Rehearing and Suggestion for Rehearing En Banc Denied February 23, 1995.
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 (1980).
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.
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. Ala.Code § 17-15-50 (1940).
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. Odom v. Bennett, No. 94-2434-R (Montgomery County Cir.Ct., filed Nov. 16, 1994). 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 election.
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 (1988)
The defendants appeal,
Appellants claim that the district court did not have subject matter jurisdiction under the Rooker-Feldman doctrine. According to the Rooker-Feldman doctrine, "a United States District Court has no authority to review final judgments of a state court in
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. Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979) (quoting 42 U.S.C. § 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, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (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, 84 S.Ct. 1362, 1377, 12 L.Ed.2d 506 (1964). Not every state election dispute, however, implicates the Due 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, 802 F.2d at 1315 (quoting Welch v. McKenzie, 765 F.2d 1311, 1317, vacated on other grounds and remanded, 777 F.2d 191 (5th Cir.1985)). 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. (quoting Duncan v. Poythress, 657 F.2d 691, 703 (5th Cir. Unit B 1981), cert. denied, 459 U.S. 1012, 103 S.Ct. 368, 74 L.Ed.2d 504 (1982)). 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. See generally Burdick v. Takushi, ___ U.S. ___, ___, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992) ("Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections...."). 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;
We agree that failing to exclude the contested absentee ballots will constitute a post-election departure from previous practice in Alabama. See Griffin v. Burns, 570 F.2d 1065, 1075 (1st Cir.1978). 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. See, e.g., Brown v. O'Brien, 469 F.2d 563, 569 (D.C.Cir.), vacated as moot, 409 U.S. 816, 93 S.Ct. 67, 34 L.Ed.2d 72 (1972) ("If the party had adopted [the rule change] prior to the ... primary election, the candidates might have campaigned in a different manner.... Voters might have cast their ballots for a different candidate; and the State of California might have enacted an alternative delegate selection scheme...." (footnote omitted)).
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., ___ U.S. ___, ___, 114 S.Ct. 1510, 1519, 128 L.Ed.2d 274 (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. See Griffin, 570 F.2d at 1076.
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 Partido Nuevo Progresista v. Barreto Perez, 639 F.2d 825 (1st Cir.1980), cert. denied, 451 U.S. 985, 101 S.Ct. 2318, 68 L.Ed.2d 842 (1981). 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 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.
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, 61 S.Ct. 643, 645-46, 85 L.Ed. 971 (1941).
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, 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.
Because Alabama has barred its courts from entertaining statewide election contests, see Ala.Code § 17-15-6 (quoted supra note 4), there is only one state remedy in this case: a contest in the legislature. The legislature, however, is not an adequate or proper forum for the resolution of the federal constitutional issues presented. Moreover, even if the plaintiffs were to intervene successfully in the Montgomery County Circuit Court proceeding, Odom v. Bennett, and the Alabama appellate courts
By certifying the question to the Supreme Court of Alabama, we can accommodate Alabama's interest in having its high court settle the question whether a notarization or the signatures of two witnesses is required before an absentee ballot may be counted. Certification will achieve the proper balance between the interest of federalism and timely resolution of this matter. We therefore issue the following certification:
CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA PURSUANT TO RULE 18 OF THE ALABAMA RULES OF APPELLATE PROCEDURE.
TO THE SUPREME COURT OF ALABAMA AND ITS HONORABLE JUSTICES:
It appears to the United States Court of Appeals for the Eleventh Circuit that this case involves a question of Alabama state law that is determinative of the cause, but unanswered by controlling precedent of the Supreme Court of Alabama or any Alabama Court of Appeals. We therefore certify this question for resolution by the highest court of Alabama:
While we await the Supreme Court's answer, to preserve the status quo with respect to the two elections at issue and, at the same time, allow the processing of the uncontested elections to proceed, we modify and clarify the district court's injunction as follows: (1) We affirm the portion of the district court's injunction requiring the defendants to preserve all election materials. We clarify this portion of the injunction by stressing that contested absentee ballots are not to be opened, altered, or tampered with in any manner. (2) We affirm the portion of the district court's injunction enjoining the Secretary of the State of Alabama from certifying any election results in the general election of November 8, 1994 that have not been purged of known or identifiable contested absentee ballots. Once the election results have been purged of any contested absentee ballots, the Secretary may certify the results of elections for offices that are not contested in this case, to wit: all the elections except those for Chief Justice and Treasurer. (3) With respect to those two offices, we vacate the provisions of the district court's injunction requiring that county election officials forward purged election results to the Secretary and requiring the Secretary to certify the elections based on those forwarded results. We order the Secretary not to certify the elections for the offices of Chief Justice and Treasurer.
QUESTION CERTIFIED; INJUNCTION AFFIRMED AS MODIFIED AND CLARIFIED pending further order of this court.
I know of no other case involving disputed ballots in which a federal court has intervened in a state election where the plaintiff failed to show, in fact, either:
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 v. Baker, 802 F.2d 1302, 1314 (11th Cir.1986). To my way of thinking, the federal courts have acted too aggressively too soon and have, as a result,
I would dissolve the district court's injunction except to the extent that the injunction requires all election materials in the defendants' control to be preserved and protected in a way (for example, keeping questionable individual absentee ballots and their envelopes together) that a fair review of the election remains, in fact, possible and convenient.
Some of the ideas expressed in today's court opinion are, to me, doubtful: such as the theory that Alabama's legislature has the power in election contests to act contrary to the law of Alabama as declared by Alabama's highest court; the conclusion that an election contest before the legislative commission is inadequate to determine the legal issues raised by plaintiffs; the thought that only absolute identity of parties in the state court action and federal court action (without regard to state-case parties possibly under the control of or in privity with federal-case parties) will trigger a Rooker-Feldman bar in federal court; and the perception that a federal court order that countermands a preexisting Alabama court order maintains the status quo in Alabama.
Much of my objection to what this court says today, however, is not that I am sure
Alabama Election Handbook 257 (6th ed. 1994) (citation in original) (emphasis added). The Attorney General's Opinion cited in the election handbook states:
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," Odom v. Bennett, No. 94-2434-R (Montgomery County Cir.Ct., filed Nov. 16, 1994).
Ala.Code § 17-15-6. This provision is especially significant in light of the common law of Alabama:
Longshore v. City of Homewood, 277 Ala. 444, 171 So.2d 453, 455 (1965).
The merits of this case remain to be decided finally in the district court. That court can (and I think should) certify the state law question speedily to the Alabama Supreme Court. Coming from the district court, I think it can be more accurately said that the certified question can be "determinative of said cause."