filed: March 16, 1994; As Amended March 30, 1994.
On Appeal From the United States District Court For the Eastern District of Pennsylvania. (D.C. Civil Action No. 93-cv-06157).
Before: Stapleton, Greenberg and Cowen, Circuit Judges.
STAPLETON, Circuit Judge:
After an evidentiary hearing on the plaintiffs' motion for a preliminary injunction, the district court in this case found that certain officials responsible for conducting an election in the second senatorial district of the Commonwealth of Pennsylvania had conspired with one of the two candidates to cause numerous illegally obtained absentee ballots to be cast. Based on that finding, the district court issued a preliminary injunction which enjoined the candidate who participated in the conspiracy from exercising any of the authority of the office of state senator and directed the board of elections to certify the result of the election based solely on the votes cast at the voting machines. The effect of the preliminary injunction was to require the decertification of the candidate previously declared to be the winner and the certification of his opponent.
In this appeal from the preliminary injunction, we are asked to declare that the district court abused its discretion by refusing to abstain and by fashioning an unreasonable interim remedy.
Republican Bruce Marks ("Marks") and Democrat William Stinson ("Stinson") ran in an election conducted on November 2, 1993, to represent Pennsylvania's second senatorial district. This election was held to fill the remaining portion of a term expiring in December 1994, and was of particular significance to both Republicans and Democrats because control of the Pennsylvania Senate was at stake. According to the certified results of the Philadelphia County Commissioners, sitting as the County Board of Elections ("the Board")*fn1, of the 38,818 votes cast on the voting machines on election day, 19,691 were cast for Marks, while 19,127 were cast for Stinson. However, of the 1,767 absentee ballots cast, Marks received only 371 votes, while Stinson received 1,396 votes. When all votes were added together, Stinson won by a final count of 20,523 to 20,062. The Board, therefore, certified Stinson as the winner of the election and he was subsequently sworn in as a Pennsylvania state senator.
Marks, the Republican State Committee, and eight named voters who reside in the second senatorial district (two of whom are residents who voted at the polling place in the election at issue, and six of whom are Latino residents of this same district who voted by absentee ballot) brought this suit alleging violations of the Voting Rights Act and the Civil Rights Act in connection with the election. The defendants are Stinson, the Stinson campaign, unnamed individuals who worked for the Stinson campaign, the Board, and Board members Margaret M. Tartaglione, John F. Kane, and Alexander Z. Talmadge, Jr. Defendants are joined as appellants by ten intervenors who are voters who legally cast absentee ballots and who allege that the preliminary injunction disenfranchised them.
Under Pennsylvania law, a qualified elector may vote by absentee ballot if he or she is, inter alia, absent from the Commonwealth or county of residence "because his duties, occupation or business require him to be elsewhere during the entire period the polls are open" or is physically unable to go to the polls. 25 P.S. § 3146.1(j) & (k). An elector who wishes to vote by absentee ballot must submit to the appropriate board of election an absentee ballot application, including a statement that the elector expects to be out of the county on election day or that the elector is physically unable to go to the polls, with a declaration stating the nature of the disability and the name, address, and telephone number of the attending physician. 25 P.S. § 3146.2(a) & (e)(1) & (e)(2). The absentee ballot application requires that the elector provide a "post office address to which [the] ballot is to be mailed." The deadline for the receipt of applications is 5:00 p.m. on the Tuesday before the election. 25 P.S. § 3146.2a.
Absentee ballots applications are processed by the local board of elections to determine if the applicant possesses all necessary qualifications. If the board is satisfied that the applicant is a qualified elector, the application is marked "approved." 25 P.S. § 3146.2b(a). If the board concludes that the applicant is not qualified, it must immediately notify the applicant. 25 P.S. § 3146.2b(d). After approving an absentee ballot application, the board of elections is required to "mail or deliver" an absentee ballot package to the elector at the address listed on the application. 25 P.S. § 3146.5. The absentee ballot package consists of an outer envelope in which is enclosed a declaration envelope, an inner envelope, and instructions. 25 P.S. § 3146.4.
The elector must mark the ballot "in secret," seal the ballot in the inner envelope, seal the inner envelope in the declaration envelope, and execute the declaration on the declaration envelope. 25 P.S. § 3146.6(a). An elector may legally receive assistance in filling out the absentee ballot only if the elector has a physical disability that "renders him unable to see or mark . . . the ballot." 25 P.S. § 3146.6(a). The elector must then "send by mail" or deliver "in person" the executed declaration package to the board of elections. 25 P.S. § 3146.6. To be valid, all absentee ballots must be received by 5:00 p.m. on the Friday before the election. 25 P.S.
§ 3146.6(a). If an elector who sent in an absentee ballot becomes able to get to the polls on election day, the absentee ballot is void as a matter of law, and the elector has a duty to go to the polls and void the ballot. 25 P.S. § 3146.6(b).
Election day pollwatchers for each candidate may challenge any absentee ballot at the polling place at the time the polls close. 25 P.S. § 3146.8(e). The unchallenged absentee ballots are canvassed after the polls close by opening the declaration envelopes, removing, mixing, and opening the sealed inner envelopes, and then counting the ballots. 25 P.S.
§ 3146.8. All challenges are heard by the county board of elections within seven days and the board's decision is appealable to the Court of Common Pleas. 25 P.S. § 3146.8(e).
II. THE DISTRICT COURT'S DECISION
Following a three day hearing during which extensive testimony was presented, the district court issued detailed findings of fact which we now summarize.
The Stinson campaign sent its workers into divisions of the district where a majority of the residents were white to solicit voter registration applications and absentee ballot applications. The goal was to obtain twenty absentee ballot applications from each division. Those who expressed a hesitancy to register because they did not wish to go to a polling place were told by campaign workers that they could fill out an absentee ballot application and obtain an absentee ballot as a matter of convenience. Many improper applications were received based on this misrepresentation. These absentee ballot applications stated that the basis for voting absentee was that the applicant would be out of the county at the time of the election, despite the fact that the applicant had no reason to believe that this would be the case. To conceal the fact that many of these improper absentee ballot applications were solicited several months before election day, Stinson campaign workers told canvassers not to fill in the true date on the application. The absentee ballots that the Stinson campaign obtained in this way were then submitted directly to Commissioner Tartaglione's office and the corresponding absentee ballot packages were provided directly to the Stinson campaign. According to the testimony of one campaign worker, Stinson was aware of the improper conduct regarding the absentee ballots, yet he permitted the conduct to continue and even admonished campaign workers who questioned its legality.
About three weeks before the election, the Stinson campaign learned that a Democratic State Committee poll showed Marks running ahead of Stinson by four percentage points. The campaign responded by saturating the Hispanic and African-American areas of the district with absentee ballot applications using tactics similar to those earlier employed. This time, however, campaign workers solicited absentee ballot applications in person and by telephone by telling the Latino and African-American voters that there was a "new way to vote" from the convenience of one's own home. Campaign workers were paid $1.00 for each application or ballot that they were able to obtain in this way, and the campaign dispensed at least $500 to $700 dollars in this effort.
The Stinson campaign obtained approximately 1,000 absentee ballots applications from the minority sections of the district. The applications were then delivered by Stinson campaign workers directly to Commissioner Talmadge, and he provided the absentee ballot packages directly to the Stinson campaign. Stinson campaign workers then took the absentee ballots directly to applicants' homes. In numerous instances, Stinson workers executed applications, ballots and declarations without the voter understanding the nature of the document. In other instances, Stinson workers instructed the voter to check certain places on the ballot, or filled out and forged the ballot. Voters were also assisted in completing applications and declaration packages after the statutory deadline for receipt by the Board had passed, and such ballots were counted by the Board. Many voters who cast absentee ballots testified that they were unaware that they had signed absentee ballot applications.
Almost 400 of the absentee ballot applications submitted by the Stinson campaign were rejected by the Board because they came from unregistered voters. These rejected applications were returned directly to Commissioner Talmadge, who then returned them to a Stinson campaign worker. Contrary to state law, no record was kept of the rejected applications.
Commissioners Tartaglione and Talmadge and Board employees working with them were aware of the absentee ballot campaign of Stinson and his workers and assisted that campaign by delivering hundreds of absentee ballot packages directly to Stinson workers rather than mailing or delivering them to the electors whose names and addresses appeared on the applications. This assistance was designed to aid the Stinson campaign in obtaining more votes through personal contact between the electors and the Stinson campaign workers. No such assistance was provided to Marks or the Marks campaign. During regular office hours, employees of the Board mailed all absentee ballot packages to the voters whose applications they had approved. The Board's assistance to the Stinson campaign was covert and was not disclosed to Republican Commissioner Kane at the time.
After setting forth its factual findings, the district court concluded that the plaintiffs had established a likelihood of success on their claims. Specifically, the court found a likelihood of success on the claims that the defendants' conduct violated: "i. the First Amendment rights of Plaintiffs by illegally discriminating in favor of Democrat Stinson over Republican Marks. . . . ii. the equal protection rights of Plaintiffs by illegally discriminating in favor of Democrat Stinson over Republican Marks with no rational reason or purpose [, and] the substantive due process right of Plaintiffs to a free and fair election." The district court also found that a likelihood of success had been shown with respect to the plaintiffs' Voting Rights Act claims. Finally, the district court concluded that plaintiffs, "and even the entire state," suffer irreparable injury when an "improperly seated . . . representative" of the people exercises the powers of his office and when "constitutional freedoms" are lost.
Having determined that a preliminary injunction should be issued, the district court turned to the form of the interim relief to be granted. The court stated in part:
In light of the massive scheme of Candidate Stinson and the Stinson Campaign, and in light of the failure of the Board to fairly conduct its duties, it would be grossly inequitable to allow Stinson to remain in office and for the Board to continue to conduct business as it did during the 1993 Election. . . .
The votes cast at the voting machines were not affected by the improper conduct of the Stinson Campaign or the Board, and no evidence indicates that the machine returns do not reflect the will of the electorate. The District should not be denied representation in the State Senate based on the efforts taken by the Stinson Campaign and the Board to conceal certain conduct relating to the absentee balloting procedures. . . .
The will of the electorate is reflected in the votes cast on the voting machines. The public interest will be served by having Marks, the candidate who prevailed on the undisputed legal votes, serve the remaining months of the term, which expires in December, 1994, rather than ...