Bodine v. Elkhart County Election Bd., 85-1427

• Decision Date: 21 April 1986
• Docket Number: No. 85-1427,85-1427
• Parties: Richard Clay BODINE, F. June Mabie, June Miller, Dale Dean Howard, Norma Yeggy, Barbara Harris, Franklin R. Berkey, William V. Wargo, and Howard L. Hostetler, Plaintiffs-Appellants, v. ELKHART COUNTY ELECTION BOARD, Elkhart County Board of Canvassers, Peter A. Sarantos, Clerk of Elkhart County Election Board and Board of Canvassers and Individually, Lloyd G. Stump and Wilmer McLaughlin, Members of the Elkhart County Election Board and Board of Canvassers, and Worth N. Yoder, Member of the Elkhart County Election Board and Board of Canvassers, and Charles H. Grodnik, Member of Elkhart County Election Board and Board of Canvassers, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1270

788 F.2d 1270

Richard Clay BODINE, F. June Mabie, June Miller, Dale Dean

Howard, Norma Yeggy, Barbara Harris, Franklin R.

Berkey, William V. Wargo, and Howard L.

Hostetler, Plaintiffs-Appellants, v. ELKHART COUNTY ELECTION BOARD, Elkhart County Board of

Canvassers, Peter A. Sarantos, Clerk of Elkhart County

Election Board and Board of Canvassers and Individually,

Lloyd G. Stump and Wilmer McLaughlin, Members of the Elkhart

County Election Board and Board of Canvassers, and Worth N.

Yoder, Member of the Elkhart County Election Board and Board

of Canvassers, and Charles H. Grodnik, Member of Elkhart

County Election Board and Board of Canvassers, Defendants-Appellees.

No. 85-1427.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 9, 1985.

Decided April 21, 1986.

David T. Stutsman, Stutsman & Stevens, Elkhart, Ind., for plaintiffs-appellants.

Craig Buche, Yoder, Ainlay, Ulmer & Buckingham, Goshen, Ind., for defendants-appellees.

Before BAUER, CUDAHY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiffs-Appellants, Democratic candidates for state and federal offices in the November 2, 1982 general election in Elkhart County, Indiana, appeal from the district court's denial of their attempted challenge to the defendants' handling of the election. Appellants seek an injunction setting aside the election results and monetary damages based on violations of 42 U.S.C. Sec. 1983 and 42 U.S.C. Sec. 1985 that arose from allegedly unsavory election practices that abridged appellants right to vote under the First and Fourteenth Amendments. Finding that the alleged violations of election law and procedure did not rise to the level of a constitutional violation, we affirm.

I.

The November 2, 1982 general election in Elkhart County involved a computerized voting system in which computer punch card ballots were electronically tabulated. Theoretically this system would be more accurate and subject to less manipulation because it placed less reliance on election officials prone to human error. Unfortunately, according to the appellants, the election officials, despite their "minimal" role in this mechanical system, managed to undermine the accuracy of the vote counting apparatus and thereby impinge on the constitutional right to vote.

The defendant Clerk of the Election Board received the computer program control cards from the supplier without verifying their accuracy or preparing any tests to assure the proper functioning of the system. While no public test was ever performed, some testing, albeit inadequate, was conducted on the afternoon of the election. When actual tabulation was commenced errors started to appear. First, votes were reported in one district that belonged in another and vice versa. The control cards were changed to correct this but no tests were run. Later, a similar problem developed in tabulations for the race for state representative. Again, changes in the cards were made and no tests were run. Appellants describe a string of errors followed by patchwork repairs to the system without ever conducting an overall evaluation. Appellants contend that in the absence of error-free computer testing, no verifiable count of the voting in the election was reported and thus, the election was erroneously certified. The conduct of this election was, according to the appellants, in violation of applicable Indiana law governing the use of electronic vote-counting systems.

Appellants proceeded initially in Indiana State Court under that state's elections laws. Three law suits were brought and all were dismissed for failure to comply with the statute of limitations. At the time the district court ruled, an Indiana Court of Appeals had reversed the lower court with respect to the election certification issue, creating some overlap between the state and federal actions.

The district court in granting summary judgment for the defendants held that: (1) election irregularities had to reach a certain level before there could be an impingement on constitutional rights and that the plaintiffs had alleged only mechanical and human error that lacked fraudulent intent; (2) plaintiffs failed to present a valid section 1983 claim under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); and (3) this would be an appropriate case for the invocation of the doctrine of abstention.

II.

The law governing the invocation of section 1983 for alleged "malfunctions" of the electoral process is well settled. ¹ The Constitution is not an election fraud statute: protection is extended to the right of all qualified citizens to vote in state and federal elections, Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 1377-78, 12 L.Ed.2d 506 (1964) and to the right to have votes counted without dilution as compared to the votes of others. Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 52, 90 S.Ct. 791, 793, 25 L.Ed.2d 45 (1970). "It is not every election irregularity, however, which will give rise to a constitutional claim and an action under section 1983." Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir.1975). In what has become a widely accepted statement of the standard, Judge Tone in Hennings held that section 1983 is implicated only when there is "willful conduct which undermines the organic processes by which candidates are elected." 523 F.2d at 864 (emphasis added). Accord, Hendon v. North Carolina State Board of Elections, 710 F.2d 177, 182 (4th Cir.1983) (election process must reach the point of "patent and fundamental unfairness"); Duncan v. Poythress, 657 F.2d 691, 701 (5th Cir.Unit B., 1981) (citing Hennings); Partido Nuevo Progresista v. Barreto Perez, 639 F.2d 825, 827 (1st Cir.1980); Gamza v. Aguirre, 619 F.2d 449, 452 (5th Cir.1980) (quoting Hennings ); Rudisill v. Flynn, 619 F.2d 692, 695 (7th Cir.1980) (incidental burdens not actionable under section 1983); Griffin v. Burns, 570 F.2d 1065, 1076 (1st Cir.1978) (section 1983 does not cover garden variety election irregularities). See generally Daniels v. Williams, --- U.S. ----, 106 S.Ct. 662, 663, 88 L.Ed.2d 662 (1986) ("[T]he Due Process Clause is simply not implicated by a negligent act of an official....").

Implicit in the restriction of section 1983 to debasement of the electoral process are two considerations, one of great import, the other of practical concern. First, federalism concerns caution against excessive entanglement of federal courts in state election matters.

The very nature of the federal union contemplates separate functions for the states. If every state election irregularity were considered a federal constitutional deprivation, federal courts would adjudicate every state election dispute, and the elaborate state election contest procedures, designed to assure speedy and orderly disposition of the multitudinous questions that may arise in the electoral process, would be superseded by a section 1983 gloss.

Gamza, 619 F.2d at 453. See also Pettengill v. Putnam County R-1 School District, 472 F.2d 121 (8th Cir.1973). Second, as was stressed in Hennings, elections are generally conducted by volunteers, rather than trained...