Hendon v. North Carolina State Bd. of Elections
| Decision Date | 05 May 1986 |
| Docket Number | Civ. A. No. A-C-82-357. |
| Citation | 633 F. Supp. 454 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | W.M. (Bill) HENDON; Bill Hendon for Congress Committee; Peggy B. Hannah, Individually and on behalf of other voters of the Eleventh Congressional District of N.C., Plaintiffs, and U.S. Senator Jesse Helms; the N.C. Republican Party, David T. Flaherty, Chairman, Intervenor Plaintiffs, v. NORTH CAROLINA STATE BOARD of ELECTIONS, Robert W. Spearman, Chairman, and Elloree M. Erwin, Ruth T. Semashko, William A. Marsh, Jr., Robert R. Browning, Members of the N.C. State Board of Elections; Haywood County Board of Elections, Jim Francis, Chairman, and Tom Hart, Frank Queen, Members of the Haywood County Board of Elections; Henderson County Board of Elections, T.E. Mullinax, Jr., Chairman, Nicholas Semashko, Larry Justus, Members of the Henderson County Board of Elections; McDowell County Board of Elections, S.R. "Jack" Triplett, Chairman, and Janet N. Norton, Walter W. Bill Rowe, Members of the McDowell County Board of Elections; Rutherford County Board of Elections, James H. Burwell, Chairman, J.D. Cooley, Bill Penson, Members, Rutherford County Board of Elections; Transylvania County Board of Elections, John R. Hudson, Chairman, William C. Mann, Henry R. Crais, Members, Transylvania County Board of Elections, Defendants. |
Robert F. Orr, Asheville, N.C., Miller, Canfield, Paddock & Stone by James F. Schoener, Washington, D.C., for plaintiffs.
Maupin, Taylor & Ellis by Armistead J. Maupin, Thomas A. Farr, Raleigh, N.C., for intervenor plaintiffs.
James W. Wallace, Jr., Deputy Atty. Gen. for Legal Affairs, Raleigh, N.C., for defendants.
THIS MATTER is before the Court on cross motions for summary judgment. Twice before the case has been before this Court and twice before the Court has entered orders apparently dispositive but which were appealed with resultant remands.1 This opinion must necessarily contain a review of these prior proceedings in order to sensibly dispose of the issues now raised by the motions for summary judgment.
This case first arose between the Congressional election of 1982 and the seating of the congressmen elected therein. The original plaintiffs were William M. (Bill) Hendon, the incumbent Republican Congressman from the 11th District of North Carolina, his congressional campaign committee and Peggy B. Hannah who purported to sue individually and on behalf of other voters of the 11th Congressional District. The original defendants were the North Carolina Board of Elections, its members and the county boards of certain counties in the 11th District, together with their individual members. Thereafter, James G. McClure Clark, the Democratic candidate (successful) for the 11th District seat, intervened as a party defendant.2
Clark had defeated Hendon in an extremely close contest.3 Plaintiff sought to set aside the results of the election, to obtain a recount, and to declare unconstitutional certain sections of the North Carolina election laws set forth in N.C. Gen. Stat. § 163-151(4), (5), and (6), 163-170(5) and (6) (1982).4 In brief summary the plaintiffs attacked North Carolina Statutes concerning the counting of ballots on which voters had attempted to vote a straight ticket but had "crossed over" and cast or attempted to cast a vote for an individual candidate of the opposite party in a particular contest. Under the then prevailing North Carolina law a paper ballot so marked was counted with reference to the contest of attempted crossover as a ballot for the candidate of the party marked at the top of the ballot in the "straight ticket" space. The District Court held this procedure not to be violative of any constitutional rights and granted plaintiffs no relief. The Fourth Circuit reversed holding that "the imposition of a legislative preference for the straight party candidate when the voter has indicated no such preference, is an arbitrary subversion of the electoral process that serves no compelling state interest." Hendon I at 180.
Plaintiffs' second contention involved a difference in the methods of counting such attempted split ballots on different types of voting machines. At that time North Carolina counties not using traditional paper ballots employed three different types of voting machines. In some counties5 election officials used mechanical voting machines; in others, Airmac Systems and in others, CES (electronic punch card) machines. On the mechanical machines the voter could cast a straight party vote, flip a separate lever with reference to any individual race and cancel his straight vote so as to cast a vote for a candidate of another party. On the Airmac and CES machines these attempted crossovers were not counted and were tallied instead as votes for the straight party marked at the top of the relevant voting card. Again, the District Court found this procedure not to be unconstitutional and again the Fourth Circuit reversed. The Circuit found that this distinction placed a more onerous burden on voters in counties with the latter two types of counting systems than in those counties using the mechanical machines and remanded finding N.C.Gen.Stat. § 163-151(5)(a) not facially unconstitutional but possibly "unconstitutionally applied if (a) the CES and Airmac systems can be programmed to record split tickets in substantially the same manner as voting machines and (b) the state offers no rational explanation for requiring voters who are furnished the CES and Airmac systems to suffer a much more onerous burden than voters who are furnished voting machines." The remand also directed the Court to consider the nature of other relief in light of the Circuit Court's opinion. Hendon I, at 183.
The District Court in its second opinion (Appendix B) found that the two questioned machines could be so programmed and made other findings which will be discussed in the body of this opinion. The Court then ordered the programming of all machines "to count crossover voters for individual candidates on those ballots on which the voter has marked or punched a straight party ticket and has also marked or punched an individual crossover vote." (Appendix B.)
Defendants again appealed. The Fourth Circuit found no error in the district judge's findings of fact or conclusions of law, but remanded the case for further consideration in light of a change in North Carolina law, specifically the enactment of House Bill 1796, Chapter 1099, Session Laws of 1983 (regular session 1984).6 Hendon II, at 8. It is in this context that both parties now move the court for summary judgment, the plaintiff alleging the unconstitutionality of the new statute under the prior opinions and the defendant denying that unconstitutionality and asserting the control of that act upon this case.
Before reaching the merits of the claims concerning the constitutionality and effectiveness of the statute, this Court must address a threshold question raised by plaintiffs as to the propriety of this question even being before the Court. A resolution of the North Carolina State State (sic) Board of Elections dated August 8, 1985 directed the Attorney General of North Carolina to "confess judgment that House Bill 1796, Chapter 1099, is unconstitutional under the Fourteenth Amendment of the United States Constitution."7 The Attorney General responded and asserts on behalf of defendants that "I consider my primary responsibility to be that of defending the enactments of our General Assembly, whose laws are presumed to be constitutional, unless and until declared otherwise by a court of competent jurisdiction." Therefore, the first issue joined is whether a state agency represented by the Attorney General of North Carolina has the authority to direct that attorney general to enter a confession of judgment of the sort here proposed. Conversely, the issue can be stated: Does the Attorney General of North Carolina representing a state agency have the power to reject his client agency's directive to enter into such a judgment by confession and continue the litigation?
In support of an affirmative answer to the first formulation of the issue and a negative answer to the second, plaintiffs cite the case of Tice v. Department of Transportation, 67 N.C.App. 48, 312 S.E.2d 241 (1984). In that case, which plaintiff argues is controlling, the attorney general, acting through an assistant attorney general, entered into a consent judgment establishing the boundaries of a state road and enjoining the plaintiff from interfering with the maintenance and public use of the road. Subsequently, the Department of Transportation repudiated the consent judgment and moved to set aside the judgment and the stipulations upon which it was based. This motion was based in principal part on the proposition that the attorney general "was without authority from the client agency ... to execute the consent judgment on its behalf." In that case, as in the case at bar, the attorney general's appearance as counsel was pursuant to N.C.Gen.Stat. § 114-2(2) which provides that a duty of the attorney general is to "represent all state departments, agencies, institutions, commissions, bureaus or other organized activities of the state which receive support in whole or in part from the state."
The State Court of Appeals in affirming an order allowing the Department of Transportation's motion held that the statute and representations pursuant to it created a traditional attorney-client relationship and "generally, an attorney cannot enter a consent judgment without the consent of his client." Reiterating existing North Carolina law established in an action on behalf of the town of Bath wherein the town had voided a consent judgment entered by the town's attorney, the Court stated, "Absence of authority to consent ... deprives the judgment of any sort...
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