AYERS-SCHAFFNER v

AYERS-SCHAFFNER v. DISTEFANO, 37 F.3d 726 (1st Cir. 1994)

M. JANICE AYERS-SCHAFFNER, ET AL., PLAINTIFFS, APPELLEES, v. JOSEPH R.

DISTEFANO, ET AL., DEFENDANTS, APPELLANTS.

No. 94-1884.

United States Court of Appeals, First Circuit.

Heard September 16, 1994.

Decided September 30, 1994.

  Anthony J. Bucci, Jr., Providence, RI, for appellants.

  Michael DiBiase, Providence, RI, for appellees.

  Appeal from the United States District Court for the District

of Rhode Island.

Page 727

  Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge,

and KEETON[fn*], District Judge.

[fn*] Of the District of Massachusetts, sitting by designation.

  COFFIN, Senior Circuit Judge.

[1] 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, 860 F. Supp. 918. We agree, and

thus affirm the district court's order directing that the

contested new election be open to all registered and qualified

voters.[fn1]

[2]                      I. Factual Background

[3] 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.

[4] This action followed.[fn2] 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.[fn3]

[5] 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.

[6] 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.

[7]                         II. Discussion

[8] 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

case is hardly worthy of discussion. The right to vote "`is of

the most fundamental significance under our constitutional

structure,'" Burdick v. Takushi, ___ U.S. ___, ___,

112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (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, 84 S.Ct. 1362, 1377-78,

12 L.Ed.2d 506 (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."))

[9] 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

Page 728

and candidates.[fn4] 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.

[10] 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

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.

[11] 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.

[12] 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.

[13] 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.[fn5]

[14] 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,[fn6] one is facially meritless,[fn7] and the remainder all

rest

Page 729

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.

[15] 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.

[16] 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, ___ U.S. at ___,

112 S.Ct. at 2063; Anderson v. Celebrezze, 460 U.S. 780, 787,

103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983); Wesberry v. Sanders,

376 U.S. 1, 17-18, 84 S.Ct. 526, 534-35, 11 L.Ed.2d 481 (1964);

Reynolds v. Sims, 377 U.S. at 554-55, 84 S.Ct. at 1377-78.

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.

[17] The Board's effort to characterize its order as merely a "time,

place and manner" restriction blinks reality. The states'

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, ___ U.S. at ___,

112 S.Ct. at 2063; (quoting Storer v. Brown, 415 U.S. 724, 730,

94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974)). This authority, 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. . . .

[18] Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217,

107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986) (citing Wesberry v.

Sanders, 376 U.S. at 6-7, 84 S.Ct. at 529). 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.[fn8]

[19] To put our analysis in traditional right-to-vote terms, see

Burdick, ___ U.S. at ___, 112 S.Ct. at 2062,[fn9] the Board has

failed to

Page 730

offer even 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.

[20] 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, 107 S.Ct. 533, 93 L.Ed.2d 499

(1986) (requirements for placement of minority party candidates

on ballot); Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274,

39 L.Ed.2d 714 (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 voting list).[fn10] 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, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973) (upholding

advance party affiliation requirement for party primary); Dunn

v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (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.

[21] 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.

[22] 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 Supreme Court made only scant reference to the portion of the

Board's decision limiting the special election to those who

previously had voted,[fn11] and, in fact, it appears likely that

the petitioner did not challenge that aspect of the Board's

ruling.

Page 731

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.

[23] 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

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).[fn12]

[24] 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, we

conclude that present voting status is the only appropriate

yardstick for eligibility. See id.[fn13]

[25] The judgment of the district court is therefore AFFIRMED.

[fn1] 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.

[fn2] 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.

[fn3] Plaintiffs also alleged state causes of action, which we,

like the district court, need not reach.

[fn4] 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.

[fn5] 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

excluded in the preliminary election from which they were barred.

[fn6] 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 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.

[fn7] 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.

[fn8] 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.

[fn9] Quoting from Anderson, 460 U.S. at 789,

103 S.Ct. at 1570, and Tashjian, 479 U.S. at 213-14, 107 S.Ct. at 547-48,

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 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.

[fn10] 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, ___ U.S. at ___, 112 S.Ct. at 2065-66 (quoting

Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856,

31 L.Ed.2d 92 (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.

[fn11] 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.

[fn12] 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.

[fn13] 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.