        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206              2    ACLU v. Taft                                No. 02-3924
     ELECTRONIC CITATION: 2004 FED App. 0327P (6th Cir.)
                 File Name: 04a0327p.06                      for Appellee. ON BRIEF: Raymond Vasvari, AMERICAN
                                                             CIVIL LIBERTIES UNION OF OHIO FOUNDATION,
                                                             Cleveland, Ohio, for Appellant. Arthur James Marziale, Jr.,
UNITED STATES COURT OF APPEALS                               Elizabeth L. Schuster, OFFICE OF THE ATTORNEY
                                                             GENERAL OF OHIO, Columbus, Ohio, for Appellee. Keith
               FOR THE SIXTH CIRCUIT                         A. Wilkowski, VASSAR, DILLS & DAWSON, Toledo,
                 _________________                           Ohio, for Amicus Curiae.

 AMERICAN CIVIL LIBERTIES          X                           MOORE, J., delivered the opinion of the court, in which
 UNION OF OHIO , INC.,              -                        MARTIN, J., joined. RYAN, J. (pp. 15-20), delivered a
                                    -                        separate dissenting opinoin.
          Plaintiff-Appellant,
                                    -  No. 02-3924
                                    -                                            _________________
            v.                       >
                                    ,                                                OPINION
                                    -                                            _________________
 ROBERT TAFT , Governor of          -
 Ohio,                              -                           KAREN NELSON MOORE, Circuit Judge. In this appeal,
           Defendant-Appellee. -                             we conclude that Article I, section 2, clause 4 of the United
                                    -                        States Constitution is mandatory, imposing upon a state
                                   N                         executive the duty to issue a writ of election when one of her
       Appeal from the United States District Court          state’s seats in the United States House of Representatives
      for the Southern District of Ohio at Columbus.         (“House”) becomes vacant during a congressional term.
  No. 02-00766—Edmund A. Sargus, Jr., District Judge.        Because Robert Taft, Governor of Ohio (“Governor Taft”),
                                                             refused to issue a writ of election when one of Ohio’s seats in
                Argued: January 28, 2004                     the House became vacant due to the expulsion of James A.
                                                             Traficant, Jr. (“Traficant”) and more than five months
         Decided and Filed: September 27, 2004               remained before the next Congress would convene, we hold
                                                             that Governor Taft violated Article I, section 2, clause 4 and
 Before: MARTIN, RYAN, and MOORE, Circuit Judges.            denied the voters in Ohio’s Seventeenth Congressional
                                                             District, including members of the American Civil Liberties
                   _________________                         Union (“ACLU”), their rights to vote and to equal
                                                             representation in violation of the Fourteenth Amendment.
                        COUNSEL                              Accordingly, we REVERSE the district court’s decision and
                                                             REMAND so that the district court may award appropriate
ARGUED: Scott T. Greenwood, AMERICAN CIVIL                   declaratory relief and attorney’s fees to the ACLU.
LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,
Ohio, for Appellant. Arthur James Marziale, Jr., OFFICE OF
THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,

                             1
No. 02-3924                                        ACLU v. Taft          3    4       ACLU v. Taft                                       No. 02-3924

                        I. BACKGROUND                                         declaratory relief, requiring Governor Taft to call a special
                                                                              election to fill the House vacancy in the District, and for
  Traficant represented the Seventeenth Ohio Congressional                    reasonable attorney’s fees pursuant to 42 U.S.C. § 1988. On
District (“the District”) from January 1985 through July 24,                  August 19, 2002, the district court issued oral and written
2002, during the 99th through 107th Congresses. On July 24,                   orders denying injunctive relief. On August 26, 2002, the
2002, the House passed House Resolution 495, expelling                        district court issued an opinion and order denying the
Traficant from the House. Subsequently, Governor Taft                         ACLU’s motion for a temporary restraining order and a
publicly announced that he would not call a special election                  preliminary injunction and dismissing the case, thereby
to fill the House vacancy left by Traficant’s expulsion.                      denying a permanent injunction as well. On August 23, 2002,
Governor Taft decided, after consulting with local elected                    the ACLU filed a motion in the Sixth Circuit requesting
officials, not to hold a special election, citing the cost of an              emergency injunctive relief pending appeal, which a panel of
election, the difficulty presented by redistricting that was to               this court denied on September 4, 2002.
take effect for the regularly scheduled election in 2002,1 the
small length of time an elected replacement could be expected                   The district court had jurisdiction pursuant to 28 U.S.C.
to serve, and the uninterrupted continuation of constituent                   §§ 1331, 1343, and 1367. We have jurisdiction over the
services by the Clerk of the House. The 107th Congress was                    appeal pursuant to 28 U.S.C. § 1291.2
scheduled to adjourn on October 3, 2002; however, it did not
adjourn sine die until November 22, 2002. Tim Ryan was                                                   II. ANALYSIS
elected to the House by the “new” Seventeenth District at a
general election held on November 5, 2002, but did not take                   A. Standard of Review
office until January 3, 2003.           Therefore, the “old”
Seventeenth District was without representation in the House                    We review a district court’s decision to deny a preliminary
and had diminished constituent services from July 2002 until                  injunction for abuse of discretion. Blue Cross & Blue Shield
January 2003.                                                                 Mut. v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322
                                                                              (6th Cir. 1997). We also review a district court’s decision to
  On August 5, 2002, the ACLU filed a verified complaint in                   deny a permanent injunction for abuse of discretion, and in
the United States District Court for the Southern District of                 doing so, we review the district court’s factual findings for
Ohio, asserting a § 1983 claim and pendent state-law claims
against Governor Taft. The ACLU prayed for injunctive and
                                                                                  2
                                                                                     W e note tha t the AC LU filed its notice of appeal on August 19,
                                                                              2002, specifying that the ACLU was appealing the district court’s
    1
                                                                              August 19, 2002 order denying “preliminary and permanent injunctive
      At the time he was expelled from the House, Traficant represented       relief and entering judgment for the Defendant.” Joint Appendix (“J.A.”)
the “old” Seventeenth District, which was comprised of Mahoning and           at 169 . The district co urt’s August 19 written order, however, only denies
Columbiana C ounties and parts of Trumbell County. In 2002, however,          the ACLU’s motion for a temporary restraining order. In its August 19
Ohio redrew its congressional districts. Tim Ryan, who was elected in the     oral ruling, the district court denied from the bench all injunctive relief,
November 5, 20 02 genera l election, represents the “n ew” S eventeenth       “be it a temporary restraining order and a preliminary injunction or a
District, which is comprised of parts of Mahoning, T rumb ull, Portage, and   permanent injunction.” J.A. at 228. A final written judgmen t in the case
Summit Counties. The former Seventeenth Congressional District no             was entered on August 27, 2002. Therefore, we have jurisdiction over the
longer existed when Traficant was expelled in July 2002, but any special      appeal pursuant to Fed. R. A pp. P . 4(a)(2). See Metro. Life Ins. Co. v.
election to fill his seat would have had to follow the old b ounda ries.      Ma rsh, 119 F.3d 41 5, 418 n.3 (6th Cir. 1997).
No. 02-3924                                ACLU v. Taft          5   6     ACLU v. Taft                                 No. 02-3924

clear error and review the district court’s legal conclusions de        The ACLU filed the complaint in this action “on behalf of
novo. Sec’y of Labor v. 3re.com, Inc., 317 F.3d 534, 537 (6th        its members who reside in and who are electors in the
Cir. 2003). Although the district court did not specifically         Seventeenth Ohio Congressional District.” J.A. at 6 (Compl.
rule on the ACLU’s request for declaratory relief, instead           ¶ 3). In this case, the ACLU has demonstrated that its
dismissing the case in toto after ruling on the ACLU’s motion        members would have had “standing to sue in their own right.”
for preliminary injunctive relief, we review a “district court’s     Cleveland Branch, N.A.A.C.P., 263 F.3d at 524. The ACLU
exercise of discretion under the Declaratory Judgment Act,           submitted affidavits from Louise Lefkort, Robert H.
28 U.S.C. § 2201(a), for abuse of discretion.” Scottsdale Ins.       Sacherman, and Carol C. Sacherman, who were all members
Co. v. Roumph, 211 F.3d 964, 967 (6th Cir. 2000).                    of the ACLU, resided in the “old” Seventeenth District, were
                                                                     registered to vote in that district, and desired to vote in a
B. Standing and Mootness                                             special election to fill the House seat left vacant by the
                                                                     expulsion of Traficant. These members had suffered an actual
   Jurisdiction, including standing, is “‘assessed under the         injury, as they were without representation in the House and
facts existing when the complaint is filed.’” Cleveland              had been threatened with the imminent denial of their right to
Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 524 (6th          vote. This injury was fairly traceable to Governor Taft’s
Cir. 2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S.         actions because Governor Taft announced that he was not
555, 570 n.4 (1992)), cert. denied, 535 U.S. 971 (2002). In          going to issue a writ of election calling for a special election.
order to meet the standing requirements derived from Article         This injury would have been redressable by injunctive and
III,                                                                 declaratory relief, in that an injunction requiring Governor
                                                                     Taft to issue a writ of election would have allowed residents
  a plaintiff must show: “(1) it has suffered an ‘injury in          of the district to exercise their right to vote and to regain
  fact’ that is (a) concrete and particularized and (b) actual       representation in the House.
  or imminent, not conjectural or hypothetical; (2) the
  injury is fairly traceable to the challenged action of the            The ACLU has also shown that the interests at stake in this
  defendant; and (3) it is likely, as opposed to merely              case are germane to the organization’s purpose. The ACLU
  speculative, that the injury will be redressed by a                submitted an affidavit from its Executive Director, Christine
  favorable decision.”                                               Link, explaining the organization’s purpose as follows: “The
                                                                     object of this organization is to aid in maintaining and
Id. at 523-24 (quoting Friends of the Earth, Inc. v. Laidlaw         extending constitutional and other fundamental rights,
Envtl. Servs., 528 U.S. 167, 180-81 (2000)). To bring suit on        liberties, privileges, and immunities, and to take all legitimate
behalf of its members, an association must show “‘its                actions in furtherance of that object without political
members would otherwise have standing to sue in their own            partisanship.” J.A. at 161 (Link Aff.) (emphasis in original).
right, the interests at stake are germane to the organization’s      This case addresses citizens’ right to vote and right to equal
purpose, and neither the claim asserted nor the relief               representation, which falls squarely within the ACLU’s
requested requires the participation of individual members in        purpose of guaranteeing constitutional and fundamental
the lawsuit.’” Id. at 524 (quoting Friends of the Earth, Inc.,       rights. Finally, this action does not require the participation
528 U.S. at 181).                                                    of individual members of the organization.
No. 02-3924                                ACLU v. Taft       7    8    ACLU v. Taft                                No. 02-3924

   While standing is assessed at the outset of the litigation, a   a plaintiff seeks solely equitable relief, his action may be
case may become moot during the course of litigation,              barred by the equitable defense of laches if (1) the plaintiff
depriving the court of jurisdiction. Cleveland Branch,             delayed unreasonably in asserting his rights and (2) the
N.A.A.C.P., 263 F.3d at 524-25. The doctrines of standing          defendant was prejudiced by this delay. Brown-Graves Co.
and mootness serve different purposes: “In essence, standing       v. Central States, Southeast and Southwest Areas Pension
concerns only whether a plaintiff has a viable claim that a        Fund, 206 F.3d 680, 684 (6th Cir. 2000). In this case,
defendant’s unlawful conduct ‘was occurring at the time the        Governor Taft announced on July 25, 2002 that he was not
complaint was filed’ while mootness addresses whether that         going to call a special election to fill the vacancy in the
plaintiff continues to have an interest in the outcome of the      District. The ACLU filed on August 5, 2002, eleven days
litigation.” Id. at 525 (citations omitted). These different       later, its complaint, its motion for a temporary restraining
purposes are reflected in well-established exceptions to the       order and preliminary injunction, and its supporting
mootness doctrine, including the doctrine that a case will not     memorandum. It is true that in Kay v. Austin, 621 F.2d 809,
become moot if the injury is capable of repetition, while          813 (6th Cir. 1980), we held that a plaintiff seeking to be
evading review. Friends of the Earth, Inc., 528 U.S. at 190.       named on a presidential primary ballot was barred from
                                                                   obtaining injunctive relief because he delayed bringing suit
   At this time, the 108th Congress has convened; therefore,       until twenty-five days after he knew the choice of candidates
we can no longer provide appropriate injunctive relief. We         had been made. In Kay, however, the defendant Secretary of
can, however, still award declaratory relief and attorney’s        State introduced evidence specifically demonstrating how this
fees, provided the case has not become moot. Vacancies in          short delay had prejudiced the defendant, in that the Secretary
the House can happen near the end of a congressional term,         provided evidence that most of the costs associated with the
making it difficult for litigation to provide an effective         elections preparations had been expended during this delay.
remedy. See Jackson v. Ogilvie, 426 F.2d 1333, 1337 (7th           Id.
Cir.) (noting, while treating an identical situation, that the
case would not be mooted by the inappropriateness of an               In this case, each day that passed may have made it more
injunction, that plaintiffs would be entitled to declaratory       difficult to hold a special election; however, there is no
judgment, and that cases “of this type in the election field are   evidence in the record indicating specifically how this short
peculiarly ‘capable of repetition, yet evading review.’”           delay prejudiced Governor Taft. Likewise, there is no
(quoting Moore v. Ogilvie, 394 U.S. 814, 816 (1969)), cert.        evidence that Governor Taft had expended money or made
denied, 400 U.S. 833 (1970). In fact, since this case was          alternate preparations during the delay. We conclude that the
filed, another House vacancy occurred in Ohio’s Third              passage of eleven days was not unreasonable delay.
Congressional District due to the resignation of Tony Hall to      Moreover, we conclude that Governor Taft has not
take a position in the Bush administration. We conclude that       sufficiently demonstrated that he was prejudiced by this
the injury involved in this case is capable of repetition, while   delay.
evading review, and thus is not moot.
                                                                   D. Article I, Section 2, Clause 4
C. Laches
                                                                     Article I, section 2, clause 4 of the United States
 We agree with the district court’s conclusion that the            Constitution addresses the mechanism for filling vacancies in
ACLU’s action is not barred by the doctrine of laches. Where       the House that occur during a congressional term, providing:
No. 02-3924                                ACLU v. Taft       9    10    ACLU v. Taft                                 No. 02-3924

“When vacancies happen in the Representation from any              concluding that the district court had erred by dismissing the
State, the Executive Authority thereof shall issue Writs of        action due to the limited time that a Representative would
Elections to fill such Vacancies.” Article I, section 4, clause    serve, stating, “Except in those instances [where the period of
1 gives primary control over the election of Senators and          possible service could truly be deemed de minimis] the
Representatives to the states, providing: “The Times, Places       delegation to the state legislature of this power over procedure
and Manner of holding Elections for Senators and                   does not, in our opinion, alter the character of the Governor’s
Representatives, shall be prescribed in each State by the          duty to issue a writ of election.” Id. at 1336. In so holding,
Legislature thereof; but the Congress may at any time by Law       the court found that a special election could still be held on
make or alter such Regulations, except as to the Place of          November 3, 1970, the date of the next general election, and
chusing Senators.” Congress, in turn, has enacted 2 U.S.C.         concluded that it was “not prepared to say as a matter of law
§ 8, indicating that states have the authority to determine the    that representation from the time the results of the November
time of elections, providing: “The time for holding elections      3 election will be determined to January 3, 1971 is de
in any State, District, or Territory for a Representative or       minimis.” Id. at 1337.
Delegate to fill a vacancy, whether such vacancy is caused by
a failure to elect at the time prescribed by law, or by the          In comparing Jackson to the instant case, both parties agree
death, resignation, or incapacity of a person elected, may be      that the time periods involved are important; they merely
prescribed by the laws of the several States and Territories       disagree on which time periods are important. Under Illinois
respectively.”      The district court concluded that the          law at that time, 162 days had to elapse between the issuance
considerable discretion given to state government officials to     of the writ of election and the election itself. Id. at 1335. The
determine election procedures, particularly the discretion to      Seventh Circuit held that the governor had a duty to issue a
set a time for a special election to replace a Representative,     writ at the time of the Representative’s death, which would
applied to the decision of whether to hold such a special          have allowed an election to be held on January 23, 1970, with
election at all. The ACLU argues that Article I, section 2,        eleven months left on the term. Id. at 1337. When the district
clause 4 is mandatory; therefore the government must call for      court dismissed the case, an election could have been held on
a special election.                                                August 25, 1970, with four months left on the term. Finally,
                                                                   the Seventh Circuit refused to hold as a matter of law that the
   Given the infrequency of House vacancies, and the even          amount of time between the certification of an election held
greater infrequency of governors refusing to call special          on the next general election date, November 3, 1970, and the
elections to fill them, only one case, Jackson v. Ogilvie, deals   beginning of the next term, on January 3, 1971, is de minimis.
with such a situation. Jackson arose when the governor of          The ACLU emphasizes Jackson’s indication that the time of
Illinois refused to call a special election after the death of a   possible service in the House in this case, November 5, 2002
Representative on August 13, 1969. 426 F.2d at 1334.               to January 3, 2003, was not de minimis. Conversely,
Voters brought suit on December 16, 1969, and “the district        Governor Taft emphasizes that Jackson only conclusively
court dismissed the action for want of jurisdiction” on March      held that an enforceable duty existed when eleven months
16, 1970, finding the rights asserted too insubstantial to         remained on the term at the time the vacancy occurred.
support jurisdiction, as “the relatively short period in which
the Sixth District will remain unrepresented” was not enough         The parties and the district court cite three other cases that
to raise constitutional questions. Id. at 1334-35. The Seventh     influence our decision in this case. In Valenti v. Rockefeller,
Circuit reversed in an opinion issued on May 6, 1970,              292 F. Supp. 851, 853 (W.D.N.Y. & S.D.N.Y. 1968) (three-
No. 02-3924                                          ACLU v. Taft         11     12       ACLU v. Taft                                       No. 02-3924

judge district court), aff’d mem., 393 U.S. 405 (1969), a U.S.                      Like the Seventh Circuit, we conclude that Article I, section
Senate vacancy occurred in June 1968 upon the assassination                      2, clause 4 is mandatory, requiring the state’s executive to
of Senator Robert F. Kennedy, and state statutory law                            issue a writ to fill a vacancy in the House.4 We recognize that
mandated that the vacancy would be filled in November 1970,                      there may be instances where the time remaining in the
as sixty days were required prior to the primary election, and                   congressional term is truly de minimis, thereby excusing the
replacement Senate elections were to be held in even-                            executive from issuing the writ, but the time involved in this
numbered years. The plaintiffs in Valenti argued that the                        case cannot be considered de minimis.5
operation of state law unconstitutionally denied them their
rights to vote and to representation. Id. The district court                        We also recognize that Article I, section 4, clause 1 gives
determined that the delay was constitutional when balanced                       states the discretion to determine the “Times, Places, and
against the state interests of voter turnout and interest; of                    Manner” of holding such elections, and that the states have
preserving local elections from “the more party-oriented                         valid interests in ensuring fair and reliable elections. As
political currents generated by statewide or national contests”;                 Valenti and Mason indicate, legislative balancing between a
and of avoiding the economic hardship on Senate candidates                       state’s interests in ensuring fair and reliable elections, and its
of financing a campaign in the off-year.3 Id. at 854, 859. In                    citizens’ rights to vote and to equal representation, is entitled
Mason v. Casey, No. 91-5728, 1991 WL 185243, at *1-2
(E.D. Pa. Sept. 18, 1991), a House vacancy occurred on
                                                                                      4
September 11, 1991, and state statutory law mandated that the                          W e are no t at all persuaded by the Sup reme Court of Rhode Island ’s
special election would be held at least sixty days after the                     statement in In re the Representation Vacancy, 15 R.I. 621, 624 (R.I.
governor issued a writ of election. Like in Valenti, the                         1887), that the go verno r, having the power under Article I, section 2,
                                                                                 clause 4 of the United States Constitution, to issue a writ of election, also
plaintiffs argued that the operation of state law created an                     has the discretion to decide, considering the 49th C ongress’s adjournment
unconstitutional delay beyond the plaintiffs’ proposed date of                   date, whether to exercise that power. This statement is dicta and the
November 5, 1991, and the district court held the delay which                    decision is an advisory opinion, not binding on this court. Nor are we
likely was five additional months to be constitutional. Id. at                   persuaded by similar non-b inding dicta in People ex rel. Fitzgerald v.
*2-3. Finally, in State ex rel. Armstrong v. Davey, 198 N.E.                     Voorhis, 119 N.E. 10 6, 108 (N.Y . 1918).
180, 181 (Ohio 1935), the Ohio Supreme Court ratified the                             5
governor’s decision to set a replacement date at a later date                          The district court relied on the 107th Congress’s scheduled
                                                                                 adjournment date of October 3, 2002 in concluding that the ACLU had
than the plaintiff felt was proper.                                              not met its burden of demonstrating irreparable harm, as the parties
                                                                                 contemplated holding a November 5, 2002 election and there was no way
                                                                                 of knowing whether a hold-over session would occur, and thus whether
    3
                                                                                 the Seventeenth District would be unrepresented in a House vote. W e
      The probativeness of Valenti v. Rockefeller, 292 F. Supp. 851, 853         conclude the scheduled adjournment date should not be use d in evaluating
(W.D.N.Y. & S.D.N .Y. 1968 ), is substantially diminished by the fact that       whether a special election may be held in comp liance with state law and
it addre ssed a vacancy in the Senate. The United States Constitution            whether the time remaining after such an election would truly be de
allows Senate vacancies to be filled by the governor through a temporary         minimis. As history shows, the H ouse rarely adjourns sine die on its
app ointment, and thus the seat may be filled during the period between          sched ule adjournment date, and important legislation has been passed
the vacancy and the special election. U.S . Const. amen d. XVII; Valenti,        after such date. In fact, the amicus brief filed by Representative Marcy
292 F. Supp. at 855. Mo reover, if one of a state’s seats in the Senate          Kaptur notes that the 107th Congress passed several pieces of important
becomes vacant, that state will still be represe nted in the Senate, whereas     legislation after its scheduled adjournment date of October 3, 2002,
if one of a state’s seats in the House becomes vacant, residents of that         including the Iraq war resolution (October 10) and the creation of the
district will not be repre sented in the H ouse. Valenti, 292 F. Supp. at 863.   Department of Ho meland Security (November 13 ).
No. 02-3924                                         ACLU v. Taft         13     14   ACLU v. Taft                                No. 02-3924

to considerable deference. Ohio has exercised its discretion                       In summation, we conclude that Article I, section 2, clause
to determine the time, place, and manner of elections by                        4 imposed a mandatory duty upon Governor Taft to hold a
enacting a comprehensive election code. Governor Taft                           special election to fill the vacancy in the District created by
complains of the expense, inconvenience, and possible                           the expulsion of Traficant. Although there may be situations
inaccuracies that would have accompanied a special election                     where an executive’s duty is excused because the time
held on November 5, 2002. We point out that the Ohio                            remaining on the Congressional term is truly de minimis, this
legislature, through its election code, has determined the                      was not such a situation. While legislative balancing of the
length of time it considers necessary for conducting such a                     state’s and its voters’ interests is entitled to deference, a
special election. If the Ohio legislature determines that more                  special election that complied with Ohio’s election code could
time is needed to hold such an election, it may amend its                       have been held in this case. Therefore, we hold that Governor
election code, and should a need to review such provisions                      Taft violated his duty to call a special election under Article
arise, we will accord them appropriate deference.                               I, section 2, clause 4 and denied ACLU members the rights to
                                                                                vote and to equal protection in violation of the Fourteenth
  Had Ohio’s election code imposed requirements that made                       Amendment. These constitutional violations entitle the
a special election an impossibility in this case, the ACLU                      ACLU to declaratory relief pursuant to 42 U.S.C. § 1983 and
would have been faced with the burden of proving those                          28 U.S.C. § 2201 and to reasonable attorney’s fees pursuant
enacted requirements were unconstitutional. As Governor                         to 42 U.S.C. § 1988.
Taft concedes, however, it would have been possible to hold
a special election that complied with the requirements                                              III. CONCLUSION
imposed by the legislature in the election code to fill the
vacancy in the Seventeenth District.6                                             We conclude that the district court committed errors of law,
                                                                                and thus abused its discretion by failing to award the ACLU
                                                                                appropriate equitable and declaratory relief. Accordingly, we
                                                                                REVERSE the district court’s decision and REMAND this
    6                                                                           case so the district court may award appropriate declaratory
      To the extent that the O hio election code purp orts to give unfettered
discretion to Governor Taft regarding the time for calling the special          relief and attorney’s fees to the ACLU.
election, it is not a meaningful standard entitled to deference. The Ohio
code provide s:
     W hen a vacancy in the office of representative to congress
     occurs, the governo r, upo n satisfacto ry inform ation the reof, sha ll
     issue a writ of election directing that a sp ecial election b e held to
     fill such vacancy in the territory entitled to fill it on a day
     specified in the w rit.
Ohio Rev. Code A nn. § 3521.03. M oreover, the Ohio Supreme Court has
interpreted an earlier, similar version of this provision as granting the
governor discretion to decide when to call a special election, bu t not to
decide whether to call an election. State ex. rel. Armstrong v. Davey, 198
N.E. 180, 181 (Ohio 19 35). W hile the Eleventh Amendm ent prevents us
from compelling Governor Taft to comply with state law, we may
consider Governor Taft’s failure to act consistently with Ohio law when
determining how much deference to accord his decision under the
Constitution’s delegation of election procedures to the states.
No. 02-3924                                 ACLU v. Taft      15    16   ACLU v. Taft                                No. 02-3924

                      _______________                               In interpreting clause 4 and similar provisions of the federal
                                                                    Constitution, we are obligated to take cognizance of the
                         DISSENT                                    principles of federalism and comity that inhere in our unique
                      _______________                               system of dual sovereignty. Implicit in these principles is the
                                                                    obvious proposition that the Constitution does not impose
  RYAN, Circuit Judge, dissenting. The majority holds that          upon the states the obligation to take action, which, in the
Governor Taft was required by Article I, § 2, cl. 4 of the U.S.     circumstances at hand, would be wasteful, imprudent, and
Constitution to hold a special election to fill the vacancy         manifestly ineffective to carry into effect the purpose of the
caused by the expulsion of Congressman James A. Traficant           constitutional mandate.
from the U.S. House of Representatives. I do not believe the
United States Constitution required Governor Taft to hold a           The authors of Clause 4 were not theoreticians given to
special election in the circumstances of this case and so I must    creating mindless formalisms that, if applied literally,
dissent.                                                            woodenly, or mechanistically, would require the states to take
                                                                    action in obedience to the verb “shall,” which, under the
                               I.                                   circumstances, is foolish, wasteful, and probably ineffective.
   Our Constitution grants limited, enumerated powers to the          Neither constitutional “textualism,” “originalism,” nor any
federal government, while reserving the remainder of the            other interpretive “ism” requires that, in carrying out the
governing authority to the states. Beyond the unenumerated          mandate of Clause 4, a Governor abandon all common sense
powers retained by the states, the Constitution delegates to        and reasonableness and become, instead, a mere issuing clerk
them certain tasks necessary for the proper administration and      when a “vacanc[y] happen[s]” in a state’s congressional
functioning of the federal government. One such task is the         representation.
duty imposed by Article I, § 2, cl. 4, which provides that
“[w]hen vacancies happen in the Representation from any               As Justice Oliver Wendell Holmes, speaking for the U.S.
State, the Executive Authority thereof shall issue Writs of         Supreme Court, stated, albeit with regard to a different
Election to fill such Vacancies.” U.S. Const., Art. I, § 2, cl.     constitutional provision:
4.
                                                                      The interpretation of constitutional principles must not
   Although clause 4 uses the imperative “shall,” that should         be too literal. We must remember that the machinery of
not be understood as a universal and absolute command to act          government would not work if it were not allowed a little
without regard to the facts and circumstances that bear               play in its joints.
directly upon the purpose of Section 2. That is so, not only as
a matter of common sense, but also because, under our               Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931).
Constitution,“[t]he States . . . retain ‘a residuary and            That “play in its joints” must certainly include a Governor’s
inviolable sovereignty.’ . . . They are not relegated to the role   discretion to respond to the mandatory language of Clause 4
of mere provinces or political corporations, but retain the         in a reasonably sensible manner.
dignity, though not the full authority, of sovereignty.” Alden
v. Maine, 527 U.S. 706, 715 (1999) (quoting The Federalist
No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)).
No. 02-3924                               ACLU v. Taft     17    18   ACLU v. Taft                               No. 02-3924

                             II.                                 an incumbent 17th district congressman: one to fill the short-
                                                                 term vacancy in the old 17th district and another to represent
   With these principles in mind, I conclude that, given the     the new 17th district in the next session of Congress. Adding
circumstances Governor Taft faced when former                    to the confusion, voters whose precincts were recently added
Congressman Traficant was expelled from Congress, he was         to the 17th district would have been eligible to vote for only
not required under clause 4 to call a special election. The      one candidate and could not have participated at all in the
vacancy in the 17th district “happen[ed]” on July 24, 2002,      special election. With this confusing array of possibilities,
slightly more than three months before the general election      candidates and election workers would have faced the
and less than six months before the end of the congressional     formidable task of explaining to voters why some of them
term.                                                            were being asked to take the extraordinary step of voting for
                                                                 two congressional representatives, while their neighbors were
   After taking into account the public notice requirements of   being asked to vote for only one.
Ohio’s election laws and the need for a primary election and
a general election, Governor Taft concluded, and the plaintiff     Despite the obvious cost and confusion, a special election
has conceded, that the earliest practical date on which a        might nevertheless have been required were it not for the very
special election could have been held was November 5, 2002,      real likelihood that Congressman Traficant’s replacement
the date of the general election. In order to have held a        would have arrived too late to represent the citizens of the
special election on the date of the general election, the        17th district. Because Ohio election law imposes certain
financially strapped counties that comprised the 17th district   delays for canvassing (Ohio Rev. Code Ann. § 3505.32
would have been required to expend significant amounts of        (Anderson Supp. 2003)), counting overseas ballots (Ohio
money and effort to give notice of the vacancy to potential      Rev. Code Ann. § 3509.05 (Anderson 1996)), and permitting
candidates, print primary as well as general election ballots,   applications for a recount (Ohio Rev. Code Ann. § 3515.02
pay additional election workers to staff the polling stations,   (Anderson 1996)), the earliest the special election could have
certify the results, and allow for possible challenges.          been certified and, therefore, the earliest any newly elected
                                                                 representative could have participated in the business of the
   In addition to these demands on the resources of the          House, was on November 25, 2002. See Ohio Rev. Code
affected Ohio counties, the Governor was faced with a unique     Ann. § 3505.38 (Anderson 1996). Against this backdrop,
circumstance that could only have added further confusion to     Governor Taft—unless Clause 4 renders him a mindless
the already confusing necessity of conducting a special          automaton—had to consider, in addition to cost and voter
election together with the regular general election. As the      confusion, that, at the time the ACLU filed its complaint, the
majority points out, the 17th district was redrawn in 2002.      House was scheduled to adjourn sine die on October 3, 2002,
The “old” 17th district represented by Traficant comprised       almost two months before any newly elected representative
Mahoning and Columbiana Counties and parts of Trumbull           from the 17th district could have taken his or her seat. He
County.      But the decennial 1990 census required              would also have been obligated to consider that since 1933,
reapportionment and resulted in a “new” 17th district            the year in which the Congress changed its start date to
comprising parts of Mahoning, Trumbull, Portage, and             January 3, the House has only reconvened after the general
Summit Counties. Consequently, on election day, some             election approximately one out of every three times.
voters in the affected counties would have had the option of
voting for two congressional candidates, neither of whom was
No. 02-3924                                 ACLU v. Taft      19    20   ACLU v. Taft                               No. 02-3924

   At oral argument before the district court, the ACLU             the vacancy caused by the expulsion of Congressman James
speculated that a special election “could have” permitted a         Traficant from the House. Holding a special election under
newly elected representative from the 17th district to vote in      these circumstances would have been absurd and
one of these infrequent lame duck sessions of Congress. In          meaningless, and in holding that the Governor was obligated
fact, as proved by later events, Congress did reconvene for a       to do so, this court pays no more than mere lip service to
lame duck session. However, it adjourned on November 22,            those principles of federalism and comity that are inherent in
2002, three days before a newly elected representative from         the Constitution. What’s worse perhaps, under its “capable of
the 17th district could have taken his or her seat. Although        repetition, while evading review” exercise of jurisdiction,
the majority implies otherwise, there was never any                 maj. op. at 6, the court implicitly mandates mindless
possibility that the 17th district could have been represented      compliance with Clause 4 in the future, in an even more
in the House votes on the Iraq war resolution, which took           absurd and unreasonable circumstance.
place on October 10, or on the creation of the Department of
Homeland Security, which took place on November 13. See               I respectfully dissent.
maj. op. at 12 n.5. Nor, contrary to the majority’s contention,
is there any evidence in the record that the citizens of the 17th
district suffered from “diminished constituent services” as a
result of the Governor’s refusal to hold a special election.
Maj. op. at 3. House Rule 2(i)(1) provides that, in the event
of a vacancy, the Clerk of the House of Representatives shall
continue to supervise a congressman’s staff, thereby ensuring
the continuation of constituent services. Moreover, when
questioned by the district court on this issue, the ACLU
expressly disavowed any injury related to constituent
services.
                              III.
  Governor Taft was undoubtedly bound by the language of
Clause 4, but implicit in that Section is the duty to exercise a
limited discretion to assure that the execution of the mandate
does not, under the circumstances, amount to a wasteful,
unduly confusing, and very probably ineffective and useless
election.
   Given the substantial cost of a special election, the
likelihood of confusion, and the high probability, as proved
by later events, that a newly elected representative would not
have been able to take his or her seat, I do not believe that
Governor Taft was required to hold a special election to fill
