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Election Litigation: Voting Irregularities
Litigating a Close Election
Joshua Cole for Delegate v. Virginia State Board of Elections (Claude M. Hilton, 1:17-cv-1295) and Lecky v. Virginia State Board of Elections (T.S. Ellis III, 1:17-cv-1336) (E.D. Va.)
In an election that would narrowly determine which party controlled the state legislature, a district judge denied a motion to order the counting of absentee ballots that were delivered late, allegedly because of postal service error. A second district judge declined to enjoin certification of a close election after it had been discovered that hundreds of voters were given ballots for a different district.
Topics: Election errors; absentee ballots; enjoining certification; intervention; presiding remotely.
The Presidential Advisory Commission on Election Integrity
Electronic Privacy Information Center v. Presidential Advisory Commission on Election Integrity (1:17-cv-1320), ACLU v. Trump (1:17-cv-1351), and Lawyers’ Committee for Civil Rights Under Law v. Presidential Advisory Commission on Election Integrity (1:17-cv-1354) (Colleen Kollar-Kotelly, D.D.C.) and Joyner v. Presidential Advisory Commission on Election Integrity (Marcia G. Cooke, S.D. Fla. 1:17-cv-22568)
In mid-2017, President Trump created the Presidential Advisory Commission on Election Integrity. The commission’s vice chair asked all states to submit extensive voter registration data to the commission. Following states’ reluctance to comply and lawsuits challenging the request, President Trump disbanded the commission early in 2018.
Topics: Registration procedures; case assignment.
Does the Electoral College Dilute Votes?
Park v. Parnell (Timothy M. Burgess, D. Alaska 3:16-cv-281), James v. Cascos (Robert Pitman and Jeffrey C. Manske, W.D. Tex. 6:16-cv-457), Conant v. Oregon (Marco A. Hernandez, D. Or. 3:16-cv-2290), and Barnes v. Wisconsin (William C. Griesbach, E.D. Wis. 1:16-cv-1692)
A pro se complaint sought to enjoin on a vote-dilution theory a state’s Electoral College votes’ going to the prevailing presidential candidate in the state, because although that candidate earned a majority of electoral votes, an opposing candidate earned more votes nationwide. Four days later, the district judge ruled against the plaintiff. Although the judge granted the plaintiff in forma pauperis status during the emergency phase of the litigation, the judge denied in forma pauperis status on appeal because the plaintiff did not present supplementary financial information as ordered. Pro se actions in Virginia, Oregon, Texas, and Wisconsin challenging winner-take-all allocations of Electoral College votes also were unsuccessful.
Topics: Electoral College; pro se party.
Baca v. Hickenlooper (Wiley Y. Daniel, D. Colo. 1:16-cv-2986), Chiafalo v. Inslee (James L. Robart, W.D. Wash. 2:16-cv-1886), Koller v. Brown (Edward J. Davila, N.D. Cal. 5:16-cv-7069), and Abdurrahman v. Dayton (Paul A. Magnuson, D. Minn. No. 0:16-cv-4279)
After one party’s candidate earned more votes in the 2016 presidential election, but the other party’s candidate earned more Electoral College votes, electors in four states won by the popular-vote victor filed federal complaints to relieve electors from voting as pledged. No federal court granted any plaintiff immediate relief. But in 2019, a court of appeals ruled that the Constitution requires states to allow electors to vote as they please. The Supreme Court disagreed.
Topics: Electoral College; intervention; laches.
Challenging Disqualified Votes in a Close Election
Ron Barber for Congress v. Bennett (Cindy K. Jorgenson, D. Ariz. 4:14-cv-2489)
Before the certification of election results in a close election for Congress, the trailing candidate filed a federal complaint challenging the disqualification of some votes. The district judge determined that the plaintiff had not justified federal court interference with election administration.
Topics: Enjoining certification; election errors; provisional ballots; intervention; recusal; case assignment.
Remedy for Leaving a Candidate Off of the Ballot
Krieger v. Peoria (David G. Campbell, D. Ariz. 2:14-cv-1762)
During early voting for a position on a city council, a candidate’s name was left off of the ballot twice. He filed a federal complaint seeking a special election instead of a third mailing. The district judge granted him the requested relief. The judge and the parties resolved issues of whether the special election would allow for a runoff election and how campaign finance rules would apply.
Topics: Election errors; enjoining elections; getting on the ballot; absentee ballots; early voting; primary election; campaign finance.
Seeking Voter Records to Challenge Crossover Voting
True the Vote v. Hosemann (Michael P. Mills, N.D. Miss. 3:14-cv-144) and True the Vote v. Hosemann (Henry T. Wingate and Nancy F. Atlas, S.D. Miss. 3:14-cv-532)
A federal complaint sought voter information to investigate the possibility of voting in a runoff senatorial primary election for one party after voting in another party’s earlier primary election. The judge who was assigned the case determined that it should have been brought in the other district, which includes the capital. A second suit there was transferred to a district in another state within the circuit because of the federal bench’s close ties with the incumbent senator, a candidate in the runoff primary election. The transferee judge dismissed claims under the National Voter Registration Act for failure to comply with the act’s notice requirements. By the time of decision, the defendants had disclosed to the plaintiffs all of the information required by the act anyway.
Topics: National Voter Registration Act; primary election; recusal; case assignment; attorney fees; matters for state courts.
The Legitimacy of President Obama’s Reelection
Grinols v. Electoral College (Morrison C. England, Jr., E.D. Cal. 2:12-cv-2997)
Four days before the Electoral College’s vote, a federal complaint challenged the President’s reelection on the grounds that the President allegedly was a citizen of Indonesia. The district court ultimately dismissed the action as a political question. The court of appeals affirmed the dismissal on the ground that the case was moot.
Topics: Enjoining certification; case assignment; Electoral College.
A Suit by Unsuccessful Candidates to Overturn an Election
Picard Samuel v. Virgin Islands Joint Board of Elections (Curtis V. Gómez and Raymond L. Finch, D.V.I. 3:12-cv-94)
Following a general election, unsuccessful candidates filed a pro se federal complaint to nullify the results and enjoin the swearing in of the winners. A district judge denied the plaintiffs a temporary restraining order. The plaintiffs sought reversal of the denial by recusal of the judge, also naming as a recusal ground the judge’s sister's being a winning candidate in the election. The case was already reassigned to another judge for the sake of efficiency, and the second judge denied the plaintiffs a preliminary injunction because they could not show that the election irregularities of which they complained resulted in their defeats. Later, the second judge dismissed the complaint for lack of standing.
Topics: Enjoining certification; election errors; laches; pro se party; voting technology.
Challenging Post-Election Disqualification of Winning Candidates
Orgeron v. Quartzsite (Roslyn O. Silver, D. Ariz. 2:12-cv-1238)
A federal complaint challenged the disqualification of a town council election victor for insufficient residency and the disqualification of the mayoral election victor for indebtedness to the city. The district judge ruled in favor of the council victor, but determined that the council victor did not have standing to seek a remedy for the mayoral victor’s injury.
Topics: Enjoining certification; matters for state courts; case assignment.
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 could 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.
Ballot Errors for Local Election
Caudell v. Thomas (William C. O’Kelley, N.D. Ga. 2:10-cv-217)
A defendant probate judge removed to federal court an action seeking relief from ballot errors in an election for county commissioners. The composition of the commission had recently changed from a chair in post 1 and two other members in posts 2 and 3, all elected at large, to a chair elected at large and four members representing districts 1 through 4. Commissioners in districts 1 and 3 were up for election, but the ballot listed them as running for posts 1 and 3. In addition, the plaintiffs alleged malapportionment. The federal district judge remanded the ballot issue as a state matter but retained the malapportionment challenge for regular proceedings. The parties, however, stipulated to a dismissal.
Topics: Election errors; matters for state courts; malapportionment; removal.
A Change in the Mayor’s Power Does Not Require Preclearance
Patterson v. Esch (William H. Barbour, Jr., S.D. Miss. 3:09-cv-438)
A mayor filed a federal complaint claiming that a board of selectmen’s pending vote to reduce the mayor’s powers violated section 5 of the Voting Rights Act, which prohibited changes in voting procedures in covered jurisdictions without federal preclearance. The district judge determined that mayoral powers were not covered by section 5.
Topic: Section 5 preclearance.
Remedy for a Ballot Printing Error
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.
A Suit to Prevent a Legislature from Voiding a Close Election
Ford v. Beavers (Bernice B. Donald, W.D. Tenn. 2:06-cv-2031)
On the day before a state senate was expected to void a senator’s election to the senate by a very close special election because of concerns that some votes were fraudulent, a federal district judge enjoined senate action on the matter pending a hearing in a federal case filed by the newly elected senator and three voters who voted for her. Following a hearing, the judge issued a declaratory judgment in the plaintiffs’ favor. The senate subsequently removed the senator from office, but at the end of the session the judge enjoined the naming of an interim replacement. The senator won the seat again at the next election, an appeal was deemed moot, and the judge awarded the plaintiffs $117,263 in attorney fees, costs, and expenses.
Topics: Election errors; attorney fees.
Winner Take All in the Electoral College
Gordon v. Cheney (Henry H. Kennedy, Jr., D.D.C. 1:05-cv-6)
Two days before the Senate was to count presidential electoral votes, a pro se plaintiff filed a federal complaint seeking to enjoin the count on the ground that electoral votes in several states were improperly allocated according to a winner-take-all rule. Two days later, the court denied immediate relief.
Topics: Electoral College; enjoining certification; pro se party.
Challenging a Victor’s Residence Qualification
Harris v. Diaz (Richard M. Berman, S.D.N.Y. 1:04-cv-9124)
The district judge dismissed a post-election complaint that a victorious legislature candidate did not live in the district he was elected to represent. On the one hand, the appropriate proceeding would be a state court quo warranto action; on the other hand, the time to challenge eligibility was before the election.
Topics: Enjoining certification; matters for state courts; laches.
Dismissing a Defective Pro Se Application for a Temporary Restraining Order
Webb-Goodwin v. Butler (Lance M. Africk, E.D. La. 2:04-cv-2653)
A candidate who came in sixth in an election rife with mechanical and logistical difficulties filed a pro se federal complaint to nullify the election. The district court denied the plaintiff a temporary restraining order because the plaintiff had shown neither service on defendants nor affidavit compliance with Federal Rule of Civil Procedure 65(b). A state court action also was dismissed for lack of service.
Topics: Enjoining elections; voting technology; pro se party; matters for state courts.
Unsuccessful Challenge to Close Election Defeats in New Rochelle
McLaughlin v. Allen (Charles L. Brieant, S.D.N.Y. 7:03-cv-9886)
The district judge denied immediate relief to two city council candidates trailing by handfuls of votes after unsuccessful state court challenges to election results. Nearly a year later, the judge granted the defendants summary judgment.
Topics: Enjoining certification; matters for state courts; case assignment.
Incorrect Election Results Because of a Malfunctioning Voting Machine
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.
Foster v. Salaam (Ira De Ment, M.D. Ala. 2:02-cv-1093)
A federal complaint alleged that Republicans were improperly permitted to vote in a June 2002 runoff Democratic primary election for a seat in Alabama’s house of representatives. The district judge determined that the claim under section 5 of the Voting Rights Act was not valid, so a three-judge district court did not need to be appointed. The plaintiffs sought voluntary dismissal and pursued the matter in state court.
Topics: Primary election; enjoining certification; enjoining elections; section 5 preclearance; three-judge court.
Customary Right of Appointment
Holley v. City of Roanoke (W. Harold Albritton, M.D. Ala. 3:01-cv-775)
A federal complaint challenged a refusal by a city council to reappoint a board of education member in violation of a customary practice in which each member of the council names the board member for the council member’s district. A three-judge district court was appointed to hear a claim that the alleged change in practice violated section 5 of the Voting Rights Act. After a hearing, the court dismissed the section 5 claim because it concerned appointment rather than voting. The original district judge dismissed other claims because the evidence was that the deviation from custom was motived by policy disagreements rather than by race. A remaining claim was dismissed voluntarily.
Topics: Section 5 preclearance; three-judge court; equal protection.
Unsuccessful Attempt to Block Electoral College Votes
Shtino v. Carlin (Alexander Williams, Jr., D. Md. 8:00-cv-3699)
The district court denied a December 21, 2000, pro se complaint to enjoin presentation of Florida’s electoral votes.
Topics: Electoral College; enjoining certification; pro se party.