                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         October 4, 2018
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 ROQUE DE LA FUENTE GUERRA,

       Plaintiff - Appellant,

 v.                                                          No. 18-2005
                                                  (D.C. No. 1:16-CV-00393-RB-LF)
 MAGGIE TOULOUSE-OLIVER,                                      (D. N.M.)
 New Mexico Secretary of State,

       Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
                  _________________________________

      Roque De La Fuente Guerra appeals the district court’s order dismissing his

complaint for lack of subject-matter jurisdiction and for failure to state a claim. We

exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

I. Background

      Mr. De La Fuente Guerra wanted to be on the ballot for New Mexico’s June 7,

2016, Democratic presidential primary. On March 4 of that year, he submitted


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
petitions containing more than 32,000 signatures to New Mexico’s secretary of state.

On March 28, the secretary informed him that not enough of those signatures were

valid, and therefore he would not be on the ballot. On April 13, in response to

Mr. De La Fuente Guerra’s requests for further information, the secretary explained

by letter that

       [s]ignatures that were not accepted contained at least one factor which
       made it impossible to identify the individual as a registered voter in
       New Mexico. Some of those factors include individuals not appearing
       in the voter registration database based upon the information provided,
       addresses not matching the registration record, illegible information on
       the petitions, and names not appearing as registered.

Aplee. App. at 20. The April 13 letter also stated the numbers of signatures required,

processed, and accepted for one of the state’s three congressional districts, and

explained that even if the remaining unprocessed signatures were all accepted,

Mr. De La Fuente Guerra could not meet the requirement for that district.

       On May 6, Mr. De La Fuente Guerra filed his complaint for injunctive relief

and damages, alleging that the secretary violated his constitutional rights by

excluding him from the ballot. The district court first denied Mr. De La Fuente

Guerra’s motion for a temporary restraining order and preliminary injunction.

Almost a year later, the court granted the secretary’s motion to dismiss, concluding

that it lacked subject-matter jurisdiction over many of Mr. De La Fuente Guerra’s

claims on the bases of sovereign immunity and mootness. However, the court also

concluded his claim against the former secretary of state, in his individual capacity,

was not jurisdictionally barred. Nor was his claim against the current secretary of


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state, in her official capacity, to the extent he sought injunctive relief that might

assist him in trying to appear on the 2020 ballot.1

       The court determined these remaining claims failed because Mr. De La Fuente

Guerra’s complaint lacked factual allegations that would establish a due process

violation. The court determined that the secretary’s April 13 letter was “sufficiently

specific to satisfy the minimum constitutional standards of notice and due process.”

Aplt. App., Vol. 3 at 54. To the extent Mr. De La Fuente Guerra argued that the

secretary misapplied the state’s election code, the court further determined that it

lacked subject-matter jurisdiction to determine whether state officials properly

applied state law in rejecting signatures submitted by Mr. De La Fuente Guerra.

       The court later denied Mr. De La Fuente Guerra’s motion to amend the

judgment because he was attempting to bring a new claim under the National Voter

Registration Act, 52 U.S.C. §§ 20501-11, that he had not raised before, and because

he failed to identify any new evidence that was unavailable when the judgment was

entered.

       Mr. De La Fuente Guerra argues that the district court erred by concluding he

failed to state a claim because the secretary’s explanation for invalidating signatures

was inadequate. He also argues that the signatures were improperly invalidated

under state law and that the court erred by not accepting as true his allegation that he



       1
        Mr. De La Fuente Guerra initially sued the former secretary of state, Brad
White, who was later substituted by his successor, Maggie Toulouse-Oliver. See
Fed. R. Civ. P. 25(d).
                                             3
submitted enough valid signatures. He does not appeal the court’s determination that

it lacked subject-matter jurisdiction over many of his claims or its denial of his

motion to amend the judgment.

II. Analysis

       We review de novo the district court’s dismissal of a complaint for failure to

state a claim. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081,

1104 (10th Cir. 2017). To survive a motion to dismiss under Fed. R. Civ.

P. 12(b)(6), a plaintiff must plead sufficient factual allegations “to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “In ruling on a motion to dismiss for failure to state a claim, all well-pleaded

facts, as distinguished from conclusory allegations, must be taken as true, and the

court must liberally construe the pleadings and make all reasonable inferences in

favor of the non-moving party.” Broker’s Choice of Am., 861 F.3d at 1105 (brackets

and internal quotation marks omitted).

       Mr. De La Fuente Guerra first argues that the district court erred by

concluding that the secretary’s explanation for rejecting the signatures he submitted

comported with due process. He cites Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 314 (1950), for the general proposition that due process requires

“notice reasonably calculated, under all the circumstances, to apprise interested

parties of the pendency of the action and afford them an opportunity to present their

objections.” But Mr. De La Fuente Guerra indisputably had notice that he would not



                                            4
be on the ballot. He also had the opportunity to present his objections to that

determination in state court:

      If a candidate is notified by the proper filing officer that [he] is not
      qualified to have [his] name appear on the ballot, [he] may challenge
      that decision by filing a petition with the [state] district court within ten
      days of the notification. The district court shall hear and render a
      decision on the matter within ten days after the petition is filed.

N.M. Stat. Ann. § 1-8-26(F). We conclude that the notice Mr. De La Fuente Guerra

received and the existence of a state-court remedy satisfy the due process

requirements.

      Mr. De La Fuente Guerra contends that the secretary was required to provide a

signature-by-signature accounting to explain why his petition was rejected and that

the lack of such an accounting prevented him from being able to take advantage of

the state-court remedy outlined above. He concedes that “[i]t is likely that there is no

controlling specific application of basic requirements of procedural due process on

the facts of this case because only New Mexico refuses to provide what every other

Secretary of State provides to candidates—a detailed listing of the reason why each

signature was ruled invalid,” Aplt. Opening Br. at 19-20. But “the general rule [is]

that states have the power to regulate their elections and access to their ballots.” Am.

Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092, 1097 (10th Cir. 1997). In

the absence of authority addressing the process required when a state rejects a

petition to be placed on a primary ballot, we decline to infer that due process imposes

such a requirement under these circumstances.



                                            5
      Mr. De La Fuente Guerra also argues that the district court erred because state

officials misapplied state law when they invalidated many of the signatures he

submitted. But the court correctly concluded that such an argument cannot be

brought in federal court. See Johns v. Stewart, 57 F.3d 1544, 1553 (10th Cir. 1995)

(“[T]he Eleventh Amendment bars suits brought in federal court seeking to enjoin a

state official from violating state law.”). His argument that the court failed to accept

as true his allegation that he submitted enough valid signatures is also unavailing.

The court’s ruling is based on the rationale that even if the signatures were valid,

Mr. De La Fuente Guerra’s allegations failed to establish a federal due process

violation because he had notice of the secretary’s determination and an opportunity to

object.

III. Conclusion

      The district court’s judgment is affirmed.


                                            Entered for the Court


                                            Jerome A. Holmes
                                            Circuit Judge




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