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Entry Number 18

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Thomas Joseph Coyne,
Plaintiff,
vs.
South Carolina Secretary of State
and South Carolina Republican
Party,
Defendants.

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Civil Action No. 3:15-cv-3669-JFA-SVH

DEFENDANT SOUTH CAROLINA REPUBLIC PARTY’S
MEMORANDUM IN OPPOSITION TO
PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION/RULE 12(b)(6) MOTION
TO DISMISS
STATEMENT OF THE NATURE OF THE CASE
The pro se plaintiff in this case challenges the authority of the State of South Carolina and
the South Carolina Republican Party (hereinafter “SCGOP”) to establish legitimate procedures for
the presidential primary election process to assure that fragmentation of voter choice is minimized.
The specific procedure challenged here is the filing fee for candidates in the South Carolina
Republican Party 2016 Presidential Primary election (hereinafter “SCGOP primary”). As stated
by the United States Supreme Court, the function of enhancing voter participation and
understanding “is served, not frustrated, by a procedure that tends to regulate the filing of frivolous
candidates.” Lubin v. Panish, 415 U.S. 709, 715461–62 (1991).
In this case, Plaintiff erroneously alleges that the candidate filing fee for the SCGOP
primary is a “poll tax.” However, Plaintiff has not provided any legal authority in support of his
baseless claim, and he has failed to carry his burden in seeking preliminary injunctive relief.

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Accordingly, Plaintiffs’ motion should be denied and his action should be dismissed for failure to
state a claim upon which relief can be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P.
STATEMENT OF THE FACTS
Candidates in the SCGOP primary are required to submit a $40,000.00 filing fee to the
Party. Pursuant to S.C. Code § 7-11-20, half of that filing fee goes to the South Carolina State
Election Commission for the costs associated with conducting the statewide primary election. The
remaining portion of the candidate filing fee is used for costs incurred by the SCGOP in
conjunction with voter outreach, promotion, party building, and other legitimate political activities
associated the primary election. No fee or any other charge is assessed to any registered voter who
wishes to cast a ballot in the SCGOP primary.
Plaintiff is a citizen and resident of Ohio. He is not a registered voter in South Carolina.
According to his pleadings, Plaintiff seeks to have his name placed on the SCGOP primary ballot,
but he is unwilling to pay the candidate filing fee. Importantly, Plaintiff states in his pleadings
that he is “NOT claiming inability to pay;” rather, he is “stating unwillingness to pay a poll tax.”
Plaintiff asks this Court to declare that the candidate filing fee for the SCGOP primary is a poll
tax.
QUESTION PRESENTED
Has Plaintiff established that he is entitled to a preliminary injunction enjoining the
SCGOP primary?
ARGUMENT
I.

THE STANDARD FOR PRELIMINARY INJUNCTIONS
Courts issue preliminary injunctions to preserve the status quo pending litigation. As the

United States Supreme Court and the United States Court of Appeals for the Fourth Circuit have
stated: “[t]he purpose of a preliminary injunction is merely to preserve the relative positions of the
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parties until a trial on the merits can be held.” United States v. South Carolina, 720 F.3d 518, 524
(4th Cir. 2013) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed.
2d 175 (1981)). “The traditional office of a preliminary injunction is to protect the status quo and
to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's
ability to render a meaningful judgment on the merits.” Id. (quoting In re Microsoft Corp. Antitrust
Litig., 333 F.3d 517, 525 (4th Cir. 2003)).
To obtain preliminary injunctive relief, Plaintiff must make a “clear showing” that: (1) he
is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of
preliminary injunctive relief; (3) the balance of equities tip in his favor; and (4) that an injunction
is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 12 (2008). All four
elements must be satisfied. Id. Under this standard, Plaintiff has the demanding burden of
“clear[ly] showing” that he is likely to succeed on the merits.
Plaintiff’s motion for a preliminary injunction must be denied for two fundamental reasons.
First, Plaintiff is not seeking to preserve the status quo; rather, he is asking this Court to alter the
current status quo and enjoin the enforcement of laws and procedures that have already been
implemented in South Carolina. Second, the motion should be denied because Plaintiff has failed
to make a clear showing that any of the four necessary elements that are required for a preliminary
injunction are present, starting with a clear showing of a likelihood of succeeding on the merits.
II.

PLAINTIFF IS NOT LIKELY TO SUCCEED ON THE MERITS OF HIS CLAIM.
Plaintiff’s arguments cannot withstand legal scrutiny. Far from demonstrating that he is

likely to succeed on the merits, Plaintiff simply engages in ad hominem attacks against the SCGOP
and individual candidates and officials without any basis in fact or law. Furthermore, Plaintiff has
failed to establish any violation of the United States Constitution or the Voting Rights Act.

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Plaintiff’s central argument is that the candidate filing fee for the SCGOP primary is a poll
tax. Of course, it is axiomatic that poll taxes are unconstitutional under the Equal Protection Clause
of the 14th Amendment. It is clear that the right to vote may not constitutionally be conditioned
upon the payment of a tax or fee. However, it is also clear that the right to vote in the SCGOP
primary is not conditioned on the payment of a tax or fee of any kind, and in fact the Plaintiff
makes no such allegations. Rather, Plaintiff claims that the candidate filing fee is the functional
equivalent of a poll tax. As the case law confirms under these facts and circumstances, that is
simply not the case.
In Morse v. Republican Party of Virginia, 517 U.S. 186 (1996), the Republican Party of
Virginia employed a practice of charging a registration fee as a prerequisite to participation in the
process of selecting a candidate for United States Senator. Plaintiffs in that case argued that the
imposition of a fee as a condition precedent to participation in the candidate selection process was
a poll tax prohibited by the Voting Rights Act of 1965. The Supreme Court ruled that Virginia
Republicans and other state political parties must get federal approval before charging a fee to
participate in a nominating convention, and the Court also allowed individual voters to challenging
the party registration fee on grounds that it is a poll tax. Importantly, there is no registration fee
to vote or otherwise participate in the SCGOP primary. All registered voters in South Carolina
are eligible to vote in the election, without any payment of a fee or tax. Therefore, the Morse case
provides no foundation for Plaintiff’s claims.
Similarly, the Supreme Court’s decision in Lubin v. Panish, 415 U.S. 709 (1974) offers
Plaintiff no refuge. In that case, the Court held that a State may not, consistent with constitutional
standards, require from an indigent candidate filing fees that he cannot pay; denying a person the
right to file as a candidate solely because of an inability to pay a fixed fee, without providing any

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alternative means, is not reasonably necessary to the accomplishment of the State's legitimate
interest of maintaining the integrity of elections. Lubin, pp. 415 U. S. 712-719 (emphasis added).
As Plaintiff has admitted and acknowledged in his pleadings, he has not claimed an inability to
pay the candidate filing fee in South Carolina. Rather, he has simply argued that he is unwilling
to pay the fee. Accordingly, because Plaintiff is admittedly not an indigent candidate, his claim
has no merit under Lubin.
Simply put, the candidate filing fee is not a poll tax under Morse because it has no impact
on the ability of voters in South Carolina to cast ballots in the SCGOP primary. Moreover, because
Plaintiff is admittedly not indigent and has the ability to pay the filing fee, there is no constitutional
violation under Lubin. Plaintiff has put forth no arguments or authorities to support his allegations
or to refute the established case law in this arena. Therefore, he cannot succeed on the merits in
this case and his motion must be denied.
III.

PLAINTIFF HAS NOT SHOWN THAT HE WILL SUFFER IRREPARABLE
HARM IF A PRELIMINARY INJUNCTION IS NOT GRANTED, NOR HAS HE
ARGUED THAT THE BALANCE OF EQUITIES ARE IN HIS FAVOR.
Plaintiff will suffer no harm if a preliminary injunction is not issued. In fact, Plaintiff has

not even alleged irreparable harm will occur if a preliminary injunction is not granted. It his burden
to show that he is entitled to injunctive relief, and he has failed to carry that burden. As a result,
he has failed to show that he is entitled to preliminary injunctive relief.
IV.

THE SCGOP AND THE PUBLIC INTEREST WILL SUFFER SUBSTANTIAL
IRREPARABLE HARM IF PRELIMINARY INJUNCTIVE RELIEF IS
GRANTED.
In contrast to the nonexistent harms facing Plaintiff, the SCGOP would be subjected to

significant and irreparable harm if preliminary injunctive relief is granted. The SCGOP’s status
as the “First in the South” Republican presidential primary is critically important to the continued
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status and vitality of the SCGOP as a leader in presidential politics in our country. An order
enjoining the SCGOP primary would cause irreparable harm to the SCGOP from which it would
likely never recover. Similarly, the citizens of South Carolina deserve an opportunity to vote on
the Republican nominee for President of the United States. An injunction in this frivolous case
would destroy that opportunity, thereby causing irreparable harm to the public interest as well.
CONCLUSION
Plaintiff has failed to carry his burden in this matter. Moreover, the balance of harms tips
decidedly in favor of the SCGOP. It is also clear that preliminary injunctive relief is not in the
public interest. For all of these reasons, Plaintiff has not demonstrated that he is entitled to a
preliminary injunction, and the SCGOP respectfully requests that the Court deny Plaintiff’s motion
for preliminary injunction and dismiss this action in its entirety for failure to state a claim upon
which relief can be granted pursuant to Rule 12(b)(6), Fed.R.Civ.P.
Respectfully submitted,
BOWERS LAW OFFICE LLC
By: /s/ Karl S. Bowers, Jr.___
Karl S. Bowers, Jr.
Federal Bar No. 7716
PO Box 50549
Columbia, South Carolina 29250
Tel: (803) 753-1099
Fax: (803) 250-3985
E-mail: butch@butchbowers.com
Attorney for Defendant South Carolina Republican Party
Columbia, South Carolina
November 16, 2015

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CERTIFICATE OF SERVICE
I, Karl S. Bowers, Jr., hereby certify that on November 16, 2015, I served Defendant
South Carolina Republican Party’s Memorandum in Opposition to Plaintiff’s Motion for
Preliminary Injunction/Rule 12(b)(6) Motion to Dismiss with the Clerk of Court using the
CM/ECF system in case number 3:15-cv-3669-JFA-SVH, and on the same date sent
notification of the filing to the following pro se Plaintiff:
Thomas Joseph Coyne
535 Haskell Drive
Bath, OH 44333

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