GRIFFIN v. BURNS, 570 F.2d 1065 (1st Cir. 1978)
LLOYD T. GRIFFIN ET AL., PLAINTIFFS, APPELLEES, v. ROBERT F. BURNS, ETC., ET
AL., DEFENDANTS, APPELLEES, THOMAS A. McCORMICK, DEFENDANT, APPELLANT.
No. 77-1250.
United States Court of Appeals, First Circuit.
Argued September 14, 1977.
Decided January 19, 1978.
Page 1066
Thomas A. McCormick, pro se.
William Y. Chaika, Providence, R. I., with whom Cohen & Chaika,
Providence, R. I., was on brief, for Lloyd T. Griffin, et al.,
appellees.
Julius C. Michaelson, Atty. Gen. and J. Peter Doherty, Sp.
Asst. Atty. Gen., Providence, R. I., on brief, for Robert F.
Burns, etc., appellee.
Ronald H. Glantz, Lincoln, R. I., with whom Joseph A. Rotella,
Providence, R. I., was on brief, for Providence Board of
Canvassers, appellee.
Appeal from the United States District Court for the District
of Rhode Island.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge,
WOLLENBERG, District Judge.[fn*]
[fn*] Of the Northern District of California, sitting by
designation.
LEVIN H. CAMPBELL, Circuit Judge.
[1] This appeal, involving difficult issues of constitutional law
and federalism, arises from a dispute over the use of absentee
and shut-in ballots in a special Democratic primary election held
in the Tenth Ward of Providence, Rhode Island, on March 29, 1977.
The primary was held to select the Democratic candidate to run in
a special election for a vacancy on the Providence City Council.
Thomas McCormick, certified winner of the primary, appeals from
the order of the Federal District Court for the District of Rhode
Island directing that a new primary be held and postponing the
general election. 431 F. Supp. 1361 (D.R.I. 1977). We affirm the
district court's order and, as the new primary has already been
held, lift our stay of the general election.[fn1]
I.
[2] We first set forth the facts. Vying for the position of
Democratic candidate for City Council in the March, 1977, primary
were appellant Thomas McCormick, nominal appellee Lloyd Griffin,
Edward Clement, Lester Fayerweather, and Thomas Slater. Rhode
Island regulates the conduct of party primaries in detail,
R.I.Gen. Laws, 1956 (1969 reenact.), tit. 17, chs. 13, 14, 15, and
the primary was managed pursuant to
Page 1067
statute by the Secretary of State of Rhode Island (the
Secretary), the State Board of Elections (the State Board), and
the Providence Board of Canvassers and Registration (the Board of
Canvassers). R.I.Gen. Laws, tit. 17, chs. 6, 7, 8.
[3] Rhode Island law, as it stood in March of 1977, expressly
permitted absentee and shut-in voting in "all . . . elections in
the state for . . . city, town, ward or district officers", but
did not specify whether the "elections" in which absentee and
shut-in ballots were allowed extended to the party primaries for
such offices. R.I. Gen. Laws § 17-20-1. The Secretary and the
other election officials, believing the issuance of such ballots
in party primaries to be authorized, and acting in accordance
with a practice that had existed in Rhode Island for about seven
years in the case of primaries, advertised and issued various
such ballots for use in this primary.[fn2] The applications for
these ballots consisted of printed forms headed "State of Rhode
Island and Providence Plantations", with a box entitled "For Use
of Secretary of State Only" prominently appearing at the top.
Procedures regularly followed in all Rhode Island elections of
every type were employed in issuing and tabulating these ballots.
See R.I.Gen. Laws, tit. 17, ch. 20. First, pursuant to
R.I.Gen. Laws § 17-20-2, the Secretary advertised in newspapers
that qualified electors could vote in the primary by casting
absentee or shut-in ballots. Next, the Board of Canvassers
processed and screened all applications for such ballots,
forwarding the completed applications to the Secretary, who,
after review and certification, sent the appropriate ballot to
the absentee or shut-in, R.I.Gen. Laws § 17-20-4, -6, who marked
and returned it to the State Board. The State Board, at open
hearing, invalidated improper ballots and forwarded all valid
ballots to the Board of Canvassers for opening and tabulation,
R.I. Gen. Laws § 17-20-21. Finally, the Board of Canvassers
calculated the final official vote and certified a winner,
notifying the Secretary of its results.
[4] In the instant primary, 131 votes were cast by absentee or
shut-in ballots issued in accordance with this procedure. The
State Board invalidated 5 of such ballots and the Board of
Canvassers invalidated 3 more, leaving 123 to be combined with
the machine-vote count. The final vote was as follows:
Machine
Total Shut-in Absentee Total
Clement 165 2 0 167
Fayerweather 86 3 1 90
Griffin 377 77 34 488
McCormick 467 5 1 473
Slater 138 0 0 138
____ __ __ ____
1233 87 36 1356
[5] Almost ten percent of the total vote recorded was cast by
absentee or shut-in ballot. Though Thomas McCormick was the
winner by 90 votes on the machine count, after tabulation of the
absentee and shut-in ballots, Lloyd Griffin commanded a plurality
of 15. Griffin was therefore certified the winner by the Board of
Canvassers.[fn3]
[6] After the primary, McCormick for the first time questioned the
authority of the Secretary to issue and count absentee and
shut-in ballots in a primary election. He made objection to those
and other ballots before the State Board on March 31, 1977,
arguing at hearings on March 31, April 1 and April 2 that no such
ballots should have been certified by the State Board nor counted
by the Board of Canvassers.
[7] Failing to obtain relief in that forum, he promptly filed a
petition for a common law
Page 1068
writ of certiorari in the Rhode Island Supreme Court. (This
appears to be the accepted method in Rhode Island for a candidate
to obtain administrative and judicial review of election
results.) In the petition, McCormick named as defendants the
State Board, the Board of Canvassers, the members of those
boards, the Secretary, and McCormick's four opponents for the
Democratic nomination. He contended that because the Secretary
had no authority to issue and certify absentee and shut-in
ballots in the primary, the 123 votes cast by such ballots were
invalid.
[8] On April 27, 1977, the Rhode Island Supreme Court granted
McCormick's petition for certiorari, a majority of that court
announcing briefly in its written order that "there is no
constitutional or statutory basis for allowing absentee and
shut-in voters to cast their votes in a primary election." It
ordered that the 123 such ballots be invalidated, and Griffin's
certification as candidate by quashed. No opinion was filed with
the April 27 order of the Rhode Island Supreme Court, but six
months later the court issued a comprehensive written opinion.
McCormick v. State Board of Elections, R.I., 378 A.2d 1061
(Oct. 20, 1977).[fn4]
[9] Pursuant to the order of April 27, 1977, the Board of
Canvassers revoked its certification of Griffin as candidate, and
on April 28, 1977, officially named McCormick the Democratic
nominee. Griffin then filed a "Motion to reargue" before the
Rhode Island Supreme Court, in which he requested to be heard on
the question whether the court could or should nullify the March
29 primary and mandate a new election. Though stating that the
question should have been presented at the original hearing and
did not qualify as a basis for a motion for reargument, the state
court heard and on the same day, May 2, rejected the motion.
During the hearing on the motion, a Rhode Island attorney, Walter
Stone, requested and was denied permission to intervene as amicus
curiae on behalf of those whose votes had been invalidated.
[10] Four days later, on May 6, 1977, the Rhode Island General
Assembly enacted a statute expressly authorizing absentee and
shut-in voting in all future state primary elections. 1977
R.I.Pub. Laws ch. 153, "An Act Relating to Absentee Voting." The
new law apparently took effect on May 12, 1977, the day it was
signed by the Governor. The district court found that this
enactment occurred after the April 27 decision of the Rhode
Island Supreme Court had "caught the state by surprise."
[11] On April 29, 1977, while the motion to reargue was pending,
Griffin sought a federal remedy: he, with two other named
plaintiffs, Mary Green, a shut-in voter, and Mary Morrow, an
absentee voter, who had cast ballots in the primary, brought this
action under 42 U.S.C. § 1983 seeking temporary relief from
invalidation of their ballots. Relief was initially denied in
deference to the Rhode Island Supreme Court's pending
consideration of Griffin's motion for reargument. But after the
state court denied Griffin's motion for argument on whether to
hold a new primary, Griffin, Morrow and Green returned to the
district court seeking a temporary restarting order which would
postpone the general election, scheduled for May 3, until the
district court could resolve their claim concerning the primary.
On May 2, the district court issued a restraining order, holding
that federally
Page 1069
cognizable rights were implicated by the facts presented. The
court declined jurisdiction over Griffin on the ground that his
claim, having been adjudicated by the Rhode Island Supreme Court,
as now properly raised only before the United States Supreme
Court, under 28 U.S.C. § 1257. It scheduled a hearing on the
requested preliminary injunction for May 11, 1977.
[12] At the May 11 hearing three voters from the Tenth Ward,
including Mary Green, testified to having cast shut-in votes in
the primary and insisted that they would have secured assistance
to enable them to vote at the polls in person had they known
their shut-in ballots would not be counted. Each described how he
or she would have arranged to be transported to the polls. A
fourth voter, Mary Morrow, who cast an absentee ballot, testified
that she would have arranged her plans so that she could vote in
the state, had she not relied on the representations of defendant
officials that her absentee ballot was valid. McCormick produced
one voter by shut-in ballot who declared that she could not have
voted in person under any circumstances on election day because
she was confined to the hospital.[fn5]
[13] On the basis of this evidence, the district court certified a
class under Fed.R.Civ.P. 23(b)(2) "of all those who voted by
absentee or shut-in ballot in the March 29, 1977, Democratic
primary in the 10th Ward in Providence," indicating in its
opinion, issued May 17, 1977, that it felt constrained by Rule 23
and the "nature of the right to vote" to presume that, like Mary
Green, Mary Morrow, and the other witnesses, all class members
would have made arrangements to vote in person had they known
this would be the only way their vote would count.
[14] The district court went on to rule that while there is no
federal constitutional right to an absentee or shut-in ballot in
state primary elections, there is "an undoubted right, guaranteed
by the Constitution, to vote in primary elections on an
evenhanded basis together with other qualified voters."
431 F. Supp. at 1366. That right was found to have been denied when
these qualified electors lost their franchise in the fashion
described, after having voted in reliance on absentee and shut-in
ballot procedures announced by the state officials. The state's
conduct was additionally characterized as in violation of the due
process clause.[fn6]
[15] The district court concluded that the equitable relief most
appropriate in the situation at hand was to invalidate the March
29 primary, postpone the general election, and schedule a new
primary and election in which the ground rules were clear.
Preliminary to its order, the court found as a fact that the
absentee and shut-in vote had affected the outcome of the
election.
[16] McCormick thereupon appealed to this court, filing with his
notice of appeal a motion for stay if the district court's order.
On July 5, 1977, we granted a stay of the newly-ordered general
election, but denied a stay of the primary ordered by the
district court. The second primary election was held as ordered
by the district court on July 12, 1977. It was conducted in
compliance
Page 1070
with the May, 1977, statute by which the Rhode Island legislature
explicitly authorized the use of absentee and shut-in ballots in
party primaries for local office.
[17] We are advised that the significant results of the July 12
primary were the following:
Machine Shut-in and
Total Absentee Total
Griffin 663 154 817
McCormick 729 45 774
[18] The scheduling of the general election awaits our decision in the
case.
[19] In the present appeal, the Board of Canvassers of the City of
Providence has filed a memorandum supporting the
plaintiffs-appellees in which the Board states, "The retroactive
effect of the order of the Rhode Island State Supreme Court
leaving all those who chose to exercise their franchise in
accordance with the seven-year custom or usage sanctioned by
local and state officials, without any effective voice in
choosing their representative, goes against the very foundations
of the fabric of our democratic society." The Attorney General of
Rhode Island, appearing for the Secretary, does not formally
concede that quashing the ballots was improper but does not argue
otherwise.
II.
[20] McCormick assigns numerous errors in the district court's
disposition. He maintains that no constitutional deprivation
sufficient even for assuming jurisdiction under § 1343(3) or §
1331 was shown by plaintiffs; that the suit is res judicata as to
the voters; and that the group of voters in question was
erroneously certified a Rule 23(b)(2) class. He further urges
that the "outcome test" was not satisfied by plaintiffs, so that
it was error to invalidate the revised results of the March 29
primary, and that principles of comity and federalism restrict
the federal court's intervention in the matter. Finally,
McCormick contends that the federal court is precluded from
mandating a new primary because, under Rhode Island law, only the
City Council of Providence and the Rhode Island Board of
Elections, neither of whom are parties, can call a special
election or fix the date for a primary.
[21] 1. Preliminary questions.
[22] (a) Jurisdiction
[23] Section 1343(3), the jurisdictional counterpart of 42 U.S.C. § 1983,
provides that "district courts shall have original
jurisdiction of any civil action . . . [t]o redress the
deprivation, under color of any State law, statute, . . . custom
or usage, of any right, privilege or immunity secured by the
Constitution of the United States or by any Act of Congress
providing for equal rights of citizens. . . ."
28 U.S.C. § 1343(3). Jurisdiction thus turns on whether there is a
substantial claim under § 1983. As we agree with the district
court that the state's retroactive invalidation of the absentee
and shut-in ballots in this primary violated the voters' rights
under the fourteenth amendment, we hold that jurisdiction lies
der § 1343(3).
[24] (b) Res judicata
[25] McCormick contends that this action is barred by principles of
res judicata and collateral estoppel. There is no question that
those principles are applicable in § 1983 actions that follow
related state or federal civil litigation. Lovely v. LaLiberte,
498 F.2d 1261 (1st Cir.), cert. denied, 419 U.S. 1038,
95 S.Ct. 526, 42 L.Ed.2d 316 (1974); Bricker v. Crane, 468 F.2d 1228
(1st Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1368,
35 L.Ed.2d 592 (1973); see Preiser v. Rodriguez, 411 U.S. 475,
93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Developments in the Law —
Section 1983, 90 Harv. L.Rev. 1111, 1331-54 (1977). But in the
present circumstances we do not think that the certiorari
proceeding instituted by McCormick in the Rhode Island Supreme
Court, nor the motion to reargue filed by candidate Griffin, bars
the present § 1983 action brought by voters who were not parties
to those earlier proceedings.
[26] Res judicata precludes the parties to a law suit, and their
privies, from retaliating issues that were or might have been
raised
Page 1071
between them in that suit. One condition of res judicata is that
the cause of action in the two suits be the same. Sea-Land
Services v. Gaudet, 414 U.S. 573, 578-79, 94 S.Ct. 806,
39 L.Ed.2d 9 (1974). Another is that the persons who are barred from
retaliation have been parties to the first suit or in privity
with a party, and thus have had their day in court. Mere
similarity of interest and a quantum of representation in the
earlier suit does not suffice to bar a nonparty. See IB Moore's
Federal Practice ¶ 0.411[1] (1965).
[27] McCormick's petition for common law writ of certiorari, which
named the other candidates and state election officials — but
none of the voters — as defendants, focused primarily upon
whether Rhode Island law authorized the issuance of absentee and
shut-in ballots in primary, as contrasted with general,
elections. After the court ruled that the ballots were invalid
and should be quashed, the former winner, Griffin, moved
unsuccessfully to reopen and, in urging his own position, argued
that the court's order would also violate the rights of voters
whose ballots were cancelled. The Rhode Island Supreme Court
expressed doubt as to his standing to advance the voters'
grievance as a basis for his own relief, and it flatly rejected
attorney Stone's overtures to intervene as an amicus on behalf of
the allegedly disenfranchised voters. Thus the state certiorari
proceeding, to which the voters never became parties and which
contained no provision for their representation, never progressed
beyond an interpretation of the state election law and, to some
degree, an adjudication of the rights of the candidates
themselves. By contrast, the present § 1983 action, which does
not question the state court's reading of Rhode Island election
law, is concerned with the constitutional rights of voters who,
relying upon official inducements and using ballots printed and
furnished by the state, cast their votes in this primary only to
have them nullified. There is not sufficient identity between the
two proceedings for res judicata to constitute a bar.
[28] Even more clearly, res judicata does not bar the present
voter-plaintiffs as they were not parties in the state court
proceedings, nor in privity with a party.[fn7] Privity is an
elusive concept. It is most understandable when applied to
recognized legal relationships: guardian (or guardian ad Item)
and ward, trustee and beneficiary. It is said that the "
`essential consideration is that it is the right of the [same
person] which was presented and adjudicated by the courts.'" IB
Moore's Federal Practice, supra at 1253, quoting Chicago R. I.
& P. Ry. Co. v. Schendel, 270 U.S. 611, 618, 46 S.Ct. 420,
70 L.Ed. 757 (1926). Candidate Griffin was the party to the state
proceeding who comes closet to having been in privity with the
absentee and shut-in voters.[fn8] His personal interests were
bound up in having their votes counted, and he argued before the
state court that the voters' rights were being unconstitutionally
diluted. The Rhode Island Supreme Court did
Page 1072
not, however, deal with the constitutional issues that he raised,
and questioned Griffin's standing to "urge the
`disenfranchisement' of others as a basis for relief in his own
favor." McCormick v. State Board of Elections, supra,
378 A.2d at 1065. Candidates' rights, though related to voters' rights,
are said to be distinct from them. Bullock v. Carter,
405 U.S. 134, 142-43, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972);
Clough v. Guzzi, 416 F. Supp. 1057, 1066-67 (D.Mass. 1976)
(3-judge court). A person's interest in participating in the
political process through voting and having his vote counted is a
right both "individual and personal in nature." Reynolds v.
Sims, 377 U.S. 533, 561, 84 S.Ct. 1362, 12 L.Ed.2d 506
(1963); United States v. Bathgate, 246 U.S. 220, 227,
38 S.Ct. 269, 62 L.Ed. 676 (1917). The value of meaningful
participation extends beyond that of the interest of the
candidate of one's choice in a victorious election. As the
Supreme Court said with respect to a congressional election, "The
right to participate in the choice of representatives . .
includes . . . the right to cast a ballot and to have it counted
at the general election, whether for the successful candidate or
not." United States v. Classic, 313 U.S. 299, 318,
61 S.Ct. 1031, 1039, 85 L.Ed. 1368 (1940). While Griffin's personal
interests were and presently are parallel with the voters', they
are not necessarily identical — some voters voted for other
candidates. We are unable to say that Griffin's candidate status,
and his attempted assertion of the absentee and shut-in voters'
claims, were enough to make him their actual personal
representative whose action or nonaction in the state proceeding
would legally bind them. See Dudley v. Meyers,
422 F.2d 1389 (3d Cir. 1970).
[29] The absence of privity also prevents collateral estoppel from
applying here. Collateral estoppel forecloses retaliation of an
issue that was expressly argued in a prior action even though the
causes of action are not identical. One such issue could be the
Rhode Island court's ruling that candidate Griffin had failed to
prove that the outcome of the election would have been different
had the Secretary not issued absentee and shut-in ballots. But as
the plaintiffs were not in privity with Griffin, the state
court's ruling cannot stop them from relitigating that issue.
See Cardillo v. Zyla, 486 F.2d 473, 475 (1st Cir. 1973).
Certain inroads have in recent times been made upon the rule of
mutuality as it relates to collateral estoppel, see, e. g.,
Blondertongue Laboratories, Inc. v. Univ. of Ill. Foundation,
402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971); Cauefield v.
Fid. & Cas. Co., 378 F.2d 876 (5th Cir.), cert. denied,
389 U.S. 1009, 88 S.Ct. 571, 19 L.Ed.2d 606 (1967), but these are not
applicable to the present facts.
[30] We hold, therefore, that neither res judicata nor collateral
estoppel bars this action.
[31] (c) Class certification.
[32] McCormick challenges the district court's certification under
Fed.R.Civ.P. 23(b)(2) of the class "of all those who voted by
absentee or shut-in ballot in the March 29, 1977, Democratic
primary in the 10th Ward in Providence." For the action to be so
certified, it must satisfy the requirements of both subsections
(a) and (b)(2) of Rule 23. Subsection (a) permits a class action
"only if (1) the class is so numerous that joinder of all members
is impracticable, (2) there are questions of law or fact common
to the class, (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect
the interests of the class." Subsection (b)(2) requires that "the
party opposing the class ha[ve] acted or refused to act on
grounds generally applicable to the class, thereby making
appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole."
[33] With 123 voters as potential plaintiffs and only limited time
to act,[fn9] the district court did not err in finding that
joinder of
Page 1073
all class members would be impracticable. The court also properly
discerned a question of law or fact common to the voters of the
class, i.e., whether the retroactive invalidation of ballots
cast in an officially-endorsed manner amounted to a
constitutional violation.
[34] It is a closer question whether the named plaintiffs' claims
were "typical", and whether those plaintiffs could fairly and
adequately represent the class. Fed.R.Civ.P. 23(a)(3) and
(a)(4). The named plaintiffs were all Griffin supporters, whose
attorney had formerly represented Griffin. While these facts
assured vigorous representation, see Gonzalez v. Cassidy,
474 F.2d 67, 72, 75 (5th Cir. 1973), a few — though only a few — of
the absentee and shut-in voters had supported candidates other
than Griffin and therefore might have preferred both to let stand
the machine count of the March primary and to be represented by
others than Griffin's supporters and counsel. But not all class
members need "be aggrieved by or desire to challenge defendant's
conduct in order for some to seek relief under (b)(2)." 7A Wright
and Miller, Federal Practice and Procedure, Civil: § 1775 at 21
(1972); Davis v. Weir, 497 F.2d 139, 146-47 (5th Cir. 1974);
Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 937
(2d Cir. 1968); see Senter v. General Motors Corp., 532 F.2d 511,
523-25 (6th Cir.), cert. denied, 429 U.S. 870,
97 S.Ct. 182, 50 L.Ed.2d 150 (1976). The vast majority of those who voted
by absentee and shut-in ballot supported Griffin, and would
presumably have favored a new election: 111 of the 123 such votes
were cast for Griffin, and only six for McCormick, with the
remaining votes being divided between candidates Clement and
Fayerweather. And even persons who supported McCormick having
suffered the loss of their ballots, shared with the other class
members the legal injury complained of here.
[35] McCormick further argues that Morrow's and Green's claims were
not "typical", since not all of the class were shown to have been
willing and able to vote in person had there been no absentee
ballots. Not all, in other words, relied to their detriment upon
the officially issued ballots.[fn10] The district court resolved
this question by declining to presume that members of the
plaintiff class "would have waived their fundamentally important
right to vote for reasons for convenience", citing Johnson v.
Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
Fuentes v. Shevin, 407 U.S. 67, 94-96 & n. 31, 92 S.Ct. 1983,
32 L.Ed.2d 556 (1972); and Ohio Bell Telephone Co. v. Public
Utilities Commission, 301 U.S. 292, 307, 57 S.Ct. 724,
81 L.Ed. 1093 (1937). Not only did plaintiffs produce the testimony of
four witnesses that each would have voted in person, but the
court also noted that two of these were "largely paralyzed",
whose presence in court "testifie[d] to the importance class
members place on the rights and duties of citizenship."
Plaintiffs contend that they could have produced many other
similar witnesses. McCormick, on the other hand, produced one
witness who said she could not, because of hospitalization, have
voted in person.
[36] To proceed as a class, we do not think plaintiffs had to
recreate the probable actions of every class member around the
premise that only polling-place voting was authorized on March
29. The district court could infer, both from the evidence
presented and from the nature of the right, that a substantial
part of the class would have voted in person had absentee ballots
not been offered. "Typicality" in this Rule 23(b)(2) action does
not demand greater precision. See Senter v. General Motors
Corp., supra, 532 F.2d at 525. Rule 23(b)(2) authorizes use of a
class action where
"the party opposing the class has acted . . . on
grounds generally applicable to the class, thereby
making appropriate final injunctive relief . . . with
respect to the class as a whole." [Emphasis
supplied.]
Page 1074
[37] This action easily lends itself to that part of the rule: every
member of the plaintiff class had his vote quashed simply because
it was cast by absentee or shut-in ballot. "[T]he injunctive
relief referred to [in the rule] does not require that the
district court look into the particular circumstances of each
member of the class." 3B Moore's Federal Practice, ¶ 23.40 at
23-653, -654 (1977). Actions under Rule 23(b)(2) may be more
rough-hewn than those in which the court is asked to award
damages: compare the notice and "opting-out" procedures
prescribed for Rule 23(b)(3) actions, with the more flexible
standards governing Rule 23(b)(2) suits. Fed.R.Civ.P. 23(c)(2),
(3); 23(d).[fn11] Given the fundamental right in question and the
relief being sought, plaintiffs' showing provided a sufficient
basis for the district court's determination that the named
plaintiffs' claims typified those of the class, and otherwise met
the standards of Rule 23(b)(2). See Yaffe v. Powers, 454 F.2d 1362
(1st Cir. 1972); see also Wetzel v. Liberty Mutual Life
Insur., 508 F.2d 239 (3d Cir.), cert. denied, 421 U.S. 1011,
95 S.Ct. 2415, 44 L.Ed.2d 679 (1975).
[38] 2. The voters' constitutional claim.
[39] Appellees do not contend that Rhode Island was constitutionally
required to provide for absentee or shut-in voting in party
primaries, see Fidell v. Board of Elections, 343 F. Supp. 913
(E.D.N.Y.), aff'd mem., 409 U.S. 972, 93 S.Ct. 310,
34 L.Ed.2d 236 (1972). Nor do they challenge the authority of the Rhode
Island Supreme Court to construe the state's election laws so as
to preclude such voting. Their claim is simply that Rhode Island
could not, constitutionally, invalidate the absentee and shut-in
ballots that state officials had offered to the voters in this
primary, where the effect of the state's action had been to
induce the voters to vote by this means rather than in person.
The state's action is said to amount — in result, if not in
design — to a fraud upon the absent voters, effectively stripping
them of their vote in the primary.
[40] In analyzing this contention, we begin by agreeing with the
court below that the plaintiffs' right to vote in this primary as
in other elections is protected under the Constitution. In
Reynolds v. Sims, supra, the Court held that unequally
apportioned legislative districts were unconstitutional, and
said,
"Undeniably the Constitution of the United States
protects the right of all qualified citizens to vote,
in state as well as in federal elections. A
consistent line of decisions by this Court in cases
involving attempts to deny or restrict the right of
suffrage has made this indelibly clear. It has been
repeatedly recognized that all qualified voters have
a constitutionally protected right to vote, Ex parte
Yarbrough, 110 U.S. 651 [4 S.Ct. 152, 28 L.Ed. 274],
and to have their votes counted, United States v.
Mosley, 238 U.S. 383 [35 S.Ct. 904, 59 L.Ed. 1355].
In Mosley the Court stated that it is `as equally
unquestionable that the right to have one's vote
counted is an open to protection. . . as the right to
put a ballot in a box.' 238 U.S., at 386
[35 S.Ct., at 905]. The right to vote can neither be denied
outright, Guinn v. United States, 238 U.S. 347
[35 S.Ct. 926, 59 L.Ed. 1340], Lane v. Wilson,
Page 1075
307 U.S. 268 [59 S.Ct. 872, 83 L.Ed. 1281], nor
destroyed by alteration of ballots, see United
States v. Classic, 313 U.S. 299, 315
[61 S.Ct. 1031, 1037, 85 L.Ed. 1368], nor diluted by ballot-box
stuffing, Ex parte Siebold, 100 U.S. 371
[25 L.Ed. 717], United States v. Saylor,
322 U.S. 385 [64 S.Ct. 1101, 88 L.Ed. 1341]. As
the Court stated in Classic, `Obviously included
within the right to choose, secured by the
Constitution, is the right of qualified voters within
a state to cast their ballots and have them counted.
. . .' 313 U.S., at 315 [61 S.Ct., at 1037]. Racially
based gerrymandering, Gomillion v. Lightfoot,
364 U.S. 339 [81 S.Ct. 125, 5 L.Ed.2d 110] and
the conducting of white primaries, Nixon v.
Herndon, 273 U.S. 536 [47 S.Ct. 446,
71 L.Ed. 759], Nixon v. Condon, 286 U.S. 73
[52 S.Ct. 484, 76 L.Ed. 984], Smith v. Allaright,
321 U.S. 649 [64 S.Ct. 757, 88 L.Ed. 987], Terry
v. Adams, 345 U.S. 461 [73 S.Ct. 809,
97 L.Ed. 1152], both of which result in denying to some
citizens their right to vote, have been held to be
constitutionally impermissible. And history has seen
a continuing expansion of the scope of the right of
suffrage in this country. The right to vote freely
for the candidate of one's choice is of the essence
of a democratic society, and any restrictions on that
right strike at the heart of representative
government. And the right of suffrage can be denied
by a debasement or dilution of the weight of a
citizen's vote just as effectively as by wholly
prohibiting the free exercise of the franchise."
[Footnote omitted.]
[41] 377 U.S. at 554, 84 S.Ct. at 1377. In other cases it has been
said that the right of suffrage is "a fundamental political
right, because preservative of all rights." Yick Wo v. Hopkins,
118 U.S. 356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 222 (1885). The
Constitution "does not permit . . . the exclusion of otherwise
qualified persons from the franchise." Phoenix v. Kolodziejski,
399 U.S. 204, 209, 90 S.Ct. 1990, 1994, 26 L.Ed.2d 523 (1969)
(improper to exclude non-property owners from voting on whether
to approve a municipal bond issue). Primaries as well as general
elections are protected as an integral part of the election
process. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801,
9 L.Ed.2d 821 (1963); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757,
88 L.Ed. 987 (1943); United States v. Classic, supra. Voting in
local elections and referendums is subject to constitutional
protection. Phoenix v. Kolodziejski, supra; Kramer v. Union Free
School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583
(1969).
[42] But while the language of these and other Supreme Court
decisions leaves no room for doubt that plaintiffs' voting rights
are, at bottom, federally protected, it is a closer question
whether what happened here amounted to a constitutional violation
entitled to a remedy in a federal court. Two arguments to the
contrary can be made: (1) that not counting plaintiffs' votes is
the sort of hardship that must be borne as the consequence of the
state court's ruling on a disputed legal issue; and (2) that
claimed election irregularities of this sort are beyond the ken
of a federal court. We find no merit in either point.
[43] With respect to the first argument, it is true that ballots may
often be ruled invalid after an election due to innocent
illegalities — a misplaced "X" or the like — but this is not that
situation. Here neither McCormick nor any other candidate or
voter had challenged the absentee or shut-in ballot procedures
prior to the primary;[fn12] the issuance of such ballots followed
longstanding practice; and in utilizing such ballots voters were
doing no more than following the instructions of the officials
charged with running the election. The statute on its face did
not prohibit such ballots, and two of the members of the Rhode
Island
Page 1076
Supreme Court still believe the statute should be read to allow
such ballots in a primary — a view which, of course, does not
vitiate the majority's ruling, but does underscore the
unreasonableness of expecting a voter to have questioned the
State Secretary's and other state officials' issuance of the
absentee ballots. Government officials who act ultra vires
cannot, to be sure, create their own authority. But we do not see
how an election conducted under these circumstances can be said
to be fair. When a group of voters are handed ballots by election
officials that, unsuspected by all, are invalid, state law may
forbid counting the ballots, but the election itself becomes a
flawed process. Given the closeness of the election here, and the
fact that the "right of suffrage is a fundamental matter,"
Reynolds v. Sims, supra, 377 U.S. at 555, 84 S.Ct. at 1378, we
are unwilling to reject appellees' claim merely on the fiction
that the voters had a duty, at their peril, somehow to foresee
the ruling of the Rhode Island Supreme Court invalidating their
ballots. This is especially so where the interest of the state in
the proper interpretation of its laws, and the interests of the
voters, can both be accommodated by the relatively simple
expedient of holding a new primary.
[44] There remains the second and more difficult question of whether
a federal court should intervene to invalidate a local election
in this kind of situation. Federal courts have this power, acting
under the Constitution as well as under the Voting Rights Act of
1965, 42 U.S.C. § 1973. See, e. g., Hadnott v. Amos, 394 U.S. 358,
89 S.Ct. 1101, 22 L.Ed.2d 336 (1969); Bell v. Southwest,
376 F.2d 659 (5th Cir. 1967). But even when dealing with overt
racial discrimination, in violation of the fifteenth amendment,
the Fifth Circuit termed the power "[d]rastic, if not staggering
. . . and therefore a form of relief to be guardedly exercised."
Bell v. Southwell, supra at 662. Compare Hubbard v. Ammerman,
465 F.2d 1169 (5th Cir. 1972), cert. denied, 410 U.S. 910,
93 S.Ct. 967, 35 L.Ed.2d 272 (1973).[fn13]
[45] Federal court intervention into the state's conduct of
elections for reasons other than racial discrimination has
tended, for the most part, to be limited to striking down state
laws or rules of general application which improperly restrict or
constrict the franchise, see, e.g., Bullock v. Carter, 405 U.S. 134,
92 S.Ct. 949, 31 L.Ed.2d 92 (1972) (rejecting candidate
filing fees); Harper v. Va. Bd. of Elections, 383 U.S. 663,
86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (rejecting poll taxes);
Reynolds v. Sims, supra (rejecting geographical restrictions);
Phoenix v. Kolodziejski, supra (rejecting limitation of
franchise to property holders). The Supreme Court has, however,
read the criminal counterpart to the civil rights statutes as
conferring federal jurisdiction over corrupt practices in
state-run elections for federal office. United States v.
Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341 (1944);
United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904,
59 L.Ed. 1355 (1915).
[46] Circuit courts have uniformly declined to endorse action under
§ 1983 with respect to garden variety election irregularities. In
Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975), the Seventh
Circuit refused to act in a case involving the malfunctioning of
voting machines in an election for county office. It described
the election errors as "almost irregularities cases by mechanical
or human error and lacking in individious or fraudulent intent."
Id. at 864. Judge Tone made clear the panel's belief "that the
Constitution protects the right of all qualified
Page 1077
citizens to vote in state and federal elections and to have their
votes counted without debasement or dilution." Id. at 863-64
(Citations omitted.) But he went on to distinguish the voting
machine problems in that case from "wilful conduct which
undermines the organic processes by which candidates are
elected." Id. at 864. Only the latter, in the court's view,
would give rise to a constitutional claim and action under §
1983.
[47] Judge Kaufman, writing for the Second Circuit, similarly denied
relief to six voters who sought a federal remedy (under the
Voting Rights Act of 1965 as well as § 1983) after a close
congressional primary where, by mistake, a number of non-party
members were allowed to vote. Powell v. Power, 436 F.2d 84 (2d
Cir. 1970). The plaintiffs had sought too late the existing state
remedy for review of claimed irregularities of this nature. In
rejecting their subsequent § 1983 claim, the court said,
"[T]he due process clause and article I. section 2
[of the Constitution] offer no guarantee against
errors in the administration of an election. New York
Election Law §§ 145, 303(2) provide a method for
correcting such errors as are made, and the
plaintiffs do not contest the fairness and adequacy
of the remedy."
[48] Id. at 88. Earlier in its decision, the court rejected
plaintiffs' contention that the Voting Rights Act and § 1983
"comprehensively protect their ballots against dilution by
illegal voting whether or not the dilution was wilful or
knowing." Id. at 86.
[49] Even where racial discrimination is alleged, the circuit courts
have deferred to ongoing state recount and review procedures
where these appear to be adequate and the alleged misconduct is
lacking in "enormity". Hubbard v. Ammerman, supra at 1117,
1181; Toney v. White, 488 F.2d 310 (5th Cir. 1973). This is
because the Constitution confers upon the states the "power to
control the disposition of contests over elections to . . . state
and local offices." Hubbard v. Ammerman, supra at 1176, citing
Roundebush v. Hartke, 405 U.S. 15, 92 S.Ct. 804, 31 L.Ed.2d 1
(1972). The federal court is not equipped nor empowered to
supervise the administration of a local election. If every
election irregularity or contested vote involved a federal
violation, the court would "be thrust into the details of
virtually every election, tinkering with the state's election
machinery, reviewing petitions, registration cards, vote tallies,
and certificates of election for all manner of error and
insufficiency under stage and federal law." Powell v. Power,
supra, 436 F.2d at 86; see also Pettengill v. Putnam County,
472 F.2d 121 (8th Cir. 1973).
[50] But while, as the foregoing authorities indicate, local
election irregularities, including even claims of official
misconduct, do not usually rise to the level of constitutional
violations where adequate state corrective procedures exist,
there remain some cases where a federal role is appropriate. The
right to vote remains, at bottom, a federally protected right. If
the election process itself reaches the point of patent and
fundamental unfairness, a violation of the due process clause may
be indicated and relief under § 1983 therefore in order. Such a
situation must go well beyond the ordinary dispute over the
counting and marking of ballots; and the question of the
availability of a fully adequate state corrective process is
germane. But there is precedent for federal relief where
broadgauged unfairness permeates an election, even if derived
from apparently neutral action. Cf. Brinkerhoff-Faris Co. v.
Hill, 281 U.S. 673, 50 S.Ct. 451, 74 L.Ed. 1107 (1930). In Ury
v. Santee, 303 F. Supp. 119 (N.D.Ill. 1969), a federal district
court invalidated an election for the Board of Village Trustees,
clerk, and other matters, in Wilmette, Illinois, on due process
and equal protection grounds. Two months before the scheduled
town election, the incumbent trustees quietly proposed and passed
an ordinance reducing the number of voting precincts from 32 to
6. When election day arrived, these precincts turned out to be
entirely inadequate to the number of electors wishing to vote.
Traffic jams ensued, people waited hours to reach the polls, some
were forced to vote outside of voting
Page 1078
booths, people in populous precincts could not vote, and other
problems arose. Though the precise number of voters turned away
was incapable of calculation, the federal court invalidated the
entire confused election, holding that due process and equal
protection deprivations had been made out by the plaintiff class
of "all registered voters in Wilmette" in that "hundreds of
voters were effectively deprived of their right to vote" and that
voters in populous districts were discriminated against, with the
effect either of changing the election results or rendering the
results doubtful.
[51] In Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970), the case
relied on in large part by plaintiffs and the district court
here, certain nomination papers in a Chicago aldermanic election
were invalidated by the Board of Election Commissioners of the
City of Chicago for technical failings. Those failings had become
such only because the Board had recently changed its requirements
for nominating petitions as they concerned duplicated signatures
and the necessity for a middle initial in the signatures affixed
to the petitions. Plaintiffs, signatories and 19 would-be
candidates, had complied their petitions on the basis of the old
rules, the Board having failed effectively to announce the new.
The court found the Board's refusal to accept the now-invalid
petitions to be constitutionally unacceptable. Due process was
held to require the Commissioners to "establish and publish
meaningful guidelines" for the nomination of candidates. The
unannounced eleventh-hour change of policy could not be used to
deprive candidates and voters the right of participating in the
aldermanic election. Compare Porter v. Bainbridge,
405 F. Supp. 83 (D.Ind. 1975).
[52] While there is no single bright line to distinguish Ury and
Briscoe from the cases cited earlier in which federal courts
have declined to intervene, it is apparent that in both cases the
attack was, broadly, upon the fairness of the official terms and
procedures under which the election was conducted. The federal
courts were not asked to count and validate ballots and enter
into the details of the administration of the election. Rather
they were confronted with an officially-sponsored election
procedure which, in its basic aspect, was flawed. Due process,
"[r]epresenting a profound attitude of fairness between man and
man, and more particularly between individual and government,"
Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 163,
72 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J.,
concurring), is implicated in such a situation. To be sure,
Justice Frankfurter's language does not provide a litmus test for
the determination of federal jurisdiction in every voting case.
But for present purposes there is guidance enough in the nation
that due process is implicated where the entire election process
— including as part thereof the state's administrative and
judicial corrective process — fails on its face to afford
fundamental fairness. Further than that we need not go. In cases
falling within such confines, we think a federal judge need not
be timid, but may and should do what common sense and justice
require.
"No right is more precious in a free country than
that of having a voice in the election of those who
make the laws under which, as good citizens, we must
live. Other rights, even the most basic, are illusory
if the right to vote is undermined."
[53] Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11,
L.Ed.2d 481 (1964).
[54] The present situation, judges in light of the standards we have
discussed, presented a due process violation for which relief
under § 1983 was appropriate. The district court was not asked to
examine the validity of individual ballots or to supervise the
administrative details of a local election. It was asked to
remedy a broadgauged unfairness that infected the results of a
local election. The integrity of the Tenth Ward primary in
Providence was severely impugned by the undisputed events leading
up to plaintiff's suit. Almost ten percent of the qualified and
voting electorate was, in effect, denied its vote in this close
election because the Secretary of State, statutorily authorized
manager of state elections, advertised, issued, and sanctioned
Page 1079
the use of certain ballots which the Rhode Island Supreme Court
quashed after the results of the election were in. Voting by
absentee and shut-in ballots had been accepted in the state over
a period of about seven years; the legislature had never acted to
halt the practice, and indeed, directly after the Rhode Island
Supreme Court's decision, moved to reinstate it, explicitly
authorizing the use of absentee and shut-in ballots in state
primaries. 1977 R.I.Pub. Laws ch. 153. Prompt objection to
quashing the ballots was made in federal court by the voters; and
the federal court acted only after they were refused permission
to intervene at the state court proceeding. The district judge
could justifiably conclude that the voters, including the black
voters, would be offended by the cancelling of the ballots
notwithstanding their established acceptability — due process
involves the appearance of fairness as well as actual fairness.
And the federal court was the only practical forum for redress:
there appears to have been no standard state procedure for
handling a claim such as this, and the state court did not
confront the questions that retroactive application of its ruling
would create.
[55] In brief, we think this to be one of the perhaps exceptional
cases where a district court could properly exercise the limited
supervisory role that such courts have in election cases.
[56] 3. The remedy
[57] McCormick's final objection is to the district court's judgment
ordering a new primary. We observe first that the decision as to
the precise equitable relief to award is within the discretion of
the district court. Lemon v. Kurtzman, 411 U.S. 192,
93 S.Ct. 1463, 36 L.Ed.2d 151 (1973).
"In shaping equity decrees, the trial court is
vested with broad discretionary power; appellate
review is correspondingly narrow. Moreover, in
constitution adjudication as elsewhere, equitable
remedies are a special blend of what is necessary,
what is fair, and what is workable." [Citation and
footnote omitted.]
[58] Id. at 200, 93 S.Ct. at 1469.
[59] The district court in its opinion surveyed the range of
remedies available to it to right the constitutional wrong
plaintiffs had suffered. It correctly decided that comity
counselled against ordering revalidation of the ballots that the
Rhode Island Supreme Court had quashed, but that circumstances
would not tolerate leaving plaintiffs without a remedy.
Accordingly it ordered a new primary, which had the virtue of
giving the voters a further chance, in a fair election, to
express their views.[fn14]
[60] McCormick argues, however, that gauged by an "outcome"
standard, plaintiffs failed to establish that enough of the
disenfranchised absentee voters would have voted in person to
have altered the result. Since Griffin's margin of victory on the
total count was only 15, McCormick argues that to overcome
McCormick's machine count lead of 90 votes, Griffin had to show
that at least 91 of the 123 absentee and shut-in voters would
have voted at the polls for him. The Rhode Island Supreme Court,
in an opinion released well after the district court had acted,
adopted this view, asserting that "[a]ny lesser number could not
possibly have affected the outcome."
[61] But we think the district court was not obliged as a condition
to ordering a new election, to require the plaintiffs to produce
91 voters who would swear that they would have voted in person.
The absentee and shut-in ballots cast in this primary obviously
affected the initial election results: McCormick won on the
machine count, and Griffin on the total count. Comprising about
ten percent of the total vote cast, their suppression amounted to
more than a de minimizes irregularity. As the district court
said, they were "clearly the key to the election."
Page 1080
[62] Given the evidence of some voters — including two who were
severely handicapped — that they would have voted in person, and
the importance of the right to vote, the court could infer that
it was more likely than not that a very significant proportion of
those voting by absentee ballot would have gone to the polls had
such ballots not been available. While the "outcome" test
provides a sensible guidelines for determining when federal
judicial invalidation of an election might be warranted, Star,
Federal Judicial Invalidation as a Remedy for Irregularities in
State Elections, 49 N.Y.U.L.Rev. 1092, 1124-26 (1974);
Developments in the Law — Elections, 88 Harv. L. Rev. 1111,
1134-36 (1975), it is not a principle requiring mathematical
certainty. In cases of outrageous racial discrimination some
courts have chosen not to apply it at all, but to invalidate the
election simply for its lack of integrity. Bell v. Southwest
376 F.2d 659 (5th Cir. 1967); Hamer v. Campbell, 358 F.2d 215
(5th Cir. 1966), cert. denied, 385 U.S. 851, 87 S.Ct. 76,
17 L.Ed.2d 79 (1966); Brown v. Post, 279 F. Supp. 60 (W.D.
La. 1968). And when applied, different formulations of the test
have been proposed: the irregularity "could have altered the
outcome," Coalition for Education in Dist. One v. Bd. of
Elections, 370 F. Supp. 42 (S.D.N.Y. 1974), aff'd 495 F.2d 1090
(2d Cir. 1975); the outcome "would not have been affected,"
Hennings v. Grafton, supra; an altered outcome should be "found
readily where there is a serious violation and close election,"
Hamer v. Ely, 410 F.2d 152 (5th Cir.), cert. denied, 396 U.S. 942,
90 S.Ct. 372, 24 L.Ed.2d 243 (1969). Here, the closeness of
the election was such that, given the retroactive invalidation of
a potentially controlling number of the votes cast, a new primary
was warranted. See Ury v. Santee, supra; Toney v. White, supra;
Coalition for Education v. Bd. of Elections, supra; Hamer v.
Campbell, supra.[fn15]
[63] The district court's judgment is affirmed, and the cause
remanded for the scheduling of a general election to be held on
the basis of the primary of July 12, 1977.
[fn1] We understand that the incumbent has voluntarily continued
to serve as Councilman pending the resolution of this suit.
[fn2] R.I.Gen. Laws § 17-1-2(a) defines the term "election" to
include party primary elections. On the other hand, the absence
of any specific reference to party primaries in the statutory
provision for absentee and shut-in ballots could be read as
precluding the use of such ballots in primaries. The Supreme
Court of Rhode Island, with two dissents, adopted the latter view
in litigation stemming from the primary at issue here. See
infra.
[fn3] The district court observed that the Tenth Ward contains
black population, living south of Route 95, which divides the
Ward, and a white population which lives north of the Route 95
line. McCormick is white and Griffin black. The district court
found "no evidence of any sort that the defendants had any
intention to discriminate against Mr. Griffin . . . or any of his
supporters . . .." 431 F. Supp. at 1364. But see note 6, infra.
[fn4] The Rhode Island Supreme Court, with two of its five
members dissenting, interpreted the absence of express reference
to party primaries in the statute authorizing absentee and
shut-in voting as a clear indication that such ballots were not
legally authorized in primaries. McCormick v. State Board of
Elections, R.I., 378 A.2d 1061 (1977). It also relied on the
legislative history leading up to the 1958 statute, and pointed
to the fact that until "a few years ago" (apparently seven),
Secretaries of State had not issued such ballots in primaries.
The change of practice, the court said, "occurred when the then
secretary of state, without the support of an amendment to the
statute, a judicial decision, or an opinion from the attorney
general, decided sua sponte and without any announced rationale
therefor that the time had arrived when electors should be
allowed to cast absentee and shut-in ballots at party primaries."
Id. at 1064.
The two dissenting justices felt that the statute did authorize
the use of absentee and shut-in ballots in party primaries.
[fn5] Appellee Griffin asserts that at the hearing, he was ready
to produce approximately twenty-five additional voters, with
"another twenty on immediate standby", who would offer similar
testimony to that of Morrow and Green, but that because McCormick
and the State of Rhode Island did not initially agree that
morning to a hearing on the merits, Griffin's counsel excused
many of the alleged twenty-five, asking only a representative few
to stay and testify in support of the motion for a preliminary
injunction.
[fn6] While the court found no evidence of racial discrimination,
see note 3, supra, it remarked that, "many voters in the 10th
ward perceive that an election won by their candidate, a black
man, was suddenly reversed by a judicial decision holding a
long-standing practice of counting absentee and shut-in ballots
illegal. The voters of this same ward in November, 1976, elected
a black state representative who has been refused his seat in the
Rhode Island Legislature and extradited to Michigan. . . . [T]he
actions complained of by plaintiffs had an undeniable racial
effect on the outcome of the election, an effect observed by the
black voters of the 10th ward." 431 F. Supp. at 1364 [Citation
omitted.]
[fn7] There are specialized proceedings, such as bankruptcy,
reorganization, or probate proceedings, where a party may be
barred from future litigation by his mere failure to intervene.
See Penn-Central Merger and N & W Inclusion Cases, 389 U.S. 486,
88 S.Ct. 602, 19 L.Ed.2d 723 (1968). Cases in that category
would seem limited, however, to ones where by statute, rule or
practice, intervention, after notice, is invited, or at least
where the affected parties have reason to understand that their
rights will be foreclosed unless timely asserted in the original
proceeding. Nothing has been called to our attention placing the
Rhode Island certiorari petition in this category. An election,
like a bankruptcy, of course, affects a multitude of interests,
and might admit of similar treatment if the legislature were to
establish an appropriate format; but the common law certiorari
proceeding as instituted by one of the candidates presented no
clear opportunity and cut-off for resolution of the claims of the
nonparty voters. It does not appear that the present plaintiffs
were required to be notified of the proceeding, and it is unclear
if they would even have been allowed to intervene. The
last-minute effort by Attorney Stone to intervene for some or all
voters was disallowed.
[fn8] The State Board, which was a party defendant to the
certiorari petition, was not in privity with these voters: it is
given no special interest in, nor duty to represent and protect
before the court, those casting absentee and shut-in ballots.
[fn9] The election that plaintiffs sought to postpone was
scheduled for May 3, only six days after the Rhode Island Supreme
Court's ruling.
[fn10] McCormick frames this argument in terms of the absence of
a common question of law or fact; we see it more as a question of
typicality. Insofar as the same question relates to whether
plaintiffs are entitled under the "outcome test" to a new
primary, the question is discussed below under the issue of
relief.
[fn11] Even in 23(b)(3) class actions alleging violations of §
10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, a
cause of action in which problems of differing degrees of
reliance by class members on alleged misrepresentations by
defendants invariably occur, wide variance is permitted among
class members. As the Ninth Circuit explained in Blackie v.
Barrack, 524 F.2d 891, 910 (9th Cir. 1975).
"[Supreme Court case law] does not, however, as
defendants seem to assume, dictate that any
divergence of interest among class members violates
due process (thereby necessarily requiring an
identity of interests to satisfy Rule 23's adequacy
or [sic] representation and typicality
requirements). Neither the Rule's requirements nor
those of due process are so inflexible. The due
process touchstone of adequacy and fairness of
representation must be judged in light of the
seriousness and extent of conflicts involved compared
to the importance of issues uniting the class; the
alternatives to class representation available; the
procedures available to limit and prevent unfairness;
and any other facts bearing on the fairness with
which the absent class member is represented."
[Citations and footnote omitted.]
[fn12] The court in Toney v. White, 488 F.2d 310, 315 (5th Cir.
1973), emphasized that voters' grievances concerning an election
had, when possible, to be aired prior to the election.
"[C]itizens having grievances may not lay by to see how the
election will turn out before complaining." Id. Here McCormick
solicited absentee ballots and complained of the use of such
ballots only after the results were in, when it was apparent that
they benefited his opponent more than himself.
[fn13] The Fifth Circuit described 28 U.S.C. § 1344 as "the only
Act of Congress conferring jurisdiction on a United States
District Court in a state or local election contest (primary or
general) to hear and decide the issue of who has received a
majority of the votes legally cast." Hubbard v. Ammerman,
465 F.2d 1169, 1180 (5th Cir. 1972), cert. denied, 410 U.S. 910,
93 S.Ct. 967, 35 L.Ed.2d 272 (1973). That statute relates solely to
racially-based denials of the right to vote. The Fifth Circuit's
comment takes no account of any possible effect of § 1983 or
other civil rights statutes. Cf., e. g., United States v.
Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341 (1944)
(applying the criminal analogue of § 1985 to a case of election
fraud).
[fn14] We disagree with McCormick's argument that a new primary
somehow "diluted" his supporters' vote in the earlier primary.
His supporters remained free to vote as before. The Constitution
protects the right of all citizens to democratic processes, not
the right of any particular candidate or voters to a certain
result.
[fn15] We also agree with the district courts ruling that all
indispensable parties to the suit were joined. The most
significant defendants, the Secretary and the Board of
Canvassers, those who issued and certified the ballots in large
part, were named. The State Board might have been included, but
the district court's reasoning on its status is persuasive: "The
Rhode Island Board of Elections has no interest which this court
can discern here. It supplied machines and certified candidates
but has nothing at stake in the outcome. These functions are no
bar and complete relief may be afforded without its
participation." Regardless of the statutorily-assigned duties to
set a date for a primary or call a special election, the district
court had the power to order the relief in question. "Where it is
necessary to override specific provisions of state law to afford
adequate relief, the state statutes must yield." Taylor v.
Monroe County Board of Supervisors, 421 F.2d 1038, 1041 (5th
Cir. 1970).
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