Regulation of Third-Party Voter Registrations (PDF) League of Women Voters of Florida v. Browning (Cecilia M. Altonaga, S.D. Fla. 1:08-cv-21243) On April 28, 2008, the League of Women Voters filed a federal action in the Southern District of Florida challenging Florida’s regulation of voter registration as so burdensome as to cause the League to suspend its voter registration efforts. On the next day, the district judge held a hearing, ordered the parties to submit a proposed consent order on the next day, and set a preliminary injunction hearing for June 19. On August 6, the court denied the League a preliminary injunction. Similar cases were filed in 2006 in the Southern District and in 2011 in the Northern District. Topics: Registration procedures; case assignment.
Overly Burdensome Voter Registration Rules (PDF) Project Vote v. Blackwell (Kathleen M. O’Malley, N.D. Ohio 1:06-cv-1628) In July 2006, public interest organizations challenged new voter registration laws as overly burdensome, and the court enjoined the new laws. The court awarded the plaintiffs $321,485.28 in attorney fees and costs. Topics: Registration procedures; attorney fees.
Enhanced Requirements for Registering and Voting in Arizona (PDF) González v. Arizona (2:06-cv-1268), Inter Tribal Council of Arizona v. Brewer (3:06-cv-1362), and Navajo Nation v. Brewer (3:06-cv-1575) (Roslyn O. Silver, D. Ariz.) Four months in advance of Arizona’s 2006 primary election, a federal complaint challenged proposition 200, a 2004 initiative that enhanced requirements for proof of citizenship for voter registration and proof of identity and residence for voting. The district court acted quickly on the plaintiffs’ motions for temporary restraining order but denied injunctive relief. In 1012, the court of appeals determined en banc that the proof of citizenship procedure for registration is superseded by the National Voter Registration Act but the identification requirement for voting is not. Topics: Citizenship; voter identification; registration procedures; National Voter Registration Act; interlocutory appeal; recusal; section 5 preclearance; primary election.
Strict Voter Registration Rules (PDF) Citizens Alliance for Secure Elections v. Vu (Paul R. Matia, N.D. Ohio 1:04-cv-2147) In a challenge to a county’s voter registration procedures, claiming that they were so strict as to disenfranchise voters, the court determined, on the case’s third day, that provisional ballot procedures were sufficient to protect voters from disenfranchisement. Topics: Registration procedures; provisional ballots.
Identification Numbers and Voter Registration (PDF) Lucas County Democratic Party v. Blackwell (James G. Carr, N.D. Ohio 3:04-cv-7646) Eighteen days before a general election, a suit alleged that a directive by Ohio’s secretary of state not to process voter registration forms that left blank the box for a driver’s license or Social Security number violated the Help America Vote Act and the National Voter Registration Act. The court denied immediate relief, because there was not enough time to develop an evidentiary record. Topics: Registration procedures; Help America Vote Act (HAVA); National Voter Registration Act; laches.
Correcting Imperfect Voter Registrations (PDF) Diaz v. Hood (James Lawrence King, S.D. Fla. 1:04-cv-22572) Eight days after voter registration closed for the 2004 general election, three would-be voters and four unions filed a federal complaint alleging that five counties were improperly failing to process and approve voter registrations. At the end of the week, the district court heard a motion to expedite the case; at the end of the following week, the court heard a motion for a preliminary injunction. Four days later, the court dismissed the case for lack of standing, because the plaintiffs either cured or refused to cure their registration defects. In 2005, the court of appeals reversed the dismissal. The district court ruled against the plaintiffs again in 2006, but without prejudice. After a five-day bench trial on a third amended complaint, the court again ruled against the plaintiffs, finding the firm deadline for voter registration to be constitutionally reasonable. Topics: Registration procedures; National Voter Registration Act; intervention; recusal.
Bundling Voter Registrations (PDF) Nu Mu Lambda Chapter v. Cox (William C. O’Kelley, N.D. Ga. 1:04-cv-1780) and ACORN v. Cox (Jack T. Camp, N.D. Ga. 1:06-cv-1891) A 2004 complaint alleged that Georgia improperly required newly registered voters to submit their voter registration forms directly to the government rather than to coordinators of voter registration efforts. Thirteen days after the complaint was filed, the court granted the plaintiffs injunctive relief. The court of appeals affirmed in 2005. In 2006, a similar complaint alleged that Georgia was not complying with the earlier precedent. Again, the court granted the plaintiffs preliminary injunctive relief. Two years later, the court vacated the preliminary injunction because the parties had not moved the case forward. Topics: Registration procedures; National Voter Registration Act; enforcing orders; interlocutory appeal.
Changing Party Affiliation for a Primary (PDF) Van Wie v. Pataki (David N. Hurd, N.D.N.Y. 1:00-cv-322) Two weeks in advance of a presidential primary election, two voters filed a federal complaint challenging a law that allowed new voter registrants to enroll in a political party up to 25 days before a primary but did not allow a change in party enrollment for already registered voters to go into effect until after the next general election. One week later, after oral argument, the district judge dismissed the complaint, finding compelling the incentive to register for new voters. Topics: Registration procedures; intervention.
REGISTRATION DATABASES Suit Arising Under State Implementation of the Help America Vote Act Remanded to State Court (PDF) Ohio ex rel. Mahal v. Brunner (George C. Smith, S.D. Ohio 2:08-cv-983) A state’s secretary of state removed a mandamus action filed with the state’s supreme court concerning the state’s compliance with the Help America Vote Act (HAVA). The district court immediately remanded the case, because the mandamus action sought enforcement of the state’s HAVA implementing legislation, which meant that the case arose under state law. Topics: Matters for state courts; removal; Help America Vote Act (HAVA).
Computerized Voter Registration List (PDF) United States v. Alabama (W. Keith Watkins, M.D. Ala. 2:06-cv-392) The Attorney General sued to enforce Alabama’s compliance with the Help America Vote Act’s requirements for voter registration databases. The judge appointed the governor as a special master to order compliance. Topics: Help America Vote Act (HAVA); special master.
NULLIFYING REGISTRATIONS Purging Noncitizen Voter Registrations (PDF) United States v. Florida (Robert L. Hinkle, N.D. Fla. 4:12-cv-285) The Justice Department brought a federal action against Florida in the Northern District of Florida claiming that Florida was violating the National Voter Registration Act by purging noncitizens’ voter registrations within 90 days of an election. Fifteen days later, the district court ruled against preliminary injunctive relief, because Florida had ceased the purge that prompted the suit. In addition, the district judge ruled that the 90-day proscription against systematic purges did not apply to noncitizens. In another case, a judge in the Southern District came to the same conclusion. Florida resumed its purge upon access to more reliable citizenship data from the Department of Homeland Security. An action remains pending in the Middle District on whether the purge requires preclearance pursuant to section 5 of the Voting Rights Act. Topics: Citizenship; registration challenges; National Voter Registration Act; intervention; recusal; case assignment.
Voter Registrations for Juvenile Offenders (PDF) Hamilton v. Ashland County Board of Education (Donald C. Nugent, N.D. Ohio 1:08-cv-2546) Adult inmates of a juvenile correctional facility sued to enjoin cancelation of their voter registrations for not being permanent residents. The district court denied the plaintiffs relief. The court of appeals vacated the portion of the district court decision pertaining to state law as a matter for state courts to decide. Topics: Prisoner voters; registration challenges; matters for state courts.
Voter Registration Purges in Colorado (PDF) Common Cause of Colorado v. Coffman (John L. Kane, D. Colo. 1:08-cv-2321) A federal complaint alleged that Colorado was engaging in improper systematic purging of voter registration rolls within 90 days of a general election in violation of the National Voter Registration Act. Among the issues in the case was Colorado’s practice of canceling new registrations if registration notices came back undeliverable within 20 days of their being mailed. After an evidentiary hearing, the parties stipulated to a temporary restraining order. The state’s secretary of state adopted an aggressive interpretation of his attorney’s stipulation, but the district judge further restrained the secretary’s actions. The litigation proceeded at a normal pace after the election, and the district judge eventually ruled that Colorado’s 20-day rule did not violate the National Voter Registration Act because voters affected by it could cast provisional ballots. Topics: Registration challenges; registration procedures; National Voter Registration Act; enforcing orders; case assignment.
Citizenship Verification (PDF) Morales v. Handel (Jack T. Camp, N.D. Ga. 1:08-cv-3172) A naturalized citizen sued Georgia for its efforts to purge non-citizens from voter registration rolls. A three-judge court determined that section 5 preclearance was required for the efforts and granted interim relief. Georgia eventually was able to establish procedures that earned preclearance. Topics: Citizenship; registration challenges; Help America Vote Act (HAVA); section 5 preclearance; three-judge court.
Partisan Canceling of Voter Registrations (PDF) Montana Democratic Party v. Eaton (Donald W. Molloy, D. Mont. 9:08-cv-141) One political party filed an action against the other political party for launching an effort to nullify several thousand voter registrations based on postal changes of address. Because the state did not fully effectuate the plan, in part because of the filing of the case, the court did not need to grant the plaintiffs relief. Topics: Registration challenges; National Voter Registration Act.
Using Foreclosure Notices to Challenge Voters (PDF) Maletski v. Macomb County Republican Party (David M. Lawson, E.D. Mich. 2:08-cv-13982) Based on a news website’s report that one party was planning to use foreclosure notices to challenge voter registrations during the 2008 general election, the other party filed a federal complaint to enjoin the plan. In preparation for a hearing, the parties learned that the news report was not accurate, so the parties stipulated to a dismissal on the day of the hearing. Topic: Registration challenges.
Hurricane Displacement and Voter Registration (PDF) Segue v. Louisiana (Kurt D. Engelhardt, E.D. La. 2:07-cv-5221) The complaint challenged Louisiana’s notification procedures for challenges to voter registrations based on evidence that the voters had registered elsewhere. The district judge determined that preclearance was not necessary because Louisiana was giving more notice than it was precleared to and empaneling a three-judge court was not necessary. Topics: Registration challenges; section 5 preclearance; three-judge court.
Enjoining Ballot Security Initiatives (PDF) Democratic National Committee v. Republican National Committee (Dickinson R. Debevoise, D.N.J. 2:81-cv-3876) A voter in Ohio moved to intervene in a 1981 District of New Jersey case, complaining that widespread voter registration challenges in Ohio violated a consent decree between the two major political parties in the New Jersey case. On the day before the 2004 election, the district court in New Jersey granted injunctive relief. A panel of the court of appeals, over a dissent, denied the defendants a stay, but the full court ordered en banc review on election day. Because the plaintiff was allowed to vote, the appeal was subsequently declared moot. Topics: Registration challenges; intervention; enforcing orders.
Widespread Voter Registration Challenges (PDF) Miller v. Blackwell (Susan J. Dlott, S.D. Ohio 1:04-cv-735) One week before the 2004 general election, the Democratic Party filed a federal complaint challenging widespread voter registration challenges—approximately 22,000—by the Republican Party based on returned mail. The court enjoined administrative hearings on the challenges through the election. After the election, the plaintiffs dropped the case. Topics: Registration challenges; intervention; class action; enforcing orders.
Spouses Registered in Different Precincts (PDF) Bell v. Marinko (James G. Carr, N.D. Ohio 3:02-cv-7204) With a primary election 18 days away, a voter filed a federal complaint seeking injunctive relief against the county’s hearing a challenge to his voter registration on residency grounds. The district court determined that challenge procedures did not violate the National Voter Registration Act, but there was a probable equal protection violation by a statutory provision raising a question of residence for spouses not separated and not registered in the same precinct. The court temporarily enjoined application of that statutory provision. After the election, the court heard summary judgment motions on an amended complaint adding plaintiffs whose residency challenges were successful; the original plaintiff prevailed in his challenge. The district court dismissed the action, and the court of appeals affirmed. Topics: Registration challenges; equal protection; National Voter Registration Act; primary election.
Voting and Mental Illness (PDF) Doe v. Attorney General (George Z. Singal, D. Me. 1:00-cv-206) One month before the 2000 general election, three women under psychiatric guardianships filed a federal complaint challenging Maine’s exclusion of persons under such guardianships from the right to vote. Approximately three weeks later, the court denied injunctive relief. On a more complete record the following year, the court invalidated the franchise exclusion. Topic: Equal protection.
Challenge to Voter Registrations in an RV Park (PDF) Curtis v. Smith (Howell Cobb, E.D. Tex. 9:00-cv-241) The plaintiffs in this federal action sued to enjoin challenges to 9,000 voter registrations in an RV park that could hold only a fraction of the voters at any one time. The plaintiffs alleged that procedures on the en masse challenge had not been precleared pursuant to section 5 of the Voting Rights Act, and a three-judge court ultimately agreed. Topics: Section 5 preclearance; three-judge court; registration challenges; matters for state courts; intervention.
DISTRICT LINES Using an Old Legislative Districting Plan (PDF) Smith v. Aichele (2:12-cv-488), Garcia v. 2011 Legislative Reapportionment Comm’n (2:12-cv-556), and Pileggi v. Aichele (2:12-cv-588) (R. Barclay Surrick, E.D. Pa.) From January 30 through February 3, 2012, three federal complaints sought to block April 24 primary legislative elections because the district lines were based on the 2000 census. On February 8, the judge denied all requests to delay the primaries. Briefing on appointment of a special master is pending. Topics: Malapportionment; enjoining elections.
Emergency Evaluation of Gerrymandering (PDF) Kidd v. Cox (Beverly B. Martin, N.D. Ga. 1:06-cv-997) As the qualifying period for filing candidacy papers closed, a possible candidate filed a constitutional challenge to legislative district lines. The plaintiffs sought an emergency hearing by a three-judge court. The three-judge court extended the deadline and heard the case. The court ruled against the plaintiffs, finding the population deviations to be within constitutional limits, and issued a 46-page opinion on the matter two weeks later. Topics: Malapportionment; section 5 preclearance; three-judge court.
Redistricting an Incumbent Out of His District (PDF) Jenkins v. Ray (Clay D. Land, M.D. Ga. 4:06-cv-43) After school board redistricting had received preclearance pursuant to section 5 of the Voting Rights Act, it was discovered that the district line ran through the school board chair’s property and his dwelling was no longer in the district he represented. Three months before a school board election, six voters filed a federal complaint challenging the preclearance. The assigned judge issued a temporary restraining order suspending the ballot qualification deadline, and a three-judge court held an evidentiary hearing at the end of the next month. The three-judge court determined that redistricting the incumbent out of his district required preclearance, so election officials allowed him to continue to represent and vote in his original district. Topics: Section 5 preclearance; three-judge court; getting on the ballot; enforcing orders; provisional ballots.
FILLING VACANCIES Validity of a Local Special Election (PDF) Powell v. Alabama (L. Scott Coogler, N.D. Ala. 2:08-cv-1345) The federal case involved a dispute about whether a county commission vacancy had been filled by gubernatorial appointment or by special election, both of which had occurred. The case included the question of whether the procedure for filling the vacancy required section 5 preclearance. As the next general election drew near, the plaintiff voluntarily dismissed the action because the governor’s appointee failed to qualify for the ballot. Topics: Section 5 preclearance; three-judge court.
GETTING ON THE BALLOT Strict Application of Campaign Filing Requirements (PDF) Somers v. All Improperly Filed Candidates (3:12-cv-1191) and Smith v. South Carolina State Election Commission (3:12-cv-1543) (Cameron McGowan Currie, D.S.C.) Many candidates were disqualified from primary ballots following a state supreme court’s strict interpretation of a candidacy filing statute. A candidate who was not disqualified filed a federal action attacking the disqualifications. The district court determined that a candidate who was not disqualified and who was not suing as a voter lacked standing for the suit. In a related case, disqualified candidates filed a federal action arguing that the state supreme court decision could not have effect without preclearance pursuant to section 5 of the Voting Rights Act. A three-judge court determined that the state court’s interpretation of the statute comported with the statute’s plain meaning, so it could not be a change requiring preclearance. Topics: Getting on the ballot; section 5 preclearance; three-judge court; recusal; case assignment; intervention; laches.
Challenge to a Local Recall Election (PDF) McBride v. City of Jasper (Zack Hawthorn, E.D. Tex. 1:11-cv-443) City councilmembers sued to enjoin a recall election on the grounds that the recall effort was motivated by race and the city improperly allowed voters in multiple council districts to sign a recall petition although only voters in a councilmember’s district could vote in the recall election. The parties consented to a magistrate judge’s presiding over preliminary injunction proceedings. The injunction was denied. Topics: Section 2 discrimination; enjoining elections; enforcing orders; intervention; case assignment.
Correcting a Defective Candidacy Petition (PDF) Varner v. Husted (Algenon L. Marbley, S.D. Ohio 2:11-cv-748) A candidate filed a federal complaint claiming that her candidacy petition was wrongfully rejected because she had withdrawn a defective petition. Similar cases were pending before Ohio’s state court, so the district judge set alternate dates for a preliminary injunction hearing, depending upon how promptly the state court ruled. As it turned out, the state court’s ruling was favorable to the federal plaintiff, who ultimately won her election. Topics: Getting on the ballot; matters for state courts.
Valid Recall Signatures (PDF) Davenport v. County of Genesee (Arthur J. Tarnow, E.D. Mich. 2:10-cv-13503) When it was determined that a petition to recall the mayor of Flint, Michigan, did not have enough valid signatures to qualify for a recall election, the recall campaign filed a an action in state court challenging how signatures were invalidated. The county removed the action to federal court, which denied a preliminary injunction 15 days after the case was removed. Topics: Getting on the ballot; case assignment.
Fraudulently Withdrawing from a Ballot (PDF) New York State Republican Committee v. New York State Board of Elections (Richard J. Arcara, W.D.N.Y. 1:08-cv-810) In a congressional election in New York, the Republican Party alleged that the Working Families Party’s primary winner falsely claimed to be a resident of the District of Columbia so that the Democratic Party nominee could be named also a replacement Working Families Party nominee. The complaint was filed on the Friday before the election, and the court heard arguments that day by telephone. The district judge granted the Republican Party an injunction at 10:17 p.m., and the court of appeals affirmed on Monday. Topics: Getting on the ballot; party procedures; primary election.
Providing Election Data Only to Major Parties (PDF) Green Party of Michigan v. Land (Nancy G. Edmunds, E.D. Mich. 2:08-cv-10149) Four days before a January 15 presidential primary, minor parties filed a federal complaint challenging a statute specifying that party-preference data would be given only to the major parties. Approximately one month later, after the secretary of state answered the complaint, the plaintiffs moved for a temporary restraining order. The district court held a status conference 12 days later and heard the motion two days after that. On the following day, the district court temporarily enjoined the state from providing anyone with the party-preference data. On March 26, the district court declared the provision of party-preference data only to major parties to be a violation of equal protection. Topics: Equal protection; primary election; laches.
Party Loyalty Oath (PDF) Kucinich v. Texas Democratic Party (Lee Yeakel, W.D. Tex. 1:08-cv-7) Two months in advance of Texas’s 2008 Democratic presidential primary election, a candidate filed a federal constitutional challenge to the state party’s loyalty oath for presidential candidates. The district court conducted a proceeding on the day the case was filed. The judge and parties agreed to a bench trial nine days later. The court ruled against the candidate at the conclusion of the trial and issued an opinion six days later. The candidate withdrew the action while it was on appeal, because he had suspended his presidential bid. Topics: Getting on the ballot; party procedures. Ballot Petition Signatures (PDF) Douglas v. Niagara County Board of Elections (Richard J. Arcara, W.D.N.Y. 1:07-cv-609) On the day before a primary election, a complaint alleged that the plaintiff was wrongfully denied a place on the ballot. After the election, the judge concluded that the plaintiff was not entitled to relief. Topics: Getting on the ballot; primary election.
Validity of Ballot Application Signatures (PDF) Stockman v. Williams (Lee Yeakel and Sam Sparks, W.D. Tex. 1:06-cv-742) On September 19, 2006, an independent candidate for Congress filed a federal action to get his name on the ballot. The assigned judge was away that week, so another judge presided over a temporary restraining order hearing. Because absentee ballots would be issued in a few days’ time, and because the plaintiff did not name all necessary defendants, immediate relief was denied. The originally assigned judge determined the following week that the case was filed too late to obtain relief. Topics: Getting on the ballot; laches; case assignment. Idiosyncratic Preferences for Name on Ballot (PDF) NaPier v. Baldacci (D. Brock Hornby, D. Me. 2:06-cv-151) A minor gubernatorial candidate filed a pro se complaint two months before the 2006 general election because the state was not acceding to his orthographic preferences for his name, including the printing “Phillip” with the letters “I” represented as just dots with eyebrows and the double “l” represented with a smile under it. The court determined that the case was a matter for state court. Topics: Pro se party; matters for state court.
Excluding an Office from Absentee Ballots (PDF) Price v. Albany County Board of Elections (Gary L. Sharpe, N.D.N.Y. 1:06-cv-1083) The complaint alleged that New York’s excluding county party committee positions from absentee ballots in a primary election, to be held in four days, violated the First Amendment. The judge issued as limited a temporary restraining order as possible: he ordered absentee ballots prepared for the party positions, but he ordered them segregated so that a determination of whether to count them could be made after the election. Topics: Absentee ballots; party procedures; ballot segregation; primary election.
Challenge to Removal from Ballot (PDF) Singleton v. Alabama Democratic Party (Mark E. Fuller, M.D. Ala. 2:04-cv-1027) A candidate filed a federal action because a state court had removed her name from the ballot. The federal court denied her relief because she had not filed the action until after absentee voting had begun and because under the Rooker-Feldman doctrine only the Supreme Court has appellate jurisdiction over state court proceedings. Topics: Getting on the ballot; laches; matters for state courts; section 5 preclearance; three-judge court; enjoining elections; enjoining certification.
Ralph Nader Off Ohio’s Ballot in 2004 (PDF) Blankenship v. Blackwell (Edmund A. Sargus, Jr., S.D. Ohio 2:04-cv-965) and Nader v. Blackwell (George C. Smith, S.D. Ohio 2:04-cv-1052) Because Ralph Nader failed to qualify for the 2004 presidential ballot in Ohio, his supporters filed a federal complaint challenging the constitutionality of a requirement that ballot petition circulators be state residents. Because of unclean hands—petition circulators had falsely claimed to be state residents—a district judge denied the plaintiffs immediate relief. On election day, the Nader campaign challenged Ohio’s requirement that write-in candidates file a declaration of intent 50 days before the election. The court of appeals determined that the secretary of state had qualified immunity. Topics: Getting on the ballot; write-in candidate; laches; intervention; case assignment.
Challenging the Invalidation of Ballot-Access Signatures (PDF) Van Auken v. Blackwell (Gregory L. Frost, S.D. Ohio 2:04-cv-891) In 2004, the Socialist Equality Party failed to qualify a presidential candidate in Ohio for the general election and sought emergency relief in federal court. The district court denied immediate relief because the party had not shown that Ohio’s secretary of state had failed to provide a legally required review of their case or that they could not obtain mandamus relief from Ohio’s state courts of merited. Topics: Getting on the ballot; matters for state courts.
Serving in the Army Reserves While Running for Office (PDF) Neel v. Pippy (Arthur J. Schwab, W.D. Pa. 2:03-cv-302) Eight days before a special election to fill a vacancy in Pennsylvania’s senate, three voters filed a federal complaint to block the election of a candidate who was a reserve officer recently called to active duty, claiming that the candidacy violated the Military Code. The district court ordered immediate briefing and held a hearing three days later, after which the court concluded that the Military Code did not afford the plaintiffs a private right of action for their case. The military granted the candidate a waiver, and he won. Topics: Getting on the ballot; intervention.
BALLOT MEASURES Public Disclosure of Referendum Petition Signatures (PDF) Doe v. Reed (Benjamin H. Settle, W.D. Wash. 3:09-cv-5456) Persons who signed a referendum petition filed a federal complaint seeking to enjoin the state’s releasing the identities of the over 138,500 signatories. The district court held a proceeding that afternoon and a hearing on the following day, which the state defendants chose not to attend. The court issued a temporary restraining order and held a preliminary injunction hearing a little more than a month later. The district court granted a preliminary injunction, but the court of appeals reversed. At the beginning of its term, the Supreme Court stayed the reversal, reinstating the injunction, but the Supreme Court affirmed the court of appeals at the end of the Court’s term. On remand, the district court denied the plaintiffs’ as-applied challenge and lifted the injunction. After the petitions were released on the Internet, the court of appeals determined that the case was moot. Topics: Ballot measure; intervention.
Constitutionality of a Ballot Measure (PDF) Ajax Gaming Ventures, LLC v. Brown (William E. Smith, D.R.I. 1:06-cv-336) The suit challenged the constitutionality of a ballot measure in an upcoming election. The court denied immediate relief, because constitutionality could be assessed after the election. The measure did not pass. Topics: Ballot measure; intervention.
Preclearance of an Election to Create a Hospital District (PDF) Hernandez v. Kirkham (Marcia A. Crone, E.D. Tex. 1:05-cv-134) Eleven days after an election to create a hospital district, five residents filed a federal complaint charging that the election and earlier precinct changes had not received preclearance pursuant to section 5 of the Voting Rights Act. At a district court hearing two days later, the parties agreed to a temporary restraining order that enjoined the conveyance of any property to the hospital district until the end of April. The Justice Department granted preclearance in April, so the district court action was dismissed. Topics: Section 5 preclearance; three-judge court.
Initiative to Reallocate Electoral Votes (PDF) Napolitano v. Davidson (Lewis T. Babcock, D. Colo. 1:04-cv-2114) A pro se plaintiff challenged a ballot initiative that would change the allocation of the state’s Electoral College votes in the same election, alleging uncertainty in the strategic value of presidential votes. After expedited hearing, the court dismissed the complaint as too speculative. Topics: Ballot measure; pro se party; intervention; recusal.
CAMPAIGN ACTIVITIES Constitutionality of Proscriptions on False Statements About Candidates (PDF) Susan B. Anthony List v. Driehaus (1:10-cv-720) and Coalition Opposed to Additional Spending & Taxes v. Ohio Elections Commission (1:10-cv-754) (Timothy S. Black and Susan J. Dlott, S.D. Ohio) Two actions filed in late October 2010 challenged the constitutionality of a Ohio statute proscribing false statements about candidates for office. The judge in the first case stayed the federal case pending state executive and judicial proceedings, pursuant to Younger v. Harris. The judge in the second case also denied immediate injunctive relief, and the two cases were consolidated for further proceedings after the election. Dismissals for lack of live controversies are on appeal, and trial is pending in a candidate’s defamation counterclaim. Topics: Matters for state courts; recusal; case assignment; interlocutory appeal.
Constitutionality of a Campaign Expenditure Reporting Statute (PDF) National Organization for Marriage v. McKee (D. Brock Hornby and John H. Rich III, D. Me. 1:09-cv-538) Advocacy organizations filed a federal challenge to campaign finance reporting regulations two weeks before an election including a ballot initiative. Able to rule before the election, the court denied the plaintiffs injunctive relief. After the election, the court of appeals affirmed the legal holding. Topics: Campaign finance; ballot measure.
Campaign Finance Regulations for Candidates Opposing Self-Funded Candidates (PDF) McComish v. Brewer (Roslyn O. Silver, D. Ariz. 2:08-cv-1550) On August 21, 2008, candidates for office in Arizona filed a federal complaint challenging a campaign finance provision that provided a benefit to candidates whose challengers exceeded statutory thresholds of expenditures. The suit was filed eight weeks after a Supreme Court decision invalidating a similar law. Reluctant to disrupt the finances of an ongoing campaign season, the district court denied immediate injunctive relief. After full litigation, the district court struck down the campaign finance scheme and the Supreme Court ultimately affirmed the district court. Topics: Campaign finance; laches; attorney fees.
Issue Ads During Election Season (PDF) Christian Civic League of Maine, Inc. v. FEC (Louis F. Oberdorfer, D.D.C. 1:06-cv-614) An issue-advocacy organization filed a declaratory action in the U.S. District Court for the District of the District of Columbia to challenge a proscription on issue advertising that mentions a candidate close to an election. A three-judge court denied a preliminary injunction against enforcement of the proscription. Topics: Corporate electioneering; three-judge court; intervention; recusal; interlocutory appeal.
Get-Out-The-Vote Canvassing (PDF) Service Employees Int’l Union v. Municipality of Mt. Lebanon (Arthur J. Schwab, W.D. Pa. 2:04-cv-1651) The district court was asked to resolve the constitutionality of county requirements for persons who wanted to go door-to-door over the weekend before a general election to encourage voting. In the short term, the counties relaxed their restrictions; in the long term, they revised them. Topics: Door-to-door canvassing; recusal.
ELECTION DATES Election Day on the Last Day of Passover (PDF) Herzfeld v. District of Columbia Board of Elections and Ethics (Emmet G. Sullivan, D.D.C. 1:11-cv-721) A rabbi filed a federal complaint when he realized that a special election to fill municipal vacancies was going to be held on the last day of Passover, a day when he could not vote until after the polls would be closed. The district judge scolded the board of elections for not seeking a court order allowing them to adjust the statutorily-mandated special election date, but the judge denied the plaintiff immediate injunctive relief, because the rabbi had early and absentee voting alternatives. The statute was subsequently amended by an act of Congress. Topics: Polling hours; intervention; absentee ballots.
Preclearance for a Special Election (PDF) Buell v. Monterey County (Jeremy Fogel, N.D. Cal. 5:10-cv-1952) A federal complaint alleged that polling place consolidations and the date of the election had not been precleared for a special election to fill a vacancy in the state senate, as required by section 5 of the Voting Rights Act for a county overlapping with the senate district. By the time a three-judge court met to hear the case, the special election had been precleared. Topics: Section 5 preclearance; three-judge court; enjoining elections; intervention.
Rushed Election to Fill a Vacancy (PDF) Butler v. City of Columbia (Cameron McGowan Currie, D.S.C. 3:10-cv-794) When a city council member resigned, the city had to decide whether to follow the normal schedule for a replacement election or to add the replacement election to an earlier city election already scheduled. The state’s supreme court determined that the replacement election should be on the earlier date. A retired law professor filed a pro se complaint claiming that the early election had not been precleared pursuant to section 5 of the Voting Rights Act. A three-judge court enjoined the early election because it had not been precleared. Topics: Section 5 preclearance; three-judge court; enjoining elections; pro se party; intervention.
Consequences of an Early Primary (PDF) Hayes v. Michigan Democratic Party (Robert J. Jonker, W.D. Mich. 1:07-cv-1237) A party member filed a federal complaint challenging the state Democratic Party’s early primary election in violation of national party rules, claiming injury because her preferred candidate decided not to participate in the primary. It was over two weeks before the plaintiff asked for expedited consideration. Less than two weeks later, the court denied immediate relief so as not to interfere with an intraparty dispute. Topics: Party procedures; enjoining elections.
Punishment for Early Florida Primaries (PDF) Nelson v. Dean (4:07-cv-427) and Ausman v. Browning (4:07-cv-519) (Robert L. Hinkle, N.D. Fla.) On November 20, 2007, Florida voters filed a state court complaint challenging the state’s moving up the 2008 presidential primaries in violation of party rules. The case was removed to federal court on December 7, and a preliminary injunction motion was filed a week later. On January 3, 2008, the district court denied the plaintiffs preliminary injunctive relief because the consequences of the early primaries were still uncertain. Topics: Primary election; party procedures; removal; case assignment.
Holding an Election Before University Students Can Register (PDF) May v. City of Montgomery (Myron H. Thompson, M.D. Ala. 2:07-cv-738) The federal action challenged the moving up of a local election, because it meant that students at a predominantly black university would not be in town in time to vote. Soon after the action was filed, the Justice Department precleared the change. The federal court declined jurisdiction over state claims. Topics: Section 2 discrimination; section 5 preclearance; three-judge court; matters for state courts; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).
Preclearance for a Soil and Water Conservation District (PDF) Evans v. Bennett (Beverly B. Martin, N.D. Ga. 1:04-cv-2641) Five days in advance of a scheduled election for soil and water conservation district supervisors, two voters filed a federal complaint claiming that matters relating to the election had not received preclearance pursuant to section 5 of the Voting Rights Act. The election was canceled and preclearance was obtained three months later. Topics: Section 5 preclearance; enjoining elections.
Preclearance of a Gubernatorial Recall Election (PDF) Salazar v. Monterey County (5:03-cv-3584) and Oliverez v. California (5:03-cv-3658) (Jeremy Fogel, N.D. Cal.); Hernandez v. Merced County (1:03-cv-6147) and Gallegos v. California (1:03-cv-6157) (Oliver W. Wanger, E.D. Cal.) When the state set a special election on whether to recall the governor, a ballot initiative was moved from a primary election to the earlier special election. Separate federal cases alleged that the recall and the early ballot initiative could not be held because they had not been precleared pursuant to section 5 of the Voting Rights Act as required for four of California’s counties. The state obtained preclearance just as a three-judge court met to review the case. The judge presiding over two similar cases in another of the state’s districts allowed the court presiding over the cases filed earlier to decide the issues. Topics: Section 5 preclearance; three-judge court; enjoining elections; news media; ballot measure.
ABSENTEE AND EARLY VOTING Extension for Overseas Voters in Wisconsin (PDF) Romney for President, Inc. v. Wisconsin (William M. Conley, W.D. Wis. 3:12-cv-745) A presidential campaign sought an extension for absentee ballots because they were not mailed on time as required by the Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA). The matter settled. Topics: Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA); absentee ballots.
Prompt Delivery of Absentee Ballots by Guam (PDF) United States v. Guam (Frances M. Tydingco-Gatewood, D. Guam 1:10-cv-25) On October 6, 2010, the Justice Department filed a federal action to enforce Guam’s compliance with the Overseas Citizens Absentee Voting Act (UOCAVA). Guam filed a notice that it would not oppose the action, and after an October 13 hearing the district court ordered compliance. For elections in 2012, the district court issued a stipulated order of compliance, because had not yet achieved compliance legislatively. Topics: Absentee ballots; Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).
County Differences in Providing Absentee Ballots (PDF) Vanzant v. Brunner (Susan J. Dlott, S.D. Ohio 1:10-cv-596) A federal complaint filed two months before the 2010 general election alleged an equal protection violation because some counties were more generous than others in facilitating absentee voting. The district court denied relief. Topics: Absentee ballots; equal protection.
Post-Election Verification of a Disabled Voter’s Absentee Ballot (PDF) Ray v. Franklin County Board of Elections (George C. Smith, S.D. Ohio 2:08-cv-1086) A voter bedridden and homebound because of diabetes and panic attacks filed a federal action against the county board of elections, claiming that the board had improperly required her to visit the board by the previous day to protect the validity of her absentee ballot. The district court enjoined the board to make reasonable accommodations to the plaintiff’s disabilities and awarded the plaintiff $16,139.50 in attorney fees and costs. Topics: Absentee ballots; attorney fees; case assignment.
Military Absentee Ballots 2008 (PDF) McCain-Palin 2008, Inc. v. Cunningham (Richard L. Williams, E.D. Va. 3:08-cv-709) On the day before the 2008 presidential election, one party’s campaign filed a federal lawsuit alleging that Virginia had not sent absentee ballots to military personnel overseas in time for them to return in time to be counted. The district court ordered an extension of time for accepting absentee ballots from overseas so long as they were cast before the polls closed. Topics: Uniformed and Overseas Citizens Absentee Voting Act of 1986 (UOCAVA); military ballots; absentee ballots; intervention.
Early Voting Locations (PDF) Curley v. Lake County Board of Elections and Registration (Joseph S. Van Bokkelen, N.D. Ind. 2:08-cv-287) The central question in this case was whether a majority vote or a unanimous vote by members of an election board was required to open satellite locations for early voting. A state court judge issued an injunction favoring the unanimity requirement shortly after the case was removed to federal court. After the parties agreed to maintain the status quo until the federal judge could rule, some of their attorneys filed a similar action in another state court and got a conflicting state court injunction. Employing the All Writs Act, the federal judge vacated the second injunction, but he later determined that his case was not removable. Topics: Early voting; matters for state courts; removal; enforcing orders; intervention.
Same-Day Registration and Absentee Voting (PDF) Project Vote v. Madison County Board of Elections (James S. Gwin, N.D. Ohio 1:08-cv-2266) and Ohio Republican Party v. Brunner (George C. Smith, S.D. Ohio 2:08-cv-913) Absentee voting began in Ohio 35 days before the 2008 general election; state election law required voters to be registered at least 30 days before the election. Could new voters both register and vote on the same day if they did so after absentee voting began and before the deadline for new voter registrations? On a Wednesday, three public interest organizations and two voters filed a federal complaint in the Northern District against a county in the Southern District that interpreted the law as requiring registration 30 days before voting instead of 30 days before the election. The district judge set the matter for hearing on Monday mid-day. On Friday, the Republican Party and a voter filed a federal action in the Southern District to force Ohio’s secretary of state to require voters to be registered for 30 days before voting. Over the weekend, defendants in each case moved to transfer their case to the other district. Both judges denied these motions, and both judges moved up their Monday hearings. On Monday, the Northern District judge ruled that the statute required registration 30 days before the election, not 30 days before voting. That same day, Ohio’s supreme court reached the same result. Later that day, the Southern District judge deferred to the state court on the issue. Other issues in the Southern District case received expedited review by another district judge, the court of appeals, and the Supreme Court. Topics: Absentee ballots; case assignment; Help America Vote Act (HAVA); registration procedures.
Pro Se Suit to Nullify All Absentee Ballots (PDF) Freeman v. McKnight (Gary L. Sharpe, N.D.N.Y. 1:07-cv-1123) A candidate who earned more voting-booth votes than his opponent, but who trailed after absentee ballots were counted, filed a pro se action to nullify absentee ballots because their mailing envelopes had been discarded so timely mailing could not be verified. The judge determined that the plaintiff had not provided the defendants with proper notice or shown entitlement to immediate injunctive relief. Topics: Absentee ballots; pro se party; enjoining certification.
Late Absentee Ballots in Florida (PDF) Friedman v. Snipes (Patricia A. Seitz and Alan S. Gold, S.D. Fla. 1:04-cv-22787) On the day of the 2004 general election, three voters filed a federal complaint claiming that although they requested absentee ballots on time they did not receive them in time to cast them without a risk that the ballots would not be counted. The district judge assigned to the case set a status hearing for the following morning, but on the day of the hearing she recused herself at the request of the state’s secretary of state because of her husband’s legal work for one of the major political parties. The judge to whom the case was reassigned reset the hearing for later that day. The second judge granted a temporary restraining order segregating the ballots in question, but he ultimately denied the plaintiffs a preliminary injunction after an evidentiary hearing.Topics: Absentee ballots; ballot segregation; recusal; case assignment.
Casting a Provisional Ballot Because the Absentee Ballot Never Arrived (PDF) White v. Blackwell (David A. Katz, N.D. Ohio 3:04-cv-7689) On the morning of a general election, a voter who never received the absentee ballot she applied for filed an action to compel the state to accept her provisional ballot cast on election day. The court determined that the Help America Vote Acted compelled relief for the plaintiff, and the judge ordered that all counties in the state accept provisional ballots from voters who did not receive absentee ballots that they applied for. A year later, for a special election, the judge was called upon to provide the same relief. The judge determined that the plaintiff was entitled to attorney fees, and the parties settled on an amount of $225,000. Topics: Absentee ballots; provisional ballots; Help America Vote Act (HAVA); 42 U.S.C. § 1983; enforcing orders; attorney fees.
Public List of Absentee Voters (PDF) Meehan v. Philadelphia County Board of Commissioners (William H. Yohn, Jr., E.D. Pa. 2:04-cv-5123) Relying on a 1994 opinion by the U.S. Court of Appeals for the Third Circuit, Republican committees filed a federal action on election day 2004, complaining that the committees had wrongfully been denied a list of persons who had received absentee ballots so that the committees could initiate challenges to absentee votes. After proceedings late on election day and on the following morning, the district judge signed consent decrees delaying by a few days the counting of absentee ballots. At the end of the week, the plaintiffs voluntarily dismissed their action. Topics: Absentee ballots; recusal; case assignment.
Early Voting Locations in Duval County (PDF) Jacksonville Coalition for Voter Protection v. Hood (Harvey E. Schlesinger, M.D. Fla. 3:04-cv-1123) On a Tuesday, the day after early voting started, three voters’ rights organizations and two voters filed a federal complaint seeking to compel the county to provide more early voting locations. While the suit was pending, the county agreed to provide a few more sites, but not as many as the plaintiffs sought. The court heard the matter on Friday and issued its opinion on the following Monday. The court denied the plaintiffs immediate relief because they had not shown that the number and locations of early voting sites discriminated against African-American voters. Topic: Early voting.
Early Voting Locations in Volusia County (PDF) NAACP v. Lowe (G. Kendall Sharp, M.D. Fla. 6:04-cv-1469) On October 7, 2004, African-American voters filed a federal action complaining that the county’s only early voting location was not convenient for African-American voters on the county’s east side. On the following day, the plaintiffs filed a motion for a preliminary injunction and expedited discovery, and the district judge set a hearing on the motion for 11 days later. Before the hearing occurred, however, the county agreed to open additional early voting locations, so the parties stipulated to a dismissal of the action. The judge ruled that no more than one location was legally required, but the opening of additional sites mooted the case. Topic: Early voting.
Military Absentee Ballots 2004 (PDF) United States v. Pennsylvania (1:04-cv-830) and Reitz v. Rendell (1:04-cv-2360) (Yvette Kane, M.D. Pa.) The federal government sued to require Pennsylvania to send out absentee ballots to military personnel overseas in time for them to come back and be counted for a primary election. The judge ordered an extension of the ballots' due date. The judge also ordered an extension for military absentee ballots in the general election on a complaint by parents of two soldiers. Topics: Absentee ballots; military ballots.
Absentee Ballots Delivered by Third Parties (PDF) Pierce v. Allegheny County Board of Elections (Joy Flowers Conti, W.D. Pa. 2:03-cv-1677) On the Friday before the November 2003 election, two candidates filed a federal action to enjoin the counting of absentee ballots that were delivered to the board of elections by persons other than the voters. The district judge cleared her calendar and held a hearing that afternoon, after which she ordered the ballots in question segregated. The judge conducted a day-long hearing on Monday; on Tuesday, she ruled that the ballots should remain segregated and deemed challenged under state law. State officials and state courts eventually determined that some of the ballots in question were valid and some were not. Topics: Absentee ballots; ballot segregation; matters for state courts.
VOTER IDENTIFICATION Ohio’s Voter-Identification Law (PDF) Northeast Ohio Coalition for the Homeless v. Brunner (Gregory L. Frost and Algenon L. Marbley, S.D. Ohio 2:06-cv-896) Public interest organizations challenged Ohio’s 2006 voter-identification laws. At the hearing on a temporary restraining order, the parties informed the judge that the case was related to a case already pending before a different judge, to whom the second case was then reassigned. The second judge found the identification laws probably unconstitutional, but the court of appeals stayed his temporary restraining order. The court of appeals also reversed the judge’s denial of the state’s intervention as a party in addition to the state’s secretary of state. The case is now governed by a consent decree. Topics: Voter identification; case assignment; intervention.
Extra Proof of Citizenship for Naturalized Citizens (PDF) Boustani v. Blackwell (Christopher A. Boyko, N.D. Ohio 1:06-cv-2065) The August 2006 suit challenged a new law that required naturalized citizens whose citizenship is challenged at the polls to present their naturalization certificates before they can vote. On the day before an injunction hearing, the secretary of state conceded that the law was constitutionally questionable but that there was not enough time for the legislature to cure the law before the upcoming election. The judge issued an injunction forbidding naturalized citizens from being required to provide additional documentation or information before voting. The plaintiffs recovered $80,000 in attorney fees. Topics: Citizenship; registration challenges; voter identification; attorney fees.
Voter Photo Identification (PDF) Common Cause/Georgia v. Billups (Harold L. Murphy, N.D. Ga. 4:05-cv-201) On September 19, 2005, Georgia voters filed a federal complaint challenging the constitutionality of Georgia’s photo voter identification law. The district judge signed a proposed order to show cause why a preliminary injunction should not be granted and scheduled a hearing for October 12. On October 18, the court granted a preliminary injunction. Georgia enacted a revised photo identification law in 2006; in 2007, the court determined that the revised law was constitutional. The court of appeals affirmed in 2009. Topics: Voter identification; intervention; news media; section 5 preclearance.
American Indian Voter Identification (PDF) ACLU of Minnesota v. Kiffmeyer (James M. Rosenbaum, D. Minn. 0:04-cv-4653) The court determined that recognizing tribal photo identification cards as proof of both identity and address only if the voter resided on a reservation violated equal protection. While the case was pending, the legislature brought the state’s law into compliance. Topics: Voter identification; Help America Vote Act (HAVA); equal protection.
POLL HOURS Keeping Polls Open Longer Because of Weather (PDF) Obama for America v. Cuyahoga County Board of Elections (Solomon Oliver, Jr., N.D. Ohio 1:08-cv-562) On the evening of a presidential primary, bad weather was interfering with both ballots and voters getting to the polls. One of the candidates filed a late motion to keep the polls open. Because of technical difficulties, the clerk’s office was unable to reach the assigned judge, so the day’s duty judge held a telephonic proceeding on the temporary restraining order motion. He decided not to provide relief with respect to polling places in the state’s other district, but he did order some polls in his district to remain open late. He ordered ballots cast by voters arriving after the regular closing time to be segregated. The news media reported that polls had already closed by the time they got the judge’s order and did not reopen. Topics: Polling hours; case assignment; ballot segregation.
Keeping Polls Open Late Because They Opened Late (PDF) Ohio Democratic Party v. Cuyahoga County Board of Elections (Dan Aaron Polster, N.D. Ohio 1:06-cv-2692) Because a county was using new voting equipment, several polls opened late, so one of the parties filed a federal action to delay poll closings as well. The judge assigned the case could not be reached so the motion for a temporary restraining order was heard by the day’s duty judge. The judge determined that the problems were localized, so he ordered a late closing for 16 precincts. Topics: Polling hours; voting technology; case assignment; intervention; news media.
Long Lines at the Polls (PDF) Ohio Democratic Party v. Blackwell (Algenon L. Marbley, S.D. Ohio 2:04-cv-1055) At 5:54 p.m. on election day 2004, Ohio’s Democratic Party filed a federal action to keep polls open longer in two counties, alleging that an insufficient number of voting machines was resulting in long lines, which was discouraging voters. The court ordered the polling places to offer voters alternative methods of voting. Topics: Polling hours; voting technology; provisional ballots; absentee ballots.
Keeping Polls Open Late Because of Excessive Registration Purging (PDF) Maine Democratic Party v. City of Portland (Kermit V. Lipez, D. Me. 2:00-cv-360) A large number of voters went to the polls in Portland, Maine, for the 2000 general election to discover that their voter registrations had been canceled. Poll workers referred them to city hall, where lines grew very long. On the afternoon of the election, the Democratic Party sought a temporary restraining order to keep the polls open an extra two hours. All district judges were out of town, so a local circuit judge heard the motion. The judge declined to keep the polls open late but ordered the polls to let voters correct registration errors at the polls and ordered all voters in line by the time the polls closed be able to vote. Topics: Registration challenges; National Voter Registration Act; polling hours.
POLLING PLACE PROCEDURES No-Bid Contract for Election Software (PDF) Fitrakis v. Husted (Gregory L. Frost, S.D. Ohio 2:12-cv-1015) On the day before a general election, a voter filed a complaint charging the secretary of state with contracting for voting software and equipment without public bidding. The judge held a teleconference on the day the case was filed and heard evidence on election morning. The state offered evidence that the purpose of the software was not the tabulation of votes but the reporting of tabulations by the counties to the secretary’s office. The judge found the plaintiff’s concerns too speculative for immediate relief. Topic: Voting technology.
Preventing Long Lines (PDF) Florida Democratic Party v. Detzner (Joan A. Lenard and Ursula Ungaro, S.D. Fla. 1:12-cv-24000) Late on the Saturday before the 2012 general election, a party filed a complaint seeking relief from anticipated long lines at the polls in three counties because of long lines during early voting. The assigned judge was out of the district when the case was filed, so another judge, selected at random, handled the emergency motion. In response to the lawsuit, the counties created additional opportunities for in-person absentee voting. Topics: Absentee ballots; early voting; case assignment.
Write-In Candidates Closing a Primary Election (PDF) Mazzilli v. Townsley (William J. Zloch, S.D. Fla. 1:12-cv-22432) A Florida statute provides that a primary election is open to all voters if only one party is going to field a candidate for the general election. A ruling by Florida’s secretary of state specifies that if anyone registers as a write-in candidate for the general election, then the primary remains closed to voters who are not party members. Several weeks in advance of a primary election in which only one party had candidates, two voters challenged the secretary’s ruling. Less than one month later, the court denied immediate injunctive relief because the plaintiffs had failed to include the secretary of state as a defendant. Twelve days later, reviewing an amended complaint, the court held the secretary’s ruling a reasonable interpretation of an unambiguous statute serving legitimate interests. Topics: Primary election; write-in candidate.
School Bond Opposition Dilution (PDF) Duke v. Lawson (Charles Everingham IV, E.D. Tex. 2:11-cv-246) Voters opposing a school bond filed a federal complaint to enjoin the opening of school facilities for early voting. A district court magistrate judge denied the plaintiffs immediate relief, so the plaintiffs voluntarily dismissed the case. Topic: Early voting.
Write-In Lists (PDF) Rudolph v. Fenumiai (Ralph R. Beistline, D. Alaska 3:10-cv-243) Voters challenged Alaska’s providing polling places with lists of write-in candidates so that voters could refresh their recollection about who was running and how to spell their names. While a motion for a temporary restraining order was pending, the Justice Department precleared the procedure, so the motion was denied as moot. Topics: Section 5 preclearance; write-in candidate.
Fusion Voting (PDF) Conservative Party of New York State v. New York State Board of Elections (Jed S. Rakoff, S.D.N.Y. 1:10-cv-6923) Minor parties filed in a state that allows candidates to appear as nominees of multiple parties filed an action against a rule established for new voting technology that would give voting preferences in some cases to the major parties. The judge denied immediate relief because the action was brought too close to the election, but the case ultimately resulted in a consent judgment and an award of $199,000 in attorney fees. Topics: Voting technology; laches; attorney fees.
Adequate Polling Place Resources (PDF) Virginia State Conference of NAACP Branches v. Kaine (Richard L. Williams and Dennis W. Dohnal, E.D. Va. 3:08-cv-692) Eight days before the 2008 general election, voters filed a federal complaint charging Virginia with unequal allocation of polling place resources. A magistrate judge held a settlement conference on the case’s third day, after which the plaintiffs decided to withdraw their motion for a preliminary injunction. Two days later, the plaintiffs again sought a preliminary injunction, which the district judge denied on the day before the election. Instead, the judge ordered the posting of notices about curbside voting and that anyone in line at closing time would be able to vote. Topics: Equal protection; polling hours; intervention; case assignment. Barack Obama’s Citizenship (PDF) Berg v. Obama (R. Barclay Surrick, E.D. Pa. 2:08-cv-4083) A few days before the 2008 Democratic National Convention an attorney filed a pro se complaint seeking to have Barack Obama declared ineligible to be President, alleging that he is not a natural born citizen. The judge denied immediate relief at an ex parte proceeding where the plaintiff could not confirm service of the complaint on the defendants. Over the next eight weeks, the court received three pro se motions to intervene: one to support the plaintiff, one to challenge John McCain’s citizenship, and one to know the facts of the case. The judge dismissed the action for lack of standing, and the court of appeals affirmed. Topics: Pro se party; getting on the ballot; intervention.
Preclearance of Nominating Procedures (PDF) LULAC of Texas v. Texas (Fred Biery, W.D. Tex. 5:08-cv-389) Five days after the 2008 presidential primary elections in Texas, and at the beginning of further delegate selection through caucuses, Latino voters and organizations filed a federal complaint attacking how the Democratic Party picked delegates for national and local nominating conventions. The district court dismissed the action and determined that a claim that the nominating procedures had not received section 5 preclearance did not require resolution by a three-judge court, but the court of appeals disagreed. In time, the case was mooted by the Justice Department’s granting of preclearance. The court of appeals vacated an award of attorney fees. Topics: Section 5 preclearance; three-judge court; laches; party procedures; attorney fees.
Voting Without Notice of Errors (PDF) ACLU v. Brunner (Kathleen M. O’Malley, N.D. Ohio 1:08-cv-145) The January 2008 complaint challenged the selection by a county of new voting machines because the machines would not give voters notice of errors and opportunities to cure them. The district judge determined that by the time the complaint had been filed there was not time for a remedy that would not excessively disrupt the March presidential primary. Topics: Voting technology; laches.
At-Large Caucus Precincts (PDF) Chesnut v. Democratic Party of Nevada (James C. Mahan, D. Nev. 2:08-cv-46) In 2008, voters challenged Nevada’s Democratic Party’s plans for nominating caucuses in which some voters would be able to participate in at-large caucuses at times other than the scheduled time for regional caucuses. The court determined that the party had not exceeded its authority in determining its nominating procedures. Topics: Party procedures; intervention; recusal.
Replacing Mechanical Voting Machines with Electronic Voting Machines (PDF) Taylor v. Onorato (Gary L. Lancaster, W.D. Pa. 2:06-cv-481) Approximately five weeks before a primary election, voters and a public interest group filed a federal suit to enjoin replacement of mechanical voting machines with electronic voting machines, relying on the Help America Vote Act (HAVA). On the case’s second day, the plaintiffs moved for a preliminary injunction. At the end of the case’s first week, the district judge held an informal in-chambers status conference, from which news media were excluded. After a three-day evidentiary hearing beginning a week later, the district judge determined that HAVA did not afford the plaintiffs a private right of action. Topics: Voting technology; Help America Vote Act (HAVA); news media.
Voting Equipment for the Blind in Volusia County (PDF) National Federation of the Blind v. Volusia County (John Antoon II, M.D. Fla. 6:05-cv-997) Three months before a municipal election, advocates for the blind and five blind voters filed a federal complaint against a county, charging that the county would not provide voting machines accessible to blind people. The district judge heard a motion for a preliminary injunction 10 days later. Eleven days after that, the judge denied the injunction. While an interlocutory appeal was pending, the county bought new voting equipment and the plaintiffs dismissed their case voluntarily. Topics: Voting technology; interlocutory appeal.
POLLING PLACE ACTIVITIES Akron Beacon Journal Access to Polls on Election Day (PDF) Beacon Journal Publishing Co. v. Blackwell (Paul R. Matia, N.D. Ohio 5:04-cv-2178) News media sought injunctive relief on the day before the 2004 general election from restrictions on anyone other than voters, poll workers, and police officers entering a polling place. The district court denied the media relief, but the court of appeals vacated that decision and granted the media injunctive relief a few hours before the polls closed. Topic: Exit polls.
Exit Polling in Ohio (PDF) ABC v. Blackwell (Michael H. Watson, S.D. Ohio 1:04-cv-750) On the morning before the 2004 general election, news media challenged a directive by Ohio’s secretary of state that exit polling not be conducted within 100 feet of a polling place. Late at night on the day the case was filed, the judge granted the media injunctive relief against the directive. Topic: Exit polls.
Intimidating Native American Voters (PDF) Daschle v. Thune (Lawrence L. Piersol, D.S.D. 4:04-cv-4177) Late on the day before a general election, a U.S. Senator up for reelection filed a federal complaint against his challenger, claiming that the challenger’s supporters were discouraging Native American citizens from voting through a practice of intimidation. After a nighttime evidentiary hearing, the district court granted a temporary restraining order at 1:45 on the morning of the election. Topics: Party procedures; recusal.
Vote Challengers (PDF) Spencer v. Blackwell (Susan J. Dlott, S.D. Ohio 1:04-cv-738) and Summit County Democratic Central and Executive Committee v. Blackwell (John R. Adams, N.D. Ohio 5:04-cv-2165) Federal complaints were filed in both of Ohio’s districts late in the week before the 2004 general election challenging a Ohio statute that permitted political parties to appoint poll watchers to challenge persons who may be voting illegitimately. Both judges issued injunctions on Sunday, but the court of appeals stayed the injunctions on Monday. Topics: Registration challenges; intervention.
PROVISIONAL BALLOTS Provisional Ballots Cast in the Wrong Precinct Because of Poll-Worker Error (PDF) Hunter v. Hamilton County Board of Elections (Susan J. Dlott, S.D. Ohio 1:10-cv-820) In the 2010 election for Hamilton County Juvenile Court Judge, 23 votes separated the two candidates with the validity of many provisional ballots unresolved. The trailing candidate filed a federal action to expand the number of provisional ballots deemed valid when she learned that some, but not all, cast in the wrong precinct would be counted if they were cast in the wrong precinct because of poll-worker error. The district court ordered an investigation into which ballots were cast in the wrong precinct because of erroneous instructions from poll workers. A circuit judge stayed the order, but a full panel dissolved the stay one week later. Litigation continued for 18 months, and then the plaintiff joined the juvenile court bench. Topics: Provisional ballots; election errors; enjoining certification; interlocutory appeal; equal protection; matters for state courts.
Validity Requirements for Provisional Ballots (PDF) Ohio ex rel. Skaggs v. Brunner (Algenon L. Marbley, S.D. Ohio 2:08-cv-1077) Ohio’s secretary of state removed a mandamus action from Ohio’s supreme court concerning validity requirements for provisional ballots. The case was assigned to a judge who was already presiding over related cases. The judge granted summary judgment to the state, but the court of appeals ordered the matter referred to the state court, which held the secretary of state’s validity requirements to be too lax. The court of appeals affirmed the district judge’s denial of attorney fees. Topics: Matters for state courts; provisional ballots; removal; attorney fees.
Provisional Ballots for a Judicial Election in Texas (PDF) Texas Democratic Party v. Bettencourt (Gray H. Miller, S.D. Tex. 4:08-cv-3332) Six days after the 2008 general election, the Democratic candidate for a state judgeship was a few hundred votes behind his opponent. The Democratic candidate filed a federal complaint seeking prompt resolution of several thousand provisional and absentee ballots. Two days later, the district court denied the plaintiff immediate relief. An amended complaint more generally challenging county procedures for voter registration and provisional ballots resulted in a 2012 settlement. Topics: Provisional ballots; absentee ballots.
Provisional Ballot Procedures in Ohio (PDF) Schering v. Blackwell (Michael H. Watson, S.D. Ohio 1:04-cv-755) On election day 2004, a voter filed a federal action challenging a directive by Ohio’s secretary of state on the handling of provisional ballots. After an informal status conference, the plaintiff decided not to pursue immediate relief. Topic: Provisional ballots.
Casting Provisional Ballots in the Wrong Precinct in Florida (PDF) Florida Democratic Party v. Hood (Robert L. Hinkle, N.D. Fla. 4:04-cv-395) Florida’s Democratic Party sought to enforce the Help America Vote Act (HAVA) by enjoining Florida from rejecting provisional ballots cast in the wrong precinct in the 2004 general election. The case was filed on September 29, and the court issued a preliminary injunction on October 21. The court ruled that HAVA does not require the counting of provisional ballots cast in the wrong precinct, but HAVA does require that the provisional ballots be provisionally accepted. Topics: Help America Vote Act (HAVA); provisional ballots.
Casting Provisional Ballots in the Wrong Precinct in Michigan (PDF) Bay County Democratic Party v. Land (1:04-cv-10257) and Michigan State Conference of NAACP Branches v. Land (1:04-cv-10267) (David M. Lawson, E.D. Mich.) Local branches of the Democratic Party filed a federal complaint to challenge a state directive that provisional ballots would only be counted if cast in the correct precinct. Three days later, three organizations filed a similar action in the same district, and the court consolidated the two cases. The district court denied a motion by voters to intervene as defendants, but the court permitted their participation as amici curiae. The court denied the Justice Department’s motion for a short delay so that it could file and amicus brief. Three weeks after the first case was filed, the court determined that provisional ballots must be counted so long as they are cast in the correct city, village, or township. One week later, the court of appeals reversed in light of a contrary holding in another case issued the same day. Topics: Provisional ballots; Help America Vote Act (HAVA); 42 U.S.C. § 1983; intervention; case assignment.
Compliance with the Help America Vote Act for Provisional Ballots (PDF) Sandusky County Democratic Party v. Blackwell (3:04-cv-7582) and League of Women Voters of Ohio v. Blackwell (3:04-cv-7622) (James G. Carr, N.D. Ohio) Five weeks in advance of the 2004 general election, Ohio’s Democratic Party challenged directives by Ohio’s secretary of state on provisional ballots as in violation of the Help America Vote Act (HAVA). The court of appeals agreed with the district court that the state was out of compliance, but the court of appeals agreed with the secretary that provisional ballots should be cast in the correct precincts. Topics: Help America Vote Act (HAVA); provisional ballots; voter identification; 42 U.S.C. § 1983; intervention; enforcing orders; presiding remotely; attorney fees.
Casting Provisional Ballots in the Right Place (PDF) Hawkins v. Blunt (Scott O. Wright and Richard E. Dorr, W.D. Mo. 2:04-cv-4177) The case concerns whether voters can cast provisional ballots at polling places to which they are not assigned. Claims were mooted by the state’s agreeing to alter its procedures for counting provisional ballots. Topics: Help America Vote Act (HAVA); provisional ballots; intervention; case assignment.
NEWS MEDIA AT POLLING PLACES Exit Polling in Nevada (PDF) ABC, Inc. v. Heller (Philip M. Pro, D. Nev. 2:06-cv-1268) Four weeks before the 2006 general election, news media sought federal court enforcement of their constitutional right to conduct exit polls within 100 feet of polling places. The court granted the media the relief they sought. Topics: Exit polls; news media; attorney fees.
VOTING IRREGULARITIES Write-In Spellings (PDF) Miller v. Campbell (Ralph R. Beistline, D. Alaska 3:10-cv-252) A candidate for Senator sued to enjoin counting write-in ballots for the incumbent unless her name was spelled correctly. The federal judge determined that this was a matter for the state courts if they can act promptly. The state courts ruled in favor of counting misspellings, and the legislature later amended the election statutes to clarify that slight misspellings were permissible. Topics: Write-in candidate; matters for state courts; enjoining certification; ballot segregation; recusal; presiding remotely. Preserving Voting Machine Data (PDF) Bursey v. South Carolina Election Commission (Cameron McGowan Currie, D.S.C. 3:10-cv-1545) After an unknown candidate defeated a well-known candidate for the Democratic nomination to challenge a Republican incumbent U.S. Senator, a pro se plaintiff filed a federal complaint to enjoin election officials from clearing the primary election data from the election machines. After he learned more about the election data, the plaintiff dropped his plea for emergency relief and eventually dismissed his action voluntarily. Topics: Election errors; pro se party; voting technology.
Remedy for a Ballot Printing Error (PDF) Bennett v. Mollis (William E. Smith, D.R.I. 1:08-cv-468) Because of a printing error, some ballots included the name of a candidate that had withdrawn from the race. After a mathematical analysis of how many votes the error could have cost the plaintiffs’ candidate, with the help of a political science professor as a technical advisor, the district judge denied the plaintiffs relief. Topics: Election errors; special master; enjoining certification; intervention.
Incorrect Election Results Because of a Malfunctioning Voting Machine (PDF) Shannon v. Jacobowitz (David N. Hurd, N.D.N.Y. 5:03-cv-1413) After votes were counted in a November 2003 election for a town supervisor, a challenger was ahead of an incumbent by 25 votes. There was evidence, however, that a voting machine registered only one vote for the incumbent because it failed to advance its tally with each additional vote. Supporters of the incumbent filed a federal complaint alleging that a comparison of the malfunctioning machine to another machine at the same location implied that the incumbent was deprived of approximately 134 votes. The district judge enjoined certification of the election and enjoined the challenger from taking office. In January 2005, the court of appeals determined that the district court’s interference with the election was error. The incumbent remained in office through 2007. Topics: Voting technology; enjoining certification.
RECOUNTS Emphasis Votes (PDF) Texas Democratic Party v. Dallas County (Jorge A. Solis, N.D. Tex. 3:08-cv-2117) During a recount for a state legislative election, one political party and two voters filed a federal action complaining that emphasis votes—in which a voter votes casts both a straight-party vote and a vote for the specific office—would improperly not be counted because of the switch from punch-card ballots to voting machines. After the recount was completed, the plaintiffs dropped their claims with respect to the specific election, but more general claims remained. The district court found that election procedures with respect to emphasis votes did not discriminate in violation of section 2 of the Voting Rights Act, but they were in violation of section 5 because they had not been precleared. In time, the Justice Department precleared the changes. Topics: Voting technology; recounts; section 5 preclearance; three-judge court; section 2 discrimination; intervention.
Complete Ohio 2004 Presidential Recount (PDF) Rios v. Blackwell (James G. Carr, N.D. Ohio 3:04-cv-7724), Ohio ex rel. Yost v. National Voting Rights Inst. (Edmund A. Sargus, S.D. Ohio 2:04-cv-1139), and Delaware County Prosecuting Attorney v. National Voting Rights Inst. (James G. Carr, N.D. Ohio 3:05-cv-7286) The Green and Libertarian candidates for President sought a complete recount of the 2004 presidential election in Ohio. After a teleconference, the district judge denied injunctive relief because neither candidate had a chance of prevailing in a recount. In Ohio’s other district, a county sought an injunction against a recount there, and supporters of the recount removed the action to federal court. The district judge was reluctant to reach a decision inconsistent with the decision reached first by the judge in the other district. The second judge transferred the action to the first judge. Topics: Recounts; presiding remotely; intervention.
Close Vote in Puerto Rico (PDF) Rosselló v. Calderón (3:04-cv-2251) and Suárez Jimenez v. Comisión Estatal de Elecciones (3:04-cv-2288) (Daniel R. Domínguez, D.P.R.) The 2004 election of Puerto Rico’s governor depended upon a recount. One of the candidates filed a federal complaint, seeking enforcement of a prompt and just resolution of the recount. The district court began evidentiary hearings in mid-November. One issue to be resolved was how to count ballots in which a voter cast a vote for one party generally but for candidates of other parties for all individual offices. A state case on this issue was removed to the federal court before it was resolved, but Puerto Rico’s supreme court resolved the case anyway. The district court vacated the state court’s post-removal ruling and commenced additional hearings. The court of appeals determined that removal was improper. In December, the court of appeals ordered a halt to the district court’s intervention in the local electoral dispute. Topics: Matters for state courts; enjoining certification; removal; recounts; absentee ballots; intervention; attorney fees.