Gamza v. Aguirre

• Decision Date: 19 June 1980
• Docket Number: No. 78-3041,78-3041
• Citation: 619 F.2d 449
• Parties: Marvin GAMZA et al., Plaintiffs-Appellees, v. Arturo R. AGUIRRE, Defendant-Appellant, Harold Wiggs, President of the Board of Trustees of the El Paso Independent School District, Defendant, Bruce Faulkner, Director of the El Paso County Election Commission, and T. Udell Moore, County Judge of El Paso County, Texas, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 449

619 F.2d 449

66 A.L.R.Fed. 741

Marvin GAMZA et al., Plaintiffs-Appellees, v. Arturo R. AGUIRRE, Defendant-Appellant, Harold Wiggs, President of the Board of Trustees of the El

Paso Independent School District, Defendant,

Bruce Faulkner, Director of the El Paso County Election

Commission, and T. Udell Moore, County Judge of El

Paso County, Texas, Defendants-Appellants.

No. 78-3041.

United States Court of Appeals, Fifth Circuit.

June 19, 1980.

George N. Rodriguez, Jr., County Atty., Craig A. Patton, El Paso, Tex., for Moore.

Arturo R. Aguirre, pro se.

Raymond C. Caballero, El Paso, Tex., for defendant-appellant.

Malcolm McGregor, Harry Tom Peterson, El Paso, Tex., for plaintiffs-appellees.

Appeals from the United States District Court for the Western District of Texas.

Before DYER, RUBIN and POLITZ, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A candidate for the school board of a Texas independent school district and four of his supporters contend they are entitled to relief in federal court under section 1983 because the election votes were improperly counted and, as a result, the candidate's opponent was improperly declared to be the winner. The district judge concluded both that he had jurisdiction over the action and that the candidate seeking federal relief had been denied office by acts involving "scienter bad faith and deliberate disregard of a state court order." He ordered the candidate who had been declared loser installed as a member of the Board of Trustees of the school board, in place of his opponent, the declared winner. Because the evidence does not establish a deprivation of federal constitutional rights, we reverse.

I. Facts

Marvin Gamza was one of five candidates for election to the Board of Trustees of the El Paso Independent School District. He and Arturo Aguirre led in the primary, and a run-off election was held on April 29, 1978. At a meeting of the Board of Trustees on May 9, Aguirre was declared the winner by a margin of 67 votes, 1681 to 1614. At that time no question about the election was raised. However, Gamza later learned of possible irregularities in the election count that, if corrected, would result in a count in his favor. He, therefore, decided to challenge the election. He notified the district attorney of El Paso County, Texas of his concern about the election and the district attorney obtained a court order preserving the ballots and preventing their destruction. The district attorney investigated Gamza's complaints and concluded that they were not sufficient to warrant his taking action. The order preserving the ballots was renewed on August 15 and again on August 25. Nonetheless, all the ballots, except those from the three disputed precincts, were destroyed.

On August 28, 1978, Gamza sued Aguirre in state court seeking to be installed in the office held by Aguirre. As he had not given Aguirre notice of his challenge to the election within 30 days of the return, ¹ the state court dismissed the suit on September 8, 1978. Meanwhile, Gamza and four individuals who had voted in the school board election had instituted this federal suit. Their complaint alleged that the miscount had resulted from "unintended error" and had denied them equal protection of the laws.

The irregularities arose because of errors in the management and programming of the voting machines and ballots used in the election. In the school board election, each voter is handed a card, or ballot, that is indecipherable by him. He inserts this card in a slot in a holding device, thus placing it beneath a fixed matrix containing the names of candidates. He inserts a stylus in a hole opposite the name of the candidate for whom he wishes to vote. The stylus perforates the ballot. The ballots are then placed in a machine which automatically counts them and tabulates the vote.

After the results were certified, Gamza claimed that there had been a miscount in three precincts because of the use of an incorrect matrix in the voting machines in those precincts. The matrix for the run-off showed the candidates as: 1. Aguirre; 2. Gamza. However, in the three disputed precincts, matrices from the first election were sent to the polling place where all three precincts voted. Those matrices showed the names of five candidates: 1. Gamza; 2. Massello; 3. Aguirre; 4. Brotherton; 5. Calabrese. The election judge at the polling place discovered that five candidates were listed instead of only the two run-off candidates and telephoned the election commission. She was instructed to permit voters to vote by scratching out the other 3 names. Thus the machines in three precincts exposed the names of Gamza in position 1 and Aguirre in position 3. In all of the other precincts, Gamza was listed in position 2 and Aguirre in position 1. In the tabulation of the results, the Gamza votes from the 3 precincts where he was listed in position 1 were added to the other position 1 votes giving Aguirre credit for the votes cast for his opponent. Gamza was given credit for 3 votes cast in the blank position 2. 25 votes were not tabulated. If it is assumed that all of these were intended for Aguirre, a retabulation would have made Gamza the winner by 20 votes.

Presented with these facts alone, the district judge indicated an unwillingness to take jurisdiction. However, in the evidentiary hearing, he learned that the election ballots had been destroyed. Moreover, when a metal box supposedly containing the ballots from the three contested precincts was opened, only the ballots from one precinct were discovered. The district judge thereupon concluded that "the violation of plaintiffs' rights appears to involve scienter, bad faith and flagrant disregard for an existing court order in that the ballots . . . were destroyed contrary to said order" and ordered the relief now challenged: the installment of Gamza on the school board. The defendants sought a stay of that order. The district judge denied the stay and elaborated upon the reasons for his decision:

The evidence was on the whole undisputed, though, there is a conflict in the evidence as to whom (sic) was responsible for the destruction of the contested ballots . . . . (T)he Court became convinced after a full hearing on the matter that while the initial error in the counting of the ballots of the election may have been innocent, the subsequent events resulted in an intentional deprivation of the civil rights of the voters and the candidate in the case.

Although the district court found that the defendants intentionally resisted and interfered with Gamza's attempts to challenge the election, there is no evidence that the initial error in setting up the matrices and the subsequent miscount of the ballots resulted from anything but entirely innocent human error. The question before us is whether either the innocent initial errors or the subsequent attempts to conceal that error justify the relief granted under section 1983.

II.

In determining whether we have jurisdiction of claims based on section 1983, the full text of which is set forth in the margin, ² we are reminded by Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979), first to determine whether the claimant has been deprived of a right secured by the Constitution and laws of the United States. ³ "Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections." Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377-78, 12 L.Ed.2d 506, 523 (1964). The Supreme Court has stated that qualified voters have not only a constitutional protected right to vote, Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884), but also the concomitant right to have their votes counted, United States v. Mosley, 238 U.S. 383, 35 S.Ct. 904, 59 L.Ed. 1355 (1915). These rights can neither be denied outright, Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939); Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915), nor destroyed by alteration of ballots, United States v. Classic, 313 U.S. 299, 315, 61 S.Ct. 1031, 1037, 85 L.Ed. 1368 (1941), nor diluted by ballot-box stuffing, United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341 (1944). See also Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970).

These rulings stretched to their doctrinal bounds would appear to support the plaintiff's position that the failure to count their votes amounted to a constitutional deprivation. However, constitutional decision must not be confined merely to the logical development of the philosophy of prior decisions unfettered by other considerations. The functional structure embodied in the Constitution, the nature of the federal court system and the limitations inherent in the concepts both of limited federal jurisdiction and of the remedy afforded by section 1983 must all be fully attended.

If the right to suffrage is to operate as "preservative of other basic civil and political rights," Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, 527 (1964), the court must be willing to intervene when the weight of some votes "is in a substantial fashion diluted when compared with votes" of others. Id. at 568, 84 S.Ct. at 1385, 12 L.Ed.2d at 531. A cause of action has been recognized when "wilful conduct . . . undermines the organic processes by which candidates are elected." Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975). In Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), the offering of a sham candidate to prevent another from winning the primary election was said to have "clearly debased the rights of all voters in the election. Such an abridgment of the right to vote is impermissible and evinces the sufficiency of this (section 1983) complaint." Id. at 1102. ...