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O’Neil v. Hosemann (Daniel P. Jordan III, S.D. Miss. 3:18-cv-815)
On the day before a runoff election, plaintiffs sought a federal court injunction requiring the counting of absentee ballots post-marked by election day instead of received by the day before election day. The federal judge decided that the request for relief was too late and the relief requested was too disruptive.
Subject: Absentee ballots. Topics: Absentee ballots; laches.

One of many Case Studies in Emergency Election Litigation.

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Schmitt v. Husted (Edmund A. Sargus., Jr., S.D. Ohio 2:18-cv-966)
As an election approached, a district judge enjoined local election board discretion to keep an initiative off the ballot without review more available than a writ of mandamus. The court of appeals, however, concluded that mandamus relief was not so insurmountable as to require federal judicial intervention.
Subject: Ballot measures. Topics: Ballot measure; getting on the ballot.

One of many Case Studies in Emergency Election Litigation.

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Fair Elections Ohio v. Husted (Susan J. Dlott and S. Arthur Spiegel, 1:12-cv-797) and Mays v. Husted (Michael H. Watson, 2:18-cv-1376) (S.D. Ohio)
Prisoner-rights organizations filed a federal complaint seeking provisions ensuring the ability to vote by voters detained during the days immediately preceding the 2012 general election. The district judge denied the plaintiffs immediate relief because they had not presented compelling evidence of disfranchisement. The state’s accommodations for persons with medical emergencies on election day did not create an equal protection violation because of the different burdens placed on election officials. After the case was transferred to another judge in 2014, and after additional discovery, the second judge granted the plaintiffs summary judgment on a showing that the burden on disfranchised voters outweighed the burden on accommodating late-jailed voters. The court of appeals determined, over a dissent, however, that the plaintiff organizations did not have standing. A lawsuit filed in 2018 by two persons arrested over the weekend before election day and detained through election day was successful for them. The judge later granted summary judgment to a certified plaintiff class. The court of appeals, however, determined that the franchise burden on arrested voters is modest and justified by election officials’ burdens in providing new prisoners with ballots.
Topics: Prisoner voters; equal protection; absentee ballots; class action.

One of many Case Studies in Emergency Election Litigation.

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Democratic Executive Committee of Florida v. Detzner (4:18-cv-520), VoteVets Action Fund v. Detzner (4:18-cv-524), DSCC v. Detzner (4:18-cv-526), and Democratic Senatorial Campaign Committee v. Detzner (4:18-cv-528) (Mark E. Walker and Robert L. Hinkle, N.D. Fla.)
The campaign for the ultimately unsuccessful reelection of a U.S. senator filed four federal complaints during the week following a general election. Each complaint raised a different issue: signature matching on mail and provisional ballots, mail ballot deadlines, manual recount rules, and recount deadlines. The judge enjoined disqualification of votes for mismatched signatures without an opportunity to resolve the mismatch. The judge denied relief in the other cases.
Subject: Absentee and early voting. Topics: Signature matching; absentee ballots; provisional ballots; recounts; recusal; case assignment; intervention.

One of many Case Studies in Emergency Election Litigation.

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Saball v. Town of Groton (Leo T. Sorokin, D. Mass. 1:18-cv-12312)
A pro se federal complaint alleged that voters’ names on envelopes containing early cast ballots violated the secret ballot. The district judge denied immediate relief for want of compelling arguments and for want of service on the defendants.
Subject: Absentee and early voting. Topics: Early voting; pro se party.

One of many Case Studies in Emergency Election Litigation.

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LULAC Kansas v. Cox (Daniel D. Crabtree, D. Kan. 2:18-cv-2572)
The district judge denied an emergency injunction against moving a town’s sole polling place to a location outside of town after the judge heard testimony that voters would be provided with transportation to the new location.
Subject: Voting procedures. Topics: Poll locations; recusal; case assignment.

One of many Case Studies in Emergency Election Litigation.

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Mays v. Thurston (James M. Moody, Jr., E.D. Ark. 4:20-cv-341)
The district judge denied a request for an order during a global infectious pandemic extending the deadline for absentee ballots from received by election day to mailed by election day, finding that any difficulty that the plaintiffs would have in submitting their absentee ballots on time would arise from the pandemic and not from state action.
Subject: Absentee and early voting. Topics: COVID-19; absentee ballots

One of many Case Studies in Emergency Election Litigation.

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Defenses | Settlement and Immigration Status | Grave Risk | Motions for New Trial

In this case, the First Circuit determined whether a district court committed clear error[1] in denying a mother’s defenses of grave risk and settlement of the child, and whether the district court’s denial of her motion for a new trial was an abuse of discretion.

Holdings

The First Circuit affirmed the district court order for the return of a child to Brazil, denying the defenses of grave risk and settlement of the child for lack of sufficient evidence, and denying the motion for a new trial based on the continuance of an immigration hearing for three years.

Facts

A couple, both Brazilian citizens, lived together from 2007 to 2016. In 2010, the mother gave birth to A.C.A., their child. She had another child, M.A., from a previous relationship. The couple separated in February 2016. That December, the mother removed both children to the United States without the father’s knowledge. When she and the children entered the United States, immigration authorities released them on their own recognizance and ordered an immigration hearing in Boston, Massachusetts.

In November 2018, the father filed a petition for the return of A.C.A. to Brazil. The mother’s response alleged the defenses of grave risk under Article 13(b) and settlement of the child under Article 12. At the trial in July 2019, the district court tentatively ruled that the father’s petition for return would be granted. A formal order was entered on October 29, 2019, ordering the child to be returned on January 2, 2020. Two days later, on October 30, 2019, the mother and her two children attended an immigration hearing. At that hearing, she formally filed an application for asylum for herself and the two children, alleging that if they all returned to Brazil, the father would kill her and sexually abuse her other child. Immigration proceedings were continued to February 16, 2023.

On November 6, 2019, the mother moved for a new trial in district court, alleging that the three years before her next immigration hearing would provide her and the children with interim legal immigration status, eliminate the risk of imminent deportation, and provide new evidence of her defense that A.C.A. was well settled. The district court denied her motion for new trial. The First Circuit issued a stay of the removal order and expedited the appeal.

Discussion

The First Circuit found that the district court did not err in denying the mother’s defenses of grave risk or settlement of the child.[2]

Grave Risk. The mother alleged that returning A.C.A. to Brazil would expose her to grave risk because the child witnessed conflict between her parents, and if returned, was at risk of physical abuse herself. The district court had found that although there was “some degree” of physical abuse by the father, the facts presented were insufficient to establish grave risk to the child. The First Circuit ruled that the abuse alleged was not as severe as that found in Walsh v. Walsh,[3] noting that the incidents did not result in hospital visits, complaints to law enforcement, or arrest of the father. The court also observed that there was no evidence that the father ever sexually abused the child.[4]

The mother also alleged that both her children were at risk of being sexually abused by the father, based on her first child revealing in therapy that she used to sit on the father’s lap and move her hips around to massage him. The therapist, however, would not testify that her suspicion of sexual abuse was made with a “reasonable degree of medical certainty.”[5]

The First Circuit found that the district court did not abuse its discretion in finding that the mother did not establish a sufficient defense of grave risk of domestic violence or sexual abuse.[6]

Settlement of the Child. Since the father’s petition was filed more than one year after the wrongful removal of the child, the mother attempted to prove that the child was settled within the meaning of Article 12.[7] The district court had considered facts relevant to the child’s degree of settlement and found that A.C.A. had developed “meaningful relationships and lasting emotional bonds with a community in East Boston.”[8] But the district court had also found that the child’s resilience and ability to form bonds would not “wrench her out of a well-settled position if returned.”[9] As part of its analysis, the district court had considered the child’s unsettled immigration status. The First Circuit also noted that the evidence before the district court showed a pattern of absences from school and many tardies (40 days out of 167 in 2017–2018, and 41 during the first half of 2018–2019), facts against a finding of settlement.[10]

Motion for New Trial. The mother asserted that the three-year delay of her immigration hearing stabilized the child’s immigration status by removing the possibility of immediate removal. The district court had disagreed, finding that the evidence of a continuation of the mother’s immigration hearing was cumulative in nature and not new evidence of settlement. The district court had also found that she could have filed an application for asylum before her first immigration hearing instead of waiting until after, but she did not. The First Circuit affirmed the denial of the mother’s motion for a new trial.

A motion for new trial on the basis of newly discovered evidence requires the movant to show that:

(1) The evidence has been discovered since the trial; (2) The evidence could not by due diligence have been discovered earlier by the movant; (3) The evidence is not merely cumulative or impeaching; and (4) The evidence is of such nature that it would probably change the result if a new trial is granted.[11]


[1]. Da Silva v. De Aredes, 953 F.3d 67, 72–73 (1st Cir. 2020) (citing Monasky v. Taglieri, 140 S. Ct. 719, 730 (2020)).
[2]. Id. at 73.
[3]. 221 F.3d 204, 220 (1st Cir. 2000).
[4]. Da Silva, 953 F.3d at 74–75.
[5]. Id. at 74.
[6]. Id. at 74–75.
[7]. Hague Convention on the Civil Aspects of International Child Abduction art. 12, Oct. 25, 1980, T.I.A.S. No. 11670, 19 I.L.M. 1501.[8]. Da Silva, 953 F.3d at 75.
[9]. Id.
[10]. Id. at 76 (citing Lozano v. Alvarez, 697 F.3d 41, 54 (2d Cir. 2012) (noting that courts generally should consider as a now-settled factor “whether the child attends school or day care consistently”)).
[11]. Id. at 76 (quoting Duffy v. Clippinger, 857 F.2d 877, 879 (1st Cir. 1988)).

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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Great America PAC v. Wisconsin Elections Commission (James D. Peterson, W.D. Wis. 3:16-cv-795), Stein v. Thomas (Mark A. Goldsmith, E.D. Mich. 2:16-cv-14233), and Stein v. Cortés (Paul S. Diamond, E.D. Pa. 2:16-cv-6287)
Following the 2016 presidential election in which a candidate earned more votes in the Electoral College than the candidate who received the most popular votes, a minor party candidate sought recounts in the three states that the Electoral College victor won by the smallest margins. The matter was litigated in state courts and in federal courts in the Western District of Wisconsin, the Eastern District of Michigan, and the Eastern District of Pennsylvania with mixed results for the minor party candidate’s litigation efforts and no change in the Electoral College outcome. The Pennsylvania case ended with a settlement agreement requiring a change in voting technology and a payment of attorneys fees.
Subject: Recounts. Topics: Recounts; election errors; voting technology; matters for state courts; laches; intervention; recusal; case assignment; Electoral College; attorney fees.

One of many Case Studies in Emergency Election Litigation.

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Factual Error | Burden of Proof

This case examined whether a court commits clear error when it relies on facts that were never presented and whether a parent petitioning for a child’s return has the burden of disproving the opposing parent’s factually unsupported defense.

Holding

The Eleventh Circuit ruled that the district court’s denial of a petition for return was based on factual and legal findings that relied on the father’s defense of consent. This case was reversed and remanded.

Facts

The mother in this case was a Chilean citizen, and the father was a citizen of the United States. They had a child, born to the mother in Chile in 2012. Their child, EICB, lived there with her mother her entire life. The father lived in the United States and made several annual visits to Chile to visit his daughter. The child first visited the United States in February 2018, for a two-month limited stay with her father before returning to Chile. The mother allowed the child to travel to the United States for a second limited stay beginning December 30, 2018. The father purchased a round-trip ticket for the child with a scheduled return to Chile on February 28, 2019, and the mother gave permission for the child to extend her trip until the end of March. In early February 2019, the father began to propose that EICB remain permanently with him in the United States. When he continued to pressure the mother to let the child remain with him, she “tentatively” agreed to allow the child to remain until July 2019, when he and the child would return to visit the mother. The plan he purported was for the child to live primarily with him, and the mother could visit the child once a year in Miami. However, the mother said that she had agreed to the father’s plan only because she wanted to make sure that her child would return to Chile in July 2019.

She soon began to express opposition to the father’s proposed custody arrangement and pressed him for clarification of the plan. When she showed hesitation, he threatened to withhold the child permanently and prevent the mother from ever seeing the child again. To execute his plan, he enlisted the help of his friend Doris Baquero who worked at the Florida Department of Juvenile Justice. Baquero prepared a consent agreement effectively giving the father custody of the child and allowing the mother visitation in Chile during the child’s summer break. The document required the mother’s notarized signature. On two occasions the mother made arrangements to meet with a notary at the U.S. embassy in Chile but then skipped those appointments. Instead, she signed the original document, took a photo of it, and texted the photo of the signed document to Baquero, but the mother retained the original document. She feared that if she did not provide the father with a signed consent agreement, he would not bring the child to Chile in July and would prevent the mother from seeing her child again, as he had threatened. Baquero notarized the photo of the signed consent agreement without the mother’s presence.

In March 2019, the mother wrote to Baquero, “Doris, good afternoon, I appreciate everything, but I changed my mind. I have everything ready for [EICB] to return. Her uniform and school supplies, she starts classes on March 4th at Primary school. It is very important that she starts when it’s appropriate so she won’t fall behind.”

The father retained the child in Miami after the travel authorization period and did not return the her to Chile. In June 2019, the mother filed a petition in the Southern District of Florida for the child’s return.

At trial, the father asserted a grave risk defense, arguing that the child’s mental and physical health would suffer if she were returned to Chile, and that she would enjoy a better quality of life in the United States. He failed to produce any evidence on the issue of consent. In a subsequent briefing, the father alleged that the mother’s own evidence established consent by virtue of the written agreement and that the mother’s message to Baquero was evidence that mother “changed” her mind.

The mother argued that her signature on the consent document was not proof of her subjective intent; instead, she was stalling for time in an effort to ensure the child’s return. The district court found that the father’s conduct did not amount to duress, that the mother consented to him having primary custody, and that she could not withdraw this consent. The district court denied mother’s petition for return.

Discussion

Both parties agreed that the mother presented a prima facie case for return and that the only issue was the mother’s alleged consent. Quoting the Third Circuit in Baxter v. Baxter,[1] the Eleventh Circuit observed,

The petitioning parent’s consent needn’t be formal, but “it is important to consider what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country.” The focus of the court’s inquiry should be on the petitioning parent’s “subjective intent,” and should take into account “[t]he nature and scope of the petitioner’s consent, and any conditions or limitations” on that consent.[2]

The district court had concluded that the issue of consent was “dispositive” of the case[3] and had focused almost exclusively on the consent letter that the mother signed. It had accepted the father’s denial that he threatened to retain the child. Reviewing the record, however, the Eleventh Circuit concluded that this latter finding was in error. In fact, the record established that while the father denied making threats in his pleadings, he did not deny the threats during his court testimony. The question of whether he made threats was material; the district court had acknowledged that if the mother’s allegations that she was threatened were true, this “would amount to duress.”[4] The Eleventh Circuit held that the district court expressly imposed the burden of proof on the mother, requiring her to disprove the father’s claim of consent, and this amounted to clear error.

The Eleventh Circuit reversed the return order and remanded the case back to the district court for further proceedings consistent with its opinion.


[1]. Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005).
[2]. Berenguela-Alvarado v. Castanos, 950 F.3d 1352, 1359 (11th Cir. 2020) (citations omitted).
[3]. Id.
[4]. Id.

This document is part of The 1980 Hague Convention on International Child Abduction: A Resource for Judges, a Special Topic Webpage.

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