Griffin v. Burns, Civ. A. No. 77-247.
| Decision Date | 17 May 1977 |
| Docket Number | Civ. A. No. 77-247. |
| Citation | 431 F. Supp. 1361 |
| Parties | Lloyd GRIFFIN et al. v. Robert F. BURNS, Secretary of State of the State of Rhode Island, et al. |
| Court | U.S. District Court — District of Rhode Island |
Anthony J. Bucci, Walter R. Stone, Providence, R. I., William Chaika, Cranston, R. I., for plaintiffs.
J. Peter Doherty, Sp. Asst. Atty. Gen., Providence, R. I., for defendants.
Thomas A. McCormick, pro se.
Plaintiffs, suing as a class, seek injunctive relief to redress the deprivation by state officials of their constitutionally secured right to vote. This action is brought under 42 U.S.C. § 1983, and jurisdiction is conferred by 28 U.S.C. § 1343(3). Plaintiffs are a duly qualified voter who voted by absentee ballot in the March 29 Democratic primary election in the 10th Ward in Providence; a duly qualified voter who voted by shut-in ballot in that primary; and Lloyd Griffin, a candidate for a vacant seat on the Providence City Council which that election was called to fill. The defendants are Robert F. Burns, the Secretary of State in Rhode Island; the three members of the Providence Board of Canvassers; and Thomas A. McCormick, one of Mr. Griffin's opponents in that March 29 primary.
A temporary restraining order was issued on May 2, 1977, enjoining the defendants from holding the May 3 general election for the 10th ward city council seat. The trial on the merits has been held, consolidated with the hearing on the preliminary injunction, and the matter is now before the Court for final decision.
After a vacancy occurred in the City Council seat for the 10th ward in Providence, the Providence Board of Canvassers called for an election. Because of the number of candidates for the Democratic Party's nomination, a primary was scheduled for March 29, 1977. Pursuant to a custom reaching back for at least seven years, and in accordance with its understanding of the requirements of state law, see R.I.G.L. § 17-1-2(a) and (g) (1969 reenact.), the Board of Canvassers issued applications to qualified voters to obtain absentee or shut-in ballots.1 The results of the primary election of March 29 were as follows:
Machine Absentee Shut-In Total
Clement 165 0 2 167
Fayerweather 86 1 3 90
Griffin 377 34 77 488
McCormick 467 1 5 473
Slater 138 0 0 138
While Mr. McCormick carried the machine-only count on March 29 by 90 votes, the Providence Board of Canvassers certified Mr. Griffin the winner by 15 votes when the absentee and shut-in votes finally were counted on April 4. The absentee and shut-in ballots were clearly the key to the election. They comprised slightly more than 10% of the total vote cast.
Mr. McCormick thereupon filed suit in the Rhode Island Supreme Court, challenging inter alia the Board of Canvassers' decision to count any absentee or shut-in ballots on the grounds that state law permitted absentee and shut-in ballots only in general elections. Mr. Griffin was a party defendant on that action.
On April 27, 1977, the Rhode Island Supreme Court issued a brief order (an opinion is forthcoming), holding that "there is no constitutional or statutory basis for allowing absentee and shut-in voters to cast their votes in a primary election." McCormick v. State Board of Elections, 374 A.2d 116 (R.I.1977). The Board's certification of Mr. Griffin as the party's nominee was therefore quashed. Mr. Griffin filed a motion to re-argue, which was denied in the afternoon of May 2, 1977, and this Court thereupon2 heard the motion for temporary relief made by Mr. Griffin and two voters who alleged that they had cast absentee and shut-in ballots in reliance on the representations of the Board of Canvassers and Secretary of State. The Court declined to take jurisdiction over any claims of Mr. Griffin, believing that his claims may be raised only by appeal or certiorari to the United States Supreme Court. See 28 U.S.C. § 1257. That decision is here reaffirmed. Relief was, however, granted to the other two named plaintiffs.
At trial, plaintiffs produced four voters from the 10th ward. Three, including one of the named plaintiffs, had cast shut-in votes at the March 29 primary, and it was apparent to the Court that they could indeed not have traveled to the polls "without assistance", the statutory requirement for eligibility for a shut-in ballot. See R.I.G.L. § 17-20-8, 9 (1976 Supp.) Each testified, and the Court so finds, that they would have secured assistance to enable them to vote at the polls in person if they had known that their shut-in ballots would not have been counted. In other words, but for the representations of defendant state officials, they would have voted in person. They described in detail how the necessary assistance could have been obtained. The Court observes that two of these witnesses, including one of the named plaintiffs, were in wheelchairs — one as a result of multiple sclerosis, another as a result of a break in the spinal cord. The other named plaintiff cast an absentee ballot. She, too, testified, and the Court finds, that but for representation of the defendant officials, she would have altered her arrangements and would have voted in person at the polls.
The defendants produced one shut-in voter who testified that she could not have voted in person even if she had known that her shut-in vote would not have been counted, since she was recovering in the hospital at the time from a Caesarean section.
There is no evidence of any sort that the defendants had any intention to discriminate against Mr. Griffin (who is black) or any of his supporters (including the plaintiffs), or in favor of Mr. McCormick (who is white) or any of his supporters. The voter applications received by the Board of Canvassers and forwarded by the Board to the Secretary of State contained no data which could identify voters by race. Furthermore, the Court finds that defendants acted in good faith in issuing and counting absentee and shut-in ballots. The Court observes by judicial notice that the April 27 decision of the Rhode Island Supreme Court construing state law to forbid these ballots in primary elections caught the state by surprise, and that the legislature acted by May 6, 1977, to pass a law authorizing absentee and shut-in voting in all future primary elections. That new law took effect the day it was signed by the Governor, May 12, 1977.
Nonetheless, the Court must also note certain facts which form the necessary background to understanding the intense interest this case has aroused, and which it would be naive to ignore. The 10th ward, split by Interstate 95, is comprised of two sections — South Providence, a predominantly black neighborhood, and Washington Park, a largely white neighborhood. As was indicated by the arguments made to the Court by Mr. Griffin's counsel (who read portions of Invisible Man by Ralph Ellison as his closing argument), many voters in the 10th ward perceive that an election won by their candidate, a black man, was suddenly reversed by a judicial decision holding a long-standing practice of counting absentee and shut-in ballots illegal. The voters of this same ward in November, 1976, elected a black state representative who has been refused his seat in the Rhode Island Legislature and extradited to Michigan. See generally Bailey v. Laurie, 373 A.2d 482 (R.I.1977). In short, although there is no evidence of any intentional racial discrimination by defendants in this case, the actions complained of by plaintiffs had an undeniable racial effect on the outcome of the election, an effect observed by the black voters of the 10th ward.
A. As a preliminary matter, the state defendants argued orally that this action should not have proceeded without joining, pursuant to Fed.R.Civ.P. 19(a), each of the other candidates in the Democratic primary, any candidates who have qualified for the upcoming general election, all voters who voted in person at the March 29 primary, and the Rhode Island Board of Elections. The motion is denied. The Court has determined that none of the above-named persons is indispensable under Fed.R.Civ.P. 19(b). The voters' interest is, in theory, represented by the state, since both share the common interest of the integrity of the electoral process. In fact, the voters received exemplary representation from the Attorney General, whose effort to consider the public interest the Court recognizes and commends. The Rhode Island Board of Elections has no interest which this Court can discern here. It supplies machines and certifies candidates but has nothing at stake in the outcome. These functions are no bar and complete relief may be afforded without its participation. Whether or not remaining candidates might be said to be necessary under Rule 19(a) if this case could have taken a leisurely course through this Court, the Court need not decide, although there is grave doubt that their interest, if any, satisfies Rule 19(a). Taking into account the grave nature of the issues at hand, and the crucial importance of quickly resolving public uncertainty created where elections have been postponed, see e. g., McGill v. Ryals, 253 F.Supp. 374, 377 (M.D. Ala.) (three-judge court), appeal dismissed, 385 U.S. 19, 87 S.Ct. 212, 17 L.Ed.2d 17 (1966); cf. Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F.2d 606, 610 (4th Cir. 1970), the Court is certain that the remaining candidates were not indispensible and that the action properly proceeded without them. It should also be noted that none of these candidates, whom the state believes are so interested as to require joinder, made any attempt to intervene in this Court....
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