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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
COVINGTON DIVISION
DEBORAH HOLLY SHELDON : CASE NO.:
:
AND :
:
FRIENDS OF DEB SHELDON, :
STATE SENATE 2014 : JUDGE
:
PLAINTIFFS :
: MAGISTRATE JUDGE
v. :
: VERIFIED
: CIVIL COMPLAINT FOR
ALLISON LUNDERGAN GRIMES : EMERGENCY INJUNCTIVE
IN HER OFFICIAL CAPACITY AS : RELIEF, A DECLARATIVE
KENTUCKY SECRETARY OF : JUDGMENT, AND OTHER RELIEF
STATE AND CHAIR OF THE :
KENTUCKY STATE BOARD OF :
ELECTIONS :
140 WALNUT STREET :
FRANKFORT, KENTUCKY 40601 :
:
SERVE: BY CERTIFIED MAIL :
:
AND :
:
JACK SNODGRASS, IN HIS :
OFFICIAL CAPACITY AS THE :
CAMPBELL COUNTY CLERK :
1098 MONMOUTH STREET :
NEWPORT, KENTUCKY 41071 :
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SERVE: BY CERTIFIED MAIL :
:
AND :
:
:
RAE JEAN POE, IN HER :
OFFICIAL CAPACITYAS THE :
BRACKEN COUNTY CLERK :
P.O. BOX :
BROOKSVILLE, KENTUCKY 41004 :
:
SERVE: CERTIFIED MAIL :
:
AND :
:
HON. JACK CONWAY, :
IN HIS OFFICIAL CAPACITY :
AS THE KENTUCKY ATTORNEY :
GENERAL :
700 CAPITOL AVENUE :
SUITE 118 :
FRANKFORT, KENTUCKY 40601 :
:
SERVE: BY CERTIFIED MAIL :
:
DEFENDANTS :
The Plaintiffs, by counsel, for their Civil Complaint for emergency injunctive
relief, a declarative judgment, and other statutory relief states as follows:
JURIDICTION AND VENUE
1) This is a civil action under 42 U.S.C.S. § 1983 seeking damages and injunctive
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relief against the Defendants for committing acts, under the color of law, with the intent
and purpose of depriving the Plaintiffs of rights secured under the Constitution and
laws of the United States.
2) This case arises under the United States Constitution, the First and Fourteenth
Amendments, and 42 U.S.C.S. §§ 1983 and 1988, as amended. This Court has
jurisdiction in this matter under 28 U.S.C.S. § § 1331 and 1343. The declaratory and
injunctive relief sought is authorized by 28 U.S.C. § § 2201 and 2202, 42 U.S.CS. § 1983
and Rule 57 of the Federal Rules of Civil Procedure.
3) Plaintiffs bring this action resulting from the damages incurred due to the
denial of the Defendants to provide information regarding likely absentee voters in the
May 20, 2014 republican primary election for the 24th Kentucky State Senate district.
The denial is a deprivation of Plaintiffs’ federal constitutional rights to free speech.
4) This Court is an appropriate venue for this cause of action under 28 U.S.C.S.
§ § 1391(b)(1) and (b)(2). The actions complained of took place in this judicial district;
the county clerks and records at issues are found in this judicial district, and the
unlawful actions and practices of the Defendants, the county clerks of Campbell,
Bracken, and Pendleton counties, and the Secretary of State are present and regularly
conducted affairs in this judicial district.
IDENTITY OF THE PARTIES
5) Plaintiff, Deborah Holly Sheldon, a natural person, is a citizen of the
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Commonwealth of Kentucky, resides in Campbell County, a part of the 24th State Senate
District, and is a duly qualified candidate for the Republican nomination for Kentucky
State Senator in the 24th State Senate District.
6) Plaintiff, Friends of Deb Sheldon, State Senate 2014, is an unincorporated
political committee registered with the Kentucky Registry of Election Finance as the
official campaign committee of co-Plaintiff, Deborah Sheldon.
7) Defendant, Allison Lundergan Grimes, is a natural person, and is named in
her official capacity as the Kentucky Secretary of State and serves as Chair of the State
Board of Elections and the Commonwealth’s Chief Election Officer.
8) Defendant, Jack Snodgrass, is a natural person and is named in his official
capacity as the elected County Clerk of Campbell County, Kentucky. He is the
chairman of Campbell County Board of Elections and is the chief election officer for
Campbell County. He is charged with enforcing election law at the county level and
enforcing state law relevant to administering elections.
9) Defendant, Rae Jean Poe, is a natural person and is named in her official
capacity as the elected County Clerk of Bracken County, Kentucky. She is the
chairman of Bracken County Board of Elections and is the chief election officer
for Bracken County. She is charged with enforcing election law at the county
level and enforcing state law relevant to administering elections.
10) Defendant, Jack Conway, the Kentucky Attorney General is named in his
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official capacity and is a party Defendant as required under Ky. Rev. Stat. § 418.075 as
the constitutionality of statutes are the subject matter of his action.
FIRST CAUSE OF ACTION
Petition for Emergency Injunctive Relief
(Against the Secretary of State and County Clerk Defendants)
11) Plaintiff, Deborah Holly Sheldon, is a citizen of Campbell County, Kentucky.
She is a duly qualified candidate for Republican nomination in the 24th Kentucky State
Senate District encompasses Campbell, Bracken, and Pendleton counties. She filed a
petition for nomination with the Kentucky Secretary of State.
12) Mrs. Sheldon’s name will appear on the May 20th Republican primary ballot.
13) On March 31, 2014, Mrs. Sheldon, through her official campaign
organization, Friends of Deb Sheldon, State Senate 2014, and individually, requested
certain election data from Defendants, Jack Snodgrass, and Rae Jean Poe, the county
clerks of Campbell and Bracken counties, respectively. Mrs. Sheldon through her
campaign was denied access to the information verbally by the Bracken County and by
written letter by the Campbell County Clerk. (Ex. A., Letter from Campbell County
Clerk)
14) The requests Mrs. Sheldon and her campaign committee made were for the
names of Republican voters who applied for an absentee ballots as permitted under Ky.
Rev. Stat. 61.870 et seq..
15) The purpose of the request was for Mrs. Sheldon and her campaign
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committee to communicate with those Republicans who were likely voters based on
their request for an absentee ballot about her background as a veteran, mother, and
lifelong Republican, unlike her opponents, and other relevant information about her
candidacy and platform.
16) This type of campaign activity is commonly known as an “absentee ballot
chase.”
17) A copy of the letter and materials Mrs. Sheldon planned to send as part of her
absentee ballot chase are attached hereto as exhibits B-C.
18) Until the passage of House Bill 54 (Exhibit D), and its Senate Amendments
during the 2013 General Assembly Regular Session, nothing prohibited a candidate like
Mrs. Sheldon from conducting the absentee ballot chase. It is a common method to
campaign and educate voters about themselves by sending by communicating with
likely voters, especially those who have requested absentee ballots.
19) During the 2013 Regular Session of the Kentucky General Assembly, House
Bill 54 was filed and its caption was an Act, Dead Bodies-Colleges and Universities,
Records and Recordation-Disclosure. A copy of House Bill 54 and Senate
Amendments codified and are now the subject matter of this action are attached hereto
as Exhibit D.
20) House Bill 54 was amended when it arrived in the Senate to include several
other provisions, including those that are the subject matter of this Complaint.
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21) Senate Amendment including amending Ky. Rev. Stat. 117.085 to include a
new subsection to be read as follows:
(10) Notwithstanding the provisions of the Kentucky Open Records Act,
KRS 61.870 to 61.884, the information contained in an application for an
absentee ballot shall not be made public until after the close of business
hours on the election day for which the application applies. This
subsection shall not prohibit at any time the disclosure, upon request, of
the total number of applications for absentee ballots that have been filed,
or the disclosure to the Secretary of State or the State Board of Elections, if
requested or if otherwise required by law, of any information in an
application for an absentee ballot.
22) Ky. Rev. Stat. § 117.086(7) at issue here, states as follows:
(7) The clerk shall keep a list for each election of all persons who return their
absentee ballots by mail or cast their ballots in the clerk's office or other place
designated by the county board of elections and approved by the State Board of
Elections, and shall send a copy of each list to the state board after the election
day for which the list applies. Notwithstanding the provisions of the Kentucky
Open Records Act, KRS 61.870 to 61.884, each list of all persons who return their
absentee ballots by mail or cast their ballots in the clerk's office or other
designated and approved place shall not be made public until after the close of
business hours on the election day for which the list applies. The county clerk
and the Secretary of State shall keep a record of the number of votes cast by
absentee ballots returned by mail and on the voting machine in the county clerk's
office or other place designated by the county board of elections, and approved
by the State Board of Elections, cast in any election as a part of the official returns
of the election.
23) The effect of this legislation was to exempt the names and addresses of
individuals who applied for absentee ballot requests from disclosure until after the
election.
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24) The Defendant county clerks relied on this new state law when they denied
the requests for absentee ballot information by the Defendants in real time prior to the
current election.
25) The legislative record is devoid of any compelling state interest in
exempting these public records from disclosure to recognized candidates like Mrs.
Sheldon and in other primary or general election contests.
26) Coincidentally, Defendant Grimes, by and through the State Board of
Elections makes available for purchase to candidates, virtually the same information,
the voter data for the past primary and general elections which remain public records.
The only difference is the data provided is for past elections, not the current campaign
election period, specifically the primary election that will be held on May 20, 2014, less
than 60 days from the filing of this civil action.
27) The actions of Defendant Grimes, the State Board of Elections, and the
Defendant county clerks by enforcing the provisions of Ky. Rev. Stat. § 117.085(10) quell
the rights guaranteed under the First Amendment to the United States Constitution.
28) This Court is intimately aware of the protections of the First Amendment
which states,
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
29) The protections afforded by the First Amendment extend to states through
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the application of the Fourteenth Amendment of the Constitution.
30) Likewise, the Constitution of the Commonwealth of Kentucky, specifically
Sections 1, 2, and 6 protect the rights of free speech, protects citizens from arbitrary
laws, and ensure free elections.
31) And the First Amendment has its most urgent and fullest application
precisely to the conduct of political campaigns. Moreover, political campaigning and
management are activities protected by the First Amendment.
32) Ky. Rev. Stat. § 117.085(10) prohibits and prevents Mrs. Sheldon and other
similarly situated candidates from communicating her political platform, unique
background, and values to a specific and distinct and highly likely group of voters,
those who have applied for an absentee ballot for the upcoming May 20th primary
election.
33) Mrs. Sheldon and her campaign will suffer immediate, continuing
irreparable damage by the continued enforcement of Ky. Rev. Stat. § 117.085(10)
exempting the disclosure of absentee ballot applications during the May 2014
Republican primary election.
34) Individual absentee voters will likely quickly complete their absentee
ballots and return them to the county clerks.
35) The window for Mrs. Sheldon and her campaign committee to
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communicate with those voters exercising their right to vote by absentee ballot is
relatively short. And this is the first election where Ky. Rev. Stat. §§ 117.085(10) and
117.086(7) effected an election.
36) The practical effect of enforcement of Ky. Rev. Stat. § 117.085(10) chills the
rights of Mrs. Sheldon and her campaign committee to exercise their inalienable right to
free speech and association by engaging in the political process through an active
political campaign. Such prohibitions shock the conscience when the right to exercise
the right to engage in protected political speech, one of the hallmarks of our
representative republican form of government, and guaranteed by the First
Amendment is enforced by the Defendants.
37) Time is of the essence warranting this Court to enjoin the Defendants from
enforcing the provisions of Ky. Rev. Stat. §§ 117.085(10), 117.086(7) exempting the
previous release of Open Records, i.e. the names and addresses of those Republicans
seeking to vote in May 20th primary election for the 24th State Senate seat.
38) An exigency exists for this Court to immediately enjoin the conduct where
the First Amendment and similar provisions of the Kentucky Constitution are and will
be offended by the enforcement of the relevant statutes at issue herein.
39) There is a high substantial likelihood on the merits as the statutes at issue
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clearly offend the First Amendment and limit political speech and political
campaigning, the most favorable form of speech subject to the protections of the First
Amendment.
40) The status quo of protecting the rights of candidates seeking to engage in
political speech will be continued by permitting the speech that was legal and permitted
until the passage of the House Bill 54 now codified as Ky. Rev. Stat. §§ 117.085(10) and
117.086(7).
COUNT TWO
Constitutional and Civil Rights Action Under 42 U.S.C.S. 1983, 1988
Violation of First Amendment Speech Rights
(Against All Defendants)
41) The Plaintiffs incorporate by reference all of the allegations in Paragraphs
1-40 in this Complaint as if re-stated in their entirety.
42) Defendants, Grimes, Snodgrass, Spencer, and Poe are charged with
enforcing the Commonwealth’s elections laws, including processing absentee ballots,
tabulating election results, serving as the records custodians for voter data, processing
absentee ballot requests, and ensuring fair and accurate elections are held.
43) The General Assembly has passed various election statutes including Ky.
Rev. Stat. §§ 117.085(10), and 117.086(7) to comply with federal law, since the Secretary
of State and local county clerks are charged with conducting legal elections.
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44) Until the passage of House Bill 54, codified in Ky. Rev. Stat. §§ 117.085(10)
and 117.086(7), the Kentucky Open Records Act, § 61.870 et seq. required the county
clerks to release the absentee ballot requests to political candidates during the primary
and general election to assist them in their protected First Amendment rights to free
speech and association.
45) The passage of House Bill 54 codified as Ky. Rev. Stat. §§ 117.085(10) and
117.086(7) prohibit political candidates to engage in lawful, permissive, political speech
guaranteed under the First Amendment.
46) The statutes specifically exempt the release of important, relevant, and
timely voter data and squelches the political speech of candidates running for political
office to get their message to likely voters. The absentee voter data is only exempt
during the election period when it is most relevant to those seeking to engage in
political speech with this specific group of likely voters.
47) The Secretary of State as chief election officer to date has not promulgated
regulations on these issues.
48) Mrs. Sheldon requested the information from the Defendant county clerks
for the specific purpose in engaging in political speech with this specific group of likely
voters to assist in her election efforts.
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49) She has been refused access to the absentee voter lists by the Defendant
county clerks. The clerks cited Ky. Rev. Stat. §§ 117.085(10) and 117.086(7) as the reason
for the denial.
50) Mrs. Sheldon’s campaign and efforts to communicate her message to
Republican primary voters who have requested absentee ballots have been suppressed
by the Defendants’ enforcement of Ky. Rev. Stat. §§ 117.085(10) and 117.086(7).
51) At all times, Mrs. Sheldon’s proposed speech about her campaign to
prospective voters requesting absentee ballots was speech as a private citizen on a
matter of public concern, specifically, the May 20th Republican primary election for the
24th State Senate District.
52) Mrs. Sheldon is deprived of her First Amendment rights to campaign,
communicate freely with a distinct group of prospective absentee voters, and the right
to associate with the voters by the arbitrary enforcement of Ky. Rev. Stat. §§ 117.085(10)
and 117.086(7) by the Defendant county clerks acting under the color of law.
53) Mrs. Sheldon’s free speech right with prospective absentee voters
outweighs any interest of the Defendants in suppressing the speech by not making the
names and addresses of likely absentee voters available to her. There is no compelling
state interest served by the closing of the voter rolls from review until after the election
by the general public and candidates for public office.
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54) The Defendant county clerks acted intentionally and with callous disregard
for Mrs. Sheldon’s clearly established constitutional rights.
55) Ky. Rev. Stat. §§ 117.085(10) and 117.086(7) do not have a compelling state
interest when weighed against the fundamental First Amendment rights guaranteed to
Mrs. Sheldon and other similarly situated candidates.
56) As a direct and proximate cause of the Defendant’s violations of Mrs.
Sheldon’s constitutional rights, Sheldon has suffered severe damages. These damages
include the ability of Mrs. Sheldon to communicate with likely voters, a severely
diminished right to engage in the political process and exercise her First Amendment
rights to free speech, litigation expenses including attorney’s fees, embarrassment,
inconvenience, and other compensatory damages, in an amount to be determined by a
jury or the Court.
COUNT THREE
Action for a Declaration of Rights as to the Constitutionality of Ky. Rev. Stat. § §
117.085(10) and Ky. Rev. Stat. 117.086(7)
57) The Plaintiff incorporates the allegations in paragraphs 1-56 of this
Complaint as if re-written and re-stated in the entirety.
58) The Plaintiffs under the authority of 28 U.S.C.S. § § 2201 and 2202 request
the Court issue a declaration of rights regarding the constitutionality of Ky. Rev. Stat. §
§ 117.085(10) and 117.086(7).
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59) As the enforcement of the statutes infringe upon federally guaranteed
rights guaranteed under the First Amendment, specifically, the right to engage in
political speech, engage in the political process through campaigning for public office,
and the right to free association with the likely voters in the upcoming May, 2014
primary, the Plaintiffs move and request the Court to issue a declaratory judgment as to
the constitutionality of the specific portions of Ky. Rev. Stat. § § 117.085(10) and
117.086(7) since the statutes do not promote on their face a compelling state interest.
60) Plaintiffs further aver the statutes at issue violate Sections 1, 2, and 6 of the
Kentucky Constitution as the statutes on their face do not promote a compelling state
interest outweighing the fundamental rights guaranteed to the Plaintiffs infringed upon
by the enforcement of the statutes at issue herein.
WHEREFORE, the Plaintiffs, request judgment against the Defendants as follows
A. For appropriate declaratory relief regarding the unlawful and
unconstitutional acts and practices of the Defendants;
B. A jury trial on all issues to triable by this Court;
C. For appropriate compensatory damages in an amount to be determined at
trial;
D. For appropriate equitable relief against all Defendants as allowed by the Civil
Rights Act of 1871, 42 U.S.C.S. Section 1983, including the immediate, emergency
enjoining and permanent restraining of these violations and to direction to Defendants
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to take such affirmative action as is necessary to ensure the effects of the
unconstitutional and unlawful denial of access to voter data are eliminated and do not
continue to affect Plaintiffs’ or others’ First Amendment speech;
E. For an award of reasonable attorney’s fees and their costs on their behalf as
expended as to such Defendants under the Civil Rights Act of 1871, 42 U.S.C.S Section
1988; AND
F. For such other and further relief to which Plaintiffs may show themselves
justly entitled.
Respectfully submitted,
_/s/_Steven_J._Megerle______________________________
HON. STEVEN J. MEGERLE
Megerle Law
421 Madison Avenue
Covington, Kentucky 41011
(859) 982-2025
Facsimile: (859) 972-0555
VERIFICATION
I verify the allegations and statements herein are true and accurate to the best of
my knowledge and belief.
_/s/__Deborah_Holly _Sheldon_________________________
DEBORAH HOLLY SHELDON, individually and on
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behalf of Friends of Deb Sheldon, State Senate 2014
COMMONWEALTH OF KENTUCKY }
} SCT.
COUNTY OF CAMPBELL }
The foregoing was sworn and subscribed before me, a Notary Public, State-at-
Large by Deborah Holly Sheldon on this 2d day April, 2014.
_/s/_Steven_J._Megerle____________
Notary Public, State-at-Large
My Commission Expires: 01/22/17
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