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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY COVINGTON DIVISION

: : AND : : FRIENDS OF DEB SHELDON, : STATE SENATE 2014 : : PLAINTIFFS : : v. : : : ALLISON LUNDERGAN GRIMES : IN HER OFFICIAL CAPACITY AS : KENTUCKY SECRETARY OF : 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 :

DEBORAH HOLLY SHELDON

CASE NO.:

JUDGE

MAGISTRATE JUDGE VERIFIED CIVIL COMPLAINT FOR EMERGENCY INJUNCTIVE RELIEF, A DECLARATIVE JUDGMENT, AND OTHER RELIEF

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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 Commonwealths 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. Sheldons 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) 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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This Court is intimately aware of the protections of the First Amendment

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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 Commonwealths 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. Sheldons 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. Sheldons 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. Sheldons 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. Sheldons 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 Defendants violations of Mrs. Sheldons 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 attorneys 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 attorneys 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 sjmegerle@megerlelaw.com 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 COUNTY OF CAMPBELL } } } SCT.

The foregoing was sworn and subscribed before me, a Notary Public, State-atLarge 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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