Hennings v. Grafton
| Decision Date | 11 November 1975 |
| Docket Number | No. 75-1178,75-1178 |
| Citation | 523 F.2d 861 |
| Parties | Robert HENNINGS et al., Plaintiffs-Appellants, v. Harry GRAFTON, in capacity as County Clerk, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Thomas F. Londrigan, Springfield, Ill., Thomas R. Meites, Chicago, Ill., John P. O'Rourke, Danville, Ill., for plaintiffs-appellants.
S. John Muller, Charleston, Ill., William H. Hillier, Chicago, Ill., for defendants-appellees.
Before MOORE, Senior Circuit Judge, * and PELL and TONE, Circuit Judges.
In this class action brought under 42 U.S.C. § 1983 on behalf of all voters of Coles County, Illinois, plaintiffs-appellants seek equitable relief requiring that the 1974 election for county offices be reconducted because of alleged irregularities. The District Court, after a trial, denied relief. We affirm.
The suit was filed by six residents and voters of the county three weeks after the November 5, 1974, general election. Named as defendants in their official capacities were the county clerk, county sheriff, state's attorney, county treasurer and members of the county board. Also named, individually, were the newly elected clerk, state's attorney and county board members. The complaint alleged inaccurate tabulation of votes and "arbitrary" action by the defendant county clerk as chief election official, all stemming directly or indirectly from the malfunctioning of electronic voting devices that were being used for the first time. On notice after hearing, the District Court granted a temporary restraining order prohibiting the newly elected candidates from assuming office. This order was continued in force by agreement of the parties while the court proceeded directly to trial on the merits. The court filed a memorandum opinion and order deciding the issues in favor of defendants on December 27, 1974, and entered judgment accordingly on January 15, 1975.
The electronic voting devices were used in the election pursuant to the voting-machine requirement of state law. The system the defendant election officials chose was one that had never been used in any election, and its performance was less than satisfactory. Although it had been approved by the State Board of Elections, plaintiffs contend that it did not meet state requirements. Mechanical and other operating difficulties of various degrees of seriousness occurred at many of the 50 precincts, and there was uncontested evidence that a number of the machines failed to record votes properly. In addition, according to plaintiffs' allegations, election officials failed to provide paper ballots as a substitute, which caused the occurrence of long waiting lines; failed to exercise proper supervisory oversight in checking access to the machines and preserving the results of the election; and refused to conduct a statutory retabulation to determine the cause of these discrepancies. Plaintiffs alleged that as a result of the misfeasance of these officials, plaintiffs were deprived of their constitutionally secured rights to vote and to have their votes accurately recorded.
The District Court made a number of findings of fact, which we hold are not clearly erroneous. In particular, the court found that even giving the losing candidates credit for the votes concededly unrecorded, the election results would not have changed in any race except that of sheriff, and only there if the loser had obtained unlikely percentages. The court placed some weight on that fact in reaching its decision. The court also found that the plaintiffs failed to prove their allegation that persons were denied the right to vote because of long lines. No specific findings were made with respect to the plaintiffs' claims of unauthorized access to the machines and the failure to seal the election results, but no evidence of manipulation was introduced, and one of the defendants testified that the magnetic tapes on which the results from each machine were recorded were still available at time of trial. There was also unrebutted evidence that voters were allowed to vote a second time at some polling places where it was discovered that one of the voting devices had failed to record votes; plaintiffs claimed impropriety in those cases where the election judges were without personal knowledge as to which of two or more devices in a polling place the voter had used. The District Court denied plaintiffs' offer of proof that paper ballots, where their use was authorized by the defendant county clerk, were authorized in precincts on the basis of likely party preference.
The primary issue presented for our consideration is whether the facts, as found by the District Court or, where there were no findings, as shown by the evidence, establish a constitutional deprivation cognizable under section 1983. The starting point for analysis is a recognition that the Constitution protects the right of all qualified citizens to vote in state and federal elections, Reynolds v. Sims, 377 U.S. 533, 554, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and to have their votes counted without debasement or dilution Hadley v. Junior College District of Metropolitan Kansas City, 397 U.S. 50, 52, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970). It is no answer to the charges made here that state law could provide the relief sought. McNeese v. Board of Education, 373 U.S. 668, 670-671, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Similarly, the fact that political issues are involved does not, in itself, provide a reason for abstaining. See Smith v. Cherry, 489 F.2d 1098, 1101 (7th Cir. 1973), Cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974) (citing cases). And, the lack of intent to violate the plaintiffs' constitutional rights would not necessarily be a defense if the defendants should have known that their conduct would have that effect. Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975).
It is not every election irregularity, however, which will give rise to a constitutional claim and an action under section 1983. Mere...
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