Hendon v. North Carolina State Bd. of Elections
| Decision Date | 23 June 1983 |
| Docket Number | No. 82-2122,82-2122 |
| Citation | 710 F.2d 177 |
| 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., Appellants, 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 Bd. 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 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 Board of Elections, and Jamie McClure Clark, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Robert B. Long, Jr., Asheville, N.C. (Long, Parker & Payne, Asheville, N.C., James F. Schoener, Miller, Canfield, Paddock & Stone, Birmingham, Mich., on brief), for appellants.
James Wallace, Jr., Deputy Atty. Gen. for Legal Affairs, Raleigh, N.C. (Sandra M. King, Asst. Atty. Gen., Raleigh, N.C., on brief), and Herbert L. Hyde, Asheville, N.C.
(Herbert L. Hyde, P.A., Asheville, N.C., on brief), for appellees.
Before WINTER, Chief Judge, ERVIN, Circuit Judge, and BUTZNER, Senior Circuit Judge.
W.M. Hendon, his re-election committee, and Peggy B. Hannah appeal from a judgment of the district court declaring certain North Carolina election laws constitutional and denying a recount of ballots cast in the November 2, 1982, general election for the United States House of Representatives for the eleventh district of North Carolina. We reverse in part and declare portions of N.C.Gen.Stat. Secs. 163-151 and 163-170 (1982) unconstitutional. Our declaration, however, applies prospectively, and we do not order a recount.
In the November 2, 1982, general election, voters in the eleventh congressional district voted in one of four ways: (1) a hand counted paper ballot listing only the congressional race; (2) a mechanical lever voting machine; (3) an electronic punch card system (CES); and (4) an optically scanned paper ballot system (Airmac). The CES system was used in two counties. With CES, the voter punches a hole beside the party or candidate of his choice. The ballots are then inserted into a machine that electronically counts the selections of the voters. The Airmac system was used in all of one county and parts of two others. With Airmac, the voter marks a ballot with a special pen. The ballots are then fed through a machine which optically scans them and counts the selections of the voters.
All votes cast in the general election were counted in accordance with the North Carolina election laws. 1 The law permits a person to vote a straight party ticket by simply marking the party circle on the ballot above the party column. N.C.Gen.Stat. Sec. 163-151(4) (1982). To vote a split ticket, the voter must not mark the party circle. Instead, the voter must mark the individual square for each candidate whom the voter favors. Secs. 163-151(5)(a); 163-170(6)(b). If a voter marks the party circle of any party and also marks the square for an individual candidate of another party, the ballot is counted as a straight ticket vote for all candidates of the party whose circle was marked, and the square marked for the individual candidate of another party is not counted. Secs. 163-151(5)(b); 163-170(6)(a). Similarly, in the case of write-in votes, if a voter marks the party circle of any party and also writes in the name of a candidate of any other party, the write-in is disregarded and the ballot is counted as a straight ticket vote. Secs. 163-151(6)(b) and (d); 163-170(5)(c) and (d)(2).
The results of the general election were close. The Democratic candidate received 85,410 votes; the Republican candidate, Hendon, 84,085 votes; and the Libertarian candidate 1,552 votes.
Hendon challenged the results in the five counties using the CES or Airmac systems and requested a recount. He contended that a substantial number of persons in those counties voted a straight Democratic ticket and also voted individually for him but that these ballots were counted for the straight Democratic ticket candidate. Each of the county boards of elections denied Hendon's recount petitions, despite undisputed evidence that ballots were marked both straight Democratic and for Hendon. The state board of elections denied Hendon's appeal of the decisions of the county boards of elections.
Hendon, his re-election campaign committee, and Hannah, a registered voter in Haywood County, then filed this action pursuant to 42 U.S.C. Secs. 1971, 1973, 1983, and 1985 for alleged violations of the equal protection The district court found none of the challenged statutes unconstitutional. Consequently, it denied the other relief the appellants sought. 3 The district court held that the challenged statutes did not violate the equal protection clause because all voters in each precinct were treated alike using the same voting methods and counting rules. Furthermore, assuming there was evidence of discrimination, the court found that North Carolina had "a compelling interest in adopting a system of voting which will permit the voters to vote without undue delay; to count the votes within a reasonable time and to prevent fraud and illegal procedures." Finally, it held there was no violation of due process, because the form of the ballots and the election procedures did not reach the point of patent and fundamental unfairness.
and due process clauses of the fifth and fourteenth amendments of the United States Constitution. 2 They sought a declaration that N.C.Gen.Stat. Secs. 163-151 and 163-170 are unconstitutional, an injunction barring the state board of elections from certifying the Democratic candidate as the winner in the eleventh congressional district, and an order for a recount of ballots cast in the five challenged counties
The Constitution protects the right of qualified citizens to vote and to have their votes counted as cast. Because of the importance of this right, "any alleged infringement ... must be carefully and meticulously scrutinized." Reynolds v. Simms, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506 (1964). Therefore, laws that place conditions on this right must promote a compelling state interest. See Dunn v. Blumstein, 405 U.S. 330, 336-37, 92 S.Ct. 995, 999-1000, 31 L.Ed.2d 274 (1972).
The principal vice of the North Carolina statute lies in its mandate that a ballot marked for a straight party ticket and for an individual candidate of another party, whether by mark or write-in, shall be counted for the straight party ticket. 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.
At least two other courts have reached the same conclusion, and none holding to the contrary has been called to our attention. In Melchoir v. Todman, 296 F.Supp. 900, 901-02 (D.V.I.1968), Judge Hastie, who was then Chief Judge of the Court of Appeals for the Third Circuit, wrote:
Section 584(c)(4) of Title 18, Virgin Islands Code, provides that where a voter in a territorial election shall mark his ballot in the "Party Column" to show that he votes for all candidates of a qualified political party and in addition shall vote for one or more individual candidates not of that party, the straight party vote shall be counted and the other individual vote or votes shall be disregarded.
....
In the judgment of this court section 584(c)(4) thus applied is an arbitrary and invalid imposition of legislative preference where the voter has failed to indicate his own. Such action also discriminates unlawfully against the independent candidate because the attempted vote for him is treated as inferior to and less worthy of counting than a group vote for party nominees.
In Murchie v. Clifford, 76 N.H. 99, 79 A. 901, 902, 903-04 (1911), the court considered a statute that provided in part: "[U]nless canceled or erased, all names in the party columns under the circle marked by the voter shall be counted to the exclusion of others." The court held that this provision was invalid, saying: "[T]he legislature may enact the method by which a man shall In concert with Melchoir and Murchie, we conclude that the legislative directive to count an improperly split ballot as a vote for the straight party ticket is unconstitutional. This provision of the statute denies the equal protection of the laws to both the voter and the opponent of the candidate named on the straight party ticket.
vote, but cannot direct how the ballot he casts shall be counted." 4
In addition to their complaint about the legislative mandate to count an improperly split vote for the straight party ticket, the appellants also contend that Sec. 163-151(5)(a) placed an unconstitutional burden on voters in the November 1982 general election who used the CES and Airmac systems. In order to split their ballot in accordance with this provision of North Carolina law, voters using the CES and Airmac systems had to vote for as many as 51 individual candidates. Voters using the traditional paper ballots, however, had no trouble splitting their ballots, because they were furnished separate ballots for the congressional race. Voters using mechanical voting...
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