Bennett v. Mollis
| Decision Date | 12 December 2008 |
| Docket Number | C.A. No. 08-468 S. |
| Citation | 590 F.Supp.2d 273 |
| Parties | Joseph M. BENNETT, Domenic D'Ambra, Jr., Gregory L. Horton, and Margaret Mary McCormick, individually and on behalf of all other persons similarly situated, Plaintiffs, v. Ralph MOLLIS, in his official capacity as Secretary of State for the State of Rhode Island, John A. Daluz, Frank J. Rego, Florence G. Gormley, Richard H. Pierce, and Martin E. Joyce, Jr., in their capacity as Commissioners of the Rhode Island Board of Elections Robert Kando, in his official capacity as Executive Director of the Rhode Island Board of Elections, Pasquale A. Matteo, Ann H. Allen, and Rosemary Thomas, in their capacity as Members of the Smithfield Board of Canvassers, Defendants, and Maxine Cavanagh, individually, Intervenor. |
| Court | U.S. District Court — District of Rhode Island |
Timothy J. Robenhymer, Esq., Warwick, RI, for Plaintiffs.
Joseph Avanzato, Esq., Adler Pollock & Sheehan, P.C., Raymond A. Marcaccio, Esq., Oliverio & Marcaccio, Armando E. Batastini, Nixon Peabody LLP, Providence, RI, David V. Igliozzi, Igliozzi & Reis, LLP, Cranston, RI, for Defendants.
Pending before the Court is Plaintiffs' Motion for Preliminary Injunction. Also, before the Court is a Motion to Dismiss filed by the Rhode Island Board of Elections.1 Plaintiffs seek to enjoin the Board of Elections and the Board of Canvassers for the Town of Smithfield, Rhode Island from issuing certificates of election to the prevailing candidates in the November 4, 2008 election for Smithfield Town Council. Plaintiffs, who also seek class certification, are voters from the Town of Smithfield who claim that their civil rights were infringed in violation of 42 U.S.C. § 1983 as a result of having voted using ballots that included the name of a candidate who had withdrawn from the race.
Plaintiffs' amended complaint, filed approximately three weeks after the election,2 contains a total of five counts; however, only two causes of action are actually asserted.3 Count II claims a violation of Plaintiffs' right to substantive due process alleging it was fundamentally unfair for Plaintiffs to have received and voted using an incorrect ballot, part of which was not counted. Count III asserts a violation of the right to equal protection premised on the theory that the Plaintiffs were victims of discrimination because they were among those voters who received the incorrect ballots.
Plaintiffs originally filed this action the day before Thanksgiving. The Court granted Plaintiffs' request for a temporary restraining order preventing the Smithfield Board of Canvassers from certifying the election results to preserve the status quo and scheduled a preliminary injunction hearing for December 3, 2008. Subsequently, the Rhode Island Supreme Court issued a stay in a companion case involving a challenge filed by one of the losing candidates.4
After conducting a preliminary injunction hearing, this Court finds that Plaintiffs have failed to demonstrate a substantial likelihood of success on the merits of their case. Accordingly, Plaintiffs' request for a preliminary injunction must be denied.
The Court finds the following facts from the stipulations of the parties and the evidentiary hearing conducted on December 3. On election day November 4, 2008, about 9,500 voters in the Town of Smithfield, Rhode Island participated in what was undoubtably our nation's most historic election. In addition to casting their vote for President of the United States, qualified voters were also electing new members to the Smithfield Town Council. The Town Council for the Town of Smithfield is comprised of five members, all of whom were up for re-election. The field of thirteen candidates consisted of four Democrats, five Republicans, and four Independents. Voters were allowed to vote for a maximum of five candidates and the top five vote-getters would then make up the new governing body. Unfortunately, the conduct of the election was far from flawless.
During the morning hours of the election, from about 7 a.m. to 10 a.m., at polling locations throughout the Town approximately 2,900 voters were given ballots that contained the name of Richard A. Dilorio, Jr. ("Mr. Dilorio"), a candidate who had withdrawn from consideration well before the election. Voters who cast a vote for Mr. Dilorio on the incorrect ballot did not have that one vote counted. All other votes contained on the incorrect ballot were considered in determining the outcome of the election.
After the votes were counted (and recounted), only a 39 vote differential separated the fifth place candidate, Ms. Maxine Cavanagh ("Ms. Cavanagh") a Republican, and the sixth place candidate, Mr. Bernard Hawkins ("Mr. Hawkins") a Democrat. The election of Ms. Cavanagh would result in a change of majority control of the Town Council from Democrat to Republican.
At the evidentiary hearing, the Director of the Elections Division for the Rhode Island Secretary of State, Ms. Janet L. Ruggiero ("Ms. Ruggiero"), testified that the mistake occurred because an employee at the company hired to print the ballots had inadvertently used the wrong digital file to print the official ballots. Ms. Ruggiero explained that the Secretary of State had initially approved an electronic ballot template containing Mr. Dilorio's name on September 22, 2008. The Secretary of State then forwarded the September 22 template to the printing company responsible for printing the ballots. Eight days later, however, the Elections Division received a certificate of withdrawal from Mr. Dilorio directing that his name be taken off the ballot. The very next day, October 1, 2008, the Elections Division contacted the printer to remove Mr. DiIorio's name from the ballot. As requested, the printer made the change, which was reflected in the fact that both the mail ballots and the sample ballots (which were printed from the correct files) did not contain Mr. Dilorio's name; however, when it came time to print the official ballots in mid-to-late October, the employee in charge of printing those ballots failed to use the updated version saved on the company's computer network system. Instead, he relied on the outdated ballot that he had previously saved to his workstation hard drive and had not updated. Ballots were then printed using the wrong file and sent to the various polling locations. Election officials did not notice the mistake until the morning of election day.
To the credit of the Secretary of State, after being notified of the mistake around 8 a.m., his office immediately procured corrected ballots from the printer and distributed them to Smithfield polling locations by 10 a.m. The damage, however, had already been done. During the three hour period before corrected ballots could be issued, approximately 2,900 people voted using the wrong ballot, 570 of whom cast a vote for Mr. Dilorio.
At the conclusion of the hearing, Plaintiffs and the Intervenor, Ms. Cavanagh,5 submitted a Joint Statement of Facts.6 For purposes of this decision, the Court will assume, as Plaintiffs contend, that 570 people actually voted for Mr. DiIorio using the incorrect ballot. And, of those 570 ballots, the Court finds (again relying on Plaintiffs' assertion) that 458 contain a vote for Mr. Hawkins. Thus, from this evidence, the Court deduces that Mr. Hawkins could have garnered additional support from only 112 of the 570 ballots.7
The Joint Statement of Facts also indicates there were 11 under-votes and 11 over-votes (9 of which contained a Hawkins vote).8 Thus, these 11 under-votes must be subtracted from the 112 potentially outcome altering ballots because those voters exercised their right not to vote for a full slate of candidates and were not forced to choose between Mr. DiIorio and other candidates. It is well known that voters sometimes choose to "maximize" their vote by voting for fewer than the allowable number of candidates and not for the maximum allowed. No evidence was presented to suggest that voters who under-voted were doing anything other than maximizing their vote; to count these votes as potential Hawkins votes would be contrary to common sense and the evidence.9 Additionally, the 2 over-votes that did not contain a Hawkins vote must also be subtracted because it seems clear those voters made the conscience choice not to vote for Mr. Hawkins. Thus, the Court concludes that the number of votes that potentially could have affected the outcome of the election between the fifth and sixth place finishers is 99. It is on these facts that the ensuing analysis is based.
The standard for obtaining preliminarily relief is familiar. In order to obtain a preliminary injunction, a Plaintiff must demonstrate: (1) a significant risk of irreparable harm absent the injunction; (2) a substantial likelihood of success on the merits of their claim; (3) the scales balancing the hardship tip in their favor; and (4) the injunction will not harm the public interest. Wine & Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st Cir. 2005); see also New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir.2002) (); Mass. Coalition of Citizens with Disabilities v. Civil Def. Agency & Office of Emergency Preparedness of Commonwealth of Mass., 649 F.2d 71, 76 n. 7 (1st Cir.1981) (). Moreover, in matters involving state and local election disputes, federal courts must tread lightly and strive to avoid becoming involved in matters that are more appropriately the ken of local election officials and state courts.
The right to vote is a bedrock principle of our democracy. See Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); ...
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