Graves v. McElderry, CIV-94-1420-R.

• Decision Date: 03 July 1996
• Docket Number: No. CIV-94-1420-R.,CIV-94-1420-R.
• Citation: 946 F.Supp. 1569
• Parties: Bill GRAVES, Frank Keating, Ernest Istook, Frank Lucas, Tom Coburn, J.C. Watts, Mary Fallin, Mike Hunter, Brenda Reneau, Grover Campbell, Gerald Wright, Tom Akers, Robert Arthur, Max Shane Boothe, Steve Byas, John Chase, Eddie Hagler, Steve Hammontree, Pat Hayes, Ed Jantzen, Charles Key, Mark Liotta, Brian McKye, Tere Morrison, Rick Nagel, Wayne Pettigrew, Dan Ramsey, Jim Reese, Edna Reeves, Lyle Roggow, and John Sullivan, Plaintiffs, v. Betty McELDERRY, Chairman of the Oklahoma State Election Board, Mona Lambird, Vice Chairman of the Oklahoma State Election Board, George Krumme, Member of the Oklahoma State Election Board, and Lance Ward, Secretary of the Oklahoma State Election Board, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

946 F.Supp. 1569

Bill GRAVES, Frank Keating, Ernest Istook, Frank Lucas, Tom Coburn, J.C. Watts, Mary Fallin, Mike Hunter, Brenda Reneau, Grover Campbell, Gerald Wright, Tom Akers, Robert Arthur, Max Shane Boothe, Steve Byas, John Chase, Eddie Hagler, Steve Hammontree, Pat Hayes, Ed Jantzen, Charles Key, Mark Liotta, Brian McKye, Tere Morrison, Rick Nagel, Wayne Pettigrew, Dan Ramsey, Jim Reese, Edna Reeves, Lyle Roggow, and John Sullivan, Plaintiffs, v. Betty McELDERRY, Chairman of the Oklahoma State Election Board, Mona Lambird, Vice Chairman of the Oklahoma State Election Board, George Krumme, Member of the Oklahoma State Election Board, and Lance Ward, Secretary of the Oklahoma State Election Board, Defendants.

No. CIV-94-1420-R.

United States District Court, W.D. Oklahoma.

July 3, 1996.

COPYRIGHT MATERIAL OMITTED

Tim W. Green, Oklahoma City, OK, for plaintiffs.

Gretchen G. Harris, Victor N. Bird, Office of the Attorney General, Oklahoma City, OK, Andrew J. Tevington, Office of the Attorney General, Litigation Division, Oklahoma City, OK, for defendants.

MEMORANDUM OPINION AND ORDER

DAVID L. RUSSELL, Chief Judge.

This case presents a dispute over the constitutionality of a provision of the Oklahoma Election Code, 26 Okla.Stat. §§ 1-101 to 21-102 (the "Election Code"), which provides that in all Oklahoma General Elections, the election ballots are printed so that for each public office designated on the ballot form, the Democratic party candidate always appears in the top position — above any Republican party candidates, and above any Independent candidates. 26 Okla.Stat. § 6-106. This Court assumes jurisdiction over this dispute in accordance with 28 U.S.C. §§ 1331 and 1343(a)(4), and holds section 6-106 of the Election Code to be, in part, unconstitutional under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. U.S. Const. amend. XIV, cl. 3. Because the Court determines it has no jurisdiction over Plaintiffs' claim under Article III, § 5 of the Oklahoma Constitution, the Court dismisses Plaintiffs' state law claim. Fed.R.Civ. 12(b)(1).

I. STATEMENT OF THE CASE

A. Introduction.

This is a civil rights action under 42 U.S.C. § 1983. On the date their First Amended Complaint was filed, October 13, 1994, Plaintiffs were candidates for public office in the 1994 Oklahoma General Election. Defendants were officers and members of the Oklahoma State Election Board.¹

Plaintiff's Complaint contends that section 6-106 of the Election Code violates the Equal Protection Clause of the Fourteenth Amendment, and Article III, section 5 of the Constitution of the State of Oklahoma, by mandating that the top position in each office block on every general election ballot be occupied by the candidate representing the Democratic party. Plaintiffs contend this election ballot configuration gives the Democratic party candidate an unfair advantage in each General Election, and thus impermissibly burdens Oklahoma citizens' right to vote. Plaintiffs' First Amended Complaint asks the Court to certify a class pursuant to Fed.R.Civ.P. 23(b)(2),² and to grant Plaintiffs and other similarly situated Republican party candidates declaratory and permanent injunctive relief. With respect to their request for injunctive relief, Plaintiffs specifically ask the Court to order Defendants to adopt and implement a "rotating" ballot system: i.e., a system in which the name of each candidate for public office appears in the top position on the election ballots an equal number of times as every other candidate's name.³

Plaintiff's case originally came before this Court on cross-motions for summary judgment filed by the parties pursuant to Fed. R.Civ.P. 56. On May 8, 1996, upon order of this Court, a hearing was held on the cross-motions. At that hearing, the parties agreed the only material factual issues in genuine dispute in the case were: (1) whether the top position in an office block on a General Election ballot actually affords any advantage to the candidate for public office occupying the position; and (2) whether a ballot layout which places one party's candidate in the top position on the ballot in every General Election is capable of burdening the legal rights of other party candidates and voters.

At the May 8, 1996 hearing, the parties agreed all the testimony and evidence available to them on these two (2) issues was either attached to their motions, or available at the hearing. The parties therefore stipulated that the Court should proceed to conduct a bench trial, and issue a final determination on the legal question presented in the case, rather than ruling on the cross-motions for summary judgment.⁴ For this reason, the Court determines this case in this Memorandum Opinion and Order, and gives judgment on the legal and factual issues presented by the parties. The parties' cross-motions for summary judgment are consequently rendered moot, and shall therefore be denied.

Based upon the evidence attached to the parties' motions,⁵ and presented at the hearing on May 8, 1996, the Court finds the facts of this case to be as follows.

B. Facts of the Case.

In 1991, a Democratically-controlled Oklahoma Legislature enacted the statutory language which, when codified, became the current version of section 6-106 of Oklahoma's Election Code.⁶ The statutory provision was signed into law by Oklahoma's Governor David Walters, a member of the Democratic party.⁷ It is this version of section 6-106 of the Election Code which mandated the ballot configuration used in the 1994 Oklahoma General Election, and which Plaintiffs now contend is unconstitutional. Section 6-106 reads as follows:

The official ballot card for the General Election shall be printed so that the nominees of the various political parties and nonpartisan candidates will appear in columns. For each ballot for which there are partisan candidates, the candidates of the Democratic party shall be printed in the first position, those of the Republican party in the second position and those of other parties as the State Election Board may direct, giving preference to the party which had the largest number of registered voters in the latest January 15 report, followed by candidates who filed as Independents.... The name of the office entitled to the first place in the column, preceded by the word "for," shall next appear in bold type, as "For Governor." Immediately after same shall be the names of the nominees for such office printed with the name of the nominee's party followed by candidates who file as Independents for such office printed with the word "Independent." The list shall be continued down each column, naming the officers in the order in which they are set out by the Constitution and statutes, until all the nominees are given space....

26 Okla.Stat. § 6-106. This statutory language provides that in all Oklahoma General Elections a uniform "office block" or "Massachusetts style" election ballot format shall be utilized.⁸,⁹ The salient features of such a ballot are that the ballot form is printed with columns of "blocks" delineating each public office, and names of candidates are listed vertically within each block, along with their party name and symbol.¹⁰ See Copy of General Election Ballot attached as Exhibit "A." The Democratic party candidate always appears on the top of the vertical list of candidates in each office block on the ballot form. 26 Okla.Stat. § 6-106.

Earlier versions of section 6-106 of the Election Code dictated a "party-column" style election ballot for Oklahoma's General Elections. See 1974 Okla.Sess.Laws ch. 153, § 6-106; 1976 Okla.Sess.Laws ch. 90, § 4. This style of ballot typically listed all the candidates of a particular party in columns, with the public offices for which the candidates were running identified by horizontal blocks.¹¹ See Copy of Sample Ballot attached hereto as Exhibit "B." On Oklahoma's party-column ballots, all Democratic party candidates were listed in a column appearing on the left side of the ballot, the Republican party candidates were listed in a middle column, and all Independent candidates appeared on the right side of the ballot. 1974 Okla.Sess.Laws ch. 153, § 6-106; 1976 Okla.Sess.Laws ch. 90, § 4.

The Secretary of the State Election Board, Defendant Lance Ward, testified at the May 8, 1996 hearing before this Court that the uniform office block style of election ballot was implemented by the Oklahoma Legislature to accommodate the new computerized voting devices the State began using in 1992.¹² Ward also testified that when the Democratically-controlled Oklahoma Legislature enacted the most recent version of section 6-106, and assured that the Democratic party candidate would always appear at the top of any list of candidates for public office on General Election ballot forms, the Legislature was undoubtedly motivated by a desire to permit Democratic party candidates to capitalize on any election advantage which could be gained by receiving top billing on the ballot.¹³ Ward testified that the legislative decision to include a provision in section 6-106 which would assure a top position on the ballot for Democratic party candidates was a "political decision."¹⁴

However, according to Ward, the legislative decision to utilize a uniform ballot system in every General Election, rather than some rotating ballot system which would effectively "mix-up" the list of candidates on each ballot, was motivated by cost considerations, and a desire to minimize the possibility of voter confusion.¹⁵ It is unrefuted in the Court record that the implementation of any kind of rotating ballot system in Oklahoma General Elections, similar to that system mandated for primary elections by 26 Okla. Stat. § 6-109, would result in a ballot format that is potentially confusing to voters, and would be both costly and burdensome for the State to implement and administer.¹⁶ Moreover, the...