Opinion
Nos. 94-7138, 94-7155.
April 26, 1995.
Gregory B. Stein, Stein Brewster, Mobile, AL, William H. Pryor, Jr., Asst. Atty. Gen., Montgomery, AL, for appellants in No. 94-7138.
Bruce J. McKee, Hare, Wynn, Newell Newton, Birmingham, AL, Algert S. Agricola, Montgomery, AL, B. Glenn Murdock, Wallace, Jordan, Ratliff, Byers Brandt, Birmingham, AL, for appellees in No. 94-7138.
Bruce J. McKee, Hare, Wynn, Newell Newton, Joe R. Whatley, Jr., Sam Heldman, Cooper Mitch Crawford Kuykendall Whatley, Birmingham, AL, Gregory B. Stein, Stein Brewster, Mobile, AL, Frank C. Ellis, Jr., Wallace, Ellis, Fowler Head, Columbiana, AL, William H. Pryor, Jr., Asst. Atty. Gen., Montgomery, AL, for appellants in No. 94-7155.
Charles H. Dodson, Jr., Mobile, AL, for intervenor.
Algert S. Agricola, Montgomery, AL, B. Glenn Murdock, Wallace, Jordan, Ratliff, Byers Brandt, Birmingham, AL, Joseph S. Johnston, J. Michael Druhan Jr., Mobile, AL, Albert Jordan, Birmingham, AL, for appellees in No. 94-7155.
Appeal 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.
Following oral argument, we certified the following question to the Supreme 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.
Roe v. Alabama, 43 F.3d 574, 583 (11th Cir. 1995). The Supreme Court of Alabama has answered in the affirmative. Roe v. Mobile County Appointment Bd., ___ So.2d ___ (Ala. 1995) (slip op. 1940461, Mar. 14, 1995).
We remand these proceedings to the district court for a trial on the merits. The court should address, and make findings of fact on, the following issues:
1. The extent to which, if at all, ballots such as the ballots at issue in this case (the "contested absentee ballots") were regularly excluded from the vote count in Alabama counties prior to the November 8 election and, if so, in which counties;
"Contested absentee ballots," as we defined them in our previous opinion, are those absentee ballots that were accompanied by an affidavit envelope that was signed by the voter but either: (1) was not properly notarized; or (2) was not properly witnessed by two adult witnesses. See Roe, 43 F.3d at 578 n. 5.
2. The extent to which, if at all, ballots such as the contested absentee ballots were regularly counted in Alabama counties prior to the November 8, 1994 election and, if so, in which counties;
3. In any county in which ballots such as the contested absentee ballots were regularly counted prior to the November 8 election, whether contested absentee ballots were counted in that county on November 8;
4. In any county in which ballots such as the contested absentee ballots were regularly counted prior to the November 8 election, whether a reasonable absentee voter in that county knew or should have known that such ballots were counted;
5. In any county in which ballots such as the contested absentee ballots were counted prior to the November 8 election and in which a reasonable voter in that county knew or should have known that such ballots were counted, the source of information regarding the practice from which a reasonable voter learned or should have learned of the practice;
6. In any county in which ballots such as the contested absentee ballots were regularly counted prior to the November 8 election:
a. The percentage of total votes for statewide office cast by absentee ballot (both contested and other) and the percentage of total votes cast by contested absentee ballot in the November 8 election in that county; and
b. The percentage of total votes for statewide office cast by absentee ballot (whether the affidavit was complete or not) in the previous two elections for statewide office in that county;
7. Whether state officials such as the Attorney General of Alabama or the Secretary of State of Alabama have taken consistent positions regarding whether ballots such as the contested absentee ballots are to be counted or excluded and, if so, the form in which such positions were communicated to the average voter or county voting official and the time at which such positions were taken;
8. Whether county voting officials charged with running the elections instructed prospective voters that ballots such as the contested absentee ballots might be counted and, if so, the extent of this practice on the part of county voting officials;
9. Whether the 1994 written absentee ballot instructions to voters stated that ballots lacking proper notarization and the signatures of two adult witnesses would not be counted, the precise words used in such written instructions, and whether a reasonable voter could have understood the written instructions to be aspirational rather than mandatory;
10. The number of votes initially certified to the Secretary of the State of Alabama from each of Alabama's sixty-seven counties in favor of Sonny Hornsby, the Democratic candidate for Chief Justice of the Supreme Court of Alabama;
The "number of votes initially certified" includes those vote totals originally sent to the Secretary of State or the Governor pursuant to sections 17-13-7 and 17-14-22 of the Alabama Election Code before the Montgomery County Circuit Court ordered that contested absentee ballots be counted. See Odom v. Bennett, No. 94-2434-R (Montgomery County Cir.Ct., filed Nov. 16, 1994); see generally Ala. Code §§ 17-13-7, 17-14-22 (1988). In addition, the district court should ascertain the effect of any supplemental certifications that were made for any reason other than to comply with the Odom court's order.
11. The number of votes initially certified to the Secretary of the State of Alabama from each of Alabama's sixty-seven counties in favor of Perry O. Hooper. Sr., the Republican candidate for Chief Justice of the Supreme Court of Alabama;
12. The number of votes initially certified to the Secretary of the State of Alabama from each of Alabama's sixty-seven counties in favor of candidates for Chief Justice other than Sonny Hornsby or Perry O. Hooper, Sr., if any;
13. The number of votes initially certified to the Governor of the State of Alabama from each of Alabama's sixty-seven counties in favor of Lucy Baxley, the Democratic candidate for Treasurer of the State of Alabama;
14. The number of votes initially certified to the Governor of the State of Alabama from each of Alabama's sixty-seven counties in favor of James D. Martin, the Republican candidate for Treasurer of the State of Alabama;
15. The number of votes initially certified to the Governor of the State of Alabama from each of Alabama's sixty-seven counties in favor of candidates for Treasurer other than Lucy Baxley or James D. Martin, if any;
16. Whether any of the vote totals initially certified from any county contained any contested absentee ballots and, if so,
a. Whether there exists a previous official vote count from that county, or those counties, that reliably tabulated the votes without including the contested absentee ballots, i.e., a tabulation of voting booth ballots and uncontested absentee ballots;
b. The number of contested absentee ballots contained in the county's, or counties', initial vote total(s), if calculable, and the number of contested absentee ballots contained in the statewide initial vote total, if calculable;
17. If any of the vote totals initially certified from each county contained contested absentee ballots, whether those contested absentee ballots are in any way physically separable from the larger pool of ballots, and, if not, whether there exists any other method, short of obtaining the testimony of each voter who cast a contested absentee ballot, of identifying and counting contested absentee ballots for purposes of determining the effect of the contested absentee ballots on the elections for the offices of Chief Justice and Treasurer.
In addressing these issues, the district court should be cognizant of the purpose of this court's remand: The parties should have a speedy trial to determine the practice in Alabama regarding the counting of contested absentee ballots prior to the November 8 election, to determine the extent to which such practice was known to reasonable absentee voters in Alabama, and to determine what effect, if any, the contested absentee ballots had on the outcome of the elections for Chief Justice and Treasurer. This court is particularly concerned with the possible effect of any contested absentee ballots included in initial certifications. In setting out issues that we think will require factfinding after trial we do not limit the authority of the district court to order other issues tried and to find additional facts. We note in passing that the plaintiffs, the Davis class, and the state defendants (including the Secretary of State) may be able to establish certain facts by stipulation.
The district court's preliminary injunction, as modified by our previous order, is affirmed. See Roe, 43 F.3d at 583.
IT IS SO ORDERED.