                                                             PUBLISH
              IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT

              ____________________________________

                           No. 95-6814
              ____________________________________
              (District Court No. CV-94-0885-AH-S)


LARRY ROE, on behalf of himself and
all others similarly situated,

                                            Plaintiffs-Appellees,
                                                Cross-Appellants,
                             versus


STATE OF ALABAMA, JAMES BENNETT,
Alabama Secretary of State, et al.,
                                            Defendants-Appellees,
                                                Cross-Appellants,

CLARENCE T. HELLUMS, JR., on behalf
of himself and all others similarly
situated,
                                               Defendant-Appellant,
                                                    Cross-Appellee.

                    ------------------------
      Appeals from the United States District Court for the
                  Southern District of Alabama
                     ----------------------
                       (October 13, 1995)

Before TJOFLAT, Chief Judge, ANDERSON and BARKETT, Circuit
Judges.


PER CURIAM:


     In this case, Larry Roe, on behalf of himself and others who

voted in Alabama's November 8, 1994, general election (the "Roe

Class"), claims that the State of Alabama is attempting to dilute

the votes that the Roe Class cast in that election, in violation

of the Due Process Clause of the Fourteenth Amendment.   This
dilution will occur, the Roe Class contends, if Alabama's

election officials comply with the order of a state trial court,

issued in Odom v. Bennett, No. 94-2434-R (Montgomery County Cir.
Ct. 1994), requiring them to include in their vote totals

absentee ballots (the "contested ballots") that do not conform to

Ala. Code § 17-10-7 in that they were not enclosed in an envelope

bearing the signatures of the voter and either a notary public or

two witnesses.   Instead, these ballots were enclosed in envelopes

bearing only the voters' signatures.

     On December 5, 1994, the district court, concluding that the

Odom court's order, if implemented, would retroactively amend the

State's election code and "dilute the ballot box," entered a

preliminary injunction ordering the Alabama Secretary of State

(defendant James Bennett) to certify the election results without

counting the contested ballots.   The Secretary of State (and the

other state defendants in the case) and John Davis, who had cast

a contested ballot and was a plaintiff in Odom v. Bennett,

immediately appealed the injunction.   Following oral argument, we

affirmed the preliminary injunction in part (including the

district court's conclusion that the plaintiffs were likely to

prevail on the merits of their constitutional claim), vacated it

in part, and certified to the Supreme Court of Alabama the

question whether an absentee ballot enclosed in an envelope that

does not bear the signature of either a notary public or two

witnesses meets the requirement of Ala. Code § 17-10-7.   Roe v.
Alabama, 43 F.3d 574 (11th Cir. 1995) (Roe I).   In effect, our


                                  2
decision permitted those elected to all offices except the

offices of Chief Justice of the Supreme Court of Alabama and

Treasurer of Alabama to be sworn in.   Thus, the elections to

those two offices are the ones involved in this case.1

     On March 14, 1995, the Alabama Supreme Court answered the

question in the affirmative; the signature of the voter alone, if

accompanied by the voter's residence address and reason for

voting absentee, satisfies the statute's requirements.   Roe v.

Mobile County Appointment Bd., No. 1940461, 1995 WL 121871 (Ala.

March 14, 1995).   In addition to answering the certified

question, the court indicated that, in the past, the election

officials in some of Alabama's sixty-seven counties had counted

ballots such as those that are contested in this case.

     After receiving the Alabama Supreme Court's response to our

question, we remanded the case to the district court and

instructed it to determine whether, prior to and at the time of

the November 8, 1994, general election, the practice in Alabama

had been to reject or, conversely, to count absentee ballots

whose envelope did not include the signature of either a notary

public or two witnesses.2   Roe v. Alabama, 52 F.3d 300 (11th Cir.

1995) (Roe II), cert. denied, ___ U.S. ___ (Oct. 2, 1995).

     1
        The Republican candidates for chief justice and
treasurer, Perry O. Hooper, Sr., and James D. Martin, are
plaintiffs in this case; the Democratic candidate for treasurer,
Lucille Baxley, is an intervenor.
     2
        In remanding the case for this determination, we
instructed the district court to make findings of fact on 17
issues. We did not, however, limit the court's authority to try
other relevant issues.

                                 3
     Following the receipt of our mandate, and after extensive

discovery, the district court and the parties met in pretrial

conference and narrowed the issues to be tried.    The court, with

the consent of all parties, also certified the Roe Class and,

after Clarence T. Hellums was substituted for the deceased John

Davis, the court certified the Hellums Class (consisting of

voters who had cast contested ballots).    The Hellums Class then

filed two cross claims against the state defendants.    The first

claim alleged that, by not counting the contested ballots, the

state defendants would disenfranchise the Hellums Class in

violation of the Due Process Clause of the Fourteenth Amendment;

the second claim alleged that the State defendants would deny the

Class the equal protection of the laws if they counted contested

ballots in some counties but not in others (where the Class

members had voted).   The claims of the Roe and Hellums classes

thus turned on the same question:    whether it had been the

practice in Alabama prior to and in the November 8 election to

count ballots such as the contested ballots.     If the practice

had been not to count such ballots, the Roe Class would prevail;

if the practice had been to count them, the Hellums Class would

prevail.

     The trial of the case took three days.    Introduced into

evidence, in addition to the stipulated facts, were the answers

to interrogatories that had been propounded, in a format agreed

to by the parties, to the election officials in all of Alabama's
sixty-seven counties, and the testimony of forty-eight witnesses


                                 4
(thirty-eight of whom testified in person, ten by deposition),

including the Secretary of State and a former Attorney General

(who had issued the definitive opinion concerning the proper

interpretation of Ala. Code § 17-10-7).3   On the basis of that

evidence, the district court found that the practice in Alabama

prior to the November 8, 1994 election, had been uniformly to

exclude ballots enclosed in envelopes that did not bear the

signature of either a notary public or two witnesses as required

by a literal reading of Ala. Code § 17-10-7.4

     Given this finding of fact, which the state defendants did

not contest, the district court concluded that the Roe Class and

plaintiff Hooper were entitled to relief; to include the

contested ballots in the vote totals would depreciate the votes

of the members of the Roe Class and deprive plaintiff Hooper of

the office of Chief Justice of Alabama.    The same finding of fact

also required the court to reject the claims of the Hellums

     3
        Some of these 48 witnesses testified at the December 5,
1994 hearing on the plaintiffs' motion for a preliminary
injunction; the testimony they gave at that hearing was
incorporated into the record of the trial.

     4
        The court found this to be the practice in all of
Alabama's 67 counties except Washington County. In Washington
County, ballots such as the contested ballots were regularly
counted and included in the county's vote totals. In the
November 8, 1994, election, Washington County's vote totals
included 14 contested ballots. In three other counties--where
the practice was to exclude such ballots--a total of 35 contested
ballots "slipped through" and were counted. The 49 contested
ballots (from these three counties and Washington County) do not
affect the outcome of the two elections at issue. Plaintiff
Perry O. Hooper, Sr., prevails in the election for chief justice
by a total of 262 votes; intervenor Lucille Baxley prevails in
the election for state treasurer by a total of 1,032 votes.

                                5
Class; eliminating the contested ballots from the vote totals

would not operate to deny the members of that class due process

or the equal protection of the laws.   Accordingly, the district

court entered a final judgment that, among other things, ordered

the Secretary of State to certify the results of the elections of

chief justice and treasurer.

     The Hellums Class now appeals the district court's final

judgment.    It also moves this court to stay the district court's

judgment pending the disposition of its appeal.   We granted a

temporary stay of the final judgment to enable the parties to

brief the motion to stay.   Because the granting of a stay would

turn on the likelihood of the Hellums Class prevailing on the

merits of its appeal, see Garcia-Mir v. Meese, 781 F.2d 1450

(11th Cir. 1986); 11th Cir. R. 27-1(b)(1), we directed the

parties to brief the merits as well.   They have done so, and we

have heard argument thereon.

     For the reasons that follow, we conclude that the Hellums

Class cannot prevail on appeal.   Accordingly, we deny its motion

to stay and affirm the judgment of the district court.

     First, the district court's findings of fact are not clearly

erroneous; rather, its findings are supported overwhelmingly by

the evidence.   With the exception of Washington County, there has

been no practice to count ballots that bear only the signature of

the voter.   Indeed, the practice has been to require, in the

words of Ala. Code § 17-10-7, in addition to the voter's

signature, the signature of either a notary public or two

                                  6
witnesses.5   Given this practice, we fail to see how the State's

refusal to count the contested ballots could deny the Hellums

Class due process of law, the Class' first cross claim.   The

Class' second cross claim fails because refusing to count the

     5
        The Hellums Class contends that the district court
precluded the Class from engaging in discovery that might have
undercut the evidence of "past practice" on which the district
court relied. Specifically, the Class argues that the district
court abused its discretion in not permitting it to count the
absentee ballot envelopes (in each of Alabama's 67 counties) from
past elections (as well as the November 8, 1994, election); among
these envelopes, the Class contends, there may be a significant
number that, like the contested ballot envelopes, are without the
signature of either a notary public or two witnesses. Such
envelopes would presumably establish that the practice the
district court found to be uniform was, in fact, not uniform. If
not uniform, the argument concludes, then not counting the
contested ballots would deny the Hellums Class' right to due
process and equal protection (the Class' two cross claims).

     The district court barred the requested discovery because
(as the court stated in the addendum to its final judgment) to
permit the Hellums Class to inspect the approximately 100,000
envelopes would prolong the proceedings and delay interminably
the disposition of the case. The Hellums Class made no showing
that it was likely that a significant number of nonconforming
envelopes would be uncovered; moreover, the testimony of the
election officials before the court, considered as a whole,
demonstrated no likelihood that a significant number of
nonconforming ballots existed.

     Finally, we note that John Davis, in the complaint he and
Michael Odom filed in Odom v. Bennett, alleged that the election
officials in all of Alabama's 67 counties were rejecting the
contested ballots on the instructions of the Secretary of State.
The Secretary's instructions were in keeping with the opinion the
Alabama Attorney General issued in 1980 (which emphasized that
absentee ballots must bear the signature of either a notary
public or two witnesses) and the Alabama Election Handbook
(written by the Alabama Law Institute) and the Alabama Voter's
Guide, both of which were issued by every Secretary of State
thereafter.

     In sum, we find no merit in the Hellums Class' argument that
the district court abused its discretion in denying the Class the
discovery in question.


                                 7
contested ballots could not deny them equal protection of the

law.       The fact that a small number of contested ballots (forty-

nine) slipped through is of no consequence.

       The Hellums Class' fall-back position, as outlined to us in

oral argument, is that neither class states a claim cognizable

under the United States Constitution.       In other words, we should

revisit Roe I and Roe II, which, in affirming the district

court's preliminary injunction, held that Roe had presented a

claim under the Constitution.6

       6
        The Hellums Class argues that the Roe Class claim fails
because that Class did not establish an essential element of its
claim: that without the burden of the notary/two witness
requirement, persons who did not vote would have voted in the
November 8, 1994, general election. According to the Hellums
Class, the Roe I panel erred, in footnote 15 of its opinion, in
taking "judicial notice of the fact that reducing the
inconvenience of voting absentee--by eliminating the necessity of
obtaining the signature of a notary or two witnesses--would
increase the number of absentee ballots."

     We doubt that this point is an essential element of the Roe
Class' claim. The Roe Class included those who voted (as well as
those who would have voted but for the burden of executing a
proper affidavit); their claim is that their votes would be
diluted if the contested ballots were counted. Assuming,
however, that the element in question is essential to the Roe
Class' claim, we conclude that the Hellums Class effectively
stipulated that the element had been established. At the
pretrial conference, in submitting the issues to be tried,
counsel for the Hellums Class said nothing that would indicate
that the Roe Class had to produce a witness who would say that he
would have voted absentee but for the burden of finding a notary
or two witnesses. This silence must be viewed against the
background fact that this court in its footnote 15 had taken
judicial notice of the fact. None of the triable issues
delineated at the pretrial conference concerned this point.
Moreover, at trial, the Hellums Class said nothing when the Roe
Class did not present the testimony it now claims is missing.
When, at the conclusion of the trial, the court invited counsel
to submit oral argument or memoranda addressing the findings of
fact and conclusions of law the court should reach, see Fed. R.
Civ. P. 52(a), the Hellums Class stood silent. Under the

                                     8
     Roe I and Roe II establish law which is binding upon this

panel.    Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.

1981) (en banc).    Although the law established by the prior panel

was announced in a preliminary injunction posture, nevertheless

the principle of law adopted was clear.      The facts established on

remand in the district court were stronger in favor of the Roe

Class than the prior panel could have expected.     We therefore

adhere to our prior conclusion that Roe has presented a claim for

relief.

     Assuming that to be true, the Hellums Class contends that,

as a matter of comity, we should decline to exercise our

jurisdiction so as not to interfere with Alabama's election

process.    If we dismissed the case, the Hellums Class represents,

the Class would immediately move the Montgomery County Circuit

Court, once again, to order the county election officials to

amend their vote totals to include the contested ballots and the

Secretary of State to include them in the election results for

the office of chief justice.

     Whether the Montgomery County Circuit Court has jurisdiction

to grant the Hellums Class such relief is, as we noted in Roe I,

highly doubtful.    Roe I, 43 F.3d at 582.    See Ala. Code

§ 17-15-6.7    The Alabama Attorney General, appearing on behalf of


circumstances, we conclude that the Hellums Class waived any
argument they may have had that the Roe Class had to establish
the element in question.

     7
          Section 17-15-6 provides:


                                  9
the Secretary of State and the election officials of the State's

sixty-seven counties (the Odom defendants), citing section 17-15-

6, has moved the Montgomery County Circuit Court to dismiss Odom

v. Bennett for want of subject matter jurisdiction.    But, putting

this issue aside, directing the district court to dismiss this

case would, as we observed in Roe I, leave the Roe Class without

an adequate forum for the vindication of its federal

constitutional claims.   Roe I, 43 F.3d at 582.

     Finally, the Hellums Class urges us to give effect to the

Supreme Court of Alabama's answer to the question we certified in

Roe I:   that the envelopes enclosing absentee ballots need not

bear the signature of either a notary public or two witnesses.

What the Hellums Class ignores is that the Alabama Supreme Court,

in answering our question, construed an Alabama statute; the

court did not, and was not called upon to, decide whether the

counting of the contested ballots cast in the November 8, 1994,

general election--in the face of Ala. Code § 17-10-4 and in the

face of a uniform state-wide practice of excluding such


     No jurisdiction exists in or shall be exercised by any
     judge, court or officer exercising chancery powers to
     entertain any proceeding for ascertaining the legality,
     conduct or results of any election, except so far as
     authority to do so shall be specially and specifically
     enumerated and set down by statute; and any injunction,
     process or order from any judge, court or officer in the
     exercise of chancery powers, whereby the results of any
     election are sought to be inquired into, questioned, or
     affected . . . save as may be specially and specifically
     enumerated and set down by statute, shall be null and void
     and shall not be enforced by any officer or obeyed by any
     officer or obeyed by any person . . . .


                                10
ballots8--infringed the Roe Class' constitutional rights.   See

Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).

     In conclusion, we AFFIRM the judgment of the district court.

The State defendants, who have not appealed and who stand ready

to comply with the district court's injunction, are directed to

comply with that injunction forthwith.

     Because this litigation is now at an end, we direct the

Clerk to issue the mandate instanter.




     8
        As noted supra, the Alabama Supreme Court, in answering
our certified question, stated that, in the past, election
officials in some counties included in their vote totals ballots
such as those contested in this case. In making this statement,
the Alabama Supreme Court relied upon some affidavits the Odom
plaintiffs attached to their motion for summary judgment in that
case. However, these affiants were not subjected to cross
examination in Odom, nor did the opposing party have an
opportunity to oppose or otherwise contest same. After we
remanded the instant case for trial, these affiants were examined
under oath in the district court. Their testimony in the
district court--whether given in answer to interrogatories, on
deposition, or at trial--was, contrary to their affidavits in
Odom, that their counties never counted absentee ballots such as
those at issue here or that they had no knowledge of how such
ballots were treated. Thus, the factual predicate for the
Alabama Supreme Court's observations with respect to past
practice was demonstrated in the district court to have been
erroneous.

                               11
