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03/14/95 LARRY ROE v. MOBILE COUNTY APPOINTMENT

March 14, 1995

LARRY ROE, ET AL.
v.
MOBILE COUNTY APPOINTMENT BOARD, ET AL. LARRY ROE, ET AL. V. STATE OF ALABAMA, BY AND THROUGH ITS ATTORNEY GENERAL, JEFF SESSIONS, ET AL.



(CV-94-7138). (CV-94-7155).

Almon, Shores, Ingram, and Cook, JJ., concur. Maddox, J., Dissents. Dissent to follow. Hornsby, C.j., recused. Houston, J., recused (with statement indicating reasons for recusal).

CERTIFIED QUESTION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PER CURIAM.

The United States Court of Appeals for the Eleventh Circuit asks: Does Alabama law permit or require some, but not all, absentee ballots which are sealed in envelopes signed by the voter, but not notarized or witnessed by two witnesses as required by § 17-10-7, Ala. Code 1975, to be counted to determine the results of the general election held November 8, 1994? *fn1 The Eleventh Circuit states the question:

"Whether absentee ballots that, on the accompanying affidavit envelope, fail to have two witnesses and lack proper notarization (for example, ballot envelopes that have only a signature or only one witness, or on which the voter and the notary have signed the ballot, but the notary fails to fill in the 'title of official') meet the requirements of Alabama Law, specifically Alabama Code Section 17-10-7, to be legal ballots due to be counted in the November 8, 1994 general election."

On November 8, 1994, Alabama held a general election. When the voting was complete, the preliminary unofficial results showed the race for Chief Justice of the Supreme Court to be extremely close, as was that for State Treasurer. Shortly after election day, it was discovered that, within the State of Alabama, ballots not in strict compliance with the statute had been counted in some counties and had not been counted in others. Because of the closeness of the tally, the treatment of some 2,000 uncounted absentee ballots by Alabama election officials became an issue. No one knows what the result of the election will be when these ballots are counted. It is known that ballots not legally distinguishable from these uncounted ballots have been counted.

Litigation History

The litigation involving the November 8th election began on November 11, 1994, when the Republican candidate for Chief Justice of the Supreme Court, Perry O. Hooper, Sr., and the Republican candidate for State Treasurer, James D. Martin, sought an ex parte temporary restraining order ("TRO") from Shelby County Circuit Court to secure all election records for an anticipated election contest. They named as defendants individuals who represented a class of persons composed of all Alabama election officials. *fn2 The circuit Judge ordered the election officials to maintain the possession and security of all election materials, including absentee ballots and related affidavits. This order was served or sent by facsimile to voting officials throughout the state.

On November 16, 1994, voters Michael Lewis Odom and John W. Davis, each of whom had voted by absentee ballot, filed suit in the circuit court of Montgomery County, Alabama, *fn3 seeking a ruling that Davis's absentee ballot, which is one among some 2,000 statewide absentee ballots sealed in envelopes signed by voters but not also notarized or signed by two witnesses, should be counted. *fn4 The plaintiffs sought a temporary restraining order that would enjoin Secretary of State James Bennett from certifying the results of the general election without counting the ballots that substantially complied with the absentee ballot form, pursuant to Wells v. Ellis, 551 So. 2d 382 (Ala. 1989), and Williams v. Lide 628 So. 2d 531 (Ala. 1993). *fn5

Judge Joseph D. Phelps convened a hearing on the TRO at approximately 6:00 p.m. and took testimony. He then issued a temporary restraining order from the bench giving the court an opportunity to hear, and the parties an opportunity to present, at a full hearing, evidence and law on the issue of whether or not there were absentee ballots wrongfully excluded. The next morning Judge Phelps issued a written order enjoining the Secretary of State from certifying and counting the election results until a full hearing could be held in this cause or until further order of this Court.

That afternoon, a hearing was held before Judge Eugene W. Reese. *fn6 Present at the hearing was Algert S. Agricola, Jr., representing the Republican Party, which sought and was granted leave to intervene. Subsequently, Judge Reese held that absentee ballots should be counted if they met the "substantial compliance" standard articulated in Wells v. Ellis, 551 So. 2d 382 (Ala. 1989), and Williams v. Lide, 628 So. 2d 531 (Ala. 1993). His order stated:

"In accordance with Williams v. Lide, those persons counting the absentee ballots for each county shall count each ballot which contains: (1) the place of residence of the person casting the ballots; (2) the reason for the vote or voting by absentee ballots; and, (3) the signature of the voter. Absentee ballots may not be excluded from being counted because of a lack of notarization or a lack of witnesses."

"....

"Further, Defendant [Secretary of State James] Bennett is enjoined from certifying and/or compiling vote totals in all races until the recounting of the absentee ballots has been effected and until he has received all of the amended recertifications reflecting the recounting of the absentee ballots. At the time Defendant Bennett receives all of the amended recertifications, then Defendant Bennett shall certify the election results in all races."

This order was filed with the circuit clerk on November 17, 1994.

As the record reflects, the Republican Party had already obtained a TRO in Shelby County Circuit Court for election officials to maintain the possession and security of all election materials, including absentee ballots and related affidavits. The question of whether absentee ballots that met the Williams v. Lide test for substantial compliance should be counted was being litigated in the Montgomery County Circuit Court and was ripe for state appellate review. However, no appeal was taken from Judge Reese's order. Although Mr. Agricola gave oral notice of appeal in open court, he never filed a notice of appeal. Under Alabama law, an appeal will lie if filed within 14 days after an order granting a preliminary injunction. Had the Republican Party appealed from the order of the Circuit Court of Montgomery County issued in November, 1994, the entire controversy involving the November general election would have been resolved long ago. The people of Alabama would have known the outcome of the election, and the losing candidates, had they chosen to do so, could have contested the elections in the state legislature.

Counsel for the Republican Party, Algert S. Agricola, Jr., for "strategic reasons," decided that it was in the best interests of his clients, the Republican candidates, Hooper and Martin, to seek relief in a federal forum. Those candidates, along with Larry Roe (a voter who voted for these Republican candidates), filed a complaint in the U.S. District Court for the Southern District of Alabama in Mobile. The plaintiffs were represented by Albert L. Jordan, Joseph S. Johnston, and J. Michael Druhan. Mr. Agricola subsequently joined these lawyers as counsel for the Republican candidates. The defendants were the Mobile County Appointing Board, Mobile County Probate Judge Lionel W. Noonan, the Wilcox County Appointing Board, and Wilcox County Probate Judge Jerry Boggan. *fn7 The complaint sought relief pursuant to 42 U.S.C. §§ 1983, 1988; 28 U.S.C. §§ 2201, 2202; and the All Writs Act, 28 U.S.C. § 1651. United States District Judge Alex F. Howard held an ex parte hearing and, on November 18, 1994, issued an ex parte TRO that enjoined "All Persons Who Are Designated by Alabama State Law as the Appointing Boards in Each of Alabama's Counties...." to refrain from taking any action to alter any ballots or other election materials. This same relief had previously been sought by the same parties and ordered by the state circuit court in Shelby County.

On November 18, 1994, Republican voter Ralph E. Bradford, Sr., an African-American, brought suit in the U.S. District Court for the Northern District of Alabama under Section 5 of the Voting Rights Act, 42 U.S.C. § 1973, seeking to enjoin the counting of the absentee ballots that the Circuit Court of Montgomery County had ordered to be counted. *fn8 Bradford's suit claimed that the state court order amounted to a change within the scope of the preclearance requirement of Section 5 of the Voting Rights Act and that the alleged change had not been precleared. Bradford was also represented by Algert S. Agricola, Jr., who represented the Republican Party in the Circuit Court of Montgomery County, and by Albert L. Jordan and B. Glenn Murdock, Agricola's co-counsel in the U.S. District Court, Southern District of Alabama. Michael Lewis Odom and John W. Davis, the plaintiffs in the case before the Circuit Court of Montgomery County, intervened in the Bradford suit.

Judge Robert B. Propst, U.S. District Judge, Northern District, issued an order the same day Bradford filed suit that temporarily restrained the counting of the absentee ballots. Later that day, a three-Judge panel, consisting of U.S. District Judges Robert B. Propst and James H. Hancock and U.S. Court of Appeals Judge Emment R. Cox, reaffirmed the TRO and directed Secretary of State Bennett and the county appointing boards to stop counting the absentee ballots.

On November 22nd, a hearing was convened on Bradford's motion for a preliminary injunction before the three-Judge panel. At this hearing, the defendants (state election officials) presented a letter from the United States Department of Justice preclearing the November 16, 1994, order of the Circuit Court of Montgomery County, under the Voting Rights Act. This letter stated:

"Under the proposed change, absentee ballots would be accepted in all cases where the absentee form contains, at minimum, the voter's (1) place of residence, (2) reasons for voting absentee, and (3) signature. It appears most accurate to characterize the instant change as the implementation of a uniform standard for counting absentee ballots in the state. It is clear from all accounts that the actual practice and standards for accepting absentee ballots has varied considerably among Alabama's 67 counties, and the substantial compliance rule, or some variation of it, appears to have been the rule in a number of Alabama counties for a considerable period. Voters in such counties have come to rely on an absence of any strict requirement that all information sought in the state code absentee voter form be provided. In each such county, we note, a change to strict compliance would itself constitute a voting change with a potential for discrimination, and would itself require Section 5 preclearance prior to any implementation by the state (i.e., prior to rejection of any such ballots) notwithstanding the code language. Perkins v. Matthews, 400 U.S. 379, 27 L. Ed. 2d 476, 91 S. Ct. 431 (1971). We also note that the announcement by the Alabama Supreme Court of the standard in Williams v. Lide appears to have prompted some reliance by voters on that standard for this election."

Letter of John K. Tanner, Acting Chief, Voting Section, Civil Rights Division, U.S. Department of Justice, to Marc Givhan, Deputy Attorney General, State of Alabama. The three-Judge panel then requested clarification of this letter, posing these questions:

"Was it the intent of the Attorney General of the United States, in the letter dated November 22, 1994 to Marc Givhan, Deputy Attorney General, State of Alabama, not to interpose objection(s) to the following:

"1. The order of the Circuit Court of Montgomery County, Alabama in Michael Lewis Odom, et al. v. Jim Bennett, et al., CV 9402434, which directed that voting officials count absentee ballot votes neither witnessed nor notarized as apparently required by § 17-10-7 of the Code of Alabama 1975?

"2. The application of said Montgomery County, Alabama Circuit Court order to absentee ballot votes cast in the November 8, general election?"

A letter of clarification was received that afternoon. It confirmed that the U.S. Department of Justice understood Judge Reese's order to require that "absentee ballots cannot be rejected on the basis of the absence of two witnesses or notarization" and that the Justice Department precleared the order on that basis. The Justice Department's letter stated:

"The November 16, 1994 order in Odom was included in your submission, and the change was precleared on that basis. Under the precleared change, absentee ballots cannot be rejected on the basis of the absence of two witnesses or notarization, or for the omission of other information called for in the form set forth at Section 17-10-7, so long as such ballots do contain the information required by the court in Odom."

Letter of John K. Tanner, Acting Chief, Voting Section, Civil Rights Division, U.S. Department of Justice, to Marc Givhan, Deputy Attorney General, State of Alabama.

At the beginning of the hearing, Bradford amended his complaint to add claims under Section 2 of the Voting Rights Act and 42 U.S.C. § 1983. He alleged that the counting of the absentee ballots in question would violate his federal constitutional rights. This is the exact relief that candidates Hooper and Martin sought in the United States District Court for the Southern District. At the Conclusion of the hearing, Judge Robert B. Propst *fn9 stated his view that the decision of the Eleventh U.S. Circuit Court of Appeals in Curry v. Baker, 802 F.2d 1302 (11th Cir. 1986), barred the relief under Section 2 of the Voting Rights Act, that Bradford sought by his amended complaint in the federal courts. Judge Propst observed:

"But Curry v. Baker, I think, could be appropriately cited with regard to your amended complaint. Certainly as it relates to the due process claims or the equal protection claims because Curry v. Baker is much more binding on this court than the three-Judge panel decision in Henderson v. Graddick. And I think that one reason that I certainly wouldn't be able to just this afternoon jump up and start enjoining something based on the amended complaint would be because of Curry v. Baker.

"Now, I don't think that there was a Section 2 claim in -- voting rights Section 2 in Curry v. Baker, there may have been. If there was, Curry v. Baker probably tends to dispose of it just like it disposed of the equal protection claim and, you know, and I am just not too inclined without some briefing to go down that same Curry v. Baker path because what happened in Curry v. Baker that also followed a three-Judge panel Section 5 claim and I am just not too inclined to follow that same path."

On November 25, 1994, the three-Judge panel dissolved its temporary restraining order and refused to issue a preliminary injunction under Section 5 of the Voting Rights Act. The three-Judge panel dismissed the claims under Section 5 of the Voting Rights Act and refused to entertain the constitutional claims allegedly made under Section 2 of the Voting Rights Act. Judge Propst explained:

"As this Judge made plain at the hearing on November 22, the decision of this court to dissolve its own restraining order had no effect on, nor did it conflict with, the ruling of any other court, state or federal. The three-Judge panel in this case sat as a trial court, not an appellate court. To this Judge's knowledge the action in this case was the only pending case which addressed § 5 of the Voting Rights Act. That was the only federal law addressed by this court. The attorneys, of course, were well aware of the foregoing. Their clients should have had no misunderstanding."

Bradford, footnote 1, page 2.

On the morning of November 23, 1994, U.S. District Judge Alex T. Howard placed a telephone call to Secretary of State Bennett, who was not a party to this case at that time. During the call, Judge Howard instructed Bennett that he had entered an order to preserve evidence, including absentee ballots, for a possible contest. Judge Howard told Bennett that counting the absentee ballots in question would be a violation of the restraining order, which he had previously issued in this case, because the ballot envelopes would have to be opened in order to count the ballots. He also threatened Secretary of State Bennett with contempt sanctions if the ballots were counted. At ll:30 a.m. on the same day, Judge Howard issued a written order sua sponte, amending his prior TRO. In this new TRO, Judge Howard ordered Secretary of State Bennett to refrain from certifying any election results in the elections of Hooper and Martin, notwithstanding any order of the Montgomery County Circuit Court.

On November 28, 1994, the plaintiffs amended their complaint in the United States District Court, Southern Division, to allege claims against Secretary of State Bennett in his official capacity and to add all circuit clerks, probate Judges and sheriffs as class defendants, as well as to add John Davis, a plaintiff in the case before Judge Reese, as a defendant and the representative of a class of absentee voters who submitted ballots that were signed by the voter, but lacked either notarization or the signatures of two witnesses in the November election (the "Davis class"). Further, the plaintiffs added claims that the counting of the ballots would violate their rights under Section 2 of the Voting Rights Act and 42 U.S.C. § 1983, the exact claim they had made in the U.S. District Court for the Northern District. They sought a declaratory judgment by the U.S. District Court declaring the order of the Montgomery County Circuit Court issued by Judge Reese to be null and void. They also sought a preliminary and a permanent injunction requiring the defendants to preserve all materials relating to the election. Attorneys Johnston, Druhan, and B. Glenn Murdock, all of whom represented parties in the U.S. District Court for the Northern Division, signed the complaint. Algert S. Agricola, Jr., counsel for the Republican Party before the Circuit Court of Montgomery County, filed a notice of his appearance as additional counsel for plaintiffs. Agricola also represented plaintiffs in the Northern District Bradford litigation.

On November 29, 1994, Secretary of State Bennett filed a motion to dissolve or amend the ex parte order or for a stay pending appeal. The basis of Bennett's motion was that federal Judge Howard had ordered him not to count absentee ballots, while Judge Reese had ordered him to count those absentee ballots that met the substantial compliance test of Williams v. Lide.

The question of whether state law required state election officials to count absentee ballots substantially in compliance with the requirements of Alabama's election statutes was pending in the state courts of Alabama, and an order of a circuit court directly addressing this issue was outstanding. Under Alabama law, an expedited appeal could have been taken from that order. No appeal was taken.

On December 5, 1994, Judge Howard held a hearing not only on the preliminary injunction, but also on the plaintiffs' newly added claims (alleging violations of Section 2 of the Voting Rights Act, due process, and equal protection) *fn10, which collaterally attacked the order of the state circuit court. That afternoon, Judge Howard issued a preliminary injunction, which held that the plaintiffs had a constitutional right for the ballots not in strict compliance with the statute not to be counted. His order effectively disfranchised John Davis and other members of the "Davis class," none of whom was alleged to be an unqualified voter. There was no evidence that any uncounted vote was tainted in any way. There was no evidence of voter fraud. There was no evidence that any irregularities in any uncounted ballot affected the sanctity of the ballots in any way. There was no evidence that the integrity of the election would be affected by the counting of these ballots. Even so, Judge Howard ordered Secretary of State Bennett to certify the election result without the absentee ballots being counted. Federal Judge Howard's order is in direct conflict with the previously issued order of the Circuit Court of Montgomery County. The defendants sought a stay or modification from Judge Howard. He denied these motions. The defendants appealed to the U.S. Court of Appeals, Eleventh Circuit. By December 6th, a motion for a stay had been filed with the appellate court. On that date, despite the pendency of the motion for a stay in the Eleventh Circuit, Judge Howard again called Secretary of State Bennett and stated that he had issued a preliminary injunction. Secretary of State Bennett filed a motion on December 7th, seeking to prevent any party from filing a motion for contempt against him. On December 8, plaintiffs filed a petition for rule nisi seeking contempt sanctions against Secretary of State Bennett. On the morning of December 9th, Judge Howard denied Bennett's motion for a stay and issued a rule nisi giving the Secretary of State three hours in which to "show cause why he should not be held in civil contempt of this Court for failure to abide by this Court's preliminary injunction of December 5, 1994." Shortly before the three hours were up, the Eleventh Circuit stayed all efforts by Judge Howard to enforce contempt proceedings against the Alabama Secretary of State.

On January 4, 1995, a three-Judge panel of the Eleventh Circuit, consisting of Chief Judge Tjoflat, Judge Edmondson, and Judge Birch, issued its order. Chief Judge Tjoflat and Judge Birch upheld the preliminary injunction in this case and certified the question under our certification rule.

Judge Edmondson Dissented, stating:

"I know of no other case involving disputed ballots in which a federal court has intervened in a state election where the plaintiff failed to show, in fact, either:

"1. that plaintiff had 'lost' the election but would have won the election if lawful votes only had been counted (that is, the alleged constitutional error changed the election result); or

"2. that it was impossible ever to know that his opponent (the apparent winner) had truly won the election because of the nature of the voting irregularities (that is, the alleged constitutional error placed in everlasting doubt what was the true result of the election).

"Nothing is known in this case about whether the alleged illegalities have affected or will affect the outcome of the pertinent elections. Yet today we plow into Alabama's election process and uphold a preliminary injunction that, in effect, overrules a pre-existing state court order which had directed that the contested votes be counted. And, instead, the federal courts (basically, stopping short the state election processes) order that the contested votes be not counted at all. This high level of federal activity seems unnecessary and, therefore improper. So, I conclude that the district court abused its discretion."

Thus, two members of the three-Judge panel affirmed Judge Howard's preliminary injunction that invalidates a judgment issued by the Circuit Court of Montgomery County and interrupts the resolution of this election dispute by the state courts of Alabama. The panel takes this action, although no appeal from Judge Reese's order was taken to the Alabama Supreme Court, although counsel for the parties before both the state and federal courts was the same, and although attorney Agricola announced that he would appeal Judge Reese's order. He later told Judge Reese that, for strategic reasons, the decision was made to proceed to the federal courts instead of pursuing an appeal from Judge Reese's order.

Federalism and Federal Precedent

The bar to federal jurisdiction under the facts of this case as established by Curry v. Baker, 802 F.2d 1302 (11th Circuit 1986), and abundant additional federal authority cited below is clear. Additionally, principles of federalism, comity, and the Full Faith and Credit Clause of the Constitution mandate that federal courts permit state court litigation to proceed to a resolution of state election disputes, and should not intervene to stop that state process.

Judge Howard entertained the Republican candidates' Section 2 Voting Rights Act claim and federal constitutional due process and equal protection claims after the three-Judge panel in Bradford refused to do so. Res judicata should have foreclosed a relitigation in a second federal court. Judge Howard, in entertaining these claims, also refused to follow the decision of the Eleventh Circuit in Curry v. Baker, 802 F.2d 1302 (11th Cir. 1986), which prevents a federal court from interfering with the state courts' resolution of a dispute such as that involved in this case. As the Eleventh Circuit recognized and emphasized in Curry v. Baker, the U.S. Constitution and 42 U.S.C. § 1983 do not provide federal courts with the authority to intervene in state elections, except in rare matters. "Only in extraordinary circumstances will a challenge to a state election rise to the level of a constitutional deprivation." Curry, 802 F.2d at 1314. Curry v. Baker involved a primary runoff election for the Democratic candidate for Governor of Alabama in which there was massive illegal cross-over voting. Following the primary, the State Democratic Committee certified the candidate (William Baxley) receiving the majority of the legal votes over the candidate (Charles Graddick) receiving the majority of votes. Graddick and his supporters brought suit in the U.S. District Court alleging violations of due process and equal protection. The U.S. district Judge ordered the Democratic Party to conduct a new primary and enjoined the disqualification of Graddick. A three-Judge panel of the Eleventh Circuit reversed that judgment and remanded the case to the district court, stating:

"'The functional structure embodied in the Constitution, the nature of the federal court system and the limitations inherent in the concepts both of limited federal jurisdiction and of the remedy afforded by § 1983' operate to restrict federal relief in the state election context. (Citations omitted.) Although federal courts closely scrutinize state laws whose very design infringes on the rights of voters, federal courts will not intervene to examine the validity of individual ballots or supervise the administrative details of a local election. Griffin v. Burns, 570 F.2d 1065, 1078 (lst Cir. 1978). Only in extraordinary circumstances will a challenge to a state election rise to the level of constitutional deprivation. In Gamza, reh'g denied, 625 F.2d 1016 (5th Cir. 1980), our predecessor court

'recognized a distinction between state laws and patterns of state action that systematically deny equality in voting, and episodic events that, despite non-discriminatory laws, may result in the dilution of an individual's vote. Unlike systematically discriminatory laws, isolated events that adversely affect individuals are not presumed to be a [constitutional violation].'

619 F.2d at 453.

". . . In evaluating claims arising from 'episodic events,' courts have followed the general rule that '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.' (Citations omitted.) As with much of the law of substantive due process, there are no bright lines distinguishing 'patent and fundamental unfairness' from 'garden variety' election disputes.

"Gamza [v. Aguirre, 619 F.2d 449 (5th Cir. 1980)], posed this issue in clear terms. Gamza and four of his supporters alleged that election officials had negligently and unlawfully performed the vote count, thereby costing him the election. The Fifth Circuit found that plaintiff failed to state a constitutional deprivation under § 1983.

"'In the absence of evidence that the alleged maladministration of the local election procedures was attended by the intention to discriminate against the affected voters or motivated by a desire to subvert the right of the voters to choose their . . . representative, we cannot conclude that the error constituted a denial of equal protection of the laws.'

619 F.2d at 454."

Curry, 802 F.2d at 1314-15.

The three-Judge panel in Curry criticized the United States District Court for becoming engulfed in the morass of election details, which were held properly left to state election officials and state court and held:

"There is no evidence that plaintiffs lacked adequate remedy in the state courts. Alabama law provides an adequate procedure for addressing election irregularities. . . . A federally protected right '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.' That is not the case here. State process was available but it was not used. Even if plaintiffs claimed deprivation had risen to a constitutional level, . . . the Court erred in failing to give sufficient weight to the substantial state interest served in this case. . . ."

Id. at 1316-17. Judge Godbold noted in Curry : "Even in cases involving overt racial discrimination, this court has considered the voiding of a state election to be 'drastic, if not staggering . . . and therefore a form of relief to be guardedly exercised.' Bell v. Southwell, 376 F.2d 659, 662 (5th Cir. 1967)." Id. at 1315.

The Curry court noted that Alabama law provides an adequate procedure for addressing election irregularities, citing the election contest provisions found in § 17-15-1 et seq., Ala. Code 1975. A state process was available, but it was not used. The same state procedure is still available in Alabama at this time. Once the election results of the November 8 election are certified, the losing candidate has a statutory right to contest the election. The Curry Court stated that federal courts should not become involved in state election disputes:

"in the absence of aggravating factors such as denying the right of citizens to vote for reasons of race, or fraudulent interference with a free election by stuffing of the ballot box, or any other unlawful conduct which interferes with the individuals's right to vote."

Id. at 1316 (citing Pettengill v. Putnam County R-1 School District, Unionsville, Mo., 472 F.2d 121, 122 (8th Cir. 1973)).

Other federal circuits have consistently reached the Conclusion that the states should be primarily responsible for regulating their own elections. In Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978), the First Circuit recognized that the Constitution confers the power to control the Disposition of contests over elections to state and local offices. Griffin v. Burns, (supra) at 1077 (quoting Hubbard v. Ammerman, 465 F.2d 1169, 1176 (5th Cir. 1972), cert. denied, 410 U.S. 910, 93 S. Ct. 967, 35 L. Ed. 2d 272, (1973) (wherein the Court stated that the U.S. Constitution confers upon the states the "power to control the Disposition of contests over elections to . . . state and local offices" (citation omitted))). However, the federal court in Griffin ruled that due process required federal action because 1) the federal court was the only practical forum for redress, 2) there was no standard state procedure for handling the claim, and 3) the state court did not confront the question.

In Powell v. Power, 436 F.2d 84 (2nd Cir. 1970), six voters against whom the statute of limitations had run on a state claim sought federal relief under the Voting Rights Act and 42 U.S.C. § 1983. At issue was a close congressional primary election where, by mistake, a number of persons not members of the party holding the primary were allowed to vote. The Second Circuit rejected the § 1983 claim on the grounds that the due process clause and article I, section 2 [of the U.S. Constitution] offer no guarantee against errors in the administration of an election. Reasoning that the federal courts are not equipped or empowered to supervise the administration of a local election, the Second Circuit ventured that if every election irregularity 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 state and federal law." Powell, 436 F.2d at 86.

The Fourth Circuit, when presented with a suit by three unsuccessful candidates for public office, upheld dismissal in favor of all defendants. The Fourth Circuit noted:

"Our constitution does not contemplate that the federal judiciary routinely will pass judgment on particular elections for federal, state or local office. The conduct of elections is instead a matter committed primarily to the control of states, and legislative bodies are traditionally the final Judges of their own membership. The legitimacy of democratic politics would be compromised if the results of elections were regularly to be rehashed in federal court. Federal courts, of course, have actively guarded the electoral process from class-based discrimination and restrictive state election laws. . . . In this essentially factual dispute, we defer to those primarily responsible for elections and we refuse to authorize yet another avenue for those disgruntled with the political process to keep the contest alive in the courtroom."

Hutchinson v. Miller, 797 F.2d 1279, 1280 (4th Cir. 1986), cert. denied, 479 U.S. 1088, 107 S. Ct. 1295, 94 L. Ed. 2d 151 (1987). The plaintiffs in Hutchinson alleged irregularities in the general election and sought damages under 42 U.S.C. § 1983 and 18 U.S.C. § 1964 (the Racketeer Influenced and Corrupt Organizations Act). The Fourth Circuit stated that it must refrain from considering the particulars of disputed elections, especially in a suit for damages, because:

"To do otherwise would be to intrude on the role of the states and the Congress, to raise the possibility of inconsistent judgments concerning elections, to erode the finality of results, to give candidates incentives to bypass the procedures already established, to involve federal courts in the details of state-run elections, and to constitute the jury as well as the electorate as an arbiter of political outcomes. These costs, we believe, would come with very little benefit to the rights fundamentally at issue here - the rights of voters to fair exercise of their franchise. ..."

Hutchinson, 797 F.2d at 1285.

In Welch v. McKenzie, 765 F.2d 1311 (5th Cir. 1985), motion to withdraw judgment denied, 777 F.2d 191 (5th Cir. 1985), the Fifth Circuit ruled that a federal court should not intervene in a state election dispute where it was alleged that votes were improperly counted. Characterizing the dispute as a "garden variety," the Fifth Circuit ruled that it did not rise to the level of a constitutional deprivation. Citing Gamza v. Aguirre, 619 F.2d 449 (5th Cir. 1980), as controlling, the Fifth Circuit held that the claim was not actionable in federal court because our federal system contemplates that states will be primarily responsible for regulating their own elections. Welch, 765 F.2d at 1317. Gamza concerned a claim brought under 42 U.S.C. § 1983 by a candidate, who lost a school board election in Texas, and his supporters. The Fifth Circuit declined federal involvement in the case, stating:

"We must, therefore, recognize a distinction between state laws and patterns of state action that systematically deny equality in voting, and episodic events that, despite non-discriminatory laws, may result in the dilution of an individual's vote. Unlike systematically discriminatory laws, isolated events that adversely affect individuals are not presumed to be a violation of the equal protection clause."

Gamza, 619 F.2d at 453. The Fifth Circuit noted:

"The very nature of the federal union contemplates separate functions for the states. If every state election irregularity were considered a federal constitutional deprivation, federal courts would adjudicate every state election dispute, and the elaborate state election contest procedures, designed to assure speedy and orderly Disposition of the multitudinous questions that may arise in the election process, would be superseded by a section 1983 gloss. (citations omitted). Section 1983 did not create a delictual action for the torts of state officials, see Baker v. McCollan, 443 U.S. 137, 146, 99 S. Ct. 2689, 2695-96, 61 L. Ed. 2d 433 (1979), and it did not authorize federal courts to be state election monitors. For these reasons we have concluded that the denial of a nominee's right to a position on a ballot by an episodic election irregularity in a county primary election does not deprive his supporters of a federal constitutional right. (citations omitted)."

Id. at 453-454.

The Seventh Circuit in Hennings v. Grafton, 523 F.2d 861 (7th Cir. 1975), refused to act in a case involving the malfunction of voting machines in a county election. The Court distinguished the voting machine problem in that case from willful conduct, which undermines the organic processes by which candidates are elected. The Court reasoned that only the latter type of claim could give rise to a constitutional claim under 42 U.S.C. § 1983.

In Pettengill v. Putnam County R-1 School District, Unionsville, Mo., 472 F.2d 121 (8th Cir. 1973), the plaintiff claimed that the right to vote had been diluted by the defendant's improper counting of ballots. The Eighth Circuit determined that "it was not the federal court's role to 'oversee the administrative details of a local election.'" Pettengill, 472 F.2d at 122. The Court found no constitutional grounds for intervention "in the absence of aggravating factors such as denying the right of citizens to vote for reasons of race, or fraudulent interference with a free election by stuffing of the ballot box, or any other unlawful conduct which interferes with the individual's right to vote." Id. (citations omitted).

In support of their claims of constitutional deprivation, the plaintiffs rely upon Griffin v. Burns, supra, and Duncan v. Poythress, 657 F.2d 691 (5th Cir. 1981). These cases are clearly distinguishable from the present case, however, since, in both cases, state action had disfranchised a substantial portion of the electorate, whereas the plaintiffs in this case are complaining that a portion of the electorate has been improperly enfranchised by the state court order. In Griffin and Duncan, once the voters were disfranchised, no other legal remedies existed for them to pursue under state law. Here, however, adequate post-election procedures exist under Alabama law. There is no constitutional deprivation because state remedies exist that adequately protect any interest the plaintiffs may have.

The plaintiffs have a fair remedy under state law that protects their interests, while not automatically disfranchising an entire class of voters, in the election contest procedure. § 17-15-1 through § 17-15-63, Ala. Code (1975). This procedure has been held to be adequate and fair by the Eleventh Circuit in Curry v. Baker, (supra) at 1316-17. The ruling of Curry v. Baker is supported by the Eleventh Circuit's recent holding in McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), cert. denied, McKinney v. Osceola County Bd. of Com'rs, ___ U.S. ___, 115 S. Ct. 898, 130 L. Ed. 2d 783 (1995), in which the Court of Appeals emphasized that if state law provides a means by which an action in question may be challenged, then one does not have a procedural due process claim in the federal courts.

By issuing and upholding an injunction in this case, the federal courts have violated the basic tenets of federalism and the long-standing rule against interference by federal courts in state election matters. Such action violates the "Rooker-Feldman doctrine." Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S. Ct. 149, 68 L. Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983). The doctrine was explained by the Eleventh Circuit in Liedel v. Juvenile Court of Madison County, Ala., 891 F.2d 1542, 1545 (11th Cir. 1990) (quoting from District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 483-84 n. 16, 103 S. Ct. 1303, 1315-16 n. 16, 75 L. Ed. 2d 206 (1983));

"Lower federal courts possess no power whatever to sit in direct review of state court decisions. If the constitutional claims presented to a United States district court are inextricably intertwined with the state court's denial [of a claim] in a judicial proceeding. . . then the district court is in essence being called on to review the state court decision. This the district court may not do."

The Republican plaintiffs seek to evade the Rooker-Feldman doctrine on the grounds that it is not they, but their party, that intervened in Odom v. Bennett. This argument has no merit. The interests of these Republican candidates are identical to the interests of the Republican Party and to permit them to evade Rooker-Feldman on this basis would destroy it. In addition to having the same lawyers, the plaintiffs have the closest possible relationship to the Republican Party. They are executive officers of the Republican party.

In addition to the above-discussed principles of federalism, the federal courts have developed a doctrine of abstention. The abstention doctrine, like recusal, involves perhaps a more subjective analysis by federal courts, but, in this case, it appears that the federal courts should have abstained from exercising jurisdiction. Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). *fn11

Alabama Law

When all of the litigation in this dispute is over, and the single legal issue has been decided, and the results of the election of November 8th are certified, an aggrieved party has the right under § 17-15-1 et seq., Ala. Code 1975, and § 115 of the Alabama Constitution to file a contest of the election in the legislature. No court, state or federal, has jurisdiction to hear evidence in an election contest for a statewide election, such as is involved here. A losing candidate, when the votes are certified, has a right to contest the election in the state legislature under the procedures established by § 17-15-1 et seq., of the Code.

Our certification procedures assume that any federal court certifying a question to this Court has jurisdiction of the underlying cause and that the answer to the question is determinative of the cause. The procedure providing for certified questions was adopted to further the return to federalism in this country. Those who drafted the rule, a group including several present members of this Court, never imagined that the federal courts would assume jurisdiction of a case previously decided by a state court, invalidate the order of the state court, ignoring federal precedent in doing so, and then have another federal court, on an appeal from a preliminary injunction -- where the parties had no notice that the hearing would be on the merits and which is, at best, entered on an incomplete record -- ask this Court to answer a question of state law, stating at the same time that the answer of this Court will not be considered in that federal appellate court, no matter what the answer is, in determining the case.

Rule 18(a) of the Alabama Rules of Appellate Procedure provides:

"(a) When Certified. When it shall appear to a court of the United States that there are involved in any proceeding before it questions or propositions of law of this State which are determinative of said cause and that there are no clear controlling precedents in the decisions of the Supreme Court of this State, such federal court may certify such questions or propositions of law of this State to the Supreme Court of Alabama for instructions concerning such questions or propositions of state law, which certified question the Supreme Court of this State, by written opinion, may answer."

Here the opinion that accompanies the question indicates that the answer supplied by this Court will not be determinative. We are asked to answer the question in the context of an election, the outcome of which is unknown to anybody. As Judge Edmondson observed in his Dissent, this should be reason enough to put off intervention by the federal courts, at least until candidates Hooper and Martin can show that they have been injured by the Alabama practice. Judge Edmondson stated:

"At a time when we do not know whether the contested votes, in fact, will make any difference at all in the outcome of the elections, it is hard for me to say that I am now facing the kind of extraordinary circumstances -- patent and fundamental unfairness tied to concrete harm -- that will amount to a constitutional deprivation and that will justify immediate significant federal interference in the election processes of a state."

(Emphasis in original.)

The Eleventh Circuit's opinion actually frames the plaintiffs' claims as hypothetical, then concludes that they are sufficient to allege the violation of a constitutional right, as required under 42 U.S.C. § 1983. No one in Alabama or anywhere else knows who will win the election for Chief Justice when the uncounted ballots are counted. The results of the election have not been determined. The winner has not been certified. The loser, when the result is determined, has a statutory and right to contest the election in the state legislature.

As a practical matter, it is only after all of the votes have been counted, the election results have been certified, and either the time for an election contest has elapsed, or a contest has been concluded that conclusive effect is given to the ballots cast in an election. The validity and propriety of a given ballot is reserved for determination in the election contest procedure provided under Alabama law. Reed v. City of Montgomery, 376 So. 2d 708, 711 (Ala. 1979). The election contest procedure embodied in §§ 17-15-1 et seq., Code of Alabama, was held by the Eleventh Circuit to provide an adequate procedure for addressing election irregularities. Curry v. Baker, 802 F.2d 1302, 1317 (11th Cir. 1986).

The absentee ballots in question have yet to be given any legal, operative effect by the State of Alabama in these elections. Plaintiffs' contention that they will suffer a deprivation of their due process rights when these absentee ballots are counted is pure speculation. No one knows for whom these voters cast their ballots. Thus, there is a crucial flaw in the plaintiffs' claims of vote dilution. As of this date, the plaintiffs have suffered no harm. Because these absentee ballots have not been opened or counted, it is impossible to ascertain whether the plaintiffs' votes will be "diluted" by votes for the Democratic Party candidates as they claim, or "bolstered" by votes for the Republican Party nominees.

Our certification procedure permits us to answer questions from any United States court. It does not authorize us to answer hypothetical questions, and it assumes that a federal court certifying a question to us has jurisdiction of the underlying case. Our Constitution requires that there be an actual "case or controversy" in order for the federal courts to exercise subject matter jurisdiction. Article III, Section 2, U.S. Constitution. We question whether a hypothetical claim of deprivation of due process rights as exists in the present case is sufficient to bestow jurisdiction on the federal courts.

The exact same question as that certified to us by the Eleventh Circuit is pending final determination in the Circuit Court of Montgomery County, Odom v. Bennett, CV 94-2434, where the lawyers representing the parties in that litigation are the same as those involved in the question certified to us by the Eleventh Circuit. Part of the record in Odom v. Bennett is before the Eleventh Circuit in this case and has been submitted to us by the Eleventh Circuit as part of its record in this case. Additional evidence has been presented to the Circuit Court, since the hearing was held before the Eleventh Circuit. Because the litigation presents a question of state law which is determinative of this certified question, this Court has directed the Clerk of the Montgomery County Circuit Court to certify the record in Odom v. Bennett to this Court. *fn12 This enables this Court, notwithstanding its reservation to answer hypothetical questions, to answer the Eleventh Circuit in the context of a fully-developed adversary proceeding in a case in which a direct appeal to this Court lies.

As the three-Judge panel emphasized in Bradford v. State of Alabama, et al., CV-94-PT-2816-M (N.D. Ala.), November 25, 1994, for this Court or any court to now hold that the ballots that met the three-prong test of Williams v. Lide are not to be counted, would, in and of itself, work a change in Alabama law. As the record in Odom establishes without contradiction and as the Justice Department noted in its letter to the Attorney General of Alabama and of record before the panel of U.S. district and circuit Judges in Bradford, the actual practice and standards for accepting absentee ballots has varied considerably among Alabama's 67 counties, and the substantial compliance rule, or some variation of it, has been the rule in a number of Alabama counties for a considerable period.

The record in Odom v. Bennett, CV 94-2434, shows, without dispute, that absentee ballots, not in strict compliance with the witness requirements of § 17-10-7, were counted in some Alabama counties after the general election of November 8, 1994. *fn13 It is also undisputed that absentee ballots, legally and materially indistinguishable from those that were counted in some counties, were not counted in other counties. *fn14 Thus, a change to strict compliance would itself constitute a voting change with a potential for discrimination and would itself require Section 5 preclearance prior to any implementation by the state, notwithstanding the Code language.

The right to vote is precious to the citizens of Alabama, as it is to all citizens. As the United States Supreme Court stated in Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535, 11 L. Ed. 2d 481 (1964):

"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."

Therefore, the right of qualified citizens to vote in state and/or federal elections is protected under the Constitution of the United States. Reynolds v. Sims, 377 U.S. 533, 554, 84 S. Ct. 1362, 1377-78, 12 L. Ed. 2d 506 (1964); The Ku Klux Cases, 110 U.S. 651, 4 S. Ct. 152, 28 L. Ed. 274 (1884); see also Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978). In Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), the Supreme Court said, "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." Reynolds, 377 U.S. at 555, 84 S. Ct. at 1378.

The U.S. Supreme Court has determined that qualified voters, in addition to having a constitutionally protected right to vote, also have a concomitant right to have their votes counted. U.S. v. Mosley, 238 U.S. 383, 386, 35 S. Ct. 904, 905, 59 L. Ed. 1355 (1915); see also U.S. v. Classic, 313 U.S. 299, 315, 61 S. Ct. 1031, 1037, 85 L. Ed. 1368 (1941); Gamza v. Aguirre, 619 F.2d 449, 452 (5th Cir. 1980). The Constitution protects these rights and nullifies any state law that denies these rights to its citizens. Lane v. Wilson, 307 U.S. 268, 275, 59 S. Ct. 872, 876, 83 L. Ed. 1281 (1939).

Alabama state law governing absentee voting also reflects the public policy interest in allowing each qualified citizen the right to vote. The Alabama Supreme Court has joined a sizeable majority of jurisdictions in this country in holding that absentee voting laws should be liberally construed, as opposed to strictly construed, to accomplish the purpose for which they were adopted: to protect and further a citizen's right to vote. Wells v. Ellis, supra. Alabama's law has long been that "a voter should not be disfranchised by a rejection of his ballot, in whole or in part, when it is clear that he made an honest effort to comply with the law and has substantially complied with its mandatory requirements." Garrett v. Cuninghame, 211 Ala. 430, 438, 100 So. 845, 853 (1924); Campbell v. Jefferson County, 216 Ala. 251, 251, 113 So. 230, 230 (1927) (citations omitted; emphasis added); see Woodall v. City of Gadsden, 278 Ala. 634, 636, 179 So. 2d 759, 761 (1965); Wells v. Ellis, 551 So. 2d 382 (Ala. 1989); Williams v. Lide, 628 So. 2d 531, 536 (Ala. 1993).

However, the fact that Alabama law requires election officials to count absentee ballots that are in substantial compliance with § 17-10-7, Ala. Code 1975, does not mean that all such ballots are free of challenge and are not subject to a determination of their validity, once challenged in an election contest. In this instance, that determination will be made in the legislature, if a contest is filed there. A voter's ballot is not an invalid ballot simply because the voter did not show up at the polls but instead cast his vote by absentee ballot. A voter, voting by absentee ballot, is not required to establish his right to have his vote counted any more than a voter casting his vote in person at the polls is required to ensure that his vote is counted. As the United States Supreme Court stated in U.S. v. Mosley, 238 U.S. 383, 35 S. Ct. 904, 59 L. Ed. 1355 (1915), "the right to have one's vote counted is as open to protection .... as the right to put a ballot in a box." Mosley, 238 U.S. at 386, 35 S. Ct. at 905. Each individual is entitled to vote and to have his vote counted.

For over seventy years, decisions of this Court have consistently construed Alabama's election laws liberally, where possible, to permit Alabama citizens to express their will at the polls. In 1924, the Alabama Supreme Court held that an election could not be voided if the manner of conducting it substantially complied with the law. Garrett v. Cuninghame, 211 Ala. 430, 439, 100 So. 845, 853-54 (1924). Garrett involved an election contest between two Democratic candidates for probate Judge of Clarke County, and whether the conduct of election officers, by requiring some voters to choose between (i) a ballot stamped with the addition of one of the candidates or (ii) an unstamped ballot, thus resulting in a public declaration of a voter's decision prior to obtaining a ballot, should be grounds for rejecting those votes. Garrett, 211 Ala. at 432, 439, 100 So. at 847, 854. This Court held that the conduct was a technicality that did not deny voters their right to freely choose the candidate of their choice. Garrett, 211 Ala. at 439, 100 So. at 854. As stated in Garrett :

"While before an election all provisions of an election law are mandatory, if sought to be enforced, after an election is held they are held to be directory only, if this is possible.... It is, therefore, very generally held that provisions of a statute as to the manner of conducting the details of an election are not mandatory, but directory merely, and irregularities in conducting an election and counting the votes, not proceeding from any wrongful intent, and which deprive no legal voter of his vote, will not vitiate an election, or justify the rejection of the entire poll of a precinct."

Id. (citations omitted).

In 1933, this Court held that absentee ballots cast on imperfect absentee vote forms were in substantial compliance with the statutes and must be counted. Pope v. Howle, 227 Ala. 154, 157, 149 So. 222, 224-25 (1933). In Pope, two contestants claimed that twenty-one votes in a municipal election had been wrongfully rejected; thirteen were challenged ballots, and eight were absentee ballots. Pope, 227 Ala. at 155, 156, 149 So. at 223. In an election contest, the trial court counted all twenty-one votes, and the election results were changed. An appeal followed, and this Court affirmed. Id. at 158. Regarding the counting of absentee ballots, the Court stated:

"These eight votes were, however, counted for contestants as the legally expressed will of these voters. The fact that old or imperfect blanks were given such voters to execute will not here be permitted to change the result and to defeat the honest effort of these voters to discharge their high duty of citizenship."

Id. at 157.

In 1965, this Court allowed two votes to be counted in the contest of an annexation election, even though the voters' witness was not a qualified elector, as required by the rules of the Board of Registrars of Etowah County. Woodall v. City of Gadsden, 278 Ala. 634, 636, 179 So. 2d 759, 760 (1965). In quoting the "established law" of Alabama, this Court held that the substantial compliance standard applied to statutory mandates regarding voting was also the standard applicable to the rules of local Boards of Registrars. Woodall, 278 Ala. at 636, 179 So. 2d at 761.

In addition, the rule of substantial compliance with voting laws is consistent with the intent of the legislature. The procedures for counting votes are provided in § 17-13-1 et seq., Ala. Code 1975. Section 17-3-2 of the Alabama Code provides that ballots, even when improperly marked, must be counted where it is possible to determine the voter's choice. The statute further states:

"Nor shall any ballot rejected for any technical error which does not make it impossible to determine the elector's choice, and nothing in the election law shall be construed so as to prevent any elector from voting for any qualified person other than those whose names are printed on the ballot."

Ala. Code 1975, § 17-13-2.

Alabama adopted its current statutory scheme authorizing voters to cast absentee ballots in 1975. Ala. Code 1975, § 17-10-1 et seq. Section 17-10-7, which requires an affidavit substantially in the form supplied by the statute, states, as a note, that the absentee voter's signature "must be witnessed by either: A notary public or other officer authorized to acknowledge oaths or two witnesses 18 years of age or older." This statute was first addressed by this Court five years ago in Wells v. Ellis, 551 So. 2d 382 (Ala. 1989).

In Wells, two unsuccessful candidates in a municipal election contested the election results, claiming that they were defeated because illegal absentee votes were counted. *fn15 Wells, 551 So. 2d at 382. The losing candidates argued that the absentee votes did not comply with § 17-10-7 because the accompanying affidavits had one of the following problems: (1) defective signatures, either by the absentee voter or a witness; (2) no dates; or (3) lack of a reason for voting absentee. Id. The trial court held that the statute permitting absentee voting gave a statutory privilege and should be strictly construed. This Court reversed the judgment of the trial court and held that, in the absence of fraud, gross negligence, or intentional wrongdoing, absentee ballots in substantial compliance with essential requirements of the absentee voting law should be counted if the irregularities do not adversely affect the sanctity of the ballot and the integrity of the election. Id. at 384-85.

In Wells, the Court adopted the Florida Supreme Court's rationale in Boardman v. Esteva, 323 So. 2d 259 (Fla. 1975), cert. denied, 425 U.S. 967, 96 S. Ct. 2162, 48 L. Ed. 2d 791 (1976), which similarly construed Florida's absentee voting statute. In Boardman, the Florida Supreme Court held that its statute required only substantial compliance in order to have a valid absentee ballot and explained why this was so in the following language:

"'We first take note that the real parties in interest here, not in the legal sense but in realistic terms, are the voters. They are possessed of the ultimate interest and it is they whom we must give primary consideration. The contestants have direct interests certainly, but the office they seek is one of high public service and of utmost importance to the people, thus subordinating their interests to that of the people. Ours is a government of, by, and for the people. Our federal and state constitutions guarantee the right of the people to take an active part in the process of government, which for most of our citizens means participation via the election process. The right to vote is the right to participate; it is also the right to speak, but more importantly the right to be heard. We must tread carefully on that right or risk the unnecessary and unjustified muting of the public voice. By refusing to recognize an otherwise valid exercise of the right of a citizen to vote for the sake of sacred, unyielding adherence to statutory scripture, we would in effect nullify that right.'"

Wells, 551 So. 2d at 384 (quoting Boardman, 323 So. 2d at 263). The Boardman Court refused to discount the cast absentee ballots because of a mere "technical violation of the law." Wells, 551 So. 2d at 384 (citing Boardman, 323 So. 2d at 263). Wells also adopted three factors listed in a 1984 Florida election dispute case, referred to by the Florida Supreme Court as the "Boardman factors," which must be met in order to satisfy a state's absentee voting requirement:

"'(a) the presence or absence of fraud, gross negligence, or intentional wrongdoing;

"'(b) whether there has been substantial compliance with the essential requirements of the absentee voting law; and

"'(c) whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election.'"

Wells, 551 So. 2d at 384 (quoting Bolden v. Potter, 452 So. 2d 564, 566 (Fla. 1984) and citing Boardman v. Esteva, 323 So. 2d 259, 263 (Fla. 1975), cert. denied, 425 U.S. 967, 96 S. Ct. 2162, 48 L. Ed. 2d 791 (1976)) (emphasis added).

Since 1989, the Alabama Supreme Court has clearly stated that election officials are required to count absentee ballots if such ballots are in substantial compliance with the requirements of § 17-10-7, Ala. Code 1975. The language of § 17-10-7, which states that the "affidavit which shall be used in general, special or municipal elections shall be substantially as follows ...," also indicates that the legislature intended an affidavit substantially in compliance with the statutory form. Ala. Code 1975, § 17-10-7 (emphasis added). Under Alabama law, the ballots of an entire voting block may not be summarily rejected by those charged with administering the election laws because of a technical failure to follow exactly the affidavit supplied in § 17-10-7.

As recently as 1993, in Williams v. Lide, 628 So. 2d 531 (Ala. 1993), this Court reaffirmed Alabama's law with regard to the duty of election officials to count absentee ballots and the authority of a trial court in an election contest to reject ballots that are not shown to be valid ballots once challenged. Like the Wells case, Williams also involved a local election contest between two candidates, who were competing for the Dallas County Commission, district 2. Williams, 628 So. 2d at 533. The losing candidate, John T. Lide, alleged that many of the cast votes were illegal for a variety of reasons. Contests of these elections, are, by statute, heard by circuit courts. Ala. Code 1975, § 17-15-29. The court agreed with Lide and entered judgment for him because he had received the most legal votes, but Williams appealed, as the victor in the original vote count.

The first issue on appeal in Williams involved a convicted felon's right to vote. According to Alabama's Constitution of 1901, Art. VIII, § 182, a person who has been convicted of a felony and has not been pardoned is disfranchised. See also, Ala. Code 1975, § 17-3-10. Lide proved that eight persons who voted in the election had been convicted of a felony and had not been pardoned. Williams, 628 So. 2d at 533. The trial court held that the votes of each of these eight persons must be rejected, and this Court affirmed that holding. *fn16

Second, the votes of 71 people who presented themselves to vote at the polling places were challenged as permitted by § 17-4-127. *fn17 These voters cast challenged ballots after executing an oath administered by an election inspector, as provided by § 17-12-3. These votes were received and counted as required by Alabama law. Williams, 628 So. 2d at 534 (citing Hawkins v. Persons, 484 So. 2d 1072, 1073 (Ala. 1986)). The challenged voters were allowed to testify at trial to explain any problems in their challenged ballots. After considering each challenged vote, the trial court held some of the challenged votes were illegal and rejected them, while others were held to be legal votes and were accepted by the trial court. This Court affirmed.

The third issue involved whether certain absentee ballots were erroneously rejected by election officials because of alleged deficiencies. Williams, 628 So. 2d at 536. At trial, Williams argued that thirteen of the absentee ballots were improperly rejected by officials. Id. The trial court reviewed each absentee ballot and its accompanying affidavit to determine if each ballot substantially complied with § 17-10-7 and the three Boardman factors set forth in Wells v. Ellis, supra. The Williams Court then stated:

"Although Wells stands for the proposition that an absentee voter's affidavit need not be identical to the form contained in § 17-10-7, under Wells the affidavit must comply substantially with § 17-10-7 and its irregularities must not 'adversely affect the sanctity of the ballot and the integrity of the election.' To fulfill these requirements from Wells, the trial court admitted into evidence only those absentee ballots that were accompanied by an affidavit containing the voter's (1) place of residence, (2) reason for voting absentee, and (3) signature. However, if an absentee voter's affidavit lacked any of those three elements, the trial court permitted the voter to testify at trial to supply the missing elements."

Id. (emphasis added).

After examining the thirteen absentee ballots and affidavits in accordance with the aforementioned standards, the trial court found that seven of them met its "three-element test" (residence, reason, and signature) and were legal votes that must be counted. Id. None of these seven ballots were notarized, and six of them were not witnessed at all, while the remaining ballot had been witnessed by only one witness.

Of the remaining six ballots that did not meet the three-element test, four ballots did not exhibit a signature, and two ballots did not exhibit an address. At trial, the court took testimony as to the four ballots without signatures, finding that two of the ballots were cured by testimony, and two were not. Id. The trial court refused to allow testimony as to the two ballots without an address, and they were not counted. Id. Thus, the trial court held that nine of the thirteen absentee ballots were legal and valid. This Court affirmed.

This Court, in Williams, reaffirmed the Boardman factors that had originally been adopted in Wells, supra, which provide the three requirements for determining whether an absentee vote complies with § 17-10-7. This Court stated the factors as follows:

"(a) that the voter was not guilty of 'fraud, gross negligence, or intentional wrongdoing';

"(b) that the voter substantially complied 'with the essential requirements of the ...


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