
USCA1 Opinion

	




                            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-
