Otero v. State Election Bd. of Oklahoma

• Citation: 975 F.2d 738
• Decision Date: 18 September 1992
• Docket Number: No. 92-5064,92-5064
• Parties: Frank OTERO, Plaintiff-Appellant, v. STATE ELECTION BOARD OF OKLAHOMA; Lance Ward, Secretary; Joy Maifeh, Assistant Secretary; Betty McElderry, Chairman; Mona Lambird, Vice Chairman; George Krumme, Member; County Election Board of Ottawa County, Oklahoma; Dave E. Charloe, Secretary; John L. Finley, Jr., Chairman; Floyd A. Hartman, Vice Chairman; Precinct Nine Election Board; Lois Vitch, Inspector; Claire Oliver, Judge; Kathryn Neal, Clerk; City of Miami, Oklahoma; Miami Police Department; Jay Coble, Policeman; J. A. Fitzgibbon, Policewoman; All Saints Episcopal Church; Noel J. Doherty, Pastor; District Attorney's Office of the Thirteenth District of Oklahoma; Ben Loring, District Attorney; Dewayne Corbit, Investigator; Oklahoma Justice Department; Thomas Spencer, Assistant Attorney General, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 738

975 F.2d 738

Frank OTERO, Plaintiff-Appellant, v. STATE ELECTION BOARD OF OKLAHOMA; Lance Ward, Secretary Joy Maifeh, Assistant Secretary; Betty McElderry, Chairman Mona Lambird, Vice Chairman; George Krumme, Member County Election Board of Ottawa County, Oklahoma; Dave E Charloe, Secretary; John L. Finley, Jr., Chairman; Floyd A. Hartman, Vice Chairman; Precinct Nine Election Board; Lois Vitch, Inspector; Claire Oliver, Judge; Kathryn Neal, Clerk; City of Miami, Oklahoma; Miami Police Department; Jay Coble, Policeman; J. A. Fitzgibbon, Policewoman; All Saints Episcopal Church; Noel J. Doherty, Pastor; District Attorney's Office of the Thirteenth District of Oklahoma; Ben Loring, District Attorney; Dewayne Corbit, Investigator; Oklahoma Justice Department; Thomas Spencer, Assistant Attorney General, Defendants-Appellees.

No. 92-5064.

United States Court of Appeals, Tenth Circuit.

Sept. 18, 1992.

Frank Otero, pro se.

Susan B. Loving, Atty. Gen., Robert M. Anthony, Asst. Atty. Gen. of Oklahoma, Oklahoma City, Okl., George Russell, T. Logan Brown, Miami, Okl., and Ben Loring, Dist. Atty., Ottawa County, Okl., for defendants-appellees.

Before LOGAN, BARRETT and EBEL, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Frank Otero, an atheist and a candidate for mayor of Miami, Oklahoma, in the 1991 elections, commenced this suit challenging the use of churches for polling places in Oklahoma in state and municipal elections. Citing provisions of the Voting Rights Act, 42 U.S.C. § § 1971-73, and the Civil Rights Act of 1871, 42 U.S.C. § § 1983, 1985(3), plaintiff asserts that this usage violates his First, Fourteenth and Fifteenth Amendment rights. After denying a motion to enjoin the use of churches as polling places in a special Miami city election held on February 11, 1992, and after briefing on the merits, the district court dismissed the action for failure to state a cause of action. Plaintiff appeals. He also has filed a motion in this court to enjoin all voting in Oklahoma churches, and another motion to enjoin the use of state employees or money to defend this appeal. We deny the motions and affirm the district court's judgment for the reasons stated hereafter. ¹

Plaintiff's pro se forty-five page complaint makes a profusion of contentions that are difficult to follow. The district court treated the case as a standard Establishment Clause-Free Exercise Clause challenge and found no constitutional violations. In some of his briefing plaintiff asserts that the court mischaracterized his cause of action. He asserts that Okla.Stat.Ann. tit. 26, § 3-120, which mentions churches as possible polling places, violates both his political rights and his religious rights, in part because plaintiff's own beliefs will not permit him to enter a church to vote. He also argues, as best we can ascertain, that in this Bible-belt area, a great majority of the population are very religious and carry their religious notions into their politics; that in their various capacities they involve the state and local governments in crossing the line between church and state mandated by the Constitution; and that they promote a religious litmus test in political activities and elections. Plaintiff's argument seems to be that in this atmosphere establishing polling places in churches disadvantages a candidate like plaintiff, who is an atheist, by increasing the influence of the religious affiliation of the candidates beyond that which would be the case if voting were held at a nonchurch polling place. In arguing his cause and that his beliefs do not permit him to enter the church, he likens his position to Christian voters asked to vote in a house of demonic worship containing pervasive symbols of Satan.

First, we find frivolous plaintiff's argument that his atheistic beliefs do not permit him to enter a church and that, therefore, he is denied his right to vote when his precinct polling place is an Episcopal church. The law recognizes diverse religions and protects their sanctity from state interference. But the burden is upon the plaintiff to establish that his belief or practice is truly rooted in a religious belief. Wisconsin v. Yoder, 406 U.S. 205, 215-16, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972). Atheists purportedly do not believe in any god; such a nonbeliever necessarily, it would seem, would have no fear of psychic or other punishment for entering a church to vote in a secular election. Even treating atheists as having the same status as members of a religion for purposes of protection from state action, plaintiff makes no showing that a tenet of atheism is a refusal to enter a church building. See Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989) (merely alleging generic objection, without showing that a tenet of his faith required refusal to take AIDS test, is insufficient to invoke First Amendment protections), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990).

Plaintiff's position as a registered voter and a once and possible future candidate for mayor, stands on a different basis. We have held, without discussion, that citizens have standing to make constitutional challenges to state action in First Amendment cases. Friedman v. Board of County Commissioners of Bernalillo County, 781 F.2d 777, 787 (10th Cir.1985) (en banc), cert. denied, 476 U.S. 1169, 106 S.Ct. 2890, 90 L.Ed.2d 978 (1986); see also Lee v. Weisman, --- U.S. ----, 112 S.Ct. 2649, 2654, 120 L.Ed.2d 467 (1992) (finding standing when challenged invocation was scheduled to be delivered at upcoming graduation of respondent's daughter).

Despite plaintiff's attempt to allege a conspiracy to deny political rights, as opposed to religious rights, plaintiff's claim must rest on whether the state and local governments use of churches as polling places amounts to an excessive governmental entanglement with religion. The statutes plaintiff cites do not support a cause of action independent of the Constitution for any of the actions of which plaintiff complains.

The Fifteenth Amendment to the Constitution is inapplicable; it only guarantees the right of citizens to vote and states that the right shall not be denied by either the United States or any state on account of "race, color, or previous condition of servitude." There is no...