RFK Lawsuit vs. Utah

Case 4:23-cv-00112-RJS Document 4 Filed 12/04/23 PageID.
37 Page 1 of 25
Joel Ban, Esq.

Local Counsel for Plaintiffs
Ban Law Office P.C.
50 West Broadway #305
Salt Lake City, UT 84101
Phone (801) 532-2447
[email protected]
Paul A. Rossi. Esq.

National Counsel for Plaintiffs
Pro Hac Vice Admission Pending
IMPG Advocates
316 Hill Street, Suite 1020
Mountville, PA 17554
(717) 961-8978
[email protected]
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH
SOUTHERN REGION OF THE CENTRAL DIVISION
__________________________________________________________________
STEVE MAXFIELD; ROBERT F. :
KENNEDY JR.; LIBERTY :
INITIATIVE FUND; TRENTON DONN :
POOL; and, ACCELEVATE 2020, LLC, :
: Civil Action # 4:23-cv-00112-RJS
Plaintiffs, :
:
vs. : Motion for
: Expedited Preliminary Injunction
DIEDRE HENDERSON, in her official : And Briefing Schedule
capacity as the Lieutenant Governor of :
the State of Utah; and, RYAN COWLEY, :
in his official capacity as the Director of :
Elections of the State of Utah, :
:
Defendants. :
1
Case 4:23-cv-00112-RJS Document 4 Filed 12/04/23 PageID.38 Page 2 of 25
MOTION FOR EXPEDITED PRELIMINARY INJUNCTION & BRIEFING

SCHEDULE
Plaintiffs, by and through their undersigned legal counsel, respectfully
request this Court order expedited briefing and hearing on Plaintiff RFK’s pending
motion to enjoin the unconstitutional early filing deadline imposed by Defendants
on independent candidates for the Office of President of the United States. As
more fully set forth in Plaintiff RFK’s Motion and supporting Memorandum of
Law, Plaintiff RFK seeks a preliminary injunction ordering Defendants to not
enforce the January 8, 2024, deadline to file validated nomination petitions and
Certificate of Nomination required for Plaintiff RFK to secure access to the 2024
general election ballot. As detailed in Plaintiff RFK’s Memorandum of Law, the
current deadline is the earliest deadline ever sought to be imposed on independent
presidential candidates in the modern (post-Anderson v. Celebrezze) era. No
federal court has ever upheld a January deadline to require independent
presidential candidates to file all of their required ballot access documents. In fact,
in LaRouche v. Monson, 599 F.Supp. 621 (D. Utah 1984), the then defendant Lt.
Governor of the State of Utah, admitted and represented to this Court that the then
imposed April 15th deadline for independent presidential candidates to file their
ballot access documents was freely acknowledged to be so defective that the Lt.
Governor advised independent candidates to ignore the statutory deadline and file
their documents as late as mid-September. Monson, 599 F.Supp at 627-28.
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Unfortunately, Defendants seek to enforce the new January 8, 2024 deadline
such that immediate relief is necessary in order to prevent severe economic harm to
Plaintiff RFK. As bad as the January 8, 2024 deadline is, what is even worse is
that Plaintiff RFK must complete and stop signature collection in mid-December,
of 2023, at the latest, in order to file Plaintiff RFK’s nomination petitions with the
county clerks to have the petition signatures validated – a process that can take up
to 3-weeks. The county clerk for Salt Lake County has advised that she will need
2 weeks to validate all signatures, such that petitioning must stop no later than
December 14th. Accordingly, in order to collect the 1,500 to 1,600 raw signatures
– in the middle of December’s cold weather, sufficient to guarantee that at least
1,000 of the signatures will be validated in time to meet the January 8, 2023
deadline, Plaintiff RFK will be forced at the end of next week, at the latest, to
make the decision to hire professional petition circulators at a cost of between $7
and $10 per valid signature by late next week.
This is not a difficult case. In fact, Plaintiff RFK contends that the
overwhelming binding precedent at force in this case militate in favor of Plaintiff’s
requested injunctive relief. This case is so clear, that Defendants ought to
immediately concede the issue as they did in 1984 facing an April 15th deadline.
Expedited briefing and hearing is necessary to avoid the economic damage,
which is not recoverable against Defendants in this (or any other) action, which
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will result from the need to hire professional petition circulators to remedy the lack
of volunteers willing, or able, to collect signatures in mid-December when the
weather makes in very difficult to engage qualified voters who are, largely,
hunkered down inside and not available for outside petition engagement as they are
during the spring and summer months. Only professional petition circulators have
the skill set and tenacity to brave December in Utah to secure the required number
of raw signatures to secure ballot access for Plaintiff RFK.
Defendants will be served the same day this Court issues the Summons in
this action, hopefully no later than the morning of Monday, December 4, 2024. As
soon as service is perfected, a Certificate of Service will be posted on the docket.
Plaintiffs propose the following schedule:
(1) Defendants file their brief no later than 5:00 p.m. on Wednesday,
December 6, 2024;
(2) No Reply Brief for Plaintiffs;
(3) Hearing, limited to legal argument, 15 to 20 minutes per side on Friday,
December 8, 2024. Plaintiffs are amenable to a telephonic hearing at the
convenience of the Court and opposing counsel.
Plaintiffs believe the foregoing schedule will enable the Court to consider
and decide Plaintiff RFK’s Motion for Expedited Preliminary Injunction in a
sufficient amount of time for Plaintiffs to forego taking action to hire
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professional petition circulators in order to meet the clearly unconstitutional
early filing deadline of January 8, 2024. Plaintiffs take this position only
because of the weight of uncontroverted authority in support of Plaintiff RFK’s
claim that the January 8, 2024 deadline is unconstitutional in clear violation of
rights guaranteed to Plaintiff under the First and Fourteenth Amendments to the
United States Constitution.
Respectfully submitted,
Dated: December 1, 2023 __/s/ Joel Ban__________

Joel Ban, Esq.
Ban Law Office P.C.
Phone (801) 532-2447
Fax (860) 770-6223
[email protected]
___/s/ Paul A. Rossi______

Paul A. Rossi. Esq.
IMPG Advocates
316 Hill Street
Suite 1020
(717) 961-8978
[email protected]
5
Joel Ban, Esq.

Ban Law Office P.C.
Phone (801) 532-2447
[email protected]
Paul A. Rossi. Esq.

IMPG Advocates
316 Hill Street, Suite 1020
(717) 961-8978
[email protected]
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH
SOUTHERN REGION OF THE CENTRAL DIVISION
__________________________________________________________________
STEVE MAXFIELD; ROBERT F. :
KENNEDY JR.; LIBERTY :
INITIATIVE FUND; TRENTON DONN :
POOL; and, ACCELEVATE 2020, LLC, :
: Civil Action # 4:23-cv-00112-RJS
Plaintiffs, :
:
vs. : Memorandum of Law in Support
: Plaintiff RFK’s Motion for an
DIEDRE HENDERSON, in her official : Expedited Preliminary Injunction
capacity as the Lieutenant Governor of :
the State of Utah; and, RYAN COWLEY, :
in his official capacity as the Director of :
Elections of the State of Utah, :
:
Defendants. :
1
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF RFK’S

MOTION FOR EXPEDITED PRELIMIUNARY INJUNCTION
I. Summary of the Argument
Plaintiff RFK brings this emergency ballot access action pursuant to 42
U.S.C. § 1983, challenging Utah U.C.A. §§ 20A-9-201.5(2)(a) & (b) and 20A-9-
503(4)(b) in tandem and concert with the “2024 Certificate of Nomination for
Unaffiliated Candidate” promulgated by Defendants (hereinafter the “Certificate of
Nomination” and collectively the “Challenged Early Deadline”) as an
unconstitutional early deadline imposed on ballot access for independent
candidates for the Office of President of the United States. Plaintiff RFK is an
announced independent candidate for the Office of President of the United States
and is seeking access to Utah’s 2024 general election ballot to win Utah’s six
electoral college votes in 2024. The Certificate of Nomination and the challenged
early deadline, acting together and in concert, requires Plaintiff RFK to collect,
verify and file nomination petitions containing no fewer than 1,000 valid
signatures of qualified electors, with the Certificate of Nomination, no later than
January 8, 2024 in order to secure access to Utah’s 2024 general election ballot.
This challenged early deadline constitutes a per se violation of established
Supreme Court precedent along with representations made by Defendants’
predecessors in office, to this Court, in prior litigation establishing that a much
earlier deadline is unconstitutional. For instance, and dispositive of Plaintiff

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RFK’s right to an expedited preliminary injunction, is the fact that Utah admitted
to this court in LaRouche v. Monson, 599 F. Supp. 621, 628 (1984), that the then
statutorily imposed deadline of April 15th for independent presidential candidates
to file their nomination petitions was:
“freely acknowledged by the state to be defective. It is for that reason

the statutory deadline is, in practice, simply ignored. Plaintiffs knew
that Utah officials had accepted one nomination petition and were
amenable to accepting others from candidates if the petitions were
complete, in proper form and tendered at a reasonable time prior to the
general election.”
Id. Unlike the facts in LaRouche v. Monson, Defendants intend to enforce the
January 8, 2024, deadline and have failed to disclaim enforcement of the
unconstitutional challenged early deadline for independent presidential candidates.
It is then both mystifying and indefensible, and frankly, insulting to this Court for
representations made to this Court in prior litigation, as to why Utah now seeks to
impose and enforce a January 8, 2024 deadline for Plaintiff RFK to file his
nomination petitions, as an independent presidential candidate, containing a
minimum of 1,000 pre-verified signatures (a 333% increase in the number of
signatures required over the signature requirement imposed under the
unconstitutional April 15th deadline litigated in LaRouche v. Monson) along with
his Certificate of Nomination no later than January 8, 2024. Accordingly, the
requested expedited preliminary injunction Order should be granted to protect
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Plaintiff RFK from needing to immediately hire expensive out-of-state professional
petition circulators to descend into Utah to collect 1,500 to 1,600 signatures, in the
middle of Utah’s harsh winter weather, in time for Plaintiff RFK to submit his
nomination petitions to county clerks, who have up to 3 weeks to validate the
signatures, and then collect the validated nomination petitions and file them with
his Certificate of Nomination with Defendants no later than January 8, 2024.
The Challenged Early Deadline imposes a significant burden on independent
presidential candidates who do not participate in the primary election process.
Candidates and voters (who must be convinced to sign Plaintiff RFK’s nomination
petitions) who are dissatisfied with the candidates offered by the major political
parties after their nomination processes are barred from declaring their candidacies
and appearing on the ballot for the November 2024 general election. The
circulation of nomination petitions must be permitted during a time when the
voters are aware of the major political party nominations so that they can opt to
support alternative candidates for the general election ballot who share their
political views. Requiring Plaintiff RFK to collect signatures so early, in the
middle of Utah’s harsh December weather (when voters are not easily accessible
outside as they are during spring and summer weather) and when they are not sure
as to who will be nominated by the major political parties imposes a major burden
on Plaintiff RFK’s effort to secure the required number of valid signatures. The
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Challenged Early Deadline imposes the burden on Plaintiff RFK to circulate his
nomination petitions at a time when voters are not yet focused on the 2024 general
election or with knowledge as to who the major political parties have nominated so
that they may opt for Plaintiff RFK’s ballot access by signing his petition – all in
violation of established Supreme Court precedent.
Further, the Challenged Early Deadline for independent presidential
candidates in Utah cannot be justified by any compelling state interest as
Defendants do not need to know who the candidates are for the 2024 general
election so far in advance of the need to construct their general election ballot
because none of the major political parties, who have mandatory automatic ballot
access, are known. There is simply no state interest served in forcing Plaintiff
RFK to qualify for the 2024 general election ballot as early as January 8, 2024.
Accordingly, the challenged early deadline is a per se violation of clearly
established rights under the First and Fourteenth Amendments to the United States
Constitution and Plaintiff RFK is entitled to an expedited preliminary injunction
Order, barring Defendants from enforcing the challenged early deadline.
II. Statement of Facts
Plaintiff RFK announced he is an independent candidate for the Office of
President of the United States on Monday, October 9, 2024. Plaintiff RFK intends
to compete for the electoral votes in all fifty states and the District of Columbia.
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As such, Plaintiff RFK intends to exercise his right to secure access to Utah’s 2024
general election ballot on terms consistent with rights guaranteed to him under the
First and Fourteenth Amendments to the United States Constitution.
Utah U.C.A. §§ 20A-9-201.5(2)(a) & (b) and 20A-9-503(4)(b) in tandem and in
concert with the Certificate of Nomination and the Challenged Early Deadline
requires that an independent/unaffiliated candidate for the Office of President of
the United States must: (1) collect at least 1,000 valid signatures from qualified
voters of the State of Utah on a petition promulgated by Defendants; (2) file the
petition signatures with county clerks and wait for the signatures to be verified as
valid – a task county clerks are permitted to take up to 3 weeks to complete; (3)
then collect the verified nomination petitions and file them with Defendants, along
with the Certificate of Nomination all on or before January 8, 2024. The combined
effect of the challenged early deadline and the Certificate of Nomination impose
the earliest deadline on independent presidential candidates in the history of the
United States and is clearly unconstitutional. No federal court has ever upheld a
petition and filing deadline for independent presidential candidates as early as
Utah’s new January 8th deadline, which, in reality, requires Plaintiff RFK to
complete his ballot access petition drive on or before December 10, 2023.
In fact, Plaintiff RFK has begun to collect signatures in Utah, but the
identification of a sufficient number of volunteers willing to collect signatures
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outside in December has been very difficult to accomplish. The only way for
Plaintiff RFK to be able to hope to comply with the Challenged Early Deadline is
to hire professional petition circulators no later than December 7, 2024, most from
out-of-state, which will cost the campaign the need to transport these professional
petition circulators into Utah, with little notice, and then pay them based on the
number of valid signatures collected, at total rate of between $7 to $10 per valid
signatures. Further, in order to guard against invalid signatures, in order to be sure
to collect 1,000 valid signatures as required for ballot access, Plaintiff RFK will
need to collect 1,500 to 1,600 raw signatures.
In Monson, Utah freely admitted that the then April 15th deadline for
independent presidential candidates to file their nomination petitions and other
forms on or before April 15th was unconstitutional, and on their own initiative,
ignored the statutory deadline and permitted independent presidential candidates to
file their forms until mid-September. The only possible purpose for the current
deadline, which Defendants have refused to disclaim, is a naked and
constitutionally insulting intentional legislative effort to block independent
presidential candidates from the 2024 general election ballot in Utah.
III. Argument
A. Standard of Review for Temporary Restraining Order and

Preliminary Injunctive Relief
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Based upon the facts detailed above, Plaintiff RFK is clearly entitled to
expedited preliminary injunctive relief. To obtain a preliminary injunctive relief, a
movant must show: (1) substantial likelihood of prevailing on the merits; (2)
irreparable injury if the injunction is denied; (3) greater injury to the movant absent
the injunction than that which the opposing party will suffer under the injunction;
and, (4) lack of adverseness to the public interest. Utah Licensed Bev. Ass’n v.
Leavitt, 256 F.3d 1061, 1065-66 (10th Cir. 2001). Defendants have the burden of
justifying its regulation even on a motion to enjoin enforcement of an ordinance or
statutory provision – a burden Defendants cannot sustain. Utah Licensed Bev., 256
F.3d at 1073.
B. Plaintiff RFK Satisfies All the Requirements for the Issuance of an

Expedited Preliminary Injunction.
1. Plaintiff RFK is More than Merely Likely to Prevail on the

Merits of the Case.
The Supreme Court has long recognized that state ballot access rules: “place
burdens on two different, although overlapping, kinds of rights – the right of
individuals to associate for the advancement of political beliefs, and the right of
qualified voters, regardless of their political persuasion, to cast their votes
effectively. Both of these rights, of course, rank among our most precious
freedoms.” Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). The burden arises
because “voters can assert their preferences only through candidates or parties or
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both. ‘It is to be expected that a voter hopes to find on the ballot a candidate who
comes near to reflecting his policy preferences on contemporary issues’” Anderson
v. Celebrezze, 460 U.S. 780 at 787 (1983) (quoting Lubin v. Panish, 415 U.S. 709,
716 (1974)). When a state, by means of its ballot access requirements, restricts the
field of candidates from which a voter may choose, there is “always…at least some
theoretical, correlative effect on voters.” Anderson, 460 U.S. at 786 (quoting
Bullock v. Carter, 405 U.S. 134, 143 (1972)).
Of course, some regulation of access to the general election ballot is
necessary to ensure that elections will be “fair and honest and if some sort of order,
rather than chaos, is to accompany the democratic processes.” Storer v. Brown,
415 U.S. 724, 730 (1974). However, “even when pursuing a legitimate interest, a
State may not choose means that unnecessarily restrict constitutionally protected
liberty,” and must “adopt the least drastic means to achieve [its] ends.” Illinois
Elections Board v. Socialist Workers Party, 440 U.S. 173, 185 (1979) (citation and
quotation omitted); Anderson, 460 U.S. at 806.
As the Supreme Court reaffirmed in Burdick v. Takushi, 504 U.S. 428
(1992), ballot-access laws in general, and petition deadline rules in particular, must
be evaluated according to the standard first articulated in Anderson v. Celebrezze.
The court must weigh “the character and magnitude of the asserted injury to the
rights protected by the First and Fourteenth Amendments that the plaintiff seeks to
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vindicate” against “the precise interests put forward by the state as justifications
for the burden imposed by its rules,” taking into consideration “the extent to which
those interests make it necessary to burden plaintiff’s rights.” Burdick, 504 U.S. at
434 (quoting Anderson, 460 U.S. at 789). The Court also noted that “because the
interests of minor parties and independent candidates are not well represented in
state legislatures, the risk that the First Amendment rights of those groups will be
ignored in legislative decision making may warrant more careful judicial scrutiny.”
Anderson, 460 U.S. at 793 n. 16.
In Anderson, the Supreme Court invalidated an Ohio petition deadline which
required candidates who were not seeking access to the ballot through the
Democratic or Republican Party primaries to file nomination petitions for the
November general election no later than March 20, 1980, 75 days prior to the
primary election and 229 days before the general election. Anderson, 460 U.S. at
783 n. 1. The Court in Anderson identified two distinct harms imposed by the
early petition deadline.
First, the Anderson Court recognized that the early deadline affected an
identifiable segment of voters – those dissatisfied with the major party candidates.
In election campaigns…the candidates and the issues simply do

not remain static over time. Various candidates rise and fall in
popularity; domestic and international developments bring new issues
to center stage and may effect voters’ assessments…Such
developments will certainly affect the strategies of candidates who have
already entered the race; they may also create opportunities for new
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candidates….Yet Ohio’s filing deadline prevents persons who wish to

be independent candidates from…creating new political coalitions of
Ohio voters…at any time after mid-to-late March….If the State’s filing
deadline were later in the year, a newly-emergent independent
candidate could serve as the focal point for a grouping of Ohio voters
who decide, after mid-March, that they are dissatisfied with the choices
within the two major parties.
Id. at 790-92. Second, and most important in this case, the Court recognized that
an early petition deadline:
Burdens the signature-gathering efforts of independents who decide to

run in time to meet the deadline. When the primary campaigns are far
in the future and the election itself is even more remote, the obstacles
facing an independent candidate’s organizing efforts are compounded.
Volunteers are more difficult to recruit and train, media publicity and
campaign contributions are more difficult to secure, and voters are less
interested in the campaign.
Id. at 792.
The Court then rejected the three rationales offered by the State in support of
the early mid-March deadline: voter education, equal treatment and political
stability. Although the Court accepted voter education as a legitimate goal, it held
that modern communications and widespread literacy made it “unrealistic to suggest
that it takes more than seven months to inform the electorate about the qualifications
of a particular candidate simply because he lacks a partisan label.” Id. at 797. The
mid-March deadline also failed to serve the State’s goal of voter education because
the relevant decision-making does not occur in late March, but in November, and
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because the electoral process contains its own cure for inadequate voter education –
failure at the polls. Id. at 798 n. 25.
Without commenting on the legitimacy of equal treatment as a state interest,
the Court held that Ohio’s early mid-March filing deadline bore no relation to the
asserted goal. Assuming that independent and partisan candidates were, in fact,
treated alike, the Court analyzed the rational for doing so. For candidates
participating in a primary election, the early deadline was simply justified by
administrative concerns. But no comparable justification supported the same
deadline for a candidate who did not participate in a primary and whose petitions
would not be examined until months later. Id. at 800. Moreover, only a candidate
participating in a primary would receive the correlative benefit of “automatic support
of an experienced organization.” Id. “In short, ‘equal treatment’ of partisan and
independent candidates simply is not achieved by imposing the March deadline on
both. As we have written, “[s]ometimes the grossest discrimination can lie in
treating things that are different as though they are exactly alike.” Id. at 801 (quoting
Jenness v. Fortson, 403 U.S. 431, 442 (1971)).
Finally, the Court rejected Ohio’s assertion that the early mid-March
deadline served to protect the two major parties from intra-party feuding, reasoning
that Williams v. Rhodes had already foreclosed any attempt to protect the two
major parties, as opposed to a two-party system in general, particularly at the
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expense of independent candidates. Id. at 802. Further, unlike the statute upheld
in Storer, 415 U.S. 724, the Ohio statute could not be plausibly explained as a
legitimate attempt to prevent intra-party feuding in general. It could not be
justified as a “sore loser” statute, since it blocked access to the general election “75
days before the primary, at a time when, by definition, no candidate has yet lost a
party primary.” Anderson, 460 U.S. at 804 n. 31. More generally, the early
deadline applied even to those candidates who had not participated, nor intended to
participate, as Plaintiff RFK in this action. Id. at 805. Finally, the Court noted that
early petition deadlines could serve to impair party harmony by forcing dissident
groups to form independent or third-party candidacies without first attempting to
influence the outcome of major party primaries, in order that the dissident group
might have some chance to place a candidate on the ballot. Id.
Anderson’s reasoning is equally applicable to the case at bar. Indeed, in the
wake of Anderson, the lower federal courts have routinely struck unreasonably
early petition deadline statutes, comparable to Ohio’s, when applied to independent
or alternative party candidates. See, e.g., New Alliance Party of Alabama v. Hand,
933 F.2d 1568 (11th Cir. 1991) (per curiam) (April 6th petition deadline – 60 days
before primary – invalidated); Cromer v. State of South Carolina, 917 F.2d 819 (4th
Cir. 1990) (March 1 notice of candidacy requirement – 70 days before primary –
invalidated); Libertarian Party of Kentucky v. Ehrler, 776 F.Supp. 1200 (E.D. Ky.
13
1991) (January 29 petition deadline – 119 days before primary – invalidated);
Libertarian Party of Nevada v. Swackhamer, 638 F.Supp. 565 (D. Nev. 1986)
(April 15 petition deadline – 140 days before primary – invalidated); Cripps v.
Seneca County Bd. of Elec., 629 F. Supp. 1335 (1985) (February 21 petition
deadline – 75 days before primary – invalidated); Stoddard v. Quinn, 593 F. Supp.
300 (D. Me. 1984) (April 1 petition deadline invalidated); LaRouche v. Burgio,
594 F. Supp. 614 (D.N.J. 1984) (establishing deadline 40 days prior to primary
election unconstitutional as applied to Presidential candidates); see also, LaRouche
v. Monson, 599 F. Supp. 621, 627-28 (D. Utah 1984) (state conceded April 15
petition deadline was unconstitutional as applied to Presidential candidates and
accepted petitions until September 12).
None of the traditional asserted state interests can serve to justify Utah’s
new January 8, 2024 deadline for independent presidential candidates to file both
their validated petition signatures (a required validation process which, itself,
pushes the actual petition signature collection deadline back into mid-December
2023) and their Certificate of Nomination. No one can seriously contend that a
deadline to collect petition signatures nearly 11 months before the general election
and for filing a candidate declaration 10 months prior to the general election by an
independent presidential candidate is required to advance any state interest, let
alone the required legitimate state interest. New Alliance Party, 933 F.2d at 1576.
14
Any argument advanced that Utah voters need 10 to 11 months to educate
themselves on an independent presidential candidate for the 2024 general election
is flatly laughable and foreclosed by Anderson. Nor does Utah’s January 8th
deadline serve an interest in equal treatment. First, major party candidates for their
primary election need only to file a Certificate of Nomination without the need to
collect and validate petition signatures in advance of their filing – so there is
simply no equality sought to be imposed under current Utah law. Further, as in
Anderson, its application to independent candidates does not result in equal
treatment. “[The recognized political] parties have until the second Tuesday in
June to select their nominees; an independent’s judgment must be based on a
history that ends April.” Stoddard, 593 F.Supp. at 306 (citing Anderson, 460 U.S.
at 80-801). As applied to Utah, the presidential primary elections for the two-major
political parties is March 5, 2024. Further,
The “equal treatment” accorded by [New Jersey’s] imposing of the

same pre-filing deadline on primary and independent candidates is only
superficial “equality.” There are obvious administrative reasons for
requiring primary candidates to file at that time that simply do not apply
to independent candidates. They are therefore unequals in this respect,
and equal treatment of unequals is not equality. Similarly, primary
candidates derive a benefit from their organized party support that
offsets the burden imposed by the filing deadline in a way not shared
by the independent candidate. Here again, the two types of candidacies
are unequal in a way which makes imposition upon them of equal
burdens no equality of treatment.
15
Cromer, 917 F.2d at 824-25 (citing Anderson, 460 U.S. at 799-801). Although
administrative reasons – such as the necessity to verify signatures and construct,
proof, print/distribute/program primary ballots and/or machines – certainly justify
an early 2024 deadline for primary candidate to announce their intentions, no such
similar justification exists for the independent candidate deadline on the same date.
The general election ballots are not printed until well after the major party
conventions in July and August. And in Monson, Utah conceded that it could
accept independent petitions until mid-September before the general election.
Monson, 599 F.Supp at 627-28. Accordingly, Utah cannot now make any good-
faith argument to this Court that it needs independent presidential candidates to file
any documents until September, 2024. As Utah must assert “a substantial interest
to be achieved by restrictions on…speech” and directly advance that substantial
interest, Utah cannot survive any merits test when they conceded in Monson that
Utah could accept independent presidential petition in September in
acknowledging that the then April 15th deadline was unconstitutional under
Anderson. See e.g., Cent. Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447
U.S. 557, 564 (1980).
In light of these authorities and Utah’s prior admissions to this Court, there
can be no doubt that Plaintiff RFK has much more than a reasonable likelihood of
success on the merits.
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2. Plaintiff RFK Will Suffer Irreparable Harm.
After concluding that Plaintiff RFK has a likelihood of success on the merits
of their First and Fourteenth Amendment claim, Plaintiff RFK is “entitled to a
presumption of irreparable injury.” The “loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns, 427 U.S. 347, 373 (1976). Further, in this action, in the absence of
expedited preliminary injunctive relief, Plaintiff RFK will be required to
immediately have to pay for the transportation and the effort to collect signatures
by out-of-state professional petition circulators costing several thousand dollars at
approximately $7 to $10 per raw signature – as Plaintiff RFK will be forced to
attempt to comply with the unconstitutional deadline in order to secure ballot
access in Utah, because at this early stage, volunteers are not sufficient in number
and not skilled enough to collect the 1,500 to 1,600 signatures in December
weather necessary to secure the required 1,000 valid petition signatures – all of
which cannot later be recovered against Defendants in this lawsuit. Accordingly,
in the absence of the requested expedited preliminary injunctive relief, Plaintiff
RFK will unquestionably suffer irreparable constitutional and monetary damages.
Accordingly, Plaintiff RFK satisfies the second prong of the test to receive
expedited preliminary injunctive relief.
3. Defendants Will Suffer No Injury By the Requested Injunctions.
17
As no legitimate state interest is advanced by the January 8, 2024 filing
deadline imposed, the requested injunctive relief will pose no injury to Defendants.
Again, Defendants already acknowledged in Monson that it voluntarily accepted
independent presidential petitions as late as mid-September as being filed within a
reasonable time. Certainly, Plaintiff’s request that this Court set the deadline for
independent presidential candidates to file their validated signatures and Certificate
of Nomination no later than Thursday, August 1, 2024 – a deadline consistent with
many other state-imposed deadlines on independent presidential candidates for the
2024 general election, will cause no injury to Defendants. Accordingly, Plaintiff
RFK clearly satisfies the third prong of the test for the grant of expedited
preliminary injunctive relief.
4. Requested Temporary and Preliminary Injunctive Relief is in the

Public Interest.
Under the final prong of the test for expedited preliminary injunctive relief,
Plaintiff RFK must show that issuing the requested injunctive relief is in the public
interest. Vindicating First Amendment freedoms is clearly in the public interest.
See, Utah Licensed Bev., 256 F.3d at 1076 (“Because we have held that Utah’s
challenged statutes also unconstitutionally limit free speech, we conclude that
enjoining their enforcement is an appropriate remedy not adverse to the public
interest.”) Elam Const., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1347 (10th
Cir. 1997) (“The public interest also favors plaintiffs’ assertion of their First
18
Amendment rights.”) See also, NAACP v. Alabama ex rel. Patterson, 357 U.S.
449 (1958); Westberry v. Sanders, 376 U.S. 1, 17 (1964) (“No right is more
precious in a free country than that of having a voice in the election of those who
make the laws under which….we live. Other rights, even the most basic, are
illusory if the right to vote is undermined.”) Accordingly, the requested expedited
preliminary injunctive relief is in the public interest and therefore, Plaintiff RFK
satisfies all four prongs and is entitled to the requested preliminary injunctive
relief.
IV. Conclusion
For all the foregoing reasons, Plaintiff RFK’s pending motion for an expedited
preliminary injunction should be granted, enjoining Defendants from enforcing the
January 8, 2024, deadline for independent candidates to file validated nomination
petition signatures and the Certificate of Nomination. This Court should also
preliminarily issue an Order setting the new deadline to August 1, 2024.
Respectfully submitted,
Dated: December 1, 2023 __/s/ Joel Ban__________

Joel Ban, Esq.
Ban Law Office P.C.
Phone (801) 532-2447
Fax (860) 770-6223
19
[email protected]
___/s/ Paul A. Rossi______

Paul A. Rossi. Esq.
IMPG Advocates
316 Hill Street
Suite 1020
(717) 961-8978
[email protected]
20

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Case 4:23-cv-00112-RJS Document 4 Filed 12/04/23 PageID.

Joel Ban, Esq.

Paul A. Rossi. Esq.

IN THE UNITED STATES DISTRICT COURT

MOTION FOR EXPEDITED PRELIMINARY INJUNCTION & BRIEFING

motion to enjoin the unconstitutional early filing deadline imposed by Defendants

on independent candidates for the Office of President of the United States. As

Law, Plaintiff RFK seeks a preliminary injunction ordering Defendants to not

general election ballot. As detailed in Plaintiff RFK’s Memorandum of Law, the

current deadline is the earliest deadline ever sought to be imposed on independent

presidential candidates in the modern (post-Anderson v. Celebrezze) era. No

federal court has ever upheld a January deadline to require independent

their documents as late as mid-September. Monson, 599 F.Supp at 627-28.

Unfortunately, Defendants seek to enforce the new January 8, 2024 deadline

– in the middle of December’s cold weather, sufficient to guarantee that at least

make the decision to hire professional petition circulators at a cost of between $7

and $10 per valid signature by late next week.

overwhelming binding precedent at force in this case militate in favor of Plaintiff’s

requested injunctive relief. This case is so clear, that Defendants ought to

Expedited briefing and hearing is necessary to avoid the economic damage,

of volunteers willing, or able, to collect signatures in mid-December when the

of raw signatures to secure ballot access for Plaintiff RFK.

soon as service is perfected, a Certificate of Service will be posted on the docket.

Plaintiffs propose the following schedule:

(2) No Reply Brief for Plaintiffs;

(3) Hearing, limited to legal argument, 15 to 20 minutes per side on Friday,

December 8, 2024. Plaintiffs are amenable to a telephonic hearing at the

convenience of the Court and opposing counsel.

and decide Plaintiff RFK’s Motion for Expedited Preliminary Injunction in a

sufficient amount of time for Plaintiffs to forego taking action to hire

professional petition circulators in order to meet the clearly unconstitutional

because of the weight of uncontroverted authority in support of Plaintiff RFK’s

claim that the January 8, 2024 deadline is unconstitutional in clear violation of

United States Constitution.

Dated: December 1, 2023 __/s/ Joel Ban__________

___/s/ Paul A. Rossi______

Joel Ban, Esq.

Paul A. Rossi. Esq.

IN THE UNITED STATES DISTRICT COURT

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF RFK’S

Plaintiff RFK brings this emergency ballot access action pursuant to 42

Unaffiliated Candidate” promulgated by Defendants (hereinafter the “Certificate of

Nomination” and collectively the “Challenged Early Deadline”) as an

unconstitutional early deadline imposed on ballot access for independent

signatures of qualified electors, with the Certificate of Nomination, no later than

This challenged early deadline constitutes a per se violation of established

Supreme Court precedent along with representations made by Defendants’

predecessors in office, to this Court, in prior litigation establishing that a much

earlier deadline is unconstitutional. For instance, and dispositive of Plaintiff

statutorily imposed deadline of April 15th for independent presidential candidates

to file their nomination petitions was:

“freely acknowledged by the state to be defective. It is for that reason

January 8, 2024, deadline and have failed to disclaim enforcement of the

unconstitutional challenged early deadline for independent presidential candidates.

nomination petitions, as an independent presidential candidate, containing a

minimum of 1,000 pre-verified signatures (a 333% increase in the number of

signatures required over the signature requirement imposed under the

unconstitutional April 15th deadline litigated in LaRouche v. Monson) along with

his Certificate of Nomination no later than January 8, 2024. Accordingly, the

Dated: December 1, 2023 /s/ Joel Ban________

_/s/ Paul A. Rossi____