                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1884

                M. JANICE AYERS-SCHAFFNER, ET AL.,

                      Plaintiffs, Appellees,

                                v.

                   JOSEPH R. DISTEFANO, ET AL.,

                     Defendants, Appellants.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

      [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                                          

                                           

                              Before

                      Torruella, Chief Judge,
                                            
                  Coffin, Senior Circuit Judge,
                                              
                  and Keeton*, District Judge. 
                                             

                                           

  Anthony J. Bucci, Jr., for appellants.
                       
  Michael DiBiase for appellees.
                 

                                           

                        September 30, 1994
                                           

                  

*Of the District of Massachusetts, sitting by designation.

     COFFIN,  Senior   Circuit  Judge.     This  case   poses  an
                                     

interesting, and readily answerable, constitutional question: can

state election officials  restrict the  right to vote  in a  new,

curative  election to  those  who participated  in the  original,

defective election?  The district  court found no state  interest

served by such a limitation, and rejected it as unconstitutional.

We agree, and  thus affirm the  district court's order  directing

that the contested  new election  be open to  all registered  and

qualified voters.1

                      I. Factual Background
                                           

     On June 7, 1994, a nonpartisan primary election was held for

three  seats  on  the  Warwick  School  Committee.   Voters  were

permitted to vote  for up  to two candidates  for the three  open

positions.  After the election, as a result of a protest filed by

several of the 15 candidates, the Rhode Island Board of Elections

ruled that each voter should have  been limited to a single vote.

The  Board also  found  that there  was  a probability  that  the

election  results  would  have  been different  had  the  correct

procedure  been  used, and  it  consequently ordered  that  a new

election be conducted.  It further ruled that the new election be

limited to  those candidates and  voters who participated  in the

original balloting.

                    

     1 We issued an order affirming the district court's judgment
immediately after  oral argument  in this case  on September  16,
1994, notifying the parties that an opinion would follow.

                               -2-

     This  action  followed.2    The  plaintiffs  are  registered

voters in  the City of Warwick  who were eligible to  vote in the

first  election but did not.  They wish  to be allowed to vote in

the  second one.  They  brought suit on  behalf of themselves and

all  similarly situated  Warwick residents  against the  Board of

Elections, alleging  violations of  their rights of  free speech,

association, equal  protection, and due process  as guaranteed by

the First and Fourteenth Amendments.3

     The district  court ruled  in their  favor, finding  that no

state interest justified the limitation on voters.  The Board now

appeals, claiming that  the district court erred  in applying the

applicable  precedent to  the  circumstances of  this case.   The

Board claims  that its  restriction on  voters imposes a  minimal

burden on the plaintiffs  while serving legitimate and compelling

state interests.

     Like the  district court, and substantially  for the reasons

it  gave, we conclude that  the Board's notion  of the applicable

constitutional principles is off the mark.

                          II. Discussion
                                        

     In its simplest form, this case asks us to decide  whether a

state may condition  the right to vote in one election on whether

that right was exercised in a preceding election.  So stated, the

                    

     2 The curative primary election originally was scheduled for
July 19, 1994.  After this lawsuit was filed, the Board agreed to
reschedule the election to October 4, 1994.

     3  Plaintiffs also alleged state causes of action, which we,
like the district court, need not reach.

                               -3-

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

the  most  fundamental  significance  under   our  constitutional

structure,'" Burdick  v. Takushi, 112  S. Ct. 2059,  2063 (1992),
                                

and depriving  a qualified voter  of the right  to cast a  ballot

because  of  failure to  vote in  an  earlier election  is almost

inconceivable.   See  generally Reynolds  v. Sims, 377  U.S. 533,
                                                 

554-55  (1964) (quoted in Griffin  v. Burns, 570  F.2d 1065, 1075
                                           

(1st Cir.  1978)  ("[A]ny restrictions  on  [the right  to  vote]

strike at the heart of representative government.")

     The  Board contends that this  case is not  that one because

the  second election here is not a new, independent election, but

simply  a recreation of the  defective primary.   It asserts that

this   distinction  renders  the  right-to-vote  caselaw  largely

inapposite,  and  that no  precedent bars  its  effort to  hold a

lawful  version   of  the   defective  election   by  restricting

participation to the original voters and  candidates.4  The Board

maintains  that this plan imposes, at most, only a minimal burden

on  the plaintiffs  because of  the easy  access provided  to the

regularly  scheduled election.  And it cites a litany of purposes

served by its plan.  See infra at n.6.
                              

     The Board's  effort to distinguish  this case  is flawed  in

several respects.  First, we cannot accept the Board's suggestion

that the second election here is free from the requirements of  a

genuine  election because  its purpose  is simply to  replicate a

                    

     4  No challenge  has been  made to  the Board's  decision to
limit the ballot  to those  who were candidates  in the  original
primary, and our opinion does not address that issue.

                               -4-

previous event.  The original election was defective and invalid,

and  the  Board  deemed  its results  unreliable.    The  primary

objective  of the  second  election therefore  must be  viewed as

identical  to that of the  original one, to  choose through valid

procedures the candidates supported by a majority of the eligible

voters.  To  exclude plaintiffs  from the second  election is  to

exclude  them  from  the only  primary  that  will determine  the

candidates for the school committee offices.

     Moreover, the  goal of reconstructing the  original election

is, at best, an illusory one.  Presumably, some of the voters who

voted  the first  time will  be unable,  for various  reasons, to

participate in the new election.  Unexpected trips and illnesses,

or  even death,  may intervene.   Some  voters no  longer  may be

eligible,  having  moved  from  the  area.    In  addition,  some

undetermined number of voters in the original election voted only

for the bond issue that was on the ballot, and some of them could

be  expected  to   vote  this  time  for  the   school  committee

candidates.  An identical match  of voters is therefore extremely

unlikely.

     The  second flaw is found in the Board's suggestion that the

burden imposed  by its action  is slight  because plaintiffs  had

ample  opportunity  to  vote in  the  first  election.   This  is

tantamount  to a claim that plaintiffs waived their right to vote

in the second election by failing  to vote in the first.  However

characterized, the contention is wholly without force.

                               -5-

     While  it is true that plaintiffs knowingly gave up the only

opportunity  they expected to have  to vote in  the primary, they

did  not thereby  waive  their interest  in  the outcome  of  the

election.  Nor did  they demonstrate any willingness to  forego a

second  chance to vote  if circumstances  should make  a curative

election necessary.  In  the absence of any advance  warning that

failure  to vote in the  first election would  preclude voting in

the second, their lack of participation in the original balloting

cannot in any respect be viewed as  a waiver of the right to vote

in the new primary.  And, while access to the  first election may

have been easily achieved, what is before  us is the total denial

of the right to vote in the only primary with any significance in

the school committee race.  That burden is undeniably severe, and

it is in no  way lessened by the  past opportunity to vote in  an

invalid election.5

     Third,  and  most  significantly,  the Board  is  unable  to

articulate   any   meaningful  interest   served  by   its  voter

restriction.   Of  the  seven separate  interests  listed in  its

brief,6 one is  facially meritless,7 and  the remainder all  rest

                    

     5 Nor  is the  ability to  vote  in the  general election  a
satisfactory alternative for those voters not allowed to  vote in
the  primary,  as the  candidate of  their  choice may  have been
excludedin the preliminary election from which they were barred. 

     6 The seven interests are as follows:

     (1) preserving the integrity of  the electoral process,
     (2) enhancing  confidence of  the electors in  election
     results,  (3)  recreating  the  election  to fashion  a
     remedy that  would generate  a valid expression  of the
     will of the voters who participated in the June 7, 1994
     originally  scheduled  election,  (4) encourage  better

                               -6-

on the premise that limiting the pool of eligible voters to those

who actually voted in the first election is necessary to preserve

the  integrity  of  either  the  original  or  overall  electoral

process.   As to the  original election, it  is precisely because

the Board found the process to  be vulnerable that a new election

was scheduled,  and any concern for preserving the original votes

and outcome is  therefore without substance.   Indeed, the  Board

explicitly found "a probability that the order of finish of the[]

candidates  might have  been altered"  had the  correct procedure

been  followed.  Preserving what  would have been  the outcome of
                                       

the election had  it been properly conducted,  while a legitimate

objective,  is, as  we  have discussed  earlier, not  feasible in

light of  the  inevitable  changes in  the  availability  of  the

original voters.

                    

     voter  participation in  elections by  informing voters
     that they will only get one opportunity to vote in each
     election, (5) avoiding  the debasement and  disillusion
     of those votes that were  cast in the original election
     which would occur if the election were not recreated as
     provided  in the  Board's  Decision, (6)  not punishing
     those voters who took  the time and made the  effort to
     participate  in the original election by diluting their
     votes,  and  (7) avoiding  the  patent  unfairness that
     could result to those  candidates and their  supporters
     that seemingly  prevailed in the original  June 7, 1994
     primary.

     7  We share  the  district court's  view  that there  is  no
substance in  the  asserted  interest  in  "encourag[ing]  better
participation  in elections  by informing  voters that  they will
only get  one opportunity to  vote in  each election."   We doubt
that a voter would decide to vote in an election only to preserve
the  opportunity   to  vote  in  an   unlikely-to-occur  curative
election.  Moreover, those who voted in the original election are
                                                                 
being given another opportunity to vote under the Board's ruling.

                               -7-

     With    the   interest   in   electoral   integrity   either

inappropriately linked to the original  election, or unable to be

served  as  it relates  to that  election,  the only  interest in

integrity that remains concerns  the overall process for choosing

school committee  candidates.  The Board's  restriction on voters

does not serve this interest.

     Once the Board wiped the slate clean by nullifying the first

election,  what  needed  to  be  recreated  was  the  "democratic

process"   surrounding   the   selection  of   school   committee

candidates,  not  the   particular  conditions  surrounding   the

original  election.   See Griffin,  570 F.2d  at 1079  n.14 ("The
                                 

Constitution  protects the  right of  all citizens  to democratic

processes, not the right of any particular candidate or voters to

a  certain result.")  The  foundation of our "democratic process"

is  the right  of  all  qualified  voters  to  cast  their  votes

effectively.  See, e.g., Burdick, 112 S. Ct. at 2063; Anderson v.
                                                              

Celebrezze,  460 U.S. 780,  787 (1983); Wesberry  v. Sanders, 376
                                                            

U.S.  1,  17-18 (1964);  Reynolds v.  Sims,  377 U.S.  at 554-55.
                                          

Depriving eligible voters of the right to vote in the "effective"

election  shakes  that   foundation  and  weakens,   rather  than

supports,  the broad  goal  of preserving  the  integrity of  the

electoral process.   Indeed, it  imposes a penalty  for the  past

failure  to  vote,  precisely  the  course  of action  we  deemed

transparently unconstitutional at the outset of our discussion.

     The Board's effort  to characterize  its order  as merely  a

"time, place and manner" restriction blinks reality.  The states'

                               -8-

authority  to  regulate  elections   stems  from  a  recognition,

embodied in  the Constitution, that elections  must be structured

carefully  to ensure that  they are fair and  honest, and so that

"some  sort  of order,  rather than  chaos,  is to  accompany the

democratic  processes,"  Burdick, 112  S.  Ct.  at 2063  (quoting
                                

Storer v.Brown, 415 U.S.724, 730 (1974)). Thisauthority, however,
              

     does  not  extinguish  the  State's  responsibility  to
     observe  the limits established  by the First Amendment
     rights  of the State's citizens.  The power to regulate
     the  time,  place, and  manner  of  elections does  not
     justify, without  more, the abridgement  of fundamental
     rights, such as the right to vote . . . .

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

(1986) (citing  Wesberry v. Sanders,  376 U.S. at 6-7).   In this
                                   

case, the contested order does not implicate the structure of the

election, but goes directly to the heart of the voting privilege,

denying the privilege to many fully qualified voters.8

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

Burdick, 112 S. Ct. at 2062,9  the Board has failed to offer even
       

                    

     8   It  is,  of course,  well  established that  states  may
restrict  the  voting  privilege   through  residency  and  other
registration requirements.  The  crucial distinction here is that
the  plaintiffs  have  satisfied   the  state's  standard  voting
requirements. 

     9  Quoting from Anderson, 460 U.S. at 789, and Tashjian, 479
                                                            
U.S.  at 213-214,  the Supreme  Court  in Burdick  formulated the
                                                 
standard as follows:

     A court considering a challenge to a state election law
     must weigh "the character and magnitude of the asserted
     injury  to  the  rights  protected  by  the  First  and
     Fourteenth  Amendments  that  the  plaintiff  seeks  to
     vindicate" against "the  precise interests put  forward
     by the  State as justifications for  the burden imposed
     by its rule," taking  into consideration "the extent to
     which those  interests make it necessary  to burden the

                               -9-

a rational basis  for its direct,  retroactive limitation on  the

right to  vote.  In light  of the obviously severe  nature of the

injury  to the  plaintiffs,  who would  be  denied the  right  to

participate in the selection  of school committee candidates, the

restriction cannot be permitted.

     Although the  Board cites numerous  cases in support  of its

position, none involves an  equivalent action.  The long  line of

cases  upholding   ballot   access  requirements   are   patently

inapplicable, as  limiting candidates through  reasonable advance

requirements   provides  no  justification  for  the  retroactive

restriction of the right to vote.   See, e.g., Munro v. Socialist
                                                                 

Workers Party, 479 U.S. 189 (1986) (requirements for placement of
             

minority  party candidates on ballot);  Storer v. Brown, 415 U.S.
                                                       

724 (1974) (requirements of party disaffiliation and no voting in

preceding primary for access to ballot as independent); Felice v.
                                                              

Rhode Island Board of  Elections, 781 F. Supp. 100  (D.R.I. 1991)
                                

(candidate must  file declaration  precisely as name  appeared on

                    

     plaintiff's rights."

          Under  this  standard,  the  rigorousness  of  our
     inquiry  into the  propriety  of a  state election  law
     depends   upon  the  extent   to  which   a  challenged
     regulation  burdens  First  and   Fourteenth  Amendment
     rights.  Thus, as we  have recognized when those rights
     are subjected to "severe" restrictions,  the regulation
     must be "narrowly drawn to advance a state interest  of
     compelling importance." . . . But when a state election
     law     provision     imposes     only     "reasonable,
     nondiscriminatory  restrictions"  upon  the  First  and
     Fourteenth  Amendment rights  of  voters, "the  State's
     important regulatory interests are generally sufficient
     to justify" the restrictions.

                               -10-

voting   list).10     The   right-to-vote   cases  also   involve

conditions explicitly established in advance as prerequisites for
                                            

voting, see,  e.g., Rosario v.  Rockefeller, 410 U.S.  752 (1973)
                                           

(upholding   advance  party  affiliation  requirement  for  party

primary); Dunn v. Blumstein, 405 U.S. 330  (1972) (upholding bona
                           

fide  residence requirements,  but rejecting  one-year durational

requirement).   The  Board points to  no federal case  in which a

segment  of the  electorate, qualified  to  vote under  state and

local law, is barred  from participating in an election  based on

the failure to meet some later-imposed, additional criteria.

     The  Board's  most  apposite  precedent is  a  Rhode  Island

Supreme Court  case, Buonanno v.  DiStefano, 430  A.2d 765  (R.I.
                                           

1981),  in which the state  Board of Elections  ordered a special

election limited to two polling places where  voting machines had

malfunctioned during the regular election.  Only those voters who

had voted  at those two polling  places were eligible to  vote in

the special election.

     The Supreme  Court upheld  the Board's order,  describing as

"ingenious" the Board's attempt to reconstruct the election.  Id.
                                                                 

at 771.  As the  district court in this case noted,  however, the

                    

     10 The Board claims  that these cases are relevant  in light
of  the Supreme Court's statement that "`the rights of voters and
the  rights  of  candidates  do   not  lend  themselves  to  neat
separation,'" Burdick, 112 S. Ct. at 2065-66  (quoting Bullock v.
                                                              
Carter, 405  U.S. 134,  143 (1972)).   The issue  in Burdick  was
                                                            
whether a state could  bar write-in voting.  The petitioner was a
voter.   The  Court  noted the  close  link between  voters'  and
candidates' rights in the course of rejecting the suggestion that
the  challenge to  the law was  more potent  because framed  as a
right-to-vote rather than a ballot access case.

                               -11-

Supreme Court made  only scant  reference to the  portion of  the

Board's  decision  limiting the  special  election  to those  who

previously  had voted,11  and,  in fact,  it appears  likely that

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

ruling.   In addition, the Board  in Buonanno did not  "clean the
                                             

slate"  by  invalidating  the  whole  election,  but  called  for

reconstruction of  only a  portion of  the voting.   We need  not

decide here  whether  the breadth  of  the voting  limitation  is

significant; for our  purposes, it is  enough to say that  a case

upholding a  voting restriction  in  such a  limited context  and

without constitutional  analysis is  of doubtful support  when an

entire election has been invalidated.

     Indeed,  an  earlier   Rhode  Island  case   more  factually

analogous to  the  present case  suggests that  the state's  high

court views full voter participation as the appropriate procedure

when a completely new election is held.  In Whitman  v. Mott, 114
                                                            

R.I. 530, 336 A.2d 836 (R.I. 1975), cited in  Buonanno, the court
                                                      

invalidated a  town council election because  voters were allowed

to vote for five of the six candidates when they should have been

limited  to  three votes.   The  Court  scheduled a  new election

limited to the six original candidates, but expressly ruled "that

                    

     11   The  court   recognized  that   practical  difficulties
concerning voter turnout are involved in holding a new  election,
but noted that "[a]t  least the new election  gave to the  voters
who had taken  the pains to go  to the polls  a second chance  to
express  their choice  about whom  they desired  to serve  in the
council at-large positions."  Id. at 771.  The court  then stated
                                 
that  "[t]he practical  difficulties  are far  outweighed by  the
value served by this remedy."  Id.
                                  

                               -12-

anyone  eligible to  vote on  the day  specified for  the special

election may cast a  ballot for those candidates  whom he or  she

thinks is best qualified to serve."  114 R.I. at 539, 336 A.2d at

841.  See also Griffin v. Burns, 431 F. Supp. 1361 (D.R.I. 1977),
                               

aff'd, 570 F.2d 1065 (1st Cir. 1978).12
     

     It  bears repeating that "[t]he right  to vote is one of the

most  important and  cherished constitutional  rights,"  Leaks v.
                                                              

Board of Elections of the  City of New York, 58 N.Y.2d  882, 883,
                                           

447 N.E.2d  42, 43,  460 N.Y.S.2d  494, 495 (1983).   In  a fresh

election designed to determine  which candidates are supported by

a majority of the properly  registered voters, we cannot conceive

of a governmental interest sufficiently strong to limit the right

to  vote to only a portion of  the qualified electorate.  In this

case,  at least, where such an interest has not been articulated,

                    

     12   In  Griffin,   the  district   court  found   that  the
                     
invalidation of absentee and  shut-in ballots in a party  primary
for  a Providence  city council  seat was  unconstitutional.   In
ordering a new election  open to all qualified voters,  the court
stated:

     Although a new election cannot replicate the conditions
     of  the March  29 election,  each qualified  voter will
     have a full opportunity  to cast a ballot, and  to have
     that ballot counted.  The Constitution demands no less,
     and the Court can do no more.

431 F.  Supp.  at  1369.  In  affirming, we observed that  "a new
primary  . .  . had  the virtue  of giving  the voters  a further
chance, in a fair election, to express their views."  570 F.2d at
1079.

                               -13-

we conclude that  present voting status  is the only  appropriate

yardstick for eligibility.  See id.13

                                     

     The judgment of the district court is therefore AFFIRMED.
                                                             

                    

     13  Leaks   also  involved  a  primary   election  that  was
              
invalidated.   The  election  board had  ordered  a new  election
limited only to those voters eligible to participate in the first
                                     
election.   The Court of  Appeals reversed in  a brief memorandum
decision,  ordering that all voters  eligible at the  time of the
special election be allowed to vote.

                               -14-
