Wright v. Cripps

• Decision Date: 22 October 1968
• Docket Number: Civ. A. No. 3616-3618.
• Citation: 292 F. Supp. 294
• Parties: Jane WRIGHT, Plaintiff, v. George W. CRIPPS, State Election Commissioner, et al., Defendants. Wade RICHARDSON, Plaintiff, v. George W. CRIPPS, State Election Commissioner, et al., Defendants. Joseph HOLLON, Plaintiff, and Peter C. Townsend, James P. Harrington, John F. Wilson and the New Party, an unincorporated association, Intervening Plaintiffs, v. George W. CRIPPS, State Election Commissioner, et al., Defendants.
• Court: U.S. District Court — District of Delaware

292 F. Supp. 294

Jane WRIGHT, Plaintiff, v. George W. CRIPPS, State Election Commissioner, et al., Defendants.

Wade RICHARDSON, Plaintiff, v. George W. CRIPPS, State Election Commissioner, et al., Defendants.

Joseph HOLLON, Plaintiff, and Peter C. Townsend, James P. Harrington, John F. Wilson and the New Party, an unincorporated association, Intervening Plaintiffs, v. George W. CRIPPS, State Election Commissioner, et al., Defendants.

Civ. A. Nos. 3616-3618.

United States District Court D. Delaware.

October 22, 1968.

Harold Shaffer, Wilmington, Del., for plaintiffs.

William E. Taylor, Jr., Wilmington, Del., for intervening plaintiffs.

Peter J. Nolan, Deputy Atty. Gen., for George W. Cripps, State Election Commissioner.

Roy S. Shiels, Dover, Del., for Levy Court Com'rs of Kent County.

William H. Vaughn, Dover, Del. for Members of Dept. of Elections for Kent County.

H. Edward Maull, Georgetown, Del., for Levy Court Com'rs of Sussex County.

A. Dean Betts, Georgetown, Del., for members of the Dept. of Elections for Sussex County.

Clarence W. Taylor and E. D. Griffenberg, Wilmington, Del., for New Castle County.

Frank O'Donnell, Wilmington, Del., for members of the Dept. of Elections for New Castle County.

Before SEITZ, Circuit Judge, and STEEL and LATCHUM, District Judges.

OPINION

LATCHUM, District Judge.

These three cases were recently filed in the United States District Court for Delaware.¹ The jurisdiction of this Court is properly invoked pursuant to 28 U.S.C. Sec. 1343(3), (4), and 2284 and 42 U.S.C. Sec. 1981, 1983 & 1988.

The plaintiff in each case is alleged to be a qualified resident voter of one of the three counties of the State of Delaware.² The defendants are the State Election Commissioner, the Members of the Departments of Elections and the governing body of all three counties, all of whom, in one way or another, are alleged to have the responsibility of conducting the general election to be held in Delaware on Tuesday, November 5, 1968.

The essential allegations of the complaints are (1) that the Delaware election laws prohibit write-in voting so that the choice of candidates for whom votes may be cast in the forthcoming election will be limited to those persons whose names appear on the official ballots, (2) that plaintiffs will thereby be deprived of their constitutional right to vote for candidates of their choice, and (3) that unless this Court intervenes by its equitable powers, the defendants will not make provision for write-in voting for all offices to be filled at the general election. Claiming that no adequate remedy exists at law, plaintiffs prayed (1) that a three judge district court be convened pursuant to 28 U.S.C. Sec. 2284, (2) that the defendants be required to provide a reasonable method for permitting write-in voting for all offices for which an election is to be held and that any such votes cast be recorded and counted, (3) that 15 Del.C. Sec. 5008 (c) in so far as it prevents write-in voting be declared unconstitutional, and (4) that a preliminary injunction issue, thereafter to become permanent, enjoining the defendants from preparing, printing, or distributing ballots which fail to provide for write-in voting and from taking any other action to enforce any Delaware law which prohibits write-in voting.

This three-judge court was appointed on October 4, 1968. In view of the shortness of time between the designation of the members of this Court and the general election, the Court gave extraordinary priority to these cases, advanced them on the calendar and called a prehearing conference on October 8, 1968 to arrange procedural details for a prompt hearing on plaintiffs' application for a preliminary injunction. As a result of the agreements reached at the pre-hearing conference, orders were entered (1) consolidating the cases for hearing, (2) shortening the time for answers, (3) establishing a brief schedule and (4) fixing the date for hearing on the application for a preliminary injunction on October 17, 1968 at which time testimony would be received. Subsequently, an order was entered permitting Peter C. Townsend, James P. Harrington, John F. Wilson, Jr. and the New Party to intervene in Civil Action No. 3618 (New Castle County) as party plaintiffs but denying their motion to treat that case as a class action.³

The hearing on plaintiffs' application for a preliminary injunction proceeded on the basis of the pleadings filed and oral testimony received in open court on October 17, 1968.

As before noted, plaintiffs contend that, since the Delaware election laws on their face deny them "the privilege of voting for persons other than the candidates listed on the official ballot",⁴ those laws deny the qualified voters of Delaware the right to freely participate in the electoral process as guaranteed by the Constitution of the United States and violates the "equal protection" clause of the Fourteenth Amendment. Hence, relying upon the recent Supreme Court case of Williams v. Rhodes (Socialist Labor Party v. Rhodes), 393 U.S. 23, 89 S. Ct. 5, 21 L.Ed.2d 24 (Oct. 15, 1968), plaintiffs urge this Court to exercise its broad equitable powers to assure write-in voting and to enjoin the holding of the general election or certifying the results thereof if no provision is made for write-in voting.

We are thus confronted on the virtual eve of the general election which is set for November 5, 1968 by the Delaware Constitution, Del.C.Ann. (ART. 5, Sec. 1) and the laws and Constitution of the United States (U.S.Const. ART. 1, Sec. 4; ART. II, Sec. 1, Cl. 2; 2 U.S.C. Secs. 1 and 9; 3 U.S.C. Sec. 1) with the alternative of either denying the relief sought or of directing the issuance of a temporary injunction.

Plaintiffs and intervenors contend that to conduct the general election in accordance with "constitutional standards, the defendant must provide the opportunity for write-in voting." They rely on Socialist Labor Party v. Rhodes, and William v. Rhodes, 290 F.Supp. 983 (S.D.Ohio, 1968). These cases were appealed to the United States Supreme Court. On October 15, 1968 the Supreme Court affirmed the District Court in the Socialist Labor Party case and modified the judgment of the District Court in the Williams case so as to require the name of the American Independent Party to be placed on the ballot.

In our view a serious question exists whether the cases before the Supreme Court or the District Court of Ohio decided the important constitutional principle applicable to these cases.⁵ The seriousness of this question and the uncertainty at this stage of the manner of its resolution, is a relevant and important consideration in determining whether or not a preliminary injunction should issue. Nelson v. Miller, 373 F.2d 474 (C.A. 3, 1967), cert. den. 387 U.S. 924, 87 S.Ct. 2042, 18 L.Ed.2d 980; Wing v. Arnall, 198 F.2d 571 (Em.App. 1952).

Assuming without deciding that plaintiffs' constitutional rights may be violated as contended, the questions arise whether in the present circumstances the extraordinary equity powers of this Court should be exercised to give the relief requested for the forthcoming general election and whether the relief, if given, might not do more harm than good to the public interest, might not indeed disrupt the Delaware election altogether or might not in fact create such chaotic conditions as to make a mockery of the electoral process within the State.

We are on the threshold of the general election; it is but two weeks away. The totality of the evidence received convinces us that it is now too late to require the State to provide a write-in method for voting at the November 5th election.

Apparently, Delaware in all its history has never provided for write-in voting either by paper ballots or voting machines. We are not satisfied that the Departments of Elections are staffed in such a manner as to be able to set up a reasonable and appropriate write-in voting procedure in the short time now available. None of the more than 1000 election district officials has had any instructions in conducting an election where write-in voting is permitted and the time remaining does not appear sufficient to provide for such instruction. Moreover, the voting public at large has been given no instruction with regard to the proposed changed procedure through the use of newspaper publicity, sample ballots and training devices for such voting. Furthermore, in Delaware there are no existing guidelines, regulations or laws governing such voting or for counting such votes.

Plaintiffs suggest that perhaps a write-in vote could be provided by the use of paper ballots. But this does not appear to be feasible in the very limited time remaining before the election. To provide for additional paper ballots, there must be public bidding, and the ballots must be printed and ready for delivery before November 5, 1968. Because of the number of districts involved, some 83 or more different ballots are required for offices to be voted upon in Delaware. It would require the construction of at least 392 new ballot boxes which the Departments of Elections do not now have. It would require a set of polling booths to be made for use in 392 districts. The needed supplies of pencils and sample ballots would then have to be ordered, after public bidding. Thus, we are convinced that this Court should not order a write-in vote by the use of paper ballots because it appears to be highly impracticable and possibly physically impossible within the time remaining.

Plaintiffs' alternate suggestion is that we order write-in voting by the use of voting machines. The evidence tends to show that it might be physically possible to adjust the existing voting machines in New Castle County for write-in voting by election day, although this would require a most substantial effort on the part of the Department of Elections. The testimony was, in so far as New Castle County was concerned, that the...