NO IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Transcription

1 NO IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TEXAS DEMOCRATIC PARTY and BOYD L. RICHIE, in his capacity as Chairman of the Texas Democratic Party, Plaintiffs/Appellants, v. ROGER WILLIAMS, in his capacity as Secretary of State for the State of Texas Defendant/Appellee. On Appeal from the U.S. District Court, Western District of Texas Austin Division, Honorable Sam Sparks, Presiding USDC No. A 07 CA 115 BRIEF OF APPELLEE GREG ABBOTT Attorney General of Texas KENT C. SULLIVAN First Assistant Attorney General DAVID S. MORALES Deputy Attorney General for Litigation ROBERT B. O KEEFE, Chief, General Litigation Division KATHLYN C. WILSON Texas Bar No Assistant Attorney General Office of the Attorney General General Litigation Division-019 P.O. Box Capitol Station Austin, Texas (512) (512) Fax ATTORNEYS FOR APPELLEE January 9, 2008

2 NO IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TEXAS DEMOCRATIC PARTY and BOYD L. RICHIE, in his capacity as Chairman of the Texas Democratic Party, Plaintiffs/Appellants, v. ROGER WILLIAMS, in his capacity as Secretary of State for the State of Texas Defendant/Appellee. CERTIFICATE OF INTERESTED PERSONS As a governmental party, the Appellee is not required by Fifth Circuit Local Rule to furnish a Certificate of Interested Persons. KATHLYN C. WILSON Attorney for Appellee i

3 STATEMENT REGARDING ORAL ARGUMENT Appellee does not believe that oral argument is necessary. The issues are clear and straightforward and involve no novel applications of law. If the court orders oral argument, however, Appellee would request to be included in that opportunity. ii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS I STATEMENT REGARDING ORAL ARGUMENT ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES...v STATEMENT OF JURISDICTION...1 STATEMENT OF THE ISSUES...3 STATEMENT OF THE CASE...4 STATEMENT OF FACTS The eslate emphasis voter The paper ballot non-emphasis voter STANDARD OF REVIEW...14 SUMMARY OF THE ARGUMENT...15 ARGUMENT...21 Issue 1: Issue 2: Whether the District applied the correct test when it analyzed this case under the Anderson-Burdick balancing test...21 Whether the District Court correctly found under Anderson-Burdick that the burden on a voter s constitutional rights is slight iii

5 Issue 3: Whether Appellants Raise a Genuine Issue of Fact Resemblance of the eslate Summary Screen to a Non-Emphasis Voter s Paper Ballot Does Not Create an Issue of Fact Affidavit of Robert Parten Does Not Create a Fact Issue As to Recounts Affidavit of Robert Parten Does Not Create a Fact Issue As to Undervotes Affidavits of Madison County Voters Who Do Not Recall Seeing a Warning Screen Do Not Create an Issue of Fact Fact of an Undervote Does Not Create an Issue of Fact Which the District Court Ignored...49 Issue 4: Whether the Federal Court Has Jurisdiction to Decide if the eslate Violates the Texas Election Code Issue 5: Whether the eslate violates the Help America Vote Act CONCLUSION...60 CERTIFICATE OF SERVICE...62 CERTIFICATE OF COMPLIANCE...63 ADDENDUM...64 iv

6 TABLE OF AUTHORITIES Cases Allen v. Pennsylvania Engineering Corp., 102 F.3d 194 (5th Cir.1996)...14 Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct (1983) , 16, 21-27, Beaver v. Clingman, th 363 F.3d 1048 (10 Cir. 2004)... Burdick v. Takashi, 504 U.S. 428, 112 S.Ct. 245 (1992) , 16, 21-27, Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525 (2000) , 30, 31,39, 45 Christophersen v. Allied-Signal Corp., 939 F.2d 1106 (5th Cir.1991)...14 Christophersen v. Allied-Signal Corp., 503 U.S. 912, 112 S.Ct (1992) Clements v. Flashing, 457 U. S. 957, 102 S. Ct (1982) Crawford v. Marion County Election Board, th 472 F.3d 949 (7 Cir. 2007)... Curtis v. M&S Petroleum, Inc., th 174 F.3d 661(5 Cir. 1999)... Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995 (1972) v

7 General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997)...14 Green Party of New York State v. New York State Board of Elections, nd 389 F. 3d 411 (2 Cir. 2004)... Hendon v. Helms, 633 F. Supp. 454 (W.D. N.C. 1986)...25 Hendon v. North Carolina State Board of Elections, th 710 F. 2d 177 (4 Cir. 1983)... Lubin v. Panish, 415 U.S. 709, 94 S. Ct. 1315(1974)...23 O Brien v. Skinner, 414 U.S. 524, 94 S. Ct. 740(1974)...37 Pennhurst State School and Hospital vs. Halderman, 465 U.S. 89,104 S. Ct. 900(1984) , 19, 51, 54 Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362(1964)...16, 23, 27 United States v. Classic, 313 U.S. 299, 61 S. Ct (1941) Weber v. Shelley, th 347 F. 3d 1101 (9 Cir. 2003)... 15, 24-27, 29 Werme v. Merrill, st 84 F.3d 479 (1 Cir. 1996)... Wexler v. Anderson, th 452 F. 3d 1226 (11 Cir. 2006)... 15, 25, 26, vi

8 Word of Faith World Outreach Ctr. Church, Inc. v. Morales, th 986 F. 2d 962 (5 Cir. 1993)... 19, 54, 55 Statutes TEX. ELEC. CODE TEX. ELEC. CODE (c)... 51, 53, TEX. ELEC. CODE , 36 TEX. ELEC. CODE (b)...34 TEX. ELEC. CODE TEX. ELEC. CODE Rules Fifth Circuit Local Rule i vii

9 NO IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT TEXAS DEMOCRATIC PARTY and BOYD L. RICHIE, in his capacity as Chairman of the Texas Democratic Party, Plaintiffs/Appellants, v. ROGER WILLIAMS, in his capacity as Secretary of State for the State of Texas Defendant/Appellee. BRIEF OF APPELLEE TO THE HONORABLE COURT OF APPEALS: COMES NOW the Appellee, Roger Williams, and files this Brief of Appellee, and in support thereof would respectfully show this Court the following: STATEMENT OF JURISDICTION This court has jurisdiction under 28 U.S.C over the final decision of the district court. However, that jurisdiction extends only to Appellants claims under federal law. Under Pennhurst State School and Hospital vs. Halderman, 465 U.S. 89, 121, 104 S. Ct. 900, 919 (1984), the federal courts do not have jurisdiction to order state officials how to conform their conduct to state law. The district court correctly 1

10 found that the Plaintiffs/Appellants were, as a matter of law, not entitled to relief on their claims of violations of the Texas Election Code, and this court likewise has no jurisdiction to determine Texas law, decide whether the Texas Secretary of State has violated Texas law, and to order him how he is to conform to Texas law. 2

11 STATEMENT OF THE ISSUES Issue 1: Whether the district court applied the correct test when it analyzed this case under the Anderson Burdick balancing test. Issue No. 2: Whether the district court correctly found under Anderson Burdick that the burden on a voter s constitutional rights is slight. Issue No. 3: Whether Appellants raise a genuine issue of fact. Issue No. 4: Whether the federal court has jurisdiction to decide if the eslate violates the Texas Election Code. Issue No. 5: Whether the Secretary of State s certification of the eslate violates the Help America Vote Act. 3

12 STATEMENT OF THE CASE This case was filed on February 13, 2007, in the Western District of Texas, Austin Division. In response to this lawsuit, Defendant filed on March 5, 2007, his Motion for Summary Judgment, (ROA 82-95, with exhibits), and his Original Answer and Affirmative Defenses. (ROA ) On March 13, 2007, Plaintiffs filed a Motion for Continuance and Preliminary Response to Defendant s Motion for Summary Judgment, requesting that their summary judgment response be due on August 1. (ROA ) The court granted the continuance on March 16. (ROA 156.) Plaintiff s Response was filed on August 1. (ROA ) Defendant filed his Reply on August 9. (ROA , with exhibits.) The district court held a hearing on all pending matters, including Defendant s Motion for Summary Judgment on August 10. (ROA 688.) The court granted Defendant s Motion for Summary Judgment by Order and Judgment dated August 16, (ROA ; 820.) Plaintiffs filed their Notice of Appeal on August 23, (ROA ) 4

13 STATEMENT OF FACTS Appellants in this cause are complaining that the eslate voting system does not allow voters to emphasize their votes when voting a straight party ticket. The term emphasis voter or emphasis vote has no statutory or constitutional meaning. It is a term that the Appellants have used to describe voter conduct. They claim that some voters who choose a straight party ticket will thereafter attempt to emphasize their vote again for individual party candidates. On a paper ballot, this emphasis voter would fill in the box or oval next to the straight party choice. Doing so casts a vote for all party candidates. The voter then fills in the box by individual party candidates names, thus emphasizing the fact that the voter wants these candidates elected. In a paper ballot system, the extra marks by the candidates names are simply not counted the straight party choice has already cast a vote for all party candidates. Appellants are complaining that this voter conduct cannot be changed and that Texas voters who have engaged in the conduct in the past will continue to act in the same way regardless of the voting system with which they are confronted. Therefore, all voting systems in perpetuity must take this conduct into account. Their specific complaint about the eslate electronic voting system is that when a voter marks the box next to the straight party choice, the voting system at the same 5

14 time marks all of the boxes beside each individual candidate. Since the individual candidates have already been selected and the boxes beside their names have been marked, if the voter selects an individual candidate again, that action will de-select that candidate. Appellants claim and that this process is so confusing that it amounts to a constitutional violation. A detailed review of the eslate s process of recording straight party votes shows that the process is clear and that the system gives ample warning to a voter before it changes a vote in an individual race after the voter has made a straight party choice. The system also displays a summary screen at the end showing the choices 1 that the voter has made. The eslate machines record straight party votes in the following way: When a voter begins the voting process, the first screen that he is shown contains the 2 straight party choice. (ROA 95: Exhibit 1:1; A:1.) (For authentication of Exhibits 1 Images of these screens are reproduced in Defendant s Exhibits to his Motion for Summary Judgment. At the district court, the exhibits to Defendant s Motion for Summary Judgment showing eslate s screens are in color, but the process of copying the Record did not reproduce the color in these exhibits. Because the description of the eslate s processes refers to a blue screen and to red highlighted areas, the color versions of these exhibits are helpful, and they are therefore supplied in Addendum 1 for the court s convenience. References to the Addendum are designated by the letter A followed by the specific page number in the Addendum. Thus A:7 is page 7 of the Addendum. 2 The exhibits to Defendant s Motion for Summary Judgment were for some reason not given page numbers in the record. In addition, pages 2-5 of Defendant s Exhibit 1 have been omitted from the record. All of these exhibits follow page 95 of the record, and they will, for the sake of clarity, be referred to by ROA followed by page 95 and the specific exhibit number that follows page 95. For example, Exhibit 2 will be referred to as ROA 95: Exhibit 2. Exhibits that contain multiple page 6

15 1-4 and sworn explanation of the process by which eslate voting systems record straight party votes see the affidavit of Scott Flom. ( ROA 95: Exhibit 7.)) On page 2, the instructions for straight party voting are highlighted. (ROA 95: Exhibit 1:2; A:2.) The straight party selection is the first selection presented to voters on the eslate. It appears on the ballot before the individual races. A voter who wishes to utilize the straight party option scrolls down to his party choice. (ROA 95: Exhibit 1:3; A:3.) After pressing enter, the box beside the party choice is marked in red. In the example given in the exhibits, the voter has chosen the Democratic Party. The box beside the Democratic Party shows the voter s choice in red. (ROA 95:Exhibit 1:4; A:4. ) At the same time, all of the races in which there is a Democratic candidate are automatically marked in red. (ROA 95: Exhibit 1: 4-9; A:4-9) As an additional visual cue, the text of each Democratic candidate remains black while the remaining candidates names are now shown in gray. (ROA 95: Exhibit 1: 4-9; A:4-9.) The voter can therefore see as he scrolls down the ballot that all of his Democratic Party choices have been automatically marked in red, showing him that he has chosen all of the Democratic candidates. Thus, the voting machine automatically does what the numbers will be referred to with the specific page number following the Exhibit number. For example, ROA 95: 7

16 Plaintiffs claim they want to be able to do, which is to mark both the straight party option and mark the same party choices in individual races. As noted, when a voter scrolls down to an individual race, such as the race for U.S. Senator shown on page 4 of Exhibit 1, (ROA 95: Exhibit 1:4; A:4), his choice of the Democratic candidate in that particular race is already marked, or emphasized for him. In addition, when the voter scrolls to the race for U.S. Senator, the name of the Democratic Party candidate is displayed in red. (ROA 95:Exhibit 1:13; A:13.) At that point, it is patently clear that the voter s ballot has been marked for the Democratic candidate. If, despite seeing that his choice of the Democratic candidate is already marked for him, the voter decides to vote again for that candidate, the voter s pressing of the enter button at this point will de-select the choice. Before the voting machine will allow a voter to de-select a straight party candidate, however, it warns the voter that he is making a change to a straight party choice. It does so by displaying the warning shown in Exhibit 2, (ROA 95: Exhibit 2; A:14). The screen displaying the candidates disappears and a blue screen filling the entire monitor appears. That screen says, Be aware that you are changing a straight-party choice. At the top of the screen, it says, Important Information. (ROA 95: Exhibit 2; A:14.) Proceeding past this warning, the screen then displays the U.S. Senator s race. This screen shows clearly that the voter has now made no selection in the U.S. 8

17 Senator s race because the red mark beside the Democratic candidate s name is no longer there and the Democratic candidate s name is no longer in red. (ROA 95: Exhibit 3; A:15.) This is the second time that the voting machine clearly tells the voter that he has de-selected his candidate in this race. If this warning is also ignored, before casting his vote, the voter is shown a screen that summarizes his choices. On that screen, beside the race for U.S. Senator, the message, No selections, is written in red. (ROA 95: Exhibit 4; A:16.) The process by which a straight party voter makes his choices is clear. He is presented with a ballot allowing him to choose to vote a straight party ticket. If he chooses this option, the eslate system then displays to him a box marked in red beside his straight party choice and boxes marked in red beside all his individual party candidates; in essence, the eslate has emphasized all of his votes for him. Should he attempt at this point to change the box marked in red on one of the individual races, he is shown a warning screen that takes up the entire computer monitor in front of him that he is about to change a straight party vote. Afterward, he is taken back to the screen displaying the individual race and his party choice is no longer marked in red. If he leaves the box beside this individual race unmarked, he is presented with a summary screen at the end showing that in some races or if he has so chosen all of the races, he has made no selection. 9

18 Appellants claim that this summary screen at the end of all of these ballot screens confuses the emphasis voter because it shows that the voter has chosen one party, but beside the individual races it shows that no selection has been made. They assert that the final screen on an eslate where the voter has de-selected each candidate looks exactly like a paper ballot on which a voter has selected the straight party choice and has made no other marks on the paper. It is instructive, however, to examine the process by which these two voters get to a ballot marked with a party selection and no individual selections. The eslate emphasis voter The voter is handed a piece of paper with an individual code. He proceeds to a private booth containing a computer. He enters his code into the computer and the screen displays the ballot. The voter uses the scroll function on the computer to scroll down to the straight party choice, scrolls down again until his party choice is highlighted, and presses the enter button on the computer to select the straight party option. The box beside his party choice is now marked in red. In the example given in the record, that choice is the Democratic party. (ROA 95: Exhibit 1:4; A:4.) Scrolling down further, the voter is shown individual races in which all of the Democratic Party candidates are also marked in red. (ROA 95: Exhibit 1:4-9; A:4-9.) Scrolling to the first race, this voter highlights the first Democratic candidate 10

19 on his ballot, Barbara Ann Radnofsky, candidate for United States Senate. The voter then presses the enter button again. The screen in front of him disappears. It is replaced with a blue warning screen that says, Important information. Be aware that you are changing a straight party choice. Press any key to continue. (ROA 95: Exhibit 2; A:14.) The voter presses any key, and the race for United States Senate is again displayed, this time with boxes beside all U. S. Senate candidates unmarked. (ROA 95: Exhibit 3; A:15.) Continuing down the ballot and using the same example of the eslate ballot included in the record, the voter next scrolls to the race for United States Representative, District 17. (ROA 95: Exhibit 1:5; A:5.) The box beside the Democratic choice, Chet Edwards, is marked in red. The voter scrolls to Mr. Edwards name, presses the enter button, and again, the ballot in front of him disappears and the blue warning screen is displayed. (ROA 95: Exhibit 2; A:14.) The voter presses any button, the screen returns to the ballot, and the race for United States Representative now shows that none of the candidates names is marked in red. The voter scrolls to the next race, which in the example is Governor of Texas. He sees a red mark beside the name of the Democratic candidate, Chris Bell. (ROA 95: Exhibit 1:5; A:15.) Highlighting Mr. Bell s name, the voter presses enter, the ballot disappears and the blue warning screen instructing the voter that he is changing 11

20 a party choice fills the monitor. (ROA 95: Exhibit 2: A:14.) The voter presses any key to continue, sees that the box beside Mr. Bell s name is no longer marked in red, and scrolls to the next race. In order to create a summary screen that shows a straight party choice and no selections beside each individual race, the voter must go through this same process sixteen more times in the example before the court. The number of times a voter would have to complete this process of de-selection would vary from precinct to precinct, depending on the number of party candidates that are on a voter s individual ballot. The paper ballot non-emphasis voter The voter is handed the paper ballot. The non-emphasis voter proceeds to a private booth with his paper ballot and marks the box or oval beside the straight party option of his choice. The ballot shows one mark beside the selected party and no other marks. The voter then deposits the ballot in the ballot box. He has completed the voting process. The summary screen of this eslate voter will resemble the paper ballot of a non-emphasis voter in that the straight party choice on each ballot is marked. On the paper ballot, there are no other marks are on the paper. On the eslate, the screen displays the message that no selections have been made. 12

21 Appellants claim that this resemblance is confusing, but they ignore the fact that the processes by which these two ballots are created are remarkably different. Appellants also make no attempt to explain why an emphasis voter on an eslate who has gone to such lengths, allegedly in order to emphasize every single vote in every race, would be satisfied with a ballot that resembles the paper ballot of a voter who has made no attempt whatever to emphasize his vote. Neither do Appellants explain why the emphasis voter, who allegedly does not trust a straight party vote, but insists on seeing a ballot that is marked both for the straight party option and for each individual candidate, is not satisfied with a voting machine that presents exactly such a ballot when the straight party choice is made. 13

22 STANDARD OF REVIEW The standard of review for the district court s grant of summary judgment is th de novo. Curtis v. M&S Petroleum, Inc., 174 F.3d 661, (5 Cir. 1999) citing Allen v. Pennsylvania Engineering Corp., 102 F.3d 194, 196 (5th Cir.1996), citing Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109 (5th Cir.1991)(en banc), cert. denied, 503 U.S. 912, 112 S.Ct (1992). The standard of review for the court s evidentiary ruling is abuse of discretion. Id., citing General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). 14

23 SUMMARY OF THE ARGUMENT The district court correctly applied the Anderson-Burdick test in determining whether or not the eslate voting system violates the constitution. See Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct (1983); Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 245 (1992). There is no showing by the Appellants that the Anderson- Burdick test is to be applied only in cases involving ballot access. The Supreme Court stated clearly in both Anderson and Burdick that those cases applied to cases involving the voting process, and circuit courts have had no difficulty in applying the Anderson-Burdick balancing test to cases that do not involve ballot access. Appellants argue that the district court s reliance on Weber v. Shelley, 347 F.3d th th 1101 (9 Cir. 2003) and Wexler v. Anderson, 452 F.3d (11 Cir. 2006) was misplaced because those cases did not involve defects in a voting system. However, the instant case also does not involve an actual defect in a voting system. The eslate works in the manner that it was intended. Appellants have not identified a defect in the machine only a mechanism that they believe should work in a different way in order to protect what they have termed emphasis voters. Both Wexler and Weber involved constitutional attacks on the way that voting systems operated, and both are instructive here. 15

24 Appellants argue that the proper line of cases are those following Reynolds v. Sims, 377 U.S. 533, 84 S.Ct (1964), since those cases involved the right to vote and applied strict scrutiny. Appellants have not explained, however, why cases decided prior to Anderson and Burdick would govern over cases that were decided later and that the Supreme Court clearly said apply to the voting process. There is no evidence that this case requires strict scrutiny because the eslate classifies voters on the basis of wealth. In addition, this argument was not presented to the trial court and is therefore waived on appeal. Appellants also appear to be suggesting that because there is an easy solution to what they see as a problem with the eslate and emphasis voters, this court should order that relief. However, this argument goes to what voting system is better and to how a particular voting system can be improved, which are questions left to elected representatives. Unless the court finds a constitutional violation, no relief can be ordered, however slight. Appellants also argue that this case is on all fours with Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525 (2000), but the difference between this case and Bush v. Gore is readily apparent from even a cursory review. Bush v. Gore, applying a rational basis test, found that using different standards for the same voting system (one using chads), is irrational. Appellants want the court to order that the same standards must 16

25 be applied to different voting systems, regardless of the specific differences between the systems and how they record a vote. It is this rule, however, that would be irrational, since it ignores differences in the systems, how they record votes, the process that a voter goes through with each system, and the instructions given to each voter in order to allow him to record his vote in accordance with the rules of the voting system he is using instead of requiring a voter to record his vote in accordance with the rules of a system in use in a different part of the state. Having applied the correct analysis, the district court correctly found that the burden on voters, if any, is slight, and requires only the amount of engagement necessary to read the computer screen in front of him. The district court was correctly unpersuaded by the evidence of a voting record in which a voter had chosen a straight party ticket and then had gone through all of the warning screens to de-select each candidate. The court listed the assumptions necessary to make in order to reach the conclusion that this voter was obviously confused and was actually trying to emphasize each of his votes instead of de-select each party candidate, and the court refused to engage in these unreasonable assumptions. The district court correctly found that the Secretary of State had made a reasonable and nondiscriminatory choice in certifying the eslate, and that the state s regulatory interests were sufficient to uphold the statute allowing the Secretary to 17

26 make that choice. The choice was made in accordance with the state s statutory voting systems standards and in accordance with the state s process for examination of voting systems that leads to consideration for certification. Although Appellants claim that the eslate interface is confusing, they have no actual evidence that voters have been confused by it and no sound argument that the system is arbitrary. The eslate clearly instructs the user on how to make his choices. In addition, there is no evidence that the system unconstitutionally treats people differently based on happenstance and residency, that the system is more complicated than it needs to be, or that any undervotes on the eslate are attributable to emphasis voters who do not understand the system. There is nothing arbitrary about the eslate s de-selecting a candidate when that candidate has already been selected. There are only two choices for each candidate. The box beside his name is either marked or it is not. If it is marked, the only thing it can change to is being unmarked. There is nothing illogical about that choice. Although a political party may want the voter not to be able to change a straight party vote, the party preference does not make the choice on the eslate irrational. Appellants have not raised a material issue of fact. They have not shown that the summary screen confuses voters. Contrary to Appellants assertion, the excluded affidavit of Robert Parten does not create an issue of whether manual recounts would 18

27 produce different results, in part because the affidavit was properly excluded and because Parten s statement that he would himself have counted manual votes incorrectly does not make the voting system questionable. There is no issue of fact as to undervotes and whether they are caused by the eslate s interface or by emphasis voters, no issue created by three voters who claim not to have seen any warning screens, and no issue of fact created by the fact of an undervote. Regarding the last two issues, this court has no jurisdiction to order a state official to conform his conduct to state law. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900 (1984); Word of Faith World Outreach Ctr. th Church v. Morales, 986 F.2d 962 (5 Cir. 1993) correctly found that a federal court may construe state law as an antecedent to the examination of a federal issue, such as the application of the Eleventh Amendment, but there is no jurisdiction of the federal court to find a state law violation and to order a state official how to remedy that violation. Even if the court were to consider the Texas Election Code, Appellants have not shown an Election Code violation in the resemblance of a straight party eslate ballot where the voter has de-selected every candidate to the paper ballot of a nonemphasis straight party voter. Contrary to their claims, Appellants have not shown that Texans have emphasis voted for generations, and they have not shown that 19

28 emphasis voting in the past has rendered Texans incapable of adjusting to a system with a format different from a paper ballot. Finally, there is no showing of a violation of HAVA. The Texas statute instructing how a voter s intent will be ascertained takes into account the differences in voting systems, as it should. The rule of law suggested by Appellants would make the format of a paper ballot a constitutional requirement of all voting system, in perpetuity, and all because Appellants claim that Texas voters are confused by technology and are not able to understand when they see a computer in a voting booth that the old rules do not apply. 20

29 ARGUMENT Issue No. 1: Whether the District Court applied the correct test when it analyzed this case under the Anderson Burdick balancing test. The District Court correctly analyzed the eslate s method of recording straight party votes under the Anderson Burdick balancing test. The proper method for analyzing state election provisions is the test announced in Anderson v. Celebrezze, 460 U.S. at 780; 103 S.Ct. at 1564, and refined in Burdick v. Takashi, 504 U.S. at 428, 112 S.Ct. at 245. In Anderson v. Celebrezze, the Supreme Court required that lower courts analyzing a case involving voting regulations must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments. Then the courts must identify and evaluate the precise interests put forth by the state as justifications for the voting regulation. In making this evaluation, the court is to determine the legitimacy and strength of each of these interests and consider the extent to which these interests make it necessary to burden plaintiffs rights. At that point, the court must weigh all factors. Anderson at 789, 103 S.Ct. at To this test, the Supreme Court added in Burdick v. Takushi that the rigorousness of the inquiry depends upon the extent of the burden on First and Fourteenth Amendment rights. When state statutes impose severe restrictions, the statute must be narrowly drawn to advance a compelling interest. However, when a 21

30 state law imposes only reasonable, nondiscriminatory restrictions on those rights, the state s important regulatory interests are generally sufficient to uphold the 3 statute. Burdick v. Takushi at 434, 112 S.Ct. at Appellants have advanced a rather novel theory that the Anderson Burdick balancing test only applies to ballot access cases in which a candidate or party is seeking be included on the ballot. This theory ignores specific language in Anderson where the Supreme Court recognizes that each provision of a state s election code whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects at least to some degree the individual s right to vote... Anderson at 788, 103 S. Ct. at 1570 (emphasis added.) This language was important enough to be quoted verbatim in Burdick. Burdick at 433, 112 S. Ct. at The Supreme Court, therefore, did not limit the balancing test to cases involving ballot access, and instead specifically referred to cases involving the voting 3 In Burdick, the Supreme Court explicitly rejected a standard under which every voting case would be subject to strict scrutiny: to subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest... would tie the hands of the states seeking to assure that elections are operated equitably and efficiently. Burdick v. Takushi at 433, 112 S.Ct. at

31 process itself. Despite this clear language, Appellants argue that Anderson Burdick applies only to ballot access cases, and in support of this proposition, they cite cases that were decided prior to Anderson Burdick, as if the Supreme Court had never announced the balancing test at all. For example, Appellants quote Clements v. Flashing, a 1982 case (one year before Anderson) noting that the high court s ballot access cases focused on the degree to which the challenged restrictions operate as a mechanism to exclude certain classes of candidates from the electoral process. Clements v. Flashing, 457 U. S. 957, 964, 102 S. Ct. 2836, 2840 (1982), citing Lubin v. Panish, 415 U.S. 709, , 94 S. Ct. 1315, 1321 (1974). This quotation from Clements clearly shows the court s increasingly refined reasoning on election cases that resulted in the Anderson Burdick test, which explicitly takes the degree to which constitutional rights are burdened into consideration. Appellants contrast the Supreme Court s treatment of ballot access cases with cases involving the right to vote, which they argue focus on the right of qualified voters within the state to cast their ballots and have them counted. Reynolds v. Sims, 377 U.S. at 555; 84 S. Ct. at 1378, citing United States v. Classic, 313 U.S. 299, 315, 61 S. Ct. 1031, (1941). From this, they are apparently arguing that because the right to vote is involved, strict scrutiny applies. 23

32 In essence, Appellants argument that the Anderson Burdick analysis does not apply is based on cases decided prior to either Anderson or Burdick. Appellants do not explain why, despite the clear language of Burdick, that not every voting case is to be subjected to strict scrutiny, Burdick at 433, 112 S. Ct. 2063, they do not explain why non-ballot access cases are automatically subject to strict scrutiny, nor do they explain why Anderson and Burdick, cases decided after the cases they cite, and which clearly refine the cases they cite, are not to be applied here. The circuit courts have seen no impediment to applying the Anderson Burdick balancing test to cases involving issues other than ballot access. See Werme v. st Merrill, 84 F.3d 479 (1 Cir. 1996) (applying Anderson Burdick to the question of the right to appoint election inspectors and ballot clerks); Green Party of New York nd State v. New York State Board of Elections, 389 F. 3d 411 (2 Cir. 2004) (applying Anderson Burdick to a voter enrollment scheme); Crawford v. Marion County th Election Board, 472 F.3d 949 (7 Cir. 2007) (rejecting application of strict scrutiny and applying Anderson Burdick balancing test to requirement of a government issued th photo identification in order to vote); Weber v. Shelley, 347 F. 3d at 1101 (9 Cir. applies Anderson Burdick to challenge to touchscreen voting systems because of lack of voter verified paper ballot with electronic voting systems); Beaver v Clingman, th 363 F.3d 1048 (10 Cir. 2004) (applying Anderson Burdick to regulations concerning 24

33 who a party can invite to vote in its primary); Wexler v. Anderson, 452 F. 3d at 1226 th (11 Cir. applies Anderson Burdick to manual re-count procedures in the context of paperless touchscreen voting systems). The district court correctly evaluated the facts of this case under the Anderson Burdick framework, citing the above-referenced cases of Wexler v. Anderson and Weber v. Shelley. Appellants argue that the district court s reliance on Wexler and Weber is misplaced because those cases did not involve a specific, 4 identifiable defect in the voting mechanism. (See Brief of Appellant, p. 46.) This case, however, also does not involve a specific, identifiable defect in the voting 4 Appellants argue that this case is more analogous to Hendon v. North Carolina State Board of th Elections, 710 F. 2d 177 (4 Cir. 1983), than it is to Weber or Wexler. It is not. Hendon involved a finding that a statute was unconstitutional where the statute provided that a ballot that was marked straight party, but that contained cross-over votes for individual, non-party candidates was to be counted as a vote for the candidate of the party marked as the straight party choice. In relation to this statute, one of three voting machines in use at the time was calibrated to record a straight party ticket vote and was also able to record a cross-over vote. Two other voting systems recorded a straight party ticket vote and a cross-over vote as a vote for the candidate of the chosen straight party vote. The circuit court remanded the case for findings on whether the two systems that would not count a cross-over vote as a cross-over vote could be recalibrated to do so, and to take evidence on the state s reasons for treating voters differently depending on the voting system that they used. Id. at 183. On remand, the trial court found that the two voting systems could be recalibrated and that the state offered no evidence as to why voters who used these two systems should be treated differently. Hendon v. Helms, 633 F. Supp. 454, (W.D. N.C., 1986). Appellants claim that this case stands for the notion that a voting system must record the intent of the voter despite the voter s misuse of the system. (See Brief of Appellant, p. 49.) This notion, however, were it actually a holding in Hendon, is unenforcable and completely impractical in application. No system can be designed to defeat every voter s misuse of it. Hendon does not and cannot stand for this proposition. Moreover, Appellants do not explain why the court should ignore Supreme Court precedent that is directly on point and follow instead a decision of the Fourth Circuit that was made only shortly after Anderson was first announced and years before Burdick was decided. (Anderson is dated April 19, 1983 and Hendon is dated June 23, 1983.) 25

34 mechanism. The eslate system is not defective in that it has been shown to fail to record votes properly. It merely records the votes of some voters those who choose a straight party ticket and then choose not to vote in one or more races differently from the way in which Appellants believe these votes should be recorded. Appellants have not shown this operation of the voting system to be defective in any way. Even absent their claim of a defect, Appellants attempt to argue that Weber and Wexler, because they differed in their factual scenarios, should not be relied upon for their utilization of the Anderson Burdick test. Appellees agree that the factual scenarios were different in some respects. Weber involved an attack on a voting system because it failed to supply a voter verified paper trial, Weber at , and Wexler involved an attack on touchscreen systems alleging the insufficiency of the paper trial produced by the electronic system in use there. Wexler at Given these differences, however, both of those cases involved an attack on the method by which the states had chosen to record the vote, or as the Supreme Court put it in Anderson, the voting process itself. Anderson at 788, 103 S. Ct. at Just because there are differences in the reasons for the attacks on the voting systems in this case and in the cases of Weber and Wexler, Appellants have made no showing as 26

35 5 to why the Supreme Court s pronouncements in Anderson and Burdick should not be applied here. For these varied reasons Appellants argue that the Anderson Burdick balancing test has no application here. They claim that the proper line of cases is Reynolds v. Sims, apparently because Reynolds and Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995 (1972), applied a strict scrutiny test. However those cases involved, respectively, apportionment of districts for the Alabama legislature based on a census from over 60 earlier and a requirement of a year s residency prior to being eligible to vote. The issues addressed were, respectively, a serious dilution of an individual s vote and a complete bar to voting. The case before this court involves how a particular voting system counts votes cast by straight party voters who want to emphasize their votes. These voters are not cut off from the voting booth, nor is their vote diminished by state action. The Appellants hypothetical emphasis voter is not affected at all by the voting system to the extent that he reads the instructions in front of him and follows them. This is hardly an onerous burden. It is, in fact, a necessary requirement of any voting system, including paper ballots. 5 Appellants do not argue that the courts in Wexler and Weber were incorrect in applying the Anderson Burdick analysis. This is a curious omission since neither of those cases was a ballot access case, and for Appellants analysis to be correct, neither of those cases should have applied the Anderson Burdick balancing test. 27

36 Appellants also claim that the Secretary s certification of the eslate voting system classifies voters by wealth, language, and geography. They argue that voters with more education and resources, including access to and experience with technology, will be more comfortable with the eslate and thus have a better chance of having their votes cast effectively. Appellants did not make this argument to the trial court, and it is therefore waived. In addition, Appellants offered no evidence whatever on the issue of classes of voters divided into categories by wealth and their relative understanding of the eslate. They are apparently attempting to make the case that it is obvious that voters who have more money will be more comfortable with computers, and that the certification of the eslate is therefore invidious discrimination that must be strictly scrutinized. Besides the fact that Appellants have waived this argument, it has no merit. As noted, they have no evidence on this issue. In addition, they do not explain why people of all incomes who have used the eslate since 2000 have never complained about way that the system records straight party votes. Furthermore, to say that wealthier voters will be more comfortable with computers ignores the fact that growth of this kind of interactive computer technology has been proliferate in the general public for many years. Automatic teller machines, directories in buildings, and even 28

37 self-service gas pumps all require a user to read instructions on a computer screen and to respond with a specific action. Appellants have no basis for claiming that the eslate creates classes based on wealth. Furthermore, they have not even explained why they think that the use of a computer creates classes based on language and geography. They argue that a simple repair can solve the problem, although neither the repair nor the simplicity of it is in the record; in fact, there is nothing in the record that shows these machines to be broken and in need of repair. This argument, that it would be easy to fix the problem that these Appellants have with the eslate, occurs throughout their brief. Appellants seem to suggest thereby that because the solution is simple, this court should find in their favor. They ignore the fact that, regardless of the simplicity of any solution, this court must first find a problem, and find a problem of such magnitude as to reach constitutional proportions. Appellants argument also ignores the fact that the decisions as to how a particular voting system will work whether one screen is better than another, the choice of particular wording of a warning, or the look of a summary screen are all choices as to what is better. [I]t is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems. So long as their choice is reasonable and neutral, it is free from judicial second-guessing. Weber at

38 These choices initiate with the legislature which assigns decisionmaking in the area of election systems to the executive branch in the person of the Secretary of State. What is better or more clear or less confusing is therefore not a question for the court. The question for the court is whether the eslate, as configured, imposes a severe burden on the right to vote. If it does not, questions of the simplicity of the fix are irrelevant. If it does, the question of the complexity of the fix is likewise irrelevant, since the voting systems must be made to conform to constitutional requirements. Appellants final effort at showing that strict scrutiny is appropriate is their claim that Bush v Gore, 531 U.S. at 98; 121 S. Ct. At 525, is on all fours with the instant case. There are two reasons why Bush v. Gore does not apply here. First, Bush v. Gore was decided on a rational basis test and does not hold that strict scrutiny applies. Id. at , 121 S. Ct. at 530 (a state cannot by arbitrary and disparate treatment, value one person s vote over that of another. ) Second, in Bush v. Gore, the Supreme Court did not determine that it is unconstitutional to use different rules to count votes on different systems. Instead, the court determined that for a state to use different rules to count votes on the same system is a violation of equal protection and due process. Id. at 110, 121 S. Ct. at

39 Bush v. Gore does not apply to these Appellants complaint that the state is using different rules for recording votes on different systems. To do so is not arbitrary. To the contrary, it is an absolute necessity. The rules for recording votes on one system must conform to the manner in which that particular system records votes, and it must make sense within the system. To require the state to count votes from different voting systems using the same rules would be irrational, yet that is what these Appellants are asking the court to do apply the rules governing paper ballots to electronic systems. And they are asking the court to do this based on no evidence at all that voters are losing their votes because they cannot understand the simple and straightforward instructions given by the eslate. Appellants have not shown that the proper test to be applied is strict scrutiny. It is clear that the Anderson Burdick balancing test was the proper analysis of this case, and the District court was correct in rejecting strict scrutiny, rejecting Bush v. Gore, and engaging in the balancing required by Anderson Burdick. 31

40 Issue No. 2: Whether the District Court correctly found under Anderson Burdick that the burden on a voter s constitutional rights is slight. Applying the Anderson Burdick analysis, the district court first correctly examined the extent to which a challenged provision burdens First and Fourteenth 6 Amendment rights. (ROA 813, RE 3.) Noting the Appellants offer of voting records showing that voters using the eslate had chosen a straight party ticket and then had made no selection in certain races, the court was unpersuaded that the explanation for this choice is a confused emphasis voter. (ROA 813; RE 3) The district court summed up the assumptions necessary to reach this conclusion in the following way: The assumptions Plaintiffs are making are speculative to say the least. Reaching the conclusion that every time a straight party voter failed to make a selection in a race involving one of that part s candidates indicates an attempt to emphasis vote requires the following: (1) an assumption that the voter did not see or did not understand the fact that all of his Democratic choices were automatically marked when he chose the straight party Democratic ticket option; (2) an assumption that the voter did not see or did not understand the screen that told him to be aware that he was changing a straight party choice; (3) an assumption that the voter did not understand that he had de-selected his party choice when he was shown the screen showing the individual race in which the Democratic candidate s box, 6 Cites to Record Excerpts are to the Record Excerpts to Appellants Brief. Appellee has not designated any additional Record Excerpts. 32

41 (ROA 814; RE 3.) that had been marked in red, was no longer marked in red; and (4) the assumption that the voter did not see or understand the summary screen, which told him that he had made no selection in the particular race(s) in which he attempted to emphasize his vote. See Def. s Mot. Summ. J., Exs If a voter works his way through each of these warnings and still leaves a particular race with no selection, it is equally if not more plausible that the voter intended to make no selection for that race. The Court is not impressed by Plaintiffs argument that the summary screen indicating that a straight party selection has been made and also indicating that no selection has been made for some or all races is so confusing or misleading as to violate voters constitutional rights. Rejecting Appellants invitation to assume that voters who vote straight party and who also make no selections in individual races are actually confused emphasis voters, the district court concluded that (ROA 816; RE 3.) The only burden the eslate arguably places on the First and Fourth Amendment rights of voters is to notice that the box beside his chosen candidate s name is marked in red after selecting the straight party ticket option. The machine warns the voter several times, as discussed above, should the voter seek to emphasize his straight party candidate by de-selecting that candidate. This burden is slight and requires only the amount of engagement necessary to read the computer screen in front of him. Continuing the Anderson Burdick analysis, the district court found that the Texas Secretary of State made a reasonable, politically neutral and non- 33