Barilla v. Ervin

Decision Date01 August 1989
Docket NumberNo. 87-4298,87-4298
Citation886 F.2d 1514
PartiesFrank "Rocky" BARILLA; Lise Bryant Glancy; Cynthia Suzanne Knight; and Ragene Ann Fore, Plaintiffs-Appellants, v. Vicki ERVIN, Director of Elections for Multnomah County; Alan Davidson, Marion County Clerk; David Spriggs, Lane County Clerk; and Barbara Roberts, Secretary of State for the State of Oregon, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas A. Balmer, Portland, Or., for plaintiffs-appellants Frank "Rocky" Barilla, Lise Bryant Glancy, Cynthia Suzanne Knight, and Ragene Ann Fore.

Robert M. Atkinson, Asst. Atty. Gen., Salem, Or., for defendant-appellee Barbara Roberts.

Jane Ellen Stonecipher, Asst. Marion County Counsel, Salem, Or., for defendants-appellees Vicki Ervin, Alan Davidson, and David Spriggs.

Appeal from the United States District Court for the District of Oregon.

Before SCHROEDER, POOLE and NELSON, Circuit Judges.

NELSON, Circuit Judge:

Four Oregon voters brought this action challenging Oregon's 20-day registration cutoff on the grounds that it unconstitutionally burdens the right to vote and the right to travel. The district court granted summary judgment to the defendants. The plaintiffs have appealed to this court, and the defendants, citing intervening events, have sought to dismiss the appeal as moot. We affirm the district court's judgment as to plaintiffs Barilla, Fore, and Knight, and defendants Ervin, Davidson, and Roberts. As to plaintiff Glancy and defendant Spriggs, we vacate the district court's judgment and remand with instructions to dismiss the complaint as moot.


From 1975 until 1985, Oregon law permitted voters to register in person at any time up to and including election day. In 1985, the legislature passed a statute requiring voters to register no later than the day before election day; in addition, voters could register by mail no later than 12 days before election day. 1985 Or. Laws ch. 833, Sec. 1. The legislature also required proof of residency for any voter registering less than 12 days before an election. Id. Defendant Secretary of State Roberts testified that these changes resulted both from the desire to avoid the administrative inconveniences associated with registering voters on election day and from the public concern with the integrity of the registration system that arose in connection with the registration of large numbers of the followers of Bhagwan Shree Rajneesh. The legislature considered, but did not pass, a proposed 20-day cutoff for voter registration.

In 1986, the proposed 20-day cutoff was placed on the ballot as an initiative amending the state constitution. The proposed initiative was supported by a number of county clerks, but was opposed by defendant Roberts. The initiative passed by a considerable majority. The effect of the proposition was to amend Art. II, Sec. 2 of the Oregon Constitution to read: "Every citizen of the United States is entitled to vote in all elections not otherwise provided for by this constitution if such citizen ... [i]s registered not less than 20 calendar days immediately preceding any election in the manner provided by law."

On March 14, 1987, plaintiff Lise Bryant Glancy moved from one address in Lane County to a new address in the same county. On March 20, 1987, she appeared personally at the Lane County elections office in order to reregister. However, she did not vote in the March 31, 1987 election because it was her understanding that she was not eligible to do so because of the 20-day cutoff.

During the last week of February 1987, plaintiff Frank "Rocky" Barilla, at the time a member of the Oregon state legislature, moved from one address within Marion County to a new address in the same county. On March 16, 1987, he appeared personally at the Marion County Clerk's Office of Elections in order to reregister. At that time, he requested an absentee ballot for the March 31 election. Defendant Davidson denied Barilla's request to vote at either the old address or the new address, citing the 20-day registration cutoff.

In approximately November of 1986, plaintiff Ragene Ann Fore moved from one address in Marion County to another address within the same county. Fore knew that she would have to reregister, and eventually she obtained a reregistration form and mailed it in. However, the form was received on March 11, 1987, one day after the registration cutoff. Fore stated that she was unaware of the 20-day registration deadline. She did not vote in the March 31 election because it was her understanding that she was ineligible to do so.

Plaintiff Cynthia Suzanne Knight had never previously been registered to vote before sending in a registration form in March 1987. The form was received by the Multnomah County elections office on March 12, 1987, two days after the registration cutoff. She did not vote in the March 31, 1987 election because it was her understanding that she was ineligible to do so.

On March 20, 1987, plaintiffs filed this lawsuit, alleging that the 20-day registration cutoff violates the equal protection and due process clauses of the Fourteenth Amendment, and that the defendants' refusal to permit the plaintiffs to vote violates 42 U.S.C. Sec. 1983. They sought declaratory and injunctive relief, but did not assert a claim for damages. The action was brought individually, and not as a class action.

On March 26, 1987, a hearing was held concerning plaintiffs' motion for a preliminary injunction. At the hearing, defendant Roberts testified that, although she thought that there was no problem of fraud under the old same-day registration system, there were administrative and economic benefits to the new system. She also testified that the problems associated with the followers of Bhagwan Shree Rajneesh led to the public perception that the pre-1986 system created opportunities for fraud. Although she had opposed the 1986 initiative, she agreed that the restoration of public confidence was necessary and worthwhile.

Defendant Vicki Ervin, Director of Elections for Multnomah County, testified concerning the use of "memorandum cards" as a means of confirming accurate voter registration. Under the current system, cards are mailed out to all voters registered by the cutoff date. If the post office finds that the person listed on the card is not at the specified address, it will return the card as undeliverable. Ms. Ervin testified that it takes about 10 days for a card to be returned as undeliverable. Since the "poll books" listing registered voters are distributed to the precincts six to seven days before an election, this gives the elections office three days to check mail verifications.

Memorandum cards were also used as a registration check before the 1986 amendment was passed. The defendants presented evidence that, without the 20-day cutoff, a number of memorandum cards were returned as undeliverable only after the election had already taken place. Approximately 200 cards were returned in Multnomah County after the 1986 general election. In Marion County, 65 cards were returned as undeliverable after the 1986 election. Six separate contests in that election in Marion County were decided by fewer than 21 votes. Approximately 200 cards were returned in Lane County after the 1986 election. The defendants thus asserted that the 20-day cutoff was necessary to allow adequate time to conduct mail verifications.

Both defendant Ervin and defendant Davidson acknowledged that a returned memorandum card did not necessarily indicate fraud or that an ineligible voter had voted. Seizing upon this point, the plaintiffs argued that the defendants had presented no evidence that there was fraud under the old system. The defendants also pointed to the testimony of Daniel Burk, Director of Elections for Benton County, (a nonparty in this case) that there were no problems with fraud or administration under the old same-day system. Mr. Burk also testified that he thought the 20-day cutoff would reduce voter registration.

On March 27, 1987, the plaintiffs' motion for a preliminary injunction was denied. On April 30, all defendants moved for summary judgment. The plaintiffs cross-moved for summary judgment on June 15. On August 6, 1987, Magistrate George Juba recommended that the plaintiffs' motion for summary judgment be denied and that the defendants' motions for summary judgment be granted. No objections to the magistrate's report were timely filed. The district court held that this failure relieved it of its obligation to give the record de novo review. Finding no error, the district court adopted the findings and recommendations of the magistrate on September 25, 1987. Judgment dismissing the complaint was formally entered on September 29, 1987. A timely notice of appeal was filed on October 26, 1987.


The district court incorrectly concluded that the failure to file timely objections to the magistrate's report relieved it of its obligation to give the record de novo review. In the Ninth Circuit, such a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). Britt also held that failure to file objections does not bar the parties from appealing the district court's conclusions of law. Id. at 454-55. Because a motion for summary judgment raises a purely legal issue, see United States v. One 1980 Mercedes Benz 500 SE, 772 F.2d 602, 604 (9th Cir.1985), de novo appellate review of the district court's order in this case has not been waived by the failure to file objections to the magistrate's report.

A. Mootness.

The issue of mootness has been raised by the appellees both in their briefs and in a separate ...

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