Roe v. Mobile Cty. Appointing Board

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-7138, 94-7155.

Larry ROE, Perry O. Hooper, Sr., James D. Martin, Plaintiffs-
Appellees,

v.

STATE OF ALABAMA, By and Through its Attorney General James
EVANS, Defendant-Appellant,

James Bennett, Honorable Alabama Secretary of State, Defendant-
Appellant,

John W. Davis, a representative of a class of persons who have
sought to have their ballots counted in an action in the Circuit
Court of Coosa County, Alabama, Defendant-Appellant,

Mobile County Appointing Board, Lionel W. Noonan, Defendants,

Wilcox County Appointing Board, Jerry Boggan, Defendants-
Appellants,

O.P. Woodruff, Honorable Probate Judge of Lowndes County, Willie
Vaughner, Honorable Sheriff of Lowndes County, et al., Defendants,

Elsie Davis, Honorable Circuit Clerk of Lowndes County, W.A.
Kynard, Honorable Circuit Clerk of Dallas County, Mary C. Moore,
Honorable Circuit Clerk of Perry County, Curtis J. Elzie, Honorable
Circuit Clerk of Bullock County, David S. Nix, Honorable Circuit
Clerk of Barbour County, Devon Kiker, Honorable Circuit Clerk of
Russell County, Eddie D. Mallard, Honorable Circuit Clerk of Macon
County, Debra P. Hackett, Honorable Circuit Clerk of Montgomery
County, Barbara Craft, Honorable Circuit Clerk of Calhoun County,
Polly Conradi, Honorable Circuit Clerk of Jefferson County, Billy
S. Yates, Honorable Circuit Clerk of Etowah County, Earl Carter,
Honorable Circuit Clerk of Jefferson County, Bessemer Division,
Carolyn M. Smith, Honorable Circuit Clerk of Cherokee County, Jean
Browning, Honorable Circuit Clerk of St. Clair County, Samuel L.
Grice, Honorable Circuit Clerk of Talladega County, Jackie Calhoun,
Honorable Circuit Clerk of Baldwin County, Jackie B. Howard,
Honorable Circuit Clerk of Washington County, Susan F. Wilson,
Honorable Circuit Clerk of Mobile County, Donald R. Gibson,
Honorable Circuit Clerk of Choctaw County, Wayne Brunson, Honorable
Circuit Clerk of Clarke County, John Sawyer, Honorable Circuit
Clerk of Monroe County, James D. Taylor, Honorable Circuit Clerk of
Escambia County, Brenda M. Peacock, Honorable Circuit Clerk of Pike
County, Ann W. Tate, Honorable Circuit Clerk of Crenshaw County,
Bobby T. Branum, Honorable Circuit Clerk of Butler County, Jean E.
Riley, Honorable Circuit Clerk of Conecuh County, Julia L. Trant,
Honorable Circuit Clerk of Houston County, Jim Ellis, Honorable
Circuit Clerk of Coffee County, Roger A. Powell, Honorable Circuit
Clerk of Covington County, Connie Burdeshaw, Honorable Circuit
Clerk of Henry County, Willie Powell, Honorable Circuit Clerk of
Wilcox County, Veleria Thomley, Honorable Circuit Clerk of Geneva
County, Bettye B. Garrett, Honorable Circuit Clerk of Dale County,
Vinita B. Thompson, Honorable Circuit Clerk of Walker County, James
E. Renfroe, Honorable Circuit Clerk of Fayette County, Carl F.
Woods, Honorable Circuit Clerk of Lamar County, Seyaine Sealy,
Honorable Circuit Clerk of Marengo County, Jack T. Pate, Honorable
Circuit Clerk of Pickens County, Johnnie Knott, Honorable Circuit
Clerk of Greene County, Carole Smith, Honorable Circuit Clerk of
Sumter County, Betty Gayle Pate, Honorable Circuit Clerk of Hale
County, Kim S. Benefield, Honorable Circuit Clerk of Randolph
County, Frank Lucas, Honorable Circuit Clerk of Tallapoosa County,
Fred Posey, Honorable Circuit Clerk of Autauga County, Horace D.
Perry, Honorable Circuit Clerk of Cleburne County, Robert Giddens,
Honorable Circuit Clerk of Clay County, Phyllis Cumbee, Honorable
Circuit Clerk of Chambers County, Earl Sayers, Honorable Circuit
Clerk of Elmore County, Dan Reeves, Honorable Circuit Clerk of
Shelby County, Doris T. Turner, Honorable Circuit Clerk of
Tuscaloosa County, Mike Smith, Honorable Circuit Clerk of Chilton
County, Gerald D. Parker, Honorable Circuit Clerk of Coosa County,
R.L. Foster, Honorable Circuit Clerk of Bibb County, Billy D.
Harbin, Honorable Circuit Clerk of Madison County, Jimmy Lindsey,
Honorable Circuit Clerk of DeKalb County, Jean Albert Scott,
Honorable Circuit Clerk of Marshall County, Charles Page, Jr.,
Honorable Circuit Clerk of Limestone County, Leonard V. Griggs,
Honorable Circuit Clerk of Jackson County, J.T. Newton, Honorable
Circuit Clerk of Franklin County, James O. Garrard, Honorable
Circuit Clerk of Marion County, W.F. Bailey, Honorable Circuit
Clerk of Winston County, Robert G. Bates, Honorable Circuit Clerk
of Cullman County, Michael E. Criswell, Honorable Circuit Clerk of
Blount County, C. Phillip Bowling, Honorable Circuit Clerk of
Colbert County, Kenneth C. Austin, Honorable Circuit Clerk of
Lauderdale County, W. Larry Smith, Honorable Circuit Clerk of
Lawrence County, Cleo D. Teague, Honorable Circuit Clerk of Morgan
County, Defendants-Appellants.

Jan. 4, 1995.

Appeals from the United States District Court for the Southern
District of Alabama. (No. CV 94-885-AH-S), Alex T. Howard, Jr.,
Judge.

Before TJOFLAT, Chief Judge, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

In Alabama, a person voting by absentee ballot must execute an

"affidavit" in the presence of a " "notary public or other officer

authorized to acknowledge oaths or two witnesses 18 years of age or
 1
older.' " Ala.Code § 17-10-7 (1980). Section 17-10-9 of the code

prescribes the physical form of the ballot and the affidavit. The

affidavit form must be printed on an envelope. A second, smaller

envelope, which does not identify the absentee voter and contains

the voter's completed ballot, must be sealed inside the affidavit

envelope, and that envelope must then be mailed to the appropriate

county election official. See Ala.Code § 17-10-9 (1980).

The affidavit envelopes are held unopened until noon on

election day. Beginning at noon, the "absentee election manager"

delivers the envelopes to the "election officials" for counting.

They, in turn, with poll watchers present, call the name of each

voter casting an absentee ballot, "open each affidavit envelope,

review the affidavit to certify that such voter is entitled to vote

and deposit the plain envelope containing the absentee ballot into

a sealed ballot box." Ala.Code § 17-10-10 (1980). These ballots

are then "counted and otherwise handled in all respects as if the

said absentee voter were present and voting in person." Id.2

1
The contents of this affidavit are prescribed by § 17-10-7
of the Alabama Code, the full text of which appears in the
appendix to this opinion.
2
The Secretary of State's Election Handbook for 1994
interpreted these requirements as follows:

The task of absentee poll workers on election day
falls into two phases. Beginning at noon (or later)
they are to open the affidavit envelopes, review the
affidavits, and deposit the plain envelopes in a sealed
ballot box.

If, upon examination, the affidavit is not
properly witnessed or notarized, is not signed by the
voter, or does not otherwise contain sufficient
information to determine that the person is a qualified
elector and is entitled to vote absentee, the ballot
should not be counted [Attorney General's opinion 80-
 Alabama law also provides a method of contesting statewide

elections such as those involved in this case. Section 17-15-50 of

the Alabama Code provides that any elector may contest certain

statewide elections by filing a written statement and a bond with

the state legislature within ten days after the Speaker of the

House of Representatives has opened the election returns. Ala.Code

§ 17-15-50 (1940).3 The legislature is then required to elect a

commission of three senators and five representatives to take

testimony submitted in the contest. Id. § 17-15-53. The

commission is provided with subpoena and contempt powers. Id. §§

17-15-55, 17-15-57. "[T]he final judgment of the joint convention

[of the House and Senate] upon the contest shall [be] effective as

00551]. Otherwise, the ballot should be deposited into
a sealed ballot box.

Alabama Election Handbook 257 (6th ed. 1994) (citation in
original) (emphasis added). The Attorney General's Opinion
cited in the election handbook states:

If, upon examination, the affidavit obviously does not
comply with Alabama law, that is, if it is not properly
witnessed or notarized, is not signed by the voter, or
does not otherwise contain sufficient information to
determine that the person is a qualified elector and is
entitled to vote absentee, the ballot should not be
counted.

80 Op. Att'y Gen. 551 (1980). The Secretary of State, James
Bennett, testified in the proceedings below that it was "his
understanding that ballots that are not witnessed by two
people over the age of 18 or notarized [were] not counted
prior to the Montgomery County [Circuit] Court case," Odom
v. Bennett, No. 94-2434-R (Montgomery County Cir.Ct., filed
Nov. 16, 1994).
3
The statewide offices for which elections are contestable
in the state legislature are Governor, Secretary of State,
Auditor, Treasurer, Attorney General, Commissioner of Agriculture
and Industries, Justices of the Supreme Court, and Judges of the
Court of Appeals. Ala.Code § 17-15-50.
a judgment and shall have the force and effect of vesting the title

to the office ... in the person in whose favor the judgment may be

rendered." Id. § 17-15-52.4 Thus, the legislature is the final

4
The Alabama legislature has ensured that the decision of
the joint convention of the House and Senate shall be conclusive
by providing that no judge or court shall have jurisdiction to
decide election contests involving the specified statewide
offices. Section 17-15-6 provides:

No jurisdiction exists in or shall be exercised by
any judge, court or officer exercising chancery powers
to entertain any proceeding for ascertaining the
legality, conduct or results of any election, except so
far as authority to do so shall be specially and
specifically enumerated and set down by statute; and
any injunction, process or order from any judge, court
or officer in the exercise of chancery powers, whereby
the results of any election are sought to be inquired
into, questioned or affected ... save as may be
specially and specifically enumerated and set down by
statute, shall be null and void and shall not be
enforced by any officer or obeyed by any officer or
obeyed by any person....

Ala.Code § 17-15-6. This provision is especially
significant in light of the common law of Alabama:

[E]lection contests exist only by virtue of statutory
enactment and such statutes are to be strictly
construed. [Groom v. Taylor, 235 Ala. 247, 178 So. 33
(1938) ]. "The right to contest an election is not a
common-law right (Cosby v. Moore, 259 Ala. 41, 65 So.2d
178 [ (1953) ] ). Elections belong to the political
branch of the government, and, in absence of special
constitutional or statutory provisions, are beyond the
control of judicial power." 29 C.J.S. Elections § 246.
Further at § 247 the rule is stated that statutes
providing for election contests "should be strictly
construed or observed as to those provisions for
inaugurating the contest and which are necessary to
jurisdiction [citing Walker v. Junior, 247 Ala. 342, 24
So.2d 431 (1945); Groom, 235 Ala. 247, 178 So. 33]....
An election contest being purely statutory, the courts
are limited in their investigation to such subjects as
are specified in the statutes. The remedy is not to be
extended to include cases not within the language of
the statute; and the right of contest is not to be
inferred from doubtful provisions."

Longshore v. City of Homewood, 277 Ala. 444, 171 So.2d 453,
arbiter of statewide office contests.

On November 8, 1994, Alabama held a general election for

several statewide offices, including the offices of Chief Justice

of the Supreme Court of Alabama and Treasurer of the State of

Alabama. Between 1000 and 2000 absentee voters failed to properly

complete their affidavits, either by failing to have their

signatures notarized or by failing to have them witnessed by two

people. Pursuant to the statutory mandate of section 17-10-10, and

the statewide practice prior to the general election, these ballots

were not counted: they were not removed from their affidavit

envelopes and, therefore, were not placed in the ballot box.5

The elections for Chief Justice and Treasurer, especially the

former office, were quite close. Informal estimates place the two

candidates for Chief Justice a mere 200 to 300 votes apart without

counting the contested absentee ballots. Following the general

election, two individuals who voted absentee, on behalf of

themselves and similarly situated absentee voters, filed a

complaint in the Circuit Court for Montgomery County, Alabama,

seeking an order that the contested absentee ballots be counted.

Odom v. Bennett, No. 94-2434-R (Montgomery County Cir.Ct., filed

Nov. 16, 1994). On November 17, 1994, the circuit court entered a

"Temporary Restraining Order" requiring that "those persons

counting the absentee ballots for each county shall count each

455 (1965).
5
We refer to any ballot that was accompanied by an
unnotarized or unwitnessed affidavit—whether or not the ballot
has been removed from its affidavit envelope—as a "contested
absentee ballot."
ballot which contains: (1) the place of residence of the person

casting the ballot; (2) the reason for ... voting by absentee

ballot; 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." (Emphasis added). The

circuit court also ordered the Secretary of State to refrain from

certifying the election until the vote totals, including the

contested absentee votes, are forwarded to him; after receiving

these revised totals, the Secretary must certify the election.6

Following the entry of this temporary restraining order, the

election officials began counting the contested absentee ballots.7

On December 5, 1994, the United States District Court for the

6
On December 9, 1994, the circuit court entered a
preliminary injunction incorporating its "Temporary Restraining
Order" and further elaborating on the reasons for the court's
conclusion that the contested absentee ballots were required to
be counted under Alabama law. The circuit court felt that Wells
v. Ellis, 551 So.2d 382, 383 (Ala.1989), and Williams v. Lide,
628 So.2d 531, 536 (Ala.1993), required that the contested
absentee ballots be counted because the affidavit envelopes
accompanying them were in "substantial compliance" with § 17-10-
7. The circuit court determined that it had the authority to
enter the injunction despite the jurisdictional bar of § 17-15-6,
quoted supra note 4, because the circuit court was exercising its
power for the "limited purpose of ordering public officials to
comply with legal principles." Odom v. Bennett (citing Sears v.
Carson, 551 So.2d 1054, 1056 (Ala.1989)).
7
The parties indicated at oral argument before this panel on
December 29 that 30 counties have removed the contested absentee
ballots from their corresponding affidavit envelopes, placed the
ballots in the ballot pool, recounted the votes, and forwarded
the revised results to the Secretary. In the remaining 37
counties, the contested absentee ballots are in various
conditions: some remain in their unopened affidavit envelopes;
some have been removed from their affidavit envelopes but remain
unopened and uncounted; and some have been removed from their
affidavit envelopes, opened and counted. As to the ballots in
the latter two groups, each ballot envelope, or ballot, has been
placed with the affidavit envelope that contained it.
Southern District of Alabama, in a suit brought under 42 U.S.C. §

1983 (1988)8 by Larry Roe, a voter suing on behalf of himself and

others similarly situated, Perry O. Hooper, Sr., the Republican

candidate for Chief Justice, and James D. Martin, the Republican

candidate for Treasurer, entered a preliminary injunction against

the Secretary and the election officials of Alabama's sixty-seven

counties precluding them from complying with the circuit court's

order.9 The district court, in its memorandum order granting the

preliminary injunction, found from the evidence the parties

presented that "the past practice of the Alabama election officials

prior to [the] general election has been to refrain from counting

any absentee ballot that did not include notarization or the

signatures of two qualified witnesses," that "the past practice of

the Secretary of [the] State of Alabama has been to certify Alabama

election results on the basis of vote counts that included absentee

votes cast only by those voters who included affidavits with either

notarization or the signatures of two qualified witnesses," and

that the Montgomery County Circuit Court's order changed this past

practice. The district court then concluded that, in obeying the

circuit court's order, the defendant election officials were

8
"Section 1983 is the federal statute under which a citizen
may bring suit in a federal court, alleging that persons acting
under color of state law have deprived him or her of rights
secured by the Constitution of the United States." Curry v.
Baker, 802 F.2d 1302, 1305 (11th Cir.), cert. denied, 479 U.S.
1023, 107 S.Ct. 1262, 93 L.Ed.2d 819 (1986). The plaintiffs also
sought relief under 42 U.S.C. § 1974 (1988) and the Voting Rights
Act, 42 U.S.C. § 1973 (1988). The plaintiffs' claims for relief
under those statutes are not at issue in this appeal.
9
John Davis is also involved in the case as a defendant,
representing a group of absentee voters who seek to have their
contested absentee ballots counted.
violating the Fourteenth Amendment. The district court, therefore,

ordered that the contested ballots and other election materials be

preserved and protected; that the Secretary refrain from

certifying any election results based on a vote count that included

the contested absentee ballots; that Alabama's sixty-seven county

election officials forward vote totals to the Secretary without

counting the contested absentee ballots; and that the Secretary,

upon receipt of those vote totals from the county election

officials, certify the election results.

The defendants appeal,10 raising several issues. They contend

that: (1) the district court lacked subject matter jurisdiction to

entertain the plaintiffs' case; (2) the plaintiffs failed to state

a claim for relief under the United States Constitution; and (3)

assuming that the district court had subject matter jurisdiction

and that the plaintiffs stated a constitutional claim, the district

court should have abstained from exercising its jurisdiction. We

address each issue in turn.

I.

Appellants claim that the district court did not have subject

matter jurisdiction under the Rooker-Feldman doctrine. According

to the Rooker-Feldman doctrine, "a United States District Court has

10
If the district court's order is treated as a preliminary
injunction, we have jurisdiction to review the order under 28
U.S.C. § 1292(a)(1) (1988). If the order is treated as a
permanent injunction, our jurisdiction lies under 28 U.S.C. §
1291 (1988). Arguably, the district court's order is a permanent
injunction. The district court found the material facts, which
are not in dispute, on the liability issues, and a further
evidentiary hearing regarding those facts appears to be
unnecessary; the district court was presented with pure
questions of law regarding the liability issues.
no authority to review final judgments of a state court in judicial

proceedings." District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 482, 103 S.Ct. 1303, 1315, 75 L.Ed.2d 206 (1983).

Appellants contend that the district court lacked subject matter

jurisdiction to entertain the plaintiffs' claims because those

claims, in effect, require the district court to review the final

judgment of the Montgomery County Circuit Court. We reject this

argument for two reasons. First, the plaintiffs in this case are

not, by the admission of all parties, parties to the circuit court

action. The Rooker-Feldman doctrine does not apply to such

circumstances. See Johnson v. De Grandy, --- U.S. ----, ----, 114

S.Ct. 2647, 2654, 129 L.Ed.2d 775 (1994). Second, because the

plaintiffs are not parties to the circuit court action, the

plaintiffs had no opportunity to raise their constitutional claims

in the circuit court and their claims, therefore, were not

considered by the circuit court. See Wood v. Orange County, 715

F.2d 1543, 1547 (11th Cir.1983) ("[T]he Rooker bar can only apply

to issues that the plaintiff had a reasonable opportunity to

raise."), cert. denied, 467 U.S. 1210, 104 S.Ct. 2398, 81 L.Ed.2d

355 (1984).11
II.

Appellants contend that the plaintiffs failed to allege, or

to demonstrate, the violation of a right "secured by the

Constitution" as required under section 1983. Baker v. McCollan,

11
In its December 9, 1994, memorandum order, see supra note
6, the Montgomery County Circuit Court identified the issues
before it as: "(1) whether the Court had jurisdiction to
entertain the proceeding and (2) whether the ballots in question
were legally cast and due to be counted." Odom v. Bennett.
443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979)

(quoting 42 U.S.C. § 1983). We disagree. In this case, Roe,

Hooper, and Martin allege that "[t]he actions of the Defendants and

the Defendant Class ... would constitute a retroactive validation

of a potentially controlling number of votes in the elections for

Chief Justice and Treasurer" that "would result in fundamental

unfairness and would violate plaintiffs' right to due process of

law" in violation of the Fourteenth Amendment, and that this

violation of "the plaintiffs' rights to vote and ... have their

votes properly and honestly counted" constitutes a violation of the

First and Fourteenth Amendments.

The right of suffrage is "a fundamental political right,

because preservative of all rights." Yick Wo v. Hopkins, 118 U.S.

356, 370, 6 S.Ct. 1064, 1071, 30 L.Ed. 220 (1886). "[T]he right of

suffrage can be denied by a debasement or dilution of the weight of

a citizen's vote just as effectively as by wholly prohibiting the

free exercise of the franchise." Reynolds v. Sims, 377 U.S. 533,

554, 84 S.Ct. 1362, 1377, 12 L.Ed.2d 506 (1964). Not every state

election dispute, however, implicates the Due Process Clause of the

Fourteenth Amendment and thus leads to possible federal court

intervention. Generally, federal courts do not involve themselves

in " "garden variety' election disputes." Curry, 802 F.2d at 1315

(quoting Welch v. McKenzie, 765 F.2d 1311, 1317, vacated on other

grounds and remanded, 777 F.2d 191 (5th Cir.1985)). If, however,

"the election process itself reaches the point of patent and

fundamental unfairness, a violation of the due process clause may

be indicated and relief under § 1983 therefore in order. Such a
situation must go well beyond the ordinary dispute over the

counting and marking of ballots." Id. (quoting Duncan v.

Poythress, 657 F.2d 691, 703 (5th Cir. Unit B 1981), cert. denied,

459 U.S. 1012, 103 S.Ct. 368, 74 L.Ed.2d 504 (1982)). We address,

then, whether the plaintiffs have demonstrated fundamental

unfairness in the November 8 election. We conclude that they have.

The plaintiffs acknowledge that the State of Alabama is free

to place reasonable time, place, and manner restrictions on voting,

and that Alabama can require that voters be qualified electors.

See generally Burdick v. Takushi, --- U.S. ----, ----, 112 S.Ct.

2059, 2063, 119 L.Ed.2d 245 (1992) ("Common sense, as well as

constitutional law, compels the conclusion that government must

play an active role in structuring elections...."). They argue,

however, that section 17-10-7 of the Alabama Election Code clearly

requires that affidavits accompanying absentee ballots be either

notarized or signed by two witnesses; that the statewide practice

in Alabama prior to the November 8 general election was to exclude

absentee ballots that did not comply with this rule; and that the

circuit court's order requiring the state's election officials to

perform the ministerial act of counting the contested absentee

ballots,12 if permitted to stand, will constitute a retroactive
change in the election laws that will effectively "stuff the ballot

box,"13 implicating fundamental fairness issues. Cf. United States

12
The counting of ballots is a "ministerial act" under
Alabama law. Cosby v. Moore, 259 Ala. 41, 65 So.2d 178, 181
(1953).
13
According to the record before the district court, in one
Alabama county, Greene County, nearly 33% of the votes cast were
from absentee voters. Secretary Bennett testified that he has
v. Saylor, 322 U.S. 385, 389, 64 S.Ct. 1101, 1103, 88 L.Ed. 1341

(1944).

We agree that failing to exclude the contested absentee

ballots will constitute a post-election departure from previous

practice in Alabama. See Griffin v. Burns, 570 F.2d 1065, 1075

(1st Cir.1978). This departure would have two effects that

implicate fundamental fairness and the propriety of the two

elections at issue. First, counting ballots that were not

previously counted would dilute the votes of those voters who met

the requirements of section 17-10-7 as well as those voters who

actually went to the polls on election day. Second, the change in

the rules after the election would have the effect of

disenfranchising those who would have voted but for the

inconvenience imposed by the notarization/witness requirement.

See, e.g., Brown v. O'Brien, 469 F.2d 563, 569 (D.C.Cir.), vacated

as moot, 409 U.S. 816, 93 S.Ct. 67, 34 L.Ed.2d 72 (1972) ("If the

party had adopted [the rule change] prior to the ... primary

election, the candidates might have campaigned in a different

manner.... Voters might have cast their ballots for a different

candidate; and the State of California might have enacted an

alternative delegate selection scheme...." (footnote omitted)).

Appellants point out that "[a] judicial construction of a

statute is an authoritative statement of what the statute meant

before as well as after the decision of the case giving rise to

"had concerns about absentee voter fraud for years" and that, if
absentee ballots exceed 6% to 7% of the total votes cast, "bells
and sirens ought to go off. There cannot be that many sick,
infirm or out-of-county voters on one day." Odom v. Bennett.
that construction." Rivers v. Roadway Express, Inc., --- U.S. ----

, ----, 114 S.Ct. 1510, 1519, 128 L.Ed.2d 274 (1994). Thus,

appellants urge, the Montgomery County Circuit Court's ruling

merely articulated in a clearer way what the law has always been in

Alabama. This argument, however, ignores the fact that section 17-

10-7, on its face, requires notarization or witnessing, that the

Secretary and the Attorney General have acknowledged the

requirement and that, as the district court found, the practice of

the election officials throughout the state has been to exclude

absentee ballots that did not meet this requirement. We consider

it unreasonable to expect average voters and candidates to question

the Secretary's, the Attorney General's, and the election

officials' interpretation and application of the statute,

especially in light of its plain language. See Griffin, 570 F.2d

at 1076.

Appellants also argue that this case presents a case of

enfranchisement of those who cast the contested absentee ballots,

rather than a disenfranchisement of qualified voters, and thus does

not rise to the level of a constitutional violation. They rely

heavily on Partido Nuevo Progresista v. Barreto Perez, 639 F.2d 825

(1st Cir.1980), cert. denied, 451 U.S. 985, 101 S.Ct. 2318, 68

L.Ed.2d 842 (1981). In that case, the plaintiffs challenged the

tallying of ballots in a local election in Puerto Rico. A section

of the Electoral Law of Puerto Rico provided that, if a handwritten

ballot was used in an election, the Electoral Commission had to

guarantee that the elector was qualified to vote by making a mark
in a specific place on the ballot.14 The section stated that if the

mark was not made in the correct space, the ballot would be null

and void. After the election, the Administrator of the Election

Commission and the Commonwealth's Electoral Review Board held that

several ballots were invalid because they were not marked

correctly. The Supreme Court of Puerto Rico reversed, holding

that, despite the section's clear language, the ballots should be

counted. The Barreto Perez plaintiffs, citing Griffin, alleged

that the Puerto Rico Supreme Court's ruling constituted a change in

the method of counting ballots after the election and, therefore,

violated the Constitution. Id. at 826.

The First Circuit did not agree for two reasons. First, the

court found it significant that "this case does not involve a state

court order that disenfranchises voters; rather it involves a ...

decision that enfranchises them—plaintiffs claim that votes were

"diluted' by the votes of others, not that they themselves were

prevented from voting." Id. at 828 (emphasis in original).

Second, the court found that "no party or person is likely to have

acted to their detriment by relying upon the invalidity of [the

contested] ballots...." Id. Accordingly, the First Circuit found

no constitutional injury. We need not address the court's apparent

holding that dilution is not a constitutional injury because the

facts of this case differ markedly from those of Barreto Perez. We

believe that, had the candidates and citizens of Alabama known that

something less than the signature of two witnesses or a notary

14
It is not clear whether the Electoral Commission itself,
or a representative of the Commission at the polling place, was
required to mark the ballots.
attesting to the signature of absentee voters would suffice,

campaign strategies would have taken this into account and

supporters of Hooper and Martin who did not vote would have voted

absentee.15

III.

The appellants contend that, since this case involves "a

sensitive area of state policy," the district court should have

stayed its hand and required the plaintiffs to invoke their state

remedies—either an election contest in the legislature or a

judicial declaration from the Supreme Court of Alabama. See

Railroad Comm'n v. Pullman, 312 U.S. 496, 501-02, 61 S.Ct. 643,

645-46, 85 L.Ed. 971 (1941).16 We agree that federal courts should

refrain from holding a state election law unconstitutional when a

reasonable alternative course of action exists. See Burdick v.

Takushi, 846 F.2d 587, 589 (9th Cir.1988). We are, therefore,

reluctant to reach a final decision in this case while the proper

application of the Alabama Election Code remains muddled.

There are two ways to show deference to the state

decisionmakers in this matter: we can leave the plaintiffs to

their state remedies; or we can certify a question to the Supreme

Court of Alabama, retain jurisdiction, and await that court's

15
We take judicial notice of the fact that reducing the
inconvenience of voting absentee—by eliminating the necessity of
obtaining the signature of a notary or two witnesses—would
increase the number of absentee ballots.
16
The defendants contend that the plaintiffs could obtain a
judicial declaration from the Supreme Court of Alabama by seeking
and obtaining intervention in Odom v. Bennett, the Montgomery
County Circuit Court case, and then, if they do not prevail,
appealing.
answer. We choose the latter form of abstention; leaving the

plaintiffs to their state remedies is neither workable nor

appropriate in this case.

Because Alabama has barred its courts from entertaining

statewide election contests, see Ala.Code § 17-15-6 (quoted supra

note 4), there is only one state remedy in this case: a contest in

the legislature. The legislature, however, is not an adequate or

proper forum for the resolution of the federal constitutional

issues presented. Moreover, even if the plaintiffs were to

intervene successfully in the Montgomery County Circuit Court

proceeding, Odom v. Bennett, and the Alabama appellate courts17 were

to find—despite the clear jurisdictional bar—that the circuit court

had the power to hear the plaintiffs' constitutional claims, the

urgency of this matter counsels against such a course of action.

The unnecessary delay that would result were we to leave the

plaintiffs to their state court remedy would be particularly

insidious: it would extend the time that the two offices at issue

remain in limbo, hindering those offices in the handling of state

affairs. Time is, therefore, of the essence. Cf. Harman v.

Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, 1183, 14 L.Ed.2d 50

(1965) (holding that a district court did not abuse its discretion

in refusing to abstain "[g]iven the importance and immediacy of the

problem[ ] and the delay inherent in referring questions of state

law to state tribunals"); Badham v. United States Dist. Court, 721

F.2d 1170, 1173 (9th Cir.1983) ("Although we are mindful of the

important principles of federalism implicit in the doctrine of

17
The Alabama Court of Appeals and the Supreme Court.
abstention, these principles may be outweighed in an individual

case by the countervailing interest in ensuring each citizen's

federal right to vote.").

By certifying the question to the Supreme Court of Alabama, we

can accommodate Alabama's interest in having its high court settle

the question whether a notarization or the signatures of two

witnesses is required before an absentee ballot may be counted.

Certification will achieve the proper balance between the interest

of federalism and timely resolution of this matter. We therefore

issue the following certification:

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT TO THE SUPREME COURT OF ALABAMA PURSUANT TO RULE

18 OF THE ALABAMA RULES OF APPELLATE PROCEDURE.

TO THE SUPREME COURT OF ALABAMA AND ITS HONORABLE JUSTICES:

It appears to the United States Court of Appeals for the

Eleventh Circuit that this case involves a question of Alabama

state law that is determinative of the cause, but unanswered by

controlling precedent of the Supreme Court of Alabama or any

Alabama Court of Appeals. We therefore certify this question for

resolution by the highest court of Alabama:

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,
SPECIFICALLY ALABAMA CODE SECTION 17-10-7, TO BE LEGAL BALLOTS
DUE TO BE COUNTED IN THE NOVEMBER 8, 1994 GENERAL ELECTION.

While we await the Supreme Court's answer, to preserve the

status quo with respect to the two elections at issue and, at the

same time, allow the processing of the uncontested elections to
proceed, we modify and clarify the district court's injunction as

follows: (1) We affirm the portion of the district court's

injunction requiring the defendants to preserve all election

materials. We clarify this portion of the injunction by stressing

that contested absentee ballots are not to be opened, altered, or

tampered with in any manner. (2) We affirm the portion of the

district court's injunction enjoining the Secretary of the State of

Alabama from certifying any election results in the general

election of November 8, 1994 that have not been purged of known or

identifiable contested absentee ballots. Once the election results

have been purged of any contested absentee ballots, the Secretary

may certify the results of elections for offices that are not

contested in this case, to wit: all the elections except those for

Chief Justice and Treasurer. (3) With respect to those two

offices, we vacate the provisions of the district court's

injunction requiring that county election officials forward purged

election results to the Secretary and requiring the Secretary to

certify the elections based on those forwarded results. We order

the Secretary not to certify the elections for the offices of Chief

Justice and Treasurer.

QUESTION CERTIFIED; INJUNCTION AFFIRMED AS MODIFIED AND

CLARIFIED pending further order of this court.

EDMONDSON, Circuit Judge, dissenting:

I know of no other case involving disputed ballots in which a

federal court has intervened in a state election where the

plaintiff failed to show, in fact, either:
1. that plaintiff had "lost" the election but would have won the
election if lawful votes only had been counted (that is, the
alleged constitutional error changed the election result); or

2. that it was impossible ever to know that his opponent (the
apparent winner) had truly won the election because of the
nature of the voting irregularities (that is, the alleged
constitutional error placed in everlasting doubt what was the
true result of the election).

Nothing is known in this case about whether the alleged

illegalities have affected or will affect the outcome of the

pertinent elections. Yet today we plow into Alabama's election

process and uphold a preliminary injunction that, in effect,

overrules a pre-existing state court order which had directed that

the contested votes be counted. And, instead, the federal courts

(basically, stopping short the state election processes) order that

the contested votes be not counted at all. This high level of

federal activity seems unnecessary and, therefore, improper. So,

I conclude that the district court abused its discretion.

For all we or anyone else knows, if the contested absentee

votes in this case were counted, plaintiffs' candidates would win

the elections, even taking those contested votes into account. In

such event, none of the plaintiffs would be aggrieved by the

decision to count absentee ballots not strictly complying with the

state's statute. I believe everyone involved in this election

dispute would understand that a court's allowing the simple adding

up of which of the contested absentee votes went to which candidate

would not be the same thing as saying that the contested votes will

have value ultimately, as a matter of law, for deciding the final,

official outcome of the elections. But instead of letting the

votes be counted as an Alabama court has directed and then seeing
if there is even a controversy about the election's outcome, the

federal courts have jumped into the process and blocked the very

step that might show there is no big problem to be dealt with by

federal judges.1 I would not interfere with the counting of the

contested ballots, although I agree that all the ballots and

envelopes and other election materials pertinent to the contested

ballots should be maintained and protected so that additional

judicial review, if needed, would be convenient and possible.

This difference with my colleagues is more than just academic

bickering about technicalities. Federal courts are not the bosses

in state election disputes unless extraordinary circumstances

affecting the integrity of the state's election process are clearly

present in a high degree. This well-settled principle—that federal

courts interfere in state elections as a last resort—is basic to

federalism, and we should take it to heart.

Principles of federalism limit the power of federal
courts to intervene in state elections, however. The
Constitution leaves "the conduct of state elections to the
states." Gamza v. Aguirre, 619 F.2d 449, 453 (5th Cir.1980).
We have cautioned before against excessive entanglement of
federal courts in state elections. "The very nature of the
federal union contemplates separate functions for the states.
If every state election irregularity were considered a federal
constitutional deprivation, federal courts would adjudicate
every state election dispute...." Id. Burton v. State of
Georgia, 953 F.2d 1266, 1268 (11th Cir.1992).

As I understand the law, "[o]nly in extraordinary

circumstances will a challenge to a state election rise to the

1
A showing that the state irregularity affects the outcome
of the election has jurisprudential importance either because the
controversy is not fully ripe for adjudication of the merits
until the outcome is shown to be, in fact, in doubt or because in
a case like this, a plaintiff just cannot show a violation of
substantive due process if he cannot show that what the state did
or did not do made a real difference in the election.
level of a constitutional deprivation." Curry v. Baker, 802 F.2d

1302, 1314 (11th Cir.1986). To my way of thinking, the federal

courts have acted too aggressively too soon and have, as a result,

become entangled in Alabama's state election too much. At a time

when we do not know whether the contested votes, in fact, will make

any difference at all in the outcome of the elections, it is hard

for me to say that I am now facing the kind of extraordinary

circumstances—patent and fundamental unfairness tied to concrete

harm—that will amount to a constitutional deprivation and that will
justify immediate significant federal interference in the election

processes of a state.

I would dissolve the district court's injunction except to the

extent that the injunction requires all election materials in the

defendants' control to be preserved and protected in a way (for

example, keeping questionable individual absentee ballots and their

envelopes together) that a fair review of the election remains, in

fact, possible and convenient.2 This limited relief should be

2
I also would certify no question now from this court to the
Supreme Court of Alabama, although I agree that we need to know
what the Alabama law is before we decide whether the Alabama law
violates the Federal Constitution. This case is before us on an
appeal of a preliminary injunction. (The parties in district
court were not notified that the preliminary injunction hearing
would also be the trial on the merits; the preliminary
proceedings were rushed; it is not plain that the district court
has heard all the evidence on such significant points as what was
the custom for receiving and counting absentee ballots in the
past.) By its nature, a preliminary injunction decides nothing
finally. And, as a result, an appellate court reviewing the
grant of the injunction is also not rendering its final judgment
on the merits of the underlying case. The State of Alabama has
been good enough to create a procedure by which federal courts
can ask for guidance on matters of Alabama law. But Alabama's
rule provides that the questions which federal courts ask
Alabama's Supreme Court to answer must be questions "which are
determinative of said cause," by which I understand us to be
enough to protect plaintiffs until the Alabama law becomes clear,

assuming that there is a live controversy about this election after

the contested ballots are counted.3
Some of the ideas expressed in today's court opinion are, to

me, doubtful: such as the theory that Alabama's legislature has

the power in election contests to act contrary to the law of

Alabama as declared by Alabama's highest court; the conclusion

advised to send no questions that would not lead directly to the
final resolution of the cause of action in federal court. Given
the procedural posture of this case, I worry that certification
from this court is probably an unauthorized imposition on the
Alabama Supreme Court. If I were not dissenting otherwise, I
would raise no question about the time and manner of
certification. But I worry about the precedent we are setting.
I do not want to abuse the certification process and, perhaps,
wear out our welcome when we ask for help from state supreme
courts.

The merits of this case remain to be decided finally in
the district court. That court can (and I think should)
certify the state law question speedily to the Alabama
Supreme Court. Coming from the district court, I think it
can be more accurately said that the certified question can
be "determinative of said cause."
3
This kind of injunction is far more narrow and far less
intrusive on the state's affairs than the one granted by the
district court or the modified injunction issued by this court.
Depending on what the law of Alabama is (once it is definitively
set out by Alabama's high court, by certification from the
district court or otherwise), plaintiffs' likelihood of success
on federal constitutional grounds could become pretty good. So,
today I can say plaintiffs have a fair chance of success.
Jumbling, in the meantime, of the contested absentee ballots with
other ballots in such a way that evidence would be lost and that
would obstruct further review would doubtlessly result in
irreparable harm and would be contrary to the public interest in
honest elections. (This concern to ensure against the risk of
vanished evidence also explains why this case is ripe for some
adjudication now even when the state election process has not
been concluded.) Given the serious nature of the harm and the
importance of the public interest, some injunctive relief seems
justified. I am confident that the parties and the district
court could work out the details of how best to preserve the
evidence and still not burden defendants too much.
that an election contest before the legislative commission is

inadequate to determine the legal issues raised by plaintiffs; the

thought that only absolute identity of parties in the state court

action and federal court action (without regard to state-case

parties possibly under the control of or in privity with

federal-case parties) will trigger a Rooker-Feldman bar in federal

court; and the perception that a federal court order that

countermands a pre-existing Alabama court order maintains the

status quo in Alabama.

Much of my objection to what this court says today, however,

is not that I am sure that what it has said is wrong, but that,

given the facts actually before us at this time, I am pretty sure

it is unnecessary to decide or to speak about many of these

sensitive issues. I see no need for a lot of immediate federal

court action yet. I would wait a bit longer and let Alabama's

election process finish (or come closer to finishing) before the

federal courts cut in. I do know that bad facts can result in bad

law,4 and here the facts had they been allowed to develop fully

might have been such that no law (good or bad) would have to be

made.

4
Considering how much honest elections matter and
considering the nature of the statewide offices in question, this
case may also be seen as one in which the outcome is of unusual
importance and immediate interest. "Great cases like hard cases
make bad law. For great cases are called great, not by reason of
their real importance in shaping the law of the future, but
because of some accident of immediate overwhelming interest which
appeals to the feelings and distorts the judgment. These
immediate interests exercise a kind of hydraulic pressure which
makes what previously was clear seem doubtful, and before which
even well settled principles of law will bend." Northern
Securities Co. v. U.S., 193 U.S. 197, 400-401, 24 S.Ct. 436, 486-
87, 48 L.Ed. 679 (1904) (Holmes, J., dissenting).