Morse v. OLIVER NORTH FOR US SENATE, Civ. A. No. 94-0025-C.

• Decision Date: 18 May 1994
• Docket Number: Civ. A. No. 94-0025-C.
• Parties: Fortis MORSE, Kenneth Curtis Bartholomew, and Kimberley J. Enderson, Plaintiffs, v. OLIVER NORTH for U.S. SENATE COMMITTEE, INC., Republican Party of Virginia, and Albemarle County Republican Committee, Defendants.
• Court: U.S. District Court — Western District of Virginia

853 F. Supp. 212

Fortis MORSE, Kenneth Curtis Bartholomew, and Kimberley J. Enderson, Plaintiffs, v. OLIVER NORTH for U.S. SENATE COMMITTEE, INC., Republican Party of Virginia, and Albemarle County Republican Committee, Defendants.

Civ. A. No. 94-0025-C.

United States District Court, W.D. Virginia, at Charlottesville.

May 18, 1994.

George Alfred Rutherglen, Daniel R. Ortiz, University School of Law, Pamela S. Karlan, Charlottesville, VA, Eben Moglen, New York City, for plaintiffs.

Frederick Wilson Chockley, E. Mark Braden, Baker & Hostetler, Washington, DC, Donald Wise Huffman, Bird, Kinder & Huffman, P.C., Roanoke, VA, for Oliver North for U.S. Senate Committee, Inc.

Daniel A. Carrell, Richmond, VA, Joseph Robert Brame, III, Earle Duncan Getchell, Jr., McGuire, Woods, Battle & Boothe, Richmond, VA, Donald W. Lemons, Durrette, Irvin, Lemons & Fenderson, P.C., Richmond, VA, Patrick M. McSweeney, Richmond, VA, for Republican Party of Va., Albemarle County Republican Committee.

Before WIDENER, Circuit Judge, and MICHAEL and SPENCER, District Judges.

MEMORANDUM OPINION

PER CURIAM:

Fortis Morse, Kenneth Curtis Bartholomew, and Kimberley J. Enderson, plaintiffs, brought this action against the Oliver North for U.S. Senate Committee, Inc. (North Committee), the Republican Party of Virginia (the Party), and the Albemarle County Republican Committee (County Committee), defendants, seeking declaratory, injunctive, and monetary relief and costs for alleged violations of three sections of the Voting Rights Act of 1965, 42 U.S.C. § 1971 et seq., and the Fourteenth and Twenty-Fourth Amendments to the United States Constitution. This dispute challenges a Party requirement that all persons who wish to become a delegate to the statewide convention to nominate the Party's candidate for United States Senator must pay a nonrefundable registration fee, which is $45.00.¹ Jurisdiction of a three-judge district court is claimed on Counts 3 and 4 of the complaint under 42 U.S.C. §§ 1973c & 1973h and 28 U.S.C. § 2284(a).

This case was heard on May 18, 1994, pursuant to order of this court. Now pending before the court are the North Committee's motion to dismiss, the Party and County Committee's joint motion to dismiss, the plaintiffs' motion for a preliminary injunction and plaintiffs' motion for expedited discovery. We grant, as to Counts 3 and 4, the Party and County Committee's joint motion to dismiss. We deny, as to Counts 3 and 4, the plaintiffs' motions for a preliminary injunction and expedited discovery. We find we have no jurisdiction to consider Counts One, Two, and Five of the complaint, and we therefore do not address them. We also do not address the North Committee's motion to dismiss because the action against the North Committee is based solely on Count 5, over which we have no jurisdiction.

I

Taking the facts in the light most favorable to the plaintiffs, we find that on December 16, 1993 the Party issued a call for a state convention, to be held on June 3, 1994, to nominate the Party's candidate for United States Senator. Pursuant to the call, permitted by the Party plan, in order to become a delegate to the convention, the prospective delegate must pay a registration fee of $45.00, and be selected as a delegate. Delegates are selected in county or city mass meetings, conventions, or party canvasses. As a practical matter, anyone who follows the registration procedure may become a delegate to the state convention. The requirement that a prospective delegate pay a registration fee in order to participate in the Party's nominating process was not in effect on November 1, 1964, but has been authorized by the Party's plan at least since 1987.

The plaintiffs are all registered voters who wish to become delegates to the Party's June convention. Plaintiff Bartholomew was deterred from filing as a delegate by the $45.00 fee collected by the County Committee. Plaintiff Enderson was deterred from filing as a delegate in Hampton, Virginia by the $45.00 fee collected in Hampton.² When plaintiff Morse attempted to register for selection as a delegate at the County Committee's headquarters, he learned of the $45.00 fee, which was a larger sum than he currently had in his checking account. Upon inquiring whether he could file without paying the fee, he was informed by a worker at the County Committee's headquarters that some candidates would sponsor voters who supported them. Morse then left the County Committee's headquarters and borrowed the money to pay the fee. Upon his return, his filing form and payment were accepted. By inquiring further, he learned that if he supported Oliver North, he could be reimbursed his registration fee by the North Committee. He then accepted $45.00 from the county coordinator for the North Committee and was told that he was expected to be at the June convention. He later repaid the $45.00 to the North Committee.

Having delayed five months, and almost on the eve of the state convention, plaintiffs filed this suit in which they plead five causes of action: The Party's imposition of a registration fee violates the Twenty-Fourth Amendment's prohibition of poll taxes (Count 1); the Party's imposition of a registration fee violates the Fourteenth Amendment's Equal Protection Clause (Count 2); the Party did not receive preclearance before implementing the registration fee requirement, and the fee is therefore in violation of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (Count 3); the imposition of the registration fee prohibits people of limited means from participating in voting in violation of Section 10 of the Voting Rights Act, 42 U.S.C. § 1973h(a) (Count 4); and the North Committee's practice of paying registration fees for prospective delegates who indicate their support for North violates Section 11 of the Voting Rights Act, 42 U.S.C. § 1973i(c) (Count 5).

II

We first turn to the question of jurisdiction of a three-judge court. Plaintiffs' claims under Sections 5 and 10 of the Voting Rights Act, which are Counts 3 and 4 of the complaint, are actions which "shall be heard and determined by a district court of three judges." 42 U.S.C. §§ 1973c & 1973h(c); accord 28 U.S.C. § 2284(a); Charles A. Wright, The Law of Federal Courts § 50, at 297 n. 14 (4th ed. 1983). A three-judge district court must be convened when so required by an act of Congress. 28 U.S.C. § 2284(a). However, Counts 1, 2, and 5 of plaintiffs' complaint, which allege two constitutional violations and a violation of Section 11 of the Voting Rights Act, 42 U.S.C. § 1973i(c), which addresses itself solely to criminal conduct, are not claims for which Congress has required the convening of a three-judge court. We are aware that some three-judge district courts have taken the view that when a three-judge court has been properly convened for some claims in which such a court is required it may, in its discretion, exercise jurisdiction over other claims for which a three-judge court is not required. See, e.g., Armour v. Ohio, 775 F.Supp. 1044, 1048 (N.D.Ohio 1991); Tucker v. Montgomery Bd. of Comm'rs, 410 F.Supp. 494, 500 (M.D.Ala.1976). However, the only district court decision in this circuit to address the question holds to the contrary and is the more persuasive, we think. We thus follow the three-judge panel of the United States District Court for the District of South Carolina which held, "Any rights asserted by the plaintiffs under other federal statutes or Constitutional provisions can be asserted only before the single-judge District Court." Gordon v. Executive Comm. of the Democratic Party of Charleston, 335 F.Supp. 166, 170 (D.S.C.1971) (per curiam). We think the view of that court is consistent with the intent of Congress to limit the jurisdiction of three-judge courts, which resulted in the 1976 legislation repealing 28 U.S.C. §§ 2281 & 2282 and amending 28 U.S.C. § 2284.³ See Act of August 12, 1976, Pub.L. No. 94-381, 90 Stat. 1119 (1976); Wright, supra, at 296-97; see also Perez v. Ledesma, 401 U.S. 82, 87, 91 S.Ct. 674, 678, 27 L.Ed.2d 701 (1971) ("Even where a three-judge court is properly convened to consider one controversy between two parties, the parties are not necessarily entitled to a three-judge court and a direct appeal on other controversies that may exist between them." (footnote omitted)). Accordingly, we do not consider Counts 1, 2, and 5 of the complaint.

III

Count 3 of the complaint alleges that the Party violated Section Five of the Voting Rights Act, 42 U.S.C. § 1973c, by implementing the registration fee requirement, which the Party admits was not in effect on November 1, 1964,⁴ without first obtaining preclearance from the Attorney General of the United States. Section Five provides in relevant part:

Whenever a State or political subdivision ... shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964 ... such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color or minority language group ... and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within

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