Love v. Foster

• Decision Date: 30 July 1996
• Docket Number: No. 96-30429,96-30429
• Citation: 90 F.3d 1026
• Parties: G. Scott LOVE, Paul S. Bergeron, Kathleen B. Balhoff, and Bennie Baker-Bourgeois, Plaintiffs-Appellants, v. Michael J. FOSTER, Jr., Governor of State of Louisiana, and Fox McKeithen, Secretary of State of Louisiana, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1026

90 F.3d 1026

65 USLW 2128

G. Scott LOVE, Paul S. Bergeron, Kathleen B. Balhoff, and Bennie Baker-Bourgeois, Plaintiffs-Appellants, v. Michael J. FOSTER, Jr., Governor of State of Louisiana, and Fox McKeithen, Secretary of State of Louisiana,

Defendants-Appellees.

No. 96-30429.

United States Court of Appeals,

Fifth Circuit.

July 30, 1996.

Thomas E. Balhoff, Judith R. Atkinson, Roedel, Parsons, Hill & Koch, Baton Rouge, LA, Daniel Joseph Balhoff, John S. Baker, Baton Rouge, LA, M. Miller Baker, Carr, Goodson & Lee, Washington, DC, for plaintiffs-appellants.

Roy A. Mongrue, Jr., Asst. Atty. General, Angie Rogers LaPlace, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for defendants-appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before DAVIS and DENNIS, Circuit Judges, and FALLON ^*, District Judge.

W. EUGENE DAVIS, Circuit Judge:

Appellants, four Louisiana voters, appeal from the district court's order granting defendants' motion for summary judgment and dismissing plaintiffs' suit seeking declaratory and injunctive relief on grounds that Louisiana's method of conducting congressional elections violates the Constitution and laws of the United States. We reverse.

I.

In August 1995 four Louisiana citizens, who are registered to vote in Louisiana and

who have a history of voting in congressional elections, filed this action for declaratory and injunctive relief. They seek this relief under 42 U.S.C. § 1983 and pursuant to our federal question jurisdiction to resolve a Constitutional claim. Their core allegation is that the Louisiana open primary system violates the federal statutes that establish a uniform federal election day for members of Congress and must yield under the Supremacy Clause of the Constitution. After cross-motions for summary judgment were filed, the district court granted summary judgment for the defendants. The appellants filed a timely appeal.

II.

We review a district court's grant of summary judgment de novo. Mozeke v. International Paper Co., 856 F.2d 722, 724 (5th Cir.1988). In deciding this appeal, we address only the pre-emption claim. See Shaw v. Delta Air Lines, 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 2899 n. 14, 77 L.Ed.2d 490 (1983).

In Louisiana Public Service Comm. v. FCC, 476 U.S. 355, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986), the Supreme Court summarized the theories under which state laws are pre-empted as follows:

Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. Pre-emption may result not only from action taken by Congress itself; a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation.

Id. at 368-69, 106 S.Ct. at 1898-99 (internal citations omitted).

We start our pre-emption analysis from the bedrock premise that Congress has authority to enact the requirements for federal elections. Article I, Section 4, Clause 1 of the Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as the Places of choosing Senators.

In Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932), the Court, interpreting Art. I, § 4, Cl. 1, stated that "[i]t cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration,...." Id. at 366, 52 S.Ct. at 399.

In 1872, Congress established a uniform election day for elections for U.S. Representatives by enacting 2 U.S.C. § 7, which states:

The Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election, in each of the States and Territories of the United States, of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter.

This same election day was later adopted for elections for U.S. Senators in 2 U.S.C. § 1:

At the regular election held in any State next preceding the expiration of the term for which any Senator was elected to represent such State in Congress, at which election a Representative to Congress is regularly by law to be chosen, a United States Senator from said state shall be elected by the people thereof for the term commencing on the 3d day of January next thereafter.

Congress also set this day for the election of presidential electors. 3 U.S.C. § 1. ¹ Congress in 2 U.S.C. §§ 1, 7 therefore declared that all elections for Congress should be held on the same date, the Tuesday following the first Monday in November (federal election day). This declaration was subject to only two exceptions: (1) in states that required a majority vote for election, a runoff could be held between federal election day and January when officials take office; and (2) an election could be held on a different date if a vacancy occurred in the office. 2 U.S.C. § 8. ² In adopting this scheme, Congress precluded a state from holding an election in which members of Congress could be elected before the federal election date.

This interpretation is supported by the legislative history. This history indicates that Congress wanted a uniform election day to prevent earlier elections in some states unduly influencing the later voters, to prevent fraudulent voting in multiple state elections, and to remove the burden of voting in more than one federal election in a given year. Cong.Globe, 42d Cong., 2d Sess. 112 (1871). ³

The legislative history of 2 U.S.C. § 8 also supports the conclusion that Congress intended any outcome determinative election to be held on federal election day unless it fell within the exception in § 8 During the consideration of § 8, Senator Thurman explained that Section 8

relates only to the case of a special election to fill a vacancy, or where there is a failure to elect. It does not touch the general elections for members of the House of Representatives. The cases, therefore, to which it will apply are very rare indeed. It is very seldom that there is an election to fill a vacancy, and still more seldom that there is a failure to elect. In all those States in which a plurality elects, no such thing as failure to elect can occur unless there should be a tie, and in those cases I think in every State the right then is determined by lot....

I think, therefore, there can be no failure to elect except in those States in which a majority of all the votes is necessary to elect a member, and they are very few in number. Then there is no probability of there being a failure to elect so as to make this section necessary in many cases, and Cong.Globe, 42d Cong., 2d Sess. 677 (1872) (remarks of Sen. Thurman) (emphasis added).

the vacancies that happen are very few indeed. The section itself, therefore, is rather inserted out of abundant caution than for any other reason.

For all of the above reasons, we conclude that Congress intended that all determinative federal elections be held on federal election day except for the rare exceptions specified in 2 U.S.C. § 8.

We turn next to the Louisiana election scheme which appellants contend conflicts with 2 U.S.C. §§ 1, 7. Before 1978, Louisiana's election system for selection of representatives and senators complied with the federal election day statutes. The pre-1978 Louisiana law required recognized political parties to nominate candidates through partisan primaries. The parties' nominees for Congress would then appear on the ballot on federal election day. Independent candidates and others who wished to appear on the federal election day ballot with the party nominees were required to qualify by other methods. The names of all qualified candidates were placed on the federal election day ballot. The candidate who received the most votes in this election was declared the winner. See La.Rev.Stat. § 18:546 (now repealed).

In 1978, Louisiana drastically changed its method for selecting federal and state officials by adopting an open primary system. Under this system, all candidates, regardless of party affiliation, appear on the same ballot and all voters regardless of party affiliation may vote for the candidate of their choice. La.Rev.Stat. § 18:401(B). ⁴

This open primary is ordinarily ⁵ held "on the first Saturday in October next preceding the date of the general election." La.Rev.Stat. § 18:1272(A). ⁶ See also La.Rev.Stat. § 18:1272(B). To win in the October primary, a candidate must receive a majority of the votes cast. Louisiana holds its general election on the federal election day. Id. But the names of congressional candidates (like candidates for statewide office) only appear on the general election ballot if no single candidate receives a majority of the votes in the primary and a runoff between the two top candidates is required. La.Rev.Stat. § 18:1271. ⁷

Thus the Louisiana open primary system allows contested elections for Congress to be decided in the primary, which is held at least one month before the general election. This is the portion of the Louisiana election scheme that appellants contend is in conflict with 2 U.S.C. §§ 1, 7. The Louisiana election code provides that: "A candidate who receives a majority of the votes cast for an office in a primary election...