LOCRESIA STONICHER and JOY CRANFORD, IN THE CIRCUIT COURT FOR MARSHALL COUNTY, ALABAMA Plaintiffs, Civil Action No. CV04-368 vs. JAMES TOWNSEND, Defendant. Brief of the Amici Curiae Mark Bollinger and James D. Clayton The Amici, Bollinger and Clayton present the following brief to assist this Honorable Court in assessing the evidence. I. The substantial compliance standard When a voter approaches the polling place, he usually responds to repeated prompts of the election officials regarding his name, address, identification, and where to sign the polling list. If, for instance, the identification offered by the voter is not appropriate, the polling official asks for another form of identification. In contrast, the absentee voter must follow written instructions, put various pieces of paper in several envelopes, fill out an affidavit, have the affidavit notarized (once) or witnessed (twice), and mail it back to the absentee ballot manager. Unlike election lawyers and campaign managers, voters are not familiar with the form of the ballot and the absentee materials especially when the absentee affidavit has been different in each of the last four presidential (and mayoral) elections. 1 Should voters be deprived of their ballot for small errors, or may some errors be deemed inconsequential? 1 Ala. Code 17-10-8 has been amended by Acts 94-320, 96-885, 99-388, and 2001-1097.
In Wells v. Ellis, 551 So.2d 382 (Ala. 1989), the Alabama Supreme Court decided an interlocutory appeal in a municipal election contest where many of the challenged votes were absentee ballots. 2 The Court first had to decide the standard by which it should judge challenges to absentee ballots. The Court surveyed the decisions of our sister States and noted, The majority of jurisdictions, however, has held that absentee voting laws should be liberally construed in order to effectuate the legislative purpose of protecting and furthering a citizen s right to vote. Substantial compliance with the statutory requirements is required under this interpretation. Wells at 383-84. The Court adopted the formulation of the substantial compliance test adopted in Florida in Boardman v. Esteva, 323 So.2d 259 (Fla.1975), cert. denied, 425 U.S. 967 (1976): In 1984, the Florida Supreme Court, again faced with an election dispute, reaffirmed the Boardman decision and summarized the Boardman factors to be considered in determining whether an election should be set aside: (a) the presence or absence of fraud, gross negligence, or intentional wrongdoing; (b) whether there has been substantial compliance with the essential requirements of the absentee voting law; and (c) whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election. Bolden v. Potter, 452 So.2d 564, 566 (Fla.1984). 2 The Court described the alleged deficiencies in the absentee ballots as 1) affidavits with defective signatures, either of the voter or of the witnesses to the affidavit; 2) affidavits with no date; and 3) affidavits lacking the reason for casting an absentee ballot. Wells at 382. 2
Wells at 384. The Court remanded the case to the Walker County Circuit Court for application of the substantial compliance analysis to the absentee ballots being challenged. More recently, in Eubanks v. Hale, 752 So.2d 1113 (Ala. 1999), the Alabama Supreme Court has reaffirmed the substantial compliance rule. It seems clear to us that, so long as any irregularities in the voting process do not adversely affect the sanctity of the ballot and the integrity of the election, substantial compliance with the essential requirements of the absentee voting law is sufficient. *** Finally, we note that the right of citizens to vote is perhaps the most basic and cherished right of our democratic system, and we must construe the voting laws in order to effectuate the legislative purpose of protecting and furthering a citizen s right to vote, Wells v. Ellis, 551 So.2d 382, 383 (Ala.1989), so long as the sanctity of the election process is preserved. Eubanks at 1128, 1150 (footnote omitted). II. Applying the substantial compliance standard. Since the announcement of the substantial compliance standard, the Alabama Supreme Court has heard several election contests involving absentee ballots. In one of these cases, Taylor v. Cox, 710 So.2d 406 (Ala. 1998), the Court did not mention the substantial compliance standard, instead relying on the intent of the legislature shown by the plain language of the statute requiring that each application [for an absentee ballot] shall be manually signed by the applicant. Taylor at 408. The Court held, Thus, the trial court erred in holding that the absentee ballots were valid even though the applications for the ballots had not been manually signed by the applicants. 3
Taylor at 408. We may fit this case into the substantial compliance framework by assuming that the Court considered that the absence of a valid application for an absentee ballot would adversely affect the sanctity of the ballot and the integrity of the election. In Williams v. Lide, 628 So.2d 531 (Ala. 1993), the trial court had admitted into evidence only those absentee ballots that were accompanied by an affidavit containing the voter s (1) place of residence, (2) reason for voting absentee, and (3) signature. However, if an absentee voter s affidavit lacked any of those three elements, the trial court permitted the voter to testify at trial to supply the missing elements. Williams at 536. The Court held, After reviewing the absentee affidavits presented by Williams, we conclude that the three-element test devised by the trial court was the most lenient test it could have used, under the circumstances, to determine whether affidavits were in substantial compliance with 17-10-7 and whether any irregularities in them would adversely affect the sanctity of the ballot [or] the integrity of the election. By allowing Williams to present testimony from absentee voters whose affidavits lacked the three elements deemed necessary, the trial court went a step further than it had to. Williams at 537. The rule from Williams seems to be that admitting testimony to cure defects in absentee ballot affidavits is permissible but not mandatory. It is committed to the sound discretion of the trial court. Three years after Williams, the Alabama Legislature amended the absentee voter law, inter alia, by adding the following sentences to Ala. Code 17-10-10: The provision for witnessing of the voter s affidavit signature (or mark) in Section 17-10-7 goes to the integrity and sanctity of the ballot and election. No court or other election tribunal shall allow the counting of an absentee ballot with respect to which the voter s affidavit signature (or mark) is not witnessed by the signatures of two witnesses 18 years of age or older or a notary 4
public (or other officer authorized to acknowledge oaths) prior to being delivered or mailed to the absentee election manager. While 17-10-7 requires the voter to list his address (including precinct and county), give his birth date, give a reason for voting absentee, sign the affidavit, and have it notarized or witnessed by two persons of voting age, the Legislature saw fit to declare only the witnessing of the signature as go[ing] to the integrity and sanctity of the ballot and election. By the application of the principal of statutory interpretation expressio unius est exclusio alterius (the expression of one is the exclusion of the other), the Legislature has declared that the address, birth date, and reason do not affect the integrity and sanctity of the ballot and election. In Eubanks v. Hale, the Court considered the validity of a large number of absentee ballots. The Court held 1. absentee ballots failing to comply with the witnessing/notarization requirement should not be counted, Eubanks at 1123-24; 2. voters could vote an absentee ballot on the grounds of absence from the county on election day if they had a good faith intention to be out of the county at the time they filed the affidavit and ballot, Eubanks at 1151; 3. the trial court should have excluded the ballots of those signing an affidavit stating they would be absent when they had no such plans, even if they were eligible for an absentee ballot under another statutory reason, Eubanks at 1151-56; and 4. absentee ballots marked by someone other than the voter should be excluded, Eubanks at 1157-58. The Eubanks decision is not inconsistent with the expressio unius construction suggested above. Ballots in categories 1 and 4 above are properly excluded under 17-10-10. Ballots in category 2 are properly counted because of 5
the Court s construction of the Legislature s intent in allowing voters to seek an absentee ballot for an event that has not yet occurred. It might seem that the exclusion of the category 3 ballots is inconsistent with the Court s earlier holdings in Wells v. Ellis and Williams v. Lide. However, there was a distinction: in Wells and Williams, the ballots appear to have lacked any indication of a reason, while the ballots excluded in Eubanks contained a false reason for absentee voting. The Williams Court specifically allowed the voters with the no-reason affidavits to testify so that the deficiency might be corrected. In Eubanks, the voters with the questioned affidavits were also allowed to testify and each admitted the real reason for seeking an absentee ballot. In summary, since the portions of the absentee affidavit containing the voter s address, birth date, and reason for voting absentee do not affect the integrity and sanctity of the ballot and election, this Court should follow the Williams v. Lide procedure of allowing testimony from voters or others to cure the deficiency in the affidavits. III. The application of the substantial compliance rule to absentee ballots with defective identification. In 2003 the Legislature adopted a requirement for all voters regular and absentee to produce identification before voting. Ala. Code 17-11A-1. A subsection provides: (e) An individual required to present identification in accordance with this section who is unable to meet the identification requirements of this section shall be permitted to vote by a challenged or provisional ballot, as provided for by law. 6
The Attorney General was asked for an opinion about the operation of this law in municipal elections. The Attorney General s Opinion states, Accordingly, in a municipal election, if an absentee ballot does not include identification, section 17-11A-1(e) of the Code of Alabama provides that the voter shall be permitted to vote by a challenged... ballot. Ala. Code 17-11A-1(e) (Supp. 2003). Thus, an absentee ballot in a municipal election that does not contain proper identification shall automatically be treated as a challenged ballot by the poll workers and should be counted. Opinion to Honorable Bill Dukes, Member, House of Representatives, dated June 21, 2004, A.G. No. 2004-161 (emphasis added). Even though the ballots without the proper identification should have been treated as challenged ballots, they were apparently counted. In such a situation, rather than punishing the voters for the failure of the absentee election manager to ask for correct identification, this Court should utilize the Williams v. Lide procedure of allowing testimony from voters or others to cure the deficiency in the affidavits. IV. Federal law requires the Court to ignore immaterial errors in this election contest. Federal law provides in 42 U.S.C. 1971, 3 (2) No person acting under color of law shall *** (B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election; ***. 3 This provision was originally adopted as part of the 1964 Civil Rights Act, Pub. L. 88 352, title I, 101, 78 Stat. 241, including the word Federal before each use of election. The Voting Rights Act of 1965 amended every reference Federal election in 1971 to apply to all elections, Pub. L. 89 110, 15, 79 Stat. 445. 7
The Amici suggest that this standard will lead to much the same result as the application of the substantial compliance rule outlined above. In the context of this statute, the word material means being of real importance or consequence 4 in short, that which would have lead to a different result. In the case of an absentee ballot, an immaterial difference would be the repetition of information already in the hands of the absentee election manager, such as having to repeat on the ballot affidavit the reason already stated in the application for an absentee ballot. While Ala. Code 17-10-4 requires the Secretary of State to design a uniform absentee application, the voter may submit a handwritten form containing sufficient information to identify the applicant and shall include the applicant s name, residence address, or such other information necessary to verify that the applicant is a registered voter. If the voter uses the uniform application (attached to this brief as Exhibit A), the absentee election manager will already have the reason for the voter s absence. The omission of the reason on the ballot affidavit will be immaterial to determining whether this voter is qualified. Similarly, a voter may not need to provide his voting precinct or date of birth, if the absentee election manager can determine that the applicant is a voter from the information provided. If this Court must determine that certain affidavits are fatally defective, it should apply the materiality test to determine whether the exclusion of the absentee ballot would be a violation of federal law. 5 4 Merriam-Webster Dictionary of Law (1996). 5 The courts are divided regarding the ability of private citizens to sue under this provision. Olagues v. Russoniello, 770 F.2d 791 (9 th Cir. 1985) (no private right of action); Gilmore v. Amityville Union Free School Dist., 305 F.Supp.2d 271 (E.D. N.Y. 2004) (no private right of action for this provision); Brooks v. Nacrelli, 331 (footnote continued on next page) 8
Submitted by, Edward Still Ala. Bar No. ASB-4786-I47W Suite 201 2112 11th Avenue South Birmingham AL 35205-2844 phone: 205-320-2882 fax: 877-264-5513 email: Still@votelaw.com CERTIFICATE OF SERVICE I hereby certify that on 22 February 2005, the original of the foregoing was filed with the clerk of the Circuit Court or in open court a copy of the foregoing was delivered by facsimile, email, and/or first class mail to the following: Algert S. Agricola, Jr., Esq. Slaten & O Connor, P.C. P O Box 1110 Montgomery, AL 36101 Randy H. Beard, Esq. P.J. Harris, Esq. Beard & Beard P. O. Box 88 Guntersville, AL 35976 Albert L. Jordan, Esq. Matthew D. Fridy, Esq. Wallace, Jordan, Ratliff & Brandt, LLC P O Box 530910 Birmingham, AL 35253-0910 R. Stan Morris, Esq. Cartee & Morris LLC P O Box 59767 Birmingham, AL 35976 F.Supp. 1350 (E.D.Pa.1971), affirmed 473 F.2d 955 (3 rd Cir.) (private suits may be brought). 9
APPLICATION FOR ABSENTEE BALLOT MUNICIPAL ELECTION CITY/TOWN OF, ALABAMA, Name Address where you live Mail my ballot to the address where I regularly receive mail. Same as above or: Precinct where you vote Date of Birth Home Telephone Number Work Telephone Number Social Security Number (requested, but not required, by authority of 17-10-4, Code of Alabama, 1975, for administration of absentee voting) I hereby make application for an absentee ballot so that I may vote in the following election: Municipal Election Municipal Run-Off Election I will be unable to vote at my regular polling place on election day because (check one box): I will be out of the county or the state on election day. I am physically incapacitated and will not be able to vote in person on election day. I work a required workplace shift which has at least ten (10) hours that coincide with the polling hours at my regular polling place. I am a student at an educational institution located outside the county of my permanent residence and am therefore unable to vote at my usual polling place on election day. I am a member of, or a spouse of a member of, the armed forces of the United States or am otherwise entitled to vote by absentee pursuant to the Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. 1973ff. I have been appointed as an election officer at a polling place which is not my regular polling place. I have a medical emergency. Complete the Physician s Report. The physician s report must be signed by a physician. [Application may be delivered by a designee. If assigning a designee, complete the Designee section at the bottom of this form.] I have a business emergency. By signing this application, I do solemnly swear or affirm that I was not aware of the out-ofcounty business requirement prior to the five (5) days before the election. [The voter must deliver the application by hand to the Absentee Election Manager during the five (5) days prior to the election.] When I apply for this absentee ballot, I understand that my name will be stricken from the list of qualified electors and I will not be entitled to vote at my regular polling place and I shall not vote again in this election. Voter s Signature Complete this Witness Signature section if voter signs by mark Print Witness Name The application may be handed by the voter to the Absentee Election Manager. Except in the case of a busines emergency, the application may alternatively be forwarded to the Absentee Election Manager by U.S. Mail [ 17-10-4 and 17-10-12, Code of Alabama, 1975]. READ PENALTIES ON BACK PHYSICIANS REPORT FOR MEDICAL EMERGENCY Physician shall describe and certify the circumstances as constituting the emergency. Physician s Signature Date ASSIGNMENT OF DESIGNEE FOR DELIVERY OF APPLICATION An application for an emergency medical absentee ballot may be forwarded to the Absentee Election Manager by the applicant or his or her designee. If assigning a designee, complete this section. Printed Name of Designee Signature of Designee Exhibit A