1

Chapter 12

REMEDYING ERRORS IN ELECTIONS

A. INTRODUCTION
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
a
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, 1155-
65 (2006); Developments in the Law—Elections, 88 HARV. L. REV. 1111, 1298-1339 (1975).
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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?

BELL v. SOUTHWELL
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
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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
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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 state-
imposed, 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.”

7
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.
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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 co-
plaintiffs 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.

AKIZAKI v. FONG
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
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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. * * *

FLADELL v. PALM BEACH COUNTY CANVASSING

BOARD
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
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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.

FOSTER v. LOVE
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
1
The appellants in this case are electors from Palm Beach County.
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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
1
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.
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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 voting-
rights 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 outcome-
determinative, 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).

C. ADJUSTING THE VOTE TOTALS

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

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.
13

IPPOLITO v. POWER
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.

SCHEER v. CITY OF MIAMI

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,
4
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. * * *

BRADLEY v. PERRODIN
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

5
[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?

D. STATE REMEDIES FOR FEDERAL ELECTIONS

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?

MCPHERSON v. BLACKER
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, winner-
take-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.
29

COLEMAN v. FRANKEN
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 one-
half 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

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.”
 32

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

11
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.
13
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 state-
court 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 forum-
shopping 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 election-
related 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 Decision-
Making 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?

E. PUBLIC AND PRIVATE REMEDIES

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
c
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).

WILEY v. SINKLER
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,
d
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 amount-
in-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?

TAYLOR v. HOWE
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. * * *

g
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.
 44

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. * * * Voter-
registration 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

j
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 poll-
worker 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”?

ROE v. ALABAMA
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
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. §§ 17-
15-55, 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 17-
10-10, 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 sixty-
seven 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

6
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 post-
election 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
13
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

15
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 pre-
existing 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

HUTCHINSON v. MILLER
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 pre-
determined 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
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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,
3
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 post-
election 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).