Michael v. Roberts v. Jerry B. Wamser, Rita M. Krapf, Walter R. Wrenn, Jr. And David A. Robbins, Thomas A. Villa

883 F.2d 617

• Court: Court of Appeals for the Eighth Circuit
• Decided: November 14, 1989
• Docket: 88-1138
• Status: Published

Opinions

BOWMAN, Circuit Judge.

Appellants Wamser, Krapf, Robbins, and Wrenn (the “Board”), acting members of the Board of Election Commissioners of the City of St. Louis (“City”), appeal the District Court’s determination that the Board’s use of the punch-card voting system in City elections¹ violates Section 2 of the Voting Rights Act. The Board contends, among other things, that appellee Roberts, an unsuccessful candidate in the March 1987 Democratic primary for President of the Board of Aldermen, did not have standing to sue under the Voting Rights Act, 42 U.S.C. §§ 1973 et seq. We agree, and reverse.

I.

Michael V. Roberts is a black citizen of the City of St. Louis, Missouri and was a major contender in the Democratic primary for President of the Board of Aldermen in March 1987. On February 27, 1987, four days prior to the primary election, Roberts brought suit in the District Court against the Board and George Peach, Circuit Attorney for the City.² In his complaint, Roberts alleged that certain actions of the Board constituted unfair help to an opposing candidate³ and that the Board systematically removed blacks from the voter registration rolls in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986, amendments I, V, and XIV of the federal constitution, and the federal Voting Rights Act. Roberts requested the Court to (1) enjoin the defendants from interfering with or intimidating the plaintiffs and black citizens; (2) enjoin the defendants from contributing to or doing commercials for white candidates; and (3) grant punitive damages of $150,-000.⁴ On the morning of the primary election, Roberts requested the appointment of federal marshals to ensure the integrity of the election. This relief was denied by the District Court.

Roberts lost the primary by 171 votes. A total of 77,444 votes were cast. The following day, the Board certified the results and announced Thomas A. Villa the winner.⁵ Missouri law provides a candidate the opportunity to contest an election result. Mo.Rev.Stat. §§ 115.526 et seq. (1986).⁶ Missouri state courts are authorized to conduct recounts and determine the validity of ballots. Mo.Rev.Stat. §§ 115.539-115.545.

Even though Roberts lost by less than one percent of the total votes cast, entitling him to a recount, see Mo.Rev.Stat. § 115.601, he did not avail himself of the Missouri election contest procedures. Instead, Roberts filed in the District Court on March 9,1987 the first of four amendments to his original complaint.⁷ In this First Amended Complaint, Roberts reiterated his previous allegations and requested the court to (1) manually recount, under the supervision of federal marshals, all ballots cast; (2) render the primary election null and void; and (3) prohibit the general election. His complaint also requested the court to exercise pendent jurisdiction over his claim for a recount pursuant to state law. The District Court declined to exercise pendent jurisdiction.

The Second Amended Complaint mirrored the first except that Roberts abandoned his claim for a recount pursuant to state law. In his Third Amended Complaint, Roberts was joined by three members of the St. Louis branch of the NAACP. It is in this amended complaint that Roberts first implicates the use of the punch-card voting system, claiming that a disproportionate number of black voters’ ballots were not counted by the tabulating machines.

On April 9, 1987, the District Court ordered a manual recount for specific wards.⁸ After the results of the recount showed a decrease in the margin of Villa’s victory, the court ordered a recount for the remaining wards. Ballots not counted by the tabulating machines were examined by a three-member panel consisting of one member selected by Roberts, one member selected by Villa, and a third member appointed by the District Court upon the failure of Roberts’s and Villa’s representatives to agree on the third member. While the panel disagreed on the precise results of the recount, “it is clear that Roberts would have lost the election by no less than sixty votes even under the most favorable rules applied, either unanimously or by majority vote of the panel.” Roberts v. Wamser, 679 F.Supp. 1513, 1516 (E.D.Mo.1987).

On June 26, 1987, Roberts, acting alone,⁹ filed a Fourth Amended Complaint in which he deleted most of his earlier allegations. In this final amended complaint, Roberts alleged that the Board’s use of the punch-card voting system resulted in the failure to count a disproportionate number of ballots cast by black voters.¹⁰ Roberts asserted that as a direct result of the Board’s failure to count these ballots:

[Sjeveral hundred or thousands of black citizens of the City of St. Louis who desired to cast their ballots for plaintiff Michael V. Roberts ... were denied equal opportunity to participate in the electorial [sic] process, and to elect the candidate of their choice in that their ballots cast were not counted, and plaintiff Michael V. Roberts was denied the electoral victory which was rightfully his....

Designated Record at 360.

Roberts requested a manual recount and a declaration of the “true winner” of the primary election. Roberts also requested the court to permanently enjoin the Board from utilizing any practices or procedures that deny black citizens equal access to any phase of the electoral process. Roberts brought this action under § 1983, alleging violations of the Fourteenth and Fifteenth Amendments, and under the Voting Rights Act.

Before the start of trial, the District Court dismissed Roberts’s § 1983 claims, leaving only the claim under the Voting Rights Act. After a three-day bench trial, the District Court concluded that the Board’s use of the punch-card voting system and failure to manually review rejected ballots constituted a violation of § 2 of the Voting Rights Act. Relying on the Supreme Court’s analysis in Thornburg ¶. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the court found that the use of the punch-card voting system in St. Louis denies blacks an equal opportunity with whites to participate in the political process and to elect candidates of their choice. Roberts, 679 F.Supp. at 1532.

Although the court found a Voting Rights Act violation, it concluded that the violation did not result in Roberts’s defeat and thus denied the relief requested by Roberts. However, the court did order the Board to (1) manually count all ballots validly cast but rejected by the tabulating equipment in future elections; (2) target voter education on the use of punch-card voting in those wards that have a high number of uncounted ballots; and (3) offer explanations and demonstrations of the proper use of the punch-card voting system to all voters. Id. at 1532.

On appeal, the Board challenges the District Court’s decision on ten different grounds, but the Board s disagreement with the decision boils down to three main arguments: (1) Roberts was improperly granted standing to contest the election results under the federal Voting Rights Act; (2) the District Court erred in finding a Voting Rights Act violation from the evidence presented at trial; and (3) the District Court erred in failing to apply the standard of proof required under Thorn-burg. We reverse on the ground that Roberts lacks standing to sue under the Voting Rights Act.

II.

Standing is a threshold question in every case before a federal court. In Bender v. Williamsport Area School Dish, 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986), the Supreme Court counseled appellate courts to scrutinize cases for jurisdictional defects: “[Ejvery federal appellate court has a special obligation to ‘satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review[.]’ ” Id. at 541, 106 S.Ct. at 1331 (quoting Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934)); see also Coalition for the Environment v. Volpe, 504 F.2d 156, 168 (8th Cir.1974) (standing is a “threshold inquiry” that “eschews evaluation of the merits”).

A federal court must ask “whether the constitutional or statutory provision on which the claim rests properly can be understood as granting persons in the plaintiff’s position a right to judicial relief.” Warth v. Seldin, 422 U.S. 490, 500, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975) (footnote omitted). In the present context, the precise issue is whether the Voting Rights Act can properly be understood as granting an unsuccessful candidate the right to maintain a judicial challenge to allegedly discriminatory voting procedures that allegedly caused him to lose the election.¹¹

Originally, the Voting Rights Act expressly conferred standing only upon the Attorney General. However, in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969), the Supreme Court recognized that a private litigant attempting to protect his right to vote was a proper party to effectuate the goals of the Act, and therefore granted standing to aggrieved voters “seekpng] judicial enforcement of the prohibition” against the infringement of the right to vote on account of race. Id. at 557, 89 S.Ct. at 827. In recognition of the Supreme Court’s holding in Allen, Congress amended the Voting Rights Act in 1975 to reflect the standing of “aggrieved persons” to enforce their right to vote.¹²

Here, Roberts is not an aggrieved voter suing to protect his right to vote. Nowhere in his complaint (or anywhere else) does Roberts claim that his right to vote has been infringed because of his race. Nor does Roberts allege that he is suing on behalf of persons who are unable to protect their own rights. The asserted personal injury for which Roberts seeks a remedy is not the denial of his right to vote, but rather the loss of the votes that he claims he would have received if not for the allegedly disproportionate difficulties of black voters in coping with punch-card voting.¹³ Because Roberts is not seeking to enforce his right to vote, but rather to improve the odds of his being elected, the question becomes whether he is an “aggrieved person” within the meaning of the Voting Rights Act.

We conclude that an unsuccessful candidate attempting to challenge election results does not have standing under the Voting Rights Act. Although the “aggrieved person” language might be stretched to include an unsuccessful candidate such as Roberts, we are unconvinced that Congress intended it to be stretched that far. The purpose of the Voting Rights Act is to protect minority voters, not to give unsuccessful candidates for state or local office a federal forum in which to challenge elections. In addition, we see good reasons why Congress would not have wished to confer standing on defeated candidates. First, because of the potential divergence between the interests of a candidate seeking office and citizens attempting to enforce their right to vote, it is difficult to see an aggrieved candidate as being a proper party to bring a Voting Rights Act action. And second, because state and local election contests are quintessential state and local matters, to extend standing to an unsuccessful candidate to challenge his electoral defeat under the Voting Rights Act would violate principles of federalism in a highly radical way — an intention that we should not attribute to Congress except upon its unmistakably clear manifestation in the statutory language.

A.

The possible divergence of interests between a candidate seeking office and a citizen attempting to protect his right to vote underscores the dubious nature of Roberts’s claim to standing under the Voting Rights Act. The history of this litigation exhibits that Roberts’s primary concern was in getting elected, and that whatever displeasure he might have regarding election procedures originates from that concern.¹⁴ By contrast, an aggrieved voter is not concerned about getting elected, but with his right, and the right of others similarly situated, to vote. It is quite conceivable that a candidate hoping to be elected would concede certain issues that an aggrieved voter would not. Similarly, a candidate may decide to settle or dismiss a suit when an aggrieved voter would pursue the case to its conclusion.¹⁵ Where, as here, the question is whether a particular plaintiff has standing to sue under a particular statute, the standing doctrine, properly applied, serves to protect the legal rights of those persons intended to be protected by the statute. Although it is true that here the ultimate relief granted by the District Court may serve the interests of the voters, standing is a threshold question, as noted earlier, and must be determined before the court proceeds to the merits of a case.

B.

The essence of Roberts’s claim is that certain ballot casting, handling, and counting procedures utilized by the Board resulted in the failure to count some ballots. Roberts requested a federal district court to determine the validity of ballots cast in a local primary. The issue of the validity or invalidity of a ballot or ballot procedures is a question of state law. See Partido Nuevo Progresista v. Perez, 639 F.2d 825 (1st Cir.1980), cert. denied, 451 U.S. 985, 101 S.Ct. 2318, 68 L.Ed.2d 842 (1981); Hubbard v. Ammerman, 465 F.2d 1169 (5th Cir.1972), cert. denied, 410 U.S. 910, 93 S.Ct. 967, 35 L.Ed.2d 272 (1973). ' The “power to control the disposition of contests over elections to ... state and local offices” is conferred by the Constitution on the states. Id. at 1176.

Pursuant to Missouri law, “any candidate ... may challenge the correctness of the returns [of an election] ... charging that irregularities occurred in the election.” Mo.Rev.Stat. § 115.527 (1986). Missouri law provides an elaborate system to deal with a candidate’s challenge to an election outcome. The state circuit courts are given jurisdiction (§ 115.529) to hear election contests and are authorized to review ballots to determine their legality (§§ 115.541). An aggrieved candidate may designate one of his representatives to participate in the recount (§ 115.543). Any determination by a state circuit court is appealable (§ 115.-551). And a candidate losing by less than one percent of the total vote is entitled to a recount (§ 115.601). In the present case, Roberts bypassed the Missouri election contest procedures and instead used the Voting Rights Act to entangle the federal judiciary in his personal quest for city office.

We believe that our consideration of doubtful questions of standing to sue under the Voting Rights Act (or any other federal law that treads upon important interests of state and local governments) should be guided by a decent regard for the nature of our federal system. Where Congress acts in a field that is within its constitutional competence, but has not clearly spoken, a federal court should construe the congressional enactment in a manner that recognizes and preserves a healthy balance between state and national power. A concern for federalism cautions against the excessive entanglement of federal courts in state election contests. See Kasper v. Bd. of Election Comm’rs of City of Chicago, 814 F.2d 332 (7th Cir.1987); Pettengill v. Putnam County R-1 School Dist., 472 F.2d 121 (8th Cir.1973).¹⁶ If disappointed candidates for state office were allowed to use the Voting Rights Act to challenge the outcome of elections, “federal courts would adjudicate every state election dispute, and the elaborate state election contest procedures, designed to assure speedy and orderly disposition of the multitudinous questions that may arise in the electoral process, would be superseded.” Gamza v. Aquirre, 619 F.2d 449, 453 (5th Cir.1980); see also Grimes v. Smith, 776 F.2d 1359, 1367 (7th Cir.1985) (monitoring the conduct of elections “is a role that the federal judiciary should not be quick to assume”). The denial of Voting Rights Act standing to unsuccessful candidates helps to maintain the fragile relationship between federal and state power and allows state election complaints brought by unsuccessful candidates to be addressed under state laws designed specifically to deal with such complaints.

We also observe that Roberts’s claim to standing in this case is not dependent upon his being a member of a minority group protected by the Voting Rights Act, but rather on his simply being a candidate for public office. Under Roberts’s (and the District Court’s) theory of standing, any candidate, without regard to his or her race, could challenge an election result by alleging that something about the manner in which the election was conducted infringed upon the voting rights of blacks or other protected groups. If such a theory of standing were accepted, the potential Voting Rights Act challenges to state elections by losing candidates would be endless. We cannot believe that Congress intended such a result. More importantly, we cannot find anything in the language of the Voting Rights Act that makes manifest a congressional intent to bring about such a counterintuitive result.

As already indicated, our decision does not leave losing candidates without a remedy. Every state provides procedures for election challenges, see generally, Federal Election Commission, Contested Elections and Recounts, Vols. II & III (1978), and as Roberts asserts in his brief to this Court, “[l]ong before our electoral system was enhanced by the Voting Rights Act, the standing of unsuccessful candidates to contest elections [under state procedures] was beyond serious dispute.” Brief for Appel-lee at 14 (citing eight state court decisions). Here, the Missouri election contest procedures, not available to aggrieved voters, provide candidates an avenue for redress.¹⁷ In addition, a candidate who alleges that state officials have discriminated against him on account of his race can bring suit under § 1983 and the Fourteenth Amendment. See Smith v. Cherry, 489 F.2d 1098 (7th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974) (under § 1983, plaintiff must prove intentional or purposeful discrimination by defendant). We conclude that Roberts, as a defeated candidate, does not have standing to sue under the Voting Rights Act.

III.

The right to vote is fundamental to our system of government. Allegations by voters that their right to vote has been unlawfully denied or impaired must be considered with the utmost care. Although the Voting Rights Act is a powerful tool for eradicating racial discrimination as a barrier to equal voting rights for all citizens, standing to sue under this Act is limited to the Attorney General and to “aggrieved persons,” a category that we hold to be limited to persons whose voting rights have been denied or impaired. A defeated candidate, whose goal is to change the outcome of the election, is not a proper party to assert claims under the Voting Rights Act.

Because of our conclusion that Roberts lacks standing to bring this action under the Voting Rights Act, the judgment of the District Court is reversed.

1 . The punch-card voting system replaced the lever-type voting machines in 1981 in the City of St. Louis. The punch-card system requires a voter to push a pointed metal device (stylus) through the ballot card in a designated spot.

2 . Roberts was joined in this original complaint by Rev. James DeClue in his capacity as President of the St. Louis branch of the NAACP.

3 . Roberts's grievance stemmed primarily from the alleged actions of Wamser and Peach. Roberts specifically alleged that Wamser and Peach 1) contributed money and support to Roberts's white opponent; 2) publicly endorsed and starred in campaign commercials for Roberts's white opponent; 3) failed to deputize Rev. James DeClue as a volunteer registrar while allowing the nearly all-white League of Women Voters to serve in the same capacity; 4) acted so as to cause the political defeat, humiliation, loss of reputation, and mental distress of Roberts; 5) conspired to harm and deprive Roberts of his rights; and 6) intimidated and harassed black voters by making surprise visits to predominately black polling places.

4 . No mention was made in the original complaint of any irregularities with the punch-card voting system.

5 . Villa won the April 7, 1987 general municipal election and presently holds the office of President of the Board of Aldermen. Although Villa was granted leave to intervene as a defendant on April 2, 1987, he does not join the Board in this appeal.

6 . Roberts availed himself of the state election contest procedures after his bid for the same position in 1983. In the March 1983 Democratic primary for President of the Board of Aider-men, Thomas Zych defeated Roberts by approximately 750 votes. Roberts timely filed an election contest in state circuit court pursuant to Mo.Rev.Stat. § 115.526. Roberts alleged, among other things, that a large number of ballots had not been counted because undervot-ing and overvoting had occurred. See supra note 10. Roberts was not awarded a new election, but a recount was agreed to by the parties. The recount eventually widened Roberts’s margin of defeat.

7 . Defendant Peach was dismissed by Roberts on March 6, 1987.

8 . The recount was ordered for wards 1, 12, 13, 15, 16, 20, and 22.

9 . The other plaintiffs were dismissed by the District Court for failure to file pretrial materials. Roberts v. Wamser, No. 87-03470(3), slip op. at 1 (E.D.Mo. June 22, 1987) (order dismissing certain plaintiffs). Roberts was granted leave to file a final amended complaint "on his behalf only.” Roberts v. Wamser, No. 87-0347C(3), slip op. at 1 (E.D.Mo. June 26, 1987) (order granting Roberts leave to amend).

10 .The punch-card tabulation machines do not count “overvotes” and “undervotes.” The tabulation is done by a computer that reads the ballot cards by passing a beam of light over the card. If there is no hole in the card (under-vote), the machine cannot count a vote. If there are two holes punched in an election that allows only one selection (overvote), the computer will disregard both votes. In the 1987 Democratic primary for President of the Board of Aider-men, there was a total of 2,864 ballots cast in which a vote for any particular candidate was uncounted because of undervoting or overvot-ing.

11 . Whether Roberts, who sues as a frustrated candidate, has standing under the Voting Rights Act to bring this challenge to punch-card voting is a question of first impression. The case the District Court relied on to find standing, Goodloe v. Madison County Bd. of Election Comm'rs, 610 F.Supp. 240 (S.D.Miss.1985), is not directly on point because the case involved one plaintiff whose right to vote allegedly had been infringed. Moreover, the district judge in Goodloe never addressed the standing issue.

In other cases, suits brought by unsuccessful candidates have been dismissed for failure to state a claim without discussion of the standing issue. See McGruder v. Phillips County Election Commission, 850 F.2d 406 (8th Cir.1988) (court upheld dismissal of candidate's Voting Rights Act action for failure to allege facts constituting a violation without addressing standing issue); Smith v. Winter, 717 F.2d 191, 194 (5th Cir.1983) (court found that members of a county board failed to state a cause of action under the Voting Rights Act, stating: "We assume, without deciding, that [the board members] have standing to assert these claims under the Voting Rights Act.”); Brown v. Schweitzer, 596 F.Supp. 935, 938 (E.D.Mo.1984) (court dismissed action by a candidate for sheriff for failure to state a claim upon which relief could be granted because the practices complained of "do not affect plaintiffs right to vote”).

12 . Section 3, entitled “Proceeding to enforce right to vote” reads; "(a) Whenever the Attorney General or an aggrieved person institutes a proceeding under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendments in any State or political subdivision the court shall authorize the appointment of Federal examiners_” 42 U.S.C. § 1973a.

13 . The District Court, in finding that Roberts had standing, similarly recognized that Roberts's injury was the loss of the election because of punch-card voting rather than the denial of his right to vote. The court found that Roberts “allegedly suffered a distinct and palpable injury, the loss of an election, through the contested practice(s) at issue here and the alleged denial to black voters of an equal opportunity to participate in the political process.” Roberts, 679 F.Supp. at 1528.

14 . We note that Roberts’s original complaint, filed prior to the election primary, did not even contain a claim challenging the Board's use of punch-card voting, even though, as is evident from his 1983 state court action, Roberts had long had knowledge of the alleged difficulties of the punch-card voting system.

15 . Because of the potential conflict of interests, we doubt that Roberts could have been certified as a class representative under Fed.R.Civ.P. 23(a), which requires that the class representative fairly and adequately represent the interests of the group.

16 . The spectre of excessive entanglement by a federal court in state election contests is illustrated by this case. Here, the District Court appointed a three-member panel (one member selected by each of the candidates and one member selected by the court) to determine the validity of ballots that had been cast but that the tabulating machines were unable to count. No reason appears why Roberts could not have obtained a proper recount, and any other appropriate relief, under state law.

17 . The Supreme Court in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), stated that one of the factors to consider in determining whether a private remedy is implicit in a statute is whether "the cause of action [is] one traditionally relegated to state law ... so that it would be inappropriate to infer a cause of action based solely on federal law.” Id. at 78, 95 S.Ct. at 2087. Although the continued validity of the Cort analysis for determining the existence of private rights of action is questionable, see Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 520-22, 98 L.Ed.2d 512 (1988) (Scalia, J., concurring), this Court finds persuasive the fact that every state has procedures for defeated candidates to use in challenging elections. This fact further convinces us that Congress did not intend to displace established state election contest procedures by allowing defeated candidates to use the Voting Rights Act to bring state election contests into the federal courts.