Kozuszek, Nicole v. Brewer, Dale

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3224

N ICOLE K OZUSZEK and W ESLEY K OZUSZEK, JR.,

Plaintiffs-Appellants,

v.

D ALE B REWER, in her individual capacity, and

G EORGE N ELSON, in his individual capacity,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 05 C 394—Rudy Lozano, Judge.

A RGUED A PRIL 8, 2008—D ECIDED O CTOBER 8, 2008

Before K ANNE, W ILLIAMS, and T INDER, Circuit Judges.

W ILLIAMS, Circuit Judge. Nicole Kozuszek and her

brother Wesley Kozuszek, Jr., lived in Porter County,

Indiana. On November 4, 2003, the Kozuszeks voted in

an Indiana general election, but because of questions

surrounding their residence, election officials spoiled (i.e.,

did not count) their ballots. Now the Kozuszeks have

sued two Porter County officials under 42 U.S.C. § 1983,

alleging that these officials violated the Kozuszeks’ federal

2 No. 07-3224

constitutional rights by improperly spoiling their ballots.

Because there is no evidence that these officials acted

willfully to impair the Kozuszeks’ votes, we affirm the

district court’s grant of summary judgment in the offi-

cials’ favor.

I. BACKGROUND

On October 5, 2003, about one month before the election,

Wesley Kozuszek reported his car stolen to the police in

Chesterton, a town of about 11,000 people in Porter

County. A police officer met Wesley at his Chesterton

apartment, which he had rented through May 2004. The

police report on the incident listed this Chesterton

address for Wesley and indicated that he resided there.

Wesley’s sister, Nicole Kozuszek, also provided a state-

ment listing the same Chesterton address as her “home.”

The Kozuszeks, however, had registered to vote based on

their parents’ address in the neighboring town of Porter,

which had a population of about 5,000. Because Wesley

and Nicole would be unable to vote in person on election

day, they had obtained absentee ballots. In particular,

Wesley Kozuszek was voting absentee because he was

working on election day as a Democratic poll watcher at

a Chesterton polling place.

About a week before the election, Chesterton Police Chief

George Nelson attended a training session for election

workers. Wesley was not at the meeting, but like the other

workers, he had submitted a “claim voucher” that indi-

cated where he wanted his paycheck mailed. Nelson

No. 07-3224 3

noticed that Wesley had reported a Porter address, but

recalled that the recent police report describing the theft

of Wesley’s car had listed a Chesterton address. Nelson

mentioned this discrepancy to Dale Brewer, a Republican

member of the Porter County Election Board and an

election official who happened to be near Nelson during

the training session.

Brewer claims she did not think about the matter again

until election day, when she saw Wesley volunteering at

the Chesterton precinct. Brewer approached Wesley and

asked him, “How do you like living in Chesterton?”

Brewer claims Wesley responded that he liked living in

Chesterton okay, but that he only slept there once in a

while. Wesley claims he told Brewer, “No, I don’t live

in Chesterton. I live at home with my mother in Porter.” In

any event, Brewer claims she thought Wesley’s response

was strange, so she decided to investigate further.

At Brewer’s request, the Chesterton police (who were

stationed in the same building where Wesley was work-

ing) provided Brewer with the police report of the car

theft. Brewer reviewed the report and separately con-

tacted the two other members of the Porter County Elec-

tion Board, Stankiewicz (a Democrat) and Bozik (a Republi-

can), to tell them about the discrepancy in the addresses.

The two other board members agreed with Brewer that

if there was a residence conflict, a challenge should be

issued.

Brewer then contacted Porter election personnel and

discovered that the Kozuszeks were registered to vote in

the town of Porter and were casting absentee ballots there.

4 No. 07-3224

Brewer went to the precinct where the Kozuszeks’ ballots

would be tallied and filled out a challenge form, listing

her reasons for the challenge as being the Chesterton

police report and a “3-0 vote election board.” She did not

mention her encounter with Wesley earlier that day

and did not provide Wesley’s claim voucher that listed

a Porter address.

Poll inspector Rita Newman did not rule on Brewer’s

challenge until the polls had closed, at which time she

spoiled the Kozuszeks’ ballots. Brewer and Nelson do not

contest the Kozuszeks’ claim that this spoliation was in

error.

On November 1, 2005, the Kozuszeks brought this suit

for monetary damages under 42 U.S.C. § 1983. They claim

that Brewer and Nelson violated their right to vote and

their due process and equal protection rights under the

United States Constitution. Specifically, the Kozuszeks

allege that Brewer challenged their votes because their

mother was a Democrat who was running for re-election

as Porter town council president. The Kozuszeks have

also brought supplemental claims under the Indiana

constitution and Indiana common law.

After denying a motion to dismiss, the district court

granted the defendants’ motion for summary judgment

on the Kozuszeks’ federal constitutional claims and

declined to exercise supplemental jurisdiction over the

state claims, which were dismissed without prejudice. The

Kozuszeks then filed this appeal, which challenges the

district court’s decision on their federal claims.

No. 07-3224 5

II. ANALYSIS

There was no willful impairment of the Kozuszeks’

right to vote.

Both parties agree that the Kozuszeks’ federal constitu-

tional claims are governed by Bodine v. Elkhart County

Election Bd., 788 F.2d 1270 (7th Cir. 1986), in which we laid

out the requirements for election fraud claims under

section 1983. We held that “section 1983 is implicated only

when there is ‘willful conduct which undermines the

organic processes by which candidates are elected.’ ” Id. at

1271-72 (quoting Hennings v. Grafton, 523 F.2d 861, 864 (7th

Cir. 1975)) (emphasis in Bodine). By “willful” we meant,

at a minimum, that the alleged perpetrators had acted with

the intent of undermining the electoral process or impair-

ing a citizen’s right to vote. See Kasper v. Bd. of Election

Comm’rs, 814 F.2d 332, 343 (7th Cir. 1987) (“[I]ntent is an

essential ingredient of a constitutional election fraud case

under § 1983.”); see Bodine, 788 F.2d at 1272 (plaintiffs’

section 1983 claim failed because at most it alleged “willful

neglect” and not “fraud or other willful conduct”). So,

construing all facts in the light most favorable to the

Kozuszeks, the crucial question is whether a reasonable

jury could conclude that Brewer and Nelson willfully

acted to spoil the Kozuszeks’ ballots. See Rawoof v. Texor

Petroleum Co., 521 F.3d 750, 755 (7th Cir. 2008).

As a preliminary matter, we note there is no evidence

that Nelson did anything wrong here. The only evidence

tying Nelson to anything material in this case is that:

(1) Nelson correctly noticed an inconsistency between

the Porter address that Wesley Kozuszek reported on his

6 No. 07-3224

claim voucher and the Chesterton address he reported

when his car was stolen, and (2) Nelson pointed out this

disparity to Brewer, an election official who could further

investigate the matter. No reasonable jury could conclude

on these facts that Nelson was part of some nefarious

scheme to spoil the Kozuszeks’ ballots. Nelson simply

reported a possible instance of voter fraud to an appro-

priate person who could handle the matter.

The Kozuszeks also hint at a Capulet/Montague-style

feud between Chesterton and Porter officials, which they

suggest might have tainted Nelson’s decisionmaking.

But the Kozuszeks provide little detail on the alleged beef

(the Kozuszeks’ attorney suggested at oral argument that

it related to annexation issues) and at any rate, the

Kozuszeks do not connect the dispute to Nelson. So this

allegation is just unsupported conjecture, which has no

place in our summary judgment analysis. See Joseph P.

Caulfield & Assocs. v. Litho Prods., 155 F.3d 883, 891 (7th

Cir. 1998).

The Kozuszeks have a somewhat stronger case against

Brewer, since she was the central figure involved in

challenging their votes. But the Kozuszeks present no

direct evidence that Brewer engaged in fraud or other

willful conduct. Instead, they point to a “mosaic” of

circumstantial evidence that they claim shows that Brewer

“willfully” undermined the election process. See Burks v.

Wis. Dept. of Transp., 464 F.3d 744, 750 n.2 (7th Cir. 2006)

(“The only difference between a claim under Title VII

and a claim under § 1983 is who can be named as a defen-

dant in the action.”); Sylvester v. SOS Children’s Vills. Ill.,

No. 07-3224 7

Inc., 453 F.3d 900, 903 (7th Cir. 2006) (“A case of discrimina-

tion [under Title VII] can [like a mosaic] be made by

assembling a number of pieces of evidence none mean-

ingful in itself, consistent with the proposition of

statistical theory that a number of observations each of

which supports a proposition only weakly can, when

taken as a whole, provide strong support if all point in

the same direction: ‘a number of weak proofs can add up

to a strong proof.’ ” (quoting Mataya v. Kingston, 371 F.3d

353, 358 (7th Cir. 2004))); Koszola v. Bd. of Educ., 385 F.3d

1104, 1109 (7th Cir. 2004) (a jury can infer intentional

discrimination in a Title VII case based on a “convincing

mosaic of circumstantial evidence” that “point[s] directly

to a discriminatory reason” (internal quotation marks

omitted)).

The Kozuszeks’ “mosaic” has two main pieces. First, the

Kozuszeks claim that Brewer waited until election day

to start investigating Wesley because she knew he would

be occupied and unable to thwart her last-minute chal-

lenge. Second, they claim that Brewer should have in-

formed the poll inspector that Wesley had told Brewer

that he lived in Porter and had submitted a claim voucher

listing a Porter address.

We agree with the district court that no reasonable

jury could conclude on these facts that Brewer acted

willfully to spoil the Kozuszeks’ ballots. First, while Brewer

could have begun looking into Wesley’s inconsistent

addresses after talking with Nelson a week before the

election, she was not required to do so. More importantly,

the Kozuszeks have presented no evidence that Brewer

8 No. 07-3224

delayed her investigation for an impermissible reason.

Brewer, on the other hand, has a rational explanation for

the delay—when Nelson told her about the conflicting

addresses, she didn’t know whether Wesley was registered

to vote, and if so, where he was registered. She only

became suspicious of Wesley after she ran into him on

election day and he answered her question about his

residence in a strange way that conflicted with what was

on the police report. The Kozuszeks have not presented

any evidence that casts doubt on Brewer’s explanation.

Second, even though Brewer could have informed the

poll inspector about the claim voucher and her earlier

conversation with Wesley, there is no evidence that she

violated her job duties by failing to do so. And again, the

Kozuszeks do not provide any evidence that Brewer

deliberately withheld this information so that their

ballots would be spoiled. In fact, the poll inspector

already had all the information she needed to resolve

the challenge, as she had evidence that Wesley and

Nicole didn’t live in Porter, where they were registered to

vote. See Ind. Code. § 3-11-10-21 (2003) (“The vote of an

absentee voter may be challenged at the polls for the

reason that the absentee voter is not a legal voter of the

precinct where the ballot is being cast. The precinct

election board may hear and determine a challenge

under this section as though the ballot was cast by the

voter in person.”); id. § 3-11-10-22; id. § 3-11.5-4-15; id.

§ 3-11.5-4-16. And there is no evidence that the poll

inspector did not exercise her own judgment, independent

of Brewer, when she decided to spoil the Kozuszeks’

ballots.

No. 07-3224 9

The Kozuszeks also claim that Brewer “misrepresented”

to the poll inspector that her challenge was pursuant to a

“3-0 vote election board.” But there is no indication this

was a willful misrepresentation. Brewer had contacted the

two other board members and told them about the poten-

tial residency problem. They agreed with Brewer that a

challenge would be appropriate if there was an address

discrepancy, which Brewer proceeded to confirm. So

even if the other board members technically did not “vote”

on the matter, they certainly approved of Brewer’s

actions, and her description of a “3-0 vote” does not

suggest she acted willfully.

The Kozuszeks further allege that Brewer spoiled their

ballots because she was a Republican commissioned to

help defeat Porter Democrats, including the Kozuszeks’

mother. Apart from being pure speculation, the Kozuszeks’

allegation implies that a party member aggrieved by an

election can successfully sue under section 1983 simply

because a rival party administered the election. That

neither makes sense nor accords with the proper role of

the federal courts. See Bodine, 788 F.2d at 1272 (“section

1983 does not cover garden variety election irregularities”

(characterizing Griffin v. Burns, 570 F.2d 1065, 1076 (1st

Cir. 1978))); see also Dieckhoff v. Severson, 915 F.2d 1145,

1148 (7th Cir. 1990) (noting that courts must balance

protecting “the fundamental right to vote enshrined in

the first and fourteenth amendments with the avoidance

of excessive entanglement of federal courts in state and

local election matters (i.e., federalism)”). At any rate, one

of the board members who gave the go-ahead to Brewer

was a Democrat (Stankiewicz), which takes the sting out

of the Kozuszeks’ allegation.

10 No. 07-3224

The Kozuszeks also criticize Brewer for not asking

Wesley to further explain his residency situation when

she ran into him, and they question her decision to look

into Nicole Kozuszek’s residency, given that Wesley was

the one with the conflicting addresses. Like the other

pieces in the “mosaic,” we do not see how these actions

show that Brewer violated her job duties or engaged in

willful conduct. Regarding Wesley, it’s not clear what

further questioning would have accomplished, since he

claims that he had already and unequivocally told

Brewer that he lived in Porter, not Chesterton. Regarding

Nicole, Brewer saw on the police report that she had also

listed the Chesterton address as her “home.” Brewer

apparently knew of Nicole (remember it’s a small commu-

nity) and had thought she was still living with her folks

in Porter. So Brewer became curious whether Nicole had

changed her voter registration information after her

apparent move to Chesterton. The Kozuszeks present no

evidence that casts doubt on this explanation or

suggests that Brewer was on a Kozuszek witch hunt. So

there was no constitutional violation here.1

1

Additionally, because Brewer and Nelson did not violate the

Kozuszeks’ constitutional rights, they are shielded from liability

by qualified immunity, which generally protects state actors

from civil damages “insofar as their conduct does not violate

clearly established statutory or constitutional rights of which

a reasonable person would have known.” Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982); Miller v. Jones, 444 F.3d 929, 934 (7th

Cir. 2006); see also Saucier v. Katz, 533 U.S. 194, 201-02 (2001).

No. 07-3224 11

One final observation. In addition to finding that the

defendants had not acted willfully, the district court noted

that “[t]here is no evidence that any elected position in

[the] election was decided by two or less votes. As such,

there can be no real argument that the [spoliation] of these

two votes either undermined the election or caused the

election to be unfair.” This holding implies that any

level of election fraud is fine, so long as the fraud doesn’t

impact the final results of an election. But an election is

more than just a sum total of votes. It is also about the

act of voting—an individual’s ability to express his or her

political preferences at the ballot box. An official who

willfully interferes with this act violates the Constitution,

regardless whether the vote would have affected the

election outcome. See Bodine, 788 F.2d at 1271-72. For

example, a Democrat whose ballot is willfully spoiled can

sue under section 1983 even if she lives in the “reddest” of

states (where her candidate will lose) or the “bluest” of

states (where her candidate will win regardless of her

vote). So we expressly disavow the district court’s rea-

soning on this point.

III. CONCLUSION

The judgment of the district court is A FFIRMED.

10-8-08