Ayers-Schaffner v. DiStefano ( 1994 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1884
M. JANICE AYERS-SCHAFFNER, ET AL.,
Plaintiffs, Appellees,
v.
JOSEPH R. DISTEFANO, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Keeton*, District Judge.
Anthony J. Bucci, Jr., for appellants.
Michael DiBiase for appellees.
September 30, 1994
*Of the District of Massachusetts, sitting by designation.
COFFIN, Senior Circuit Judge. This case poses an
interesting, and readily answerable, constitutional question: can
state election officials restrict the right to vote in a new,
curative election to those who participated in the original,
defective election? The district court found no state interest
served by such a limitation, and rejected it as unconstitutional.
We agree, and thus affirm the district court's order directing
that the contested new election be open to all registered and
qualified voters.1
I. Factual Background
On June 7, 1994, a nonpartisan primary election was held for
three seats on the Warwick School Committee. Voters were
permitted to vote for up to two candidates for the three open
positions. After the election, as a result of a protest filed by
several of the 15 candidates, the Rhode Island Board of Elections
ruled that each voter should have been limited to a single vote.
The Board also found that there was a probability that the
election results would have been different had the correct
procedure been used, and it consequently ordered that a new
election be conducted. It further ruled that the new election be
limited to those candidates and voters who participated in the
original balloting.
1 We issued an order affirming the district court's judgment
immediately after oral argument in this case on September 16,
1994, notifying the parties that an opinion would follow.
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This action followed.2 The plaintiffs are registered
voters in the City of Warwick who were eligible to vote in the
first election but did not. They wish to be allowed to vote in
the second one. They brought suit on behalf of themselves and
all similarly situated Warwick residents against the Board of
Elections, alleging violations of their rights of free speech,
association, equal protection, and due process as guaranteed by
the First and Fourteenth Amendments.3
The district court ruled in their favor, finding that no
state interest justified the limitation on voters. The Board now
appeals, claiming that the district court erred in applying the
applicable precedent to the circumstances of this case. The
Board claims that its restriction on voters imposes a minimal
burden on the plaintiffs while serving legitimate and compelling
state interests.
Like the district court, and substantially for the reasons
it gave, we conclude that the Board's notion of the applicable
constitutional principles is off the mark.
II. Discussion
In its simplest form, this case asks us to decide whether a
state may condition the right to vote in one election on whether
that right was exercised in a preceding election. So stated, the
2 The curative primary election originally was scheduled for
July 19, 1994. After this lawsuit was filed, the Board agreed to
reschedule the election to October 4, 1994.
3 Plaintiffs also alleged state causes of action, which we,
like the district court, need not reach.
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case is hardly worthy of discussion. The right to vote "``is of
the most fundamental significance under our constitutional
structure,'" Burdick v. Takushi, 112 S. Ct. 2059, 2063 (1992),
and depriving a qualified voter of the right to cast a ballot
because of failure to vote in an earlier election is almost
inconceivable. See generally Reynolds v. Sims, 377 U.S. 533,
554-55 (1964) (quoted in Griffin v. Burns, 570 F.2d 1065, 1075
(1st Cir. 1978) ("[A]ny restrictions on [the right to vote]
strike at the heart of representative government.")
The Board contends that this case is not that one because
the second election here is not a new, independent election, but
simply a recreation of the defective primary. It asserts that
this distinction renders the right-to-vote caselaw largely
inapposite, and that no precedent bars its effort to hold a
lawful version of the defective election by restricting
participation to the original voters and candidates.4 The Board
maintains that this plan imposes, at most, only a minimal burden
on the plaintiffs because of the easy access provided to the
regularly scheduled election. And it cites a litany of purposes
served by its plan. See infra at n.6.
The Board's effort to distinguish this case is flawed in
several respects. First, we cannot accept the Board's suggestion
that the second election here is free from the requirements of a
genuine election because its purpose is simply to replicate a
4 No challenge has been made to the Board's decision to
limit the ballot to those who were candidates in the original
primary, and our opinion does not address that issue.
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previous event. The original election was defective and invalid,
and the Board deemed its results unreliable. The primary
objective of the second election therefore must be viewed as
identical to that of the original one, to choose through valid
procedures the candidates supported by a majority of the eligible
voters. To exclude plaintiffs from the second election is to
exclude them from the only primary that will determine the
candidates for the school committee offices.
Moreover, the goal of reconstructing the original election
is, at best, an illusory one. Presumably, some of the voters who
voted the first time will be unable, for various reasons, to
participate in the new election. Unexpected trips and illnesses,
or even death, may intervene. Some voters no longer may be
eligible, having moved from the area. In addition, some
undetermined number of voters in the original election voted only
for the bond issue that was on the ballot, and some of them could
be expected to vote this time for the school committee
candidates. An identical match of voters is therefore extremely
unlikely.
The second flaw is found in the Board's suggestion that the
burden imposed by its action is slight because plaintiffs had
ample opportunity to vote in the first election. This is
tantamount to a claim that plaintiffs waived their right to vote
in the second election by failing to vote in the first. However
characterized, the contention is wholly without force.
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While it is true that plaintiffs knowingly gave up the only
opportunity they expected to have to vote in the primary, they
did not thereby waive their interest in the outcome of the
election. Nor did they demonstrate any willingness to forego a
second chance to vote if circumstances should make a curative
election necessary. In the absence of any advance warning that
failure to vote in the first election would preclude voting in
the second, their lack of participation in the original balloting
cannot in any respect be viewed as a waiver of the right to vote
in the new primary. And, while access to the first election may
have been easily achieved, what is before us is the total denial
of the right to vote in the only primary with any significance in
the school committee race. That burden is undeniably severe, and
it is in no way lessened by the past opportunity to vote in an
invalid election.5
Third, and most significantly, the Board is unable to
articulate any meaningful interest served by its voter
restriction. Of the seven separate interests listed in its
brief,6 one is facially meritless,7 and the remainder all rest
5 Nor is the ability to vote in the general election a
satisfactory alternative for those voters not allowed to vote in
the primary, as the candidate of their choice may have been
excludedin the preliminary election from which they were barred.
6 The seven interests are as follows:
(1) preserving the integrity of the electoral process,
(2) enhancing confidence of the electors in election
results, (3) recreating the election to fashion a
remedy that would generate a valid expression of the
will of the voters who participated in the June 7, 1994
originally scheduled election, (4) encourage better
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on the premise that limiting the pool of eligible voters to those
who actually voted in the first election is necessary to preserve
the integrity of either the original or overall electoral
process. As to the original election, it is precisely because
the Board found the process to be vulnerable that a new election
was scheduled, and any concern for preserving the original votes
and outcome is therefore without substance. Indeed, the Board
explicitly found "a probability that the order of finish of the[]
candidates might have been altered" had the correct procedure
been followed. Preserving what would have been the outcome of
the election had it been properly conducted, while a legitimate
objective, is, as we have discussed earlier, not feasible in
light of the inevitable changes in the availability of the
original voters.
voter participation in elections by informing voters
that they will only get one opportunity to vote in each
election, (5) avoiding the debasement and disillusion
of those votes that were cast in the original election
which would occur if the election were not recreated as
provided in the Board's Decision, (6) not punishing
those voters who took the time and made the effort to
participate in the original election by diluting their
votes, and (7) avoiding the patent unfairness that
could result to those candidates and their supporters
that seemingly prevailed in the original June 7, 1994
primary.
7 We share the district court's view that there is no
substance in the asserted interest in "encourag[ing] better
participation in elections by informing voters that they will
only get one opportunity to vote in each election." We doubt
that a voter would decide to vote in an election only to preserve
the opportunity to vote in an unlikely-to-occur curative
election. Moreover, those who voted in the original election are
being given another opportunity to vote under the Board's ruling.
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With the interest in electoral integrity either
inappropriately linked to the original election, or unable to be
served as it relates to that election, the only interest in
integrity that remains concerns the overall process for choosing
school committee candidates. The Board's restriction on voters
does not serve this interest.
Once the Board wiped the slate clean by nullifying the first
election, what needed to be recreated was the "democratic
process" surrounding the selection of school committee
candidates, not the particular conditions surrounding the
original election. See Griffin, 570 F.2d at 1079 n.14 ("The
Constitution protects the right of all citizens to democratic
processes, not the right of any particular candidate or voters to
a certain result.") The foundation of our "democratic process"
is the right of all qualified voters to cast their votes
effectively. See, e.g., Burdick, 112 S. Ct. at 2063; Anderson v.
Celebrezze, 460 U.S. 780, 787 (1983); Wesberry v. Sanders, 376
U.S. 1, 17-18 (1964); Reynolds v. Sims, 377 U.S. at 554-55.
Depriving eligible voters of the right to vote in the "effective"
election shakes that foundation and weakens, rather than
supports, the broad goal of preserving the integrity of the
electoral process. Indeed, it imposes a penalty for the past
failure to vote, precisely the course of action we deemed
transparently unconstitutional at the outset of our discussion.
The Board's effort to characterize its order as merely a
"time, place and manner" restriction blinks reality. The states'
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authority to regulate elections stems from a recognition,
embodied in the Constitution, that elections must be structured
carefully to ensure that they are fair and honest, and so that
"some sort of order, rather than chaos, is to accompany the
democratic processes," Burdick, 112 S. Ct. at 2063 (quoting
Storer v.Brown, 415 U.S.724, 730 (1974)). Thisauthority, however,
does not extinguish the State's responsibility to
observe the limits established by the First Amendment
rights of the State's citizens. The power to regulate
the time, place, and manner of elections does not
justify, without more, the abridgement of fundamental
rights, such as the right to vote . . . .
Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217
(1986) (citing Wesberry v. Sanders, 376 U.S. at 6-7). In this
case, the contested order does not implicate the structure of the
election, but goes directly to the heart of the voting privilege,
denying the privilege to many fully qualified voters.8
To put our analysis in traditional right-to-vote terms, see
Burdick, 112 S. Ct. at 2062,9 the Board has failed to offer even
8 It is, of course, well established that states may
restrict the voting privilege through residency and other
registration requirements. The crucial distinction here is that
the plaintiffs have satisfied the state's standard voting
requirements.
9 Quoting from Anderson, 460 U.S. at 789, and Tashjian, 479
U.S. at 213-214, the Supreme Court in Burdick formulated the
standard as follows:
A court considering a challenge to a state election law
must weigh "the character and magnitude of the asserted
injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to
vindicate" against "the precise interests put forward
by the State as justifications for the burden imposed
by its rule," taking into consideration "the extent to
which those interests make it necessary to burden the
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a rational basis for its direct, retroactive limitation on the
right to vote. In light of the obviously severe nature of the
injury to the plaintiffs, who would be denied the right to
participate in the selection of school committee candidates, the
restriction cannot be permitted.
Although the Board cites numerous cases in support of its
position, none involves an equivalent action. The long line of
cases upholding ballot access requirements are patently
inapplicable, as limiting candidates through reasonable advance
requirements provides no justification for the retroactive
restriction of the right to vote. See, e.g., Munro v. Socialist
Workers Party, 479 U.S. 189 (1986) (requirements for placement of
minority party candidates on ballot); Storer v. Brown, 415 U.S.
724 (1974) (requirements of party disaffiliation and no voting in
preceding primary for access to ballot as independent); Felice v.
Rhode Island Board of Elections, 781 F. Supp. 100 (D.R.I. 1991)
(candidate must file declaration precisely as name appeared on
plaintiff's rights."
Under this standard, the rigorousness of our
inquiry into the propriety of a state election law
depends upon the extent to which a challenged
regulation burdens First and Fourteenth Amendment
rights. Thus, as we have recognized when those rights
are subjected to "severe" restrictions, the regulation
must be "narrowly drawn to advance a state interest of
compelling importance." . . . But when a state election
law provision imposes only "reasonable,
nondiscriminatory restrictions" upon the First and
Fourteenth Amendment rights of voters, "the State's
important regulatory interests are generally sufficient
to justify" the restrictions.
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voting list).10 The right-to-vote cases also involve
conditions explicitly established in advance as prerequisites for
voting, see, e.g., Rosario v. Rockefeller, 410 U.S. 752 (1973)
(upholding advance party affiliation requirement for party
primary); Dunn v. Blumstein, 405 U.S. 330 (1972) (upholding bona
fide residence requirements, but rejecting one-year durational
requirement). The Board points to no federal case in which a
segment of the electorate, qualified to vote under state and
local law, is barred from participating in an election based on
the failure to meet some later-imposed, additional criteria.
The Board's most apposite precedent is a Rhode Island
Supreme Court case, Buonanno v. DiStefano, 430 A.2d 765 (R.I.
1981), in which the state Board of Elections ordered a special
election limited to two polling places where voting machines had
malfunctioned during the regular election. Only those voters who
had voted at those two polling places were eligible to vote in
the special election.
The Supreme Court upheld the Board's order, describing as
"ingenious" the Board's attempt to reconstruct the election. Id.
at 771. As the district court in this case noted, however, the
10 The Board claims that these cases are relevant in light
of the Supreme Court's statement that "``the rights of voters and
the rights of candidates do not lend themselves to neat
separation,'" Burdick, 112 S. Ct. at 2065-66 (quoting Bullock v.
Carter, 405 U.S. 134, 143 (1972)). The issue in Burdick was
whether a state could bar write-in voting. The petitioner was a
voter. The Court noted the close link between voters' and
candidates' rights in the course of rejecting the suggestion that
the challenge to the law was more potent because framed as a
right-to-vote rather than a ballot access case.
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Supreme Court made only scant reference to the portion of the
Board's decision limiting the special election to those who
previously had voted,11 and, in fact, it appears likely that
the petitioner did not challenge that aspect of the Board's
ruling. In addition, the Board in Buonanno did not "clean the
slate" by invalidating the whole election, but called for
reconstruction of only a portion of the voting. We need not
decide here whether the breadth of the voting limitation is
significant; for our purposes, it is enough to say that a case
upholding a voting restriction in such a limited context and
without constitutional analysis is of doubtful support when an
entire election has been invalidated.
Indeed, an earlier Rhode Island case more factually
analogous to the present case suggests that the state's high
court views full voter participation as the appropriate procedure
when a completely new election is held. In Whitman v. Mott, 114
R.I. 530, 336 A.2d 836 (R.I. 1975), cited in Buonanno, the court
invalidated a town council election because voters were allowed
to vote for five of the six candidates when they should have been
limited to three votes. The Court scheduled a new election
limited to the six original candidates, but expressly ruled "that
11 The court recognized that practical difficulties
concerning voter turnout are involved in holding a new election,
but noted that "[a]t least the new election gave to the voters
who had taken the pains to go to the polls a second chance to
express their choice about whom they desired to serve in the
council at-large positions." Id. at 771. The court then stated
that "[t]he practical difficulties are far outweighed by the
value served by this remedy." Id.
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anyone eligible to vote on the day specified for the special
election may cast a ballot for those candidates whom he or she
thinks is best qualified to serve." 114 R.I. at 539, 336 A.2d at
841. See also Griffin v. Burns, 431 F. Supp. 1361 (D.R.I. 1977),
aff'd, 570 F.2d 1065 (1st Cir. 1978).12
It bears repeating that "[t]he right to vote is one of the
most important and cherished constitutional rights," Leaks v.
Board of Elections of the City of New York, 58 N.Y.2d 882, 883,
447 N.E.2d 42, 43, 460 N.Y.S.2d 494, 495 (1983). In a fresh
election designed to determine which candidates are supported by
a majority of the properly registered voters, we cannot conceive
of a governmental interest sufficiently strong to limit the right
to vote to only a portion of the qualified electorate. In this
case, at least, where such an interest has not been articulated,
12 In Griffin, the district court found that the
invalidation of absentee and shut-in ballots in a party primary
for a Providence city council seat was unconstitutional. In
ordering a new election open to all qualified voters, the court
stated:
Although a new election cannot replicate the conditions
of the March 29 election, each qualified voter will
have a full opportunity to cast a ballot, and to have
that ballot counted. The Constitution demands no less,
and the Court can do no more.
431 F. Supp. at 1369. In affirming, we observed that "a new
primary . . . had the virtue of giving the voters a further
chance, in a fair election, to express their views." 570 F.2d at
1079.
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we conclude that present voting status is the only appropriate
yardstick for eligibility. See id.13
The judgment of the district court is therefore AFFIRMED.
13 Leaks also involved a primary election that was
invalidated. The election board had ordered a new election
limited only to those voters eligible to participate in the first
election. The Court of Appeals reversed in a brief memorandum
decision, ordering that all voters eligible at the time of the
special election be allowed to vote.
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