RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 ACLU v. Taft No. 02-3924 ELECTRONIC CITATION: 2004 FED App. 0327P (6th Cir.) File Name: 04a0327p.06 for Appellee. ON BRIEF: Raymond Vasvari, AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, Cleveland, Ohio, for Appellant. Arthur James Marziale, Jr., UNITED STATES COURT OF APPEALS Elizabeth L. Schuster, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. Keith FOR THE SIXTH CIRCUIT A. Wilkowski, VASSAR, DILLS & DAWSON, Toledo, _________________ Ohio, for Amicus Curiae.
AMERICAN CIVIL LIBERTIES X MOORE, J., delivered the opinion of the court, in which UNION OF OHIO , INC., - MARTIN, J., joined. RYAN, J. (pp. 15-20), delivered a - separate dissenting opinoin. Plaintiff-Appellant, - No. 02-3924 - _________________ v. > , OPINION - _________________ ROBERT TAFT , Governor of - Ohio, - KAREN NELSON MOORE, Circuit Judge. In this appeal, Defendant-Appellee. - we conclude that Article I, section 2, clause 4 of the United - States Constitution is mandatory, imposing upon a state N executive the duty to issue a writ of election when one of her Appeal from the United States District Court state’s seats in the United States House of Representatives for the Southern District of Ohio at Columbus. (“House”) becomes vacant during a congressional term. No. 02-00766—Edmund A. Sargus, Jr., District Judge. Because Robert Taft, Governor of Ohio (“Governor Taft”), refused to issue a writ of election when one of Ohio’s seats in Argued: January 28, 2004 the House became vacant due to the expulsion of James A. Traficant, Jr. (“Traficant”) and more than five months Decided and Filed: September 27, 2004 remained before the next Congress would convene, we hold that Governor Taft violated Article I, section 2, clause 4 and Before: MARTIN, RYAN, and MOORE, Circuit Judges. denied the voters in Ohio’s Seventeenth Congressional District, including members of the American Civil Liberties _________________ Union (“ACLU”), their rights to vote and to equal representation in violation of the Fourteenth Amendment. COUNSEL Accordingly, we REVERSE the district court’s decision and REMAND so that the district court may award appropriate ARGUED: Scott T. Greenwood, AMERICAN CIVIL declaratory relief and attorney’s fees to the ACLU. LIBERTIES UNION OF OHIO FOUNDATION, Cleveland, Ohio, for Appellant. Arthur James Marziale, Jr., OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,
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I. BACKGROUND declaratory relief, requiring Governor Taft to call a special election to fill the House vacancy in the District, and for Traficant represented the Seventeenth Ohio Congressional reasonable attorney’s fees pursuant to 42 U.S.C. § 1988. On District (“the District”) from January 1985 through July 24, August 19, 2002, the district court issued oral and written 2002, during the 99th through 107th Congresses. On July 24, orders denying injunctive relief. On August 26, 2002, the 2002, the House passed House Resolution 495, expelling district court issued an opinion and order denying the Traficant from the House. Subsequently, Governor Taft ACLU’s motion for a temporary restraining order and a publicly announced that he would not call a special election preliminary injunction and dismissing the case, thereby to fill the House vacancy left by Traficant’s expulsion. denying a permanent injunction as well. On August 23, 2002, Governor Taft decided, after consulting with local elected the ACLU filed a motion in the Sixth Circuit requesting officials, not to hold a special election, citing the cost of an emergency injunctive relief pending appeal, which a panel of election, the difficulty presented by redistricting that was to this court denied on September 4, 2002. take effect for the regularly scheduled election in 2002,1 the small length of time an elected replacement could be expected The district court had jurisdiction pursuant to 28 U.S.C. to serve, and the uninterrupted continuation of constituent §§ 1331, 1343, and 1367. We have jurisdiction over the services by the Clerk of the House. The 107th Congress was appeal pursuant to 28 U.S.C. § 1291.2 scheduled to adjourn on October 3, 2002; however, it did not adjourn sine die until November 22, 2002. Tim Ryan was II. ANALYSIS elected to the House by the “new” Seventeenth District at a general election held on November 5, 2002, but did not take A. Standard of Review office until January 3, 2003. Therefore, the “old” Seventeenth District was without representation in the House We review a district court’s decision to deny a preliminary and had diminished constituent services from July 2002 until injunction for abuse of discretion. Blue Cross & Blue Shield January 2003. Mut. v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir. 1997). We also review a district court’s decision to On August 5, 2002, the ACLU filed a verified complaint in deny a permanent injunction for abuse of discretion, and in the United States District Court for the Southern District of doing so, we review the district court’s factual findings for Ohio, asserting a § 1983 claim and pendent state-law claims against Governor Taft. The ACLU prayed for injunctive and 2 W e note tha t the AC LU filed its notice of appeal on August 19, 2002, specifying that the ACLU was appealing the district court’s 1 August 19, 2002 order denying “preliminary and permanent injunctive At the time he was expelled from the House, Traficant represented relief and entering judgment for the Defendant.” Joint Appendix (“J.A.”) the “old” Seventeenth District, which was comprised of Mahoning and at 169 . The district co urt’s August 19 written order, however, only denies Columbiana C ounties and parts of Trumbell County. In 2002, however, the ACLU’s motion for a temporary restraining order. In its August 19 Ohio redrew its congressional districts. Tim Ryan, who was elected in the oral ruling, the district court denied from the bench all injunctive relief, November 5, 20 02 genera l election, represents the “n ew” S eventeenth “be it a temporary restraining order and a preliminary injunction or a District, which is comprised of parts of Mahoning, T rumb ull, Portage, and permanent injunction.” J.A. at 228. A final written judgmen t in the case Summit Counties. The former Seventeenth Congressional District no was entered on August 27, 2002. Therefore, we have jurisdiction over the longer existed when Traficant was expelled in July 2002, but any special appeal pursuant to Fed. R. A pp. P . 4(a)(2). See Metro. Life Ins. Co. v. election to fill his seat would have had to follow the old b ounda ries. Ma rsh, 119 F.3d 41 5, 418 n.3 (6th Cir. 1997). No. 02-3924 ACLU v. Taft 5 6 ACLU v. Taft No. 02-3924
clear error and review the district court’s legal conclusions de The ACLU filed the complaint in this action “on behalf of novo. Sec’y of Labor v. 3re.com, Inc., 317 F.3d 534, 537 (6th its members who reside in and who are electors in the Cir. 2003). Although the district court did not specifically Seventeenth Ohio Congressional District.” J.A. at 6 (Compl. rule on the ACLU’s request for declaratory relief, instead ¶ 3). In this case, the ACLU has demonstrated that its dismissing the case in toto after ruling on the ACLU’s motion members would have had “standing to sue in their own right.” for preliminary injunctive relief, we review a “district court’s Cleveland Branch, N.A.A.C.P., 263 F.3d at 524. The ACLU exercise of discretion under the Declaratory Judgment Act, submitted affidavits from Louise Lefkort, Robert H. 28 U.S.C. § 2201(a), for abuse of discretion.” Scottsdale Ins. Sacherman, and Carol C. Sacherman, who were all members Co. v. Roumph, 211 F.3d 964, 967 (6th Cir. 2000). of the ACLU, resided in the “old” Seventeenth District, were registered to vote in that district, and desired to vote in a B. Standing and Mootness special election to fill the House seat left vacant by the expulsion of Traficant. These members had suffered an actual Jurisdiction, including standing, is “‘assessed under the injury, as they were without representation in the House and facts existing when the complaint is filed.’” Cleveland had been threatened with the imminent denial of their right to Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 524 (6th vote. This injury was fairly traceable to Governor Taft’s Cir. 2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S. actions because Governor Taft announced that he was not 555, 570 n.4 (1992)), cert. denied, 535 U.S. 971 (2002). In going to issue a writ of election calling for a special election. order to meet the standing requirements derived from Article This injury would have been redressable by injunctive and III, declaratory relief, in that an injunction requiring Governor Taft to issue a writ of election would have allowed residents a plaintiff must show: “(1) it has suffered an ‘injury in of the district to exercise their right to vote and to regain fact’ that is (a) concrete and particularized and (b) actual representation in the House. or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the The ACLU has also shown that the interests at stake in this defendant; and (3) it is likely, as opposed to merely case are germane to the organization’s purpose. The ACLU speculative, that the injury will be redressed by a submitted an affidavit from its Executive Director, Christine favorable decision.” Link, explaining the organization’s purpose as follows: “The object of this organization is to aid in maintaining and Id. at 523-24 (quoting Friends of the Earth, Inc. v. Laidlaw extending constitutional and other fundamental rights, Envtl. Servs., 528 U.S. 167, 180-81 (2000)). To bring suit on liberties, privileges, and immunities, and to take all legitimate behalf of its members, an association must show “‘its actions in furtherance of that object without political members would otherwise have standing to sue in their own partisanship.” J.A. at 161 (Link Aff.) (emphasis in original). right, the interests at stake are germane to the organization’s This case addresses citizens’ right to vote and right to equal purpose, and neither the claim asserted nor the relief representation, which falls squarely within the ACLU’s requested requires the participation of individual members in purpose of guaranteeing constitutional and fundamental the lawsuit.’” Id. at 524 (quoting Friends of the Earth, Inc., rights. Finally, this action does not require the participation 528 U.S. at 181). of individual members of the organization. No. 02-3924 ACLU v. Taft 7 8 ACLU v. Taft No. 02-3924
While standing is assessed at the outset of the litigation, a a plaintiff seeks solely equitable relief, his action may be case may become moot during the course of litigation, barred by the equitable defense of laches if (1) the plaintiff depriving the court of jurisdiction. Cleveland Branch, delayed unreasonably in asserting his rights and (2) the N.A.A.C.P., 263 F.3d at 524-25. The doctrines of standing defendant was prejudiced by this delay. Brown-Graves Co. and mootness serve different purposes: “In essence, standing v. Central States, Southeast and Southwest Areas Pension concerns only whether a plaintiff has a viable claim that a Fund, 206 F.3d 680, 684 (6th Cir. 2000). In this case, defendant’s unlawful conduct ‘was occurring at the time the Governor Taft announced on July 25, 2002 that he was not complaint was filed’ while mootness addresses whether that going to call a special election to fill the vacancy in the plaintiff continues to have an interest in the outcome of the District. The ACLU filed on August 5, 2002, eleven days litigation.” Id. at 525 (citations omitted). These different later, its complaint, its motion for a temporary restraining purposes are reflected in well-established exceptions to the order and preliminary injunction, and its supporting mootness doctrine, including the doctrine that a case will not memorandum. It is true that in Kay v. Austin, 621 F.2d 809, become moot if the injury is capable of repetition, while 813 (6th Cir. 1980), we held that a plaintiff seeking to be evading review. Friends of the Earth, Inc., 528 U.S. at 190. named on a presidential primary ballot was barred from obtaining injunctive relief because he delayed bringing suit At this time, the 108th Congress has convened; therefore, until twenty-five days after he knew the choice of candidates we can no longer provide appropriate injunctive relief. We had been made. In Kay, however, the defendant Secretary of can, however, still award declaratory relief and attorney’s State introduced evidence specifically demonstrating how this fees, provided the case has not become moot. Vacancies in short delay had prejudiced the defendant, in that the Secretary the House can happen near the end of a congressional term, provided evidence that most of the costs associated with the making it difficult for litigation to provide an effective elections preparations had been expended during this delay. remedy. See Jackson v. Ogilvie, 426 F.2d 1333, 1337 (7th Id. Cir.) (noting, while treating an identical situation, that the case would not be mooted by the inappropriateness of an In this case, each day that passed may have made it more injunction, that plaintiffs would be entitled to declaratory difficult to hold a special election; however, there is no judgment, and that cases “of this type in the election field are evidence in the record indicating specifically how this short peculiarly ‘capable of repetition, yet evading review.’” delay prejudiced Governor Taft. Likewise, there is no (quoting Moore v. Ogilvie, 394 U.S. 814, 816 (1969)), cert. evidence that Governor Taft had expended money or made denied, 400 U.S. 833 (1970). In fact, since this case was alternate preparations during the delay. We conclude that the filed, another House vacancy occurred in Ohio’s Third passage of eleven days was not unreasonable delay. Congressional District due to the resignation of Tony Hall to Moreover, we conclude that Governor Taft has not take a position in the Bush administration. We conclude that sufficiently demonstrated that he was prejudiced by this the injury involved in this case is capable of repetition, while delay. evading review, and thus is not moot. D. Article I, Section 2, Clause 4 C. Laches Article I, section 2, clause 4 of the United States We agree with the district court’s conclusion that the Constitution addresses the mechanism for filling vacancies in ACLU’s action is not barred by the doctrine of laches. Where the House that occur during a congressional term, providing: No. 02-3924 ACLU v. Taft 9 10 ACLU v. Taft No. 02-3924
“When vacancies happen in the Representation from any concluding that the district court had erred by dismissing the State, the Executive Authority thereof shall issue Writs of action due to the limited time that a Representative would Elections to fill such Vacancies.” Article I, section 4, clause serve, stating, “Except in those instances [where the period of 1 gives primary control over the election of Senators and possible service could truly be deemed de minimis] the Representatives to the states, providing: “The Times, Places delegation to the state legislature of this power over procedure and Manner of holding Elections for Senators and does not, in our opinion, alter the character of the Governor’s Representatives, shall be prescribed in each State by the duty to issue a writ of election.” Id. at 1336. In so holding, Legislature thereof; but the Congress may at any time by Law the court found that a special election could still be held on make or alter such Regulations, except as to the Place of November 3, 1970, the date of the next general election, and chusing Senators.” Congress, in turn, has enacted 2 U.S.C. concluded that it was “not prepared to say as a matter of law § 8, indicating that states have the authority to determine the that representation from the time the results of the November time of elections, providing: “The time for holding elections 3 election will be determined to January 3, 1971 is de in any State, District, or Territory for a Representative or minimis.” Id. at 1337. Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the In comparing Jackson to the instant case, both parties agree death, resignation, or incapacity of a person elected, may be that the time periods involved are important; they merely prescribed by the laws of the several States and Territories disagree on which time periods are important. Under Illinois respectively.” The district court concluded that the law at that time, 162 days had to elapse between the issuance considerable discretion given to state government officials to of the writ of election and the election itself. Id. at 1335. The determine election procedures, particularly the discretion to Seventh Circuit held that the governor had a duty to issue a set a time for a special election to replace a Representative, writ at the time of the Representative’s death, which would applied to the decision of whether to hold such a special have allowed an election to be held on January 23, 1970, with election at all. The ACLU argues that Article I, section 2, eleven months left on the term. Id. at 1337. When the district clause 4 is mandatory; therefore the government must call for court dismissed the case, an election could have been held on a special election. August 25, 1970, with four months left on the term. Finally, the Seventh Circuit refused to hold as a matter of law that the Given the infrequency of House vacancies, and the even amount of time between the certification of an election held greater infrequency of governors refusing to call special on the next general election date, November 3, 1970, and the elections to fill them, only one case, Jackson v. Ogilvie, deals beginning of the next term, on January 3, 1971, is de minimis. with such a situation. Jackson arose when the governor of The ACLU emphasizes Jackson’s indication that the time of Illinois refused to call a special election after the death of a possible service in the House in this case, November 5, 2002 Representative on August 13, 1969. 426 F.2d at 1334. to January 3, 2003, was not de minimis. Conversely, Voters brought suit on December 16, 1969, and “the district Governor Taft emphasizes that Jackson only conclusively court dismissed the action for want of jurisdiction” on March held that an enforceable duty existed when eleven months 16, 1970, finding the rights asserted too insubstantial to remained on the term at the time the vacancy occurred. support jurisdiction, as “the relatively short period in which the Sixth District will remain unrepresented” was not enough The parties and the district court cite three other cases that to raise constitutional questions. Id. at 1334-35. The Seventh influence our decision in this case. In Valenti v. Rockefeller, Circuit reversed in an opinion issued on May 6, 1970, 292 F. Supp. 851, 853 (W.D.N.Y. & S.D.N.Y. 1968) (three- No. 02-3924 ACLU v. Taft 11 12 ACLU v. Taft No. 02-3924
judge district court), aff’d mem., 393 U.S. 405 (1969), a U.S. Like the Seventh Circuit, we conclude that Article I, section Senate vacancy occurred in June 1968 upon the assassination 2, clause 4 is mandatory, requiring the state’s executive to of Senator Robert F. Kennedy, and state statutory law issue a writ to fill a vacancy in the House.4 We recognize that mandated that the vacancy would be filled in November 1970, there may be instances where the time remaining in the as sixty days were required prior to the primary election, and congressional term is truly de minimis, thereby excusing the replacement Senate elections were to be held in even- executive from issuing the writ, but the time involved in this numbered years. The plaintiffs in Valenti argued that the case cannot be considered de minimis.5 operation of state law unconstitutionally denied them their rights to vote and to representation. Id. The district court We also recognize that Article I, section 4, clause 1 gives determined that the delay was constitutional when balanced states the discretion to determine the “Times, Places, and against the state interests of voter turnout and interest; of Manner” of holding such elections, and that the states have preserving local elections from “the more party-oriented valid interests in ensuring fair and reliable elections. As political currents generated by statewide or national contests”; Valenti and Mason indicate, legislative balancing between a and of avoiding the economic hardship on Senate candidates state’s interests in ensuring fair and reliable elections, and its of financing a campaign in the off-year.3 Id. at 854, 859. In citizens’ rights to vote and to equal representation, is entitled Mason v. Casey, No. 91-5728, 1991 WL 185243, at *1-2 (E.D. Pa. Sept. 18, 1991), a House vacancy occurred on 4 September 11, 1991, and state statutory law mandated that the W e are no t at all persuaded by the Sup reme Court of Rhode Island ’s special election would be held at least sixty days after the statement in In re the Representation Vacancy, 15 R.I. 621, 624 (R.I. governor issued a writ of election. Like in Valenti, the 1887), that the go verno r, having the power under Article I, section 2, clause 4 of the United States Constitution, to issue a writ of election, also plaintiffs argued that the operation of state law created an has the discretion to decide, considering the 49th C ongress’s adjournment unconstitutional delay beyond the plaintiffs’ proposed date of date, whether to exercise that power. This statement is dicta and the November 5, 1991, and the district court held the delay which decision is an advisory opinion, not binding on this court. Nor are we likely was five additional months to be constitutional. Id. at persuaded by similar non-b inding dicta in People ex rel. Fitzgerald v. *2-3. Finally, in State ex rel. Armstrong v. Davey, 198 N.E. Voorhis, 119 N.E. 10 6, 108 (N.Y . 1918). 180, 181 (Ohio 1935), the Ohio Supreme Court ratified the 5 governor’s decision to set a replacement date at a later date The district court relied on the 107th Congress’s scheduled adjournment date of October 3, 2002 in concluding that the ACLU had than the plaintiff felt was proper. not met its burden of demonstrating irreparable harm, as the parties contemplated holding a November 5, 2002 election and there was no way of knowing whether a hold-over session would occur, and thus whether 3 the Seventeenth District would be unrepresented in a House vote. W e The probativeness of Valenti v. Rockefeller, 292 F. Supp. 851, 853 conclude the scheduled adjournment date should not be use d in evaluating (W.D.N.Y. & S.D.N .Y. 1968 ), is substantially diminished by the fact that whether a special election may be held in comp liance with state law and it addre ssed a vacancy in the Senate. The United States Constitution whether the time remaining after such an election would truly be de allows Senate vacancies to be filled by the governor through a temporary minimis. As history shows, the H ouse rarely adjourns sine die on its app ointment, and thus the seat may be filled during the period between sched ule adjournment date, and important legislation has been passed the vacancy and the special election. U.S . Const. amen d. XVII; Valenti, after such date. In fact, the amicus brief filed by Representative Marcy 292 F. Supp. at 855. Mo reover, if one of a state’s seats in the Senate Kaptur notes that the 107th Congress passed several pieces of important becomes vacant, that state will still be represe nted in the Senate, whereas legislation after its scheduled adjournment date of October 3, 2002, if one of a state’s seats in the House becomes vacant, residents of that including the Iraq war resolution (October 10) and the creation of the district will not be repre sented in the H ouse. Valenti, 292 F. Supp. at 863. Department of Ho meland Security (November 13 ). No. 02-3924 ACLU v. Taft 13 14 ACLU v. Taft No. 02-3924
to considerable deference. Ohio has exercised its discretion In summation, we conclude that Article I, section 2, clause to determine the time, place, and manner of elections by 4 imposed a mandatory duty upon Governor Taft to hold a enacting a comprehensive election code. Governor Taft special election to fill the vacancy in the District created by complains of the expense, inconvenience, and possible the expulsion of Traficant. Although there may be situations inaccuracies that would have accompanied a special election where an executive’s duty is excused because the time held on November 5, 2002. We point out that the Ohio remaining on the Congressional term is truly de minimis, this legislature, through its election code, has determined the was not such a situation. While legislative balancing of the length of time it considers necessary for conducting such a state’s and its voters’ interests is entitled to deference, a special election. If the Ohio legislature determines that more special election that complied with Ohio’s election code could time is needed to hold such an election, it may amend its have been held in this case. Therefore, we hold that Governor election code, and should a need to review such provisions Taft violated his duty to call a special election under Article arise, we will accord them appropriate deference. I, section 2, clause 4 and denied ACLU members the rights to vote and to equal protection in violation of the Fourteenth Had Ohio’s election code imposed requirements that made Amendment. These constitutional violations entitle the a special election an impossibility in this case, the ACLU ACLU to declaratory relief pursuant to 42 U.S.C. § 1983 and would have been faced with the burden of proving those 28 U.S.C. § 2201 and to reasonable attorney’s fees pursuant enacted requirements were unconstitutional. As Governor to 42 U.S.C. § 1988. Taft concedes, however, it would have been possible to hold a special election that complied with the requirements III. CONCLUSION imposed by the legislature in the election code to fill the vacancy in the Seventeenth District.6 We conclude that the district court committed errors of law, and thus abused its discretion by failing to award the ACLU appropriate equitable and declaratory relief. Accordingly, we REVERSE the district court’s decision and REMAND this 6 case so the district court may award appropriate declaratory To the extent that the O hio election code purp orts to give unfettered discretion to Governor Taft regarding the time for calling the special relief and attorney’s fees to the ACLU. election, it is not a meaningful standard entitled to deference. The Ohio code provide s: W hen a vacancy in the office of representative to congress occurs, the governo r, upo n satisfacto ry inform ation the reof, sha ll issue a writ of election directing that a sp ecial election b e held to fill such vacancy in the territory entitled to fill it on a day specified in the w rit. Ohio Rev. Code A nn. § 3521.03. M oreover, the Ohio Supreme Court has interpreted an earlier, similar version of this provision as granting the governor discretion to decide when to call a special election, bu t not to decide whether to call an election. State ex. rel. Armstrong v. Davey, 198 N.E. 180, 181 (Ohio 19 35). W hile the Eleventh Amendm ent prevents us from compelling Governor Taft to comply with state law, we may consider Governor Taft’s failure to act consistently with Ohio law when determining how much deference to accord his decision under the Constitution’s delegation of election procedures to the states. No. 02-3924 ACLU v. Taft 15 16 ACLU v. Taft No. 02-3924
_______________ In interpreting clause 4 and similar provisions of the federal Constitution, we are obligated to take cognizance of the DISSENT principles of federalism and comity that inhere in our unique _______________ system of dual sovereignty. Implicit in these principles is the obvious proposition that the Constitution does not impose RYAN, Circuit Judge, dissenting. The majority holds that upon the states the obligation to take action, which, in the Governor Taft was required by Article I, § 2, cl. 4 of the U.S. circumstances at hand, would be wasteful, imprudent, and Constitution to hold a special election to fill the vacancy manifestly ineffective to carry into effect the purpose of the caused by the expulsion of Congressman James A. Traficant constitutional mandate. from the U.S. House of Representatives. I do not believe the United States Constitution required Governor Taft to hold a The authors of Clause 4 were not theoreticians given to special election in the circumstances of this case and so I must creating mindless formalisms that, if applied literally, dissent. woodenly, or mechanistically, would require the states to take action in obedience to the verb “shall,” which, under the I. circumstances, is foolish, wasteful, and probably ineffective. Our Constitution grants limited, enumerated powers to the Neither constitutional “textualism,” “originalism,” nor any federal government, while reserving the remainder of the other interpretive “ism” requires that, in carrying out the governing authority to the states. Beyond the unenumerated mandate of Clause 4, a Governor abandon all common sense powers retained by the states, the Constitution delegates to and reasonableness and become, instead, a mere issuing clerk them certain tasks necessary for the proper administration and when a “vacanc[y] happen[s]” in a state’s congressional functioning of the federal government. One such task is the representation. duty imposed by Article I, § 2, cl. 4, which provides that “[w]hen vacancies happen in the Representation from any As Justice Oliver Wendell Holmes, speaking for the U.S. State, the Executive Authority thereof shall issue Writs of Supreme Court, stated, albeit with regard to a different Election to fill such Vacancies.” U.S. Const., Art. I, § 2, cl. constitutional provision: 4. The interpretation of constitutional principles must not Although clause 4 uses the imperative “shall,” that should be too literal. We must remember that the machinery of not be understood as a universal and absolute command to act government would not work if it were not allowed a little without regard to the facts and circumstances that bear play in its joints. directly upon the purpose of Section 2. That is so, not only as a matter of common sense, but also because, under our Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931). Constitution,“[t]he States . . . retain ‘a residuary and That “play in its joints” must certainly include a Governor’s inviolable sovereignty.’ . . . They are not relegated to the role discretion to respond to the mandatory language of Clause 4 of mere provinces or political corporations, but retain the in a reasonably sensible manner. dignity, though not the full authority, of sovereignty.” Alden v. Maine, 527 U.S. 706, 715 (1999) (quoting The Federalist No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)). No. 02-3924 ACLU v. Taft 17 18 ACLU v. Taft No. 02-3924
II. an incumbent 17th district congressman: one to fill the short- term vacancy in the old 17th district and another to represent With these principles in mind, I conclude that, given the the new 17th district in the next session of Congress. Adding circumstances Governor Taft faced when former to the confusion, voters whose precincts were recently added Congressman Traficant was expelled from Congress, he was to the 17th district would have been eligible to vote for only not required under clause 4 to call a special election. The one candidate and could not have participated at all in the vacancy in the 17th district “happen[ed]” on July 24, 2002, special election. With this confusing array of possibilities, slightly more than three months before the general election candidates and election workers would have faced the and less than six months before the end of the congressional formidable task of explaining to voters why some of them term. were being asked to take the extraordinary step of voting for two congressional representatives, while their neighbors were After taking into account the public notice requirements of being asked to vote for only one. Ohio’s election laws and the need for a primary election and a general election, Governor Taft concluded, and the plaintiff Despite the obvious cost and confusion, a special election has conceded, that the earliest practical date on which a might nevertheless have been required were it not for the very special election could have been held was November 5, 2002, real likelihood that Congressman Traficant’s replacement the date of the general election. In order to have held a would have arrived too late to represent the citizens of the special election on the date of the general election, the 17th district. Because Ohio election law imposes certain financially strapped counties that comprised the 17th district delays for canvassing (Ohio Rev. Code Ann. § 3505.32 would have been required to expend significant amounts of (Anderson Supp. 2003)), counting overseas ballots (Ohio money and effort to give notice of the vacancy to potential Rev. Code Ann. § 3509.05 (Anderson 1996)), and permitting candidates, print primary as well as general election ballots, applications for a recount (Ohio Rev. Code Ann. § 3515.02 pay additional election workers to staff the polling stations, (Anderson 1996)), the earliest the special election could have certify the results, and allow for possible challenges. been certified and, therefore, the earliest any newly elected representative could have participated in the business of the In addition to these demands on the resources of the House, was on November 25, 2002. See Ohio Rev. Code affected Ohio counties, the Governor was faced with a unique Ann. § 3505.38 (Anderson 1996). Against this backdrop, circumstance that could only have added further confusion to Governor Taft—unless Clause 4 renders him a mindless the already confusing necessity of conducting a special automaton—had to consider, in addition to cost and voter election together with the regular general election. As the confusion, that, at the time the ACLU filed its complaint, the majority points out, the 17th district was redrawn in 2002. House was scheduled to adjourn sine die on October 3, 2002, The “old” 17th district represented by Traficant comprised almost two months before any newly elected representative Mahoning and Columbiana Counties and parts of Trumbull from the 17th district could have taken his or her seat. He County. But the decennial 1990 census required would also have been obligated to consider that since 1933, reapportionment and resulted in a “new” 17th district the year in which the Congress changed its start date to comprising parts of Mahoning, Trumbull, Portage, and January 3, the House has only reconvened after the general Summit Counties. Consequently, on election day, some election approximately one out of every three times. voters in the affected counties would have had the option of voting for two congressional candidates, neither of whom was No. 02-3924 ACLU v. Taft 19 20 ACLU v. Taft No. 02-3924
At oral argument before the district court, the ACLU the vacancy caused by the expulsion of Congressman James speculated that a special election “could have” permitted a Traficant from the House. Holding a special election under newly elected representative from the 17th district to vote in these circumstances would have been absurd and one of these infrequent lame duck sessions of Congress. In meaningless, and in holding that the Governor was obligated fact, as proved by later events, Congress did reconvene for a to do so, this court pays no more than mere lip service to lame duck session. However, it adjourned on November 22, those principles of federalism and comity that are inherent in 2002, three days before a newly elected representative from the Constitution. What’s worse perhaps, under its “capable of the 17th district could have taken his or her seat. Although repetition, while evading review” exercise of jurisdiction, the majority implies otherwise, there was never any maj. op. at 6, the court implicitly mandates mindless possibility that the 17th district could have been represented compliance with Clause 4 in the future, in an even more in the House votes on the Iraq war resolution, which took absurd and unreasonable circumstance. place on October 10, or on the creation of the Department of Homeland Security, which took place on November 13. See I respectfully dissent. maj. op. at 12 n.5. Nor, contrary to the majority’s contention, is there any evidence in the record that the citizens of the 17th district suffered from “diminished constituent services” as a result of the Governor’s refusal to hold a special election. Maj. op. at 3. House Rule 2(i)(1) provides that, in the event of a vacancy, the Clerk of the House of Representatives shall continue to supervise a congressman’s staff, thereby ensuring the continuation of constituent services. Moreover, when questioned by the district court on this issue, the ACLU expressly disavowed any injury related to constituent services. III. Governor Taft was undoubtedly bound by the language of Clause 4, but implicit in that Section is the duty to exercise a limited discretion to assure that the execution of the mandate does not, under the circumstances, amount to a wasteful, unduly confusing, and very probably ineffective and useless election. Given the substantial cost of a special election, the likelihood of confusion, and the high probability, as proved by later events, that a newly elected representative would not have been able to take his or her seat, I do not believe that Governor Taft was required to hold a special election to fill