Voting Integrity Project, Inc. v. Bomer

REVISED, JANUARY 28, 2000

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

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No. 99-20757
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VOTING INTEGRITY PROJECT, INC., ET AL,

Plaintiffs-Appellants,

VERSUS

ELTON BOMER,

Defendant-Appellee.

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Appeal from the United States District Court
For the Southern District of Texas
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January 17, 2000

Before DAVIS, JONES, and MAGILL1, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs, Voting Integrity Project, Inc. and several

individual Texas registered voters (“VIP”), appeal the district

court’s order denying their motion for summary judgment and

granting defendant’s cross motion for summary judgment. VIP

contends that three sections of the Texas Election Code, which

permit unrestricted early voting in federal elections, are

preempted by federal election statutes that require that the

“election” of members of Congress and presidential electors occur

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Circuit Judge of the Eighth Circuit, sitting by designation.
on federal election day. Because the election of federal officials

in Texas is not decided until Texas voters go to the polls on

federal election day, we conclude that the Texas early voting

scheme is not inconsistent with federal election laws.

I.

VIP filed this declaratory judgment action against Elton

Bomer, the Texas Secretary of State (“the State”). VIP challenges

Tex. Elec. Code §§ 81.001, 82.005, and 85.001 (“the Texas Early

Voting statutes”), which allow voting to begin in Texas federal

elections seventeen days before federal election day. Unlike

traditional “absentee” voting statutes, the Texas Early Voting

statutes do not require the voter to give any reason to vote early;

the voter has the unrestricted right to vote early. Specifically,

VIP contends that these statutes violate 2 U.S.C. §§ 1, 7 and 3

U.S.C. § 1, which establish the Tuesday after the first Monday in

November as the day for the election of federal representatives,

senators, and presidential electors throughout the United States.

The parties filed cross-motions for summary judgment. The

district court found no conflict between Texas and federal law and

granted summary judgment in favor of the State. VIP now appeals.

II.

We review the granting and denial of summary judgment by the

district court de novo. Bodenheimer v. PPG Industries, Inc., 5

F.3d 955, 956 (5th Cir. 1993); Mozeke v. Int’l. Paper Co., 856 F.2d

722, 724 (5th Cir. 1988). We review the district court’s denial of

a permanent injunction for abuse of discretion. Peaches

Entertainment Corp. v. Entertainment Repertoire Assocs., Inc., 62
F.3d 690, 693 (5th Cir. 1995).

III.

A.

The Elections Clause of the United States Constitution, Art.

I, § 4, cl.1, gives states the responsibility for establishing the

time, place, and manner of holding congressional elections, unless

Congress acts to preempt state choices.2 Foster v. Love, 522 U.S.

67, 68, 118 S.Ct. 464, 466, 139 L.Ed.2d 369 (1997). States “are

given . . . a wide discretion in the formulation of a system for

the choice by the people of representatives in Congress.” U.S. v.

Classic, 313 U.S. 299, 311, 61 S.Ct. 1031, 1035, 85 L.Ed. 1368

(1941). Thus, a state’s discretion and flexibility in establishing

the time, place and manner of electing its federal representatives

has only one limitation: the state system cannot directly conflict

with federal election laws on the subject.

VIP contends that the Texas Early Voting statutes directly

conflict with the federal election statutes establishing a single

election day. 2 U.S.C. § 7 provides that the “Tuesday next after

the 1st Monday in November, in every even numbered year, is

established as the day for the election, in each of the States . .

. of the United States, of Representatives and Delegates to the

Congress . . . .” Titles 2 U.S.C. § 1 and 3 U.S.C. § 1 provide the

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“The Times, Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make
or alter such Regulations, except as to the Places of choosing
Senators. U.S. Const., Art. I, § 4, cl. 1.

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same rule for electing Senators and presidential electors,

respectively.

VIP contends that the federal statutes, by establishing “the

day for the election,” contemplate that the entire election,

including all voting, will occur that day. 2 U.S.C. § 7(emphasis

added). They argue that “election” is synonymous with voting.

In Foster, the Supreme Court considered whether Louisiana’s

“open primary” statute conflicted with federal election statutes.

522 U.S. at 70, 118 S.Ct. at 467. Under Louisiana law, an open

primary was held for congressional offices in October. Id. All

candidates, regardless of party, appeared on the same ballot. Id.

If any candidate received a majority of votes in the primary, he or

she was considered “elected” without any further action on federal

election day. Id. The Court held that Louisiana’s open primary

system conflicted with federal election statutes because the “final

selection” of candidates could be (and often was)3 “concluded as a

matter of law before the federal election day, with no act in law

or in fact to take place on the date chosen by Congress . . . .”

Id. at 72, 118 S.Ct. at 467 (emphasis added).

Foster is instructive on the the meaning of “election.” 522

U.S. at 68, 118 S.Ct. at 466. The Court observed first that the

term “election” in federal election statutes “plainly refer[s] to

the combined actions of voters and officials meant to make a final

3
Since the adoption of the open primary system in 1978, eighty
percent of Louisiana’s contested congressional elections ended with
the open primary, without any voting on federal election day.
Foster, 118 S.Ct. at 467.

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selection of an officeholder.” Id. at 71, 118 S.Ct. at 467. In

striking down Louisiana’s open primary statute, the Supreme Court

held only that elections must not be “consummated” before federal

election day. Id. at 72, n.4, 118 S.Ct. at 468.

With this background we turn to the challenged Texas system.

Texas allows voting to begin early--seventeen days before federal

election day. But the polls are open on federal election day and

most voters cast their ballots that day. No election results are

released until the votes are tabulated on federal election day.

Because the election of federal representatives in Texas is

not decided or “consummated” before federal election day, the Texas

scheme is not inconsistent with the federal election statutes as

interpreted by the court in Foster.

VIP argues, however, that Foster does not control this case

because Foster was not concerned with voting that began too early

but rather with voting that ended too early, and its definition of

“election” was devised to resolve that dispute. For the reasons

that follow, we conclude that the Court would not alter its

definition of “election” to require that states begin their federal

election on federal election day.

First, the plain language of the statute does not require all

voting to occur on federal election day. All the statute requires

is that the election be held that day. Foster teaches us that

“election” means “the combined actions of voters and officials

meant to make a final selection of an office holder.” 522 U.S at

71, 118 S.Ct. at 467. Allowing some voters to cast votes before

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election day does not contravene the federal election statutes

because the final selection is not made before the federal election

day. Second, this conclusion is consistent with the Supreme

Court’s refusal to give a hyper-technical meaning to “election”

and its refusal to “[pare] the term ‘election’ in § 7 down to the

definitional bone . . . .” Id. at 72, 118 S.Ct. at 467. We are

satisfied that our conclusion is consistent with a plain, common

sense reading of the language of § 7, the same approach the Court

followed in Foster to interpret the statute.

Third, the Court in Foster recognized that some acts

pertaining to the election of federal officials would be performed

on days other than the federal election day in violation of § 7:

While true that there is room for argument
about just what may constitute the final act
of selection within the meaning of the law,
our decision does not turn on any nicety in
isolating precisely what acts a State must
cause to be done on federal election day (and
not before it) in order to satisfy the
statute. Without paring the term ”election”
in § 7 down to the definitional bone, it is
enough to resolve this case to say that a
contested selection of candidates for a
congressional office that is concluded as a
matter of law before the federal election day
. . . clearly violates § 7.

Id. (emphasis added).

We read the above language as a clear signal that contrary to

VIP’s argument, some acts associated with the election may be

conducted before the federal election day without violating the

federal election statutes.

Further, we cannot logically hold that Texas’ system of

unrestricted advanced voting violates federal law without also

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finding that absentee balloting--which occurs in every state--

violates federal law.

We do not believe that Congress would have allowed absentee

balloting to occur under state laws if it attached the meaning to

the federal election day statutes urged by VIP. More than a

century ago, some states began to allow absentee voting, and all

states currently provide for it in some form, Edward B. Moreton,

Jr., Voting by Mail, 58 S.Cal. L. Rev. 1261, 1261-62 (1985); yet

Congress has taken no action to curb this established practice. We

are unable to read the federal election day statutes in a manner

that would prohibit such a universal, longstanding practice of

which Congress was obviously well aware.

More recent legislation buttresses our conclusion that

Congress looks with favor on absentee voting. Congress has enacted

at least three statutes authorizing absentee balloting before

election day.4 In the Voting Rights Act Amendments of 1970, 42

U.S.C. § 1973aa-1, Congress emphasized the importance of access to

voting:

(a) The Congress hereby finds that the . . .
lack of sufficient opportunities for absentee
registration and absentee balloting in
presidential elections (1) denies or abridges
the inherent constitutional right of citizens
to vote for their President and Vice-President
. . . .

Further, Congress has not only acknowledged but required

4
The Voting Rights Act Amendments of 1970, 42 U.S.C. § 1973aa-1;
the 1984 Voting Accessibility for the Elderly and Handicapped Act,
42 U.S.C. § 1973ee et seq; and the Uniformed and Overseas Citizens
Absentee Voting Act of 1986, 42 U.S.C. § 1973ff et seq.

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absentee voting in certain circumstances. Sections 1973aa-1

(d),(e), (f) of the Voting Rights Act Amendments of 1970 require

that citizens be allowed to vote by absentee ballot in Presidential

elections on or before the day of the election.5 Title 42 U.S.C.

§ 1973ee-3(c) requires the chief election officer of each state to

“provide public notice, calculated to reach elderly and handicapped

voters, of . . . the procedures for voting by absentee ballot . .

. .” The Uniformed and Overseas Citizens Absentee Voting Act (the

“UOCAVA”), 42 U.S.C. § 1973ff-1, requires states to accept absentee

ballots in federal elections from certain voters: “each State shall

- (1) permit absent uniformed services voters and overseas voters

to use absentee registration procedures and to vote by absentee

ballot in general, special, primary, and runoff elections for

Federal office . . . .”

B.

Finally, we cannot conceive that Congress intended the federal

election day statutes to have the effect of impeding citizens in

exercising their right to vote. The legislative history of the

statutes reflects Congress’s concern that citizens be able to

exercise their right to vote. See CONG. GLOBE, 42d Cong., 2d Sess.

3407-3408 (1872). Also, the Texas early voting system does not

foster either of the primary evils identified by Congress as

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[E]ach State shall provide by law for the casting of absentee
ballots for the choice of electors for President and Vice
President...by all duly qualified residents of such State who may
be absent from their election district...on the day such election
is held....” 42 U.S.C. § 1973aa-1(d).

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reasons for passing the federal statutes: “distortion of the voting

process threatened when the results of an early federal election in

one State can influence later voting in other States, and . . . the

burden on citizens forced to turn out on two different election

days to make final selections of federal officers in presidential

election years . . . .” Foster, 522 U.S. at 73, 118 S.Ct. at 468.

The challenged Texas statutes encourage voting by providing Texas

voters with more opportunities to vote. Also, Texas law makes it

illegal for election officers to reveal any election results before

the polls close on election day. Tex. Elec. Code §§ 61.007 &

81.002.

In short, the Texas Early Voting statutes further the

important federal objective of reducing the burden on citizens to

exercise their right to vote by allowing them to vote at a time

convenient to them, without thwarting other federal concerns.

IV.

For the above reasons, we conclude that Sections 81.001,

82.005, and 85.001 of the Texas Election Code are not preempted by

federal law. We therefore affirm the order of the district court.

AFFIRMED.

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