The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING DEFENDANT GANJE'S MOTION TO DISMISS
Defendant Sue Ganje moves under Fed. R. Civ. P. 12(b)(6) and 12(c) for dismissal of all counts that request injunctive and declaratory relief in plaintiffs Eileen Janis and Kim Colhoff's amended complaint. Plaintiffs resist Ganje's motion.*fn1
On February 18, 2009, plaintiffs filed a civil action under 42 U.S.C. § 1983 alleging that their right to vote during the 2008 federal, state, and local elections had been unlawfully denied by defendants. Plaintiffs then filed an amended complaint on October 7, 2009. In the amended complaint, plaintiffs assert eight causes of action that allege various violations of their rights. Counts 1 and 2 assert that their rights under the Equal Protection and Due Process Clauses in both the Federal and South Dakota Constitutions were violated. See U.S. Const. amend. XIV, § 1; S.D. Const. Art. VI, §§ 2, 19; S.D. Const. Art. VII, § 1. Counts 3 and 4 allege violations of the Help America Vote Act (HAVA) and a South Dakota statute. See 42 U.S.C. §§ 15482, 15483; S.D. Codified Laws § 12-18-39. Count 5 alleges violations of the National Voter Registration Act (NVRA). 42 U.S.C. § 1973gg-6. In Counts 6 and 7, plaintiffs assert that defendants violated the Voting Rights Act of 1965. 42 U.S.C. §§ 1973, 1973c (hereinafter "Section 2" and "Section 5"). Finally, in Count 8, plaintiffs allege violations of the Voting Rights Act of 1964 and the Privileges or Immunities Clause of the South Dakota Constitution. See 42 U.S.C. § 1971; S.D. Const. Art. VI, § 18.
In summary, plaintiffs allege that their names were unlawfully removed from the statewide and county voter registration rolls after having been sentenced to probation for their felony convictions. Plaintiffs also allege that they were not given the opportunity to cast provisional ballots despite the existence of both federal and state laws authorizing the use of provisional ballots if there is a question about voter eligibility. Plaintiffs seek declaratory, injunctive, monetary, and other forms of relief.
Ganje moves to dismiss all claims seeking declaratory or injunctive relief on the basis of mootness and standing under Federal Rule of Civil Procedure 12(b)(6).*fn2 Under Rule 12(b)(6), the facts alleged in the complaint must be considered true and all inferences must be viewed in favor of the nonmoving party. Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir. 2004) (citing Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002)). Recently the United States Supreme Court clarified, however, that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009). "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.' " Iqbal, 129 S.Ct. at 1949. "Only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. "The plausibility standard . . . asks for more than a sheer possibility that defendant has acted unlawfully." Id. at 1949.
Plaintiffs resist the motion to dismiss the injunctive and declaratory relief portions of their claims under Section 2 and Section 5 of the Voting Rights Act. Plaintiffs argue that they have standing and that the claims are not moot.
Ganje argues that plaintiffs do not have standing because plaintiffs are attempting to assert the claims of other potential plaintiffs who are not present in this lawsuit. Plaintiffs argue that they have standing even though other people might benefit from an injunction because plaintiffs are members of a covered language minority group that Section 2 of the Voting Rights Act protects and because they are residents of a jurisdiction covered by Section 5 of the Voting Rights Act.*fn3
Three elements must be satisfied in order to satisfy the standing requirement associated with the "case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, the litigant "must have suffered an 'injury in fact.' " Mausolf v. Babbitt, 85 F.3d 1295, 1301 (8th Cir. 1996) (quoting Lujan, 504 U.S. at 560). An individual is injured in fact when there has been "an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical." Id. at 1301 (quoting Lujan, 504 U.S. at 560). Second, the litigant must demonstrate a "causal connection between the injury and the conduct being challenged." Id. (citing Lujan, 504 U.S. at 560). Third, it must be shown "that the injury is likely to be redressed by a favorable decision." Id. (citing Lujan, 504 at 561).
Assuming the factual allegations in the amended complaint are true, plaintiffs suffered an injury in fact in relation to their Section 5 claim because the practice or procedure of removing plaintiffs' names from the registered voting list is a change in voting procedure that has not been precleared pursuant to Section 5 of the Voting Rights Act. As noted by the United States Supreme Court, "Congress designed the preclearance procedure 'to forestall the danger that local decisions to modify voting practices will impair minority access to the electoral process." Lopez v. Monterey County, 519 U.S. 9, 23 (1996) (citation omitted). Thus, there is "an invasion of a legally protected interest" because plaintiffs are being deprived of Section 5's safeguards by the existence of an unprecleared voting practice in Shannon County. See Quick Bear Quiver v. Nelson, 387 F. Supp. 2d 1027, 1031 (D.S.D. 2005); see also Mausolf, 85 F.3d at 1301 (citation omitted). The causal connection element is satisfied because plaintiffs' injury of being deprived of Section 5's protections is fairly traceable to Ganje's act of following a voting practice or procedure that has not been precleared. See Quick Bear Quiver, 387 F. Supp. 2d at 1031-32. Finally, the "redressability" element is ...