68 F. 3d 404 - Roe v. State of Alabama T

In this case, Larry Roe, on behalf of himself and others who voted in Alabama's November 8, 1994, general election (the "Roe Class"), claims that the State of Alabama is attempting to dilute the votes that the Roe Class cast in that election, in violation of the Due Process Clause of the Fourteenth Amendment. This dilution will occur, the Roe Class contends, if Alabama's election officials comply with the order of a state trial court, issued in Odom v. Bennett, No. 94-2434-R (Montgomery County Cir.Ct.1994), requiring them to include in their vote totals absentee ballots (the "contested ballots") that do not conform to Ala.Code Sec. 17-10-7 in that they were not enclosed in an envelope bearing the signatures of the voter and either a notary public or two witnesses. Instead, these ballots were enclosed in envelopes bearing only the voters' signatures.

On December 5, 1994, the district court, concluding that the Odom court's order, if implemented, would retroactively amend the State's election code and "dilute the ballot box," entered a preliminary injunction ordering the Alabama Secretary of State (defendant James Bennett) to certify the election results without counting the contested ballots. The Secretary of State (and the other state defendants in the case) and John Davis, who had cast a contested ballot and was a plaintiff in Odom v. Bennett, immediately appealed the injunction. Following oral argument, we affirmed the preliminary injunction in part (including the district court's conclusion that the plaintiffs were likely to prevail on the merits of their constitutional claim), vacated it in part, and certified to the Supreme Court of Alabama the question whether an absentee ballot enclosed in an envelope that does not bear the signature of either a notary public or two witnesses meets the requirement of Ala.Code Sec. 17-10-7. Roe v. Alabama, 43 F.3d 574 (11th Cir.1995) (Roe I ). In effect, our decision permitted those elected to all offices except the offices of Chief Justice of the Supreme Court of Alabama and Treasurer of Alabama to be sworn in. Thus, the elections to those two offices are the ones involved in this case.1

On March 14, 1995, the Alabama Supreme Court answered the question in the affirmative; the signature of the voter alone, if accompanied by the voter's residence address and reason for voting absentee, satisfies the statute's requirements. Roe v. Mobile County Appointment Bd., No. 1940461, 1995 WL 121871 (Ala. March 14, 1995). In addition to answering the certified question, the court indicated that, in the past, the election officials in some of Alabama's sixty-seven counties had counted ballots such as those that are contested in this case.

After receiving the Alabama Supreme Court's response to our question, we remanded the case to the district court and instructed it to determine whether, prior to and at the time of the November 8, 1994, general election, the practice in Alabama had been to reject or, conversely, to count absentee ballots whose envelope did not include the signature of either a notary public or two witnesses.2 Roe v. Alabama, 52 F.3d 300 (11th Cir.1995) (Roe II ), cert. denied, --- U.S. ----, 116 S.Ct. 276, 133 L.Ed.2d 197 (1995).

Following the receipt of our mandate, and after extensive discovery, the district court and the parties met in pretrial conference and narrowed the issues to be tried. The court, with the consent of all parties, also certified the Roe Class and, after Clarence T. Hellums was substituted for the deceased John Davis, the court certified the Hellums Class (consisting of voters who had cast contested ballots). The Hellums Class then filed two cross claims against the state defendants. The first claim alleged that, by not counting the contested ballots, the state defendants would disenfranchise the Hellums Class in violation of the Due Process Clause of the Fourteenth Amendment; the second claim alleged that the State defendants would deny the Class the equal protection of the laws if they counted contested ballots in some counties but not in others (where the Class members had voted). The claims of the Roe and Hellums classes thus turned on the same question: whether it had been the practice in Alabama prior to and in the November 8 election to count ballots such as the contested ballots. If the practice had been not to count such ballots, the Roe Class would prevail; if the practice had been to count them, the Hellums Class would prevail.

The trial of the case took three days. Introduced into evidence, in addition to the stipulated facts, were the answers to interrogatories that had been propounded, in a format agreed to by the parties, to the election officials in all of Alabama's sixty-seven counties, and the testimony of forty-eight witnesses (thirty-eight of whom testified in person, ten by deposition), including the Secretary of State and a former Attorney General (who had issued the definitive opinion concerning the proper interpretation of Ala.Code Sec. 17-10-7).3 On the basis of that evidence, the district court found that the practice in Alabama prior to the November 8, 1994 election, had been uniformly to exclude ballots enclosed in envelopes that did not bear the signature of either a notary public or two witnesses as required by a literal reading of Ala.Code Sec. 17-10-7.4

Given this finding of fact, which the state defendants did not contest, the district court concluded that the Roe Class and plaintiff Hooper were entitled to relief; to include the contested ballots in the vote totals would depreciate the votes of the members of the Roe Class and deprive plaintiff Hooper of the office of Chief Justice of Alabama. The same finding of fact also required the court to reject the claims of the Hellums Class; eliminating the contested ballots from the vote totals would not operate to deny the members of that class due process or the equal protection of the laws. Accordingly, the district court entered a final judgment that, among other things, ordered the Secretary of State to certify the results of the elections of chief justice and treasurer.

The Hellums Class now appeals the district court's final judgment. It also moves this court to stay the district court's judgment pending the disposition of its appeal. We granted a temporary stay of the final judgment to enable the parties to brief the motion to stay. Because the granting of a stay would turn on the likelihood of the Hellums Class prevailing on the merits of its appeal, see Garcia-Mir v. Meese, 781 F.2d 1450 (11th Cir.1986); 11th Cir.R. 27-1(b)(1), we directed the parties to brief the merits as well. They have done so, and we have heard argument thereon.

For the reasons that follow, we conclude that the Hellums Class cannot prevail on appeal. Accordingly, we deny its motion to stay and affirm the judgment of the district court.

First, the district court's findings of fact are not clearly erroneous; rather, its findings are supported overwhelmingly by the evidence. With the exception of Washington County, there has been no practice to count ballots that bear only the signature of the voter. Indeed, the practice has been to require, in the words of Ala.Code Sec. 17-10-7, in addition to the voter's signature, the signature of either a notary public or two witnesses.5 Given this practice, we fail to see how the State's refusal to count the contested ballots could deny the Hellums Class due process of law, the Class' first cross claim. The Class' second cross claim fails because refusing to count the contested ballots could not deny them equal protection of the law. The fact that a small number of contested ballots (forty-nine) slipped through is of no consequence.

The Hellums Class' fall-back position, as outlined to us in oral argument, is that neither class states a claim cognizable under the United States Constitution. In other words, we should revisit Roe I and Roe II, which, in affirming the district court's preliminary injunction, held that Roe had presented a claim under the Constitution.6

Roe I and Roe II establish law which is binding upon this panel. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc). Although the law established by the prior panel was announced in a preliminary injunction posture, nevertheless the principle of law adopted was clear. The facts established on remand in the district court were stronger in favor of the Roe Class than the prior panel could have expected. We therefore adhere to our prior conclusion that Roe has presented a claim for relief.

Assuming that to be true, the Hellums Class contends that, as a matter of comity, we should decline to exercise our jurisdiction so as not to interfere with Alabama's election process. If we dismissed the case, the Hellums Class represents, the Class would immediately move the Montgomery County Circuit Court, once again, to order the county election officials to amend their vote totals to include the contested ballots and the Secretary of State to include them in the election results for the office of chief justice.

Whether the Montgomery County Circuit Court has jurisdiction to grant the Hellums Class such relief is, as we noted in Roe I, highly doubtful. Roe I, 43 F.3d at 582. See Ala.Code Sec. 17-15-6.7 The Alabama Attorney General, appearing on behalf of the Secretary of State and the election officials of the State's sixty-seven counties (the Odom defendants), citing section 17-15-6, has moved the Montgomery County Circuit Court to dismiss Odom v. Bennett for want of subject matter jurisdiction. But, putting this issue aside, directing the district court to dismiss this case would, as we observed in Roe I, leave the Roe Class without an adequate forum for the vindication of its federal constitutional claims. Roe I, 43 F.3d at 582.

Finally, the Hellums Class urges us to give effect to the Supreme Court of Alabama's answer to the question we certified in Roe I: that the envelopes enclosing absentee ballots need not bear the signature of either a notary public or two witnesses. What the Hellums Class ignores is that the Alabama Supreme Court, in answering our question, construed an Alabama statute; the court did not, and was not called upon to, decide whether the counting of the contested ballots cast in the November 8, 1994, general election--in the face of Ala.Code Sec. 17-10-4 and in the face of a uniform state-wide practice of excluding such ballots8--infringed the Roe Class' constitutional rights. See Griffin v. Burns, 570 F.2d 1065 (1st Cir.1978).

In conclusion, we AFFIRM the judgment of the district court. The State defendants, who have not appealed and who stand ready to comply with the district court's injunction, are directed to comply with that injunction forthwith.

Because this litigation is now at an end, we direct the Clerk to issue the mandate instanter.