Acosta v. Democratic City Comm. (288 F. Supp. 3d 597, 2018)

Slomsky, District Judge.

I. INTRODUCTION...608

II. BACKGROUND...611

A. Pennsylvania Elections...611

B. Factual Background...613

1. The Special Election and the Participants...613

2. Alleged Voter Coercion, Intimidation, and Other Misconduct that Occurred During the Special Election...614

a. Actions of Government Actors...614

b. Actions of Democratic Party Actors...614

c. Actions of Other Unidentified Actors...615

3. Alleged Tampering with Materials, Malfunctioning of Voting Machines, and Improper Chain of Custody Procedures for Voting Equipment...618

4. Results of the Special Election...619

C. Procedural History...619

III. STANDARD OF REVIEW...621 IV. ANALYSIS...622

A. Plaintiffs' Claims Are Not Moot...623

B. Plaintiffs Were Not Required to Bring Their Claims in State Court First...624

C. Eleventh Amendment Immunity...625

1. The Eleventh Amendment Bars Suit Against the Pennsylvania Department of State on Constitutional and State Law Claims...626

2. The Eleventh Amendment Does Not Bar Suit Against Secretary Cortés on Constitutional Claims, But It Does Bar Suit on State Law Claims...627

D. Emilio Vazquez, the Democratic Committee, and the Six Ward Leaders Are Not State Actors and Cannot Be Subject to Liability Pursuant to 42 U.S.C. § 1983...628

1. Democratic Committee Is Not a State Actor...629

2. Six Ward Leaders Are Not State Actors...632

3. Emilio Vazquez, as a Write-In Candidate, Is Not a State Actor...634

E. Speaker Turzai, Secretary Cortés, and the Individual City Commissioners Had No Personal Involvement in the Alleged Wrongful Conduct, and Plaintiffs Have Not Plausibly Pled a Claim for Failure to Train or Supervise by Cortés and the City Commissioners...636

1. Claims Against Speaker Turzai Will Be Dismissed Because He Had No Personal Involvement in the Alleged Wrongful Conduct...637

2. Claims Against Secretary Cortés Will Be Dismissed Because He Had No Personal Involvement in the Alleged Wrongful Conduct and Because Plaintiffs Have Not Plausibly Pled a Claim for Failure to Train or Supervise...638

3. Claims Against the Individual City Commissioners Will Be Dismissed Because They Had No Personal Involvement in the Alleged Wrongful Conduct and Because Plaintiffs Have Not Plausibly Pled a Claim for Failure to Train or Supervise...639

F. Claims Against the City Commissioners' Office Will Be Dismissed Because Plaintiffs Have Not Plausibly Pled a Policy or Custom of Failure to Train or Supervise...640

G. Plaintiffs' Claims for Violations of Their First and Fourteenth Amendment Rights...643

H. Plaintiffs Acosta and Lloyd Have Not Plausibly Pled a Violation of the Voting Rights Act...647

I. Election Board Workers and Election Officers Are Not Necessary or Indispensable Parties...648

J. Pennsylvania Election Code Claims Will Be Dismissed Without Prejudice...650

K. Claims Against the Committee of Seventy and Leslie Acosta Will Be Dismissed Without Prejudice...651

L. Plaintiffs Will Be Granted Leave to Amend the Complaints Against All Defendants Except Against the Pennsylvania Department of State...652

V. CONCLUSION...654

I. INTRODUCTION

At the heart of this action is the integrity of a special election held on March 21, 2017 for Pennsylvania State Representative for the 197th Legislative District in Philadelphia. The special election was ordered by Pedro Cortés, then Secretary of the Commonwealth of Pennsylvania, after Leslie Acosta, the elected State Representative, was not seated in the General Assembly due to a prior felony conviction. On March 31, 2017, after the official vote count in the special election was certified, Democratic write-in candidate, Emilio Vazquez, was declared the presumptive winner.

The instant litigation concerns two related lawsuits filed after Vazquez was declared the winner: Acosta et al. v. Democratic City Committee et al., Civil Action No. 17-1462, and Little et al. v. Vasquez et al., Civil Action No. 17-1562. Plaintiffs in the first action ("Acosta action") are defeated write-in candidates Orlando A. Acosta and Edward Lloyd, proceeding pro se. (Doc. No. 11 ¶¶ 1-2.) Plaintiffs in the second action ("Little action") are defeated Republican candidate Lucinda Little, defeated write-in Green Party candidate Cheri Honkala, Republican City Committee of Philadelphia, and the Republican Party of Pennsylvania ("Little Plaintiffs"). (Doc. No. 2 ¶¶ 1-5.) On August 10, 2017, the actions were consolidated by Order of this Court. (Doc. No. 53.)

Plaintiffs allege that during the special election, numerous instances of coercion, intimidation, and misconduct occurred, which caused the election to be held in an unfair manner. To remedy these alleged injustices, Plaintiffs bring this action under 42 U.S.C. § 1983 against Vazquez and various parties, including state and local government officials and entities they claim were involved in the execution of the election. Plaintiffs allege that the manner in which the election was conducted violated the First and Fourteenth Amendments to the United States Constitution, as well as the Pennsylvania Election Code. Plaintiffs seek declaratory relief that their First and Fourteenth Amendment rights of association, right to vote, and right to speech, as well as their Fourteenth Amendment right to fundamental due process were violated. Plaintiffs also seek a preliminary and a permanent injunction barring recognition of the validity of and implementation of the election results. They further request that this Court order a new special election. Defendants have filed Motions to Dismiss, which are now ripe for a decision. For reasons that follow, the Motions to Dismiss will be granted in their entirety, but Plaintiffs will be granted leave to file amended Complaints.

II. BACKGROUND

A. Pennsylvania Elections

To put in context the facts of this case, a brief background on the electoral process in Pennsylvania is required. Elections in Pennsylvania are governed by the Pennsylvania Election Code. See 25 Pa. Stat. §§ 2600 et seq. An election in Pennsylvania can take the form of a general, municipal, primary, or special election. § 2602(f). A special election is defined as any election other than a regular, general, municipal, or primary election. § 2602(v). A special election is ordered when a vacancy occurs in either house of the Pennsylvania General Assembly. § 2778. The presiding officer of the house issues a writ of election to the proper county board of election and the Secretary of the Commonwealth. Id.

Under the Pennsylvania Election Code, the Secretary of the Commonwealth has numerous responsibilities. § 2621. Among other duties, the Secretary must (1) determine "the forms of nomination petitions and papers"; (2) "examine and reexamine voting machines, and approve or disapprove them for use"; (3) "certify to county boards of elections for primaries and elections the names of candidates"; (4) and "develop a voluntary professional certification and poll worker training program for county election officials in consultation with county boards of elections." § 2621(a)-(c), (f.1).

Candidates for special elections are nominated by political parties through nomination certificates or by political bodies through nomination papers, all filed with the Secretary of the Commonwealth. § 2779. Thereafter, the Secretary of the Commonwealth must certify to the proper county board the names, residences, and political parties or bodies of all candidates whose nomination certificates or papers have been filed with him. § 2786. All special elections must be held in accordance with the Pennsylvania Election Code, similar to any other election. § 2787.

Each political party is directed by a State committee, which is chosen in accordance with the party's rules. § 2834. Each political party's State committee may make rules for governing the party not inconsistent with law, and such rules are not effective until a certified copy has been filed with the office of the Secretary of the Commonwealth. Id. Each political party also may have a county committee, which makes rules for the party within that county. § 2837.

Each county in Pennsylvania has a board of elections. The board of elections has "jurisdiction over the conduct of primaries and elections in such county." § 2641(a). The county board of elections consists of the commissioners of that county "or any officials or board who are performing or may perform the duties of the county commissioners." § 2641(b). When an election occurs, the board has various responsibilities to ensure that the election is run according to the Pennsylvania Election Code. Each county board of elections also may make regulations for conducting elections. § 2644.

The county board of elections selects and fixes the polling places within each election district. § 2726(a). It also delivers the proper voting machines to the polling places, § 3012(a), and supplies each polling place with voting equipment and materials, § 2730(a). Included in the materials are two sample ballots that represent the face of the voting machine and provide directions for voting on the machine. § 3012(c)(2). Sample ballots must be posted outside the booths inside the polling place. Id.

Each election district has a district election board, which conducts elections for that district. The district election board "consist[s] of a judge of election,[ ] a majority inspector of election and a minority inspector of election, assisted by clerks and machine inspectors in certain cases." § 2671. The judge and inspectors of election are elected by their district and hold office for four years. Id.

Each candidate in an election is "entitled to appoint two watchers for each election district in which the candidate is voted for." § 2687(a). And political parties that have nominated a candidate are permitted to have three poll watchers at each election district. Id."Each watcher shall be provided with a certificate from the county board of elections, stating his name and the name of the candidate, party or political body he represents." § 2687(b). In Philadelphia, voting districts are divided into wards, created in conformity with the most recent census. § 2742(a).

The polls open at 7:00 a.m. and close at 8:00 p.m. § 3045. In districts using voting machines, election officers must, with the aid of sample ballots, instruct each voter before he or she enters the voting booth how to operate the machine. § 3056(a). If a voter asks for further instruction on voting after entering a voting booth, an election officer may give him or her such instruction but shall not "in any manner request, suggest or seek to persuade or induce" the voter to vote for any particular candidate. § 3056(b). And no voter is permitted to receive assistance in voting unless a reason for needing assistance is recorded on his or her registration card. § 3058(a). When the polls are closed and the last voter has voted, "the election officers shall immediately lock and seal the operating lever or mechanism of the machine, so that the voting and counting mechanism will be prevented from operation." § 3066(a).

B. Factual Background

1. The Special Election and the Participants

This case begins with a special election for the Pennsylvania State Representative seat for the 197th Legislative District in Philadelphia. The seat was open because the Pennsylvania General Assembly would not seat the previously-elected State Representative, Leslie Acosta, due to a prior felony conviction. (No. 17-1462, Doc. No. 11 ¶ 9; No. 17-1562, Doc. No. 2 ¶ 17.) She therefore resigned, and Pedro Cortés, then Secretary of the Commonwealth of Pennsylvania, ordered the special election to be held on March 21, 2017. (Id. )

Several write-in candidates ran in the special election, but the only duly nominated candidate was Plaintiff Lucinda Little, the Republican nominee. (No. 17-1462, Doc. No. 11 ¶ 13; No. 17-1562, Doc. No. 2 ¶ 21.) Write-in candidate Emilio Vazquez, the eventual winner, also participated in the special election and was purportedly sponsored and supported by the Philadelphia City Democratic Committee ("Democratic Committee") as that organization's endorsed candidate. (No. 17-1462, Doc. No. 11 ¶ 11; No. 17-1562, Doc. No. 2 ¶ 19.) Plaintiffs allege that the Democratic Committee is the predominate political force in Philadelphia and is responsible for fielding and electing Democratic candidates. (Id. )

Plaintiffs Orlando Acosta and Edward Lloyd also were write-in candidates. (No. 17-1462, Doc. No. 11 ¶ 13; No. 17-1562, Doc. No. 2 ¶ 21.) Plaintiff Cheri Honkala, a Green Party write-in candidate, participated in the election as well. (Id. ) The Green Party of Pennsylvania supported Plaintiff Honkala in her write-in campaign. (No. 17-1562, Doc. No. 2 ¶ 22.)

2. Alleged Voter Coercion, Intimidation, and Other Misconduct that Occurred During the Special Election

On March 21, 2017, the special election was held. During the special election, Plaintiffs allege that individuals at the polls engaged in voter coercion, intimidation, and other misconduct. These individuals can be divided into three categories: (a) government actors, (b) Democratic Party actors, and (c) other unidentified actors.

a. Actions of Government Actors

Plaintiffs allege that individuals acting on behalf of the local government during the special election engaged in various acts of misconduct. During the election, Election Board workers at various polling places specifically told voters to vote for Vazquez. (No. 17-1462, Doc. No. 11 ¶ 16(a); No. 17-1562, Doc. No. 2 ¶ 24(a).) In addition, Election Board workers encouraged and permitted Democratic workers and Vazquez supporters to hand out literature and enter voting booths to help voters vote for Vazquez. (No. 17-1462, Doc. No. 11 ¶ 16(b); No. 17-1562, Doc. No. 2 ¶ 24(b).) Election Board workers threatened or intimidated voters if it appeared that the voter was going to vote for a candidate other than Vazquez. (No. 17-1462, Doc. No. 11 ¶ 16(d); No. 17-1562, Doc. No. 2 ¶ 24(d).) Plaintiffs Acosta and Lloyd contend that this coercion and intimidation was documented on the internet and live on the social media website, Facebook. (No. 17-1462, Doc. No. 11 ¶ 18(f).)

Plaintiffs Acosta and Lloyd also aver that voters were turned away if they attempted to vote for Lloyd, Little, or Honkala. (Id. ¶ 16(b).) For example, when Plaintiff Lloyd attempted to vote at his polling place, a judge of elections told him four times that he could not come in to vote. (Id. ) Plaintiff Lloyd responded he was at his correct polling location and showed the judge of elections his voter card and identification. (Id. ) Ward Leader Jeffrey Little witnessed this interaction and reported it to the Philadelphia City Commissioners' Office ("City Commissioners' Office"), the Philadelphia County Board of Elections ("Board of Elections"), the Philadelphia District Attorney's Office, and the Philadelphia Police Department. (Id. )

Several judges of elections were seen handing out literature and stamps at polling places. (17-1462, Doc. No. 11 ¶ 19(b); No. 17-1562, Doc. No. 2 ¶ 26(k).) These polling places included the Bethune School, the William H. Hunter School ("Hunter School"), and polling places in Ward 19, Section 11. (No. 17-1562, Doc. No. 2 ¶¶ 26(k), 27(1).) At the Hunter School, for example, a judge of elections confiscated a Hispanic voter's literature and Honkala stamp. (Id. ¶ 27(p).)

At the Champion Learning Center in Ward 43, Section 24, a volunteer for Plaintiff Honkala observed a judge of elections giving voters a piece of paper with Vazquez's name on it so that the voters could spell it correctly. (No. 17-1562, Doc. No. 2 ¶ 27(m).) Further, in Ward 19, Section 4, a judge of elections was heard explaining to a voter that because the voter was a registered Democrat, he had to vote for a Democrat, even though the voter said that he wanted to vote for a write-in candidate unaffiliated with a political party. (Id. ¶ 27(n).)

Plaintiffs allege that Election Board workers also impermissibly interacted with individuals from the Democratic Party. For example, throughout the day at Rivera Head Start, a person associated with the Election Board would come out of the polling place, retrieve stamps from Democratic Committee people, and bring them to the voters inside the polling place. (Id. ¶ 27(o).) And at the Hartranft School, Vazquez sat and talked with the Election Board, even though he was a candidate. (Id. ¶ 27(t).) Plaintiffs Acosta and Lloyd also allege that Vazquez was seen inside polling places interacting with Election Board workers and voters when he was not permitted to do so. (No. 17-1462, Doc. No. 11 ¶ 21.)

Finally, at the fire house in Ward 19, the Sheriff's Office confiscated partisan literature even though it had a handwritten disclaimer noting who had paid for the literature. (No. 17-1562, Doc. No. 2 ¶ 27(s).) The Sheriff's Office also took a Green Party bag containing election items that were never returned, even after it was ordered to do so. (Id. )

b. Actions of Democratic Party Actors

Plaintiffs allege that individuals acting on behalf of the Democratic Party, including Democratic Committee people and Democratic poll workers, engaged in various forms of election misconduct. This election misconduct took the form of impermissible dissemination of literature and information, improper assistance of voters, and intimidation of voters.

First, Plaintiffs allege that persons affiliated with the Democratic Party improperly disseminated literature, materials, and information. Ward Leaders handed out literature even though they were not permitted to be at polling places. (No. 17-1462, Doc. No. 11 ¶ 16(a).) At the Pan American Clinic, Democratic Committee people handed out partisan materials inside the polling place. (No. 17-1562, Doc. No. 2 ¶ 26(e).) When a Honkala supporter asked a Committee person about his actions, he said that he was an "elected" person. (Id. ) At the same location, a woman told Honkala supporters that the only write-in option was Vazquez. (Id. ¶ 27(h).) And at a polling place at 17th Street and Lehigh Avenue, as voters checked in to vote, Democratic Committee people told them to vote for Vazquez. (Id. ¶ 26(j).)

Democratic Committee people and Ward Leaders also told voters they could not use a pen to cast their votes. (No. 17-1462, Doc. No. 11 ¶ 16(b).) Instead, they told voters that they could use only a stamp to cast their votes and that the only stamp they could use was a Vazquez stamp. (Id.

¶ 16(b); No. 17-1562, Doc. No. 2 ¶ 24(c).) These actions were taken within ten feet of the entrance to the polling location. (No. 17-1562, Doc. No. 2 ¶ 26(c).)

Second, Plaintiffs allege that Democratic Party affiliates provided voters with impermissible assistance. Throughout Election Day, Democratic Party representatives were seen going in and out of polling locations, even though they had no poll watcher credentials. (Id. ¶ 26(g).) At times, as many as four individuals crowded into voting booths with voters. (No. 17-1462, Doc. No. 11 ¶ 18(c); No. 17-1562, Doc. No. 2 ¶ 25(e).)

At the Welsh School, for example, Plaintiff Acosta witnessed Ward Leader Carlos Matos constantly going in and out of the polling place, influencing voters to vote for Vazquez. (No. 17-1462, Doc. No. 11 ¶ 18(e).) Defendant Matos was stamping pink slips with Vazquez stamps and instructing voters what to do with the pink slips. (Id. )

At various polling locations, Democratic Ward Leaders Carlos Matos, Elaine Tomlin, and Dwayne Lilley were seen inside polling places, which Plaintiffs Acosta and Lloyd allege was not allowed because a Democratic candidate was not on the ballot. (Id. ¶ 19(c).) At Rivera Head Start, each time a voter went in to vote, they were told that they needed "assistance," which was provided by the same Democratic poll worker. (No. 17-1562, Doc. No. 2 ¶ 27(f).)

Third, Plaintiffs allege that Democratic workers threatened, intimidated, and coerced voters. At polling places, Democratic Committee people and Ward Leaders threatened or intimidated voters if it appeared that the voter was going to vote for a candidate other than Vazquez. (No. 17-1462, Doc. No. 11 ¶ 16(d); No. 17-1562, Doc. No. 2 ¶ 24(d).) This coercion and intimidation was documented on the internet and live on Facebook. (No. 17-1462, Doc. No. 11 ¶ 18(f).)

The Little Plaintiffs allege that inside one polling place, money was illegally exchanged between the son of a Democratic Ward Leader and other Democratic officials. (No. 17-1562, Doc. No. 2 ¶ 25(a).) In addition, Democratic workers intimidated an elderly Latina woman and told her that she had to vote for Vazquez. (Id. ¶ 25(b).) The woman stated that she was afraid for her safety and that she and other senior citizens were intimidated into voting for Vazquez. (Id. ¶ 27(i).) The exchanges of money and the acts of intimidation were caught on video. (Id. ¶¶ 25(a)-(b), 27(b).)

At the entrance to the Hunter School, Democrats were heard saying: "This is where the Emilio voters vote." (Id. ¶ 27(c).) These Democrats would not let a voter enter the polling place who intended to write in Honkala's name. (Id. ) Honkala campaign treasurer Hillary Kane called the District Attorney's Office several times to complain about the conduct, and each time, she was told that someone would be sent out as soon as possible. (Id. ¶ 27(d).) Also at the Hunter School, a Hispanic woman was interested in voting for Plaintiff Honkala, but when she arrived at the polling place door, Vazquez campaign workers blocked the entrance and began to bully her. (Id. ¶ 27(p).) The voter then left the site without voting. (Id. )

At El Shaddai Church in Ward 43, Section 1, a Democratic election worker told a Honkala campaign poll worker that she was there to "assist voters" and instructed the Honkala worker to hand over her Honkala stamp. (Id. ¶ 27(k).) And similarly, after a Honkala poll worker gave a Honkala stamp to a voter, the voter told the Honkala poll worker that she had faced intimidation while inside the polling place. (Id. )

At Congreso Center on American Street in Ward 19, Vazquez campaign workers and local Ward Leaders brought voters into the polling area with their arms around the voters, warding off anyone who tried to distribute literature to them. (Id. ¶ 27(v).) The workers and the Ward Leaders then pointed to the Vazquez literature, insisting that Honkala was a "Republican and outsider." (Id. )

c. Actions of Other Unidentified Actors

Plaintiffs allege that other individuals at the polls that day engaged in misconduct. In this regard, Plaintiffs either have failed to plead facts revealing their identities or have failed to clearly allege whether the individuals are Democratic Party affiliates or government actors. The alleged misconduct of these other individuals included impermissible dissemination of literature and information, improper assistance to voters, and intimidation of voters.

During the election, misleading literature and information was disseminated and improper assistance was provided to voters. Among the materials disseminated was information implying that Honkala, the Green Party write-in candidate, was an outsider and a Republican. (No. 17-1562, Doc. No. 2 ¶ 26(a).) Further, at a beauty school located at 2751 Germantown Avenue, poll workers for Honkala were told that they could not put up Honkala signs because it was a "Democrat district." (Id. ¶ 26(b).) At the Barton School, a voter entered the polling place with a Honkala stamp and was told by election workers that she "had the wrong stamp." (Id. ¶ 27(a).)

And at Munoz Marin School, a table covered with literature for Vazquez was set up next to a voting machine, and voters were being told that the table had "what they need[ed] to vote." (Id. ¶ 26(i).) At one point, when a voter wanted to vote for Honkala, an African-American woman in her late fifties took the literature and the Honkala stamp from the voter and told her she was not allowed to have those items. (Id. ¶ 27(q).) Representatives from the District Attorney's Office as well as police officers witnessed this incident. (Id. )

At the PGW polling place, election workers confiscated stamps from voters who intended to vote for Honkala. (Id. ¶ 27(g).) These election workers told voters they could not bring stamps into the voting booth. (Id. ) And at Ward 43, Section 22, voters were prevented from voting. (Id. ) While inside the polls, an election worker gave a voter a Vazquez stamp and incorrect information about voting. (Id. ¶ 27(k).) After this conduct occurred, the voter said that she did not want to vote anymore. (Id. )

At the McKinley School in Ward 19, a voter said that she would like to vote for Honkala. (Id. ¶ 27(w).) The voter was given a Honkala stamp and a stamp pad and shown how to cast a write-in vote. (Id. ) When the voter went into the polling place, an election worker followed her inside the voting booth. (Id. ) While in the booth, the election worker pushed the write-in button, handed the voter a Vazquez stamp, and told her: "This is the one you should use." (Id. ) Then, the election worker closed the voting booth shutter. (Id. )

At the Welsh School, Plaintiff Acosta saw poll workers passing out Vazquez stamps to voters. (No. 17-1462, Doc. No. 11 ¶ 18(e).) And at Bethune School, an election worker was seen inside the polling place with a Vazquez write-in stamp. (No. 17-1562, Doc. No. 2 ¶ 26(h).) At the Esperanza Health Center, a Honkala voter was asked by the election workers for whom she was voting. (Id. ¶ 26(f).)

Plaintiffs also allege that voters were intimidated, harassed, and coerced at the polls. A voter at the Hunter School was harassed as she tried to enter the polling place. (Id. ¶ 27(e).) She was told that her name was not on the voter rolls and therefore she could not vote even though she had voted in that voting division her whole life. (Id. ) The voter was not offered a provisional ballot. (Id. ) At the same location, a volunteer outside the polling place told voters that if they were Democrats, they could not vote for Honkala because she was not a Democrat. (Id. ¶ 27(r).) In contrast, Fred Ramirez, a Democrat who lives in Bucks County, Pennsylvania, voted under property that he owns in the 197th District even though Plaintiffs allege that he should not have been permitted to do so. (No. 17-1462, Doc. No. 11 ¶ 19.)

The Little Plaintiffs allege that at West Kensington Ministry, an election worker was seen taking money from a Democratic poll worker while exiting the polling site. (No. 17-1562, Doc. No. 2 ¶ 27(b).)

Plaintiffs allege that all of this conduct occurred because the Democratic Committee, Secretary Cortés, and the Department of State, Bureau of Commissioners, Elections and Legislation ("Pennsylvania Department of State") failed to supervise the election. (No. 17-1462, Doc. No. 11 ¶¶ 17, 23; No. 17-1562, Doc. No. 2 ¶¶ 24(g), 31.)

3. Alleged Tampering with Materials, Malfunctioning of Voting Machines, and Improper Chain of Custody Procedures for Voting Equipment

Plaintiffs allege that voting materials and equipment were tampered with, voting machines malfunctioned, and improper chain of custody procedures were followed with respect to voting materials and equipment.

Plaintiffs claim that voting signs were tampered with so that it appeared that the City of Philadelphia was endorsing Vazquez. Nonpartisan pink ballot sheets, prepared by the City Commissioners' Office and paid for by Philadelphia taxpayers, posted in polling places to illustrate the ballot, were doctored by Defendant Vazquez and Democratic Committee workers to instruct voters to write in Vazquez's name. (No. 17-1462, Doc. No. 11 ¶ 18(a); No. 17-1562, Doc. No. 2 ¶ 25(c).) In addition, Ward Leaders and Democratic Committee people set up tables in support of Vazquez. (No. 17-1462, Doc. No. 11 ¶ 18(a).) This conduct was observed at the Wyoming Branch Library. (No. 17-1562, Doc. No. 2 ¶ 26(d).) Plaintiffs allege that these actions gave voters the impression that the City of Philadelphia was specifically instructing voters to vote for Vazquez. (No. 17-1462, Doc. No. 11 ¶ 18(a); No. 17-1562, Doc. No. 2 ¶ 25(c).)

In addition, materials of other candidates were removed. For example, at several polling locations, poll workers for Plaintiff Lloyd were told that they could not hang his signs. (No. 17-1462, Doc. No. 11 ¶ 18(d).) And poll workers and Ward Leaders ripped down signs for Plaintiff Lloyd that had been hung on the outside of polling places. (Id. ) The police, the District Attorney's Office, the Board of Elections, and the City Commissioners' Office were all notified of this conduct. (Id. )

Voting machines, as well as the machines' write-in mechanism, frequently malfunctioned, and proper procedures for alternative ballots were not followed. (Id. ¶ 18(b); No. 17-1562, Doc. No. 2 ¶ 25(d).) Defendant Matos was seen going into voting booths and handling voting machines. (No. 17-1562, Doc. No. 2 ¶ 26(g).)

Finally, proper chain of custody procedures for voting cartridges and election materials were not followed. (No. 17-1462, Doc. No. 11 ¶ 16(e); No. 17-1562, Doc. No. 2 ¶ 24(e).) Plaintiffs believe that individuals other than the Philadelphia Police Department impermissibly picked up and delivered cartridges and election materials. (Id. ) Plaintiffs Acosta and Lloyd also allege that voting slips were missing or damaged in several polling locations. (No. 17-1462, Doc. No. 11 ¶ 16(e).) In fact, on the night of the election, multiple individuals had custody of election materials. (Id. ¶ 16(f); No. 17-1562, Doc. No. 2 ¶ 24(f).) These individuals included workers from Defendant Vazquez's political party or other parties. (Id. ) At the end of election night, election workers also were seen pulling the register tape from the voting machines. (No. 17-1562, Doc. No. 2 ¶ 27(u).) After pulling the register tape, election workers were seen signing the middle of the tape in boxes where voters could write in a candidate. (Id. )

Plaintiffs Acosta and Lloyd allege that these problems were caused by the Board of Elections, the City Commissioners, the Ward Leaders, the Committee of Seventy, and Pennsylvania Speaker of the House of Representatives Mike Turzai. (No. 17-1462, Doc. No. 11 ¶ 22.)

4. Results of the Special Election

On Friday, March 24, 2017, three days after the special election concluded, the official vote count began. (Id. ¶ 15; No. 17-1562, Doc. No. 2 ¶ 23.) Vazquez received 1,972 votes. (Id. ) Honkala received 286 votes, while Little received 201 votes. (Id. ) Lloyd received 20 votes, and Acosta received two votes. (No. 17-1462, Doc. No. 11 ¶ 15.)

On Friday, March 31, 2017, Vazquez was declared the putative winner of the special election. (Id.; No. 17-1562, Doc. No. 2 ¶ 23.) On April 3, 2017, the results of the special election were certified, and on April 5, 2017, Vazquez was sworn in as Pennsylvania State Representative for the 197th Legislative District. (Hr'g Tr. 13:16-13:17.)

C. Procedural History

On March 31, 2017, Plaintiffs Orlando A. Acosta and Edward Lloyd instituted this action by filing an Emergency Petition for an injunction staying the certification of Vazquez as the special election winner. (No. 17-1462, Doc. No. 1-3.) That same day, by Order of the Honorable Paul S. Diamond of this Court, the Motion of Plaintiffs Acosta and Lloyd was denied. (Id., Doc. No. 4.) Thereafter, Plaintiffs Acosta and Lloyd filed a Complaint against Defendants. (Id., Doc. No. 5). On April 4, 2017, they filed an Amended Complaint. (Id., Doc. No. 9.) And on April 10, 2017, Plaintiffs Acosta and Lloyd filed a Second Amended Complaint, which is the operative Complaint in the Acosta action. (Id., Doc. No. 11.) On April 6, 2017, the Little Plaintiffs filed their Complaint (No. 17-1562, Doc. No. 1), and on April 7, 2017, they filed an Amended Complaint (Id., Doc. No. 2).

Plaintiffs in both actions bring similar claims for relief. In Plaintiffs Acosta and Lloyd's Second Amended Complaint and the Little Plaintiffs' Amended Complaint (collectively, "Complaints"), they caption Count I as a claim for declaratory relief and Count II as a claim for preliminary and permanent injunctive relief. (No. 17-1462, Doc. No. 11 at 25-26; No. 17-1562, Doc. No. 2 at 26-27.) Plaintiffs bring both Counts pursuant to 42 U.S.C. § 1983, alleging that Defendants violated their First and Fourteenth Amendment rights of association, right to vote, and right to speech, as well as their Fourteenth Amendment fundamental due process right. (Id. ) Plaintiffs also allege in both Counts that Defendants' wrongful conduct violated the Pennsylvania Election Code. (Id. )

In Count I, Plaintiffs request declaratory relief that their First and Fourteenth Amendment rights were violated, that the special election was held in violation of the Pennsylvania Election Code, and that the special election be declared null and void. (No. 17-1462, Doc. No. 11 at 25; No. 17-1562, Doc. No. 2 at 26.) They allege as follows:

The Defendants, due to lack of supervision and/or through the alleged pervasive misconduct, violated the Pennsylvania Election Code as noted above and, as a result, corrupted and undermined the election results and undermined the right of voters to vote for a candidate of their choice and for candidates to run and be voted for by persons.

(No. 17-1462, Doc. No. 11 ¶ 28; No. 17-1562, Doc. No. 2 ¶ 36.)

In Count II, Plaintiffs request preliminary and permanent injunctive relief that the Court enjoin the special election results and the seating of Vazquez in the General Assembly, order a new election to be held, order sanctions, and award counsel fees and costs. (No. 17-1462, Doc. No. 11 at 26-27; No. 17-1562, Doc. No. 2 at 27-28.) Plaintiffs Acosta and Lloyd further request that the Court bar Vazquez, Ward Leaders, Democratic Committee people, and poll workers from participating in the requested new special election. (No. 17-1462, Doc. No. 11 ¶ 38.) And they request that the Court bar Vazquez from running in the special election and all subsequent elections for the next ten years. (Id. )

In Count II, Plaintiffs allege that the special election was held in a manner that violated their First and Fourteenth Amendment rights, as well as the Pennsylvania Election Code. (No. 17-1462, Doc. No. 11 ¶ 32; No. 17-1562, Doc. No. 2 ¶ 39.) They allege:

There were numerous and repeated election violations and tampering with votes, which resulted in election results that were not accurate or fairly counted and the election should be declared null and void.

(No. 17-1462, Doc. No. 11 ¶ 33; No. 17-1562, Doc. No. 2 ¶ 40.)

On August 10, 2017, the Acosta action and the Little action were consolidated by Order of this Court. (Id., Doc. No. 53.) Defendants have filed Motions to Dismiss the claims against them. On September 14, 2017, a hearing was held on the Motions. The Motions are now ripe for a decision.

III. STANDARD OF REVIEW

The motion to dismiss standard under Federal Rule of Civil Procedure 12(b)(6) is set forth in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). After Iqbal it is clear that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to defeat a Rule 12(b)(6) motion to dismiss. Id. at 678, 129 S.Ct. 1937 ; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013) (quoting Sheridan v. NGK Metals Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Applying the principles of Iqbal and Twombly, the Third Circuit in Santiago v. Warminster Township, 629 F.3d 121 (3d Cir. 2010), set forth a three-part analysis that a district court in this Circuit must conduct in evaluating whether allegations in a complaint survive a 12(b)(6) motion to dismiss:

First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."

Id. at 130 (quoting Iqbal, 556 U.S. at 675, 679, 129 S.Ct. 1937 ). The inquiry is normally broken into three parts: "(1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

A complaint must do more than allege a plaintiff's entitlement to relief, it must "show" such an entitlement with its facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008) ). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.' " Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (alteration in original) (quoting Fed. R. Civ. P. 8(a)(2) ). The "plausibility" determination is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

When determining a motion to dismiss, the court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Where, the complaint is filed pro se, as is the Acosta Second Amended Complaint, the "complaint, 'however inartfully pleaded' must be held to 'less stringent standards than formal pleadings drafted by lawyers.' " Fantone v. Latini, 780 F.3d 184, 193 (3d Cir. 2015) (quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) ). It should be dismissed only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of [his] claim that would entitle [him] to relief." Olaniyi v. Alexa Cab Co., 239 Fed.Appx. 698, 699 (3d Cir. 2007) (citing McDowell v. Del. State Police, 88 F.3d 188, 189 (3d Cir. 1996) ).

IV. ANALYSIS

Plaintiffs bring this action against Defendants pursuant to 42 U.S.C. § 1983. As noted, § 1983 provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured....

§ 1983. Section 1983 does not provide substantive rights but instead "authorizes a person to file a private cause of action against state actors for a deprivation of rights protected by a federal statute or the United States Constitution." Oh v. Phila. Cty. Bd. of Elections, Civ. A. No. 08-0081, 2008 WL 4787583, at *2 (E.D. Pa. Oct. 31, 2008) (citing West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) ). To recover under § 1983, a plaintiff must establish that defendants "acted under color of state law to deprive the plaintiff of a right secured by the Constitution." Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting West, 487 U.S. at 48, 108 S.Ct. 2250 ). Plaintiffs allege that their First and Fourteenth Amendment right to association, to vote, and to speech, and their Fourteenth Amendment right to fundamental due process were violated as a result of the conduct that allegedly took place during the special election.

Defendants argue in opposition that the Complaints should be dismissed in their entirety. First, Secretary Cortés, the Pennsylvania Department of State, and Speaker Turzai assert that the claims against them should be dismissed because they are moot. Second, Secretary Cortés and the Pennsylvania Department of State argue that certain claims are barred by the Eleventh Amendment. Third, Vazquez, the Democratic Committee, and the Ward Leaders argue that they are not state actors and therefore cannot be held liable under § 1983. Fourth, all Defendants contend that the Complaints should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim because they did not violate Plaintiffs' constitutional rights under the First and Fourteenth Amendments. The Court will address each argument for dismissal in turn.

A. Plaintiffs' Claims Are Not Moot

Defendants Secretary Cortés, the Pennsylvania Department of State, and Speaker Turzai assert that the claims against them are moot and should be dismissed because the special election results were certified on April 3, 2017, and Vazquez was sworn into office on April 5, 2017. (No. 17-1462, Doc. No. 31-2 at 4-5, Doc. No. 32 at 17-19.) They argue, therefore, that there is no live controversy, and that this Court could not afford Plaintiffs relief by undoing the election. (Id., Doc. No. 31-2 at 4-5, Doc. No. 32 at 18.) The Little Plaintiffs submit, to the contrary, that their Complaint was timely brought and that Defendants' conduct is capable of repetition. (No. 17-1562, Doc. No. 24. at 7.) For reasons that follow, Defendants' claims based on mootness are without merit.

Article III of the United States Constitution specifies that the judicial power extends only to cases and controversies. Campbell-Ewald Co. v. Gomez, --- U.S. ----, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016) (citing U.S. Const. art. III, § 2). It is not sufficient that a controversy exist at the time the complaint was filed, but rather, an actual controversy must be present at all stages of the case. Id. (citing Arizonans for Official English v. Arizona, 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) ). A case becomes moot when (1) "the issues presented are no longer 'live,' " or (2) "the parties lack a legally cognizable interest in the outcome." Chafin v. Chafin, 568 U.S. 165, 172, 133 S.Ct. 1017, 185 L.Ed.2d 1 (2013) (quoting Already, LLC v. Nike, Inc., 568 U.S 85, 91, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013) ). "[A] case 'becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.' " Id. (quoting Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam) ).

The Third Circuit has recognized that there are exceptions to the mootness doctrine. One such exception is when the conduct is capable of repetition yet evades review. Merle v. United States, 351 F.3d 92, 95 (3d Cir. 2003). For this exception to apply, a plaintiff must establish that "(1) the challenged action is, in its duration, too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) ). When there is a likelihood that "the acts complained of will be repeated, the substantive issues remain justiciable, and a declaratory judgment could be rendered to define the rights and obligations of the parties." N.J. Tpk. Auth. v. Jersey Cent. Power & Light, 772 F.2d 25, 32 (3d Cir. 1985) (citations omitted).

For claims involving elections, courts have provided relief under the exception for conduct capable of repetition yet evading review even after elections have ended and a winner has been announced. E.g., N.H. Right to Life Political Action Comm. v. Gardner, 99 F.3d 8, 18 (1st Cir. 1996) ("[E]lections are routinely too short in duration to be fully litigated, and there is a reasonable expectation that the same party would be subjected to the same action again."); Merle, 351 F.3d at 95 (explaining that plaintiffs' claims were not moot even after election had ended because it was reasonable to assume that plaintiff would attempt to run for office again, and the same statute that caused plaintiff to file suit would again bar his candidacy for office); De La Fuente v. Cortes, 261 F.Supp.3d 543, 549, (M.D. Pa. 2017) (concluding that plaintiff's claim that Pennsylvania election laws impeded his campaign efforts were not moot because the election was over since they fell within the exception of claims "capable of repetition yet evading review"); Arons v. Donovan, 882 F.Supp. 379, 383 (D.N.J. 1995) (holding that claims were not moot merely because election was over because claims were likely to re-emerge in future electoral seasons); Branch v. F.C.C., 824 F.2d 37, 41 n.2 (D.C. Cir. 1987) ("Controversies that arise in election campaigns are unquestionably among those saved from mootness under the exception for matters 'capable of repetition, yet evading review.' ").

Plaintiffs cite Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994), to illustrate that meaningful relief is not precluded by the certification of election results. (No. 17-1562, Doc. No. 24. at 7.) In Marks, the Court dealt with allegations of electoral misconduct. Id. at 886. The Third Circuit affirmed the district court's conclusion that wrongdoing affected the election. Id. at 887. The Court affirmed the grant of injunctive relief, prohibiting Stinson, the winning candidate, from exercising the powers of the office after he was certified and sworn into office. Id. at 884, 887. The Third Circuit stated that "where there is substantial wrongdoing in an election, the effects of which are not capable of quantification but which render the apparent result an unreliable indicium of the will of the electorate, courts have frequently declined to allow the apparent winner to exercise the delegated powers." Id. at 887.

Here, Plaintiffs' claims are not moot because Defendants' conduct is capable of being repeated. Like the cases mentioned above, it is reasonable to assume that Plaintiffs would attempt to run for office in future elections. Furthermore, the present case is too short in duration to be fully litigated, and the same electoral misconduct is capable of repetition in future elections. If warranted, relief can be granted by this Court to define the rights and obligations of all parties so that this type of conduct does not occur in future elections. Thus, Plaintiffs' claims meet the exception for conduct that is capable of repetition yet evades review. See N.J. Tpk. Auth., 772 F.2d at 31. For all these reasons, the claims are not moot.

B. Plaintiffs Were Not Required to Bring Their Claims in State Court First

Defendants Vazquez, the Democratic Committee, and Ward Leaders Carlos Matos, Elaine Tomlin, Jewell Williams, Dwayne Lilley, Shirley Gregory, and El-Amor Browne Ali ("Six Ward Leaders") assert that Plaintiffs were required to pursue first an election contest in state court before seeking relief in federal court. (No. 17-1462, Doc. No. 37-1 at 16-17, Doc. No. 38 at 15-16, Doc. No. 41-2 at 4.) The Court disagrees.

Plaintiffs were not required to file an election contest in state court as a condition precedent to having their constitutional claims heard in federal court. "[A] person with a federal Civil Rights Act claim has no duty to exhaust state remedies before pursuing his or her claim in the federal courts." Marks, 19 F.3d at 882 (citing Patsy v. Bd. of Regents, 457 U.S. 496, 516, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) ). Plaintiffs can proceed "in federal court without having resorted to the state's judicial process." Id.

In certain circumstances, however, "circuit courts have deferred to ongoing state recount and review procedures where these appear to be adequate and the alleged misconduct is lacking in 'enormity.' " Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978). But "[i]t is no answer to the charges made here that state law could provide the relief sought." Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975) (citations omitted). Therefore, Plaintiffs can bring their claims in federal court even though they did not file an election contest in state court first.

C. Eleventh Amendment Immunity

Defendants Secretary Cortés and the Pennsylvania Department of State contend that the Eleventh Amendment bars the state law claim that they violated the Pennsylvania Election Code. (No. 17-1462, Doc. No. 32 at 12.) In response, the Little Plaintiffs argue that the claims against Secretary Cortés and the Pennsylvania Department of State are not barred because Plaintiffs only seek injunctive relief. (17-1564, Doc. No. 24 at 4-5.)

The Eleventh Amendment to the United States Constitution provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. Under the Eleventh Amendment, a nonconsenting state is immune from suit in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). This immunity extends to suits brought by a citizen against his own state, Lavia v. Pa., Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (citations omitted), and "to state agencies and departments," MCI Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 503 (3d Cir. 2001) (citing C.H., ex rel. Z.H. v. Oliva, 226 F.3d 198, 201 (3d Cir. 2000) (en banc) ). However, "[s]tate officials sued in their individual capacities are 'persons' for purposes of § 1983." Walker v. Beard, 244 Fed.Appx. 439, 440 (3d Cir. 2007) (per curiam) (citing Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991) ). As such, "the Eleventh Amendment does not preclude a suit against a state official in his or her individual capacity." Id.

Eleventh Amendment immunity, however, is subject to three exceptions: "(1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law." Pa. Fed'n of Sportsmen's Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d Cir. 2002) (quoting MCI Telecomm. Corp., 271 F.3d at 503 ).

The first exception, congressional abrogation, does not apply in this case. Plaintiffs have brought suit under 42 U.S.C. § 1983. "Congress did not abrogate states' sovereign immunity when it enacted 42 U.S.C. § 1983." Walker, 244 Fed.Appx. at 440 (per curiam) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 66, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) ). The second exception, state waiver, also does not apply in this case. "[T]he Pennsylvania legislature has expressly declined to waive its sovereign immunity by statute." Walker, 244 Fed.Appx. at 440 (citing Lavia, 224 F.3d at 195 ); see 42 Pa. Cons. Stat. § 8521(b) ("Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment to the Constitution of the United States.").

Therefore, only the third exception is at issue in this case. Pursuant to Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Eleventh Amendment does not bar suits against state officials in their official capacity seeking injunctive relief to end ongoing violations of federal law. Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002) (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) ). "[A] state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because 'official-capacity actions for prospective relief are not treated as actions against the State.' " Will, 491 U.S. at 71 n.10, 109 S.Ct. 2304 (citing Kentucky, 473 U.S. at 167 n.14, 105 S.Ct. 3099 ).

"The relief sought must be prospective, declaratory, or injunctive relief governing an officer's future conduct and cannot be retrospective, such as money damages." MCI Telecomm. Corp., 271 F.3d at 506 (citing Pennhurst State Sch. & Hosp., 465 U.S. at 102, 104 S.Ct. 900 ). "In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective." Verizon Md., Inc. v. Pub. Serv. Comm'n, 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (alteration in original) (citation omitted).

The doctrine of Ex parte Young , however, does not apply to states or state agencies. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). Those suits are barred "regardless of the relief sought." Id.; accord Dickerson v. SCI Graterford, 453 Fed.Appx. 134, 137 (3d Cir. 2011) (explaining that Eleventh Amendment prevented suit against state agency for monetary or prospective injunctive relief); Walker, 244 Fed.Appx. at 440 (same).

With respect to state law claims, the doctrine of Ex parte Young also does not apply to such claims against state officials, regardless of the relief sought. In Pennhurst State Sch. & Hosp., the Supreme Court held that "a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when...the relief sought and ordered has an impact directly on the State itself." 465 U.S. at 117, 104 S.Ct. 900. As a result, "a claim that state officials violated state law in carrying out their official responsibilities is ... protected by the Eleventh Amendment." Id. at 122, 104 S.Ct. 900. The Third Circuit has held that "state officials are immune from suit in federal court based on violations of state law, including suits for prospective injunctive relief under state law, unless the state waives sovereign immunity." Balsam v. Sec'y of N.J., 607 Fed.Appx. 177, 183 (3d Cir. 2015) (citing Pennhurst, 465 U.S. at 106, 104 S.Ct. 900 ). And "the supplemental jurisdiction statute, 28 U.S.C. § 1367, does not authorize district courts to exercise jurisdiction over claims against non-consenting States." Id. Even when voters attempt to "tie their state law claims into their federal claims," the Eleventh Amendment bars the state law claims. Id. at 183-84.

1. The Eleventh Amendment Bars Suit Against the Pennsylvania Department of State on Constitutional and State Law Claims

As a state agency, Eleventh Amendment immunity extends to the Pennsylvania Department of State. See Shine v. Merenda, 586 Fed.Appx. 95, 97 (3d Cir. 2014) (extending Eleventh Amendment immunity to the Pennsylvania Department of State as part of the executive department (citing Lavia, 224 F.3d at 195 ) ). None of the three exceptions to immunity applies to the Pennsylvania Department of State. First, Congress has not abrogated the Pennsylvania Department of State's sovereign immunity for § 1983 suits. Walker, 244 Fed.Appx. at 440 (3d Cir. 2007) (citing Will, 491 U.S. at 66, 109 S.Ct. 2304 ). Second, "the Pennsylvania legislature has expressly declined to waive its sovereign immunity by statute." Id. (citing Lavia, 224 F.3d at 195 ); see also 42 Pa. Cons. Stat. § 8521(b). Third, the doctrine of Ex parte Young does not apply to the Pennsylvania Department of State, which is a state agency. Puerto Rico Aqueduct & Sewer Auth., 506 U.S. at 146, 113 S.Ct. 684. Even though this suit is for prospective injunctive relief, the Eleventh Amendment bar still applies. Because none of the three exceptions to sovereign immunity apply, Plaintiffs' constitutional claims under 42 U.S.C. § 1983 and state law claims for violations of the Pennsylvania Election Code are barred by the Eleventh Amendment. Accordingly, all claims against the Pennsylvania Department of State will be dismissed with prejudice because this Court does not have jurisdiction over them. See C.H. ex rel. Z.H., 226 F.3d at 201 (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 63, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ).

2. The Eleventh Amendment Does Not Bar Suit Against Secretary Cortés on Constitutional Claims, But It Does Bar Suit on State Law Claims

As noted, a plaintiff can sue a state official under Ex parte Young for violations of federal law for prospective injunctive and declaratory relief. MCI Telecomm. Corp., 271 F.3d at 506. Here, the doctrine of Ex parte Young applies to Plaintiffs' constitutional claims for prospective injunctive and declaratory relief, and therefore the First and Fourteenth Amendment claims are not barred by the Eleventh Amendment. Secretary Cortés, as an officer of the Pennsylvania Department of State, may be sued in his individual and official capacities "for prospective injunctive and declaratory relief to end continuing or ongoing violations of federal law." Id.; see also Koslow, 302 F.3d at 178 (citing Kentucky, 473 U.S. at 167 n.14, 105 S.Ct. 3099 ).

Secretary Cortés argues, however, that he is not a proper Defendant under 42 U.S.C. § 1983 because he does not supervise elections and has no power over individual election officials. (No. 17-1462, Doc. No. 32 at 13-14.) Instead, he argues that he is charged only with ministerial duties and "high-level oversights of the election." (Id. at 13.)

In Constitution Party of Pennsylvania v. Cortes, the Third Circuit clarified the Ex parte Young exception for state officials as follows:

"[I]n making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act." [ Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908).] That said, we have held that even "entirely ministerial" duties can be sufficient under Young, because "the inquiry is not into the nature of an official's duties but into the effect of the official's performance of his duties on the plaintiff's rights." Finberg v. Sullivan, 634 F.2d 50, 54 (3d Cir. 1980).

824 F.3d 386, 396 (3d Cir. 2016).

Here, Plaintiffs allege that Secretary Cortés "had the express duties and responsibilities pursuant to Pennsylvania laws...to administer a special election according to the Pennsylvania Election Code and to ensure that there was no tampering of votes or with voters." (No. 17-1462, Doc. No. 11 ¶ 10; No. 17-1562, Doc. No. 2 ¶ 18.) Under 25 Pa. Stat. § 2621(f.1), policymaking authority to develop a poll worker training program was delegated to Secretary Cortés, as an official of the Pennsylvania Department of State. Section 2621(f.1) provides that Secretary Cortés was required to "develop a voluntary professional certification and poll worker training program for county election officials in consultation with county board of elections." § 2621(f.1). Therefore, at the motion to dismiss stage, the Court will assume that the Secretary Cortés set policy for election training. Because the Ex parte Young exception applies, which allows a claim for prospective relief, the Eleventh Amendment does not automatically bar the constitutional claims against Cortés. But as discussed below, however, Plaintiffs have failed to state plausible First and Fourteenth Amendment claims for relief against Cortés for other reasons.

In contrast, the doctrine of Ex parte Young does not apply to Plaintiffs' state law claim for violations of the Pennsylvania Election Code. Thus, Plaintiffs' claim that Cortés violated the Pennsylvania Election Code while carrying out h