“Rent is Too ___ High” Party

While updating my list of election litigation by year, I came across  an amusing case, McMillan v. D.C. Board of Elections, 2014 U.S. Dist. LEXIS 170704 (D.D.C. Dec. 9, 2014).  Here’s a snippet:


The plaintiff, James E. McMillan III, proceeding pro se, claims to be the “party head” of a political party that has appeared on the ballot in the State of New York in past elections for Governor and Mayor of New York City. Compl. at 1, Ex. B, ECF No. 1-1. He initiated this lawsuit against the District of Columbia Board of Elections (“the Board”), requesting a change in the name of a slate of affiliated candidates (the “Slate”) for election to the District of Columbia’s Democratic Party committee even though that election occurred over two months before the filing of the Complaint. The Board has moved to dismiss the Complaint on the grounds that the plaintiff lacks standing and, alternatively, fails to state a claim upon which relief may be granted. See Def.’s Mot to Dismiss at 1, ECF No. 6.1Link to the text of the note For the reasons set forth below, the Board’s motion to dismiss is granted.


The facts in this case are not in material dispute. The Board is in charge of administering elections of “members and officials of local committees of political parties.” D.C. Code § 1-1001.01(4). On November 18, 2013, the local committee of the D.C. Democratic Party, pursuant to D.C. Code Ann. § 1-1001.10(a)(1), issued a party plan for the April 2014 primary election that provided for the selection of Democratic Party committee members by slate. Def’s Mem. Supp. Mot. Dismiss (“Def.’s Mem.”) at 3, ECF No. 6-1. A slate enables candidates to affiliate with one another by running on a common platform if the group of candidates secures a requisite number of signatures and meets other minimum requirements. See3 DCMR § 1701.

The Slate at issue initially chose the name “DC for Progress, Raise the Wage.” Def.’s Mem. at 3. After being informed that the name was too long to print on the ballot, the Slate approached the plaintiff, who apparently leads the “Rent is Too Damn High” party in New York, and requested to use the [3]  name in the D.C. Democratic Party committee election. Compl. at 1. The Director of the D.C. Board of Elections expressed concern that people, specifically seniors, might be upset with the D.C. Slate’s chosen name. Compl., Ex. A., ECF No. 1-1. The Slate thereafter agreed to change the name of the Slate to the “Rent is Too Darn High.” Id.

According to the Complaint, thirty candidates ran under the “Rent is Too Darn High” Slate name in the April 1, 2014 election for seats on the Democratic Party committee in the District of Columbia and five were elected. Compl. at 2. Over two months after the election, the plaintiff filed this lawsuit seeking, among other things, to change the Slate’s name to the “Rent is Too Damn High.” Id. at 3….


In this case, the plaintiff’s Complaint references the “First Amendment’s Free Speech and Establishment Clauses” and goes on to allege that the “candidates have been denied the right to use the name of ‘The Rent is Too DAMN High,'” as the name of their Slate. Compl. at 1. The plaintiff “request[s] the word ‘Damn’ [be] granted to the DC Group Slate” and “the DC Group Slate name be changed to indicate their name of choice (The Rent is Too Damn High) on the Board of Elections in (D.C.).” Id. at 3. The Board contends that the plaintiff lacks standing to pursue this claim. Def.’s Mem. at 5-7. The Court agrees.

HN2 Article III of the Constitution restricts the power [5]  of federal courts to hear only “Cases” and “Controversies.” U.S. CONST. art. III § 2.“The doctrine of standing gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the judicial process.'” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341, 189 L. Ed. 2d 246 (2014) (alterations in original) (quotingLujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). The Supreme Court has explained, “the irreducible constitutional minimum of standing contains three elements.” Defenders of Wildlife, 504 U.S. at 560. The three-pronged standingtest consists of the following: First, the plaintiff must have suffered an “injury in fact,” i.e., “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Id. (citations and internal quotation marks omitted). Second, there must be “a causal connection between the injury and the conduct complained of,” i.e., the injury alleged must be fairly traceable to the challenged action of the Board. Id. Finally, it must be likely that the injury will be redressed by a favorable decision. Id. at 561.When declaratory or injunctive relief is sought, a plaintiff “must show he is suffering an ongoing injury or faces an immediate threat of [future] injury.” Dearth v. Holder, 641 F.3d 499, 501, 395 U.S. App. D.C. 133 (D.C. Cir. 2011) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983)). The plaintiff fails to meet any element of this three-pronged [6]  standing test.

First, the plaintiff has not suffered an injury in fact. The plaintiff concedes: (1) he is “not a resident of the District of Columbia,” Pl.’s Opp’n to Def.’s Mot. to Dismiss (“Pl.’s Opp’n”) at 1; (2) he “did not attempt to register” to vote in the election for which he seeks the Slate’s name change, id.; and (3) he was not among the thirty-members of the Slate that ran for election, id. at 2. Accordingly, the plaintiff has not suffered a legally cognizable injury in fact because he is a non-resident who did not participate in the election and, thus, he was not precluded from running under the slate name of his choice nor was he impacted by the election or its results. See Def.’s Mem. at 6 (“The instant case presents astanding issue where a nonresident asserts an injury to a political party slate of which he is not a member.”); see also Sierra Club v. Morton, 405 U.S. 727, 735, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972) (“HN3 [T]he ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.”); Bd. of Elections for D.C. v. Democratic Cent. Comm., 300 A.2d 725, 727 (D.C. 1973) (same).2Link to the text of the note

Despite conceding that he was not a candidate or registered voter in the 2014 D.C. Democratic Party election, the plaintiff insists that he hasstanding to bring this claim. In a convoluted series of statements, the plaintiff asserts that he “represent[s] the contingenticy [sic] of the ‘Rent is Too Damn High Party’ in the District of Columbia and the party’s slate for the 30 candidates (members)” that did run in the election and also “provide[s] leadership and direction . . . as the leader of the Rent is Too Damn High Party.” Pl.’s Opp’n at 1-2. As the Board correctly points out, the plaintiff “has [8]  conflated permission to use his party’s name with having a political party contingent in the District of Columbia.” Def.’s Reply in Supp. of Mot. to Dismiss (“Def.’s Reply”) at 1, ECF No. 9. The plaintiff “has proffered no evidence that the Democratic Party slate at issue intended to be a contingent of his political party.” Id. Indeed, the fact that the Slate felt the need to ask the plaintiff if it could use the name weighs against the contention that the Slate had any ongoing affiliation with the plaintiff and his political party in New York.

Without an injury, the plaintiff has no standing to pursue the instant matter. In any event, the plaintiff could not satisfy the remaining two-prongs of the standing test. The Slate agreed to change their name to the “Rent is Too Darn High,” thereby severing any causation between the plaintiff’s perceived injury and the Board’s suggestion that the Slate forego using the plaintiff’s party’s name. See Compl., Ex. A.


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