Burdick v. Takushi, s. 90-15873

• Decision Date: 01 March 1991
• Docket Number: Nos. 90-15873,90-15876 and 90-15877,s. 90-15873
• Parties: Alan B. BURDICK, Plaintiff-Appellee, v. Morris TAKUSHI, Director of Elections, State of Hawaii; John Waihee, Lieutenant Governor of Hawaii; Benjamin Cayetano, in his Capacity as Lieutenant Governor of the State of Hawaii, Defendants-Appellants. Alan B. BURDICK, Plaintiff-Appellee, v. Benjamin CAYETANO, in his Capacity as Lieutenant Governor of the State of Hawaii; Morris Takushi, Director of Elections of the State of Hawaii, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 469

927 F.2d 469

59 USLW 2550

Alan B. BURDICK, Plaintiff-Appellee, v. Morris TAKUSHI, Director of Elections, State of Hawaii;

John Waihee, Lieutenant Governor of Hawaii; Benjamin

Cayetano, in his Capacity as Lieutenant Governor of the

State of Hawaii, Defendants-Appellants.

Alan B. BURDICK, Plaintiff-Appellee, v. Benjamin CAYETANO, in his Capacity as Lieutenant Governor of

the State of Hawaii; Morris Takushi, Director of

Elections of the State of Hawaii,

Defendants-Appellants.

Nos. 90-15873, 90-15876 and 90-15877.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1990.

Decided March 1, 1991.

Steven S. Michaels, Deputy Atty. Gen., Honolulu, Hawaii, for defendants-appellants.

Mary Blaine Johnston, Wailuku, Hawaii, for plaintiff-appellee.

James M. Johnson, Sr. Asst. Atty. Gen., Olympia, Wash., for amicus curiae.

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

Before SKOPIL, BEEZER and FERNANDEZ, Circuit Judges.

BEEZER, Circuit Judge:

The district court ruled that Hawaii's lack of provision for the casting and counting of write-in votes in statewide general elections impermissibly infringed a Hawaii voter's rights of expression and association as protected by the first and fourteenth amendments. The district court issued a preliminary injunction ordering Hawaii to provide for the casting and counting of write-in votes and then stayed the injunction pending appeal. We reverse.

I

The facts in this case are undisputed. In June 1986, Alan Burdick notified the Director of Elections and the Lieutenant Governor (hereinafter collectively referred to as the "State"), that he wanted to cast write-in votes in the upcoming primary elections and in future elections. The State advised Burdick that its election laws did not provide for write-in voting and that any write-in votes would be ignored.

Burdick filed suit in federal court, claiming that the lack of provision for write-in voting violated both the Hawaii Constitution and the United States Constitution. The district court held that the failure to provide for write-in voting constituted a violation of Burdick's rights of freedom of expression and association. The court issued a preliminary injunction directing the State to provide for the casting and counting of write-in votes in the November 1986 statewide elections. The State moved for a stay of the preliminary injunction pending appeal, and the motion was denied.

The State appealed the district court's order and denial of stay, and we granted a stay pending appeal. On May 17, 1988, we reversed and directed the district court to abstain from reaching the federal constitutional issue under the Pullman abstention doctrine. See Burdick v. Takushi, 846 F.2d 587 (9th Cir.1988) ("[A] definitive resolution of the unsettled question whether Hawaii's election laws actually prohibit write-in voting might obviate the need for a federal court to decide the federal constitutional question....").

On remand, the district court certified the following three questions to the Hawaii Supreme Court:

(1) Does the Constitution of the State of Hawaii require Hawaii's election officials to permit the casting of write-in votes and require Hawaii's election officials to count and publish write-in votes?

(2) Do Hawaii's election laws require Hawaii's election officials to permit the casting of write-in votes and require Hawaii's election officials to count and publish write-in votes?

(3) Do Hawaii's election laws permit, but not require, Hawaii's election officials to allow voters to cast write-in votes, and to count and publish write-in votes?

On July 21, 1989, the Hawaii Supreme Court answered no to each question. Burdick v. Takushi, 70 Haw. 498, 776 P.2d 824, 825 (1989). With a definitive ruling from the Hawaii Supreme Court that Hawaii's election laws prohibited write-in voting, Burdick renewed his motion for summary judgment in the district court. On May 10, 1990, the district court again ruled that Hawaii's prohibition on write-in voting impermissibly infringed Burdick's federally guaranteed rights of expression and association. The district court again issued a preliminary injunction directing the State to provide for the casting and counting of write-in votes. See Burdick v. Takushi, 737 F.Supp. 582 (D.Haw.1990).

Because a statewide general election was less than four months away, and because this court had granted a stay of the prior preliminary injunction, the district court granted the State's motion to stay the current preliminary injunction pending appeal. Id. at 592-593. The State timely appealed the district court's final order.

II

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. A grant of summary judgment is reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990).

The State asserts that Burdick does not have standing to challenge Hawaii's general election laws. To support its assertion, the State points to the fact that Burdick cannot vote in some of the races affected by the preliminary injunction and the fact that he has failed to identify a particular candidate for whom he wants to cast his write-in vote. To have standing a party must show that:

"he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision."

Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted).

Burdick has demonstrated that his rights as a voter to freedom of expression and association are threatened by Hawaii's prohibition on write-in voting. Although an order striking down the prohibition on write-in voting may apply to races in which Burdick cannot vote, the State does not contend that there is any difference in the way that the prohibition applies to the various elections throughout the state. The prohibition is a general statewide restriction that affects Burdick personally, and therefore he has standing to challenge it. See Erum v. Cayetano, 881 F.2d 689, 691 (9th Cir.1989) (Hawaii voter has standing to challenge the whole of the State election laws creating ballot access restrictions).

III

The Supreme Court has acknowledged that "the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections," and that "[e]ach State has the power to prescribe the qualifications of its officers and the manner in which they shall be chosen." Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973) (citations and internal quotation omitted). Furthermore, the Constitution specifically authorizes states to regulate: "The Times, Places and Manner of holding Elections for Senators and Representatives." U.S. Const. art. I, Sec. 4, cl. 1. The Supreme Court has also recognized that "as a practical matter, there must be a substantial regulation of elections if they are going to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974).

A state's broad powers to prescribe the time, place and manner of elections, however, "does not extinguish the State's responsibility to observe the limits established by the First Amendment rights of the State's citizens." Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986). The rights to cast one's vote effectively and to associate for the advancement of political beliefs are guaranteed by the first and fourteenth amendments, and the state may not burden these rights excessively. See Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968).

The questions presented by a challenge to a specific provision in a state's election laws cannot be resolved by applying a "litmus paper test." Storer, 415 U.S. at 730, 94 S.Ct. at 1279. There is no self-executing rule that is a substitute for the "hard judgments that must be made." Id. In Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983), the Supreme Court set forth an analytical process for making these hard judgments. A court must:

first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.

Id.

We begin the Anderson analysis by determining the "character and magnitude" of the injury to Burdick's rights of expression and association. Burdick asserts that the prohibition on write-in voting impinges his right to vote for the candidate of his choice. He asserts that the right to vote for the candidate of one's choice is a fundamental right.

Article I, Sec. 2 of the United States Constitution grants persons qualified to vote "a constitutional right to vote and to have their votes counted." Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964). The Supreme Court has stated that:

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights,...