Griffin v. Burns
| Decision Date | 19 January 1978 |
| Docket Number | No. 77-1250,77-1250 |
| Citation | 570 F.2d 1065 |
| Parties | Lloyd T. GRIFFIN et al., Plaintiffs, Appellees, v. Robert F. BURNS, etc., et al., Defendants, Appellees, Thomas A. McCormick, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Thomas A. McCormick, pro se.
William Y. Chaika, Providence, R. I., with whom Cohen & Chaika, Providence, R. I., was on brief, for Lloyd T. Griffin, et al., appellees.
Julius C. Michaelson, Atty. Gen. and J. Peter Doherty, Sp. Asst. Atty. Gen., Providence, R. I., on brief, for Robert F. Burns, etc., appellee.
Ronald H. Glantz, Lincoln, R. I., with whom Joseph A. Rotella, Providence, R. I., was on brief, for Providence Board of Canvassers, appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, WOLLENBERG, District Judge. *
This appeal, involving difficult issues of constitutional law and federalism, arises from a dispute over the use of absentee and shut-in ballots in a special Democratic primary election held in the Tenth Ward of Providence, Rhode Island, on March 29, 1977. The primary was held to select the Democratic candidate to run in a special election for a vacancy on the Providence City Council. Thomas McCormick, certified winner of the primary, appeals from the order of the Federal District Court for the District of Rhode Island directing that a new primary be held and postponing the general election. 431 F.Supp. 1361 (D.R.I.1977). We affirm the district court's order and, as the new primary has already been held, lift our stay of the general election. 1
We first set forth the facts. Vying for the position of Democratic candidate for City Council in the March, 1977, primary were appellant Thomas McCormick, nominal appellee Lloyd Griffin, Edward Clement, Lester Fayerweather, and Thomas Slater. Rhode Island regulates the conduct of party primaries in detail, R.I.Gen.Laws, 1956 (1969 reenact.), tit. 17, chs. 13, 14, 15, and the primary was managed pursuant to statute by the Secretary of State of Rhode Island (the Secretary), the State Board of Elections (the State Board), and the Providence Board of Canvassers and Registration (the Board of Canvassers). R.I.Gen.Laws, tit. 17, chs. 6, 7, 8.
Rhode Island law, as it stood in March of 1977, expressly permitted absentee and shut-in voting in "all . . . elections in the state for . . . city, town, ward or district officers", but did not specify whether the "elections" in which absentee and shut-in ballots were allowed extended to the party primaries for such offices. R.I.Gen.Laws § 17-20-1. The Secretary and the other election officials, believing the issuance of such ballots in party primaries to be authorized, and acting in accordance with a practice that had existed in Rhode Island for about seven years in the case of primaries, advertised and issued various such ballots for use in this primary. 2 The applications for these ballots consisted of printed forms headed "State of Rhode Island and Providence Plantations", with a box entitled "For Use of Secretary of State Only" prominently appearing at the top. Procedures regularly followed in all Rhode Island elections of every type were employed in issuing and tabulating these ballots. See R.I.Gen.Laws, tit. 17, ch. 20. First, pursuant to R.I.Gen.Laws § 17-20-2, the Secretary advertised in newspapers that qualified electors could vote in the primary by casting absentee or shut-in ballots. Next, the Board of Canvassers processed and screened all applications for such ballots, forwarding the completed applications to the Secretary, who, after review and certification, sent the appropriate ballot to the absentee or shut-in, R.I.Gen.Laws § 17-20-4, -6, who marked and returned it to the State Board. The State Board, at open hearing, invalidated improper ballots and forwarded all valid ballots to the Board of Canvassers for opening and tabulation, R.I.Gen.Laws § 17-20-21. Finally, the Board of Canvassers calculated the final official vote and certified a winner, notifying the Secretary of its results.
In the instant primary, 131 votes were cast by absentee or shut-in ballots issued in accordance with this procedure. The State Board invalidated 5 of such ballots and the Board of Canvassers invalidated 3 more, leaving 123 to be combined with the machine-vote count. The final vote was as follows:
Machine
Total Shut-in Absentee Total
Clement 165 2 0 167
Fayerweather 86 3 1 90
Griffin 377 77 34 488
McCormick 467 5 1 473
Slater 138 0 0 138
------- ------- -------- -----
1233 87 36 1356
Almost ten percent of the total vote recorded was cast by absentee or shut-in ballot. Though Thomas McCormick was the winner by 90 votes on the machine count, after tabulation of the absentee and shut-in ballots, Lloyd Griffin commanded a plurality of 15. Griffin was therefore certified the winner by the Board of Canvassers. 3
After the primary, McCormick for the first time questioned the authority of the Secretary to issue and count absentee and shut-in ballots in a primary election. He made objection to those and other ballots before the State Board on March 31, 1977, arguing at hearings on March 31, April 1 and April 2 that no such ballots should have been certified by the State Board nor counted by the Board of Canvassers.
Failing to obtain relief in that forum, he promptly filed a petition for a common law writ of certiorari in the Rhode Island Supreme Court. (This appears to be the accepted method in Rhode Island for a candidate to obtain administrative and judicial review of election results.) In the petition, McCormick named as defendants the State Board, the Board of Canvassers, the members of those boards, the Secretary, and McCormick's four opponents for the Democratic nomination. He contended that because the Secretary had no authority to issue and certify absentee and shut-in ballots in the primary, the 123 votes cast by such ballots were invalid.
On April 27, 1977, the Rhode Island Supreme Court granted McCormick's petition for certiorari, a majority of that court announcing briefly in its written order that "there is no constitutional or statutory basis for allowing absentee and shut-in voters to cast their votes in a primary election." It ordered that the 123 such ballots be invalidated, and Griffin's certification as candidate be quashed. No opinion was filed with the April 27 order of the Rhode Island Supreme Court, but six months later the court issued a comprehensive written opinion. McCormick v. State Board of Elections, R.I., 378 A.2d 1061 (Oct. 20, 1977). 4
Pursuant to the order of April 27, 1977, the Board of Canvassers revoked its certification of Griffin as candidate, and on April 28, 1977, officially named McCormick the Democratic nominee. Griffin then filed a "Motion to Reargue" before the Rhode Island Supreme Court, in which he requested to be heard on the question whether the court could or should nullify the March 29 primary and mandate a new election. Though stating that the question should have been presented at the original hearing and did not qualify as a basis for a motion for reargument, the state court heard and on the same day, May 2, rejected the motion. During the hearing on the motion, a Rhode Island attorney, Walter Stone, requested and was denied permission to intervene as amicus curiae on behalf of those whose votes had been invalidated.
Four days later, on May 6, 1977, the Rhode Island General Assembly enacted a statute expressly authorizing absentee and shut-in voting in all future state primary elections. 1977 R.I.Pub.Laws ch. 153, "An Act Relating to Absentee Voting." The new law apparently took effect on May 12, 1977, the day it was signed by the Governor. The district court found that this enactment occurred after the April 27 decision of the Rhode Island Supreme Court had "caught the state by surprise."
On April 29, 1977, while the motion to reargue was pending, Griffin sought a federal remedy: he, with two other named plaintiffs, Mary Green, a shut-in voter, and Mary Morrow, an absentee voter, who had cast ballots in the primary, brought this action under 42 U.S.C. § 1983 seeking temporary relief from invalidation of their ballots. Relief was initially denied in deference to the Rhode Island Supreme Court's pending consideration of Griffin's motion for reargument. But after the state court denied Griffin's motion for argument on whether to hold a new primary, Griffin, Morrow and Green returned to the district court seeking a temporary restraining order which would postpone the general election, scheduled for May 3, until the district court could resolve their claim concerning the primary. On May 2, the district court issued a restraining order, holding that federally cognizable rights were implicated by the facts presented. The court declined jurisdiction over Griffin on the ground that his claim, having been adjudicated by the Rhode Island Supreme Court, was now properly raised only before the United States Supreme Court, under 28 U.S.C. § 1257. It scheduled a hearing on the requested preliminary injunction for May 11, 1977.
At the May 11 hearing three voters from the Tenth Ward, including Mary Green, testified to having cast shut-in votes in the primary and insisted that they would have secured assistance to enable them to vote at the polls in person had they known their shut-in ballots would not be counted. Each described how he or she would have arranged to be transported to the polls. A fourth voter, Mary Morrow, who cast an absentee ballot, testified that she would have arranged her plans so that she could vote in the state, had she not relied on the representations of defendant officials that her absentee ballot was valid. McCormick...
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