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Election Litigation: Voting Procedures
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.
Limiting Poll Watchers to Counties of Residence
Republican Party of Pennsylvania v. Cortés (Gerald J. Pappert, E.D. Pa. 2:16-cv-5524)
Two and one-half weeks before a presidential election, a federal lawsuit challenged a state statute that required poll watchers to serve only in their counties of residence. Five days before the election, the district judge denied the plaintiffs immediate relief because the requirement had a rational basis and because the last-minute filing was not justified.
Topics: Laches; intervention.
Informing Independent Voters of the Right to Vote in a Presidential Primary Election
Voting Rights Defense Project v. Depuis (William Alsup, N.D. Cal. 3:16-cv-2739)
A federal complaint filed 18 nights before a primary election accused election officials in two counties of not adequately informing independent voters of their rights to vote in some parties’ presidential primary elections. A week later, the plaintiffs sought to shorten time on a motion for a preliminary injunction, but they did not file their injunction motion until the district judge brought the deficit to their attention. Six days before the election, the judge held a hearing and denied immediate relief. On the one hand, the plaintiffs waited too long to achieve effective relief. On the other hand, there was only a weak showing of federal jurisdiction.
Topics: Matters for state courts; laches; primary election; party procedures; early voting; case assignment.
Voting in a Primary Election at Seventeen If Eighteen by the General Election
Smith v. Husted (George C. Smith, S.D. Ohio 2:16-cv-212)
A federal complaint challenged the state secretary of state’s advisory that a law permitting 17-year-olds to vote in a primary election if they will be 18 by the time of the general election did not apply to a presidential primary election because voters in the state’s presidential primary election are not voting for a nomination but are voting for delegates to a convention. The federal judge abstained from a ruling on the merits because of pending state litigation over interpretation of the relevant statute. The state court ruled in favor of the federal plaintiffs’ position.
Topics: Primary election; matters for state courts; laches.
Parson v. Alcorn (M. Hannah Lauck, E.D. Va. 3:16-cv-13)
Days before the distribution of absentee ballots was to begin, three voters filed a challenge to a party’s requirement that voters in its presidential primary election sign a statement that the voters are members of the party. The district judge heard the case one week after it was filed and denied the plaintiffs immediate relief, reasoning, “A private, unenforceable pledge does not pose a severe burden.” The party decided not to use the loyalty oath after all, and the plaintiffs dismissed their appeal.
Topics: Party procedures; primary election; absentee ballots.
Invalid Primary Election
Young v. West Point Municipal Election Commission (Michael P. Mills, N.D. Miss. 1:13-cv-99)
Five voters, including an unsuccessful incumbent in a primary election, filed a federal complaint alleging that a municipal election commission conducted a sham primary election, because the municipal party executive committee was without members and therefore could not properly convey to the election commission the authority to conduct the election. The district judge determined that the plaintiffs had not made a showing sufficient to enjoin the next day’s runoff election.
Topics: Enjoining elections; primary election; party procedures; case assignment.
No-Bid Contract for Election Software
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 that 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
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, because of long lines during early voting, a party filed a complaint seeking relief from anticipated long lines on election day at the polls in three counties. 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.
A Citizenship Check Box on Ballot Applications
Bryanton v. Johnson (Paul D. Borman, E.D. Mich. 2:12-cv-14114)
On September 17, 2012, a county clerk and three voters filed a federal complaint against the state’s secretary of state challenging her planned inclusion of a citizenship verification question on ballot applications in the upcoming general election. The district court heard a motion for a preliminary injunction on October 5. After a six-hour hearing, the court granted the injunction. The ballot application question violated equal protection because it was not applied uniformly and because evidence at the hearing showed that voters who failed to check the box would still be permitted to vote.
Topics: Citizenship; equal protection; case assignment.
Order of Names on the Ballot
Crim v. Tennessee Democratic Party (Kevin H. Sharp, M.D. Tenn. 3:12-cv-838)
A losing primary candidate filed a federal complaint alleging that the victor was improperly included on the ballot and improperly positioned on the ballot because his name was listed alphabetically first. On the next day, after a hearing, the district judge denied the plaintiff immediate relief, finding no wrongdoing and also observing that the plaintiff could have challenged the ballot before the election.
Topics: Enjoining certification; getting on the ballot; laches; equal protection; intervention.
Write-In Candidates Closing a Primary Election
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 fields 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 election remains closed to voters who are not party members. Several weeks before 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.
“None of These Candidates”
Townley v. Nevada (Robert C. Jones, D. Nev. 3:12-cv-310)
A June 8 federal complaint sought to prohibit a state from including “none of these candidates” on the ballot, because state law prevented that choice from prevailing. On August 22, the judge granted the plaintiffs relief, but the court of appeals stayed the injunction. Later, the court of appeals determined that the plaintiffs did not have standing because the relief sought—elimination of the none-of-these choice—would not redress the alleged impropriety—not counting none-of-these votes when determining the winner.
Topics: Intervention; recusal; case assignment; Electoral College.
School Bond Opposition Dilution
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.
Topics: Poll locations; early voting.
Challenge to Weighted Voting in Party Endorsement Procedures
Kehoe v. Casadei (Thomas J. McAvoy, N.D.N.Y. 6:11-cv-408)
Members of a city’s party committee filed a federal complaint challenging the elimination of weighted voting, which weighted members’ votes for endorsements by the number of party members each represented. The district judge issued a temporary restraining order against the change, and the case settled two years later with a return to weighted voting.
Topics: Party procedures; class action; attorney fees.
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.
Enjoining Temperamental Voting Machines
Fetzer v. Barlett (Malcolm J. Howard and David W. Daniel, E.D.N.C. 4:10-cv-158)
A federal complaint filed on Friday, October 29, 2010, challenged the planned use of touchscreen voting machines that the complaint alleged would default to votes for the other party. The district judge assigned to the case was at an airport returning from a week out of town, and he referred the case to a magistrate judge for a status conference the day the complaint was filed. On Saturday, the district judge heard the case and issued a temporary restraining order requiring warning notices at polling places instructing voters to review carefully the machines’ registration of the voters’ choices.
Topics: Voting technology; election errors; case assignment.
Tucker v. Hosemann (W. Allen Pepper, Jr., N.D. Miss. 2:10-cv-178)
A federal complaint filed 13 days before the 2010 general election alleged that election practices discriminated against black voters. According to the presiding judge, “Though it was unclear from their pleadings the exact nature of the relief sought by the plaintiffs, the court was able to pinpoint the issue during the TRO hearing [held six days after the complaint was filed].” The judge concluded that the practice by offices of Mississippi’s secretary of state and attorney general of sending observers to federal and state elections held in Mississippi was not a new practice requiring preclearance pursuant to section 5 of the Voting Rights Act.
Topic: Section 5 preclearance.
Unsuccessful Challenge to Straight-Ticket Voting
Meyer v. Texas (Kenneth M. Hoyt, S.D. Tex. 4:10-cv-3860)
An independent write-in candidate for Congress filed a pro se federal complaint challenging the constitutionality of state election laws favoring party candidates, including straight-ticket voting. The district judge concluded that the complaint did not allege a constitutional violation, and the state laws served the state’s interest in regulating elections.
Topics: Pro se party; write-in candidate.
Suit to Reopen Polling Places on an Indian Reservation
Spirit Lake Tribe v. Benson County (Ralph R. Erickson, D.N.D. 2:10-cv-95)
Approximately one month before election day, a tribe filed a federal complaint challenging a county decision the previous year to close seven out of eight polling places to promote voting by mail. The district judge issued a preliminary injunction reopening the two polling places on the tribe’s reservation on evidence that both traveling to the remaining polling place and voting by mail were especially difficult for members of the tribe. The parties converted the preliminary injunction into a consent decree.
Topics: Poll locations; section 2 discrimination.
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 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.
No Right to Cast a Paper Ballot
Bryan v. Abramson (Harvey Bartle, D.V.I. 1:10-cv-79)
A pro se complaint sought a right to cast a paper ballot instead of voting electronically or casting a provisional ballot. The court determined that the complaint did not present a federal question. A local court determined that the claim was without merit.
Topics: Matters for state courts; provisional ballots; voting technology; pro se party; Help America Vote Act (HAVA).
Adequate Polling Place Resources
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.
Preparing for Voting Machine Failure
NAACP State Conference of Pennsylvania v. Cortés (Harvey Bartle III, E.D. Pa. 2:08-cv-5048)
A federal complaint filed 12 days before a general election challenged a directive allowing the use of paper ballots only when all voting machines fail. A day after a hearing, held five days after the complaint was filed, the district judge issued a preliminary injunction requiring the offering of paper ballots when half or more of the voting machines cease to work.
Topics: Voting technology; case assignment; intervention.
Barack Obama’s Citizenship
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 the dismissal.
Topics: Pro se party; getting on the ballot; intervention; Electoral College.
Bilingual Ballots in Puerto Rico
Diffenderfer v. Gómez-Colón (José Antonio Fusté, D.P.R. 3:08-cv-1918)
Three weeks before ballots needed to be printed for a 2008 election, a federal complaint objected to Puerto Rico’s ballots and their instructions being provided only in Spanish. The court certified the case as a class action and ordered that ballots be printed in both Spanish and English. While an appeal was pending, Puerto Rico enacted legislation requiring bilingual ballots in future elections.
Topics: Ballot language; class action; attorney fees; case assignment.
Preclearance of Nominating Procedures
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
ACLU v. Brunner (Kathleen M. O’Malley, N.D. Ohio 1:08-cv-145)
A 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 election.
Topics: Voting technology; laches.
At-Large Caucus Precincts
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.
Application of Election Law to a Straw Poll
Schulz v. Iowa (James E. Gritzner, S.D. Iowa 4:07-cv-350)
An eight-plaintiff pro se federal complaint challenged the participation fee for Iowa State University’s Republican straw poll for the 2008 presidential election, which was to be held two days after the complaint was filed. On the afternoon before the poll, the district judge denied the plaintiffs immediate relief from the bench after a hearing. The court of appeals affirmed, on the day of the poll.
Topics: Pro se party; equal protection; interlocutory appeal.
Spanish-Language Ballots in Philadelphia
United States v. City of Philadelphia (Petrese B. Tucker, E.D. Pa. 2:06-cv-4592)
Twenty-five days before the November 2006 general election, the Justice Department filed a civil complaint against Philadelphia for failure to provide Spanish-language election resources in violation of sections 203 and 208 of the Voting Rights Act. Twelve days later, the Justice Department moved for a temporary restraining order or a preliminary injunction enforcing the Voting Rights Act and appointing federal election observers. The court declined to order federal observers because of the government’s weak case dilatorily brought.
Topics: Ballot language; laches; three-judge court.
Idiosyncratic Preferences for Name on Ballot
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 of “Phillip” with the letters “i” represented as just dots with eyebrows and the double “l” represented with a smile under it. The federal court determined that the case was a matter for the state court.
Topics: Pro se party; matters for state courts.
Spanish-Language Ballots in Springfield, Massachusetts
United States v. City of Springfield (Michael A. Ponsor, D. Mass. 3:06-cv-30123)
The Justice Department filed a civil complaint against Springfield, Massachusetts, on August 2, 2006, alleging violations of sections 203 and 208 of the Voting Rights Act for failure to provide Spanish-language election resources for Spanish-language voters. By four days in advance of a September 19 primary election, the court and the parties came to agreement on a consent decree, which operated successfully until its expiration early in 2010.
Topics: Ballot language; three-judge court; primary election.
Replacing Mechanical Voting Machines with Electronic Voting Machines
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
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 ten 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.
A Challenge to Paper Ballots for Blind Voters
Ramos v. City of San Antonio (Royal Furgeson, W.D. Tex. 5:05-cv-500)
A federal complaint challenged a switch from touch-screen voting machines to paper optical scan ballots, because of the impact on the ability of voters with vision impairments to vote in secret. A claim pursuant to section 5 of the Voting Rights Act was mooted when the Justice Department precleared the change after the case was filed. The district judge opined that the plaintiffs would prevail on the merits, but a workaround procedure mitigated the impact on vision-impaired voters for the impending election, so the judge denied immediate relief. Three years later, the case settled.
Topics: Voting technology; section 5 preclearance; three-judge court; recusal; case assignment.
Including a Nickname on the Ballot
House v. Alabama Republican Party (R. David Proctor, N.D. Ala. 2:04-cv-703)
Chris “The Teacher” House filed a pro se federal complaint because a party would not include his nickname on the primary ballot for election to the state board of education. Among the claims was that the party’s refusal to do so amounted to an election change requiring preclearance pursuant to section 5 of the Voting Rights Act because it had listed his nickname before. The Justice Department declared that it had no objection to the exclusion of nicknames, so the section 5 claim was dismissed. The district judge temporarily enjoined printing of the ballots while he considered the case. On consideration, he dismissed the federal claims with prejudice and the state claims without prejudice.
Topics: Primary election; pro se party; section 5 preclearance; matters for state courts.
Challenging Both Nominating and Voting Procedures
White-Battle v. Democratic Party of Virginia (Henry C. Morgan, Jr., E.D. Va. 2:03-cv-897)
A plaintiff who had desired to be a party nominee for an election to clerk of court filed a pro se federal complaint alleging improprieties in both nomination and voting procedures. The motion was heard and denied six days later. Six months after that, the court granted summary judgment to the defendants.
Topics: Getting on the ballot; pro se party.
Continuing the Use of Punch-Card Ballots for a Special Election
Southwest Voter Registration Education Project v. Shelley (Stephen V. Wilson, C.D. Cal. 2:03-cv-5715)
Two months before a gubernatorial recall election, a federal complaint challenged the use in some jurisdictions of punch-card ballots. The district judge denied immediate relief because the election would be held before a previous consent decree’s decertification of punch-card ballots would go into effect. A three-judge panel of the court of appeals reversed the district court, but an 11-judge en banc panel subsequently affirmed the district court. The governor was recalled.
Topics: Voting technology; intervention; laches.
Changing How Straight-Party Votes Are Marked Without Preclearance
LULAC v. Bexar County (Edward C. Prado, W.D. Tex. 5:02-cv-1015)
A federal complaint challenged, among other things, a change in ballot construction that required voters to mark their selection for straight-party voting twice instead of once as not precleared pursuant to section 5 of the Voting Rights Act. After four proceedings, the parties and the judge agreed that the change could proceed as if precleared for early voting, but the election-day ballot would use the old method while preclearance was pending.
Topics: Early voting; voting technology; section 5 preclearance; intervention; attorney fees.
Voters’ Right to a Completely Open Primary Election
Snellgrove v. Georgia (Hugh Lawson, M.D. Ga. 5:02-cv-288)
Four days before a primary election, independent voters filed a federal complaint complaining that the primary election prevented them from voting for a member of one party for one office and a member of a different party for another office. After an evidentiary hearing on the day before the election, the district judge declined to issue an injunction.
Topic: Primary elections.
Retroactive Preclearance for Emergency Consolidation of Polling Places
Leyva v. Bexar County Republican Party (Edward C. Prado, W.D. Tex. 5:02-cv-408)
Nearly seven weeks after an election for which polling places were consolidated because of an unexpected shortage of poll workers, a federal complaint challenged the consolidations for not being precleared pursuant to section 5 of the Voting Rights Act. The district judge denied immediate relief because the county intended to seek preclearance and election records would be preserved. In time, the county received retroactive preclearance and a three-judge court declined to void the election.
Topics: Poll locations; section 5 preclearance; three-judge court; polling hours; primary election; intervention; news media.
Paper Primary Ballots for Minor Parties and Machine Primary Ballots for Major Parties
Green Party of New York v. Weiner (Gerard E. Lynch, S.D.N.Y. 1:00-cv-6639)
A minor party filed a federal complaint one week before a primary election challenging the use of paper ballots for minor parties and voting machines for major parties. Following a hearing two days later, the federal judge denied immediate relief on a finding that the use of paper ballots for a minor party would be unlikely to unduly delay the counting of votes. Following complete briefing, the judge granted the defendants summary judgment 17 months later and declined jurisdiction over state law claims.
Topics: Voting technology; primary election; matters for state courts; intervention; equal protection.
Preference for Faction Loyalists as Party Poll Workers
Espada v. Rosado (John S. Martin, S.D.N.Y. 1:00-cv-6469)
A federal complaint alleged that poll-worker appointments by a political party for a primary election were unconstitutionally targeted to one faction within the party. The district judged denied as immediate relief appointment of three of the plaintiffs as poll workers, because they had already been appointed. The judge denied the defendants’ motion for sanctions on a finding that the complaint, which had been dismissed voluntarily, included non-frivolous constitutional claims.
Topics: Party procedures; primary election; attorney fees.
Preclearance Not Required for How Election Officials Are Selected
Selma Coalition for Equality and Change v. City of Selma (Edward C. Prado, W.D. Tex. 5:00-cv-498)
Unsuccessful candidates in a city council election filed a federal complaint alleging that election procedures had not been precleared pursuant to section 5 of the Voting Rights Act. Two years later, a three-judge court determined that remaining claims for how election officials were appointed were not section 5 violations. The court initially awarded the defendants attorney fees, but denied fees on reconsideration because of the more rigorous standard for awarding fees to defendants in civil rights cases.
Topics: Section 5 preclearance; three-judge court; attorney fees; poll locations.
Permitting Independent Voters to Vote in Party Primaries
Hole v. North Carolina Board of Elections (James A. Beaty, Jr., M.D.N.C. 1:00-cv-477)
An unsuccessful primary election candidate filed a federal complaint nine days after the election alleging that her First Amendment rights were violated by the state and the party’s permitting independents to vote in the election. The district court denied relief as foreclosed by The Supreme Court’s 1986 decision in Tashjian v. Republican Party of Connecticut.
Topic: Primary election.