Boxx v. Bennett, Civil Action No. 98-A-1280-N.

Decision Date18 May 1999
Docket NumberCivil Action No. 98-A-1280-N.
Citation50 F.Supp.2d 1219
PartiesSusan BOXX, Mary Louise White, and Allan Springer, for themselves and all others similarly situated, Plaintiffs, v. James BENNETT, in his official capacity as Secretary of State of Alabama,<SMALL><SUP>1</SUP></SMALL> Defendant.
CourtU.S. District Court — Middle District of Alabama

James U. Blacksher, Birmingham, J. Gerald Hebert, Alexandria, VA, Larry T. Menefee, Montgomery, for plaintiffs.

John J. Park, Jr., Office of the Attorney General Alabama State House, Montgomery, for James Bennett, Alabama Electronic Voting Committee, George R. Reynolds, Polly Conradi, Donald Keith, defendants.

Elizabeth Johnson, Donna M. Murphy, Bret R. Williams, U.S. Department of Justice, Civil Rights Division, Washington, DC, Bill Lann Lee, U.S. Department of Justice, Civil Rights Division, Housing & Civil Enforcement Section, Washington, DC, for United States, amicus.

Before EDWARD C. CARNES, Circuit Judge, W. HAROLD ALBRITTON, Chief District Judge, and MYRON H. THOMPSON, District Judge.

MEMORANDUM OPINION

ALBRITTON, Chief District Judge.

I. INTRODUCTION

This three-judge court has been convened to hear a case implicating the preclearance mandate of section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. §§ 1973c. The Plaintiffs in this action are registered voters in Jefferson County. They contend that § 307-X-1-.21 of the amended Procedures for Electronic Vote Counting Systems, which allows for a recounting of votes under certain circumstances, cannot be implemented because Alabama failed to obtain proper preclearance under § 5 of the Voting Rights Act, 42 U.S.C. § 1973c.2

On December 1, 1998, United States District Judge W. Harold Albritton, acting pursuant to the authority granted by 28 U.S.C. § 2284(b)(3), issued a Temporary Restraining Order which enjoined the Defendant and other state and local officials from enforcing or implementing § 307-X-1-.21 of the amended Procedures for Electronic Vote Counting Systems until the Plaintiffs' Application for Preliminary Injunction had been heard. On December 10, 1998, the three-judge court convened to conduct a hearing on the Plaintiffs' motion for preliminary injunction. The court issued a preliminary injunction on December 14, 1998, enjoining the Defendant and other officials from implementing the recount provision, pending a hearing and final determination on the merits.

On May 4, 1999, the three-judge court convened to conduct a hearing for final determination on the merits. For the reasons set forth below, we conclude that the State of Alabama should have obtained preclearance for the recount provision at issue, but failed to do so. Therefore, the recount provision cannot be implemented until precleared by the Attorney General or the United States District Court for the District of Columbia, as provided in 42 U.S.C. § 1973c.

II. FACTUAL BACKGROUND

In 1983, the Alabama Legislature passed Act 83-200, authorizing the use of electronic voting equipment. See Ala.Code §§ 17-24-1 et seq. The Legislature created the Alabama Electronic Voting Committee and assigned to it the "duty ... to prescribe other procedures where necessary to achieve and maintain the maximum degree of correctness and impartiality of voting, counting, tabulating, and recording votes, by electronic vote counting systems provided by this chapter." Id. §§ 17-24-4, 7(b). The legislation made no express provision for a recount.

By letter dated March 8, 1983, Alabama submitted Act 83-200 to the Department of Justice for preclearance. The cover letter submitted with the legislation stated, "Voting will be changed by the use of a greater variety of voting tabulating equipment." March 8, 1983 letter from Lynda F. Knight to Assistant Attorney General, Joint Evidentiary Record Exhibit A. By letter dated May 13, 1983, the Department of Justice precleared "the change in question." May 13, 1983 letter from Wm. Bradford Reynolds to Lynda F. Knight, Joint Evidentiary Record Exhibit A.

Subsequently, the Alabama Electronic Voting Committee developed Proposed Procedures for Electronic Vote Counting. Section 3.19 of those Proposed Procedures, entitled "Recount," authorized canvassing authorities to conduct a recount whenever a qualified elector files a petition within forty-eight hours after the election results have been certified. The section also provided that the recount would constitute grounds for an election contest if it produces a change large enough to alter the result of the election.

Before the Electronic Voting Committee promulgated section 3.19, no other rule or statute authorized a recount prior to the filing of an election contest. The grounds for an election contest were limited by statute to the following:

(1) Malconduct, fraud or corruption on the part of any inspector, clerk, marker, returning officer, board of supervisors or other person.

(2) When the person whose election to office is contested was not eligible thereto at the time of such election.

(3) On account of illegal votes.

(4) On account of the rejection of legal votes.

(5) Offers to bribe, bribery, intimidation or other malconduct calculated to prevent a fair, free and full exercise of the elective franchise.

Ala.Code § 17-15-1.

By letter dated June 29, 1984, Alabama submitted the procedures for use in electronic voting to the United States Attorney General for preclearance. The cover letter submitted with the procedures states in pertinent part:

As required by Section 5 of the Voting Rights Act of 1965, I am enclosing for the approval of the Justice Department a copy of the Procedures for Use of Electronic Voting Equipment in Alabama elections as required by Act No. 83-200 of the 1983 Regular Session of the Alabama Legislature. The procedures were drafted by the Alabama Electronic Voting Committee in keeping with Act No. 83-200, a copy of which is attached. This Act was approved for preclearance by your agency on May 13, 1983. (File No. G 9787)

In compliance with Section 51:25 of the Procedures for Submission under Section 5 of the Voting Rights Act, the following information is submitted:

a. Copies of the Procedures are enclosed.

b. Voting will be changed in that in those counties which choose to do so, electronic voting equipment will be installed and used in elections. Such equipment will record and tabulate ballots electronically.

k. Change will affect the method and procedures of casting, recording, and tabulating ballots.

June 29, 1984 Letter from Lynda K. Oswald to Assistant Attorney General, Joint Evidentiary Record Exhibit B.

There is no mention of the recount provision in the submission letter, nor are there any references to the provision in any of the supporting documents, other than in the text of the procedures themselves. The text of the recount provision appears on pages 20 to 22 of a 24-page document. On September 4, 1984, the Department of Justice issued a letter which precleared the "change in question." Sept. 4, 1984 Letter from Wm. Bradford Reynolds to Lynda K. Oswald, Joint Evidentiary Record Exhibit B.

In 1998, the Electronic Voting Committee amended and repromulgated the Procedures for Electronic Vote Counting Systems to comply with the Alabama Administrative Procedure Act. Section 3.19 was reformatted and renumbered to section 307-X-1-.21, but the Committee made no substantive change to the recount provision. Alabama submitted the procedures to the Attorney General for preclearance for a second time. The cover letter submitted with the amended procedures refers the Attorney General to exhibit D of the State's submission for "an explanation and designation of the changes in the procedures." March 9, 1998 Letter from Lynda K. Oswald to Civil Rights Division, Joint Evidentiary Record Exhibit C. Exhibit D is a two-page memorandum which lists fifteen changes to the procedures. It makes no reference to the recount provision in section 307-X-1-.21. See Joint Evidentiary Record, Exhibit C. The recount provision appears in each version of the complete text of the procedures which the state submitted to the Attorney General. The recount provision also appears in one of twenty-one Certifications of Administrative Rules, submitted to the Attorney General, which were issued by the Secretary of State as part of the rule-making process when the procedures were repromulgated.

By letter on May 11, 1998, the Attorney General precleared the "specified changes." May 11, 1998 Letter from Elizabeth Johnson to Lynda K. Oswald, Joint Evidentiary Record Exhibit C. The Plaintiffs assert that the state never obtained preclearance of the recount provision because it failed to submit an unambiguous description of the change in Alabama election law accomplished by the recount provision. They seek a permanent injunction preventing the state from implementing the recount provision prior to obtaining proper preclearance under section 5 of the Voting Rights Act.

III. DISCUSSION

Under section 5 of the Voting Rights Act of 1965, the State of Alabama must submit for the approval of the federal government "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force and effect on November 1, 1964." 42 U.S.C. § 1973c. The State may preclear a voting change in one of two ways: it may obtain a declaratory judgment in the United States District Court for the District of Columbia, or it may submit the change to the Attorney General of the United States for approval. See id. If the Attorney General approves the change, or fails to register an objection to the change within 60 days, the change is precleared.3 See id. "No new voting practice is enforceable unless the covered jurisdiction has succeeded in obtaining preclearance." Lopez v. Monterey County, 519 U.S. 9, 20, 117 S.Ct. 340, 347, 136 L.Ed.2d 273 (1996).

Both the Attorney General and private litigants may ensure a State's compliance with the...

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2 cases
  • Connors v. Bennett
    • United States
    • U.S. District Court — Middle District of Alabama
    • 17 d5 Maio d5 2002
    ...government. 42 U.S.C. § 1973c. See Young v. Fordice, 520 U.S. 273, 276, 117 S.Ct. 1228, 137 L.Ed.2d 448 (1997); Boxx v. Bennett, 50 F.Supp.2d 1219, 1223 (M.D.Ala.1999) (quoting Lopez v. Monterey County, 519 U.S. 9, 20, 117 S.Ct. 340, 136 L.Ed.2d 273 (1996)).7 A three-judge court reviewing a......
  • Kennedy v. Riley
    • United States
    • U.S. District Court — Middle District of Alabama
    • 18 d5 Agosto d5 2006
    ...approves the change, or fails to register an objection to the change within 60 days, the change is precleared." Boxx v. Bennett, 50 F.Supp.2d 1219, 1223 (M.D.Ala.1999) (three-judge In reviewing the plaintiffs' § 5 claim, we are tasked with the limited purpose of determining "(i) whether a c......

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