Marks v. Stinson
| Decision Date | 09 March 1994 |
| Docket Number | No. 94-1247,No. 94-1248,94-1247,94-1248 |
| Citation | 19 F.3d 873 |
| Parties | Bruce MARKS; Kathy Steck, on behalf of the Voters of the Second District; Emanuel Lorenzo; Lydia Colon; Lillian Cruz; Diana Irizarry; Ruth Martinez; Zoraida Rodriguez; Yesenia Vasquez; Republican State Committee v. William STINSON; the William Stinson Campaign; Philadelphia County Board of Elections; Margaret M. Tartaglione; John F. Kane; Alexander Z. Talmadge, Jr. and various Doe and Roe Defendants. Senator William Stinson, Appellant inPhiladelphia County Board of Elections, Margaret M. Tartaglione, John F. Kane and Alexander Talmadge, Jr., Appellants inIda Dougherty, Daniel J. Sears, Josephine Martin, Mary Martin, Joseph J. Jordan, Anne Jordan, Mary Sullivan, Mary Mendoloski, Anna Hagan and Robert W. Les, Intervenor-Appellants, as per the Court on |
| Court | U.S. Court of Appeals — Third Circuit |
Bruce S. Marks, pro se.
Paul R. Rosen (argued) and Jeffrey M. Goldstein, Spector Gadon & Rosen, P.C., Philadelphia, PA, for plaintiffs-appellees Kathy Steck, Manuel Lorenzo, Lydia Colon, Lillian Cruz, Diana Irizarry, Ruth Martinez, Zoraida Rodriguez, Yesenia Vasquez and Republican State Committee.
Arthur Makadon (argued), Charisse R. Lillie, Darryl J. May, Daniel Schoor-Rube, Robert R. Baron, Jr., Stephen J. Kastenberg, Ballard Spahr Andrews & Ingersoll; and Ralph J. Teti and Catherine L. Merino, Willig, Williams & Davidson, Philadelphia, PA, for appellant William Stinson.
Joseph A. Dworetzky, Acting City Sol., James B. Jordan (argued), Chair, Litigation Group and Marie C. Lasota, Asst. City Sol., City of Philadelphia Law Dept., Philadelphia, PA, for appellants Philadelphia County Bd. of Elections, Margaret Tartaglione, John F. Kane and Alexander Talmadge, Jr.
Richard A. Sprague (argued), Geoffrey R. Johnson and Denise Pallante, Sprague & Sprague, Philadelphia, PA, for intervenor-appellants.
Robert L. Byer, John P. Krill, Jr., Wendy E.D. Smith and Linda J. Shorey, Kirkpatrick & Lockhart, Harrisburg, PA, for amici curiae Republican Members of the Pennsylvania Senate.
Thomas A. Allen and Laura W. Brewer, White and Williams, Philadelphia, PA, for amicus curiae the Committee of Seventy (Frederick L. Voigt, Donald Beckman and Marsha I. Cohen, of counsel).
Edwin A. Abrahamsen, Lawrence J. Moran, William P. Conaboy, Abrahamsen Moran & Conaboy, P.C., Scranton, PA, and Mark A. Packman, Linda D. Feldmann and Teresa L. HarveyParedes, Dickstein, Shapiro & Morin, Washington, DC, for amici curiae Democratic Members of the Senate of Pennsylvania.
Before: STAPLETON, GREENBERG and COWEN, Circuit Judges.
After an evidentiary hearing on the plaintiffs' motion for a preliminary injunction, the district court in this case found that certain officials responsible for conducting an election in the second senatorial district of the Commonwealth of Pennsylvania had conspired with one of the two candidates to cause numerous illegally obtained absentee ballots to be cast. Based on that finding, the district court issued a preliminary injunction which enjoined the candidate who participated in the conspiracy from exercising any of the authority of the office of state senator and directed the board of elections to certify the result of the election based solely on the votes cast at the voting machines. The effect of the preliminary injunction was to require the decertification of the candidate previously declared to be the winner and the certification of his opponent.
In this appeal from the preliminary injunction, we are asked to declare that the district court abused its discretion by refusing to abstain and by fashioning an unreasonable interim remedy.
Republican Bruce Marks ("Marks") and Democrat William Stinson ("Stinson") ran in an election conducted on November 2, 1993, to represent Pennsylvania's second senatorial district. This election was held to fill the remaining portion of a term expiring in December 1994, and was of particular significance to both Republicans and Democrats because control of the Pennsylvania Senate was at stake. According to the certified results of the Philadelphia County Commissioners, sitting as the County Board of Elections ("the Board"), 1 of the 38,818 votes cast on the voting machines on election day, 19,691 were cast for Marks, while 19,127 were cast for Stinson. However, of the 1,767 absentee ballots cast, Marks received only 371 votes, while Stinson received 1,396 votes. When all votes were added together, Stinson won by a final count of 20,523 to 20,062. The Board, therefore, certified Stinson as the winner of the election and he was subsequently sworn in as a Pennsylvania state senator.
Marks, the Republican State Committee, and eight named voters who reside in the second senatorial district (two of whom are residents who voted at the polling place in the election at issue, and six of whom are Latino residents of this same district who voted by absentee ballot) brought this suit alleging violations of the Voting Rights Act and the Civil Rights Act in connection with the election. The defendants are Stinson, the Stinson campaign, unnamed individuals who worked for the Stinson campaign, the Board, and Board members Margaret M. Tartaglione, John F. Kane, and Alexander Z. Talmadge, Jr. Defendants are joined as appellants by ten intervenors who are voters who legally cast absentee ballots and who allege that the preliminary injunction disenfranchised them.
Under Pennsylvania law, a qualified elector may vote by absentee ballot if he or she is, inter alia, absent from the Commonwealth or county of residence "because his duties, occupation or business require him to be elsewhere during the entire period the polls are open" or is physically unable to go to the polls. 25 P.S. Sec. 3146.1(j) & (k). An elector who wishes to vote by absentee ballot must submit to the appropriate board of election an absentee ballot application, including a statement that the elector expects to be out of the county on election day or that the elector is physically unable to go to the polls, with a declaration stating the nature of the disability and the name, address, and telephone number of the attending physician. 25 P.S. Sec. 3146.2(a) & (e)(1) & (e)(2). The absentee ballot application requires that the elector provide a "post office address to which [the] ballot is to be mailed." The deadline for the receipt of applications is 5:00 p.m. on the Tuesday before the election. 25 P.S. Sec. 3146.2a.
Absentee ballots applications are processed by the local board of elections to determine if the applicant possesses all necessary qualifications. If the board is satisfied that the applicant is a qualified elector, the application is marked "approved." 25 P.S. Sec. 3146.2b(a). If the board concludes that the applicant is not qualified, it must immediately notify the applicant. 25 P.S. Sec. 3146.2b(d). After approving an absentee ballot application, the board of elections is required to "mail or deliver" an absentee ballot package to the elector at the address listed on the application. 25 P.S. Sec. 3146.5. The absentee ballot package consists of an outer envelope in which is enclosed a declaration envelope, an inner envelope, and instructions. 25 P.S. Sec. 3146.4.
The elector must mark the ballot "in secret," seal the ballot in the inner envelope, seal the inner envelope in the declaration envelope, and execute the declaration on the declaration envelope. 25 P.S. Sec. 3146.6(a). An elector may legally receive assistance in filling out the absentee ballot only if the elector has a physical disability that "renders him unable to see or mark ... the ballot." 25 P.S. Sec. 3146.6a. The elector must then "send by mail" or deliver "in person" the executed declaration package to the board of elections. 25 P.S. Sec. 3146.6. To be valid, all absentee ballots must be received by 5:00 p.m. on the Friday before the election. 25 P.S. Sec. 3146.6(a). If an elector who sent in an absentee ballot becomes able to get to the polls on election day, the absentee ballot is void as a matter of law, and the elector has a duty to go to the polls and void the ballot. 25 P.S. Sec. 3146.6(b).
Election day pollwatchers for each candidate may challenge any absentee ballot at the polling place at the time the polls close. 25 P.S. Sec. 3146.8(e). The unchallenged absentee ballots are canvassed after the polls close by opening the declaration envelopes, removing, mixing, and opening the sealed inner envelopes, and then counting the ballots. 25 P.S. Sec. 3146.8. All challenges are heard by the county board of elections within seven days and the board's decision is appealable to the Court of Common Pleas. 25 P.S. Sec. 3146.8(e).
Following a three-day hearing during which extensive testimony was presented, the district court issued detailed findings of fact which we now summarize.
The Stinson campaign sent its workers into divisions of the district where a majority of the residents were white to solicit voter registration applications and absentee ballot applications. The goal was to obtain twenty absentee ballot applications from each division. Those who expressed a hesitancy to register because they did not wish to go to a polling place were told by campaign workers that they could fill out an absentee ballot application and obtain an absentee ballot as a matter of convenience. Many improper applications were received based on this misrepresentation. These absentee ballot applications stated that the basis for voting absentee was that the applicant would be out of the county at the time of the election, despite the fact that the applicant had no reason to believe that this would be the case. To conceal the fact that many of these improper absentee ballot applications were...
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