Much election-law litigation is undertaken to remedy perceived errors in the electoral process, particularly for elections that have already taken place. To take but one example, in Chapter 11 we considered the Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000) (per curiam) [p. XXX], which had its genesis in state-court litigation to recount certain ballots that were not properly cast. In this Chapter, we consider more systematically the ways legislators and courts deal with perceived and actual electoral errors. Most states have fairly detailed statutory schemes that set out procedures for state and local officials to follow when confronting problems in an election. These statutes typically provide for an administrative process, followed if necessary by review in the state courts. Among the problems that state officials encounter are fraudulent votes, mistaken votes, and recounts when elections are extremely close. If and when a dispute reaches the judicial branch, a court must consider, often with little substantive guidance from the relevant statutes, whether an error has taken place and, if so, what the remedy should be.a In the initial parts of this Chapter, we consider two potentially controversial and complicated remedies for electoral errors that courts may order: conducting an entirely new election and adjusting existing vote totals. We then turn to federalism issues, and consider how states (and state courts) may correct errors in elections for federal office and, conversely, what civil and criminal remedies there may be in federal courts for errors in state elections. As you read these materials, consider the inevitable trade-offs that seem to be required when a legislature, or a court, ponders whether and how to remedy election errors. Among the potentially conflicting values at stake are the perceived fairness, accuracy, and legitimacy of the remedial process itself; the desire of voters to be anonymous; the desire to resolve an election dispute with promptness and finality; and the efficiency (or lack thereof) and costs associated with any remedy. See Steven F. Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS. 265, 288-96 (2007). To what extent, if at all, are courts better situated than legislatures or state officials to balance these values? Are these prototypical political questions, from which courts should abstain or, at the very least, give considerable deference to the efforts of the other branches of government to resolve any errors? Or does the inevitably politically freighted nature of many such errors suggest that courts should not hesitate to take action, since state officials may be inclined to take remedial actions that favor their own political parties or their own electoral fortunes? Do courts (particularly elected state courts) risk becoming

For helpful discussion of these issues, see Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69 (2009); Steven F. Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS. 265 (2007); Steven F. Huefner, Just How Settled Are the Legal Principles that Control Election Disputes?, 8 ELECTION L.J. 233 (2009) (book review); Developments in the Law—Voting and Democracy, 119 HARV. L. REV. 1127, 115565 (2006); Developments in the Law—Elections, 88 HARV. L. REV. 1111, 1298-1339 (1975).

2 politicized by remedying errors in elections for the other branches? And, will recent statutory changes (e.g., the Help America Vote Act, discussed in Chapter 11) that make registering and voting easier also have the unintended consequence of generating more remedial litigation concerning alleged errors in the registration and voting processes? B. RE-VOTES AND THE UNIFORM DATE FOR FEDERAL ELECTIONS In this section, we consider a straightforward but drastic remedy a court can order in the face of evidence of improper voting: ordering a new election. We also consider a related issue, specifically referring to federal elections: When Congress sets a particular date for a federal election, to what extent can a state hold a replacement election at a different time? That is, to what extent in those circumstances can a state hold re-voting on a date that would otherwise be foreclosed by federal law?

United States Court of Appeals for the Fifth Circuit. 376 F.2d 659 (5th Cir. 1962)

BROWN, CIRCUIT JUDGE [with whom GOLDBERG and AINSWORTH, CIRCUIT JUDGES, join]: A Georgia election was conducted under procedures involving racial discrimination which was gross, state-imposed, and forcibly state-compelled. Nevertheless the District Court by summary judgment held it could not set aside such election or order a new one even though in parallel cases the unconstitutional discriminatory practices were enjoined and all persons arrested were ordered discharged immediately. We reverse. The underlying facts out of which the controversy grew may be quickly stated. The Justice of the Peace for the 789th Militia District in Americus, Sumter County, Georgia, died in June 23, 1965. The Ordinary on June 26, 1965, called a special election to fill the vacancy, which was held on July 20, 1965. Mrs. Mary F. Bell, one of the plaintiffs, a Negro, was a candidate as was the winner, J.W. Southwell, a defendant, and four other white men. Following Georgia procedure, the results of the election were canvassed and the defendant J.W. Southwell declared the winner. Of the 2,781 votes cast, Negroes actually voting numbered 403 out of a total of 1,223 registered and qualified Negro voters in the District. On July 29, 1965, and after the expiration of the time for election contest under Georgia laws, this suit was filed. The District Judge by opinion denied relief for three reasons, two Georgia and one Federal. First, even assuming the admitted racial discrimination intimidated Negroes from voting, if all of the qualified Negroes not voting were added to the confined vote of Southwell’s opponents, the result could not have been changed. Second, if the election were voided, the Ordinary would be required to appoint the successor and the appointee would surely be Southwell. Third, Federal Courts simply do not have power to void a state election. * * * The main charge [in the complaint] was that the election officials including the Ordinary had conducted the election in violation of the rights established under the Constitution and laws of the United States. The specific allegations fell in two categories, one relating to the election system and the second to specific acts of intimidation. In the first it was alleged that voting lists for the election were segregated on the basis of race. Likewise, voting booths were segregated according to race, with one booth for “white males”, another for “white women”, and a third for Negroes. During the course of the

3 election, a number of qualified Negro women voters were denied the right to cast their ballots in the “white women’s” booth. In the second group were charges that the officials barred representatives of candidate Bell from viewing the voting, another was physically struck by an election official and police allowed a large crowd of white males to gather near the polls thus intimidating Negroes from voting. In addition, the plaintiffs were commanded by a deputy sheriff, acting under directions of the Ordinary, to leave the white women’s polling booth and after their respectful refusal to do so on the ground that they had the constitutional right to vote without being subjected to racial discrimination, they were arrested. [T]he plaintiffs requested that the Court declare the defendant Southwell was not the legally elected Justice of the Peace, that he be enjoined from taking office, and that the Ordinary be ordered to call a new election. * * * * * * Since it is clear that constitutional rights of the plaintiffs, the Negro voters as a class, indeed all voters, Negro and white, of the District were infringed, the sole question remaining is the sort of relief to be granted. [T]he trial Court in unmistakable terms and action characterized the practices as flagrant violations of the Constitution. * * * Despite his determination that for the future these glaring racial discriminations could not go on, the trial Judge concluded that a Federal Court was either powerless—or at least ought not to exercise power—to set aside a State election. The Judge was apparently influenced by two factors. The first is one going to the existence of power or the propriety of its exercise. On the basis of Reynolds v. Sims, 1964, 377 U.S. 533 [p. XXX], and other reapportionment cases, the trial Court recognizing that a prohibitory decree could took [sic] to the future, nevertheless held that it could not rectify the past since, as the Judge put it, “only a few minutes’ reflection is needed to realize that the implications of such a decision would be staggering.” The second [is] * * * that, granting the existence of this crude discrimination, there is no way to tell whether the result would have been different in its absence. Hence, no harm or injury is shown by these complainants. Neither of these factors warrant [sic], in our view, the complete denial of relief. Drastic, if not staggering, as is the Federal voiding of a State election, and therefore a form of relief to be guardedly exercised, this Court in Hamer v. Campbell, 5 Cir., 1966, 358 F.2d 215, expressly recognized the existence of this power. Of course as that opinion emphasizes, not every unconstitutional racial discrimination necessarily permits or requires a retrospective voiding of the election. But the power is present * * *. As to the second we do not think the Court could justify denial of effective, present relief because of any assumed inability to demonstrate that the outcome would have been different. The appellants seem to suggest that the existence of such flagrant racial discrimination would raise a presumption that the vote of every actual and potential voter was affected. On that approach, it is not Negroes alone who suffer, it is the body politic as a whole, both Negro and white. And this is certainly true at least to the extent that the trial Court legally could not assume—as it evidently did—that all white voters would vote for white candidates, all Negroes for Negroes, or that no whites would vote for Negroes in a free, untainted election. [W]e think it is a mistake to cast this in terms of presumption. The fact is that there are certain discriminatory practices which, apart from demonstrated injury or the inability to do so, so infect the processes of the law as to be stricken down as invalid. Thus in jury-race exclusion cases, once the evidence, either direct or by inference from statistical

4 percentages, establishes the existence of racial discrimination, the law requires that the indictment (or the petit jury verdict of guilty) be set side even though the accused is unable to demonstrate injury in fact. And at times demonstrated actual discrimination is not even required if the racially conscious system affords a ready opportunity for it in practice. Of course the Court discharging an accused from such indictment or conviction as a legalism finds that the accused was “prejudiced”, but it is not in terms of the personal harm suffered or a factual demonstration that things would have turned out better. Rather, it is the law’s recognition that in areas of such vital importance, state-imposed racial discrimination cannot be tolerated and to eliminate the practice or the temptation toward it, the law must extinguish the judgment wrought by such a procedure. Even more directly, in connection with the elective process, the Supreme Court gave full play to this approach in striking down the Louisiana law requiring the designation of the race of each candidate on the ballot.7 Anderson v. Martin, 1964, 375 U.S. 399. It takes little transposition to substitute for the ballot’s written racial candidate label the state supplied racial marker for places and manner of voting. In each situation it is “placing a racial label * * * at the most crucial stage in the electoral process—the instant before the vote is cast.” By each mechanism “the State furnishes a vehicle by which racial prejudice may be so aroused as to operate against one group because of race and for another.” And in both situations this “is true because by directing the citizen’s attention to the single consideration of race or color, the State indicates that * * * race or color is an important —perhaps paramount—consideration in the citizen’s choice, which may decisively influence the citizen to cast his ballot along racial lines.” And as much for one as for the other, the “vice lies not in the resulting injury but in the placing of the power of the State behind a racial classification that induces racial prejudice at the polls.” * * * * * * [T]he Georgia authorities * * * insist here that the relief sought was properly denied since the injunction was requested after the election was over. But * * * [t]here was really no effective relief available before the election. The moment the election process began, there was a protest by these Negro voters and others seeking an eradication of the discrimination and an opportunity for all members of that race, indeed for all voters, to vote without regard to race or color. That this self-help was not successful, indeed resulted in the unwarranted arrest and detention of those who protested, does not fault them for want of diligence. And within but a few days after the result of the election was published, this suit was filed as a part of an attack on many fronts. Considering the gross, spectacular, completely indefensible nature of this stateimposed, state-enforced racial discrimination and the absence of an effective judicial remedy prior to the holding of the election, this is far removed from a belated effort to set aside retrospectively an election held long before on the ground that re-examination of the circumstances indicates a denial of constitutional rights on the part of candidates or voters, or both. The parties here moved with unusual diligence and * * * relief “if it is to be had, must perforce come from the Court or the voters must simply be told to wait four more years.”


This was, of course, a suit prior to a primary and not one after the fact seeking to void the results of a racially tainted election. This distinction, however, bears upon the appropriateness of the relief and Hamer limitations to be placed upon it.

5 In the face of gross, unsophisticated, significant, and obvious racial discriminations in the conduct of the election and the now established power of a Federal Court to extinguish its effects even to the point of setting aside the election, the Georgia reasons relied on by the District Judge warrant but a brief comment. The Court’s fundamental mistake was in assuming that this was an election contest as such in which the winner is challenged because of ineligibility, fraud or irregularities in the conduct of the election, the receipt or counting of illegal ballots which would change the result and the like, and which, as a separate special statutory proceeding, must be timely filed by specified persons following statutory procedures and in particular tribunals. Mrs. Bell and her coplaintiffs alone or as members of the class did not challenge the eligibility of Mr. Southwell or the fact that he received an overwhelming majority. Indeed, Mrs. Bell as a former candidate did not seek to be selected over Southwell or any other opponent. What, and all, she and others sought was an election conducted free of such indefensible, racial distinctions. That being so, it was not the usual simple case of counting votes and denying relief for want of affirmative proof of a different result. Equally lacking in merit is the Court’s conclusion that setting aside the election would be ineffectual since * * * the Georgia statute prescribes that when an election is held and is determined not to have been valid, no re-election is held, but rather the Ordinary appoints a Justice of the Peace for the required term. The Court assumed, with unquestioned basis probably, that the Ordinary would have appointed Southwell. Clearly, the Federal Constitution and the Federal Courts are not so helpless or unresourceful as to condemn in words only to let go by default in fact such an open breach of constitutional demands. This leaves only a tag end. There is a suggestion that the District Court enjoining Southwell from taking office pursuant to the election would be powerless to grant affirmative relief requiring that the Ordinary call a special election. In this vital area of vindication of precious constitutional rights, we are unfettered by the negative or affirmative character of the words used or the negative or affirmative form in which the coercive order is cast. If affirmative relief is essential, the Court has the power and should employ it. The cause must therefore be reversed and remanded for the entry of an appropriate order setting aside the election and requiring the calling of a special election.

Supreme Court of Hawai’i. 51 Haw. 354, 461 P.2d 221 (Haw. 1969)

RICHARDSON, CHIEF JUSTICE [with whom JUSTICE LEVINSON, CIRCUIT JUDGE HAWKINS, and CIRCUIT JUDGE KING (the latter two sitting by designation) join]. In the November 1968 election to select six representatives in the House of Representatives from the Fifteenth Representative District, five candidates were clearly elected without contest. The present case involves a controversy over the sixth seat. In the final tabulation of the votes, the Republican candidate, Fong, received two more votes than did the Democratic candidate, Akizaki. Akizaki contested the election in the court below, and proved that of the ballots counted, at least nineteen were clearly invalid. These were absentee ballots which, because of late postmarks, failed to meet the requirements of HRS § 14-8. HRS § 14-8 provides that an absentee ballot received not

6 later than noon on the sixth day following a general election may be counted, but only if it is postmarked not later than the day before the election. Due to a mistake on the part of the election officials, nineteen ballots postmarked too late to be opened and counted were nevertheless opened and counted. In the process they were commingled with valid absentee ballots so that it could not later be determined for whom the invalid ballots had been cast. Since the number of invalid ballots greatly exceeds the margin of victory, it is obvious that their presence could have affected the result. The court below resolved this problem by discarding 174 absentee ballots, among which were the nineteen invalid ones. On the basis of a tabulation without these 174 ballots, the court declared Akizaki to have been the winner of the election. From this determination Fong appeals to this Court. * * * The fundamental interest to be protected here is that of the people of the Fifteenth Representative District in choosing whomever they please to represent them in the House of Representatives. The right to vote is perhaps the most basic and fundamental of all the rights guaranteed by our democratic form of government. Implicit in that right is the right to have one’s vote count and the right to have as nearly perfect an election proceeding as can be provided. The result we reach must be consistent with these principles. * * * We hold that * * * a new election should have been ordered. Because of the commingling of the valid and invalid absentee ballots, there is simply no way to determine what the actual result of the election was, and who should therefore be declared the winner. * * * The trial court’s approach was plausible; but to excise the entire absentee vote contained in the 174 ballots excluded by the court, in order to eliminate the nineteen ballots known to be invalid, inflicts too harsh a result on those absentee voters whose votes were validly cast. * * * Reversed. ABE, JUSTICE (dissenting). * * * The House of Representatives in the proper exercise of this constitutional power by a majority vote of its members declared plaintiff Akizaki one of the six duly elected members from the Fifteenth Representative District and seated him. * * * I believe it is improper, to say the least, for this court, by its decision in this case, to attempt to undo what the House of Representatives has done. I disagree with the majority court and I believe its decision definitely shows not only utter disrespect but lack of confidence in a coordinate branch of our government. * * *

Supreme Court of Florida 772 So. 2d 1240 (Fla. 2000)

PER CURIAM. [CHIEF JUSTICE WELLS, JUSTICE SHAW, JUSTICE HARDING, JUSTICE ANSTEAD, JUSTICE PARIENTE, JUSTICE LEWIS, and JUSTICE QUINCE join in this opinion.] * * * The issue in this case concerns the legality of the form of the ballot used in Palm Beach County, Florida, in the November 7, 2000, general election for the President and

7 Vice President of the United States. The remedy sought by the appellants 1 is a re-vote, a new election, or a statistical reallocation of the election totals in Palm Beach County. * * * In their briefs, the appellants have asked this Court to rule on the legality of the Palm Beach County ballot. They claim that the ballot is patently defective on its face in that the form and design of the ballot violated the statutory requirements of Florida election law. The appellants contend that the ballot was confusing and, as a result, they fear that they may have cast their vote for a candidate other than the one they intended. * ** As a general rule, a court should not void an election for ballot form defects unless such defects cause the ballot to be in substantial noncompliance with the statutory election requirements. See Nelson v. Robinson, 301 So. 2d 508, 510 (Fla. 2d DCA 1974) (rejecting a post-election challenge based upon an alleged defect in the alignment of the candidates’ names on the ballot). When considering a petition alleging a violation in the form of the ballot, “a vital consideration guiding the courts in determining whether an election should be voided is the reluctance to reach a decision which would result in the disfranchisement of the voters. Indeed, as regards defects in ballots, the courts have generally declined to void an election unless such defects clearly operate to prevent that free, fair and open choice.” Id. In the present case, even accepting appellants’ allegations, we conclude as a matter of law that the Palm Beach County ballot does not constitute substantial noncompliance with the statutory requirements mandating the voiding of the election. * * * Accordingly, we affirm the trial court’s dismissal with prejudice of the complaints. * * * It is so ordered.

Supreme Court of the United States 522 U.S. 67, 118 S. Ct. 464, 139 L. Ed. 2d 369 (1997)

JUSTICE SOUTER delivered the opinion of the Court [in the entirety of which CHIEF JUSTICE REHNQUIST, JUSTICE STEVENS, JUSTICE O’CONNOR, JUSTICE GINSBURG, and JUSTICE BREYER join, and in which JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE THOMAS join except as to Part III]. Under 2 U.S.C. §§ 1 and 7, the Tuesday after the first Monday in November in an even-numbered year “is established” as the date for federal congressional elections. Louisiana’s “open primary” statute provides an opportunity to fill the offices of United States Senator and Representative during the previous month, without any action to be taken on federal election day. The issue before us is whether such an ostensible election runs afoul of the federal statute. We hold that it does. I The Elections Clause of the Constitution, Art. I, § 4, cl. 1, provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” The Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as

The appellants in this case are electors from Palm Beach County.

8 Congress declines to preempt state legislative choices. Thus it is well settled that the Elections Clause grants Congress “the power to override state regulations” by establishing uniform rules for federal elections, binding on the States. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832-833 (1995) [p. XXX]. “[T]he regulations made by Congress are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative.” Ex parte Siebold, 100 U.S. 371, 384 (1879). One congressional rule adopted under the Elections Clause (and its counterpart for the Executive Branch, Art. II, § 1, cl. 3) sets the date of the biennial election for federal offices. Title 2 U.S.C. § 7 was originally enacted in 1872, and now provides that “[t]he Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.” This provision, along with 2 U.S.C. § 1 (setting the same rule for electing Senators under the Seventeenth Amendment) and 3 U.S.C. § 1 (doing the same for selecting Presidential electors), mandates holding all elections for Congress and the Presidency on a single day throughout the Union. In 1975, Louisiana adopted a new statutory scheme for electing United States Senators and Representatives. In October of a federal election year, the State holds what is popularly known as an “open primary” for congressional offices, in which all candidates, regardless of party, appear on the same ballot, and all voters, with like disregard of party, are entitled to vote. If no candidate for a given office receives a majority, the State holds a run-off (dubbed a “general election”) between the top two vote-getters the following month on federal election day. But if one such candidate does get a majority in October, that candidate “is elected,” and no further act is done on federal election day to fill the office in question. Since this system went into effect in 1978, over 80% of the contested congressional elections in Louisiana have ended as a matter of law with the open primary.1 Respondents are Louisiana voters who sued petitioners, the State’s Governor and secretary of state, challenging the open primary as a violation of federal law. The District Court granted summary judgment to petitioners, finding no conflict between the state and federal statutes, whereas a divided panel of the Fifth Circuit reversed, concluding that Louisiana’s system squarely “conflicts with the federal statutes that establish a uniform federal election day.” We granted certiorari and now affirm. II The Fifth Circuit’s conception of the issue here as a narrow one turning entirely on the meaning of the state and federal statutes is exactly right. For all of petitioners’ invocations of state sovereignty, there is no colorable argument that § 7 goes beyond the ample limits of the Elections Clause’s grant of authority to Congress.2 When the federal

A run-off election has been held on federal election day in only 9 of the 57 contested elections for United States Representative and in only 1 of the 6 contested elections for United States Senator. 2 The Clause gives Congress “comprehensive” authority to regulate the details of elections, including the power to impose “the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.” Smiley v. Holm, 285 U.S. 355, 366 (1932). Congressional authority extends not only to general elections, but also to any “primary election which involves a necessary step in the choice of candidates for election as representatives in Congress.” United

9 statutes speak of “the election” of a Senator or Representative, they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder (subject only to the possibility of a later run-off, see 2 U.S.C. § 8).3 By establishing a particular day as “the day” on which these actions must take place, the statutes simply regulate the time of the election, a matter on which the Constitution explicitly gives Congress the final say. While true that there is room for argument about just what may constitute the final act of selection within the meaning of the law, our decision does not turn on any nicety in isolating precisely what acts a State must cause to be done on federal election day (and not before it) in order to satisfy the statute. Without paring the term “election” in § 7 down to the definitional bone, it is enough to resolve this case to say that a contested selection of candidates for a congressional office that is concluded as a matter of law before the federal election day, with no act in law or in fact to take place on the date chosen by Congress, clearly violates § 7.4 Petitioners try to save the Louisiana system by arguing that, because Louisiana law provides for a “general election” on federal election day in those unusual instances when one is needed, the open primary system concerns only the “manner” of electing federal officials, not the “time” at which the elections will take place. Petitioners say that “[a]lthough Congress is authorized by the Constitution to alter or change the time, place and manner the States have chosen to conduct federal elections[,] in enacting 2 U.S.C. §§ 1 and 7, Congress sought only to alter the time in which elections were conducted, not their manner. Conversely, the open elections system [changed only the manner by which Louisiana chooses its federal officers; it] did not change the timing of the general election for Congress.” Even if the distinction mattered here, the State’s attempt to draw this time-manner line is merely wordplay, and wordplay just as much at odds with the Louisiana statute as that law is at odds with § 7. The State’s provision for an October election addresses timing quite as obviously as § 7 does. State law straightforwardly provides that “[a] candidate who receives a majority of the votes cast for an office in a primary election is elected.” Because the candidate said to be “elected” has been selected by the voters from among all eligible office-seekers, there is no reason to suspect that the Louisiana Legislature intended some eccentric meaning for the phrase “is elected.” After a declaration that a candidate received a majority in the open primary, state law requires no further act by anyone to seal the election; the election has already occurred. Thus,
States v. Classic, 313 U.S. 299, 320 (1941). 3 Title 2 U.S.C. § 8, which was enacted along with § 7, provides that a State may hold a congressional election on a day other than the uniform federal election day when such an election is necessitated “by a failure to elect at the time prescribed by law.” The only explanation of this provision offered in the legislative history is Senator Allen G. Thurman’s statement that “there can be no failure to elect except in those States in which a majority of all the votes is necessary to elect a member.” Cong. Globe, 42d Cong., 2d Sess., 677 (1872). In those States, if no candidate receives a majority vote on federal election day, there has been a failure to elect and a subsequent run-off election is required. See Public Citizen, Inc. v. Miller, 813 F. Supp. 821 (N.D. Ga.), aff’d, 992 F.2d 1548 (C.A. 11 1993) (upholding under § 8 a run-off election that was held after federal election day, because in the initial election on federal election day no candidate received the majority vote that was as required by Georgia law). 4 This case thus does not present the question whether a State must always employ the conventional mechanics of an election. We hold today only that if an election does take place, it may not be consummated prior to federal election day.

10 contrary to petitioners’ imaginative characterization of the state statute, the open primary does purport to affect the timing of federal elections: a federal election takes place prior to federal election day whenever a candidate gets a majority in the open primary. As the attorney general of Louisiana conceded at oral argument, “Louisiana’s system certainly allows for the election of a candidate in October, as opposed to actually electing on Federal Election Day.” III While the conclusion that Louisiana’s open primary system conflicts with 2 U.S.C. § 7 does not depend on discerning the intent behind the federal statute, our judgment is buttressed by an appreciation of Congress's object “to remedy more than one evil arising from the election of members of Congress occurring at different times in the different States.” Ex parte Yarbrough, 110 U.S. 651, 661 (1884). As the sponsor of the original bill put it, Congress was concerned both with the distortion of the voting process threatened when the results of an early federal election in one State can influence later voting in other States, and with the burden on citizens forced to turn out on two different election days to make final selections of federal officers in Presidential election years:
“Unless we do fix some time at which, as a rule, Representatives shall be elected, it will be in the power of each State to fix upon a different day, and we may have a canvass going on all over the Union at different times. It gives some States undue advantage. . . . I can remember, in 1840, when the news from Pennsylvania and other States that held their elections prior to the presidential election settled the presidential election as effectually as it was afterward done. . . . I agree . . . that Indiana, Ohio, and Pennsylvania, by voting in October, have an influence. But what I contend is that that is an undue advantage, that it is a wrong, and that it is a wrong also to the people of those States, that once in four years they shall be put to the trouble of having a double election.” Cong. Globe, 42d Cong., 2d Sess., 141 (1871) (remarks of Rep. Butler).

* * * The Louisiana open primary has tended to foster both evils, having had the effect of conclusively electing more than 80% of the State’s Senators and Representatives before the election day elsewhere, and, in Presidential election years, having forced voters to turn out for two potentially conclusive federal elections. IV When Louisiana’s statute is applied to select from among congressional candidates in October, it conflicts with federal law and to that extent is void. The judgment below is affirmed. It is so ordered. Notes and Questions 1. As the Bell court acknowledged, it is extraordinary for a court (particularly a federal court) to take the “drastic” step of ordering a new election for a state office. According to the court, the remedy was necessary given the pervasiveness of the votingrights violations. How often would you expect such circumstances to be found? It appears that federal courts have rarely found such circumstances, and so the holding in Bell is rarely replicated, even in cases from the same circuit. See, e.g., Hamer v. Ely, 410 F.2d 152, 156 (5th Cir. 1969) (Wisdom, J.) (refusing to order new election, even when state officials did not appoint anyone to aid illiterate African-American voters, since the

11 “serious violations of voting rights” found in Bell were not present); Hutchinson v. Miller, 797 F.2d 1279, 1287 (4th Cir. 1986) [p.XXX] (discussing how federal courts have rarely found the circumstances of Bell to be present). See also Developments in the Law —Elections, 88 HARV. L. REV. 1111, 1335 (1975) (observing that courts rarely void elections, as in Bell, when there is no evidence that the violations would have changed the outcome). 2. One scholar has contrasted Bell and Bush v. Gore, 531 U.S. 98 (2000) [p. XXX], arguing that the federal judges in the former case “courageously” voided the election, and while correct, nonetheless “court intervention should be used sparingly.” In contrast, he continues, Bush v. Gore is a “dangerous precedent to the extent that it eases the way for federal court intervention in state and local elections over nuts-and-bolts disputes better left to local authorities.” Richard L. Hasen, Bush v. Gore and the Future of Equal Protection Law, 29 Fla. St. U. L. Rev. 377, 400 (2001). Do you agree? Would many critics of Bush v. Gore tend to herald Bell, and vice-versa? Are the cases in tension, or can they be harmonized in principled ways? 3. While the ordering of a new election, as in Bell, is unusual for federal judges, “the remedy is not uncommon in local elections” being reviewed by state judges, often primarily or exclusively on state-law grounds. Steven F. Huefner, Remedying Election Wrongs, 44 HARV. J. ON LEGIS. 265, 283 (2007). An example is the decision of Hawaii’s Supreme Court in Akizaki. The court was unable to determine who had been rightfully elected, and found that ordering a new election did not violate separation of powers concerns. In other words, it was not a nonjusticiable political question [see Chapter 2]. In contrast, the dissent found the result to be in “direct conflict” with the separation of powers. Whomever you may think had the better of the argument, note how Akizaki (in contrast to Bell) raised no federalism concerns. Does that make it more or less justifiable for a state court to order a new election? 4. Fladell was a less-noticed decision issued by the Florida Supreme Court during the Bush v. Gore controversy, albeit growing out of the same dispute. To order a new election, the court held, there must be “substantial noncompliance” with statutory requirements for the ballot. Courts should be wary of ordering a new election, the court held, since it was tantamount to disenfranchising voters. Is that a fair characterization of the remedy? Was the reticence displayed by Fladell absent in Bell and Akizaki? For an argument that the Fladell court should have ordered a new election, see Stephen J. Mulroy, Right Without a Remedy? The “Butterfly Ballot” Case and Court Ordered Federal Election “Revotes,” 10 GEO. MASON L. REV. 215 (2001). 5. For a general discussion of the power of federal courts to set aside state elections, see Kenneth W. Starr, Federal Judicial Intervention as a Remedy for Irregularities in State Elections, 49 N.Y.U. L. REV. 1092 (1974). Starr addressed the pros and cons of retroactively remedying an irregular election by ordering a new one, as opposed to an order prospectively forbidding the challenged practice. The former, he notes, provides a more complete remedy, and seemingly returns voters to the status quo. The latter remedy, he observes, is less intrusive, and avoids the problems of truly restoring the status quo, since not all of the same voters may vote, time has passed, and it is almost impossible to rerun the same election. He saw the result of Bell as being justified due to egregious, intentionally unlawful conduct of state officials. Id. at 1116-17. On the other hand, he argued, the “outrageous” criterion of Bell is a “highly subjective

12 standard,” id. at 1117, difficult for courts to apply. In most instances, Starr concluded, a new election should only be appropriate when the improprieties were outcomedeterminative, that is, when they might have affected the outcome of the election. Id. at 1124-27. 6. Foster v. Love did not invalidate a previous election as such, but it did set aside an election date for federal offices set by a state. In recent years many states have experimented in various ways with changing or modifying what previously had been one day for all persons to vote in person. Over thirty states now have extended mail-in or absentee voting, which in effect can extend the voting period from one day to several weeks. To what extent does Foster call into question the legality of such reforms, at least for federal elections? Courts have held that such systems do not violate Foster, in part because federal law also permits absentee voting in federal elections under some circumstances. See Voting Integrity Project v. Keisling, 259 F.3d 1169, 1175-76 (9th Cir. 2001) (Oregon’s mail-in system); Voter Integrity Project v. Bomer, 199 F.3d 773, 777 (5th Cir. 2000) (Texas’s early-voting system). At least one state court, drawing on Foster, has held that early voting laws violated the designation in the state constitution of one particular day for an election. Lamone v. Capozzi, 912 A.2d 674 (Md. 2006). Over thirty state constitutions have similar language, though Lamone appears to be the only successful challenge to early-voting systems on state-constitutional grounds. Ward Williams, Comment, 39 RUTGERS L.J. 1117, 1125-27 (2008).

This section considers how states decide what to count as a valid ballot, in the context of deciding whether or not to adjust a vote total of an election. It is closely related to the issues raised in the prior section, since a request for a new election can be based on vote totals being changed by a recount, as the Akizaki case illustrates. State courts have taken several approaches in deciding how to determine if a ballot was validly cast, whether to adjust vote totals, and when that should lead to a new election. For example, some states will order a new election, more-or-less automatically, simply if the number of invalid votes exceeds the margin of victory. Other states, in contrast, will order a new election only if there is a significant chance that the invalid votes would have affected the outcome. Some states will not deduct votes from a candidate unless there is direct evidence that invalid votes were cast for that candidate. Finally, some states undertake proportionate reduction, where the court will remedy invalid votes by estimating the number of such votes cast for each candidate, and reducing the vote totals accordingly. As you read the cases below, consider what approach the court seems to be following, and how each approach is or should be balanced against other values, such as the need for legitimacy and finality of elections.b


For further discussion of these issues, see Developments in the Law—Voting and Democracy, 119 HARV. L. REV. 1127, 1157-61 (2006); Kevin J. Hickey, Note, Accuracy Counts: Illegal Votes in Contested Elections and the Case for Complete Proportionate Deduction, 83 N.Y.U. L. REV. 167 (2008); Sarah E. LeCloux, Comment, Too Close to Call? Remedying Reasonably Uncertain Ballot Results with New Elections, 2001 WIS. L. REV. 1541.


Court of Appeals of New York 22 N.Y.2d 594, 241 N.E.2d 232, 294 N.Y.S.2d 209 (1968)

BREITEL, J. [with whom FULD, C.J., and KEATING and JASEN, JJ., join:] The successful candidate for District Leader (Male) Part B of the 22nd Assembly District, Democratic party, in the County of Queens, appeals from an order directing a new primary election in a proceeding brought by the unsuccessful candidate under section 330 of the Election Law. Special Term, after a hearing, granted such order, and the Appellate Division affirmed by a divided vote. The statute provides that the court may direct a new election where it “has been characterized by such frauds or irregularities as to render impossible a determination as to who rightfully was . . . elected.” This is the statutory standard and it is stated in the alternative, namely, that frauds or irregularities may ground a court’s discretion in directing a new election. In the instant primary a total vote of 2,827 was cast, 1,422 for the winner and 1,405 for the loser. Thus the winning margin was a mere 17 votes. Concededly 101 possible votes in the aggregate number were suspect or invalid for some kind of irregularity without any evidence of fraud or intentional misconduct. According to the public counter on the machine, there were 68 more votes cast than there were qualified persons who signed the voter registration (buff) cards. To be sure, it may be that the public counter did not register actual votes but only openings and closings of the automatic voting machines. In any event, such excessive operations were as unlawful as if actual excess votes were cast, and are significant because of the impossibility of knowing, in the absence of positive evidence, whether that is all that happened when the machines were opened and closed. There were 19 suspect or invalid votes because of blank, void, or missing party enrollments, 7 voter registration cards that were not signed, one irregular card, and 6 signings-in by members of the Conservative party although there was no contested Conservative primary. These make up the total of 101 suspect or invalid votes. It is evident that even a small portion of the suspect votes could undo the slight margin of the victor and change defeat into victory for the loser. Hence, the statutory standard is met precisely, justifying the lower court’s exercise of discretion in directing a new primary election. On almost identical facts, this court affirmed a similar direction (Matter of Nodar v. Power, 18 N.Y.2d 697 [1966]). In the Nodar case, 1,417 votes were cast for the contested position, 722 for the victor and 695 for the loser. There were 109 invalid or suspect votes, consisting of votes by 80 persons who were not enrolled and who signed in, and 29 excess operations of the machine according to the public counter. There, a victory margin of 27, when weighed against 109 irregular votes, was sufficient to require a new election without evidence of fraud or other intentional misconduct. Matter of Acevedo v. Power (18 N.Y.2d 700) and Matter of O’Connor v. Power (18 N.Y.2d 705), decided the same day as the Nodar case, reached an opposite conclusion. These were affirmances of exercises of discretion by the lower courts in declining to direct new elections, and were supported by entirely different probabilities. In the Acevedo case, there were 103 suspect votes against a victory margin of 95, and, in the other, some 262 suspect votes, of which Special Term refused to invalidate 102, leaving 160 against a victory margin of 165 votes. Obviously, a change in the result would require that the bulk of the questioned votes be shifted to the loser, a gross improbability,

14 or even impossibility, before it could be inferred that the irregularities were influential (see Matter of Badillo v. Santangelo, 15 A.D.2d 341 [1962]). There evolves from these cases a rational standard: if irregularities are sufficiently large in number to establish the probability that the result would be changed by a shift in, or invalidation of, the questioned votes, there should be a new election. As stated in the Badillo case, “An election will not be overturned upon a mere mathematical possibility that the results could have been changed, when the probabilities all combine to repel any such conclusion”; but in cases like the one now before the court, as in the Nodar case, it does not strain the probabilities to assume a likelihood that the questioned votes produced or could produce a change in the result. While it is troubling to require new election for irregularities without evidence of fraud or other intentional misconduct, ignoring such irregularities would undoubtedly create the likelihood that skillfully manipulated “irregularities” would be used to mask corrupt practices. It is better to keep the standards high, even at the cost of penalizing some voters and candidates for the failures of election inspectors, than to increase the opportunities for fraud without possibility or likelihood of discovery. And the statute is explicit in directing that irregularities, as well as fraud, may justify the direction of a new election. * * * Accordingly, the order directing a new election should be affirmed. [BURKE, SCILEPPI, and BERGAN, JJ., dissenting.] * * * Before considering the “specifics” relied upon by the majority, we would first comment on the setting in which the initial election was held. This year, for the first time, primaries were conducted State-wide. Accordingly, more voting machines were required. To meet this demand, a plan was initiated whereby the primary could be conducted without providing each political party a separate voting machine in each polling place. Instead, it was decided that the space on the individual machines could be split by the different political parties. To do this, it was first necessary that the machines be divided according to the parties, and that levers be installed which would limit a particular voter’s choice to those persons on the machine who were aspirants for office in his own political party. Finally, to insure that each person was properly limited to voting for his party’s candidates, each voter, after registering, was given a card of a distinctive color corresponding to the color ascribed to his party. Those persons operating the machines were thus informed of the voter’s registration and would set the machine accordingly. The uniqueness of this procedure is apparent. It is equally obvious that such a plan, when used for the first time and because it encompassed more steps than the standard primary procedure, would produce more mechanical and human errors than are usually associated with elections. Discrepancies alone, therefore, between various cross references of figures are more likely to occur and, in light of all the claims asserted both in this court and the lower courts of this State pertaining to this primary election, it would indeed be suspicious for any district or area to report a totally unimpeachable result. We do not agree with the majority that, to the extent the “irregularities” were attributed to the excess in the machine count over the number of signed cards, there is a basis for invalidating the difference. Even where there is an excess machine count in a case where machines were used for more than one party, it is pure speculation to assume without any testimony that there were repeaters. It is well settled that the results of an

15 election are entitled to a presumption of regularity and that a party attempting to impeach these results carries the burden of proof. In Matter of Nodar v. Power there were 1,417 votes cast as against 2,827 in this case. Hence the percentage of irregularities here is 50% less than in Matter of Nodar which is, therefore, inapplicable. An inexplicable inference, advanced by petitioner and accepted by the majority, arises from the Conservative vote in the district. The record before us indicates that there was no contested Conservative primary. From this evidence alone, the majority has concluded that Conservatives voted in the Democratic party. Proof of such a contention should lie, if at all, in the figures for registration and poll count amongst Democrats in the same district. Thus, if petitioner established that more Democratic votes were cast than could have been cast because of the Conservative registrants, there would indeed be a basis for this contention. Such evidence, however, does not exist. In fact, no testimonial evidence has been presented to support any allegation. * * * It is evident that all these “irregularities” were in fact attributable to mechanical and human error. As the burden of establishing the adverse effect on him of the “irregularities” rests on the petitioner, it is inconsistent with the prevailing conditions at this primary as compared with the primary held in Matter of Nodar to refuse to dismiss the petition in this case as we did in Matter of Acevedo v. Power where the vote cast was equivalent to the vote cast here. The order of the Appellate Division should be reversed and the petition dismissed.

United States District Court for the Southern District of Florida 15 F. Supp. 2d 1338 (S.D. Fla. 1998)

EDWARD B. DAVIS, CHIEF JUDGE. * * * * * * On November 4, 1997, the City of Miami held a general election for the position of Executive Mayor, with Joe Carollo and Xavier Suarez as the primary contenders. Neither Carollo nor Suarez received a majority of the overall votes; therefore, the City held a run-off election on November 13, 1997. In that election, Suarez defected Carollo in both precinct votes and absentee votes. On November 14, 1997, those results were certified and Suarez assumed the position of Mayor of the City of Miami. Three Miami voters brought an in rem state lawsuit challenging the vote count in the first election pursuant to Section 102.166, Fla. Stat. Carollo and Suarez intervened in that action. The Plaintiffs in this case did not. Judge Thomas Wilson, Jr., for the Circuit Court of the Eleventh Judicial Circuit of Florida, found that massive absentee voter fraud tainted the electoral process.
“Witness after witness testified, without contradiction, that they either 1) did not vote, 2) did not sign the ballots in question, 3) did not live in the district in which their ballot was cast, 4) did not live in the City of Miami, 5) did not know the person who ‘witnessed’ their signature or said someone other than the names witness actually ‘witnessed’ their vote, 6) did not live at the address that was given on the request for the absentee ballot, 7) did not request an absentee ballot and/or 8) did not qualify as ‘unable to vote.’ ”

Judge Wilson found that this fraud scheme, “literally and figuratively, stole the ballot from the hands of every honest voter in the City of Miami.” As a result, “the integrity of the election was adversely affected.” Judge Wilson held that the appropriate remedy was

16 to void the first Mayoral election and hold a new election. The Third District Court of Appeal of Florida agreed that massive fraud occurred in the electoral process, but held that the appropriate remedy was to invalidate only the absentee ballots from the November 4, 1997, election. The court citing to almost sixty years of Florida precedent stated that it “refuse[d] to disenfranchise the more than 40,000 voters who, on November 4, 1997, exercised their constitutionally guaranteed right to vote in the polling places of Miami.” Because Carollo received a majority (51.41%) of the machine vote in the initial election, the court declared him the Mayor of Miami. In this case, Plaintiffs represent the class of absentee voters who lawfully cast their absentee votes but whose votes were not counted pursuant to the Third DCA’s ruling. Plaintiffs, in their two count complaint for declaratory judgment and for injunctive relief, seek a new election. Plaintiffs basically contend that by voiding their votes, their constitutional rights under the First and Fourteenth Amendments were violated. * * * This case presents the difficult question of when a federal court should involve itself with a state election dispute. There is no doubt that the right to vote is one of the most basic and fundamental of rights. However, federal courts can only intervene in a state election dispute in the most extreme circumstances. This case does not present one of those circumstances. Moreover, public policy dictates that this Court not meddle with the state process. Accordingly, the Court will grant summary judgment for the Defendants. Before discussing the merits of Plaintiffs’ claim, the Court must first address Defendants’ argument that the Court should abstain. * * * Although Plaintiffs are technically correct that the Court should not abstain * * * many federal courts have held that they should not intervene in state election disputes. “Subject to specific exceptions, federal courts should not be involved in settling state election disputes.” Only when election irregularities are fundamentally unfair and transcend “garden variety” problems do federal courts have a duty to step in to ensure that citizens’ rights are protected. The Court, therefore, must determine whether this case is just another garden variety election dispute or whether Plaintiffs have been subjected to fundamental unfairness.4 More often than not, federal courts find that the problem is garden variety and do not intervene in state election disputes. See, e.g., Gold v. Feinberg, 101 F.3d 796, 801 (2d Cir. 1996) (refusing to intervene where human error resulted in miscounting of votes, presence of ineligible candidates on ballot, and delay in arrival of voting machines); Bodine v. Elkhart County Election Bd., 788 F.2d 1270, 1272 (7th Cir. 1986) (mechanical and human error in counting votes); Hendon v. North Carolina State Bd. of Elections, 710 F.2d 177, 182 (4th Cir. 1983) (technical deficiencies in printing ballots); Gamza v. Aguirre, 619 F.2d 449, 454 (5th Cir. 1980) (negligent vote counting); Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975) (malfunction of voting machines); Pettengill v. Putnam County R-1 School Dist., 472 F.2d 121, 122 (8th Cir. 1973) (counting votes that were illegally cast); Powell v. Power, 436 F.2d 84 (2d Cir. 1970) (non-party members mistakenly allowed to vote in congressional primary); Johnson v. Hood, 430 F.2d 610,

Defendants argue that the Court need not reach this issue because absentee voting is a privilege and not a right. Defendants are correct that there is no right to vote by absentee ballot, but their characterization is misleading. Florida, of course, can restrict or perhaps even eliminate absentee voting under the appropriate circumstances before these votes are cast. The question then is whether Florida can restrict these votes after they are cast when there is evidence of massive fraud. As explained later, federalism and equity prevent this Court from telling Florida that it cannot in this case.

17 613 (5th Cir. 1970) (arbitrary rejection of 10 ballots). In a case with strikingly similar facts, the Eleventh Circuit cautioned district courts not to meddle with a state election dispute. Curry [v. Baker], 802 F.2d 1302 [(11th Cir. 1986)]. There, the plaintiffs argued that the state of Alabama incorrectly dealt with massive illegal voting. The Eleventh Circuit declined to answer that question for “reasons grounded in both law and public policy.” Curry involved a primary runoff election for the Democratic candidate for Governor of Alabama. Initially, it looked like Charles Graddick had won, but like this case, there was massive illegal voting. Therefore, the State Democratic Committee certified William Baxley, who received the majority of the legal votes, as the winner. Graddick and his supporters brought suit arguing that the election committee did not use the correct methods for counting and determining the lawfully cast votes. The district court agreed and ordered the Democratic Party to conduct a new primary and enjoined the disqualification of Graddick. The Eleventh Circuit reversed, reasoning that it was not its role to “oversee the administrative details of a local election.” Id. at 1315. As Curry clearly demonstrates, it is not the job of a federal court to involve itself with settling disputes as to how the state deals with counting votes after illegal votes are cast. Instead, a federal court should only intervene into state election disputes where the entire process is fundamentally unfair. “Episodic events” don’t count. Curry, 802 F.2d at 1314. [There is] a distinction between state laws and patterns of state action that systematically deny equality in voting, and episodic events that, despite non-discriminatory laws, may result in the dilution of an individual’s vote. Unlike systematically discriminatory laws, isolated events that adversely affect individuals are not presumed to be a [constitutional violation]. This instant action represents an isolated or “episodic event” that does not demonstrate that the entire process is fundamentally unfair. Plaintiffs argue, however, that another Eleventh Circuit case is more similar to the instant action. See Roe [v. Alabama], 43 F.3d 574 [(11th Cir. 1995)] [p. XXX]. The Court disagrees. In that case, the prior Alabama practice had been not to count absentee ballots unless they were notarized or witnessed; but after the 1994 election, an Alabama court ordered the improperly submitted absentee ballots to be counted. The Roe court determined that the election was fundamentally unfair for two reasons: 1) that Alabama was diluting the votes of those who had lawfully voted, and 2) that Alabama had disenfranchised those people who would have voted but for the inconvenience imposed by the notarization and witness requirements. Id. at 581. The difference between Roe and this case (as well as Curry) is that in Roe, the state changed its policy after an election. The Eleventh Circuit in Roe did not involve itself with settling an isolated dispute about fraud. Instead, it intervened because the state’s policy changed after an election. Here, Florida did not change its policy at all. It stayed true to course—if there is massive fraud with absentee votes, they can be invalidated. In fact, there is a “complete absence of any Florida Appellate Court decision upholding the ordering of a new election in the face of such fraudulent conduct relating to absentee ballots.” See In Re Matter of Protest, 707 So. 2d at 1173. Plaintiffs also rely on cases from the Third and First Circuits. These cases are persuasive, but in the end, do not control this Court’s decision. * * * In Marks [v.

18 Stinson], 19 F.3d [873,] 873 [(3d Cir. 1994)], in Pennsylvania’s second senatorial district election, the Republican candidate, Bruce Marks, received the majority of the machine votes over Democrat William Stinson. Stinson, however, won the bulk of the absentee votes. Because of the huge number of absentee ballots cast for Stinson, he won the election 20,523 to 20,062. Marks brought state and federal proceedings against Stinson alleging that his opponent engaged in absentee voter fraud. The district court, deciding not to abstain, voided all absentee votes finding that there was massive fraud and enjoined Stinson from assuming office and declared Marks the winner based solely on the machine vote. The Third Circuit remanded the case back to the district court to determine whether the results would have been the same absent the wrongdoing, with instructions that the district court “will have authority to order a special election, whether or not it is able to determine what the results would have been in the absence of that violation.” Id. at 889. Marks, however, did not present a situation where a federal court had to step in and invalidate sixty years of state law. Instead, the Third Circuit simply overruled the district court’s decision to invalidate absentee votes. This case is fundamentally different because here, a federal district court would have to meddle with the state’s determination of what an appropriate remedy is, and would also have to examine whether sixty years of precedent should be overturned. The Court declines to do so. Plaintiffs also cite to a First Circuit case in which the court intervened, Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978). This case arose out of a Rhode Island local primary in which the state had encouraged citizens to vote by absentee ballot. After citizens took the bait, the Rhode Island Supreme Court found that absentee voting was not authorized for primary elections and invalidated those votes. The court then ordered the decertification of the winner and the board of canvassers certified a new winner based solely on the machine cast votes. Id. The absentee voters then filed a class action in federal court alleging that the Rhode Island Supreme Court, by invalidating their votes violated the Due Process Clause of the Fourteenth Amendment. The district court agreed and the First Circuit affirmed, finding that plaintiffs had relied on the government’s assurances that absentee ballots would be counted. Based on these unique circumstances, the First Circuit found “broad-gauged unfairness” which implicated the state’s integrity and the integrity of the election results. The court recognized, however, that the Constitution confers the “power to control the disposition of contests over elections to . . . state and local offices.” Id. at 1077. Like Alabama in Roe, Rhode Island changed the rules half way through the game. The state told voters one thing before the election and changed its policy thereafter. This was unacceptable and of course, the First Circuit had to intervene. Florida, on the other hand, maintains its policy of remedying fraud. It has not changed the rules of the game and neither will this Court. The Ninth Circuit, in refusing to meddle with a state election, summarized the law in all of these election cases:
A general pattern emerges from all of these cases taken together. Mere fraud or mistake will not render an election invalid. However, a court will strike down an election . . . if two elements are present: (1) likely reliance by voters on an established election procedure and/or official pronouncements about what the procedure will be in the coming election; and (2) significant disenfranchisement that results from a change in the election procedures.

19 Bennett [v. Yoshina], 140 F.3d [1218,] 1226 [(9th Cir. 1998)] (emphasis added). This case is about mere fraud—nothing more. It has nothing to do with reliance on an established procedure or a change in the election procedures. If anything, the voters must be presumed to have known of Florida’s procedure of voiding all absentee votes if there was evidence of fraud. * * * Florida courts have established and followed this policy for good reason. The absentee voting scheme as it now exists in Florida lends itself to fraud, manipulation, and deceit. The state legislature continues to attempt improvements, but to date criminals have found ways to abuse the system. Accordingly, Florida courts for the past sixty years have constructed a means of dealing with absentee voter fraud. It is not this Court’s province to upset this remedy as it has been well thought out by the state courts. For example, as the state appellate court in this case noted, “were we to approve a new election as the proper remedy following extensive absentee voting fraud, we would be sending out the message that the worst that would happen in the face of voter fraud would be another election.” For these reasons, the Eleventh Circuit in Curry held that state election disputes were better dealt with by “the court system of the affected state.” 802 F.2d at 1302. Even if Plaintiffs were able to set forth a constitutional violation, the Court must take into account equitable considerations in fashioning the appropriate remedy in each case. “A federal court reaching into the state political process to invalidate an election necessarily implicates important concerns of federalism and state sovereignty. It should not resort to this intrusive remedy until it has carefully weighed all equitable considerations.” * * * Indeed, the old Fifth Circuit, whose decisions are of course binding on this Court, stated that even in cases of racial discrimination, the voiding of a state election is a “drastic if not staggering” remedy. Bell v. Southwell, 376 F.2d 659, 662 (5th Cir. 1967) [p. XXX]. The almost circus atmosphere surrounding this case makes the remedy Plaintiffs seek even more drastic and staggering. Plaintiffs could have intervened in the state case, as did Xavier Suarez. They did not. Instead, they waited until the trial was completed, the appeal and cross-appeal were filed, the appellate opinion was issued, rehearing and certification were petitioned for and denied, and discretionary review in the Florida Supreme Court was invoked before coming to this Court to request relief. The City of Miami has been scarred by the events that took place during and after the 1997 Mayoral election. The City and its citizens are finally starting to heal. Equity necessitates that the Court not re-open these wounds. Federal courts rarely meddle with state election disputes. This case is no exception. The massive absentee fraud during the November, 1997, Mayoral election was an episodic event that was addressed by the state. The Eleventh Circuit as well as the majority of courts explain that it is not the job of the federal court to intrude into these brief episodes. Furthermore, equity demands that the Court stay on the sideline of this state dispute. * * *

California Court of Appeal, Second District, Division 1 106 Cal. App. 4th 1153, 131 Cal. Rptr. 2d 402 (2003)

ORETGA, J. [with whom SPENCER, P.J., and MALLANO, J. join]. * * *

20 Appellant Irving and respondent Andrews were the top candidates in one of two city council races in the April 2001 primary election. * * * In the June 5, 2001, runoff election, Irving defeated Andrews by a vote of 5,414 to 4,863. Andrews then filed the present election contest against Irving, contending that [city clerk Charles] Davis had erred by placing Irving’s name above Andrews’s on the runoff ballot. * * * Davis conceded below that Andrews’s name should have been listed first [pursuant to the randomized alphabet compiled for such purposes] * * *. Davis stated, and the trial court agreed, that Irving’s name was mistakenly placed before Andrews’s due to Davis’s unintentional error. The finding that Davis’s error was unintentional is not disputed in this appeal. Andrews also contended below that Irving had committed offenses against the elective franchise by soliciting (either personally or through her agents) nine noncitizens to register to vote, and by illegally influencing or instructing the nine noncitizens to vote for Irving. The trial court, after rejecting Irving’s argument that the ballot name-order error should have been addressed in a preelection writ proceeding, found the error sufficient to overturn Irving’s election. The court shifted 295 votes from Irving to Andrews based, as in the mayoral election contest, on the primacy effect theory, 5 and declared Andrews the winner. In addition, the trial court found Irving had committed offenses against the elective franchise, either personally or through her agents, by: (1) knowingly soliciting nine noncitizens to register for absentee ballots * * *; (2) being present in the nine absentee voters’ homes while they were voting and telling them how to vote * * *; (3) fraudulently registering the nine noncitizens and assisting them to vote or completing their absentee ballots for them * * *; and (4) soliciting illegal votes from the nine nonqualified voters[.] *** Irving appealed from the adverse judgment and petitioned for a writ of supersedeas. We denied the petition on March 7, 2002. Accordingly, Andrews has been serving on the city council while this appeal was pending. * * * When an otherwise successful candidate such as Irving is subsequently found to have committed an offense or offenses against the elective franchise, her election may be annulled even if the number of unqualified voters she fraudulently registered or the number of votes she unlawfully solicited were too few to have changed the outcome of the election. As the California Supreme Court explained: “Each . . . ‘offense against the elective franchise * * * can furnish independent statutory grounds for contesting and annulling the election, separate and apart from the effects of any illegal votes actually counted. * * * We affirm the portion of the judgment annulling Irving’s election[.] * * * Given that this election contest involves questions broader than Irving’s personal interest as a candidate for the contested office, we conclude the electorate’s interest in this important legal issue requires that the primacy effect issue be addressed. Election contests are not typical adversary proceedings “between individuals asserting personal rights or interests, but involve the right of the people to have the fact as to who has been duly elected by them judicially determined. An election contest involves a question of

[T]he trial court based its primacy effect finding solely on [political scientist Jon] Krosnick’s expert testimony that on average, those listed first on a ballot receive 3.32 percent more votes. There was no direct evidence from any voter regarding the effect of the name-order error on the voter’s selection of a candidate.

21 broader import than the mere individual claim of a person to enjoy the honors and emoluments of a particular office brought directly into contest. The inquiry must be as to whether in a given instance the popular will has been, or is about to be, thwarted by mistake or fraud. The public interest imperatively requires that the ultimate determination of the contest shall reach the right result.” Turning to the merits of Irving’s contentions, we find that by shifting votes from Irving to Andrews based solely on the primacy effect theory, the trial court exceeded its authority. Under sections 16203, 16402, and 16703 [of the California Elections Code], only illegal votes may be discarded in an election contest. If the court finds, after discarding the illegal votes given for the winning candidate, that another candidate “has the highest number of legal votes, the court shall declare that person elected.” (§ 16703.) Otherwise, if discarding the illegal votes given for the winning candidate would not change the result of the election, and the winning candidate is disqualified from taking office due to having committed offenses against the elective franchise, the court shall enter judgment “annulling and setting aside the election.” (§ 16603.) In this case, the trial court found a total of 144 illegal votes had been cast in the runoff election, but found it impossible to determine in whose favor (other than the nine illegal votes for Irving) the illegal votes had been cast. Even if we were to assume that all 144 illegal votes had been cast for Irving, subtracting 144 illegal votes from Irving’s total would still have left her the victor with 5,270 legal votes to Andrews’s 4,863 legal votes. Therefore, the illegal votes cast for Irving did not change the result of the election, and there was no other candidate with more legal votes than Irving. Given Irving’s disqualification from taking office due to her offenses against the elective franchise, the trial court should have entered a judgment “annulling and setting aside the election.” (§ 16603, italics added.) Instead, in a ruling unprecedented, to our knowledge, in this country, the trial court shifted 295 legal votes from Irving to Andrews based solely on the 3.32 percent primacy effect assumed to be enjoyed, on average, by those listed first on the ballot. While many courts and legislatures have recognized the advantage afforded to candidates whose names are listed first on the ballot, no judicial or statutory authority exists to reverse the results of an election where, due to unintentional clerical error, the ballot listed the candidates in the wrong alphabetical order. Election results may only be challenged on one of the grounds specified in section 16100. Name-order error occurring in the absence of fraud and resulting purely from unintentional clerical error, as in this case, is not a valid ground for an election contest under section 16100. The fact that 295 legal votes may have been cast for Irving solely because her name was erroneously listed first on the ballot does not, in itself, impeach the integrity of those 295 votes. Legal votes randomly cast by the least informed or least interested voters are entitled to the same weight as legal votes cast by the most highly educated and informed voters in our society. The legality or illegality of a vote cast by a qualified voter in a lawful manner does not depend upon the voter’s motive or purpose in voting a certain way. To shift 295 legal votes to “correct” the votes “randomly” cast for Irving solely as a result of her erroneous advantageous ballot position (and to award those same “random” votes to Andrews based solely on the primacy effect theory) would be, without any lawful justification, to disenfranchise those 295 voters. We conclude the trial court erred in entering judgment for Andrews and declaring her

22 elected when she had failed to win the highest number of legal votes in the June 5, 2001, election. Accordingly, * * * [t]he certificate of election for Andrews is annulled, and Andrews’s city council seat shall be vacant upon the finality of this opinion. * * * Notes and Questions 1. A short (eight-page) but much-discussed effort to address the role of statistical evidence in adjusting vote totals was presented in Michael O. Finkelstein & Herbert E. Robbins, Mathematical Probability in Election Challenges, 73 COLUM. L. REV. 241 (1973). The authors set out a formula to help determine whether invalid votes altered the outcome of an election. The formula considers the winner’s plurality, the total number of votes cast, and the number of invalid votes cast. The formula assumes that the invalid votes were not systematically biased toward one candidate or another, i.e., that the invalid votes were randomly distributed. In Ippolito, the court ordered a new election because “it does not strain the probabilities to assume a likelihood that the questioned votes produced or could produce a change in the results.” Finkelstein and Robbins criticized this analysis because under their formula, there was only a five percent chance that the outcome of the election at issue in that case would have been different. Id. at 243. Does this analysis call into question the reasoning or result in Ippolito? Is the “intuitive” analysis of cases like Ippolito more, or less, persuasive than the formula? Finkelstein and Robbins acknowledge that that their formula should not be used if there is “evidence of fraud or patterns of irregular voting.” What type of evidence should be presented, or should a court demand, before invoking that exception? What do you make of the fact that no court has apparently ever applied the formula? Kevin J. Hickey, Note, Accuracy Counts: Illegal Votes in Contested Elections and the Case for Complete Proportionate Deduction, 83 N.Y.U. L. REV. 167, 174 (2008). 2. The decision in Scheer was preceded by state-court litigation. Carollo, the loser of the mayoral run-off election, filed an election protest. Finding demonstrable evidence of fraudulent absentee voting, the state appellate court nonetheless refused to order a new election. Among other things, the court reasoned that (1) the ability to vote absentee was a privilege, not a right; (2) Suarez, the run-off winner, had no knowledge of and did not participate in the fraud; and (3) a new election would disenfranchise those many voters who properly voted at the polls. The more appropriate remedy, the court held, was to void the absentee ballots only. In re Protest of Election Returns, 707 So. 2d 1170 (Fla. App. 1998) (per curiam). That decision was in effect subject to collateral review in Scheer. While the federal court did not agree with all aspects of the state-court decision, it left the result intact. To what extent, if at all, does it inform the analysis to label the right to cast an absentee vote as a privilege, not a right? Were these courts correct to disregard all absentee ballots, presumably including those that were correctly cast? Unlike the Florida decisions, it appears that the “majority of states . . . have concluded that absentee voting laws should be liberally construed in aid of the right to vote.” Adkins v. Huckabay, 755 So. 2d 206, 216 (La. 2000). But there are other states that follow the right/privilege distinction for absentee ballots. E.g., Coleman v. Franken, 767 N.W.2d 462 (Minn. 2009) [p. XXX]. For further discussion, see Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69, 86-87 (2009). 3. A particularly controversial recount and adjustment of votes took place after the 2004 gubernatorial election for the State of Washington. Initially, Republican Dino Rossi

23 led Democrat Christine Gregoire by 261 votes out of more than 2.8 million cast. It was apparently the closest race for governor in American history. Two sets of recounts led to a lead by Gregoire of 129 votes. Rossi filed suit in state court, requesting a new election. Discovery in the case revealed that over 1600 voters had voted illegally, many of them disenfranchised felons. The challengers did not undertake the heavy burden of providing direct evidence of how the invalid voters voted. The trial judge found that proportionate reduction, the alternative remedy posited by the challengers, was not appropriate, in part because it could not assume that the votes by the mostly male felons were voting proportionately like non-felons. The challengers did not appeal the trial-court decision. Do decisions like this call into serious question the heretofore respectable theory of proportionate deduction? For discussion of the Washington election and its implications for this theory, see Developments in the Law—Voting and Democracy, 119 HARV. L. REV. 1127, 1155-65 (2006); Hickey, supra. 4. The court in Bradley heavily relied on the expert evidence of political scientists in finding that there was a “ballot order effect,” i.e., that candidates listed first on a ballot had an improper and unfair electoral advantage. For an argument that the social science evidence for the effect is “muddled,” and hence courts should be cautious before reallocating votes, or ordering a new election, based on the improper placement of names on a ballot, see R. Michael Alvarez et al., How Much Is Enough? The “Ballot Order Effect” and the Use of Social Science Research in Election Law Disputes, 5 ELECTION L.J. 40, 41 (2006). See also Amy King & Andrew Leigh, Are Ballot Order Effects Heterogeneous?, 90 SOC. SCI. Q. 71 (2009) (similarly emphasizing that the effect varies depending on the type of election, the attributes of candidates, and other factors). Given these complications, how confident should a court be in intervening to rectify errors regarding ballot order?

Previous portions of this Chapter discussed cases (e.g., Bell, Scheer) where federal courts contemplated whether and to what extent they should intervene to regulate elections to state offices. In this section, we consider the opposite issue, of state courts contemplating remedies for errors in elections to federal office. The U.S. Constitution and federal statutes speak to this issue in several ways. For presidential elections, Art. II establishes the Electoral College, but largely leaves to states, and specifically state legislatures, the methods to choose their electors. The Electoral Count Act of 1887, 3 U.S.C. §§ 1-21, establishes deadlines for states to select their electors, and for Congress to count any disputed electoral votes. A separate set of provisions deals with congressional elections. For example, Art. I, § 4, of the Constitution, applied in Foster v. Love, gives state legislatures the power to regulate the time, place and manner of such elections, but also states that Congress may “make or alter such regulations.” Congress is vested with power to be the exclusive judge of the elections, returns, and qualifications of its own members, Art. II, § 5, and since 1842 Congress has required that members of the House of Representatives be elected in single-member districts, as opposed to being elected state-wide. 2 U.S.C. § 2c. Nonetheless, these provisions are not comprehensive, and much of the details of elections to federal office are left to the provisions of particular states. As you read the following cases, consider whether this scheme is a rational one. Does it make sense to

24 delegate much of this authority to the states? Is there, or should there be, an independent federal (i.e., national) interest in regulating elections to federal office, and should that interest be largely delegated to state political institutions in general, and state courts in particular? What is the alternative if state electoral processes are not used?

Supreme Court of the United States. 146 U.S. 1, 13 S. Ct. 3, 36 L. Ed. 869 (1892)

MR. CHIEF JUSTICE FULLER, * * * delivered the opinion of the court [in which MR. JUSTICE FIELD, MR. JUSTICE HARLAN, MR. JUSTICE GRAY, MR. JUSTICE BLATCHFORD, MR. JUSTICE LAMAR, MR. JUSTICE BREWER, MR. JUSTICE BROWN, and MR. JUSTICE SHIRAS join]. * * * [Prior to 1892, Michigan allocated its Presidential electors on a statewide, winnertake-all basis. In that year, the Michigan legislature passed a law that allocated the electors by congressional district, based on the winner of the popular vote for President in each district. Maine and Nebraska still use versions of this approach. Persons nominated to be Presidential electors challenged the scheme in state court on various federal and state-law grounds, and they were rejected by the Michigan Supreme Court.] On behalf of plaintiffs in error it is contended that the act is void because in conflict with (1) clause two of section one of Article II of the Constitution of the United States; (2) the Fourteenth and Fifteenth Amendments to the Constitution; and (3) the act of Congress, of February 3, 1887. The second clause of section 1 of Article II of the constitution is in these words: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” The manner of the appointment of electors directed by the act of Michigan is the election of an elector and an alternate elector in each of the twelve Congressional districts into which the State of Michigan is divided, and of an elector and an alternate elector at large in each of two districts defined by the act. It is insisted that it was not competent for the legislature to direct this manner of appointment, because the State is to appoint as a body politic and corporate, and so must act as a unit, and cannot delegate the authority to subdivisions created for the purpose; and it is argued that the appointment of electors by districts is not an appointment by the state, because all its citizens otherwise qualified are not permitted to vote for all the presidential electors. “A State, in the ordinary sense of the Constitution,” said Chief Justice Chase, Texas v. White, [74 U.S.,] 7 Wall. 700, 731 [(1868)], “is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.” The State does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority, except as limited by the constitution of the State, and the sovereignty of the people is exercised through their representatives in the legislature, unless by the fundamental law power is elsewhere reposed. The Constitution of the United States frequently refers to the State as a political community, and also in terms to

25 the people of the several States and the citizens of each State. What is forbidden or required to be done by a State is forbidden or required of the legislative power under state constitutions as they exist. The clause under consideration does not read that the people or the citizens shall appoint, but that “each State shall”; and if the words, “in such manner as the legislature thereof may direct,” had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself. If the legislature possesses plenary authority to direct the manner of appointment, and might itself exercise the appointing power by joint ballot or concurrence of the two houses, or according to such mode as designated, it is difficult to perceive why, if the legislature prescribes as a method of appointment choice by vote, it must necessarily be by general ticket, and not by districts. In other words, the act of appointment is none the less the act of the State in its entirety because arrived at by districts, for the act is the act of political agencies duly authorized to speak for the state, and the combined result is the expression of the voice of the state, a result reached by direction of the legislature, to whom the whole subject is committed. By the first paragraph of section two, Article I, it is provided: “The House of Representatives shall be composed of Members chosen every second year by the people of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature;” and by the third paragraph, “when vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” Section four reads: “The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” Although it is thus declared that the people of the several States shall choose the members of Congress, (language which induced the State of New York to insert a salvo as to the power to divide into districts, in its resolutions of ratification,) the state legislatures, prior to 1842, in prescribing the times, places, and manner of holding elections for representatives, had usually apportioned the State into districts, and assigned to each a representative; and by act of Congress of June 25, 1842, * * * it was provided that, where a State was entitled to more than one representative, the election should be by districts. It has never been doubted that representatives in Congress thus chosen represented the entire people of the state acting in their sovereign capacity. By original clause three of section one of Article II, and by the Twelfth Amendment which superseded that clause, in case of a failure in the election of President by the people, the House of Representatives is to choose the President; and “the vote shall be taken by States, the representation from each State having one vote.” The State acts as a unit, and its vote is given as a unit, but that vote is arrived at through the votes of its representatives in Congress elected by districts. The State also acts individually through its electoral college, although, by reason of the power of its legislature over the manner of appointment, the vote of its electors may be divided.

26 The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. The framers of the Constitution employed words in their natural sense; and where they are plain and clear, resort to collateral aids to interpretation is unnecessary and cannot be indulged in to narrow or enlarge the text; but where there is ambiguity or doubt, or where two views may well be entertained, contemporaneous and subsequent practical construction are entitled to the greatest weight. Certainly, plaintiffs in error cannot reasonably assert that the clause of the Constitution under consideration so plainly sustains their position as to entitle them to object that contemporaneous history and practical construction are not to be allowed their legitimate force, and, conceding that their argument inspires a doubt sufficient to justify resort to the aids of interpretation thus afforded, we are of opinion that such doubt is thereby resolved against them, the contemporaneous practical exposition of the constitution being too strong and obstinate to be shaken or controlled. Stuart v. Laird, [5 U.S.] 1 Cranch, 299, 309 [(1803)]. It has been said that the word “appoint” is not the most appropriate word to describe the result of a popular election. Perhaps not; but it is sufficiently comprehensive to cover that mode, and was manifestly used as conveying the broadest power of determination. It was used in Article 5 of the Articles of Confederation, which provided that “delegates shall be annually appointed in such manner as the legislature of each State shall direct;” and in the resolution of Congress of February 21, 1787, which declared it expedient that “a convention of delegates who shall have been appointed by the several States,” should be held. The appointment of delegates was, in fact, made by the legislatures directly, but that involved no denial of authority to direct some other mode. The Constitutional Convention, by resolution of September 17, 1787, expressed the opinion that the Congress should fix a day “on which electors should be appointed by the states which shall have ratified the same,” etc., and that, “after such publication, the electors should be appointed, and the senators and representatives elected.” The Journal of the Convention discloses that propositions that the President should be elected by “the citizens of the United States,” or by the “people,” or “by electors to be chosen by the people of the several States,” instead of by the Congress, were voted down, as was the proposition that the President should be “chosen by electors appointed for that purpose by the legislatures of the States,” though at one time adopted. And a motion to postpone the consideration of the choice “by the national legislature,” in order to take up a resolution providing for electors to be elected by the qualified voters in districts, was negatived in Committee of the Whole. Gerry proposed that the choice should be made by the State executives; Hamilton, that the election be by electors chosen by electors chosen by the people; James Wilson and Gouverneur Morris were strongly in favor of popular vote; Ellsworth and Luther Martin preferred the choice by electors elected by the legislatures; and Roger Sherman, appointment by Congress. The final result seems to have reconciled contrariety of views by leaving it to the state legislatures to appoint directly by joint ballot or concurrent separate action, or through popular election by districts or by general ticket, or as otherwise might be directed. Therefore, on reference to contemporaneous and subsequent action under the clause,

27 we should expect to find, as we do, that various modes of choosing the electors were pursued, as, by the legislature itself on joint ballot; by the legislature through a concurrent vote of the two houses; by vote of the people for a general ticket; by vote of the people in districts; by choice partly by the people voting in districts and partly by the legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The district system was largely considered the most equitable, and Madison wrote that it was that system which was contemplated by the framers of the Constitution, although it was soon seen that its adoption by some States might place them at a disadvantage by a division of their strength, and that a uniform rule was preferable. From [a] review [of the various ways States chose Presidential electors between 1788 and 1892], * * * it is seen that from the formation of the government until now the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors. Even in the heated controversy of 1876-1877 the electoral vote of Colorado cast by electors chosen by the legislature passed unchallenged, and our attention has not been drawn to any previous attempt to submit to the courts the determination of the constitutionality of state action. In short, the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States. They are, as remarked by Mr. Justice Gray in In re Green, 134 U.S. 377, 379 [(1890)], “no more officers or agents of the United States than are the members of the state legislatures when acting as electors of Federal senators, or the people of the States when acting as the electors of representatives in Congress.” Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes, which is required to be the same day throughout the United States; but otherwise the power and jurisdiction of the state is exclusive, with the exception of the provisions as to the number of electors and the ineligibility of certain persons, so framed that Congressional and Federal influence might be excluded. The question before us is not one of policy, but of power; and, while public opinion had gradually brought all the States as matter of fact to the pursuit of a uniform system of popular election by general ticket, that fact does not tend to weaken the force of contemporaneous and long continued previous practice when and as different views of expediency prevailed. The prescription of the written law cannot be overthrown because the States have latterly exercised in a particular way a power which they might have exercised in some other way. The construction to which we have referred has prevailed too long and been too uniform to justify us in interpreting the language of the Constitution as conveying any other meaning than that heretofore ascribed, and it must be treated as decisive. It is argued that the district mode of choosing electors, while not obnoxious to constitutional objection, if the operation of the electoral system had conformed to its original object and purpose, had become so in view of the practical working of that system. Doubtless it was supposed that the electors would exercise a reasonable

28 independence and fair judgment in the selection of the Chief Executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors the original expectation may be said to have been frustrated. But we can perceive no reason for holding that the power confided to the States by the Constitution has ceased to exist because the operation of the system has not fully realized the hopes of those by whom it was created. Still less can we recognize the doctrine, that because the Constitution has been found in the march of time sufficiently comprehensive to be applicable to conditions not within the minds of its framers, and not arising in their time, it may, therefore, be wrenched from the subjects expressly embraced within it, and amended by judicial decision without action by the designated organs in the mode by which alone amendments can be made. Nor are we able to discover any conflict between this act and the Fourteenth and Fifteenth Amendments to the Constitution. * * * If presidential electors are appointed by the legislatures, no discrimination is made; if they are elected in districts where each citizen has an equal right to vote, the same as any other citizen has, no discrimination is made. Unless the authority vested in the legislatures by the second clause of section 1 of Article II has been divested and the State has lost its power of appointment, except in one manner, the position taken on behalf of relators is untenable, and it is apparent that neither of these amendments can be given such effect. The third clause of section 1 of Article II of the Constitution is: “The Congress may determine the time of choosing the Electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” * * * By the act of Congress of February 3, 1887, entitled “An act to fix the day for the meeting of the electors of President and Vice President,” etc., it was provided that the electors of each State should meet and give their votes on the second Monday in January next following their appointment. The state law in question here fixes the first Wednesday of December as the day for the meeting of the electors, as originally designated by Congress. In this respect it is in conflict with the act of Congress, and must necessarily give way. But this part of the act is not so inseparably connected in substance with the other parts as to work the destruction of the whole act. Striking out the day for the meeting, which had already been otherwise determined by the act of Congress, the act remains complete in itself, and capable of being carried out in accordance with the legislative intent. The state law yields only to the extent of the collision. The construction to this effect by the state court is of persuasive force, if not of controlling weight. * * * We repeat that the main question arising for consideration is one of power and not of policy, and we are unable to arrive at any other conclusion than that the act of the legislature of Michigan of May 1, 1891, is not void as in contravention of the Constitution of the United States, for want of power in its enactment. The judgment of the Supreme Court of Michigan must be Affirmed.


Supreme Court of Minnesota 767 N.W.2d 453 (Minn. 2009)

PER CURIAM. [JUSTICES PAGE, P.H. ANDERSON, MEYER, GILDEA, and DIETZEN join in this opinion, CHIEF JUSTICE MAGNUSON and JUSTICE G.B. ANDERSON taking no part.] Appellants, incumbent Republican United States Senator Norm Coleman and Cullen Sheehan, filed a notice of election contest under Minn. Stat. § 209.021 (2008), challenging the State Canvassing Board’s certification that Democratic-Farmer-Labor challenger Al Franken was entitled to receive a certificate of election as United States Senator following the November 4, 2008 general election. After a trial, the three-judge trial court we appointed to hear the election contest issued its findings of fact, conclusions of law, and order for judgment, concluding that Franken received 312 more legally cast votes than Coleman and that Franken was entitled to a certificate of election for the office of United States Senator. The question presented on appeal is whether the trial court erred in concluding that Al Franken received the most legally cast votes in the election for United States Senator. Because we conclude that appellants have not shown that the trial court’s findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion, we affirm. More than 2.9 million Minnesotans cast ballots in the November general election, including approximately 300,000 who voted or attempted to vote by absentee ballot. On November 18, 2008, the State Canvassing Board accepted the consolidated statewide canvassing report as showing that Coleman received 1,211,565 votes and that Franken received 1,211,359 votes for the office of United States Senator, a margin of 206 votes in Coleman’s favor. Because the margin separating the two candidates was less than onehalf of one percent of the total number of votes counted for that office, the State Canvassing Board directed the Minnesota Secretary of State’s Office to oversee a manual recount, as required by [Minnesota law]. The statewide manual recount was conducted between November 19, 2008, and January 5, 2009, pursuant to instructions drafted by the Secretary of State’s Office and approved by the State Canvassing Board after consultation with representatives of Coleman and Franken. During the recount, local election officials and the candidates reviewed the absentee ballot return envelopes that had been rejected on or before election day and agreed that some of them had been improperly rejected. On January 3, 2009, the Secretary of State’s Office opened and counted the 933 ballots identified during this process. On January 5, 2009, the State Canvassing Board certified the results of the election as 1,212,431 votes for Franken and 1,212,206 votes for Coleman, a margin of 225 votes in Franken’s favor. On January 6, 2009, appellants Coleman and Sheehan (hereinafter “Coleman”) filed a notice of election contest in Ramsey County District Court * * *, contesting the election results certified by the State Canvassing Board and seeking a declaration that Coleman was entitled to the certificate of election as United States Senator. * * * No claim of fraud in the election or during the recount was made by either party. At the conclusion of the trial, the court determined that 351 additional absentee ballot return envelopes satisfied the statutory requirements and ordered that these envelopes be opened and the ballots inside counted.

30 On April 13, 2009, the trial court issued its findings of fact, conclusions of law, and order for judgment, finding that Franken received 1,212,629 votes and Coleman received 1,212,317 votes in the November 4, 2008 general election, a margin of 312 votes in Franken’s favor. The court found that Franken received the highest number of votes legally cast in the election for United States Senator for the State of Minnesota and concluded that Franken was entitled to receive the certificate of election. The State Canvassing Board’s certification is prima facie evidence that Franken, the contestee, has been elected to the office. Coleman, the contestant, bears the burden of proof in the trial to show that the Board’s certification was in error. * * * Appellants raise essentially five issues: (1) whether the trial court violated Coleman’s right to substantive due process by requiring strict, rather than only substantial, compliance with the statutory requirements for absentee voting; (2) whether Coleman’s right to equal protection of the laws was violated, either by differences among jurisdictions in their application of the statutory requirements for absentee voting or by the court’s rulings on the statutory requirements for absentee voting; (3) whether the court erred in excluding certain evidence; (4) whether the court erred in declining to order inspections of ballots and other election materials for precincts in which Coleman alleges that ballots may have been double-counted during the manual recount; and (5) whether the court erred by including in the final vote tally the election day returns from one Minneapolis precinct in which some ballots were lost before the manual recount. I. We turn first to the question of whether Coleman’s right to substantive due process under the United States Constitution has been violated. * * * Decisions regarding challenges to the states’ administration of elections reflect the limited reach of substantive due process. See Roe v. Alabama, 43 F.3d 574, 580 (11th Cir. 1995) [p. XXX] (“Not every state election dispute, however, implicates the Due Process Clause of the Fourteenth Amendment and thus leads to possible federal court intervention. . . . If, however, the election process itself reaches the point of patent and fundamental unfairness, a violation of the due process clause may be indicated. . . .”). Based on its review of cases involving substantive due process challenges to election procedures, the Ninth Circuit has identified two elements as common to cases in which a violation was established:
A general pattern emerges from all of these cases taken together. Mere fraud or mistake will not render an election invalid. However, a court will strike down an election on substantive due process grounds if two elements are present: (1) likely reliance by voters on an established election procedure and/or official pronouncements about what the procedure will be in the coming election; and (2) significant disenfranchisement that results from a change in the election procedures.

Bennett v. Yoshina, 140 F.3d 1218, 1226-27 (9th Cir. 1998).8

Cases cited by Coleman illustrate the kind of post-election change in standards that can constitute a due process violation. For example, in Roe, after the election, a state circuit court ruled for the first time that no absentee ballot could be excluded for lack of notarization or lack of witnesses, even though those requirements had previously been enforced for years. 43 F.3d at 578-79; see also Griffin v. Burns, 570 F.2d 1065, 1078-79 (1st Cir. 1978) (holding that due process was violated when absentee balloting was disallowed post-election after it had been allowed in previous elections for years); Briscoe v. Kusper, 435

31 Although we have not previously considered substantive due process in the context of an election dispute, we agree with the federal courts and adopt the federal rule to determine whether a substantive due process violation has occurred in an election. To prevail on a claim that a change in election standards violated substantive due process, the contestant must show a change that is patently and fundamentally unfair. In other words, the contestant must show likely reliance by the voters on an existing election procedure and a change in that procedure that results in significant disenfranchisement of the voters. Under this standard, in order to sustain a substantive due process violation, Coleman must prove as a threshold matter that the post-election change about which he complains—the trial court’s adherence to a strict compliance standard—changed the procedures on which the voters relied on election day. Coleman asserts that the trial court’s February 13 order established a new standard of strict compliance with absentee ballot requirements, whereas precedent of this court and the practices of election officials, on election day and during the manual recount, required only substantial compliance.9 If, in fact, strict adherence was not what the law required, so that voters could be said to have relied on something less, Coleman’s argument might warrant further examination. But the law, both as provided by statute and in our precedent, requires strict adherence. The Minnesota Legislature has established the process for voting by absentee ballot. Generally, a prospective voter first submits a written application for an absentee ballot. If the application complies with statutory requirements, the county auditor or municipal clerk sends the voter an absentee ballot, an absentee ballot return envelope, a ballot envelope (sometimes called a secrecy or security envelope), and a copy of the directions for casting an absentee ballot. If the applicant is not registered, the county auditor or municipal clerk includes a voter registration application. The voter marks the ballot before a witness and puts the ballot in the secrecy envelope. The voter then puts the secrecy envelope (and the registration application, if any) in the ballot return envelope. The voter and the witness each sign the ballot return envelope. The completed ballot return envelope is returned to the county auditor or municipal clerk. The next step in the absentee voting process is acceptance or rejection of the ballot return envelope by local election officials. The decision to accept or reject the ballot return envelope is made at the precinct by local election judges on election day, or, if the local jurisdiction has an absentee ballot board, by the board in the 30 days before the election. The ballot return envelope is marked “Accepted” if officials are “satisfied” that:
(1) the voter’s name and address on the return envelope are the same as the information provided on the absentee ballot application; (2) the voter’s signature on the return envelope is the genuine signature of the individual who made the application for ballots and the certificate has been completed as prescribed in the F.2d 1046, 1055 (7th Cir. 1970) (holding that due process was violated when signature requirements were enforced for the first time). 9 The trial court concluded that it must enforce all requirements imposed by law upon voting by absentee ballot because our cases make those requirements mandatory for voters. The court found support for this conclusion in the facts that: (1) “the Minnesota Legislature has made voting in person relatively straightforward by permitting same-day voter registration,” reflecting a policy decision to encourage voting in person on Election Day; and (2) “requiring compliance with the voting laws ultimately minimizes the risks of fraud and illegal voting that act as a detriment to a fair electoral process.”

directions for casting an absentee ballot, except that if a person other than the voter applied for the absentee ballot under applicable Minnesota Rules, the signature is not required to match; (3) the voter is registered and eligible to vote in the precinct or has included a properly completed voter registration application in the return envelope; and (4) the voter has not already voted at that election, either in person or by absentee ballot.

Minn. Stat. § 203B.12, subd. 2. Section 203B.12, subd. 2, makes clear that “[t]here is no other reason for rejecting an absentee ballot.” On election day, the absentee ballot return envelopes are delivered to the absentee voters’ respective polling places. Before opening the accepted ballot return envelopes, election judges check each envelope against the precinct roster to be sure the voter has not voted in person or by another absentee ballot. If not, the election judges record those voters who voted by absentee ballot by marking the precinct roster with the notation “A.B.” for each accepted absentee ballot return envelope. Once the roster has been so marked, the voter cannot vote again in that election. After the last mail delivery on election day, election judges open the accepted ballot return envelopes, remove the enclosed ballots from their secrecy envelopes, and then deposit the ballots in the ballot box. The trial court’s February 13 order closely tracks the requirements of these statutes. But Coleman contends that our precedent allows for something less than strict compliance with the statutory mandates. We disagree. Although we have used a substantial compliance standard to judge errors by election officials, we have held voters strictly to statutory requirements. * * * The distinction between errors by voters and errors by election officials is an important one. We have drawn “a clear distinction between the provisions and prohibitions in the election laws which are personal to the elector and those which apply to election officials over whose conduct he has no control.” Fitzgerald v. Morlock, 120 N.W.2d 339, 345 (1963). We have said that “any reasonable regulations of the statute as to the conduct of the voter himself” are mandatory, and a vote is properly rejected if the voter fails to comply with the law. Id. at 345. But if a voter complies with the law, his vote should not be rejected because of “irregularities, ignorance, inadvertence, or mistake, or even intentional wrong on the part of the election officers.” Id. In Bell v. Gannaway, we again explained that voting by absentee ballot is a privilege, not a right, and affirmed the mandatory nature of absentee voting requirements. 227 N.W.2d 797, 802-03 (1975). We reiterated that because “the privilege of absentee voting is granted by the legislature, the legislature may mandate the conditions and procedures for such voting.” Id. at 802.11 We said there that strict compliance with the requirements for voting by absentee ballot is mandatory: “[V]oters who seek to vote under these provisions must be held to a strict compliance therewith.” Id. at 803. We conclude that our existing case law requires strict compliance by voters with the requirements for absentee voting. Thus, we reject Coleman’s argument that only substantial compliance by voters is required. Having rejected this argument, we also conclude that the trial court’s February 13 order requiring strict compliance with the statutory requirements for absentee voting was not a deviation from our well-established

At oral argument, Coleman posited that because of the increased use of the absentee voting method, it should now be treated as a right, not a privilege. But that is a policy determination for the legislature, not this court, to make.

33 precedent. Because strict compliance with the statutory requirements for absentee voting is, and has always been, required, there is no basis on which voters could have reasonably believed that anything less than strict compliance would suffice. Furthermore, Coleman does not cite, and after review of the record we have not found, any evidence in the record that election officials required only substantial compliance in any past election or any official pronouncements that only substantial compliance would be required in the November 4, 2008 election. Nor does Coleman point us to the testimony of any voter who neglected to comply with the statutory requirements for absentee voting in reliance on either past practice or official assurances that strict compliance was not required. Indeed, Coleman’s counsel acknowledged during oral argument that Coleman cannot claim that any voters changed their behavior based on the alleged substantial compliance standard. For all of these reasons, we hold that Coleman has not proven that the trial court’s February 13 order violated substantive due process. II. We next examine Coleman’s argument that the constitutional guarantee of equal protection was violated in this case. Coleman’s equal protection argument is two-fold. First, he argues that the differing application and implementation by election officials of the statutory requirements for absentee voting violated equal protection. Essentially, Coleman contends that similarly situated absentee ballots were treated differently depending on the jurisdiction in which they were cast and that this disparate treatment violated equal protection. Second, Coleman contends that equal protection was violated when the trial court adhered to the statutory requirements for acceptance of absentee ballots, in contrast to the practices of local jurisdictions during the election. Both parts of Coleman’s equal protection argument depend on his assertion that differential application, either by election officials or by the trial court, of the statutory requirements for absentee voting violates equal protection. But equal protection is not violated every time public officials apply facially neutral state laws differently. The United States Supreme Court has held that “an erroneous or mistaken performance of [a] statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws.” Snowden v. Hughes, 321 U.S. 1, 8 (1944). The Court then explained that the “more” that is required for a violation of equal protection is intentional or purposeful discrimination. Id. The Court said:
The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.

Id.; see also Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (holding that proof of discriminatory intent or purpose is required to show a violation of the Equal Protection Clause); Washington v. Davis, 426 U.S. 229, 240-42 (1976) (same). * * * Accordingly, in order to prevail on his equal protection claim of disparate application of a facially neutral statute, Coleman was required to prove either that local jurisdictions’ differences in application or the trial court’s application of the requirements for absentee

34 voting was the product of intentional discrimination. Coleman neither claims nor produced any evidence that the differing treatment of absentee ballots among jurisdictions during the election was the result of intentional or purposeful discrimination against individuals or classes. Nor does Coleman claim that the trial court’s February 13 order, establishing certain categories of ballots as not legally cast, was the product of an intent to discriminate against any individual or class. On appeal, Coleman contends that he proved an equal protection violation by showing that local election officials made deliberate and intentional decisions to adopt particular interpretations of the statutory requirements for absentee voting. Under Snowden, however, the fact that the official’s decision to act in a particular way was deliberate does not constitute discriminatory intent. See 321 U.S. at 10 (explaining that the requirement of intentional discrimination is not satisfied by allegations of willful, malicious conduct). Instead, Snowden requires a showing that the statutory standards were applied differently with the intent to discriminate in favor of one individual or class over another. Id. at 8.13 The trial court found that election judges applied the election laws in a consistent and uniform manner. The court found that election jurisdictions adopted policies they deemed necessary to ensure that absentee voting procedures would be available to their residents, in accordance with statutory requirements, given the resources available to them. The court also found that differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials reviewing absentee ballots. But the court found that Coleman did not prove that these differences were calculated to discriminate among absentee voters. Our review of the record convinces us that the trial court’s findings are supported by the evidence and are not clearly erroneous. As a result, we conclude that Coleman did not prove his equal protection claim.15 Coleman makes the additional argument that the non-uniform application of the statutory standards for absentee voting nevertheless brings this case within the ambit of the United States Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000) (per curiam) [p. XXX]. In Bush, the Court held that the statewide recount of the 2000 presidential election that had been ordered by the Florida Supreme Court violated equal protection. Id. at 103. Coleman argues that, in Minnesota’s 2008 United States Senate election, different local election jurisdictions treated similarly situated absentee ballots differently and that the trial court imposed a stricter standard for compliance with absentee voting requirements than did election officials, and that those differences violate equal protection under Bush.

The Supreme Court observed in Snowden that intent to discriminate could also be demonstrated by evidence of systematic discrimination “so that the practical effect of the official breach of law is the same as though the discrimination were incorporated in and proclaimed by the statute.” 321 U.S. at 9. Coleman neither claims nor introduced evidence of any systematic discrimination. 15 Although we affirm the trial court’s conclusion that any differences in the application of the statutory standard by the trial court and by election officials on election day and during the manual recount are not of constitutional magnitude, we do not suggest that any such differences are inconsequential and need not be addressed. It is impossible to eliminate all variation in a process administered at thousands of locations around the state by thousands of people, many of them temporary volunteers. To the extent that this case has brought to light inconsistencies in the administration of absentee voting standards, we are confident that the appropriate officials in the other branches of government understand that efforts should be made to reduce those inconsistencies, even though they were not proven to be of constitutional magnitude.

35 The trial court concluded that Bush is distinguishable in several important respects and, as a result, does not support Coleman’s equal protection claim. We agree. In Bush, the Supreme Court specifically noted that it was not addressing the question of “whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” 531 U.S. at 109. Variations in local practices for implementing absentee voting procedures are, at least in part, the question at issue here. As previously noted, the trial court here found that the disparities in application of the statutory standards on which Coleman relies are the product of local jurisdictions’ use of different methods to ensure compliance with the same statutory standards; that jurisdictions adopted policies they deemed necessary to ensure that absentee voting procedures would be available to their residents, in accordance with statutory requirements, given the resources available to them; and that differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials in reviewing absentee ballots. As we noted previously, Coleman has not demonstrated that these findings are clearly erroneous. Additionally, the essence of the equal protection problem addressed in Bush was that there were no established standards under Florida statutes or provided by the state supreme court for determining voter intent; as a result, in the recount process each county (indeed, each recount location within a county) was left to set its own standards for discerning voter intent. See id. at 106. Here, there were clear statutory standards for acceptance or rejection of absentee ballots, about which all election officials received common training. Finally, the decision to be made by Florida election officials with which the Supreme Court was concerned in Bush was voter intent—that is, for whom the ballot was cast—as reflected on ballots already cast in the election. In Bush, officials conducting the recount were reviewing the face of the ballot itself, creating opportunities for manipulation of the decision for political purposes. Here, the decision at issue was whether to accept or reject absentee ballot return envelopes before they were opened, meaning that the actual votes on the ballot contained in the return envelope were not known to the election officials applying the standards. In summary, we conclude that Bush v. Gore is not applicable and does not support Coleman’s equal protection claim. For all of these reasons, we conclude that Coleman has not proven that either election officials or the trial court violated his right to equal protection. III. * * * Coleman argued at trial that as a result of the trial court’s February 13 order finding that certain ballots were not legally cast, there are absentee ballots included in the State Canvassing Board’s certification of election results that would have been rejected if the strict compliance standard of the trial court had been applied to them. Coleman therefore argued that if the court did not adopt the substantial compliance standard that Coleman claims was used on election day, the court was required to apply a strict compliance standard to ballots already accepted and counted on election day and reduce the parties’ vote totals for any ballots that did not meet that standard. The trial court rejected Coleman’s argument and the evidence Coleman offered to support it. Coleman made an offer of proof identifying absentee ballot return envelopes that had been opened and the enclosed ballots removed and counted on election day or

36 during the manual recount. Coleman did not seek to present evidence identifying the ballots removed from those envelopes and could not have done so, because once the ballots were removed from the envelopes and deposited in the ballot box, they were commingled with other counted ballots and could not be identified. We conclude that the court did not abuse its discretion in excluding this evidence because the legislature has foreclosed any challenge to the legality of an absentee ballot based on the return envelope once the ballot has been deposited in the ballot box. * * * Accordingly, we conclude that the court did not abuse its discretion in excluding the evidence. * * * V. Finally, Coleman contends that the trial court erred when it ruled that missing ballots from Minneapolis Ward 3, Precinct 1, were properly included in the State Canvassing Board’s January 5, 2009 certification of legally cast votes. During the manual recount, election officials could locate only four of the five envelopes of ballots from Minneapolis Ward 3, Precinct 1. Voting machine tapes showed a total of 2,028 ballots cast and counted in the precinct on election day, but only 1,896 ballots from the precinct were available for the recount, a difference of 132 ballots. The State Canvassing Board determined that an envelope of ballots had been lost and, rather than certify only 1,896 votes in the recount, accepted the election day returns for that precinct. The trial court found no allegations or evidence of fraud or foul play and no evidence to suggest that the election day totals from the precinct are unreliable. The court therefore found “that 132 ballots from Minneapolis Precinct 3-1 were cast and properly counted on Election Day and were lost at some point after they were counted on Election Day but before the administrative recount.” * * * The ballots are missing, but Coleman introduced no evidence of foul play or misconduct, and the election day precinct returns are available to give effect to those votes. We hold that the trial court did not err in ruling that the election day precinct returns for Minneapolis Ward 3, Precinct 1, were properly included in the tally of legally cast votes. VI. For all of the foregoing reasons, we affirm the decision of the trial court that Al Franken received the highest number of votes legally cast and is entitled * * * to receive the certificate of election as United States Senator from the State of Minnesota. Affirmed. Notes and Questions 1. The McPherson case played a role in the Bush v. Gore litigation, as further described in Chapter 11. In addition to the questions raised there about the effect of Article II, § 1, of the U.S. Constitution, how broadly should McPherson be applied? For example, should it be read as vesting the state legislatures mentioned in Article II (as opposed to other branches of state government) with supreme authority to regulate the choosing of presidential electors? Does this mean that a state legislature could, say, limit or prohibit women or African-Americans from voting for or serving as electors? Most people, we assume, would immediately disagree, pointing to the Fourteenth, Fifteenth

37 and Nineteenth Amendments, not to mention the Voting Rights Act and other laws. Can McPherson be interpreted to permit this conclusion? Note that the case does take into account the Fourteenth and Fifteenth Amendments. Likewise, consider the recent movement that advocates changing the distribution of presidential electors in each state from winner-take-all to a proportional system, tied to the actual vote in each state. Could a state, consistent with Article II, adopt such a system by citizen initiative, rather than by action by the state legislature? See Nicholas P. Stabile, Comment, An End Run Around a Representative Democracy? The Unconstitutionality of a Ballot Initiative to Alter the Method of Distributing Electors, 103 NW. U. L. REV. 1495 (2009). 2. One indication of the importance of state law for regulating federal elections is Roudebush v. Hartke, 405 U.S. 15 (1972). There, incumbent Senator C. Vance Hartke, Democrat from Indiana, defeated Republican challenger Richard Roudebush in an extremely close vote. Roudebush filed a petition in state court to order a recount, and Hartke responded by filing suit in U.S. District Court, requesting that it enjoin the statecourt litigation. The federal court eventually did that, on the basis that the state recount procedures would interfere with the Senate’s power to judge the qualifications of its own members. On appeal the Supreme Court reversed. The 5-2 majority held that the states possessed broad authority to regulate federal elections, and a manual recount is “within the ambit” of those powers. Such a recount would not prevent the Senate from later independently evaluating the election, or from conducting its own recount. There was no evidence to support the District Court’s holding that a recount “would increase the probability of election fraud and accidental destruction of ballots.” The dissent argued that the Senate had a long tradition of independently resolving disputed elections to that body, by convening a special committee. There was a federal interest, the dissent contended, “in preserving the integrity of the evidence” of the disputed ballots, and for that reason it agreed with the District Court. The Roudebush decision gave a good deal of power to states, and state courts in particular, to resolve disputed congressional elections. But it apparently left intact the ability of the houses of Congress to take action concurrently to resolve such disputes. Since Roudebush, some disappointed candidates have simultaneously pursued remedies in state courts and in Congress. See Kristen R. Lisk, Note, The Resolution of Contested Elections in the U.S. House of Representatives: Why State Courts Should Not Help with the House Work, 83 N.Y.U. L. REV. 1213 (2008) (discussing examples). Does this forumshopping make sense in this context? At what point, in the words of Roudebush, do state actions “frustrate” the ability of Congress to judge the elections of its own members, should it care to do that? Conversely, as a general matter, should Congress presumptively defer to state action in this regard, absent specific congressional regulation on point? In the words of then-Circuit Judge Stevens, who sat on the lower court in Roudebush, would the work of the Senate “be facilitated, rather than impaired, by the availability of a fairly conducted recount * * * before undertaking its work”? Hartke v. Roudebush, 321 F. Supp. 1370, 1378-79 (S.D. Ind. 1970) (per curiam) (three-judge court) (Stevens, J., dissenting), rev’d, 405 U.S. 15 (1972). See generally Paul E. Salamanca & James E. Keller, The Legislative Privilege to Judge the Qualifications, Elections, and Returns of Members, 95 KY. L.J. 241 (2006-2007). 3. Some argue that the state political process, including state courts, is not an

38 appropriate venue to settle election disputes for federal offices. The fear would be that state officials, judges included, would act in parochial and partisan ways to resolve the dispute. While it is hard to argue that the members of the houses of Congress would act any less partisan than state officials in resolving election disputes, nonetheless, some might contend that federal judges with lifetime tenure would be less partisan than their state counterparts. How compelling are these arguments? Anecdotal evidence cuts in different ways. Consider, for example, Coleman, where a state supreme court consisting primarily, though not exclusively, of Democrats ruled unanimously in favor of the Democratic candidate. On the federal court side, consider the lower, three-judge district court decision in Roudebush. There, the Republican appointee (Stevens) ruled in favor of the Republican candidate, while the other two judges, both Democratic appointees, ruled in favor of the Democratic candidate. The extant empirical evidence on partisan decision-making by judges in electionrelated cases is mixed. On the state-court side, compare Scott Graves, Competing Interests in State Supreme Courts: Justices’ Votes and Voting Rights, 24 AM. REV. POL. 267 (2003) (finding state supreme courts acted in partisan ways in some circumstances in ballot-access cases), with Kyle C. Kopko, Partisanship Suppressed: Judicial DecisionMaking in Ralph Nader’s 2004 Ballot Access Litigation, 7 ELECTION L.J. 301 (2008) (finding state judges’ partisan affiliations relatively insignificant in cases where Ralph Nader sought placement on the presidential ballot). On the federal-court side, compare Michael E. Solimine, Institutional Process, Agenda Setting, and the Development of Election Law on the Supreme Court, 68 OHIO ST. L.J. 767, 790-92 (2007) (arguing that the evidence does not show that lower-court federal judges systematically vote in a partisan fashion in election law cases), with Adam C. Cox & Thomas J. Miles, Judicial Ideology and the Transformation of Voting Rights Act Jurisprudence, 75 U. CHI. L. REV. 1493 (2008) (federal judges often voted in partisan fashion in Voting Rights Act cases). Most of these studies use the party of the appointing President as a crude proxy for the presumed ideology of a federal judge. For that reason and others, these studies must be used with caution. See Christopher S. Elmendorf, Empirical Legitimacy and the Constitutional Law of Elections, in RACE, REFORM, AND REGULATORY INSTITUTIONS: RECURRING PUZZLES IN AMERICAN DEMOCRACY (Heather Gerken et al., eds., 2010). 4. Coleman found that the Minnesota recount procedures did not violate Bush v. Gore. The court argued that (1) variations in local practice “are the product of local jurisdictions’ use of different methods to ensure compliance with the same statutory standards;” (2) unlike in Florida, the Minnesota statutes did have “clear statutory standards,” and (3) also unlike in Florida, the issue here was not voter intent as such, but rather “whether to accept or reject absentee ballot return envelopes before they were opened.” How persuasive are these arguments, alone or in combination? Does the continuing disagreement on how to interpret the equal-protection principles of Bush v. Gore make a coherent evaluation of Coleman in this regard difficult? See Richard L. Hasen, Bush v.Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 FLA. L. REV. 979, 985 (2009). 5. Coleman holds that the right to cast an absentee ballot is a privilege, not a right, and that voters should be strictly held to compliance with statutory requirements. In contrast, the court would use a “substantial compliance” standard when considering the effect of errors by election officials. Does the court convincingly justify this distinction?

39 Is the court right to suggest that changes in this legal regime should be made by the state legislature, not state courts? It appears that many state courts, in contrast, do not make this distinction, and instead will permit absentee votes to be counted as long as there is substantial compliance with statutory requirements. Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 69, 86-87 (2009). Is one view necessarily preferable? Should it depend, at least in part, on the precise statutory language in a particular state, and the history of absentee voting and related election issues in a particular state?

1. Federal Civil and Criminal Enforcement
Federal statues create a wide range of potential remedies that public entities, or private parties, can use to seek remedies for improper elections. Many of those statutes, and their remedial provisions, have been discussed in prior portions of this casebook. For example, the Voting Rights Act is addressed in Chapters 4 and 5; the Federal Election Campaign Act and its predecessor statutes are addressed in Chapter 9; and the Help America Vote Act (HAVA) and the National Voter Registration Act (NVRA), are discussed in Chapter 11. These statutes can be enforced, in various ways, by the federal government. Thus, the Federal Election Commission (FEC) can undertake to enforce the campaign finance laws. The FEC can seek a variety of penalties against violators of those laws, but must request that courts enforce its orders. 2 U.S.C. §§ 437c-437h. The Civil Rights Division of the U.S. Department of Justice is charged with enforcing provisions of the Voting Rights Act, HAVA, and other laws. Both civil and criminal remedies are available.c Not surprisingly, court decisions have played a major role in shaping the scope of the power of the branches of the federal government in enforcing these laws. For example, various statutes, such as 18 U.S.C. §§ 241-242, make it a crime for persons acting under color of state law to deprive persons of their constitutional right to vote. In the leading case of United States v. Classic, 313 U.S. 299 (1941), the Supreme Court upheld criminal prosecutions under these statutes of state election officials who had committed various frauds in a Democratic primary election for the U.S. House of Representatives. The officials argued that a mere primary election, as opposed to a general election, was an internal matter for the party, and hence they were not acting under color of state law. The Court rejected the argument, holding that primaries (especially in a state politically dominated by one party) were “an integral part of the procedure for the popular choice of Congressman.” Id. at 314. Classic gave greater power to federal authorities to regulate elections for federal offices in the states, and emboldened private parties to challenge under federal law such practices as the white primaries, as discussed in Chapter 6. Thus, the remedial enforcement of federal election law is, as a practical matter, often a mix of administrative and legal actions by public and private entities. As you read the materials below and elsewhere in the casebook, consider the advantages and disadvantages of vesting enforcement authority in federal prosecutors or other federal officials, as opposed to private parties. The U.S. Department of Justice and other federal offices typically have limited resources, and can only pursue a limited number of

For helpful overviews of the scope and enforcement of federal election law by federal authorities, see David C. Rothschild & Benjamin J. Wolinsky, Election Law Violations, 46 AM. CRIM. L. REV. 391 (2009); U.S. DEP’T OF JUSTICE, FEDERAL PROSECUTION OF ELECTION OFFENSES (7th ed., 2007).

40 investigations and court actions. Private enforcement would seem to be a necessary supplement to public prosecutions, but private plaintiffs (often, interest groups) will have their own agendas and may not pursue or serve the public interest. Courts have been faced with these issues when considering whether to infer a private right of action in a federal statute, when textually it only provides for administrative enforcement. See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 556-57 (1969) [p. XXX] (implied private right under § 5 of the Voting Rights Act was a necessary supplement to public enforcement); Morse v. Republican Party of Virginia, 517 U.S. 186, 230-34 (1996) (same with respect to § 10 of the Voting Rights Act);d Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004) [p. XXX] (inferring private right of action under § 302 of HAVA). As a matter of policy, both public and private enforcement would seem to be the answer, and Congress, in election law and other contexts, frequently provides for both types of enforcement. Sean Farhang, Public Regulation and Private Lawsuits in the American Separation of Powers System, 52 AM. J. POL. SCI. 821 (2008). What is the optimal mix of those options? The materials below focus on private enforcement, and describe both the remedial options open to and barriers faced by private parties. Would, or should, the holdings discussed below come out differently if public officials were seeking an analogous remedy?

2. Remedies for the Wrongful Denial of the Right to Vote
Most often, suits to vindicate the rights of would-be voters seek injunctions. And because of “the fundamental nature of the right to vote,” courts have been willing—as we have seen in this Chapter—to grant equitable relief requiring election officials to register voters and permit them to cast ballots. Dillard v. Crenshaw County, 640 F. Supp. 1347, 1363 (M.D. Ala. 1986).e Nevertheless, an award of damages is possible as well, see Murphy v. Ramsey, 114 U.S. 15, 37 (1885), and the propriety of awarding damages for a wrongful denial of the right to vote was recognized as early as Ashby v. White, 92 Eng. Rep. 126, rev’d 1 Eng. Rep. 417—HL (1703).f See generally J.E. Macy, Annotation, Personal Liability of Public Officer for Breach of Duty in Respect of Election or Primary Election Laws, 153 A.L.R. 109 (1944).

Supreme Court of the United States 179 U.S. 58, 21 S. Ct. 17, 45 L. Ed. 84 (1900)

Statement by MR. JUSTICE GRAY: This was an action brought March 11, 1895, in the circuit court of the United States for the district of South Carolina, by a resident of the city of Charleston in that state,

What weight, if any, should a court give in construing statutes in this context to an amicus brief from the Attorney General supporting the implication of a private right of action? See Allen, 393 U.S. at 557 n.23 (giving weight to such a brief); Morse, 517 U.S. at 231-32 (same). e The Supreme Court was not always so willing, though. As discussed earlier [see page XXX, n.XXX], Giles v. Harris, 189 U.S. 475 (1903), refused to order injunctive relief to correct an unconstitutional system of voter registration because the Court lacked the capacity to ensure that its injunction would be followed. f The Queen’s Bench, 3-1, held for the defendant and against the would-be voter, over Chief Justice Holt’s dissent. The judgment was reversed, however, in the House of Lords.

41 against the board of managers of a general election at a ward and precinct in that city, to recover damages in the sum of $2,500 for wrongfully and wilfully rejecting his vote for a member of the House of Representatives of the United States for the state of South Carolina on November 6, 1894. * * * The court * * * sustained the demurrer and dismissed the complaint because it did not state facts sufficient to constitute a cause of action, in that it failed to state that the plaintiff was a duly registered voter of the state of South Carolina. The plaintiff sued out a writ of error from this court. * * * MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court [in which MR. CHIEF JUSTICE FULLER, MR. JUSTICE HARLAN, MR. JUSTICE BREWER, MR. JUSTICE BROWN, MR. JUSTICE SHIRAS, MR. JUSTICE WHITE, MR. JUSTICE PECKHAM, and MR. JUSTICE MCKENNA join]: * * * The Circuit Court of the United States has jurisdiction, concurrent with the courts of the State, of any action under the Constitution, laws, or treaties of the United States, in which the matter in dispute exceeds the sum or value of $2,000. This action is brought against election officers to recover damages for their rejection of the plaintiff’s vote for a member of the House of Representatives of the United States. The complaint, by alleging that the plaintiff was at the time, under the constitution and laws of the State of South Carolina and the Constitution and laws of the United States, a duly qualified elector of the state, shows that the action is brought under the Constitution and laws of the United States. The damages are laid at the sum of $2,500. What amount of damages the plaintiff shall recover in such an action is peculiarly appropriate for the determination of a jury, and no opinion of the court upon that subject can justify it in holding that the amount in controversy was insufficient to support the jurisdiction of the circuit court. The Circuit Court therefore clearly had jurisdiction of this action, and we are brought to the consideration of the other objections presented by the demurrer to the complaint. *** The constitution and the laws of [South Carolina] require that, in order to entitle any one to have his vote received at any election, he must not only have the requisite qualifications of an elector, but he must have been registered. By elementary rules of pleading, both these essential requisites must be distinctly alleged by the plaintiff in any action against the managers of an election for refusing his vote. The complaint in this case alleges that the plaintiff was a duly qualified elector; but it contains no allegation that he was ever registered as such. Because of this omission the complaint does not state facts sufficient to constitute a cause of action. * * * Judgment affirmed. Notes and Questions 1. Though the Court ultimately ruled against the plaintiff voter, to reach the merits the Court first had to conclude both that there was a federal question involved in the case and that the amount-in-controversy requirement was satisfied. Today there is no amountin-controversy requirement in federal-question suits, see 28 U.S.C. § 1331, but from 1875, when Congress first provided for general federal-question jurisdiction, until 1980, federal-question suits not meeting a certain amount-in-controversy had to be brought, if

42 at all, in state courts. See RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 746-47 (6th ed. 2009). The Court held, following Ex Parte Yarbrough, 110 U.S. 651 (1884), that the right to vote for Representatives arose under the Constitution, for the Constitution created the office and provided that anyone entitled to vote for “the most numerous Branch of the State Legislature.” U.S. CONST. art. I, § 2, cl. 1. Thus, the Constitution adopted the voting qualifications used by the states, but did not give the states any power to set the qualifications of voters in congressional races as such. The Court thus found unconvincing the defendant’s argument that the right to vote for Congress depends on whether one has been granted the right, under state law, to vote for the state legislature. See also Swafford v. Templeton, 185 U.S. 487 (1902). 2. As for the amount-in-controversy requirement, the Court held that the appropriate damages for the wrongful denial of the right to vote were “peculiarly appropriate for the determination of a jury,” and therefore the plaintiff’s demand for $2500 satisfied the requirement. See also Wayne v. Venable, 260 F. 64, 66 (8th Cir. 1919) (“In the eyes of the law this right [to vote] is so valuable that damages are presumed from the wrongful deprivation of it without evidence of actual loss of money, property, or any other valuable thing, and the amount of the damages is a question peculiarly appropriate for the determination of the jury, because each member of the jury has personal knowledge of the value of the right.”). Ordinarily the amount claimed by the plaintiff controls, so long as it was made in good faith, unless it “appear[s] to a legal certainty that the claim is really for less than the jurisdictional amount.” St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938). Two thousand five hundred dollars in 1900 would be worth well over $50,000 today. Would such an award be—as a matter of law— excessive? How much is one’s vote worth? Affixing a dollar value to the right to vote is difficult for several reasons. First, there is no market against which to measure a damages award. Every state and the federal government have laws prohibiting the buying or selling of votes, see e.g., 18 U.S.C. §§ 597, 598; Richard L. Hasen, Vote Buying, 88 CAL. L. REV. 1323 (2000), and as a result we cannot be certain how much a vote is “worth” in that sense. Second, if we were to approximate the value of a vote based on the behavior of voters, that value would be very low. Indeed, the behavior of the Americans who decide not to vote might indicate that the right has very little value. Cf. Crawford v. Marion County Election Board, 472 F.3d 949, 951 (7th Cir. 2007)(Posner, J.), aff’d, 553 U.S. 181 (2008). See generally, e.g., ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 260-76 (1957). Third, if we view the right in narrow instrumental terms—what are the chances my vote will make the difference in an election—the value is infinitesimally small. Fourth, taking a broader view, the value of voting—of subjecting government to popular accountability—is infinitely high. Indeed, the behavior of generations of Americans who have fought and died to protect democracy might indicate that the right has a very large value. The Supreme Court has indicated that the narrower vision of the right is appropriate. “The ‘value of the right’ [to vote] is the money value of the particular loss that the plaintiff suffered—a loss of which ‘each member of the jury has personal knowledge.’ It is not the value of the right to vote as a general, abstract matter, based on its role in our history or system of government.” Memphis Community School District v. Stachura, 477 U.S. 299, 312 n.14 (1986). If damages are to be based on “the money value of the

43 particular loss that the plaintiff suffered,” was Wiley correct to sustain jurisdiction?

United States Court of Appeals for the Eighth Circuit 225 F.3d 993 (2000)

RICHARD S. ARNOLD, Circuit Judge [with whom HEANEY, Circuit Judge, and LOKEN, Circuit Judge, join]. This is an action under 42 U.S.C. § 1983g arising out of the election difficulties of black citizens in Crittenden County, Arkansas, who attempted to vote, ran for local office, or served as poll watchers for black candidates. The claims all arise out of the election for municipal offices in the small city of Crawfordsville, Arkansas, on November 5, 1996. Sixteen black citizens filed suit against three poll workers, the Crittenden County Clerk, the three members of the Crittenden County Board of Election Commissioners, and a poll watcher. The plaintiffs’ substantive claims are based on 42 U.S.C. § 1971(a)(1), (a)(2)(A), and (a)(2)(B);h the Fourteenth and Fifteenth Amendments to the United States Constitution, and 42 U.S.C. § 1973(a), (b).i The District Court, following a three-day bench trial, found that the plaintiffs failed to establish any intentional discrimination (the gist of the plaintiffs’ position), ruled in favor of the defendants, and dismissed the complaint with prejudice. * * *

42 U.S.C. § 1983: “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 in an action at law, suit in equity, or other proper proceeding for redress. * * *” –Eds. h 42 U.S.C. § 1971 (a): “(1) All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding. “(2) No person acting under color of law shall— “(A) in determining whether any individual is qualified under State law or laws to vote in any election, apply any standard, practice, or procedure different from the standards, practices, or procedures applied under such law or laws to other individuals within the same county, parish, or similar political subdivision who have been found by State officials to be qualified to vote; “(B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election[.]” -Eds. i 42 U.S.C. § 1973: “(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color [or because he is a member of a language minority group (see 42 U.S.C. § 1973b(f)(2))]. “(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” –Eds.


I. Background Crawfordsville, Arkansas, is a small city in Crittenden County, in the Mississippi River delta region of Eastern Arkansas. Crawfordsville is .41 square miles in size and is bisected by a railroad track that runs east to west through the City, dividing the black and white communities. There are only twelve streets in Crawfordsville. Residents south of the tracks are all black, and residents north of the railroad tracks are primarily white. The City of Crawfordsville and the area of the County surrounding the City make up the Jackson 1 voting precinct. The majority of the City’s population consists of black citizens. The 1990 Census reported that 617 persons lived in Crawfordsville, with 405 being black citizens. However, no black citizen held a Crawfordsville City government position until 1990. * * * [Defendant] Ruth Trent is the County Clerk of Crittenden County. * * * Voterregistration records are maintained in the County Clerk’s Office. During the time prior to the November 5, 1996, election, * * * both county and city residents of the Jackson 1 precinct voted from the same register at the same polling place. At that time, there were two voting machines at the one polling place. One machine was programmed for the county ballot, and one machine was programmed for the city ballot. The city ballot included more races than the county ballot (those for city offices). The determination of which voters voted what ballot was made on election day. * * * In the summer of 1996, the County Clerk’s Office began to separate all of the Crittenden County precinct registers into city boxes or county boxes, pursuant to a new state law requiring such separation. Ms. Trent made extensive efforts to obtain accurate addresses for each registered voter, but the process was difficult. The Clerk’s Office had only four employees. Contacts with post offices in Crittenden County produced no response. Ms. Trent got in touch with both black and white individual citizens. In addition, she got some addresses from the Crawfordsville Water Department, where the defendant Mary Freeman worked. A major problem was that many voters listed their address as a post office box, so it was not possible to determine their street address, the key fact governing whether they were eligible to vote in the City. If accurate information could not be obtained, Ms. Trent would just leave a particular voter in the County. In addition, voter cards were sent out to each individual voter, with an invitation to correct any wrongly recorded addresses. These efforts, though extensive, were not altogether successful. For one thing, a computer operator in the Clerk’s Office failed to put 46 voters who had city addresses into the City register. * * * For the November 5, 1996, election, Ms. Freeman (a white woman) and Carla James (a black woman) were appointed as election clerks, Dixie Carlson (a white woman) and Lisa Washington (a black woman) were appointed as election judges, * * * and William Howe (an Asian man) was designated as an alternate. Ms. Washington, not being a registered voter, failed to qualify, and Mr. Howe served in her place. [Each of these officials was a “poll worker.”] A poll watcher (to be distinguished from poll workers, who are appointed by the Board of Election Commissioners, a public body) was also present at the City polling place on November 5, 1996. Poll watchers are appointed by candidates. Their job is to watch the voting and call the attention of the election officials at the particular box to any irregularities they perceive. Johnny Rogers, a poll watcher named by a candidate for

45 Congress, was present at the Crawfordsville City polling place in 1996, and is a named defendant in this action. The Election Commissioners conducted poll-worker training seminars for prospective poll workers. The Commissioners used a “Poll Worker Training Workbook,” which was distributed by the Secretary of State’s office, to conduct the training. William Howe, Mary Freeman, and Dixie Carlson were trained as poll workers for the November 5, 1996, general election. Carla James, a black woman, could not attend a training session because of an illness in her family. The Secretary of State sent voting procedures to poll worker trainees. The standard procedure was for a voter to enter the poll and identify himself to the election judge by giving his name, address, and date of birth. The election judge then locates the voter’s name on the Precinct Voter Registration List (“register”) to see if the name, address, and date of birth match; the voter signs the Precinct Registration List and List of Voters; the voter is given instructions on how to vote; and then the voter is allowed to vote. The training materials also covered the following: What is “fail-safe” voting? “Fail-safe” voting is the mechanism that allows voters who have not updated their voter registration information to vote at their new precinct without having updated their voter registration records. What if a voter is non-registered or improperly registered? 1. If the date of birth given by the voter is not the same as that on the “Precinct Voter Registration List”, then the judge may request the voter to provide additional identification as the judge deems appropriate. 2. If the address given by the voter is not the same as that on the “Precinct Voter Registration List”, then the judge should verify with the county clerk that the address given by the voter is within the voting precinct. If the address is within the precinct, then the voter must complete a “Voter Registration Application” to change addresses for county records. Then, the voter is allowed to vote. If the address is not within the precinct, then the judge should instruct the voter to contact the county clerk to determine the proper voting precinct. Then, the voter should be instructed to go to the proper polling place to vote. 3. If the voter’s name is not on the “Precinct Voter Registration List”, the judge shall permit the voter to vote under the following conditions: Voter identifies himself by name and date of birth and is verified by the county clerk as a registered voter within the county Voter gives and affirms his current residence and the election judge verifies with the county clerk that the residence is within the voting precinct Voter completes an updated voter registration application form Voter signs “Precinct Voter Registration List” and “List of Voters” form 4. If the voter’s name is not on the list and the county clerk is unable to verify the voter’s registration and the voter contends that he/she is eligible to vote, then the voter may vote a challenged ballot. In this instance, the poll worker is responsible for challenging the ballot.

46 The training materials also provided emergency phone numbers for poll workers to call if a problem arose during the election, such as the County Clerk’s Office number, “if you need information concerning a voter’s registration or place of residence, if you need more ballot or stub boxes, or if you need more voter application or change of address forms.” Moreover, the training materials asked participants, “Who can assist a person with a disability casting a ballot?” The correct answer is, “Anyone the person wants.” And the materials asked participants, “If a person with disabilities asks a poll worker for assistance, who can help?” The correct answer is, “Two judges.” * * * There was a procedure whereby voters could vote by absentee ballot. When an absentee ballot was requested from the Clerk’s Office, the Clerk’s Office stamped the precinct binder with the word “absentee” next to the person’s name at the time the absentee ballot was mailed to the voter. If a voter did not return a completed ballot, the words “absentee” remained stamped by his name. * * * For the November 5, 1996, general election, Crawfordsville city residents were to vote at the City Water Department office (“City polling place”), and residents living outside the City were to vote at the City library (“County polling place”). The library is across Main Street from the Water Department office. The city ballot at the City polling place included the Crawfordsville City government positions, whereas the county ballot at the County polling place did not. A list of county voters was sent to the County polling place, and a list of city voters was sent to the City polling place. One black candidate and one white candidate ran for City office. On November 5, 1996, when a voter approached the Clerks’ table on election day, a determination would be made whether the voter was at the correct voting precinct, the voter would sign in, each clerk would sign a list, and then the voter would go into the voting booth and vote on the machine. Ms. James testified that the County Clerk’s Office informed the poll workers on the morning of November 5, 1996, that the Clerk’s Office “had made a lot of omissions from the book. A lot of names had been omitted.” * * * Commissioner Fairley informed those people present in the City polling place that “handicapped voters were entitled to be assisted by a person of their choice, and candidates were allowed to be present within the polling place by a poll watcher or personally, as long as they did not interfere with the election process. . . .” Commissioner Fairley testified, “It is hard to get judges and clerks to understand that voters can be assisted by anyone they want to assist them. . . . It had been part of the training. But sometimes training doesn’t take.” Fairley added, “We have that issue come up in every election. Some judge or clerk thinks that they ought to be able to determine who is the assister for some voter or group of voters.” Two hundred and fifty-one people voted on the voting machine at the City polling place. The number of black voters was between 67 and 85. Twelve voters were issued paper ballots, and Ms. Carlson wrote the names of 11 of these 12 voters on a list of challenged voters. All 11 people listed on the list of challenged voters are black citizens. The race of the person casting the twelfth paper ballot is unknown. Ms. James knew all 11 of the challenged voters by name. Ms. James testified that Ms. Freeman, mainly, or Ms. Carlson would state the reason why a person could not vote, Ms. Carlson would write the voter’s name on the challenged voter list, and the challenged voter was then required to vote on a paper ballot instead of the voting machine. Although Ms. James affirmed that

47 some challenged voters lived in the City, her affirmation was largely disregarded by other poll workers. After a heated discussion regarding Stanley Calloway’s inability to vote, which included Commissioner Dawson, the election officials decided to turn on the Water Department video camera and tape events of the election. The tape is in the record before us, and portions of it were played at trial. * * * Ms. Freeman testified by deposition that she could not recall any white persons who had difficulty voting on November 5, 1996. Election officials did not allow any black person whose name was on the county list and not on the city list to vote by voting machine, even if the voter stated that he lived in the City. After the polls closed, the votes were counted, and, in each of the City races, the white candidate defeated the black candidate. The margin of victory was sufficiently large to make the 11 challenged votes irrelevant, so far as the result of any election was concerned. The Board of Election Commissioners certified the results as reported. The vote was two to one. Commissioner Dawson voted not to certify the results, stating that irregularities had occurred. The other two Commissioners, however, determined that, because the number of challenged ballots did not affect the outcome of the election, they would certify the results with a notation that challenged ballots existed. Commissioners Fairley and Graham decided not to count the challenged ballots. In Commissioner Fairley’s opinion, state law required that they not be counted, because they could not change the result of any race. The results as certified by the County Board of Election Commissioners were then transmitted to the Secretary of State’s office, or to the County Clerk, as appropriate. The black candidates presented the Election Commission with a two-page list of grievances, but the Commission determined that it had no authority to decide whether these grievances were well taken. The Commission took the position that its only job was to count votes. If votes were cast improperly, or citizens were improperly prevented from voting, the remedy would be an election contest filed in court. *** II. Individual Voters’ Claims for Damages As we have noted, the plaintiffs in this case are 16 black citizens of Crittenden County, all registered voters. The principal defendants are three poll workers, Dixie Carlson, Mary Freeman, and William Howe. These defendants were sued individually and in their official capacities for allegedly discriminating against black citizens on the basis of their race, and intimidating them during the election. The defendant Johnny Rogers, a poll watcher, was sued in his individual capacity, and was charged with discriminating against black voters. The defendant Ruth Trent, the County Clerk, was sued in her official capacity. The complaint alleged that her preparation of the precinct register discriminated against black voters and amounted to a policy of Crittenden County. The three Election Commissioners, Messrs. Fairley, Graham, and Dawson, were sued individually and in their official capacities. The complaint alleged that they discriminated in their decisions regarding the challenged ballots, and their actions regarding the complaints made by black candidates. In their prayer for relief, the plaintiffs sought damages for each individual voter who had been allegedly harassed or hindered at the polling place, and also injunctive relief, including a request that the same election officials not be used in future elections, that the Attorney General of the United States make federal observers available for future elections, and that a plan be implemented to ensure that City voter rolls would be limited

48 in the future to persons who lived within the City of Crawfordsville. Costs and reasonable attorneys’ fees were also requested. * * * The core issue in this case is whether any defendant intentionally discriminated on the basis of race against any plaintiff. This is a quintessential question of fact. In each instance, the question turns mainly on conflicting oral testimony and an assessment of its credibility. In these circumstances, our power of review is particularly narrow. Rule 52(a) admonishes us to give “due regard” to the opportunity of the trial court to observe the witnesses and their demeanor. In addition, the Supreme Court has stressed that findings based on credibility, where testimony is internally consistent and not contradicted by physical facts or documentary evidence, and where the witnesses believed by the trier of fact were “plausible,” must almost always be affirmed. Still, even in such a case, findings are not immune from review. It is our duty to inspect the record searchingly, and, in the end, to reverse if we have “a definite and firm conviction” that any finding of fact was mistaken. A. Plaintiffs Who Did Not Vote 1. William Gollin William Gollin has lived in Crawfordsville since 1965, and he became a registered voter that same year. He completed school up to the third grade. Mr. Gollin asked Loretta Page to assist him in voting because he could not read; however, Mr. Gollin was not permitted to vote because it was alleged that his name was not listed on the precinct register of voters. In fact, Mr. Gollin’s name was on the register; however, it was incorrectly spelled—“Gallin” instead of “Gollin.” The register correctly provided Mr. Gollin’s age, but the address listed was slightly incorrect—412 South Main instead of 415 South Main. The name “Gallin, William Tell” was listed in the city precinct register only four entries above the entry where his name should have been located (where there was an entry for someone named “Gollins”) and on the same page in the register. Mr. Gollin testified that he was in the city polling place for fifteen or twenty minutes, the time he testified that it took for the poll workers to determine that he could not vote. Mr. Gollin testified that Carla James and Loretta Page informed the other poll workers that the listing under “Gallin” was really Mr. Gollin’s name. Mr. Gollin also testified that Mr. Howe informed the other election workers that Mr. Gollin did not have running water and that the name “Gallin” was not Mr. Gollin’s name. Ms. Freeman informed Mr. Gollin that he could not vote because he “didn’t have water.” Mr. Gollin was a weekly shopper in Mr. Howe’s store, when Mr. Howe owned one, and Mr. Howe had been to Mr. Gollin’s home. However, Mr. Howe testified that he was not asked about whether to challenge Mr. Gollin or not, and testified that throughout the day he never volunteered anything, but only observed the clerks’ handling of voter sign-ins. Mr. Gollin did not see anyone make a phone call, and he was not handed a paper ballot so he could cast a vote. Ms. Carlson testified that she could not recall why Mr. Gollin did not vote a challenged ballot. Ms. Freeman testified that she seemed to remember Mr. Gollin’s coming into the polling place, and to the best of her knowledge she believed that he had already left the polling place when the spelling error was discovered. Before assessing the particulars of Mr. Gollin’s situation, we make a few general observations about the context in which the voting difficulties shown in this record occurred. The political history of Crittenden County, to which the District Court gave little

49 or no weight, is important. There has been a “long history of racial discrimination in the electoral process in Arkansas.” The history of polarized voting and racial discrimination in Crittenden County has been particularly noted. * * * The race for City offices on November 5, 1996, is a good example. There was one white candidate and one black candidate for almost every contested position. We think it fair to infer that most (though not all) black voters favored black candidates, and that most (but not all) white voters favored white candidates. All but one of the election officials at the City polling place were white. The voters who experienced problems that day were overwhelmingly black. Between 67 and 81 black voters cast ballots, and between 27 and 33 per cent. of them experienced some form of a problem. All 11 of the voters who were required to vote a challenged paper ballot were black. Between 170 and 184 white voters cast ballots, but very few of them experienced voting problems. Most of the problems experienced by black voters could have been handled if the poll workers had scrupulously adhered to the procedures laid out during their training. It is true that the challenged votes would have made no difference in the outcome of any election, but this is beside the point. Each individual voter has a right to cast his ballot in accordance with State law, and this right is not to be denied, abridged, or encroached upon for reasons of race. * * * Instances in which favorable treatment was given to white voters are significant. We note in particular the fact that William and Deborah Sue Dixon, who lived a half mile outside the City, were permitted to vote a City ballot on the voting machine at the City polling place, without challenge. Their names were listed in the City register, but the address given was 528 Joyner Road. The tape that was made of occurrences at the polling place on election day reveals that Mr. Dixon told Ms. Freeman that he lived on Joyner Road “over by the high school.” * * * On the tape, a male voice, which the District Court did not doubt was that of Mr. Howe, responded “across the railroad tracks” during this conversation. Ms. Freeman admitted that on election day she knew there was no street within the town of Crawfordsville named Joyner Road, and also knew that the high school was a half mile outside the City limits. Mr. Howe, who had been Mayor of the City for 16 years and had lived there for 60, testified that he did not know at the time whether a street in Crawfordsville was named Joyner Road. We are driven to the conclusion that Mr. Howe’s testimony about the Dixons is simply incredible, and that they were given favorable treatment because they were white, and, probably, because Mr. Howe and Ms. Freeman believed that they would vote for white candidates. No similar indulgence was granted to any black person. We return to the specifics of Mr. Gollin’s case. He testified that he had known Mr. Howe for 31 years at the time of the election. Mr. Howe had cashed checks for him at his store. Mr. Howe has been to his house. This testimony is clear and consistent. The contrary evidence, such as it is, of the defendants Howe and Freeman is unworthy of belief. Whether someone has “water” is not relevant to his eligibility to vote, which turns solely on whether he was registered and where he lived. The argument that Mr. Gollin’s name was misspelled in the voter register, with a single incorrect letter, is, in our view, a flimsy pretext. We hold that the finding that Mr. Howe and Ms. Freeman did not racially discriminate in denying the vote to Mr. Gollin is clearly erroneous. There is not sufficient evidence in this record to make a similar conclusion with respect to the defendants Carlson and Rogers.

50 2. Derrick Marshall Derrick Marshall was unquestionably a registered voter and a resident of Crawfordsville. His name was listed in the city precinct register. However, the word “absentee” had been stamped by his name. Both Ms. Freeman and Ms. James informed Mr. Marshall that he had already voted by absentee ballot, and would not be allowed to vote again. Mr. Marshall denied that he had voted. No phone call was made by poll workers to the County Clerk’s Office to determine if a mistake had been made when the register was stamped. Ms. Carlson testified: “He really insisted that he had not voted. But we couldn’t—with an absentee marked we couldn’t—he had already voted as far as we were concerned. It was on the book.” The fact that the word “absentee” was stamped beside Mr. Marshall’s name was certainly sufficient to raise a question in the minds of the poll workers. It was not, however, conclusive as to whether or not he had already voted. According to the County Clerk, when someone writes in and requests an absentee ballot, the ballot is mailed to the voter, and the word “absentee” is then stamped next to the voter’s name in the precinct binder. The stamping occurs at the time of mailing, not when the ballot is returned to the Clerk’s Office. Some ballots that are mailed out to people requesting them are not returned. A voter who requests an absentee ballot, but does not use it, is presumably entitled to vote in person on election day. This could have been the case with Mr. Marshall. Moreover, there are things that the poll workers could have done to investigate further. They could have telephoned the County Clerk’s Office to try to determine whether an absentee ballot had been returned by the person in question, and apparently no such call was made. In addition, Mr. Marshall himself could have taken the initiative to go to the County Clerk’s Office and request an investigation. When this happens, the County Clerk will do research, and, if it’s justified, send the voter back to the polling place with a slip instructing the poll workers to allow him to vote. This also was not done in the instant case. The District Court found that the defendants’ actions towards Mr. Marshall were not motivated by race. The evidence is fairly even. On the whole, we are not persuaded that this finding was clearly erroneous. The stamping of the word “absentee” on the voting register raised a concrete and serious problem. Decisions in polling places on election day are made rather quickly. There is often not enough time to investigate thoroughly each individual case. Our judgment is further influenced by the fact that Carla James, the black poll worker, took the same position with respect to Mr. Marshall that the defendants Howe and Freeman took. We will affirm the District Court’s decision with respect to the plaintiff Derrick Marshall. 3. Kimberly Nathan Warren Kimberly Nathan Warren is a registered voter, and she lived in Crawfordsville, Arkansas, at the time of the election. She had lived at her family home in Crawfordsville since 1988, with the exception of three months in 1996 (ending in September) when she lived outside the City limits in the McNeil Apartments. Ms. Freeman and Ms. Warren had known each other for years. Ms. Warren’s father had worked for the City, and Ms. Warren paid the water bill in her father’s name at the Water Department where Ms. Freeman works.

51 When Ms. Warren went to the City polling place to vote on election day, Ms. Freeman told Ms. Warren that she did not live in Crawfordsville. Ms. Warren insisted that she did. Her name had been listed in the County register under her maiden name, “Nathan,” apparently reflecting the short time when she lived outside the City. We are firmly convinced that the defense position with respect to this plaintiff is not plausible. Ms. Freeman had known Ms. Warren for years. It is true that her name was not in the City register, but that was not a sufficient reason for the treatment that Ms. Warren received. Under the instructions that had been given to the poll workers, Ms. Warren should not have been turned away. No election worker called the Clerk’s Office, and no one told Ms. Warren that she could fill out an address-change form and vote. No one offered to allow her to vote a challenged ballot on paper. No one even informed her that she ought to go across the street and cast her vote in the County polling place. As a consequence, she was altogether denied the right to vote. We believe that the finding in favor of Ms. Freeman with respect to Ms. Warren’s claim is clearly erroneous. There is no substantial evidence that any of the other defendants played a part in Ms. Warren’s difficulties. B. Plaintiffs Whose Votes Were Challenged In general, the following procedure was followed with respect to persons whose votes were challenged, but were still allowed to vote. If someone came into the polling place and was challenged, either by a poll watcher (Mr. Rogers) or a poll worker, that person would not be allowed to vote on the machine. Instead, he or she would be given a paper ballot. In this way, the challenged ballots (and, as we have noted, there were 11 of them in all) could be separated, and each ballot could be identified, if necessary, in the event of an election contest. 1. Sharon White Sharon White lived with her grandmother, Rae Miller White, on Main Street in Crawfordsville. She has a “general delivery” post office address, and was listed on the County register. On November 5, 1996, Ms. White went to the County polling place, but an election worker there, who knew that Ms. White lived in the City, told her to go across the street and vote at the City polling place, in the Water Department office. When Ms. White got to the City polling place, her name could not be found on the City register. However, Ms. James, the black poll worker, told Ms. Freeman that Ms. White was indeed a City resident. Ms. White was well known to Ms. Freeman, having paid her grandmother’s water bill every month at the Water Department office for at least seven years. In addition, she had known Mr. Howe since she was six years old, having shopped in his store, sometimes every day. When Ms. White approached the voting table, Ms. Freeman informed her that her name was not on the City voting register, and that she could not vote, because she did not pay a water bill in her own name. No one called the Clerk’s Office. Johnny Rogers, the poll watcher, challenged Ms. White’s vote, because her name did not appear on the City register, but most of the challenge form was filled out by someone else. The challenge form stated: “Does not appear in the City box, but all say she does.” According to Ms. Carlson, “everyone in the polling place, all the officials said that she did live in the City.” Ms. White was given a paper ballot in order to vote in accordance with the procedure described above. When Ms. White voted, two unnamed

52 white men stood over her and watched her, with Mr. Howe standing “about two or three feet behind them.” The defendants introduced very little specific evidence about this incident. Ms. Freeman testified that she did not remember Ms. White’s coming into the polling place. The District Court found that Ms. White was “not denied her franchise.” In a way, this is true, because Ms. White was allowed to cast a challenged paper ballot. On the other hand, her vote was never counted (more about this later), and she was subjected to harassment, with the apparent cooperation of Mr. Howe. We believe that the evidence is overwhelming that both Ms. Freeman and Mr. Howe knew Ms. White, and the fact that Ms. White had been paying her grandmother’s water bill, instead of a bill in her own name, had nothing to do with her right to vote. The regular procedure which had been given to the poll workers at training was not followed in this case. The County Clerk’s Office was not called, nor was Ms. White given a chance to use a change-of-address form. We hold that the District Court’s finding in favor of Ms. Freeman and Mr. Howe is clearly erroneous. With respect to the defendants Carlson and Rogers, however, we affirm. Neither of them lived in the City. In fact, Mr. Rogers did not even live in Crittenden County. He was representing the best interests of his congressional candidate, and his challenge of a ballot being cast by a person whose name was not on the City register is understandable. He could not be expected to be familiar with individual citizens and where they lived. 2. Arnissa Edwards Arnissa Edwards is a resident of Crawfordsville. She lived in the “white section.” Her name was listed in the City register. When she came into the polling place, Ms. Edwards signed the register and said she had brought Latesa Calloway to assist her in voting. Ms. Edwards said she needed help because she did not know how to use the voting machine, and that she had been allowed assistance with the machine in previous elections. Mr. Rogers, the poll watcher, challenged Ms. Edwards’s vote because of “improper voting procedures. She did not state reason for help with her vote.” Ms. Calloway then asked whether Ms. Edwards could vote by paper ballot, and this is what occurred. We find this plaintiff’s situation somewhat difficult. On the one hand, it seems clear that she was not in fact entitled to assistance in voting. She conceded at trial that she had no disability. Mr. Rogers’s statement that “[s]he did not state reason for help with her vote” is correct, if “reason” is understood as “good reason.” On the other hand, the fact that Ms. Edwards was not entitled to have someone help her vote did not require that the vote itself be challenged. The logical outcome would have been to allow her to vote on the machine, but without assistance. Instead, she was required to vote by paper ballot. This procedure seems to have been suggested by Ms. Calloway herself, however. There is no substantial evidence about the conduct of the defendants Freeman, Howe, and Carlson during this incident. Ms. Edwards testified that on several occasions Ms. Freeman had asked her whether she was planning to sell her house, and this is evidence of racial animus if believed. Although what happened to Ms. Edwards makes us somewhat uneasy, we have no definite and firm conviction that the District Court’s finding adverse to her claim was clearly erroneous. According, the finding will be affirmed.

53 3. Stanley Calloway Stanley Calloway was a convicted felon. His name was on the City register, and he signed in, but Ms. Carlson then challenged him on the basis of his conviction. Under Arkansas law, convicted felons cannot vote. If there was any racial prejudice operating with respect to Mr. Calloway, it could not have been the cause of his vote’s being disallowed. He was not entitled to vote in any event. The finding of the District Court adverse to Mr. Calloway’s claim will be affirmed. C. Plaintiffs Allegedly Denied Assistance of Their Choice It is important to remember, in evaluating these claims, what the law and accepted practice were with respect to voters who asked for help. Any voter with a disability was entitled to assistance from any person of his or her choice. It did not matter who the person was. A relative, a friend, even a candidate, was eligible to give assistance. If a voter asked a poll worker to help, two election judges (not just one poll worker) would give assistance. 1. Ruby Coburn Ruby Coburn was a qualified voter in the City. She requested help in voting on the ground of inability to read well and “nerves.” Ms. Coburn asked LaSaundra Johnson for help. Both Ms. Coburn and Ms. Johnson testified that Mr. Howe gave Ms. Johnson a sheet of paper with an “amendment” on it, and told her that she had to read that paper before she could help Ms. Coburn in voting. Ms. Johnson refused to read the paper, became upset, and left. Ms. Coburn was then offered assistance from one (apparently not two) poll workers, but she declined. She voted on the machine without assistance. However, because she could not read well, she voted only for about two candidates. Mr. Howe testified that he never stopped Ms. Johnson from helping anyone, nor did he make anyone read an amendment as a condition to assisting another person to vote. We are firmly convinced that Mr. Howe’s testimony was unreliable. He himself conceded that his memory was fading, and his testimony with respect to the Dixon incident, recounted above, was clearly incorrect, as the videotape showed. Requiring Ms. Johnson to read an “amendment” (the reference may be to the title of one of the constitutional amendments on the ballot at the time) was improper. It is of course true that Ms. Johnson would need to read in order to assist Ms. Coburn with a reading disability, but that was not the concern of the poll workers. Ms. Coburn had a right to ask anyone to help her, and how well that person could read was no one else’s business. We hold that the finding against Ruby Coburn’s claim is clearly erroneous, so far as the defendant Howe is concerned. The evidence with respect to the other defendants is either slight or nonexistent, and the judgment in their favor on Ms. Coburn’s claim will be affirmed. 2. Willie Taylor Willie Taylor is a registered voter and a resident of the City. He asked for help from LaSaundra Johnson (the same person involved in the Coburn incident, just recounted). Mr. Taylor had poor eyesight because of glaucoma. Ms. Freeman and Mr. Howe informed Mr. Taylor that Ms. Johnson could not help him, because she was not kin to him. Mr. Howe testified that he understood that a person needing assistance had to choose a relative or a good friend. (There is no evidence as to why Mr. Howe would not believe that Ms.

54 Johnson was a good friend of Mr. Taylor’s.) Ms. Johnson was not allowed to help Mr. Taylor, and then, at Mr. Taylor’s request, Mr. Howe helped him. Mr. Taylor could not see the buttons in the voting machine to punch. He had to tell Mr. Howe how he wanted to vote, and Mr. Howe then punched the buttons. What happened to Mr. Taylor was improper and contrary to law. He had a right to LaSaundra Johnson’s help. There is no requirement that she be a relative or a good friend. Violations of state law and election practice, of course, are not, in and of themselves, the same thing as racial discrimination. However, when the alleged violators’ conduct is otherwise questionable, and when no plausible justification is asserted, the inference of discriminatory intent is strong in the circumstances of this particular election. We hold that the District Court’s finding on Mr. Taylor’s claim, so far as the defendants Freeman and Howe are concerned, was clearly erroneous. There is no evidence that the defendants Carlson and Rogers were involved in this incident, and the finding in their favor will therefore be affirmed. D. Voters Who Were Allegedly Harassed 1. Nikita Calloway Nikita Ladell Calloway, who was 20 years old at the time of the election, had lived in Crawfordsville all his life. He was frequently in the Water Department to pay bills, and Ms. Freeman had seen him there from the time he was a child until three months before the election. He saw Ms. Freeman at the Water Department about eight times in the year before the election. He would stop and talk with her, and she would call him by name, either “Nikita,” or his nickname, “Bird.” Mr. Calloway had also done yard work for Ms. Freeman when he was about 15 years old. On November 5, 1996, when Ms. Freeman asked Mr. Calloway his name, he replied “Nikita Calloway.” Ms. Freeman then said, according to Mr. Calloway’s testimony, “You can’t vote, because you are trying to vote in place of a girl.” Ms. Freeman said, “That can’t be your name. That’s a girl’s name.” Finally, Mr. Calloway pulled out an identification card and showed it to Ms. Freeman. At that point, someone whose voice he didn’t recognize stated that such a form of identification could be made up on computers. Then, “after a little conflict,” he was allowed to vote on the voting machine. Mr. Calloway testified that while he was voting, Mr. Howe “stuck his head in” the voting booth for about 15 seconds. Mr. Howe denied the incident. About 30 people were in the polling place when these events occurred, and Mr. Calloway felt “ashamed” and “embarrassed.” Mr. Calloway was allowed to vote. What happened to him was not so serious as denying a person the right to vote, but being harassed during the exercise of one’s franchise is still unlawful if the harassers are acting under color of state law and are motivated by racial prejudice. The District Court rejected this claim, finding Ms. Freeman’s testimony more credible. * * * In our view, the finding of the District Court on this point is clearly erroneous. No one denied the length of Mr. Calloway’s residence in Crawfordsville, the fact of his having frequented the water office, or his having done yard work for Ms. Freeman. Nikita is not a “girl’s name,” not exclusively, anyway, and it wouldn’t matter for present purposes if it were. There is no evidence that any white voter was similarly impeded. We hold that Ms. Freeman and Mr. Howe are liable in this incident. There is no evidence connecting Ms. Carlson with these events. * * *

55 E. Black Candidates * * * 2. Loretta Page Loretta Page was a candidate for Alderman in the 1996 election. She came into the polling place several times, to assist two voters who had asked her help, and to check on the number of votes. Late in the afternoon, Dixie Carlson told her that she could not come into the polling place again. There was evidence that a white candidate, J.B. Cole, had been in the polling place continuously on one occasion for 20 or 25 minutes without hindrance. Ms. Freeman and Ms. Carlson told Ms. Page that she could stick her head in to check the vote, but then had to leave, and had to remain more than 100 feet from the polling place. There was evidence that Mr. Cole was passing out leaflets at the front door of the polling place, within the 100-foot zone, on at least one occasion. Arkansas law prohibits “electioneering” within 100 feet of a polling place. Ms. Page was allowed to enter the polling place to help other voters who specifically requested her assistance, and also, from time to time, to check on the number of votes. Apparently Ms. Freeman and Ms. Carlson considered the mere presence of a candidate within the polling place, for no particular purpose, to be “electioneering.” We think this understanding, though arguably erroneous, was reasonable. Crawfordsville is a small town. Many voters would know Ms. Page, and might be intimidated or made to feel awkward by her presence in the polling place. The District Court’s finding that no racial discrimination occurred with respect to Ms. Page is not clearly erroneous. 3. Bernice Bates Bernice Bates was a candidate. She had served as an Alderman from 1991 to 1995. She helped five or ten people to vote, at their request. According to Ms. Bates’s testimony, she came in to help a voter and was asked to leave by Ms. Carlson, who took the position that Ms. Bates’s mere presence in the polling place was “electioneering.” There is a conflict in the evidence about whether Ms. Carlson “grabbed” Ms. Bates’s arm, or merely touched her. This claim seems somewhat stronger to us than that of Loretta Page, which we have just discussed. Ms. Bates had a specific right to be in the polling place for the purpose of helping any voter who had requested her assistance by name. Ms. Carlson’s understanding that Ms. Bates was “electioneering” was incorrect. On the other hand, Ms. Bates was allowed to assist five or ten other voters, and Ms. Carlson testified that she did not intend to intimidate or harass Ms. Bates. According to Ms. James, Ms. Bates created a disturbance after this incident occurred, and the police were called. Although we have some doubts about the matter, we are not firmly convinced that the finding of the District Court was erroneous, and its finding with respect to this claim will therefore be affirmed. 4. Alice Calloway Alice Faye Calloway was a candidate for City Recorder. Ms. Calloway’s case is somewhat similar to that of Bernice Bates. She periodically entered the polling place, asked for a count, and then left. She entered the polling place at least four times during the day. On one of these occasions, she was attempting to help her mother, Annie Mae Nathan, to vote. Ms. Carlson approached her and told her that she could not be in the polling place. Ms. Calloway informed Ms. Carlson that she was helping her mother to vote at her mother’s specific request. According to Ms. Calloway, Ms. Carlson put out

56 both of her hands to prevent Ms. Calloway from walking past her and stated, “I told you not to come in here.” Ms. Calloway then left, and Ms. Nathan voted without her assistance. Ms. Carlson denied pushing Ms. Calloway. Again, we consider this claim somewhat stronger than that of Loretta Page, and perhaps than that of Bernice Bates, since it was Ms. Calloway’s own mother whom she was attempting to assist. There is no question that Ms. Nathan had the right to request assistance from her daughter. The fact that her daughter was a candidate, and had already been in the polling place several times, complicates the situation. On the whole, we do not have a definite and firm conviction that the District Court’s finding was mistaken. Although this is a close case, we affirm with respect to Ms. Calloway’s claim. * * * III. Other Claims for Relief In addition to the individual plaintiffs’ claims for damages against pollworkers and Mr. Rogers, the poll watcher, in their individual capacities, plaintiffs also request an award of damages against the three poll workers in their official capacities. We have held that the District Court’s findings in favor of the defendant Dixie Carlson are not clearly erroneous, so there is no need to discuss an official-capacity claim with respect to her. Mr. Rogers, the poll watcher, has no official capacity. * * * The actions of Mr. Howe and Ms. Freeman which we have held to be discriminatory were purely individual actions. There is no evidence that they reflected or were influenced by any policy of Crittenden County. The County cannot be liable in the absence of some custom or prevailing practice that violates the law.j Accordingly, the District Court’s decision to reject any official-capacity liability on the part of the poll workers will be affirmed. A claim for damages is made against Ruth Trent, the County Clerk, in her official capacity only. She is clearly a county employee. The District Court found that Ms. Trent was not guilty of any intentional discrimination, and this finding is not clearly erroneous. Ms. Trent made diligent efforts, both before and after the election, to ensure that the voter lists were accurate. In doing so, she consulted both white and black voters. There is no substantial evidence of discrimination on her part. Damages are sought against the three members of the County Board of Election Commissioners, Messrs. Dawson, Fairley, and Graham, in their individual and official capacities. We believe the District Court correctly rejected these claims. The Election Commissioners carried out their duties in good faith. Mr. Fairley testified that state law prohibited the Election Commission from counting the challenged votes, given that they would not affect the outcome. This was a mistake of law. In fact, state law gave the Election Commission discretion whether to count these votes or not. This error, though, was simply that. It does not show racial discrimination on Mr. Fairley’s part. We do not believe that there is any substantial evidence of any racial discrimination by any of the three members of the County Board of Election Commissioners. Accordingly, the District Court’s finding in their favor will be affirmed. Plaintiffs also request certain sorts of equitable relief, mainly having to do with the future conduct of elections in Crittenden County. We do not believe that any such relief is necessary. The County has made, and, we believe, will continue to make, diligent efforts to maintain accurate voter lists and to comply with the law. Individual discriminatory acts

See City of St. Louis v. Praprotnik, 485 U.S. 112 (1988); Pembaur v. City of Cincinnati, 475 U.S. 469 (1986); Monell v. Department of Social Services, 436 U.S. 658 (1978). –Eds.

57 on the part of two poll workers at a single election do not, in our view, justify equitable relief. Plaintiffs ask that we disqualify Mr. Howe and Ms. Freeman from acting as poll workers in the future. We decline to do so. We believe an award of damages against them is sufficient relief, and they should not be required to forfeit future eligibility for pollworker positions. IV. Conclusion * * * It will be for the District Court, in the first instance, to fix the appropriate amount of damages. At least nominal damages must be awarded. In addition, persons whose right to vote was denied altogether should be entitled to more than nominal damages. Moreover, humiliation, embarrassment, and mental anguish are compensable. Punitive damages may also be considered. The violations of law were intentional. Qualified immunity will not be a defense. The right to be free from racial discrimination in matters of voting has long been clearly established. * * * The judgment is affirmed in part and reversed in part, and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes and Questions 1. On remand in Taylor v. Howe, the District Court awarded seven plaintiffs between $500 and $2000 each in compensatory damages, and did not award any punitive damages. Six of those seven plaintiffs appealed, arguing that the award was grossly inadequate, but the Court of Appeals, applying the clearly-erroneous standard, affirmed. Taylor v. Howe, 280 F.3d 1210 (8th Cir. 2002). 2. In assessing the conduct of the poll workers, one is reminded of the caution reflected in Hanlon’s Razor: “Never attribute to malice that which can be adequately explained by stupidity.” Do you agree with the Eighth Circuit in attributing some, but not all, of the poll workers’ errors to stupidity? More precisely, do you agree with the amount of discretion the court of appeals permitted the district court in drawing the line between malice and stupidity? Most jurisdictions, but not all, require a showing of malice or other improper motive before recovery may be had for wrongfully denying the right to vote. Compare, e.g., Lincoln v. Hapgood, 11 Mass. 350 (1814) (applying strict liability), with, e.g., Jenkins v. Waldron, 11 Johns 114 (N.Y. 1814) (requiring malice). 3. Ms. Page, Ms. Bates, and Ms. Calloway were candidates who alleged that they were unable to assist voters because of the racially motivated behavior of the poll workers. The court affirmed the judgment for the defendants as to each of the three plaintiffs’ claims, but did so because the evidence of intentional discrimination was equivocal. More fundamentally, though, do the candidates/helpers (apart from the voters who sought their assistance) have any legally cognizable claim for relief? Certainly the Equal Protection Clause protects against official discrimination on the ground of race, but would the victim of such discrimination be the voter or the helper (or perhaps both)? 4. Ordinarily, municipalities are not liable under § 1983 for constitutional violations unless “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that body’s officers,” or is the result of a governmental “custom.” Monell v. Department of

58 Social Services, 436 U.S. 658, 690-91 (1978); RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 958-63 (6th ed. 2009). The “policy or custom” limitation on liability prevents local governments from being liable for constitutional violations simply on a respondeat superior theory, forcing taxpayers to pay for the behavior of rogue employees. It is on this ground that Taylor refused to impose liability on Howe and Freeman in their official capacities, which would, in effect, amount to imposing liability on the County. Municipalities can also be liable for behavior that can be attributed to the municipalities themselves—most notably, failure to train employees. There too, however, not all constitutional violations are compensable. Liability may be imposed on the municipality “only where the failure to train amounts to deliberate indifference to the rights of persons with whom the [trainees] come into contact.” City of Canton v. Harris, 489 U.S. 378, 388 (1989). Is there a colorable argument that the County was “deliberately indifferent” to disabled persons’ right to vote in light of the fact that, as Commissioner Fairly testified, “every election [s]ome judge or clerk thinks that [he] ought to be able to determine who is the assister for some voter or group of voters”?

United States Court of Appeals for the Eleventh Circuit 43 F.3d 574 (11th Cir. 1995)

PER CURIAM [CHIEF JUDGE TJOFLAT and CIRCUIT JUDGE BIRCH join in this opinion]: In Alabama, a person voting by absentee ballot must execute an “affidavit” in the presence of a “notary public or other officer authorized to acknowledge oaths or two witnesses 18 years of age or older.” Ala. Code § 17-10-7. Section 17-10-9 of the code prescribes the physical form of the ballot and the affidavit. The affidavit form must be printed on an envelope. A second, smaller envelope, which does not identify the absentee voter and contains the voter’s completed ballot, must be sealed inside the affidavit envelope, and that envelope must then be mailed to the appropriate county election official. The affidavit envelopes are held unopened until noon on election day. Beginning at noon, the “absentee election manager” delivers the envelopes to the “election officials” for counting. They, in turn, with poll watchers present, call the name of each voter casting an absentee ballot, “open each affidavit envelope, review the affidavit to certify that such voter is entitled to vote and deposit the plain envelope containing the absentee ballot into a sealed ballot box.” Ala.Code § 17-10-10 (1980). These ballots are then “counted and otherwise handled in all respects as if the said absentee voter were present and voting in person.” Id.2

The Secretary of State’s Election Handbook for 1994 interpreted these requirements as follows: The task of absentee poll workers on election day falls into two phases. Beginning at noon (or later) they are to open the affidavit envelopes, review the affidavits, and deposit the plain envelopes in a sealed ballot box. If, upon examination, the affidavit is not properly witnessed or notarized, is not signed by the voter, or does not otherwise contain sufficient information to determine that the person is a qualified elector and is entitled to vote absentee, the ballot should not be counted [Attorney General’s opinion 80-00551]. Otherwise, the ballot should be deposited into a sealed ballot box.

59 Alabama law also provides a method of contesting statewide elections such as those involved in this case. Section 17-15-50 of the Alabama Code provides that any elector may contest certain statewide elections by filing a written statement and a bond with the state legislature within ten days after the Speaker of the House of Representatives has opened the election returns. The legislature is then required to elect a commission of three senators and five representatives to take testimony submitted in the contest. Id. § 17-15-53. The commission is provided with subpoena and contempt powers. Id. §§ 1715-55, 17-15-57. “[T]he final judgment of the joint convention [of the House and Senate] upon the contest shall [be] effective as a judgment and shall have the force and effect of vesting the title to the office . . . in the person in whose favor the judgment may be rendered.” Id. § 17-15-52.4 Thus, the legislature is the final arbiter of statewide office contests. On November 8, 1994, Alabama held a general election for several statewide offices, including the offices of Chief Justice of the Supreme Court of Alabama and Treasurer of the State of Alabama. Between 1000 and 2000 absentee voters failed to properly complete their affidavits, either by failing to have their signatures notarized or by failing to have them witnessed by two people. Pursuant to the statutory mandate of section 1710-10, and the statewide practice prior to the general election, these ballots were not counted: they were not removed from their affidavit envelopes and, therefore, were not placed in the ballot box. The elections for Chief Justice and Treasurer, especially the former office, were quite close. Informal estimates place the two candidates for Chief Justice a mere 200 to 300 votes apart without counting the contested absentee ballots. Following the general election, two individuals who voted absentee, on behalf of themselves and similarly situated absentee voters, filed a complaint in the Circuit Court for Montgomery County, Alabama, seeking an order that the contested absentee ballots be counted. On November 17, 1994, the circuit court entered a “Temporary Restraining Order” requiring that “those persons counting the absentee ballots for each county shall count each ballot which contains: (1) the place of residence of the person casting the ballot; (2) the reason for . . . voting by absentee ballot; and (3) the signature of the voter. Absentee ballots may not be excluded from being counted because of a lack of notarization or a lack of witnesses.” (Emphasis added). The circuit court also ordered the Secretary of State to refrain from certifying the election until the vote totals, including the contested absentee votes, are forwarded to him; after receiving these revised totals, the Secretary must certify the
Alabama Election Handbook 257 (6th ed. 1994) (citation in original) (emphasis added). The Attorney General’s Opinion cited in the election handbook states: If, upon examination, the affidavit obviously does not comply with Alabama law, that is, if it is not properly witnessed or notarized, is not signed by the voter, or does not otherwise contain sufficient information to determine that the person is a qualified elector and is entitled to vote absentee, the ballot should not be counted. 80 Op. Att’y Gen. 551 (1980). The Secretary of State, James Bennett, testified in the proceedings below that it was “his understanding that ballots that are not witnessed by two people over the age of 18 or notarized [were] not counted prior to the Montgomery County [Circuit] Court case[.]” * * * 4 The Alabama legislature has ensured that the decision of the joint convention of the House and Senate shall be conclusive by providing that no judge or court shall have jurisdiction to decide election contests involving the specified statewide offices. * * *

60 election.6 Following the entry of this temporary restraining order, the election officials began counting the contested absentee ballots. On December 5, 1994, the United States District Court for the Southern District of Alabama, in a suit brought under 42 U.S.C. § 1983 by Larry Roe, a voter suing on behalf of himself and others similarly situated, Perry O. Hooper, Sr., the Republican candidate for Chief Justice, and James D. Martin, the Republican candidate for Treasurer, entered a preliminary injunction against the Secretary and the election officials of Alabama’s sixtyseven counties precluding them from complying with the circuit court’s order. The district court, in its memorandum order granting the preliminary injunction, found from the evidence the parties presented that “the past practice of the Alabama election officials prior to [the] general election has been to refrain from counting any absentee ballot that did not include notarization or the signatures of two qualified witnesses,” that “the past practice of the Secretary of State of Alabama has been to certify Alabama election results on the basis of vote counts that included absentee votes cast only by those voters who included affidavits with either notarization or the signatures of two qualified witnesses,” and that the Montgomery County Circuit Court’s order changed this past practice. The district court then concluded that, in obeying the circuit court’s order, the defendant election officials were violating the Fourteenth Amendment. The district court, therefore, ordered that the contested ballots and other election materials be preserved and protected; that the Secretary refrain from certifying any election results based on a vote count that included the contested absentee ballots; that Alabama’s sixty-seven county election officials forward vote totals to the Secretary without counting the contested absentee ballots; and that the Secretary, upon receipt of those vote totals from the county election officials, certify the election results. * * * Appellants contend that the plaintiffs failed to allege, or to demonstrate, the violation of a right “secured by the Constitution” as required under section 1983. We disagree. In this case, Roe, Hooper, and Martin allege that “[t]he actions of the Defendants and the Defendant Class . . . would constitute a retroactive validation of a potentially controlling number of votes in the elections for Chief Justice and Treasurer” that “would result in fundamental unfairness and would violate plaintiffs’ right to due process of law” in violation of the Fourteenth Amendment, and that this violation of “the plaintiffs’ rights to vote and . . . have their votes properly and honestly counted” constitutes a violation of the First and Fourteenth Amendments. The right of suffrage is “a fundamental political right, because preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). “[T]he right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 554 (1964) [p. XXX]. Not every state election dispute, however, implicates the Due

On December 9, 1994, the circuit court entered a preliminary injunction incorporating its “Temporary Restraining Order” and further elaborating on the reasons for the court’s conclusion that the contested absentee ballots were required to be counted under Alabama law. The circuit court felt that Wells v. Ellis, 551 So. 2d 382, 383 (Ala. 1989), and Williams v. Lide, 628 So. 2d 531, 536 (Ala. 1993), required that the contested absentee ballots be counted because the affidavit envelopes accompanying them were in “substantial compliance” with § 17-10-7. The circuit court determined that it had the authority to enter the injunction despite the jurisdictional bar [mentioned in] note 4, because the circuit court was exercising its power for the “limited purpose of ordering public officials to comply with legal principles.”

61 Process Clause of the Fourteenth Amendment and thus leads to possible federal court intervention. Generally, federal courts do not involve themselves in “ ‘garden variety’ election disputes.” Curry [v. Baker, 802 F.2d 1302, 1315 (11th Cir. 1986)]. If, however, “the election process itself reaches the point of patent and fundamental unfairness, a violation of the due process clause may be indicated and relief under § 1983 therefore in order. Such a situation must go well beyond the ordinary dispute over the counting and marking of ballots.” Id. We address, then, whether the plaintiffs have demonstrated fundamental unfairness in the November 8 election. We conclude that they have. The plaintiffs acknowledge that the State of Alabama is free to place reasonable time, place, and manner restrictions on voting, and that Alabama can require that voters be qualified electors. They argue, however, that section 17-10-7 of the Alabama Election Code clearly requires that affidavits accompanying absentee ballots be either notarized or signed by two witnesses; that the statewide practice in Alabama prior to the November 8 general election was to exclude absentee ballots that did not comply with this rule; and that the circuit court’s order requiring the state’s election officials to perform the ministerial act of counting the contested absentee ballots, if permitted to stand, will constitute a retroactive change in the election laws that will effectively “stuff the ballot box,”13 implicating fundamental fairness issues. Cf. United States v. Saylor, 322 U.S. 385, 389 (1944). We agree that failing to exclude the contested absentee ballots will constitute a postelection departure from previous practice in Alabama. This departure would have two effects that implicate fundamental fairness and the propriety of the two elections at issue. First, counting ballots that were not previously counted would dilute the votes of those voters who met the requirements of section 17-10-7 as well as those voters who actually went to the polls on election day. Second, the change in the rules after the election would have the effect of disenfranchising those who would have voted but for the inconvenience imposed by the notarization/witness requirement. * * * Appellants point out that “[a] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13 (1994). Thus, appellants urge, the Montgomery County Circuit Court’s ruling merely articulated in a clearer way what the law has always been in Alabama. This argument, however, ignores the fact that section 17-10-7, on its face, requires notarization or witnessing, that the Secretary and the Attorney General have acknowledged the requirement and that, as the district court found, the practice of the election officials throughout the state has been to exclude absentee ballots that did not meet this requirement. We consider it unreasonable to expect average voters and candidates to question the Secretary’s, the Attorney General’s, and the election officials’ interpretation and application of the statute, especially in light of its plain language. Appellants also argue that this case presents a case of enfranchisement of those who cast the contested absentee ballots, rather than a disenfranchisement of qualified voters, and thus does not rise to the level of a constitutional violation. They rely heavily on

According to the record before the district court, in one Alabama county, Greene County, nearly 33% of the votes cast were from absentee voters. Secretary Bennett testified that he has “had concerns about absentee voter fraud for years” and that, if absentee ballots exceed 6% to 7% of the total votes cast, “bells and sirens ought to go off. There cannot be that many sick, infirm or out-of-county voters on one day.”

62 Partido Nuevo Progresista v. Barreto Perez, 639 F.2d 825 (1st Cir. 1980). In that case, the plaintiffs challenged the tallying of ballots in a local election in Puerto Rico. A section of the Electoral Law of Puerto Rico provided that, if a handwritten ballot was used in an election, the Electoral Commission had to guarantee that the elector was qualified to vote by making a mark in a specific place on the ballot. The section stated that if the mark was not made in the correct space, the ballot would be null and void. After the election, the Administrator of the Election Commission and the Commonwealth’s Electoral Review Board held that several ballots were invalid because they were not marked correctly. The Supreme Court of Puerto Rico reversed, holding that, despite the section’s clear language, the ballots should be counted. The Barreto Perez plaintiffs * * * alleged that the Puerto Rico Supreme Court’s ruling constituted a change in the method of counting ballots after the election and, therefore, violated the Constitution. The First Circuit did not agree for two reasons. First, the court found it significant that “this case does not involve a state court order that disenfranchises voters; rather it involves a . . . decision that enfranchises them—plaintiffs claim that votes were ‘diluted’ by the votes of others, not that they themselves were prevented from voting.” Id. at 828 (emphasis in original). Second, the court found that “no party or person is likely to have acted to their detriment by relying upon the invalidity of [the contested] ballots. . . .” Id. Accordingly, the First Circuit found no constitutional injury. We need not address the court’s apparent holding that dilution is not a constitutional injury because the facts of this case differ markedly from those of Barreto Perez. We believe that, had the candidates and citizens of Alabama known that something less than the signature of two witnesses or a notary attesting to the signature of absentee voters would suffice, campaign strategies would have taken this into account and supporters of Hooper and Martin who did not vote would have voted absentee.15 The appellants contend that, since this case involves “a sensitive area of state policy,” the district court should have stayed its hand and required the plaintiffs to invoke their state remedies—either an election contest in the legislature or a judicial declaration from the Supreme Court of Alabama. See Railroad Comm’n v. Pullman, 312 U.S. 496, 501-02 (1941). We agree that federal courts should refrain from holding a state election law unconstitutional when a reasonable alternative course of action exists. We are, therefore, reluctant to reach a final decision in this case while the proper application of the Alabama Election Code remains muddled. There are two ways to show deference to the state decisionmakers in this matter: we can leave the plaintiffs to their state remedies; or we can certify a question to the Supreme Court of Alabama [regarding the requirements of a proper absentee ballot under Alabama law], retain jurisdiction, and await that court’s answer. We choose the latter form of abstention; leaving the plaintiffs to their state remedies is neither workable nor appropriate in this case. EDMONDSON, CIRCUIT JUDGE, dissenting: I know of no other case involving disputed ballots in which a federal court has

We take judicial notice of the fact that reducing the inconvenience of voting absentee—by eliminating the necessity of obtaining the signature of a notary or two witnesses—would increase the number of absentee ballots.

63 intervened in a state election where the plaintiff failed to show, in fact, either: 1. that plaintiff had “lost” the election but would have won the election if lawful votes only had been counted (that is, the alleged constitutional error changed the election result); or 2. that it was impossible ever to know that his opponent (the apparent winner) had truly won the election because of the nature of the voting irregularities (that is, the alleged constitutional error placed in everlasting doubt what was the true result of the election). Nothing is known in this case about whether the alleged illegalities have affected or will affect the outcome of the pertinent elections. Yet today we plow into Alabama’s election process and uphold a preliminary injunction that, in effect, overrules a preexisting state court order which had directed that the contested votes be counted. And, instead, the federal courts (basically, stopping short the state election processes) order that the contested votes be not counted at all. This high level of federal activity seems unnecessary and, therefore, improper. So, I conclude that the district court abused its discretion. For all we or anyone else knows, if the contested absentee votes in this case were counted, plaintiffs’ candidates would win the elections, even taking those contested votes into account. In such event, none of the plaintiffs would be aggrieved by the decision to count absentee ballots not strictly complying with the state’s statute. I believe everyone involved in this election dispute would understand that a court’s allowing the simple adding up of which of the contested absentee votes went to which candidate would not be the same thing as saying that the contested votes will have value ultimately, as a matter of law, for deciding the final, official outcome of the elections. But instead of letting the votes be counted as an Alabama court has directed and then seeing if there is even a controversy about the election’s outcome, the federal courts have jumped into the process and blocked the very step that might show there is no big problem to be dealt with by federal judges. * * * This difference with my colleagues is more than just academic bickering about technicalities. Federal courts are not the bosses in state election disputes unless extraordinary circumstances affecting the integrity of the state’s election process are clearly present in a high degree. This well-settled principle—that federal courts interfere in state elections as a last resort—is basic to federalism, and we should take it to heart. *** As I understand the law, “[o]nly in extraordinary circumstances will a challenge to a state election rise to the level of a constitutional deprivation.” Curry, 802 F.2d [at] 1314. To my way of thinking, the federal courts have acted too aggressively too soon and have, as a result, become entangled in Alabama’s state election too much. At a time when we do not know whether the contested votes, in fact, will make any difference at all in the outcome of the elections, it is hard for me to say that I am now facing the kind of extraordinary circumstances—patent and fundamental unfairness tied to concrete harm— that will amount to a constitutional deprivation and that will justify immediate significant federal interference in the election processes of a state. * * * Notes and Questions 1. The litigation in Roe continued its long journey throughout 1995. In response to

64 the majority opinion, the Alabama Supreme Court answered the certified question by holding that the ballots in question were legal votes under Alabama law. Roe v. Mobile County Appointment Bd., 676 So. 2d 1206 (Ala. 1995). The Eleventh Circuit then remanded the case to the district court to make findings of fact on whether the state courts had changed pre-election state law when they permitted the absentee ballots to be counted. Roe v. Alabama, 52 F.3d 300 (11th Cir. 1995) (per curiam). The district court found that the uniform practice in Alabama prior to the election had been to exclude absentee ballots like those at issue, and ordered that the state authorities certify the election of the Chief Justice and the Treasurer, without including the contested absentee ballots. Roe v. Mobile County Appointing Board, 904 F. Supp. 1315 (S.D. Ala. 1995). This was affirmed in Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995) (per curiam). The entire federal court litigation took almost one year to complete. Is this a good example of the rapidity of resolving election disputes that is normally favored? Were the fears of the dissent in the initial Eleventh Circuit decision realized? 2. The political affiliations of the state and federal judges in the protracted Roe litigation did not go unnoticed. For example, the state trial judge who originally ordered that the absentee ballots be counted was a Democrat, and the Alabama Supreme Court consisted of a majority of Democrats, while the Eleventh Circuit panel was comprised of Republican appointees. In grudgingly answering the certified question, the majority opinion of the Alabama Supreme Court complained about the intrusion of the federal courts into the state election dispute. 676 So. 2d at 1217. What should we make of this “tortured history”? One scholar argues that while the entire episode raised fears of politicized judging, federal-court intervention was warranted, since it appeared that voters’ and candidates’ settled expectations had been upset by the effort to count the absentee ballots. Richard L. Hasen, The Democracy Canon, 62 STAN. L. REV. 62, 119-22 (2009). A complication of the case is that the long-standing administrative practice in Alabama was almost never to count such absentee ballots, while the Alabama Supreme Court seemed willing to overturn that practice. 3. To invoke federal court relief in a situation analogous to Roe, should voters and candidates need to show a change in state law and detrimental reliance on the pre-change practice? Or would the former be enough? See Richard H. Pildes, Judging “New Law” in Election Disputes, 28 FLA. ST. U. L. REV. 691 (2001).

3. Remedies for Unsuccessful Candidates

United States Court of Appeals for the Fourth Circuit 797 F.2d 1279 (4th Cir. 1986)

WILKINSON, CIRCUIT JUDGE [with whom PHILLIPS, CIRCUIT JUDGE, and GORDON, SENIOR DISTRICT JUDGE (sitting by designation) join]: Plaintiffs are three unsuccessful candidates for public office who seek to recover approximately $9 million in damages under 42 U.S.C. § 1983, 18 U.S.C. § 1964 (Racketeer Influenced and Corrupt Organizations Act—RICO), and the common law of West Virginia, for alleged irregularities in the 1980 general election. The district court granted motions to dismiss, summary judgment, or directed verdicts in favor of all defendants, various election officials and those alleged to have conspired with them to fix

65 the election. The court found plaintiffs had failed to prove the existence of a conspiracy, on which their case depended, or to show a fundamentally unfair election amounting to a constitutional deprivation. We conclude that federal courts are not available for awards of damages to defeated candidates. Requests for equitable intervention into factual disputes over the conduct of elections, which raise many of the same concerns as those presented by this damages action, are unavailing save in rare and extraordinary circumstances. We need not consider, however, whether the present case presents such circumstances, for plaintiffs seek no equitable relief. Because we are convinced that damages are unavailable in any event, we affirm the district court’s dismissal of this action. Our constitution does not contemplate that the federal judiciary routinely will pass judgment on particular elections for federal, state or local office. The conduct of elections is instead a matter committed primarily to the control of states, and legislative bodies are traditionally the final judges of their own membership. The legitimacy of democratic politics would be compromised if the results of elections were regularly to be rehashed in federal court. Federal courts, of course, have actively guarded the electoral process from class-based discrimination and restrictive state election laws. This suit, however, asks us to consider the award of damages for election irregularities that neither disenfranchised a class of voters nor impugned state and federal procedures for the proper conduct of elections. In this essentially factual dispute, we defer to those primarily responsible for elections and we refuse to authorize yet another avenue for those disgruntled with the political process to keep the contest alive in the courtroom. I. Plaintiffs were Democratic candidates in the 1980 general election in West Virginia. John Hutchinson sought re-election to the United States House of Representatives in the Third Congressional District of West Virginia. This district included Kanawha and Boone Counties—where the disputed elections occurred—as well as twelve other counties. Plaintiff Leonard Underwood was the incumbent delegate to the state house from Kanawha County, and plaintiff William Reese sought election as a County Commissioner for Kanawha County. Hutchinson and Reese were defeated by wide margins, while Underwood’s loss was a narrow one. Underwood requested a recount of all computer punchcard ballots cast in the election. When the Kanawha County Commission denied this request, Underwood sought a writ of mandamus in the Circuit Court of Kanawha County to compel a hand count of ballots. That action was dismissed, and a similar attempt before the state Supreme Court was found to be time barred. Hutchinson filed a formal election complaint with the United States Attorney in January, 1981. The resolution of that complaint is not revealed in the record, but apparently was not satisfactory to Hutchinson. Plaintiffs filed their original complaint in this suit in February, 1983. As amended, the complaint in essence charges that the election night totals were predetermined by defendants, who then conspired to cover up their activities. Named as defendants in the suit were both local officials and private citizens alleged to have acted in concert with those officials. The officials included Margaret Miller, Clerk of the County Commission of Kanawha County; Carolyn Critchfield, Ann Carroll, Darlene Dotson and Clayton Spangler, employees in the clerk’s office; James Roark, the

66 Prosecuting Attorney of Kanawha County in 1980; and Bernard Meadows, employed by the Clerk of the County Commission of Boone County. Private citizens named as defendants included Steven Miller, husband of Margaret Miller; David Staton, the successful Congressional candidate in the 1980 election; and John Cavacini, who in 1980 was associated with the campaign of Governor John D. Rockefeller, IV. Finally, plaintiffs sued Computer Election Systems, Inc. (CES), which provided computer vote tabulating systems in Kanawha County, and four employees of CES—Keith Long, Carl Clough, Cherrie Lloyd, and William Biebel. * * * The CES system provided the county with electronic punch card vote tabulation, in which voters indicated their choices on computer punch cards. After polls were closed, these cards were transported to countywide tabulation centers in locked and sealed ballot boxes. The ballots were removed by teams of workers, who arranged them for feeding into the computer and noted in log books the time when ballot boxes were opened. Plaintiffs cite as evidence of election fraud the fact that the log shows one box was opened after the computer tabulation was printed out. Plaintiffs’ main allegations focus on events at the central tabulation center for Kanawha County. They rely largely on the testimony of Walter Price, incumbent candidate for the House of Delegates who was at the center on election night. Price testified that he observed Margaret Miller manipulating computer toggle switches during the election count, purportedly in an attempt to alter vote counts. He saw an “unknown gentleman”—whom plaintiffs identify as Carl Clough—placing a phone receiver into his briefcase. Plaintiffs suggest that this activity is consistent with the use of a portable modem, perhaps in an effort to change vote totals. Price also testified that Stephen Miller took computer cards from his coat pocket and gave them to his wife, who allegedly fed the cards into the computer. Finally, plaintiffs assert that numerous irregularities occurred after the election, including improper handling of the ballots and release of exact returns prior to the canvass, and destruction of ballots that violated the terms of W.Va. Code § 3-6-9. Plaintiffs make similar, though less detailed, allegations with respect to the election process in Boone County. * * * The [district] court considered motions for directed verdicts at the close of plaintiffs’ case. It found that plaintiffs’ claims failed for several reasons. The court held that plaintiffs had failed to prove a conspiracy, noting that the only evidence the election was rigged was “purely speculative . . . mere suspicion.” It also found that plaintiffs Reese and Hutchinson had not shown that they were harmed by the alleged actions; there was no evidence that their large losses would have been victories in the absence of the alleged conspiracy. Further, finding only “mere election irregularities” and no evidence to suggest that the election was fundamentally unfair, the court held that plaintiffs had failed to prove a deprivation of a constitutional right essential to a § 1983 action. Finally, the court dismissed plaintiffs’ claims under RICO, finding “absolutely no proof” that would allow it to consider the claim. II. Though our disposition of this dispute rests on the view that damages are unavailable to defeated candidates as a method of post-election relief, we are guided by an awareness of the broader context in which this suit arises. The plaintiffs ask us to arbitrate what is

67 essentially a political dispute over the results of an election. We find it useful, for proper understanding of this case, to discuss the structural characteristics and mechanisms for review of disputed elections. This examination reveals both the proper sphere and the limits of judicial oversight of controversies in the electoral process. As in any suit under § 1983 the first inquiry is “whether the plaintiff has been deprived of a right ‘secured by the Constitution and laws.’ ” Baker v. McCollan, 443 U.S. 137, 140 (1979).3 In their complaint, plaintiffs alleged that defendants deprived them of “their constitutionally protected right to participate fully and fairly in the electoral process,” and “their constitutional right to vote or receive votes,” and their Fifth Amendment right to hold property, in this case public office. The district court found that plaintiffs proceeded at trial as “defeated or disenfranchised candidate[s] rather than as . . . disenfranchised voter[s].” Thus, plaintiffs essentially assert that they have been deprived of their “right to candidacy.” Courts have recognized that some restrictions on political candidates violate the Constitution because of their derivative effect on the right to vote. * * * We assume, without deciding, that plaintiffs have sufficiently alleged a deprivation of constitutional rights to meet the basic requirements of a § 1983 cause of action. That assumption, however, cannot end the matter. As Judge Rubin has noted for the Fifth Circuit: “constitutional decision must not be confined merely to the logical development of the philosophy of prior decisions unfettered by other considerations. The functional structure embodied in the Constitution, the nature of the federal court system, and the limitations inherent in the concepts both of limited federal jurisdiction and of the remedy afforded by section 1983 must all be fully attended.” Gamza v. Aguirre, 619 F.2d 449, 452 (5th Cir. 1980). The functional allocations and structural mandates of our Constitution lead us to conclude, like the court in Gamza, that this complaint must be dismissed. We first acknowledge and affirm the significant duty of federal courts to preserve constitutional rights in the electoral process. Our role, however, primarily addresses the general application of laws and procedures, not the particulars of election disputes. Federal courts have, for example, invalidated class-based restrictions of the right to vote. See, e.g., Dunn v. Blumstein, 405 U.S. 330 (1972) [p. XXX] (durational residence requirement); Harper v. Virginia Board of Elections, 383 U.S. 663 (1966) [p. XXX] (poll tax); Carrington v. Rash, 380 U.S. 89 (1965) [p. XXX] (restriction on voting rights of servicemen); Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967) [p. XXX]. The dilution of votes through malapportionment has also been a major concern of the federal judiciary. * * * Courts have also acted to further the congressional mandate, as expressed in the Voting Rights Act, that race shall not affect the right to vote. * * * Intervention for reasons other than racial discrimination “has tended, for the most part, to be limited to striking down state laws or rules of general application which improperly restrict or constrict the franchise” or otherwise burden the exercise of political rights. * * * By these means, federal courts have assumed an active role in protecting against dilution of the fundamental right to vote and the denial of this right through class disenfranchisement. By contrast, “[c]ircuit courts have uniformly declined to endorse action under § 1983 with respect to garden variety election irregularities.” Griffin v. Burns, 570 F.2d [1065,

Though we speak here in terms of § 1983, our discussion applies as well to the RICO and common law counts. Our review of the limited role of federal courts does not depend on the specific theory under which a particular suit is brought, but rather upon the institutional structure established by the constitution and administered through other state and federal remedies.

68 1076 (1st Cir. 1978)]. These courts, mainly considering disputes involving state elections, have declined to interfere because of the constitutional recognition that “states are primarily responsible for their own elections” and that alternative remedies are adequate to guarantee the integrity of the democratic process. The discussion of those alternative means of resolving electoral disputes is the focus of the following section. III.

69 We note initially that the constitution anticipates that the electoral process is to be largely controlled by the states and reviewed by the legislature. This control reaches elections for federal and state office. Article I, sec. 4, cl. 1, grants to the states the power to prescribe, subject to Congressional preemption, the “Times, Places and Manner of holding Elections for Senators and Representatives.” In addition, states undoubtedly retain primary authority “to regulate the elections of their own officials.” Where state procedures produce contested results, the Constitution dictates that, for congressional elections, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” Art. I, Sec. 5, cl. 1. The House accordingly has the authority “to determine the facts and apply the appropriate rules of law, and, finally, to render a judgment which is beyond the authority of any other tribunal to review.” This plenary power is paralleled at the state level by the power of the West Virginia legislature to review the elections of its own members. Contests for county offices, such as that of plaintiff Reese, are resolved by county courts. We thus proceed with awareness that the resolution of particular electoral disputes has been primarily committed to others in our system. The express delegation to Congress and the states of shared responsibility for the legitimation of electoral outcomes and the omission of any constitutional mandate for federal judicial intervention suggests the inadvisability of permitting a § 1983 or civil RICO action to confer upon federal judges and juries “a piece of the political action,” no matter what relief is sought. Consideration of the various ways in which these other bodies have regulated and monitored the integrity of elections only confirms our hesitation to consider the disputed details of political contests. Those with primary responsibility have not abandoned their duty to ensure the reliability and fairness of democratic elections. The House of Representatives, for example, has developed a body of guiding precedent regarding election contests, see 2 Deschler’s Precedents of the United States House of Representatives, 323-888 (1977), and has enacted detailed procedures designed to ensure due process and just consideration of disputes. See Federal Contested Elections Act, 2 U.S.C. §§ 381-396. * * * Had the framers wished the federal judiciary to umpire election contests, they could have so provided. Instead, they reposed primary trust in popular representatives and in political correctives. Dissatisfied candidates for office in West Virginia are also presented with numerous avenues by which to challenge election results, some of which parallel the federal model. The legislature is directed by Art. 4, § 11 of the West Virginia Constitution “to prescribe the manner of conducting and making returns of elections, and of determining contested elections,” and has accordingly enacted procedures for ballot control and recounts, and election contests, Initially, of course, the election returns are counted and certified by a board of canvassers. West Virginia courts have long exercised “election mandamus” powers by which they may “compel any [election] officer ... to do and perform legally any duty herein required of him.” Appellant Underwood, in fact, attempted to employ this very procedure to compel a recount, but his writ was denied as untimely. State and federal legislatures, moreover, are not concerned solely with election results, but have subjected the entire electoral process to increasing regulation. * * * Thus it seems fair to conclude that the demonstration of judicial restraint under 42 U.S.C. § 1983 will not leave American elections unsupervised or unregulated.

70 Finally, both state and federal authorities have employed criminal penalties to halt direct intrusions on the election itself. Federal conspiracy laws such as 18 U.S.C. § 241 have been applied to those engaged in corruption of election procedures. See also,18 U.S.C. § 594 (prohibiting intimidation of voters); 18 U.S.C. § 600 (prohibiting promise of employment or other benefit for political activity). Criminal sanctions are also available under West Virginia law for those found to have filed false returns, tampered with ballots, bought or sold votes, and the like. A state grand jury investigated the very allegations at issue here, and issued one indictment, which did not result in a conviction. IV. Though the presence of even exhaustive alternative remedies does not usually bar an action literally within § 1983 or other statutes, we are persuaded in this context that we must refrain from considering the particulars of a disputed election, especially in a suit for damages. To do otherwise would be to intrude on the role of the states and the Congress, to raise the possibility of inconsistent judgments concerning elections, to erode the finality of results, to give candidates incentives to bypass the procedures already established, to involve federal courts in the details of state-run elections, and to constitute the jury as well as the electorate as an arbiter of political outcomes. These costs, we believe, would come with very little benefit to the rights fundamentally at issue here—the rights of voters to fair exercise of their franchise. Instead, plaintiffs, who voluntarily entered the political fray, would stand to reap a post-election recovery that might salve feelings of rejection at the polls or help retire debts from the campaign but would bear very little relationship to the larger public interest in partisan debate and competition undeterred by prospects of a post-election suit for damages. Plaintiffs’ theories in this case illustrate the ways in which a lawsuit such as this could intrude on the role of states and Congress to conduct elections and adjudge results. In their complaint, plaintiffs allege damages including, inter alia, loss of income (salary from holding public office), earning capacity, time expended for election purposes and various election expenses, as well as injury to reputation. These losses, of course, would have resulted from election defeat absent any conspiracy by defendants. * * * Thus, plaintiffs in order to recover damages must perforce rely on the theory that defendants’ alleged conspiracy cost them an election they otherwise would have won. In presenting their case plaintiffs would essentially ask a jury to review the outcome of the election. As explained above, however, the task is reserved for states and legislatures, and though the jury’s review would not directly impair their primary responsibility to adjudge elections, its re-examination of election results would be inconsistent with proper respect for the role of others whose job it is to canvass the returns and declare a prevailing party. This intrusion, moreover, would not be limited to that of a jury, for the judiciary itself would doubtless be asked to review the jury’s judgment of the election in post-trial motions. Principles of separation of powers and federalism, therefore, dictate that both jury and court avoid this inquiry. Just as the review of electoral results by judge or jury is inconsistent with proper respect for the role of states and Congress, so too the outcomes of these deliberations are potentially inconsistent with the results of the electoral process. Were plaintiffs successful in convincing the jury that they should have won the election or should receive an award of damages, the courts would enter a judgment at odds with the judgment of

71 Congress and of West Virginia, which have seated the apparent victors in these elections. The difficulties inherent in such continuing assaults on political legitimacy would be obvious and might impair the respect to which the enactments of those duly elected are entitled. Closely related to the problem of inconsistent judgments is the need for finality in elections. Inconsistent judgments, of course, call into question the results of an election in a way that detracts from finality. Even without inconsistent judgments, suits asking federal courts to replay elections cast into limbo contests that should have been long since decided. This case is illustrative. The election at issue occurred in 1980. Plaintiffs did not even bring their suit until 1983, after plaintiff Hutchinson’s term would have expired. Now, nearly six years after the election, the parties remain in court essentially to contest the integrity of the election. So long as such avenues are available to defeated candidates, the apparent finality of election outcomes will be illusory. Maintenance of this action might also provide incentives to losing candidates to ignore the principal routes established to challenge an election and to proceed instead to have the election reviewed in federal courts in hopes of gaining monetary compensation. Plaintiffs in this case, for example, made incomplete use of state and federal procedures yet still seek to recover millions of dollars in this action. Underwood pursued his efforts to secure a recount in an untimely fashion; though Hutchinson filed a complaint with the United States Attorney, there is no evidence that he pursued other avenues available to contest the election; Reese apparently made no attempts to employ available procedures. To allow these plaintiffs access to the federal courts would undermine the processes that are intended to serve as the primary routes to election control: “federal courts would adjudicate every state election dispute, and the elaborate state election contest procedures, designed to assure speedy and orderly disposition of the multitudinous questions that may arise in the electoral process, would be superseded by a section 1983 gloss.” Gamza v. Aguirre, 619 F.2d 449 (5th Cir. 1980). We further believe that federal courts are ill-equipped to monitor the details of elections and resolve factual disputes born of the political process. As one court has noted, “[w]ere we to embrace plaintiffs’ theory, this court would henceforth be thrust into the details of virtually every election, tinkering with the state’s election machinery, reviewing petitions, election cards, vote tallies, and certificates of election for all manner of error and insufficiency under state and federal law.” Powell v. Power, 436 F.2d 84, 86 (2d Cir. 1970). Elections are, regrettably, not always free from error. Voting machines malfunction, registrars fail to follow instructions, absentee ballots are improperly administered, poll workers become over-zealous, and defeated candidates are, perhaps understandably, inclined to view these multifarious opportunities for human error in a less than charitable light. Quite apart from the serious problems of federalism and separation of powers problems raised by these tasks, we find sifting the minutae of postelection accusations better suited to the factual review at the administrative and legislative level, where an awareness of the vagaries of politics informs the judgment of those called upon to review the irregularities that are inevitable in elections staffed largely by volunteers. To ask a jury to undertake such tasks, moreover, is to risk the intrusion of political partisanship into the courtroom, where it has no place. From the exercise of jury strikes to the final rendering of verdict, the spectre of partisanship would intrude and color court

72 proceedings. Such disputes belong, and have been placed, in the political arena, and we cannot accept the substitution of the civil jury for the larger, more diverse, and more representative political electorate that goes to the polls on the day of the election. These concerns suggest that the federal judiciary should proceed with great caution when asked to consider disputed elections, and have caused many courts to decline the requests to intervene except in extraordinary circumstances. The unique nature of this case convinces us that the requested intervention is inappropriate under any circumstances, for plaintiffs’ suit for damages strikes us as an inapt means of overseeing the political process. It would provide not so much a correction of electoral ills as a potential windfall to plaintiffs and political advantage through publicity. Those who enter the political fray know the potential risks of their enterprise. If they are defeated by trickery or fraud, they can and should expect the established mechanisms of review— both civil and criminal—to address their grievances, and to take action to insure legitimate electoral results. In this way, they advance the fundamental goal of the electoral process—to determine the will of the people—while also protecting their own interest in the electoral result. A suit for damages, by contrast, may result principally in financial gain for the candidate. We can imagine no scenario in which this gain is the appropriate result of the decision to pursue elected office, and we can find no other case in which a defeated candidate has won such compensation. Nor do we believe, in light of the multitude of alternative remedies, that such a remedy is necessary either to deter misconduct or to provide incentives for enforcement of election laws. V. We accordingly hold that federal courts do not sit to award post-election damages to defeated candidates. Equitable relief, though theoretically available, has properly been called a “[d]rastic, if not staggering” intrusion of the federal courts, and “therefore a form of relief guardedly exercised.” Bell v. Southwell, 376 F.2d at 662. Courts have therefore repeatedly refused to intervene in routine election disputes, acting instead only in instances of “patent and fundamental unfairness” that “erode[] the democratic process.” *** In short, the general attitude of courts asked to consider election disputes, whatever the relief sought, has been one of great caution. Intervention has come only in rare and extraordinary circumstances, for courts have recognized and respected the delegation of such disputes to other authorities. Such intervention, moreover, has never included the grant to defeated candidates of monetary compensation. Because such compensation is fundamentally inappropriate, we hold that it is unavailable as a form of post-election relief. The parties here have asked for nothing more, and we need not consider under what circumstances equitable remedies might be appropriate. Accordingly, the judgment of the district court dismissing this lawsuit is hereby AFFIRMED. Notes and Questions 1. Are damages in some sense a less intrusive remedy for a federal court to order in this context than prospective, injunctive relief? Or, are both types of remedies on an equal footing when it comes to interpreting and applying congressional statutes (e.g., 42 U.S.C. § 1983)? That is, has the remedial choice already been made by the statutory language?

73 In light of these issues, how persuasive is Hutchinson in favoring injunctive over damages relief regarding suits by disappointed candidates? 2. Another distinction made by Hutchinson is between suits by voters (damages permitted) and those by disappointed candidates (damages not permitted). How persuasive is this distinction? What if a plaintiff asserts that she is suing both as a voter and a disappointed candidate? Cf. White-Battle v. Democratic Party of Virginia, 323 F. Supp. 2d 696, 703(E.D. Va. 2004) (finding that the complaint asserted claims only as a disappointed candidate, although the plaintiff claimed to be both a voter and a candidate). 3. The bar against suit by disappointed candidates in Hutchinson has been followed by both federal (e.g., White-Battle, 323 F. Supp. 2d at 705-06) and state (e.g., Hill v. Stowers, 680 S.E.2d 66, 77 (W. Va. 2009)), courts, which have emphasized that state remedies are available to contest an allegedly improper election. How much do or should these decisions turn on the robustness of these remedies, or is their simple existence enough? Almost all states have some form of election contest statute, but their scope and efficacy vary from state to state. Steven F. Huefner, Just How Settled Are the Legal Principles that Control Election Disputes?, 8 ELECTION L.J. 233, 236 (2008) (book review). 4. Courts have also held that disappointed candidates cannot bring suit for alleged violations of the Voting Rights Act. Section 2 of the Act provides that “an aggrieved person” has a private right of action to sue for certain violations of the Act. 42 U.S.C. § 1973a. In Roberts v. Wasmer, 883 F.2d 617 (8th Cir. 1989), the court held that this language did not cover disappointed candidates. While the language might be read to cover such persons, the court was not “convinced that Congress intended it to be stretched that far,” because (1) the primary purpose of the Act was to protect minority voters; (2) the interests of a candidate might diverge from those attempting to enforce their right to vote, and (3) “state and local election contests are quintessentially state and local matters”; to permit suit in federal court by disappointed candidates “would violate principles of federalism in a highly radical way.” Id. at 621. Cf. id. at 624-28 (Heaney, J., dissenting) (arguing that the legislative history indicated that Congress wanted the statute to be applied in a broader way).

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