Roe v. Mobile County Appointment Bd.

• Decision Date: 14 March 1995
• Citation: 676 So.2d 1206
• Parties: Larry ROE, et al. v. MOBILE COUNTY APPOINTMENT BOARD, et al. Larry ROE, et al. v. STATE OF ALABAMA, By and Through its Attorney General, Jeff SESSIONS, et al. 1940461.
• Court: Alabama Supreme Court

Page 1206

676 So.2d 1206

Larry ROE, et al. v.MOBILE COUNTY APPOINTMENT BOARD, et al.

Larry ROE, et al. v.STATE OF ALABAMA, By and Through its Attorney General, Jeff SESSIONS, et al.

1940461.

Supreme Court of Alabama.

March 14, 1995.

Specially Concurring Opinion Issued by

Justice CookMarch 15, 1995.

Further Dissenting Opinion Issued by

Justice Maddox March 22, 1995.

Rehearing Application Stricken March 31, 1995.

Bruce J. McKee of Hare, Wynn, Newell & Newton, Birmingham; Joe R. Whatley, Jr., and Samuel H. Heldman of Cooper, Mitch, Crawford, Kuykendall & Whatley; and Jack Drake of Drake & Pierce, Tuscaloosa, for "The Davis Class".

Joseph S. Johnston and J. Michael Druhan, Jr., of Johnston, Wilkins & Druhan, Mobile; Algert S. Agricola, Jr., of Wallace, Jordan, Ratliff, Byers & Brandt, L.L.C., Montgomery; and Albert L. Jordan, B. Glenn Murdock and Michael L. Jackson of Wallace, Jordan, Ratliff, Byers & Brandt, L.L.C., Birmingham, for Larry Roe, Perry O. Hooper, Sr., and James D. Martin.

Jeff Sessions, Attorney General, and William H. Pryor, Jr., Deputy Attorney General, for the State of Alabama, the Secretary of State, Probate Judges, Sheriffs, and Circuit Clerks.

PER CURIAM.

The United States Court of Appeals for the Eleventh Circuit asks: Does Alabama law permit or require some, but not all, absentee ballots which are sealed in envelopes signed by the voter, but not notarized or witnessed by two witnesses as required by § 17-10-7,Ala.Code 1975, to be counted to determine the results of the general election held November 8, 1994?¹ The Eleventh Circuit states the question:

"Whether absentee ballots that, on the accompanying affidavit envelope, fail to have two witnesses and lack proper notarization (for example, ballot envelopes that have only a signature or only one witness, or on which the voter and the notary have signed the ballot, but the notary fails to fill in the 'title of official') meet the requirements of Alabama Law, specificallyAlabama Code Section 17-10-7, to be legal ballots due to be counted in the November 8, 1994 general election."

Roe v. Alabama, 43 F.3d 574, 583(11th Cir.1995).

On November 8, 1994, Alabama held a general election.When the voting was complete, the preliminary unofficial results showed the race for Chief Justice of the Supreme Court to be extremely close, as was that for State Treasurer.Shortly after election day, it was discovered that, within the State of Alabama, ballots not in strict compliance with the statute had been counted in some counties and had not been counted in others.Because of the closeness of the tally, the treatment of some 2,000 uncounted absentee ballots by Alabama election officials became an issue.No one knows what the result of the election will be when these ballots are counted.It is known that ballots not legally distinguishable from these uncounted ballots have been counted.

Litigation History

The litigation involving the November 8th election began on November 11, 1994, when the Republican candidate for Chief Justice of the Supreme Court, Perry O. Hooper, Sr., and the Republican candidate for State Treasurer, James D. Martin, sought an ex parte temporary restraining order ("TRO") from Shelby County Circuit Court to secure all election records for an anticipated election contest.They named as defendants individuals who represented a class of persons composed of all Alabama election officials.² The circuit judge ordered the election officials to maintain the possession and security of all election materials, including absentee ballots and related affidavits.This order was served or sent by facsimile to voting officials throughout the state.

On November 16, 1994, voters Michael Lewis Odom and John W. Davis, each of whom had voted by absentee ballot, filed suit in the circuit court of Montgomery County, Alabama, ³ seeking a ruling that Davis's absentee ballot, which is one among some 2,000 statewide absentee ballots sealed in envelopes signed by voters but not also notarized or signed by two witnesses, should be counted.⁴The plaintiffs sought a temporary restraining order that would enjoin Secretary of State James Bennett from certifying the results of the general election without counting the ballots that substantially complied with the absentee ballot form, pursuant to Wells v. Ellis, 551 So.2d 382(Ala.1989), andWilliams v. Lide628 So.2d 531(Ala.1993).⁵

Judge Joseph D. Phelps convened a hearing on the TRO at approximately 6:00 p.m. and took testimony.He then issued a temporary restraining order from the bench giving the court an opportunity to hear, and the parties an opportunity to present, at a full hearing, evidence and law on the issue of whether or not there were absentee ballots wrongfully excluded.The next morning Judge Phelps issued a written order enjoining the Secretary of State from certifying and counting the election results until a full hearing could be held in this cause or until further order of this Court.

That afternoon, a hearing was held before Judge EugeneW. Reese. ⁶ Present at the hearing was Algert S. Agricola, Jr., representing the Republican Party, which sought and was granted leave to intervene.Subsequently, Judge Reese held that absentee ballots should be counted if they met the "substantial compliance"standard articulated in Wells v. Ellis, 551 So.2d 382(Ala.1989), andWilliams v. Lide, 628 So.2d 531(Ala.1993).His order stated:

"In accordance with Williams v. Lide, those persons counting the absentee ballots for each county shall count each ballot which contains: (1) the place of residence of the person casting the ballots; (2) the reason for the vote or voting by absentee ballots; and, (3) the signature of the voter.Absentee ballots may not be excluded from being counted because of a lack of notarization or a lack of witnesses."

"....

"Further, Defendant[Secretary of State James] Bennett is enjoined from certifying and/or compiling vote totals in all races until the recounting of the absentee ballots has been effected and until he has received all of the amended recertifications reflecting the recounting of the absentee ballots.At the time Defendant Bennett receives all of the amended recertifications, then Defendant Bennett shall certify the election results in all races."

This order was filed with the circuit clerk on November 17, 1994.

As the record reflects, the Republican Party had already obtained a TRO in Shelby County Circuit Court for election officials to maintain the possession and security of all election materials, including absentee ballots and related affidavits.The question of whether absentee ballots that met the Williams v. Lide test for substantial compliance should be counted was being litigated in the Montgomery County Circuit Court and was ripe for state appellate review.However, no appeal was taken from Judge Reese's order.Although Mr. Agricola gave oral notice of appeal in open court, he never filed a notice of appeal.Under Alabama law, an appeal will lie if filed within 14 days after an order granting a preliminary injunction.Had the Republican Party appealed from the order of the Circuit Court of Montgomery County issued in November, 1994, the entire controversy involving the November general election would have been resolved long ago.The people of Alabama would have known the outcome of the election, and the losing candidates, had they chosen to do so, could have contested the elections in the statelegislature.

Counsel for the Republican Party, Algert S. Agricola, Jr., for "strategic reasons," decided that it was in the best interests of his clients, the Republican candidates, Hooper and Martin, to seek relief in a federal forum.Those candidates, along with Larry Roe(a voter who voted for these Republican candidates), filed a complaint in the U.S. District Court for the Southern District of Alabama in Mobile.The plaintiffs were represented by Albert L. Jordan, Joseph S. Johnston, and J. Michael Druhan.Mr. Agricola subsequently joined these lawyers as counsel for the Republican candidates.The defendants were the Mobile County Appointing Board, Mobile County Probate JudgeLionel W. Noonan, the Wilcox County Appointing Board, and Wilcox County Probate JudgeJerry Boggan.⁷ The complaint sought relief pursuant to 42 U.S.C. §§ 1983,1988;28 U.S.C. §§ 2201,2202; and the All Writs Act,28 U.S.C. § 1651.United States District JudgeAlex F. Howard held an ex parte hearing and, on November 18, 1994, issued an ex parte TRO that enjoined "All Persons Who Are Designated by Alabama State Law as the Appointing Boards in Each of Alabama's Counties" to refrain from taking any action to alter any ballots or other election materials.This same relief had previously been sought by the same parties and ordered by the state circuit court in Shelby County.

On November 18, 1994, Republican voter Ralph E. Bradford, Sr., an African-American, brought suit in the U.S. District Court for the Northern District of Alabama under Section 5 of the Voting Rights Act,42 U.S.C. § 1973c, seeking to enjoin the counting of the absentee ballots that the Circuit Court of Montgomery County had ordered to be counted.⁸ Bradford's suit claimed that the state court order amounted to a change within the scope of the preclearance requirement of Section 5 of the Voting Rights Act and that the alleged change had not been precleared.Bradford was also represented by Algert S. Agricola, Jr., who represented the Republican Party in the Circuit Court of Montgomery County, and by Albert L. Jordan and B. Glenn Murdock, Agricola's co-counsel in the U.S. District Court, Southern District of Alabama.Michael Lewis Odom and John W. Davis, the plaintiffs in the case before the Circuit Court of Montgomery County, intervened in the Bradford suit.

Judge Robert B. Propst, U.S. District Judge, Northern District, issued an order the same day Bradford filed suit that temporarily restrained...