Opposition Brief — Fulani v. Hogsett

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FiLED

MAY 16 1991

—,

No. 90-1608 4 a

OFFICE OP THE CLERK

IN THE

Supreme Court of the United States

October Term, 1990

LeENORA B. FULANI, ef. al..,

Petitioners,

VS.

Joseru H. HoGsert, in his official capacity

as Secretary of the State of Indiana, ef a/.

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LINLEY E. PEARSON

Attorney General of Indiana

ROBERTS. SPEAR

Chief Counsel

(Counsel of Record)

JOHN M. WHITE

Deputy Attorney General

Office of Indiana

Attorney General

219 State House

Indianapolis, IN 46204

(317) 282-6316

Attorneys for Responderts

Joseph H. Hogsett, Evan Bayh,

Alan Mills, Timothy Durham

and Robert L. Wright

Graphics LTD. Tndianapelis, IN ter

QUESTIONS PRESENTED

1. Whether the Seventh Circuit correctly applied the doc-

trine of laches to bar relief in this case.

2. Whether the District Court correctly decided that Peti-

tioners failed to present an actual case or controversy, Peti-

tioners failed to allege any facts sufficient to establish a depri-

vation of their civil rights, and that Petitioners’ claim was moot.

PARTIES TO THE PROCEEDINGS

The petitioners, who were plaintiffs and appellants below,

are Lenora B. Fulani, Mamie Moore, Lenora B. Fulani’s Com-

mittee for Fair Elections, New Alliance Party, Julie Joy and

Mary Forrest (hereinafter “Fulani Plaintiffs”).

The respondents, who were defendants and appellees below,

are Joseph H. Hogsett, Secretary of the State of Indiana; the

State Election Board of Indiana; Evan Bayh, Governor of Indi-

ana; and Alan Mills, Timothy Durham, and Robert L. Wright,

Members of the Indiana State Election Board (hereinafter

“State Defendants”);! and Carlton E. Curry, intervenor-defen-

dant-appellee below.

' Prior to the conclusion of this case in the Court of Appeals, all of the

original defendants, who were sued in their official capacities only, were

succeeded in their respective offices by the above named respondents. There-

fore the above respondents were automatically substituted as parties under

FED. Ro APP. Po 48(Co0). See Fudani e. Hogsett, 917 F.2d 1028 (1990).

TABLE OF CONTENTS

a yc sess sak sv sar seese,

Nee ua ceeecbccnce

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B. Course of Proceeding Below ...........0..00....

C. Facts Relevant to Issue Presented. ............

Reasons Why the Writ Should Not Issue

II.

ITl.

IV.

THE SEVENTH CIRCUIT'S APPLICA-

TION OF LACHES TO BAR ALL

RELIEF IN THIS CASE WAS PROPER

AND IS CONSISTANT WITH PRIOR

DECISIONS OF THIS COURT.........

PETITIONERS’ EFFORT TO OBTAIN

EQUITABLE RELIEF WITH RESPECT

TO THE 1988 ELECTION [S NOW MOOT

AND THEIR REQUEST FOR MONE-

TARY DAMAGES IS BARRED BY THE

ELEVENTH AMENDMENT ..........

THE DECISION BELOW IS NOT

INCONSISTENT WITH THE DECI-

SION OF THE EIGHTH CIRCUIT...

PETITIONERS’ ENTIRE CASE

RESTED ON CONCLUSORY AND

SPECULATIVE ALLEGATIONS

BASED UPON A HYPOTHETICAL SET

Page:

Conclusion

OF FACT INSUFFICIENT TO INVOKE

FEDERAL SUBJECT MATTER JURIS-

ENC ae oe arta e aren scene 9

PETITIONERS FAILED TO PRESENT

ANY CIRCUMSTANCES OR FACTS

THAT WOULD ESTABLISH A VIO-

LATION OF THEIR CIVIL RIGHTS OR

OTHERWISE PRESENT A SIGNIFI-

CANT QUESTION OF FEDERAL LAW 12

TABLE OF AUTHORITIES

(Cases: Pages:

Aetea Life lusurance Co. v. Haworth, 300 U.S.

NRE a ear TN cia Oe en Seer ae 10

Alabama State Federation of Labor «v McAdory, 325

See IES Sok cs Wee coe Pea ea leiled be 10)

Baum v. Landig, 5385 F.2d 1016 (7th Cir, 1976) 2002... 1}

Chase v. McMasters, 573 F.2d 1011 (8th Cir, 1978)... s

Kdelman v. Jordan, AVS US. 651 A9TA) 20 eee. s

Biv parte Young, 209 U.S. 123 (1908) 20.0 és

Fulani v. Hogsett, 917 F.2d 1028 (1990) 20 ee. i]

Gamza vo. Aquirre, 619 F.2d 449 (Sth Cir. 1980) 0020... le

Giertsen 0. Board of Blection Commissioners of City of

Chicago, 751 F.2d 199 (7th Cin 1984) 20. t)

Golden vo Zwickler, 894 ULS. 108 (1969). 0 ee lt)

Illinois State Board of Blections « Socialist Workers

Party, 4 US. 173 1979) - 4

Jones v. State ex rel. Wilson. 152 Ind. HO, 55D NE. 229

Ste pact kone Ae Toes a one nor re Ld, 16

Ke nlucky hs Graham. (3 is Jd { 1985). : ~

Lunn ev Simpson, 207 Ind. 680, 194 NOB. 341 (1985 lo, 16

Manifold « Blunt. S63 F.2d T3268 (Sth Cir LOSSY). oe

denied U.S , 250 S.A. 248. 10%

L.Rd.2d 192 (1989 S15

Pennhurst State School and Hospital « Halderman, ABS

U.S. 89 (1984) .

Powel . Met Cir pasate YQ | ~ Sit) 19

Public Service Commission of Utah, etal. v. Wycoff Co.

fc., S06 C2 AS a ew U Rew Rhee aea ee 10)

Railroad Commission of Texas v. Pullman Co., 312

U.S. GG Ca ee ee re es eeasncccikss 16

Snowden vo Hughes, 321 U.S. 1 (1944)... eee, 12, 15

Southern Pacific Terminal Company v. Interstate Com-

merce Commission, 219 ULS. 498 (1911). ........ 7

State ex rel. Harry v. Ice, 207 Ind, 65, 191 N.E. 155

CHSGA) . . «5 a's ste areca at a 16

Steffel v. Thompson, 415 U.S, 452 (1974)... ee. 10)

Timms vo Metropolitan School District of Wabash

County, Indiana, 722 F.2d 1310 (7th Cir. 1983)... ()

United Public Workers v Mitchell, 330 U.S. 75 (1947). 10

Warth v. Seldin, 422 U.S. 490 (1975) .. wc ec ee es 10

Weinstein v. Bradford, 423 U.S. 147 (1975). 2.0. 0... 7

Williams v. Rhodes, 393 U.S. 23 (1968) .....0.0..0.0..005. (}

Constitution, Statutes and Rules:

U.S. CONST. ART. IESECTION 1, CLAUSE 2 .... i)

Article IIT of the Constitution. ....0.0.0.0.0....000000.. 1 10, 11

First Amendment... 3s cease eeee nee eae eka es 4, 13

Eleventh AmendMeeel 2c 4ccrrc ua aa eee aes sacs Hh,

Fourteenth Ament. cos ereekiac se eho ee eee 4

12 U.S.C. $1068 . i355 eee er 1 2; 4,7, 8

IC 3-10-4-Me) .. . ec eee ee 2

IC 3-11-4-19.. . .. cin ibe a SS

IC 3-11-10-26.. . ce 0 ee eee s

yy AD. a 0)

cath cues il

Othe)

ISA, C. Wright, A. Miller & FE. Cooper, Federal Practice

gE a ee s

No. 90-1608

IN THE

Supreme Court of the United States

October Term, 1990

LeENORA B. FULANI, ef. al.,

Petitioners,

Vs.

JosePH H. HoGsert, in his official capacity

as Secretary of the State of Indiana, ef a/.

Respondents.

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

STATEMENT OF THE CASE

NATURE OF THE CASE

Fulani Plaintiffs seek review of the Seventh Circuit's affir-

mance of the District Court’s dismissal of their complaint for

declaratory and injunctive relief and damages, filed pursuant

to 42 U.S.C.§1983.

COURSE OF PROCEEDING BELOW

Fulani Plaintiffs filed their five count Complaint pursuant to

12 U.S.C. $1983, on October 18, 1988. Petitioners alleged a

violation of their right to political speech, equal protection of

the law, discrimination against their political program and

beliefs, discrimination on the basis of their race and sex, vio-

lation of their right to free speech and association, and violation

of Indiana election law. State Defendants filed their Motion to

Dismiss the Complaint on October 21, 1988. Intervening

Defendant, Carlton E. Curry, filed his Motion to Dismiss on

October 20, 1988.

On October 25, 1988 the District Court granted the motions

to dismiss and dismissed the Complaint in its entirety. The

United States Court of Appeals for the Seventh Circuit

affirmed the District Court on November &, 1990.

FACTS RELEVANT TO ISSUE PRESENTED

The pertinent facts of the case were never in dispute and

were submitted to the District Court by joint stipulation of the

Parties.“ At the time this suit was initiated Indiana law

required that the names of all candidates for presidential elec-

tors were to be certified to the Secretary of State by noon on

August 1, before the general election. The names of the Presi-

dential and Vice-Presidential candidates had to be certified to

the Secretary of State before noon, September 1, before the

general election. IC 3-10-4-5(¢).* App. 16a.

The Fulani Plaintiffs certified the names of their candidates

for presidential electors to the Secretary of State prior to

All references to the facts and opinions below are to the appendix

ntained in the Petition for Writ of Certiorari and are cited to the appropri-

e page thereof as, “App. a.”

The statute has since been amended to require that the names of the

ectors and the candidates both be certified to the Secretary of State by noon

nh September 1, preceding the general election. [C 3-10-4-5(¢).

August 1, 1988 and certified the names of their candidates for

President and Vice-President to the Secretary of State prior to

September 1, 1988. App. 16a.

The Republican Party candidates for presidential electors

were not certified to the Indiana Secretary of State until

August 4, 1988. The Democratic Party candidates for presiden-

tial electors were not certified to the Indiana Secretary of State

until August 8, 1988. Both the Democratic and Republican

Party candidates for presidential electors were however, prop-

erly selected under Indiana law at their respective state con-

ventions prior to August 1, 1988. The Presidential and Vice-

Presidential candidates for both the Republican and Demo-

cratic Parties were duly certified to the Secretary of State prior

to the September 1, 1988 deadline. App. 17a.

The names Fulani and Moore as candidates for the New

Alliance Party for President and Vice-Presideni of the United

States, along with the names of Michael Dukakis and Lloyd

Bentson for the Democratic Party and George Bush and Dan

Quayle for the Republican Party appeared on the Indiana ballot

for the November &, 1988 general election.

The Fulani Plaintiffs filed suit on October 18, three weeks

prior to the polling date for the 1988 presidential election and

sought declaratory and injunctive relief to remove the names of

both the Republican and Democratic candidates for President

and Vice-President from the ballot in Indiana. By that time,

the ballots had already been printed and absentee voting had

already begun. IC 3-11-4-13; IC 3-11-10-26. The Fulani Plain-

tiffs also sought monetary damages.

The Fulani Plaintiffs claimed that allowing the Republican

and Democratic candidates on the ballot, without their electors

having been certified by August 1, violated their right to

political speech, to hold political beliefs and espouse programs,

and to equal protection under the First and Fourteenth

Amendments. The Fulani Plaintiffs also attempted to invoke

the court’s pendent jurisdiction over a state law claim. The

Fulani Plaintiffs’ central claim throughout their Complaint

was:

Upon information and belief, had the Fulani-Moore cam-

paign failed to file the New Alliance Party candidates for

presidential electors in a timely fashion or failed to comply

with the requirements of the Indiana Election Code in any

other respect, Fulani and Moore would not have been

listed on the Indiana ballot. App. 19a.

This allegation was realleged in each of the claims for relief.

The District Court found that because the Fulani Plaintiffs’

Complaint was premised upon a hypothetical situation about

what the State Defendants might have done in a different

factual setting, it failed to present the court with an actual case

or controversy for adjudication. Therefore, the trial court held

that it was without subject matter jurisdiction to hear the case

under Article III of the Constitution. The District Court also

found that the Complaint failed to present a claim upon which

relief could be granted under equal protection analysis

because: (1) the claim was moot to the extent that the Fulani

Plaintiffs’ candidates had in fact been listed on the ballot, (2)

due to its hypothetical nature, the claim failed to present an

actual case or controversy for adjudication, and (3) the Fulani

Plaintiffs failed to allege any facts to show intentional or pur-

poseful discrimination on the part of the State Defendants. The

District Court further found that the Fulani Plaintiffs failed to

show that any action by the State Defendants deprived the

Fulani Plaintiffs of a federally secured right under either the

First or the Fourteenth Amendments and failed to allege any

facts to show that the State Defendants discriminated against

the Fulani Plaintiffs on account of their sex or race. Having

found no independent federal subject matter jurisdiction, the

District Court dismissed the state law claim. The District

Court noted, but did not rule, that given the timing of the suit

and the election, the State Defendants presented a strong

argument for the application of laches. The District Court

dismissed the Complaint in its entirety.

a |

The Fulani Plaintiffs appealed the District Court’s decision

to the Seventh Circuit. The Seventh Circuit found that the

claims for declaratory relief and monetary damages presented

a live controversy between the parties and were not moot. The

Seventh Circuit further found that the Fulani Plaintiffs had

standing to sue. In doing so the Seventh Circuit found that the

increased competition the Fulani Plaintiffs had to face was an

injury, fairly traceable to the actions of the State Defendants,

which could be remedied by an award of damages to redress the

increased outlay of campaign money.

However, the Seventh Circuit ruled that the claim was bar-

red by laches. The Seventh Circuit noted that the action taken

by the Secretary of State, which formed the basis of the Com-

plaint, was taken and available for public inspection in August

and early September, 1988. The Seventh Circuit then held that

the failure of the Fulani Plaintiffs to file their Complaint until

October 18, 1988, after the ballots were printed and absentee

voting had begun, was fatal to their claim for any relief.

Because the Seventh Circuit disposed of the case on laches, it

did not reach the merits of the other issues involving equal

protection, section 1983 or pendent jurisdiction.

REASONS WHY THE WRIT SHOULD NOT ISSUE

I. THE SEVENTH CIRCUIT’S APPLICATION OF LAC-

HES TO BAR ALL RELIEF IN THIS CASE WAS

PROPER AND IS CONSISTANT WITH PRIOR DECI-

SIONS OF THIS COURT.

The Seventh Circuit found that the Fulani Plaintiffs’ failure

to file their Complaint until October 18, 1988, three weeks

prior to the November & general election, when the actions of

the State Defendants were taken and available for public

inspection as early as August 1988, prejudiced the State Defen-

dants. The Seventh Circuit noted the extreme difficulty, if not

impossibility, of providing another set of ballots at that late

date along with the confusion and risk of interference with the

rights of the absentee voters as the prejudice caused by the

unwarranted delay. App. 10a-lla. The application of laches in

such a case is consistent with this Court’s decision in Williams

v. Rhodes, 393 U.S. 23, 24-35 (1968). While the Seventh Circuit

could have addressed the merits of the Complaint for Declara-

tory Relief, there was no requirement that it do so. The Fulani

Plaintiffs were asking the Seventh Circuit to rule on either the

constitutionality of the hypothetical set of facts that never took

place, nor likely to take place in the future, or a question of

purely state law. The Seventh Circuit's failure to address the

claim for declaratory relief is certainly not worthy of this

Court’s review.

Il. PETITIONERS’ EFFORT TO OBTAIN EQUITABLE

RELIEF WITH RESPECT TO THE 1988 ELECTION

IS NOW MOOT AND THEIR REQUEST FOR MONE-

TARY DAMAGES IS BARRED BY THE ELEVENTH

AMENDMENT.

Before the filing of the appeal to the Seventh Circuit, the

1988 Election was held, presidential electors from Indiana

were elected, the electors cast Indiana’s twelve Electoral Votes

for the Republican nominees for President and Vice-President,

the Electoral College as a whole has elected George Bush and

Dan Quayle President and Vice-President, and they have now

been sworn into those offices.

Hence, to the extent the Fulani Plaintiffs seek review of the

denial of their request for injunctive or other equitable relief

with respect to the 1988 election, the issue is now moot. See

Griertsen v. Board of Election Commissioners of City of Chi-

cago, 751 F.2d 199, 202 (7th Cir. 1984) (appeal from injunction

preventing enforcement of election law requirement in primary

election dismissed as moot, because primary election had been

held since the filing of the appeal). See also Timms v. Metro-

politan School District of Wabash County, Indiana, 722 F.2d

1310, 1314 (7th Cir. 1983) (“It is settled that our jurisdiction

requires ‘an actual controversy . . . to exist at all stages of the

appellate review”') (citation omitted) (affirming dismissal of

handicap discrimination claim under, inter alia, 42 U.S.C.

§1983, and holding that appeal of request for injunction to

prevent child’s exclusion from instruction program was mooted

when she passed maximum age of program eligibility).

The Fulani Plaintiffs cannot avoid mootness by invoking the

“capable of repetition, yet evading review” doctrine of South-

ern Pacific Terminal Company v. Interstate Commerce Com-

mission, 219 U.S. 498, 515 (1911). The circumstances of this

case, both the major parties missing the apparent state law

deadline for certifying their presidential elector slates to the

Secretary of State of Indiana, are so unusual as make it almost

inconceivable that they could be replicated in the future. This

court has held that a case must satisfy two tests to avoid

mootness under the “capable of repetition, yet evading review”

doctrine: (1) the challenged action must have been in its dura-

tion too short to be fully litigated prior to its cessation or

expiration, and (2) there must be a reasonable expectation that

the same complaining party would be subject to the same

action again. Weinstein v. Bradford, 423 U.S. 147, 149 (1975).

This test, as articulated in Weinstein v. Bradford, was applied

by the Supreme Court in /llinois State Board of Elections v.

Socialist Workers Party, 440 U.S. 173 (1979): “Although the

first branch of the test is satisfied here, appellant has presented

no evidence that the Chicago Board will repeat its allegedly

unauthorized actions in the future.” Jd. 440 U.S. at 187. Simi-

larly, the Fulani Plaintiffs in the instant case have made, and

can make, absolutely no showing that anything remotely sim-

ilar to the unique factual circumstances of this case is likely to

occur in the future. Hence, the likelihood that the Fulani Plain-

tiffs will again be subject to the same actions by the State

Defendants is nil.

Nor does the existence of a claim for damages revive the

case. The State Defendants, of course, recognize that a claim

for damages may survive a mootness attack. Powell ». McCor-

mack, 395 U.S. 846 (1969). Such a claim, however, may only

keep a case alive to the extent of determining whether there is

a viable damage claim. If a valid immunity defense exists, the

damage claim will be barred and will not resuscitate the rest of

the case. Chase v. McMasters, 573 F.2d 1011, 1015, 1020 (&th Cir.

1978). “A determination that the Defendants are immune like-

wise terminates any sustaining aid from a damages claims.”

13A C. Wright, A. Miller, and E. Cooper, Federal Practice and

Procedure, §3533.3 “Mootness — Changed Circumstances,” at

269 (2nd Ed. 1984). In this case, the State Defendants are sued

in their official capacities only. The damage claims against them

are, therefore, barred by the Eleventh Amendment to the

Constitution of the United States. Kentucky v. Graham, 473

U.S. 159 (1985). The Fulani Plaintiffs cannot save their other

claims from being mooted by the events subsequent to the

filing of this case in the District Court.

The Fulani Plaintiffs may not rely on Ex parte Young, 209

U.S. 123 (1908), to avoid the Eleventh Amendment problem

under the doctrine that a suit brought against state officials,

even in their official capacities, to enjoin them prospectively

from enforcing an unconstitutional statute, is not barred by the

Eleventh Amendment. This Court, discussing the Young case,

has noted that “the theory of Young has not been provided an

expansive interpretation.” Pennhurst State School and Hospi-

tal v. Halderman, 465 U.S. 89, 102 (1984). The Court specifi-

cally noted, at 465 U.S. at 102-103, that while the Young

doctrine permitted prospective injunctive relief, it did not

extend to retroactive monetary relief, 104 S.Ct. at 909, citing

Edeiman v. Jordan, 415 U.S. 651, 666-667 (1974). Thus, the

damage claim is barred by the Eleventh Amendment, and the

rest of the Fulani Plaintiffs’ case is moot.

If. THE DECISION BELOW IS NOT INCONSISTENT

WITH THE DECISION OF THE EIGHTH CIRCUIT.

The Fulani Plaintiffs admit that the decision below and the

decision in Manifold v. Blunt, 863 F.2d 1368 (8th Cir. 1989),

cert. denied, US. , 110 S.Ct. 242, 107 L.Ed.2d 192

(1989), are not contradictory. (Page 50, Petition for Writ Cer-

tiorari). Indeed, Manifold dealt with an equal protection chal-

lenge to a statute requiring new parties to submit the names of

their presidential electors prior to established parties. The

Eighth Circuit found that such a requirement did not violate

equal protection. No such statute or requirement is present in

this case and the issues involved in the two cases are not

relevant to one another.

Petitioners are trying to assert that, because Missouri offi-

cials chose to strictly enforce their filing deadline for the names

of presidential electors, as a matter of federal law Indiana

election officials must do the same. The Constitution does not

require that each of the states conform to a single method and

manner of selecting presidential electors. U.S. CONST. ART.

Il SECTION 1, CLAUSE 2. Petitioners’ alleged conflict

between the strict and liberal enforcement of the filing dead-

lines in Missouri and Indiana simply does not present a signifi-

cant federal question worthy of this Court’s review.

IV. PETITIONERS’ ENTIRE CASE RESTED ON CON-

CLUSORY AND SPECULATIVE ALLEGATIONS

BASED UPON A HYPOTHETICAL SET OF FACTS

INSUFFICIENT TO INVOKE FEDERAL SUBJECT

MATTER JURISDICTION.

The basis for every claim asserted by the Fulani Plaintiffs in

this case was their conclusory, speculative and hypothetical

allegation that “[uJpon information and belief, had the Fulani-

Moore campaign failed to file the New Alliance Party candi-

dates for presidential electors in a timely fashion. . ., Fulani

and Moore would not have been listed on the Indiana ballot.”

App. 19a. The undisputed evidence shows that the New

Alliance Party candidates for presidential electors were cer-

tified in a timely fashion and Fulani and Moore were listed on

the Indiana ballot. The patently speculative and hypothetical

nature of this core allegation demonstrates that the Complaint

failed on its face to satisfy the first test of any Federal action

namely, presentation of a justiciable case or controversy over

which an Article III court may constitutionally exercise sub-

ject matter jurisdiction.

To establish subject matter jurisdiction, a party must estab-

lish that an actual case or controversy exists between the

plaintiff and defendant. Warth v. Seldin, 422 U.S. 490, 498

(1975). The controversy between plaintiffs and defendants

must be more than imaginary or speculative. There must be a

“live and acute controversy” to satisfy Article III standing.

Steffel v. Thompson, 415 U.S. 452, 459 (1974). The case or

controversy requirement is designed to insure that the federal

courts do not issue advisory opinions on situations not before

the court. Federal courts may not render “an opinion advising

what the law would be upon a hypothetical state of facts.”

Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241 (1937).

The rule against “decid[ing] abstract, hypothetical or con-

tingent questions” is “no less strict in a declaratory judgment

proceeding than in any other type of suit,” Alabama State

Federation of Labor v. McAdory, 325 U.S. 450 (1945); see also,

Golden v. Zwickler, 394 U.S. 103, 108 (1969); United Public

Workers v. Mitchell, 330 U.S. 75, 89 (1947). To establish an

actual controversy “the disagreement must not be nebulous or

contingent but must have taken on fixed and final shape so that

a court can see what legal issues it is deciding, what effects it

decision will have on the adversaries, and some useful purpose

to be achieved in deciding them.” Public Service Commission

of Utah, et al. v. Wycoff Co. Inc., 344 U.S. 237, 244 (1952).

The hypothetical and advisory nature of the Complaint here

is easily discernible. The underlying cause of action was clearly

conditioned on events that had not occurred, 7.e., the spec-

ulative allegation that the respondents “would not” have put

the Fulani Plaintiffs’ candidates for President and Vice-Presi-

dent on the ballot iftheir presidential elector nominees had not

been certified by August 1. In fact, the elector nominees were

so certified and its candidates for President and Vice-President

were on the ballot.

In most cases, the courts refused to exercise jurisdiction

because the action rested on contingent future events that had

not yet occurred and might or might not take place. Here, the

Fulani Plaintiffs’ action rested soley on speculation about hypo-

thetical past events that concededly did not occur, had no

possibility whatever of occurring in she future, and were con-

tradicted by the events that occurred in fact. As the District

court correctly concluded:

The plaintiffs’ alleged disparate treatment is premised on

a hypothetical situation. The plaintiffs request the Court

to act based on the plaintiffs’ beliefs of what the defen-

dants would have done in a hypothetical situation. This

case is in a somewhat peculiar posture in that most

requests for advisory opinions present prospective hypo-

thetical events. This case, however, combines retro-

spective or past events with a request for judgment on

what might have happened if past events had occurred

differently. Regardless of the timing of the hypothetical

occurrences, the allegations in this suit do not present an

actual case or controversy for adjudication, and thus the

Court is without subject matter jurisdiction to hear the

claim.

App. 22a-238a.

The Fulani Plaintiffs have framed the question that they

wish to present to this Court as one concerning the alleged

misapplication of laches by the Seventh Circuit to bar declara-

tory relief. This question, especially in this case, is simply not

worthy of this Court’s consideration. The reasons and argu-

ments that petitioners advance in favor of granting the writ

rest on conclusory and speculative allegations based upon a

hypothetical state of facts which is insufficient to invoke federal

jurisdiction under Article III] of the Constitution. This case is

clearly not worthy of review by this Court.

V. PETITIONERS FAILED TO PRESENT ANY CIR-

CUMSTANCES OR FACTS THAT WOULD ESTAB-

LISH A VIOLATION OF THEIR CIVIL RIGHTS OR

OTHERWISE PRESENT A SIGNIFICANT QUES-

TION OF FEDERAL LAW.

The Fulani Plaintiffs failed to allege any particularized facts

to support their conclusory allegation of civil rights depriva-

tions by the State Defendants. Nor could the Fulani Plaintiffs

possibly allege any particularized facts, as the basis for all of

their claims was pure speculation about what the State Defen-

dants might have done given a totally different set of facts. The

District Court properly concluded below that the Fulani Plain-

tiffs “failed to allege any facts with the particularity of inten-

tional and purposeful discrimination sufficient to invoke the

equal protection clause.” App. 26a.

This Court previously stated in Snowden v. Hughes, 321 U.S.

1 (1944):

The unlawful administration by state officers of a state

statute fair on its face resulting in its unequal application

to those who are entitled to be treated alike, is not a denial

of equal protection unless there is shown to be present in it

an element of intentional or purposeful discrimination.

Id. 321 U.S. at 8.

This Court went on to state:

The lack of any allegations in the complaint here, tending

to show a purposeful discrimination between persons or

classes of persons is not supplied by the opprobrious

epithets “willful” and “malicious” applied to the Board's

failure to certify petitioner as a successful candidate, or

by characterizing that failure as unequal, unjust, and

oppressive administration of the laws of Illinois. These

epithets disclose nothing as to the purpose or conse-

quences of the failure to certify, other than that petitioner

has been deprived of the nomination and election.

Id. 321 U.S. at 10.

The Fulani Plaintiffs’ conclusory allegations about the

hypothesized conduct of the State Defendants does not allege

the type of invidious discrimination necessary to state a claim

for a violation of the equal protection clause under 42 U.S.C.

$1983. Snowden, supra; see also Baum v. Lundig, 535 F.2d

1016, 1019 (7th Cir. 1976); Gamza v. Aquirre, 619 F.2d 449, 454

(5th Cir. 1980).

Leaving aside the hypothetical nature of the allegations, it is

clear that the Fulani Plaintiffs did not begin to allege, much less

“with particularity,” any “intentional and purposeful, overt

actions” by the State Defendants that could establish the requi-

site “element of intentional or purposeful discrimination.”

Nowhere was there any allegation of any specific facts showing

that the State Defendants, in certifying the Republican and

Democratic Party Candidates for presidential electors, were

intentionally or purposefully discriminating against the Fulani

Plaintiffs on the basis of race, sex, national origin, political

belief or any other invidious classification conceivably

redressable via a §1983 action. Nor were there any facts alleged

to support any alleged violation of the Fulani Plaintiffs’ rights

under the First Amendment.

Furthermore, as noted by the District Court, the equal

protection claims were without merit because “|t|he Equal

Protection Clause only guarantees like treatment to persons

similarly situated.” App. 28a. Because the presidential elector

nominees of those parties involved were not certified at the

same time (either all before or all after August 1), the Fulani

Plaintiffs elector nominees were not similarly situated to their

major party counterparts for the purposes of an equal protec-

tion claim. Had the Republican, Democratic and New Alliance

arty presidential elector candidates all been certified on the

same date, and had the State Defendants put the major party

but not the minor party candidates on the ballot, a complaint

alleging equal protection and similar claims might have stated a

claim upon which relief could be granted, But it is clear that

these events did not take place.

Aside from the hypothetical nature of the claims, the Fulani

Plaintiffs misinterpret and misstate Indiana election law. They

alleged that “[t]he Indiana cases insist on strict enforcement of

filing deadlines and other ballot access deadlines.” (Page 39 of

Petition for Writ of Certiorari). Petitioners also made this claim

below.

Indiana courts would not have necessarily treated the slight

delay in advising the Secretary of State of the identity of

already duly nominated Republican and Democratic presiden-

tial elector candidates (whose names did not even appear on the

Indiana ballot) as grounds for precluding Indiana citizens from

voting for either of the major party candidates for President

and Vice-President in the 1988 Election.

The Indiana Supreme Court has held that an election offi-

cial’s acceptance of candidate filings that fail to comply strictly

with statutory requirements will effectively cure the defect if

the underlying purposes of the law are fulfilled:

The town clerk, acting as [the election] board, might

doubtless have refused to accept the [nomination] certifi-

cate until rendered in due form, but, having accepted it

without objection, and as satisfactory to him, the purpose

of the law was fulfilled. It enabled him to place upon the

official ballot the names of the several candidates that had

actually been nominated, and which of right should have

been placed there; and, the correct result having been

reached, the form of procedure becomes unimportant.

Jones v. State ex rel. Wilson, 153 Ind. 440, 448-49, 55 N.E. 229,

232 (1899). In the present case, the Indiana Secretary of State

likewise accepted “without objection” and as “satisfactory” the

certifications of the major party presidential elector candidates

“that had been actually nominated” (in this case by their

respective State Party Conventions). And, since the names of

candidates for electors did not even appear on the Indiana

ballot, it is abundantly clear that his doing so fulfilled “the

purpose of the law”; ?.e., ensuring that elector candidates had

in fact been nominated for the Presidential and Vice-Presiden-

ae eee reel

tial candidates whose names did appear on the ballot.

Furthermore, Indiana law is clear that even those require-

ments that may be considered “mandatory” if a challenge is

brought before election officials have placed a candidate's name

on the ballot will not be so viewed after ballots are prepared:

In an action against [election officials], brought before an

election, involving the names of the candidates to be

placed on the ballot by them, the statutory provisions

referred to are treated as mandatory, and they will be

enjoined from p/acing a name upon the ballot'that had not

been submitted to them pursuant to the statute, but after

the election commissioners have acted and placed a name

upon the ballot, and after the election, the provisions of

the statue are considered directory only, and the names of

candidates will be treated as having been legally placed

upon the ballot by the election board “unless an essential

element of the election is affected, or there is an express

declaration in the statute that the act is essential to a valid

election, or that its omission will render the election void.”

Lumm v. Simpson, 207 Ind. 680, 683-84, 194 N.E. 341, 342

(1935) (emphasis added; citations omitted). In this case, the

State Defendants had already placed the names of the

Republican and Democratic candidates for President and Vice-

President on the Indiana ballot. Indeed, since absentee voting

in Indiana started before the regular polling date, the 198

Election was already underway in Indiana when this action was

filed.4

' Plaintiffs insistence that every provision of every Indiana election stat-

ute demands rigid and literal compliance in every circumstance is not

advanced by their reliance on Manifold v. Bliant, 863 F.2d 1368 (8th Cir, 1988)

cert, denved, WOS.Ct. 242 (1989).

The holdings in Manifold and similar Federal cases, that a State's strict

enforcement of a given election law requirement may be constitutionally

permussible, scarcely supports any proposition that strict enforcement of the

literal requirements of the Indiana filing provision Plaintiffs sought to put at

issue here is somehow constitutionally required.

Furthermore, the decisions of State officials in Missouri or in any other

State other than Indiana about the election statutes of those States have no

bearing in any event on the decisions of Indiana State officials on the proper

interpretation and application of Indiana election statutes.

Indiana cases also emphasize that the purpose of Indiana

election laws is to ensure that voters have a free and fair

opportunity to express their collective will, and that election

statutes will be liberally construed to achieve that objective:

the purpose of the law and the efforts of the court are to

secure to the elector an opportunity to freely and fairly

cast his ballot, and to uphold the will of the electorate and

prevent disfranchisement. In the absence of fraud, actual

or suggested, statutes will be liberally construed to

accomplish this purpose.

State ex rel. Harry v. Ice, 207 Ind. 65, 71, 191 N.E. 155, 157

1954). Accord, eg., Lumm v. Simpson, supra, 207 Ind. at 683,

194 N.E. at 342; Jones v. State ex rel. Wilson, supra, 153 Ind. at

446, 55 N.E. at 231. Indeed, it is most likely that the Indiana

courts would reject, as inimical to the fundamental election law

purpose of giving the electorate a free opportunity t0 choose its

political leaders, a draconian statutory construction that would

have required the removal of George Bush and Michael

Dukakis from the ballot.

If there remains any doubt as to how the Indiana Courts

would resolve the state law issue, the Federal Courts must

then abstain from deciding the issue under Railroad Commis-

sion of Texas v. Pullman Co., 312 U.S. 496 (1941).

lhe Fulani Plaintiffs failed to allege any facts to establish a

violation of their civil rights under either the First or the

Fourteenth Amendments or otherwise present a significant

question of federal law. Therefore, the Petition for Writ of

Certiorari to the Seventh Circuit should be denied, as the

District Court correctly decided the case below even if the

Seventh Circuit erred in its laches determination.

CONCLUSION

For the foregoing reasons, respondents respectfully urge

that the Petition for Writ of Certiorari be denied.

Respectfully submitted,