (citations omitted). Second, “[t]raceability is established if it is ‘likely that the injury was caused by the conduct complained of and not by the independent action of some third party not before the court.'” Doe v. Va. Dep't of State Police , 713 F.3d 745, 755 (4th Cir. 2013) (quoting Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. ,

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204 F.3d 149, 154 (4th Cir. 2000)). Lastly, to satisfy redressability, “a plaintiff “must show that it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Deal v. Mercer Cnty. Bd. of Educ. , 911 F.3d 183, 189 (4th Cir. 2018) (citation omitted).

Turning to the first element, Plaintiff does not sufficiently allege an injury in fact to maintain standing as to his Ballot Claim. A plaintiff alleging an “injury in fact” to his prospects as a political candidate must show that he is “able and ready” to apply for the political position in question. See Carney v. Adams , 141 S.Ct. 493, 495 (2020). He also must “show that the defendants' actions have harmed his chances of winning an election.” Goldman v. Brink , 41 F.4th 366, 369 (4th Cir. 2022) (citations omitted); see

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also Nelson v. Warner , 472 F.Supp.3d 297, 304 (S.D. W.Va. 2020) (collecting cases). Without showing that any of the actions complained of cause him competitive injury as a candidate, Plaintiff does not allege an injury that is “concrete and particularized, as well as actual or imminent,” but rather one that is “conjectural or hypothetical.” Carney , 141 S.Ct. at 498 (citation omitted).

Any injury Plaintiff alleges appears to be generalized, at best. “The injury in fact requirement precludes those with merely generalized grievances from bringing suit to vindicate an interest common to the entire public.” Friends of the Earth , 204 F.3d at 156 (citation omitted); Gill , 138 S.Ct. at 1923 (“But a plaintiff seeking relief in federal court must first

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demonstrate that he has standing to do so, including that he has ‘a personal stake in the outcome' distinct from a ‘generally available grievance about government.'”) (citations omitted)).

Plaintiff disagrees, alleging as follows:

Castro and Trump are not only competing for the same political position within the same political party but are also appealing to the same voter base. Castro retains support from unions and his extensive experiences with union organizing is appealing to working class Americans. Similarly, Trump also does not appeal to big donors and most of his donations consist of donors giving small amounts. Consequently, Castro will be primarily targeting the same voters as Trump, and Castro will allocate a significant portion of his campaign finances to such cause.

In fact, throughout his campaigning efforts to date, Castro has spoken to thousands of voters who have expressed that they would vote for Castro only if Trump is not a presidential candidate as they maintain political loyalty to Trump.

A primary candidate has judicial standing to bring a claim challenging the eligibility of a fellow primary candidate for competitive injury in the form of a diminution of votes and/or fundraising if the primary candidate believes that the fellow primary candidate is ineligible to hold public office and to prevent actions irreconcilable with the U.S. Constitution.

Castro will further suffer irreparable competitive injuries if Trump, who is constitutionally ineligible to hold office, is able to attempt to secure votes in primary elections and raise funds. Trump's constitutionally unauthorized undertaking will put Castro at both a voter and donor disadvantage.

Trump, without this Court's intervention, will siphon off votes in violation of Section 3 of the 14th Amendment to the U.S. Constitution. There are only 162 Republican Party candidates for the Presidency of the United States thereby identifying the

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actual named individuals with particularity that his candidacy is injuring. By definition, this “particularizes” the injury.

[ECF No. 54 ¶¶ 30-34 (emphasis and footnotes removed)].

Plaintiff fails to allege any injury that is sufficiently individual and particularized to him to confer standing. His primary position appears to be that if he and Trump run against each other, that will necessitate harm to Plaintiff in the form of lost votes and lost donations. However, saying it does not make it so, and Plaintiff has failed to offer sufficient allegations in support. For example, he has not identified a single voter who considers him as his or her “second choice” after Trump, particularly any voter in South Carolina, instead stating vaguely that he has spoken to “thousands of voters” who are presumably located somewhere in the United States. Plaintiff alleges he has support from unions, but does not identify which unions or if any are in South Carolina. Plaintiff also makes allegations concerning donors and allocation of his campaign finances, but fails to identify any specific donor who would contribute to his campaign if Trump were not an option, and Plaintiff's financial records filed with the FEC show that he has almost no

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money. These allegations fail to “nudge [Plaintiff's] claims across the line from conceivable to plausible” to resist dismissal, Twombly , 550 U.S. at 570, and at no point does Plaintiff allege either his ability to win the election or the “potential loss of an election.” See, e.g., Drake v. Obama , 664 F.3d 774, 783 (9th Cir. 2011) (citing Owen v Mulligan, 640 F.2d 1130, 1132-33 (9th Cir. 1981) (rejecting argument that “potential loss of an election” is “too remote, speculative and unredressable to confer standing”)).

This conclusion is buttressed by Plaintiff's testimony provided in another similar case he filed against Trump:

Castro further acknowledges that he is, at best, a “longshot Republican Presidential candidate.” Trump introduced evidence of Castro's filings with the Federal Election Commission, which show that Castro's campaign has no contributions and no expenditures. Further, Castro's campaign has not run or purchased any advertising in New Hampshire or any other state . . . . He also confirmed that his FEC filings show that his campaign has no contributors, other than himself, and almost no money. Castro also agreed that a primarygoal ofhis candidacy is to establish the impermissibility of Trump's presidency , and that he has filed 27 lawsuits seeking to keep Trump's name off of the ballot in various states.

John Anthony Castro v. New Hampshire Sec'y of State, David M. Scanlan, & Donald J. Trump , C/A No. 23-416-JL, 2023 WL 7110390, at *2-3 (D.N.H. Oct. 27, 2023)

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(emphasis added, footnotes omitted), aff'd sub nom. Castro v. Scanlan , 86 F.4th 947 (1st Cir. 2023).

In response to the above evidence, the court held as follows:

To demonstrate an injury as a political competitor, a plaintiff must show that he has “a chance of prevailing in the election.” . . . . Castro makes no attempt to demonstrate that he is actually competing with Trump for votes and contributions, as required under the operative competitor standing theory. The evidence shows that Castro has not campaigned in New Hampshire or elsewhere. Castro has not provided any evidence suggesting that he has voters or contributors in New Hampshire or elsewhere, or that he will benefit from voter or contributor defections from Trump to himself .... The weaknesses in Castro's theory of competitive injury do not stop there. His claimed injury is also speculative, as it depends on what voters and contributors- independent, third parties- may do if Trump's name is not listed on the New Hampshire primary ballot .... An injury based on speculation about the decisions of independent actors does not confer standing ....

Further, the evidence indicates that Castro is creating his own injury in order to manufacture standing to challenge Trump's eligibility to run for president. Indeed, by his own admission, Castro declared as a candidate and paid the filing fee to show the impermissibility of Trump's presidency. He asserts that one of his goals in the campaign is “to demonstrate his legal ingenuity, ability to effectuate a national litigation strategy with minimal

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resources (i.e. guerrilla lawfare), and demonstrate executive leadership capabilities.” This practice of manufacturing standing to pursue a cause through litigation is not supported by the law .

...

In sum, the evidence demonstrates that Castro is not competing and will not compete with Trump to win the New Hampshire primary, and for that reason, he is not a political competitor in the primary. Contrary to Castro's contention, he does not have a cognizable injury simply because his name is on the New Hampshire primary ballot, and he cannot manufacture standing by declaring his candidacy and paying the fee. For all of these reasons, Castro has not shown that he is suffering or would suffer an actual, competitive injury if Trump's name is listed on the New Hampshire Presidential primary ballot.

Id. at *5-6 (footnotes omitted); see also Castro, 86 F.4th at 960 (“the record gives no indication that Castro was competing even as of that time in the primary race at hand in a way that could show that he had suffered-or was at imminent risk of suffering-a diminution in either votes or contributions absent his requested relief .... Indeed, the record shows that, beyond taking steps to be placed on the ballot, Castro's efforts to compete for votes and contributors in the specific New Hampshire primary at issue were non-existent.”).

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Plaintiff argues here, as he did in New Hampshire, that he has “competitive injury” standing, relying solely on out-of-circuit case law. [ See, e.g. , ECF No. 54 ¶ 27]. The court rejects Plaintiff's argument, for the reasons articulated above, and does not find persuasive his distinguishable case law, where this case law concerns “competitor standing,” but in the context of, for example, third-party structuring of campaign and other competitive environments, see Shays v. Fed. Election Comm'n ,

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414 F.3d 76, 85 (D.C. Cir. 2005)); New World Radio, Inc. v. F.C.C. , 294 F.3d 164, 170 (D.C. Cir. 2002), or where individuals have challenged campaign restrictions they themselves were not subject to, see Gottlieb v. Fed. Election Comm'n, 143 F.3d 618, 62021 (D.C. Cir. 1998); Fulani v. Brady , 935 F.2d 1324, 1324 (D.C. Cir. 1991)); see also Hassan v. Fed. Election Comm'n , 893 F.Supp.2d 248, 254 (D.D.C. 2012) (“Yet Hassan has not alleged sufficient facts to show that he will actually or imminently be the nominee of a major or minor political party (let alone the Democratic Party, which he specifies is his goal). Rather, he has only announced his intention to run, created an online presence, and filed a series of lawsuits. These actions are inadequate to establish that Hassan will imminently be nominated.”).

Accordingly, the undersigned recommends the district judge grant the pending motions to dismiss, dismissing Plaintiff's Ballot Claim.

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2. Equal Protection Claim

As to his Equal Protection Claim, Plaintiff argues:

The inconsistency of Presidential ballot access laws among the several states violates Plaintiff's right to equal protection under the law as guaranteed by the 14th Amendment to the U.S. Constitution. The U.S. Constitution's Election Clause gives states no power over Presidential ballot access laws with regard to the general election and the inconsistency among the states violates Plaintiffs right to equal protection under the law, this Court has the power to set an interim national standard. In other words, even if South Carolina's general election ballot access laws are not constitutionally burdensome, the inconsistency among the states still renders them unconstitutional for violating Plaintiffs right to equal protection ....

Plaintiff further asks this Court to declare all state Presidential ballot access laws as UNCONSTITUTIONAL based on inconsistency, which violates Plaintiff's right to equal protection as protected by the 14th Amendment to the U.S. Constitution.

[ECF No. 54 ¶¶ 8, 21 (emphasis removed)].

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Plaintiff's Equal Protection Claim appears to challenge all Presidential ballot access laws in all states and asks this court to declare all such laws unconstitutional. Indeed, Plaintiff confirms in briefing that “[a] favorable ruling” as to this issue “would require the federal government to enact Presidential ballot access laws and regulations to create notional uniformity consistent with the Fifth Amendment,” also noting “[t]his is an unprecedent legal theory of first impression.” [ECF No. 58 at 5 n.6]. The court declines to do so. As explained by the Supreme Court in assessing certain Ohio Presidential election laws:

Although these rights of voters are fundamental, not all restrictions imposed by the States on candidates' eligibility for the ballot impose constitutionally-suspect burdens on voters' rights to associate or to choose among candidates. We have recognized that, “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown , 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects-at least to some degree-the

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individual's right to vote and his right to associate with others for political ends. Nevertheless, the state's important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.

Anderson v. Celebrezze , 460 U.S. 780, 788 (1983) (emphasis added)).

Plaintiff cites no case law-nor is the court aware of any-in support of his sweeping arguments that states have no power over Presidential ballot access law nor that his rights are somehow infringed by variations in state Presidential ballot-access schemes. Accordingly, the undersigned recommends the district judge dismiss Plaintiff's Equal Protection Claim.

3. Filing Fee Claim

a. Filing Fee Claim Allegations

As to his Filing Fee Claim, Plaintiff alleges in full as follows:

S.C. Code § 7-11-10 creates various methods for a candidate to pursue the nomination of the Republican Party. The petition method found at S.C. Code § 7-11-70, however, only applies to an “office in this State.” As such, SC Code § 7-11-70 does not apply to the Office of the Presidency of the United States. Hence, the 2024 Republican Presidential Primary is the only method available pursuant to S.C. Code § 7-11-20.

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S.C. Code § 7-11-20 states that the political parties shall “set the date and the filing requirements, including a certification fee.” In doing so, SC Code § 7-11-20 makes the South Carolina Republican Party a quasi-state actor under the 14th Amendment with regard to their function in setting the “certification fee.”

The South Carolina Republican Party, in its role as a quasi-state actor, set the filing fee for access to the Republican Presidential Primary ballot at $50,000, which is an unconstitutionally burdensome fee not rationally related to the interest of avoiding ballot clutter or preventing frivolous candidacies. To put this into perspective, Texas, with a population 600% that of South Carolina, sets the fee at only 10% of that of South Carolina; $5000. The states of Arizona, Maryland, Michigan, Nebraska, and Nevada don't even have a fee if the candidate can show national media coverage, and they have experienced no ballot clutter or frivolous candidacies. This is violative of 42 U.S.C. § 1983 ....

Plaintiff John Anthony Castro asks this Court to declare the South Carolina Republican Party's $50,000 fee as UNCONSTITUTIONAL and to issue an injunction to prevent the South Carolina Republican Party from enforcing it.

[ECF No. 54 ¶¶ 9-11, 20 (emphasis removed)].

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b. Filing Fee Claim Evidence

The challenged statutory scheme provides, in relevant part, as follows:

If the state committee of a certified political party . . . decides to hold a presidential preference primary election, the State Election Commission must conduct the presidential preference primary in accordance with the provisions of this title and party rules provided that a registered elector may cast a ballot in only one presidential preference primary. However, notwithstanding any other provision of this title, (a) the State Election Commission and the authorities responsible for conducting the elections in each county shall provide for cost-effective measures in conducting the presidential preference primaries including, but not limited to, combining polling places, while ensuring that voters have adequate notice and access to the polling places; and (b) the state committee of the party shall set the date and the filing requirements, including a certification fee .... Political parties may charge a certification fee to persons seeking to be candidates in the presidential preference primary for the political party. A filing fee not to exceed twenty thousand dollars, as determined by the State Election Commission, for each candidate certified by a political party must be transmitted by the respective political party to the State Election Commission and must be used for conducting the presidential preference primaries.

S.C. Code Ann. § 7-11-20(B)(2).

As stated above, SCGOP have filed motion for summary judgment as to this claim, and Plaintiff and SCGOP have submitted the following relevant and undisputed evidence.

SCGOP represents that pursuant to the above South Carolina law, once SCGOP decided to hold a presidential preference primary, SCGOP is

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permitted to charge a certification fee to persons seeking to be candidates in SCGOP's presidential preference primary. [ECF No. 80-1 ¶ 7]. Under the same state law, SCGOP is required to transmit $20,000 to the SEC for each candidate SCGOP certifies for its presidential preference primary. Id. ¶ 8. For its 2024 presidential preference primary, SCGOP set its certification fee at $50,000 per candidate. Id. ¶ 9.

SCGOP represents that, as required by state law, $20,000 of SCGOP's certification fee goes to the SEC to cover the filing fee for each candidate SCGOP certifies. Id. ¶ 10. SCGOP retains the remaining $30,000 to cover costs incurred by SCGOP in conjunction with legitimate political activities associated with its presidential preference primary, including but not limited to voter outreach, communications, and promotion of the First in the South Primary, party building and organizing efforts, and putting on events to highlight the First in the South Primary. Id. ¶ 11.

On September 22, 2023, Plaintiff sent an email to the generic SCGOP email account (team@scgop.com) stating that he wanted to formally register as a 2024 Republican Presidential Candidate. Id. ¶ 14 (citing ECF No. 80-2).

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He further offered to “dismiss the S.C. federal claim regarding Donald J. Trump” if SCGOP agreed to put him on the ballot. See id.

On September 25, 2023, Evelen Hope Walker, SCGOP's Executive Director, responded to Plaintiff's email and sent him the relevant filing information including the amount of the required certification fee and that the filing fee must be paid with certified funds. Id. ¶¶ 2, 15 (citing ECF No. 80-3). One month later, on October 25, 2023, Plaintiff sent his completed South Carolina Republican Party 2024 Presidential Primary Election Statement of Intention of Candidacy (“Statement”). Id. ¶ 16 (citing ECF No. 80-3). In the Statement, he signed the affirmation and had it notarized, swearing that he “will fulfill all filing requirements set by South Carolina Republican Party, including . . . the payment of a non-refundable $50,000 filing fee.” See id.

Registration filing for SCGOP's presidential preference primary ballot closed at 5:00 P.M. on October 31, 2023. Id. ¶ 18. On October 31, 2023, SCGOP received a check in the mail from Plaintiff for $50,000 written from his and his wife's personal checking account. Id. ¶ 19 (citing ECF No. 80-4). The “Memo” line on the check stated “Unconstitutional Fee.” See id.

Based on representations made by Plaintiff in his Statement, before depositing the check, SCGOP released on October 31, 2023, a list of 10 candidates who registered for the primary, including Plaintiff. Id. ¶ 21. On

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November 1, 2023, after SCGOP attempted to deposit the check into its account, the bank notified SCGOP the next day that it rejected the check for insufficient funds. Id. ¶ 22 (citing ECF No. 80-4).

Plaintiff has not submitted any evidence to dispute the above evidence submitted by SCGOP. He has submitted, consistent with the above, the following:

I am not simply unwilling to pay the $50,000 filing fee; I am unable to pay. When I originally wrote the check, directed my wife to find $50,000 and move it into the account. My wife responded that she would have to take money out of our son's 529 college savings plan. After the First Circuit held that I did not have standing despite paying the filing fee, my wife refused to transfer the funds after which she contacted the bank to put a stop payment. I had no other means to pay the filing fee. As such, it is not an unwillingness to pay the filing fee. I am financially unable to pay the filing fee.

[ECF No. 87-1 ¶¶ 4-7].

c. Filing Fee Claim Analysis

SCGOP argues that summary judgment is warranted in the Plaintiff lacks standing to challenge the applicable filing fee in this case, relying on the numerous similar cases brought by Plaintiff against Trump where courts around this country have found Plaintiff lacked standing. [ See ECF No. 80 at 5-9]. However, in none of the cases cited by SCGOP was the court addressing Plaintiff's standing regarding a filing fee challenge and instead the courts were addressing Plaintiff's standing to challenge Trump's presence on

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various ballots, an issue already addressed by the court above and separate from Plaintiff's Filing Fee Claim. See, e.g., Castro v. Fontes , 2023 WL 8436435, at *1 (“This case is one of at least 27 filed across the country by Plaintiff John Anthony Castro, ostensibly a candidate for the Republican Party's 2024 nomination for President of the United States, seeking to prevent former President Donald J. Trump from appearing on the ballot in next year's primary elections.”).

Notwithstanding, SCGOP's arguments, and cited case law, are related to Plaintiff's Filing Fee Claim. SCGOP argues, in effect, that because Plaintiff is engaged in a political or legal stunt to have Trump removed from the ballot, and because his intentions are not and have never been to run for office, he lacks standing to challenge the relevant filing fee. [ See ECF No. 80 at 5 (citing Clapper v. Amnesty Int'l USA , 568 U.S. 398, 402 (2013) (“But respondents cannot manufacture standing by choosing to make expenditures based on hypothetical future harm that is not certainly impending.”); Castro v. Fontes , 2023 WL 8436435, at *5 (“If Article III's injury-in-fact requirement is to serve as a meaningful restraint on judicial power, it must allow federal courts to recognize such shenanigans for what they are-an attempt to manufacture a controversy in order to pursue a political agenda through litigation.”)), Id. at 8 (citing Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (“As an aspect of justiciability, the standing question is whether the plaintiff has

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‘alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf.”) (citation omitted))].

“As in all cases, the ‘manner and degree of evidence required' to establish standing depends on the ‘stage[ ] of the litigation.'” United States v. Phillips , 883 F.3d 399, 403 (4th Cir. 2018) (citing Lujan , 504 U.S. at 561). At the summary judgment stage, “the [claimant] can no longer rest on such ‘mere allegations,' but must ‘set forth' by affidavit or other evidence ‘specific facts,' which for purposes of the summary judgment motion will be taken to be true.” Id. (citing Lujan , 504 U.S. at 561).

Here, all evidence submitted, taken in light most favorable to Plaintiff, indicate that Plaintiff has not suffered an injury in fact related to his Filing Fee Claim such to confer standing.

Plaintiff has submitted to the court affidavit evidence indicating that but-for the First Circuit's ruling, finding he lacks standing to pursue his case against Trump in that circuit, notwithstanding paying filing fees there, he would have paid the applicable filing fee here. Taking the evidence in the light most favorable to Plaintiff, this evidence indicates what many other courts have already found: that Plaintiff has no interest or ability to run for any office, and, instead, in his own words as found in an article submitted by Plaintiff for the court's consideration, he is “not going to lie and pretend my

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candidacy is anything more than trying to enforce the United States Constitution, and that's what I'm here to do[.]” [ECF No. 58-1 at 2 (citing Holly Ramer, New Hampshire's presidential primary filing period opens with candidates critical of Biden and Trump, The Associated Press (Oct. 11, 2023), available at https://apnews.com/article/new-hampshire-presidential-primary-2024-5bd66ceac3df40f3b0ec7676422f40bc (last visited February 9, 2024))].

Federal courts are not venues for plaintiffs to assert a bare right “to have the Government,” or SCGOP, “act in accordance with law.” Allen v. Wright , 468 U.S. 737, 754 (1984), abrogated on other grounds by Lexmark In' Inc. v. Static Control Components, Inc., 572 U.S. 118, 126-27 (2014). Plaintiff seeks to accomplish in this court exactly what this court cannot provide, where Plaintiff has failed to show anything more than a generally available grievance about the government:

Requiring a plaintiff to demonstrate a concrete and particularized injury caused by the defendant and redressable by the court ensures that federal courts decide only “the rights of individuals,” Marbury v. Madison , 1 Cranch 137, 170, 5 U.S. 137, 2 L.Ed. 60 (1803), and that federal courts exercise “their proper function in a limited and separated government,” Roberts, Article III Limits on Statutory Standing, 42 Duke L. J. 1219, 1224 (1993). Under Article III, federal courts do not adjudicate hypothetical or abstract disputes. Federal courts do not possess a roving commission to publicly opine on every legal question. Federal courts do not exercise general legal oversight of the Legislative and Executive Branches, or of private entities. And federal courts do not issue advisory opinions.

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TransUnion LLC v. Ramirez, 594 U.S. 413, 423-24 (2021); see also, e.g., Castro v. New Hampshire Sec'y of State , 2024 WL 216662, at *8 n.10 (“Although the matter needs little discussion at this point, the court agrees with the several other courts that have considered Castro's claim that the defendants are entitled to dismissal because Castro's campaign efforts have been merely an effort to manufacture standing, which is not supported by law.”) (collecting cases)); cf. Morgan v. White , 964 F.3d 649, 651 (7th Cir. 2020) (“One important question, when a plaintiff seeks emergency relief, is whether the plaintiff has brought the emergency on himself.”); La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest , 624 F.3d 1083, 1088 (9th Cir. 2010) (noting that an organization “cannot manufacture [an] injury by incurring litigation costs or simply choosing to spend money fixing a problem that otherwise would not affect the organization at all”).

Plaintiff argues otherwise: “Plaintiff sought to be on the South Carolina ballot. But for Defendant SCGOP's unconstitutionally burdensome fee that Plaintiff could not afford, Plaintiff would be on the ballot.” [ECF No. 87 at 2]. Indeed, SCGOP, mistakenly believing Plaintiff has paid the $50,000 filing fee, released on October 31, 2023, a list of 10 candidates who registered for the primary, including Plaintiff.

Plaintiff is correct that, generally, the standing analysis concerning a filing fee connected to ballot access is relatively straightforward. Indeed, in

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Bullock , the Supreme Court indicated, as relevant here, that the only barrier to standing in a filing fee challenge related to ballot access is whether that candidate was otherwise qualified. See Bullock v. Carter , 405 U.S. 134, 136 n.2 (1972) (“Since appellees Pate and Wischkaemper were in all respects eligible to be candidates in the primary except for their failure to pay the filing fees, Carter's participation in this appeal is superfluous and we need not decide whether the additional defects in his application deprive him of standing to attack the constitutionality of the filing-fee system.”); see also, e.g., Biener v. Calio, 361 F.3d 206, 210-11 (3d Cir. 2004) (“Biener [a non- indigent candidate], by paying the $3000 filing fee in protest, depleted two-thirds of his campaign funds. This is an injury in fact, which is clearly traceable to the filing fee set by the Party and Calio. The injury also can be redressed by a favorable decision in this court. Biener thus has standing to challenge the filing fee on his own behalf.”).

However, this case stands in contrast to those above where in those cases, unlike here, there was no indication that the plaintiffs were attempting to manufacture standing to seek, in essence, an advisory opinion concerning the upcoming election. [ See ECF No. 80 at 6 (SCGOP arguing Plaintiff “is not litigating to vindicate any constitutional injury based on the SCGOP's certification fee or even because of his desire to be a Republican

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Presidential candidate. Rather, he is litigating because he doesn't want Trump to be the Republican nominee.”)].

Accordingly, the undersigned recommends the district judge grant SCGOP's motion for summary judgment as to Plaintiff's Filing Fee Claim. In so recommending, the court makes no determination as to the constitutionality of the $50,000 filing fee at issue.

III. Conclusion and Recommendation

For the foregoing reasons, the undersigned recommends the district judge grant all pending motions [ECF Nos. 61, 69, 80], dismissing this case in full, thereby rendering previous motions filed by the parties moot and R&R II issued by the undersigned moot in part as to the issues addressed herein. [ See ECF Nos. 23, 28, 49].

IT IS SO RECOMMENDED.

The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”

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Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co. , 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Robin L. Blume, Clerk

United States District Court

901 Richland Street

Columbia, South Carolina 29201

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn , 474 U.S. 140 (1985); Wright v. Collins , 766 F.2d 841 (4th Cir.1985); United States v. Schronce , 727 F.2d 91 (4th Cir. 1984).