Petition for Writ of Certiorari — Foster v. Love

() FILED

“96 670 OCI 28 19%

ormgs, OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

+

MURPHY J. FOSTER, JR.., in his official capacity as

Governor of Louisiana, and W. FOX McKEITHEN, in his

official capacity as Secretary of State of Louisiana

Petitioners

versus

G. SCOTT LOVE, PAUL S. BERGERON, KATHLEEN B.

BALHOFF, and BENNIE BAKER-BOURGEOIS

Respondents

+

On Petition for Writ of Certiorari to the United States Court

of Appeals for the Fifth Circuit

= oe en

PETITION FOR WRIT OF CERTIORARI

+

RICHARD P. IEYOUB

Attorney General of Louisiana

Roy A. MONGRUE, JR.

Assistant Attorney General

Counsel of Record

ANGIE ROGERS LAPLACE

Assistant Attorney General

Louisiana Department of Justice

One American Place, 6th Floor

301 Main Street

Post Office Box 94005

Baton Rouge, Louisiana 70804-9005

Telephone: (504) 342-7013

ani

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a wr. ae A eee m

QUESTION PRESENTED FOR REVIEW

This case involves the interpretation of the Constitution

and laws of the United States as they pertain to the State of

Louisiana’s sovereign right to provide for the election of its

members to the United States Congress, and the extent, if any,

to which Congress, in enacting 2 U.S.C. §§ 1 and 7, limited the

authority of the states to provide for the manner of electing

members to Congress. The specific question presented is

whether the election system employed by the State of

Louisiana to elect its members to the United States Congress

conflicts with federal laws governing the time for holding con-

gressional elections so as to render Louisiana’s manner of con-

ducting its congressional elections unenforceable under the

Supremacy Clause; or whether the decision of the United

States Court of Appeals for the Fifth Circuit constitutes an un-

necessary and unwarranted abrogation of the authority specif-

ically granted to the states by Article I, Section 4, Clause 1 of

the United States Constitution to provide for the manner cf

electing members to Congress.

LIST OF PARTIES

The parties in this Court and the courts below are as fol-

lows:

Petitioners: Murphy J. Foster, Jr., in his official capacity as

Governor of Louisiana, and W. Fox McKeithen, in his offi-

cial capacity as Secretary of State of Louisiana, who were

the defendants in the district court and appellees in the

Court of Appeals.

Respondents: G. Scott Love, Paul S. Bergeron, Kathleen B.

Balhoff, and Bennie Baker-Bourgeois, who were the plain-

tiffs in the district court and the appellants in the Court of

Appeals.

;

| = TS. 3

iii

TABLE OF CONTENTS

Page

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STATEMENT OF JURISDICTION ........00000cecvsvsseseveeseeneneneenenensnnees 2

CONSTITUTIONAL AND STATUTORY

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STATEMENT OF THE CASE ......0ccsscevsesesesesessnseserersesnsesesnssseenees 4

REASONS FOR GRANTING THE WRIT ............--0+-seceseeeseeeenees 7

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TABLE OF AUTHORITIES

CASES: Page

Goldstein v. California, 412 U.S. 546,93 S

Ct. 2303, 37 L.Ed.2d 163 (1973).........cccccceee ais 13

Krasnoff v. Hardy, 436 FSupp. 304 (E.D. LA, 1977) ......-.-...-sve0e 8

Roudebush v. Hartke, 405 U.S. 15, 92S.

a ai i ccctceisccsntiitinrteniestinastenitenialinsl 13

Smiley v. Holm, 285 U.S. 355, 52 S.

RRS ee ae 13

Storer v. Brown, 415 U.S. 724, 94S.

em 8 CE 14

United States v. Classic, 313 U.S. 299, 61 S.

CD, BEE, SE ie BD ccnptntintitticcrnacictatutindcreennalitines 8,13

CONSTITUTIONAL PROVISIONS:

U.S. Constitution, Article 1, Section 4, clause 1................... 2, 8,9

U.S. Constitution, Article V, Clause 2 ..............:ccccsseeeeeeeeeeeeeee 7,8

STATUTES:

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BG BP oonccccccccercesccecaceconceseconsnyneneensnssenesesenensnenariiiy passim

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I inritdicrsisnensnsennunnitinsisnanientinidldilamtabatiliedl 4

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SOS 0 passim

OTHER CITATIONS:

Federalist No. 32, p. 243 (B. Wright ed. 1961) ...............-00 13

In The

Supreme Court of the United States

October Term, 1996

@

MURPHY J. FOSTER, JR.., in his official capacity as

Governor of Louisiana, and W. FOX McKEITHEN, in his

official capacity as Secretary of State of Louisiana

Petitioners

G. SCOTT LOVE, PAUL S. BERGERON, KATHLEEN B.

BALHOFF, and BENNIE BAKER-BOURGEOIS

Respondents

—_—-——— @ --—__ -—

On Petition for Writ of C -ttiorari to the United States

Court of Appeals for the Fifth Circuit

°

PETITION FOR WRIT OF CERTIORARI

>

OPINIONS BELOW

Petitioners seek a writ of certiorari to review the judgment

and opinion of the United States Court of Appeals for the Fifth

Circuit filed on July 30, 1996 in G. Scott Love, Paul S. Bergeron,

Kathleen B. Balhoff, and Bennie Baker-Bourgeois v. Michael ]. Fos-

ter, Jr., Governor of State of Louisiana, and Fox McKeithen, Secre-

tary of State of Louisiana, reported at 90 F.3d 1026 (U.S. App. 5th

Cir. 1996) and reprinted at Appendix A to this petition, p.

App.1.

The opinion of the United States District Court for the Mid-

dle District of Louisiana in G. Scott Love, Paul S. Bergeron, Kath-

leen B. Balhoff,and Bennie Baker-Bourgeois v. Edwin W. Edwards,

Governor of State of Louisiana, and Fox McKeithen, Secretary of

State of Louisiana, No. 95-788, April 11, 1996, is unreported and

reprinted at Appendix B to this petition, p. App. 24. The Judg-

ment of the District Court is reprinted at Appendix C to this

petition, p. App. 25.

STATEMENT OF JURISDICTION

The judgment and opinion of the United States Court of

Appeals for the Fifth Circuit sought to be reviewed herein was

entered on July 30, 1996 (Appendix A, p. App. 1). Under the

Rules of this Honorable Court, this Petition For Writ of Certio-

rari is timely filed within 90 days after the entry of the judg-

ment of the United States Court of Appeals for the Fifth Cir-

cuit.

The jurisdiction of this Honorable Court is invoked under

28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED IN THIS CASE

United States Constitution, Article I, Section 4, Clause 1:

The Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in

each State by the Legislature thereof; but the Congress

may at any time by Law make or alter such Regulations,

except as the Places of choosing Senators.

United States Constitution, Article V, Clause 2:

This constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made under the Au-

thority of the United States, shall be the supreme Law of

the Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any

State to the contrary notwithstanding.

2 U.S.C. Section 1:

At the regular election held in any State next preceding

the expiration of the term for which any Senator was

elected to represent such State in Congress, at which

election a Representative to Congress is regularly by law

to be chosen, a United States Senator from said state

shall be elected by the people thereof for the term com-

mencing on the 3d day of January next thereafter.

2 U.S.C. Section 7:

The Tuesday next after the 1st Monday in November, in

every even numbered year, is established as the day for

the election, in each of the States and Territories of the

United States, of Representatives and Delegates to the

Congress commencing on the 3d day of January next

thereafter.

Louisiana Revised Statutes 18:1272:

§ 1272. United States senators, representatives in Con-

gress; time of electing

A. All general elections for representatives in Congress,

sometimes referred to in this Title as congressional elec-

tions, shall be held on the first Tuesday next following

the first Monday in November, 1982, and every two

years thereafter. The primary election shall be held on

the first Saturday in October next preceding the date of

the general election.

B. One United States senator shall be elected in the year

1980, and every six years thereafter, at the same time and

at the same polling places as representatives in Con-

gress. In the same manner, one United States senator

shall be elected in the year 1978, and every six years

thereafter.

Louisiana Revised Statutes 18:401:

§ 401. Purpose and nature of primary and general elec-

tions A. Purpose. Primary and general elections are held

to elect persons to Congress and to all the elective offices

in this state, except the office of presidential elector.

B. Nature. All qualified voters of this state may vote on

candidates for public office in primary and general elec-

tions without regard to the voter’s party affiliation or

lack of it, and all candidates for public office who qual-

ify for a primary or general election may be voted on

without regard to the candidate’s party affiliation or

lack of it.

Louisiana Revised Statutes 18:402 (Appendix D, p. App. 26)

Louisiana Revised Statutes 18:511 (Appendix D, p. App. 33)

STATEMENT OF THE CASE

This case involves a challenge to Louisiana’s “open elec-

tions system” used for electing Louisiana’s members to the

United States Congress. In August 1995, the respondents, four

citizens of Louisiana instituted this lawsuit against the Gover-

nor and the Secretary of State of Louisiana, to challenge the

elections system that has been in place in Louisiana for nearly

two decades, asserting that it conflicts with 2 U.S.C. §§ 1 and

7. Jurisdiction in the United States District Court for the Mid-

dle District of Louisiana was based on 28 U.S.C. §§ 1331,

1343(a)(3) and 1343(a)(4).

In 1975, the Louisiana Legislature enacted Act 1 of the 1975

Regular Session, instituting Louisiana’s “open elections sys-

tem”. By its terms, Act 1 became effective on July 1, 1975 and

received the necessary preclearance from the United States Jus-

tice Department pursuant to 42 U.S.C. §1973c. The provisions

of Act 1 were subsequently incorporated into the Louisiana

Election Code, R.S. 18:1 et seq., by Act 697 of 1976. That act also

received U.S. Justice Department preclearance. The open elec-

tions system was first employed in elections for state offices in

1976, and in the Congressional elections held in 1978. Since that

time, the State of Louisiana has conducted all elections held to

elect persons to Congress and to all the elective offices in this

State, except the office of presidential elector, in accordance

with the open elections system.

Louisiana’s open elections system provides for electing

United States Senators and Representatives as follows: (a) can-

didate qualifying is held prior to the primary election, in

which all candidates regardless of party, or lack thereof, file

qualification papers so as to be placed on the ballot for the pri-

mary election, R.S. 18:461; (b) if more than one candidate qual-

ifies for a particular seat, a primary election is held on the first

Saturday in October next preceding the date of the general

election, in which all candidates for that congressional seat are

placed on the ballot, regardless of party affiliation, or lack

thereof, R.S. 18:1272; and (c) the general election is held on the

L..st Tuesday next following the first Monday in November, in

which the two top vote-getters in the primary election, regard-

. less of party affiliation, or lack thereof, are placed on the ballot,

unless the top vote-getter in the primary received a majority of

the votes in the primary election, R.S. 18:1272. Louisiana’s

Election Code further provides that a candidate is deemed

elected if he is the lone candidate to file qualification papers for

a particular seat, or if he receives a majority of the votes cast in

the primary election, R.S. 18:511.

In 1872, Congress enacted legislation, 2 U.S.C. §§ 1 and 7,

which provided the time for conducting elections for congress

as the first Monday in November of the election year. The leg-

islative history of the federal statutes indicates that the pur-

pose of the federal legislation was to prevent political manipu-

lation of the election process and to limit the number of

elections held.

Respondents, G. Scott Love, Paul S. Bergeron, Kathleen B.

Balhoff, and Bennie Baker-Bourgeois initiated this lawsuit

challenging the validity of the Louisiana open elections system

as applied to Congressional elections. They asserted that

Louisiana’s elections system conflicts with the provisions of 2

U.S.C. §§ 1 and 7 because in some instances, when a candidate

for congress receives a majority of the votes in the primary

election, no general election for that seat is held on the first

Monday in November.

All parties in the litigation filed Motions for Summary

Judgment, which were heard before the District Court on Oc-

tober 23, 1995. On April 11, 1996, the District Court denied the

respondents’ Motion for Summary Judgment and granted the

petitioners’ Motion for Summary Judgment, finding that there

were no genuine issues of material fact and that the petitioners

were entitled to judgment as a matter of law. The District

Court stated: “The Court specifically finds that Louisiana’s

method of conducting Congressional elections does not vio-

late the laws and Constitution of the United States.” Appendix

B, p. App. 24.

Respondents appealed to the United States Court of Ap-

peals for the Fifth Circuit. On July 30, 1996, a panel of the Fifth

Circuit, by a 2-1 vote, reversed the decision of the District

Court. The majority held that “plaintiffs are entitled to a de-

claratory judgment that Louisiana’s election scheme conflicts

with 2 U.S.C. §§ 1, 7 to the extent that the Louisiana scheme au-

thorizes a contested election for members of Congress to be de-

cided in the open primary before the uniform federal election

day.” The court deferred instituting a remedy, but instead af-

forded the Louisiana Legislature an opportunity, until the end

of the next regular legislative session in April of 1997, to enact

a remedy in accordance with its decision. The matter was re-

manded to the District Court to reconsider plaintiffs’ request

for injunctive relief in the event the State does not impliment a

remedy within a reasonable time after the 1997 legislative ses-

sion.

REASONS FOR GRANTING THE WRIT

This Honorable Court should grant the writ of certiorari

sought herein to review the judgment and opinion of the ap-

pellate court because this case presents an important question

of federal constitutional and statutory law decided by the ap-

pellate court that has not been, and should be settled by this

Honorable Court. More specifically, the Court should grant

this writ to clarify the extent to which, if any, 2 U.S.C. §§ 1 and

7 limit the authority of the states to determine the manner in

which they conduct congressional elections.

ARGUMENT

The decision of the Fifth Circuit Court of Appeals misin-

terpreted the federal laws pertaining to congressional elec-

tions so as to find a conflict with Louisiana’s elections system,

and declared that “the Louisiana system as applied to federal

elections must yield under the Supremacy Clause.” The Su-

premacy Clause, Article V, Clause 2 of the United States Con-

stitution, reads:

This constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made under the Au-

thority of the United States, shall be the supreme Law of

the Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any

State to the contrary notwithstanding.

The Supremacy Clause expresses a basic precept of our

system of government, that the federal constitution and all

laws enacted pursuant thereto override conflicting laws en-

acted by the states pursuant to the states’ own constitutions.

The matter at hand, however, does not involve simply an in-

stance in which a state, pursuant to its constitution, enacts

laws regulating the same area as that regulated by the federal

government. Rather, this case involves a state exercising the

authority specifically given to it by the United States Constitu-

tion, and the question of whether the state’s ability to exercise

that authority is limited by certain federal legislation enacted

by Congress pursuant to its constitutional authority to do so.

The United States Constitution, Article I, Section 4, Clause

1 authorizes each state to prescribe the times, places and man-

ner of holding elections for senators and representatives, sub-

ject to specific regulations enacted by Congress. “ The states

are given, and in fact exercise, a wide discretion in the formu-

lation of a system for the choice by the people of representa-

tives.” United States v. Classic, 313 U.S. 299, 311, 61 S.Ct. 1031,

1035, 85 L.Ed. 1368 (1941). See also, Krasnoff v. Hardy, 436

FSupp. 304 (E.D. LA, 1977). Thus, the issue is not whether fed-

eral law trumps state law, but rather whether Congress, in ex-

ercising its specific constitutional authority to regulate the

time for holding congressional elections, intended thereby also

to limit the states’ authority, as granted by the federal constitu-

tion, to regulate the manner of conducting its congressional

elections.

The State of Louisiana, in accordance with Article I, Section

4, Clause 1, enacted its open elections system as its manner for

electing its members to Congress. That system eliminated the

use of multiple party primaries and subsequent general elec-

tions, and instead established a system that requires only one

primary and one general election in order to elect members to

Congress. In so doing, Louisiana tied its elections system to

the federal laws regulating the time for holding congressional

elections.

Congress enacted 2 U.S.C. §§1 and 7 pertinent to the time

for holding congressional elections.

2 U.S.C. § 1 provides:

At the regular election held in any State next preceding

the expiration of the term for which any Senator was

elected to represent such State in Congress, at which

election a Representative to Congress is regularly by law

to be chosen, a United States Senator from said state

shall be elected by the people thereof for the term com-

mencing on the 3d day of January next thereafter.

2 U.S.C. § 7 provides:

The Tuesday next after the 1st Monday in November, in

every even numbered year, is established as the day for

the election, in each of the States and Territories of the

United States, of Representatives and Delegates to the

congress commencing on the 3d day of January next

thereafter.

10

In compliance with 2 U.S.C. §§ 1 and 7, Louisiana enacted

LSA-R:S. 18:1272:

Ҥ 1272. United States senators, representatives in Con-

gress; time of electing

A. All general elections for representatives in Congress,

sometimes referred to in this Title as congressional elec-

tions, shall be held on the first Tuesday next following

the first Monday in November, 1982, and every two

years thereafter. The primary election shall be held on

the first Saturday in October next preceding the date of

the general election.

B. One United States senator shall be elected in the year

1980, and every six years thereafter, at the same time and

at the same polling places as representatives in Con-

gress. In the same manner one United States senator

shall be elected in the year 1978, and every six years

thereafter.

These federal and state statutes, when read together, give a

clear indication that the State of Louisiana enacted its laws regu-

lating the manner of conducting congressional elections so as to

act in concert with the federal laws regulating the times for

on the first Tuesday following the first Monday in November.

Louisiana’s law mirrors the federal law, providing that the gen-

eral election for Congress be conducted on the first Tuesday fol-

lowing the first Monday in November. The laws do not conflict;

The appellate court decision erroneously interpreted the

federal law so as to create a conflict between the federal and

state legislation, by interpreting the federal legislation as re-

quiring that the state hold contested elections on the first Tues-

11

day following the first Monday in November. The dissenting

opinion of Judge Dennis correctly and succinctly demonstrates

the fallacies of the decision:

In order to demonstrate that it is impossible to har-

monize or to comply with both the state and federal

laws the plaintiffs advance an esoteric interpretation of

the federal statutes that is not supported by either the

scant legislative history or the previous judicial under-

standing of those laws and the Constitution. They argue

that it was the congressional intent in enacting the pre-

decessor to 2 U.S.C. §§ 7 and 8 to require each state to

adopt regulations for electing Representatives that

would always result in a contested election for each seat

on the federal election day, or at least guarantee that

there would be an opportunity for a candidate to qualify

for one. Therefore, they contend that the state’s open

primary and general election laws are totally incompati-

ble with the federal law because they have failed more

often than not to produce contested elections for Repre-

sentatives on the federal election day.

The meager legislative history tends to show a con-

gressional aim to establish the federal election day as a

center of gravity to prevent the calendrical dispersion of

independent state congressional elections. But it does not

indicate an intention to prevent variation among the states in

the manner of election so long as each election scheme relates

to the federal election day by using it either as the primary or

general congressional election day. The few remarks by

Senators Butler and Thurman express concern over each

state’s autonomous power to carry out completely inde-

pendent elections of Representatives and Presidential

electors in any month of the year. They feared that un-

der such an undisciplined regime there would be undue

influence upon outcomes by strategic timing of elections

12

and the lack of any semblance of uniformity. However,

their remarks evince no concern over the fact that pri-

maries closely linked to the proposed federal election

day might fail to materialize into contested elections on

the Tuesday next after the first Monday in November.

From the sparse legislative history one can only infer a

legislative objective of rough uniformity by tethering

each state’s congressional election scheme to the federal

election day; the congressional record does not reflect

an overweening desire for contested Representative

elections in each district on every federal election day.

Appendix A, pp. App. 17-19, (citations omitted)(emphasis

added).

Unlike party primaries in other states, Louisiana does not

nominate candidates by parties, but instead the top two vote

getters, regardless of party, can qualify for the general elec-

tion. The general election is then held at the time specified by

federal law, unless only one candidate qualifies for the elec-

tion, either because he was the only candidate to file qualify-

ing papers for that seat, or because he received more than 50%

of the vote in the primary election. The appellate court's deci-

sion would nevertheless require that the state hold a con-

tested election, even when only one candidate qualifies for the

The appellate court’s interpretation of 2 U.S.C. §§ 1 and 7

as requiring the state to hold a contested election on the date

designated by the federal legislation would under its logic, re-

quire the state to recruit an additional candidate to run for a

particular seat whenever only one person files qualifiying pa-

pers, and would also prevent the state from holding absentee

balloting prior to the designated election date.

The appellate court decision unnecessarily intrudes on the

13

sovereignty of the State of Louisiana to elect its representatives

and senators to Congress, by needlessly and erroneously find-

ing a conflict between the federal and state laws, when none

exists. “It is not... a mere possibility of inconvenience in the

exercise of powers, but an immediate constitutional repug-

nancy that can by implication alienate and extinguish a pre-ex-

isting right of (state) sovereignty.” The Federalist No. 32, p.

243 (B. Wright ed. 1961). Goldstein v. California, 412 U.S. 546,

554-555, 93 S.Ct. 2303, 2309, 37 L.Ed.2d 163 (1973). Each sover-

eign possesses equal regulatory power as the federal govern-

ment, subject only to the independent operation of the Su-

premacy Clause.

Given the importance of the state’s right to exercise discre-

tion in the formulation of a system of electing its representa-

tives and senators to Congress, United States v. Classic, 313 U.S.

299 (1941), the appellate court’s decision invalidating

Louisiana’s open elections system as it pertains to congres-

sional elections constitutes a serious invasion into the sover-

eignty of the State of Louisiana. Review by this Court of the

appellate court decision is necessary to prevent such an affront

upon the right of the states to determine how to conduct their

congressional elections, particularly as here, where the state

and federal laws at issue can reasonably be interpreted as act-

ing in concert, rather than in conflict.

Louisiana is entitled to exercise its sovereign power to es-

tablish the manner of electing its representatives and senators

for Congress. The Constitution vests each state legislature

with the “authority to provide a complete code for congres-

sional elections, not only as to times and places, but in relation

to notices, registration, supervision of voting, protection of

voters, prevention of fraud and corrupt practices, counting of

votes, duties of inspectors and canvassers, and making and

publication of election returns ...” Smiley v. Holm, 285 U.S. 355,

366, 52 S.Ct. 397, 399 (1932); See also, Roudebush v. Hartke, 405

14

U.S. 15, 24-25, 92 S.Ct. 804, 810 (1972), and Storer v. Brown, 415

US. 724, 730, 94 S.Ct. 1274, 1279 (1974).

The legislative history does not substantiate that Congress,

by enacting 2 U.S.C. §§1 and 7, intended to fashion the result

the appellate court decision imposes. Clearly there « :. indi-

cation that Louisiana’s elections system is contrary ‘v .he pur-

poses stated by the federal legislation’s proponents, i.e., pre-

vention of manipulation of the election process by the political

parties and the elimination of multiple federal elections. In

fact, the concerns addressed by the members of congress in

1872 obviously arose from the party primary system in use at

that time by most, if not all of the states. Louisiana's system is

clearly less offensive to these articulated congressional goals

then are the election systems employed by many states today,

where multiple party elections are held in varying months be-

fore the general elections, and in which voters in some states

may venture to the polls three, and possibly four, times to cast

their ballots in congressional elections.

The appellate court's finding of a conflict between the fed-

eral statutes and Louisiana's election laws that track the very

language of the federal statutes and further the purposes for

which the federal statutes were enacted, requires review by

this Honorable Court.

CONCLUSION

According to the United States Constitution, the manner

by which a state elects its members to Congress is for the state

to determine, unless and until Congress provides otherwise.

The sovereign powers of the states are thereby implicated

whenever a challenge is mounted to the manner proscribed by

the states for holding congressional elections. The appellate

court decision in this matter erroneously interpreted the fed-

eral statutory provisions pertinent to congressional elections

so as to unnecessarily limit the states’ authority to provide for

15

the manner in which states conduct their congressional elec-

tions. If sustained, the appellate court decision will greatly im-

pact the State of Louisiana’s election process and will prohibit

the state from exercising its sovereign powers to determine on

its own, through its own governmental processes, the method

of electing its representatives to the United States Congress.

This Honorable Court should grant the writ petitioned for

herein and take this case on review so as to correct the erro-

neous decision of the appellate court and settle the important

federal question of the extent, if any, the federal legislation at

issue limits the authority of the states to decide the manner in

which they conduct their congressional elections.

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

NO. 96-30429

(Filed July 30, 1996)

G. SCOTT LOVE, PAULS. BERGERON,

KATHLEEN B. BALHOFF, and BENNIE BAKER-BOURGEOIS,

Plaintiffs-Respondents,

VERSUS

MICHAEL J. FOSTER, JR., GOVERNOR OF STATE OF

LOUISIANA, and FOX MCKEITHEN, Secretary of State

of Louisiana,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

Before DAVIS and DENNIS, Circuit Judges, and FALLON",

District Judge.

DAVIS, Circuit Judge:

Respondents, four Louisiana voters, appeal from the dis-

trict court’s order granting defendants’ motion for summary

judgment and dismissing plaintiffs’ suit seeking declaratory

and injunctive relief on grounds that Louisiana’s method of

conducting congressional elections violates the Constitution

and laws of the United States. We reverse.

“District Judge of the Eastern District of Louisiana, sitting by

designation.

App. 2

L

In August 1995 four Louisiana citizens, who are registered

to vote in Louisiana and who have a history of voting in con-

gressional elections, filed this action for declaratory and in-

junctive relief. They seek this relief under 42 U.S.C. s 1983 and

pursuant to our federal question jurisdiction to resolve a Con-

stitutional claim. Their core allegation is that the Louisiana

open primary system violates the federal statutes that estab-

lish a uniform federal election day for members of Congress

and must yield under the Supremacy Clause of the Constitu-

tion. After crossmotions for summary judgment were filed,

the district court granted summary judgment for the defen-

dants. The respondents filed a timely appeal.

IL.

We review a district court’s grant of summary judgment de

novo. Mozeke v. International Paper Co., 856 F.2d 722, 724 (Sth

Cir.1988). In deciding this appeal, we address only the pre-

emption claim. See Shaw v. Delta Air Lines, 463 U.S. 85, 96 n. 14,

103 S.Ct. 2890, 2899 n. 14, 77 L.Ed.2d 490 (1983).

In Louisiana Public Service Comm. v. FCC, 476 U.S. 355, 106

S.Ct. 1890, 90 L.Ed.2d 369 (1986), the Supreme Court summa-

rized the theories under which state laws are pre-empted

follows:

Pre-emption occurs when Congress, in enacting a fed-

eral statute, expresses a clear intent to pre-empt state

law, when there is outright or actual conflict between

federal and state law, where compliance with both fed-

eral and state law is in effect physically impossible,

where there is implicit in federal law a barrier to state

regulation, where Congress has legislated comprehen-

App.3

sively, thus occupying an entire field of regulation and

leaving no room for the States to supplement federal

law, or where the state law stands as an obstacle to the

accomplishment and execution of the full objectives of

Congress. Pre-emption may result not only from action

taken by Congress itself; a federal agency acting within

the scope of its congressionally delegated authority may

pre-empt state regulation.

Id. at 368-69, 106 S.Ct. at 1898-99 (internal citations omit-

ted).

We start our pre-emption analysis from the bedrock

premise that Congress has authority to enact the requirements

for federal elections. Article I, Section 4, Clause 1 of the Con-

stitution states:

The Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in

each State by the Legislature thereof; but the Congress

may at any time by Law make or alter such Regulations,

except as the Places of choosing Senators.

In Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795

(1932), the Court, interpreting Art. 1, § 4, Cl. 1, stated that “[iJt

cannot be doubted that these comprehensive words embrace

authority to provide a complete code for congressional elec-

tions, not only as to times and places, but in relation to notices,

registration,....” Id. at 366,52 S.Ct. at 399.

In 1872, Congress established a uniform election day for

elections for U.S. Representatives by enacting 2 U.S.C. § 7,

which states:

The Tuesday next after the 1st Monday in November, in

every even numbered year, is established as the day for

App. 4

the election, in each of the States and Territories of the

United States, of Representatives and Delegates to the

Congress commencing on the 3d day of January next

thereafter.

This same election day was later adopted for elections for

US. Senators in 2 U.S.C. § 1:

At the regular election held in any State next preceding

the expiration of the term for which any Senator was

elected to represent such State in Congress, at which

election a Representative to Congress is regularly by law

to be chosen, a United States Senator from said state

shall be elected by the people thereof for the term com-

mencing on the 3d day of January next thereafter.

Congress also set this day for the election of presidential

electors. 3U.S.C. §1.'

Congress in 2 U.S.C. §§ 1, 7 therefore declared that all elec-

tions for Congress should be held on the same date, the Tues-

day following the first Monday in November (federal election

day). This declaration was subject to only two exceptions: (1)

in states that required a majority vote for election, a runoff

could be held between federal election day and January when

officials take office; and (2) an election could be held on a dif-

ferent date if a vacancy occurred in the office. 2 U.S.C. § 8.7 In

1 3US.C§] states:

The electors of President and Vice President shall be ap-

pointed, in each State, on the Tuesday next after the first Mon-

day in November, in every fourth year succeeding every elec-

tion of a President and Vice President.

2 2US.C. §8 states:

The time for holding elections in any State, District, or Territory

App.5

adopting this scheme, Congress precluded a state from hold-

ing an election in which members of Congress could be elected

before the federal election date.

This interpretation is supported by the legislative history.

This history indicates that Congress wanted a uniform election

day to prevent earlier elections in some states unduly influenc-

ing the later voters, to prevent fraudulent voting in multiple

state elections, and to remove the burden of voting in more

than one federal election in a given year. Cong.Globe, 42d

Cong., 2d Sess. 112 (1871). °

The legislative history of 2 U.S.C. § 8 also supports the con-

clusion that Congress intended any outcome determinative

election to be held on federal election day unless it fell within

for a Representative or Delegate to fill a vacancy, whether such

vacancy is caused by a failure to elect at the time prescribed by

law, or by the death, resignation, or incapacity of a person

elected, may be prescribed by the laws of the several States and

Territories ;

See, e.g., Public Citizen v. Miller, 813 F.Supp. 821 (N.D.Ga.), aff’d, 992

F.2d 1548 (11th Cir.1993); and Busbee v. Smith, 549 F.Supp. 494

(D.D.C.1982), aff'd, 459 U.S. 1166, 103 S.Ct. 809, 74 L.Ed.2d 1010

(1983).

3 Mr. Butler who introduced the amendment stated the follow-

ing reasons:

But on account of the facility for colonization and repeating

among the large central States, New York holding its election

in November, and Ohio, Pennsylvania, and Indiana holding

their elections in October, the privilege is allowed the border

States, if any man is so disposed, of voters across

from one into the other. | think it will be fair for everybody that

on the day when one votes all should vote, and that the whole

question should be decided then. Again, there is another and a

different question. Every fourth year many of the States have

“yy

App. 6

the exception in § 8. During the consideration of § 8, Senator

Thurman explained that Section 8

App. 7

I think, therefore, there can be no failure to elect except

relates only to the case of a special election to fill a va-

cancy, or where there is a failure to elect. It does not touch

the general elections for members of the House of Rep-

resentatives. The cases, therefore, to which it will apply

are very rare indeed. It is very seldom that there is an

election to fill a vacancy, and still more seldom that there is

a failure to elect. In all those States in which a plurality

elects, no such thing as failure to elect can occur unless

there should be a tie, and in those cases | think in every

State the right then is determined by lot. . . .

to hold two elections: one for the State on one day, and one for

the electors of President and Vice President on another day.

This throws a great burden needlessly and uselessly, it seems

to me, upon the people, and I move this for the purpose of hav-

ing a uniform election to take place in the future at a time when

all the State constitutions as to State elections may be con-

formed to it.

Cong.Globe, 42d Cong., 2d Sess. 112 (1871).

On a different day, Mr. Butler reintroduced this amendment and

stated:

Unless we do fix some time at which, as a rule, Representatives

shall be elected, it will be in the power of each State to fix upon

a different day, and we may have a canvass going on all over

the Union at different times. It gives some States undue advan-

tage. It gives some parties undue advantage.... But what I con-

tend is that is an undue advantage, that it is a wrong, and it is a

wrong also to the people of those States, that once in four years

they shall be put to the trouble of having a double election. On

every election day the poor laboring man who goes to the polls

to vote loses his day’s work, to say nothing of the expenses

which fall on the politicians, and are of no very great conse-

quence one way or the other.

Cong.Globe, 42d Cong., 2d Sess. 141 (1871).

in those States in which a majority of all the votes is necessary

to elect a member, and they are very few in number. Then

there is no probability of there being a failure to elect so

as to make this section necessary in many cases, and the

vacancies that happen are very few indeed. The section

itself, therefore, is rather inserted out of abundant cau-

tion than for any other reason.

Cong.Globe, 42d Cong., 2d Sess. 677 (1872) (remarks of

Sen. Thurman) (emphasis added).

For all of the above reasons, we conclude that Congress in-

tended that all determinative federal elections be held on fed-

eral election day except for the rare exceptions specified in 2

USC. § 8.

We turn next to the Louisiana election scheme which re-

spondents contend conflicts with 2 U.S.C. §§1, 7. Before 1978,

Louisiana’s election system for selection of representatives

and senators complied with the federal election day statutes.

The pre-1978 Louisiana law required recognized political par-

ties to nominate candidates through partisan primaries. The

parties’ nominees for Congress would then appear on the bal-

lot on federal election day. Independent candidates and oth-

ers who wished to appear on the federal election day ballot

with the party nominees were required to qualify by other

methods. The names of all qualified candidates were placed

on the federal election day ballot. The candidate who received

the most votes in this election was declared the winner. See

La.Rev.Stat. s 18:546 (now repealed).

In 1978, Louisiana drastically changed its method for se-

lecting federal and state officials by adopting an open primary

system. Under this system, all candidates, regardless of party

App. 8

affiliation, appear on the same ballot and all voters regardless

of party affiliation may vote for the candidate of their choice.

La.Rev-Stat. § 18:401(B). *

This open primary is ordinarily ° held “on the first Satur-

day in October next preceding the date of the general elec-

tion.” La.Rev.Stat. § 18:1272(A). ° See also La.Rev-Stat. §

18:1272(B). To win in the October primary, a candidate must

receive a majority of the votes cast. Louisiana holds its general

election on the federal election day. Id. But the names of con-

gressional candidates (like candidates for statewide office)

only appear on the general election ballot if no single candi-

date receives a majority of the votes in the primary and a

runoff between the two top candidates is required. La.Rev.Stat.

§ 18:1271.’

4 La.RS. s 18:401(B) states:

B. Nature. All qualified voters of this state may vote on candi-

dates for public office in primary and general elections without

regard to the voter’s party affiliation or lack of it, and all candi-

dates for public office who qualify for a primary or general

election may be voted on without regard to the candidate’s

party affiliation or lack of it.

5 The primary is scheduled for September 21 this year because

October 5 is a religious holiday.

© La.R.S. § 18:1272(A) states:

A. All general elections for representatives in Congress, some-

times referred to in this Title as congressional elections, shall be

held on the first Tuesday next following the first Monday in

November, 1982, and every two years thereafter. The primary

election shall be held on the first Saturday in October next pre-

ceding the date of the general election.

7 La.RS. § 18:1271 states:

Except as otherwise provided in this Part, United States sena-

tors and representatives in shall be elected as pro-

vided in this Title for the election of public officers.

App. 9

Thus the Louisiana open primary system allows contested

elections for Congress to be decided in the primary, which is

held at least one month before the general election. This is the

portion of the Louisiana election scheme that respondents con-

tend is in conflict with 2 U.S.C. §§ 1,7. The Louisiana election

code provides that: “A candidate who receives a majority of

the votes cast for an office in a primary election is elected.”

La.Rev.Stat. § 18:511(A). When the seat in Congress is filled in

the October primary, no candidate’s name appears on the bal-

lot in the November general election and no vote for that office

can be cast on the federal election date. In fact, since 1978 over

80% of the contested congressional elections have been de-

cided in the October primary. Only nine of fifty-seven con-

tested elections for U.S. Representatives and one of six con-

tested elections for U.S. Senator had candidates placed on the

general election ballot for November.

Respondents argue that the 2 U.S.C. §§ 1, 7 sets the earliest

day that a state may hold a contested election for Congress

where the winner may be determined. Respondents contend

that the Louisiana election system conflicts with this provision

by allowing such an election at an earlier date.

Appellees assert that the purpose of the primary election is

to qualify candidates to appear on the November ballot. They

argue that when one candidate receives a majority of the votes

in the primary, only one candidate qualifies and the state is not

required to place the single qualified candidate on the Novem-

ber ballot. We disagree. The state’s argument that the actual

election occurs on the federal election day is refuted by the lan-

guage of the Louisiana Election Code which states that “[a]

candidate who receives a majority of the votes cast for an office

in a primary election is elected.” La.R.S. § 18:511(A) (emphasis

added).

App. 10

We agree with respondents that the Louisiana election sys-

tem, as applied to elections for congressmen, conflicts with the

federal statutes that establish a uniform federal election day

and thwarts the congressional purpose of establishing a uni-

form day to prevent earlier elections from influencing later

voters. Thus, the Louisiana system as applied to federal elec-

tions must yield under the Supremacy Clause.

Il.

[4] Having decided that the Louisiana open primary elec-

tion scheme conflicts with 2 U.S.C. §§ 1, 7, we now turn toa

consideration of the appropriate remedy.

Respondents contend that this court should declare the

1978 Louisiana election code invalid and reinstate the pre-1978

election law. See Frost v. Corporation Common, 278 U.S. 515, 49

S.Ct. 235, 73 L.Ed. 483 (1929). This drastic remedy would re-

quire us to radically overhaul the state’s election procedure

and reinstate an election system which the state abolished

eighteen years ago.

In exercising our discretion in granting or withholding an

injunction we balance “the conveniences of the parties and

possible injuries to them according as they may be affected by

the granting or withholding of the injunction.” Yakus v. United

States, 321 U.S. 414, 440, 64 S.Ct. 660, 675, 88 L.Ed. 834 (1944).

Courts should be particularly loathe to preempt a state leg-

islative task such as establishing an election scheme. Even in

reapportionment cases where the voters’ Fourteenth Amend-

ment rights to equal protection is infringed, federal courts fre-

quently give the state an opportunity to remedy the defect be-

fore fashioning a judicial remedy. Westwego Citizens for Better

Government v. City of Westwego, 946 F.2d 1109 (Sth Cir.1991);

App. 11

Mississippi State Chapter, Operation Push, Inc., v. Mabus, 932 F.2d

400 (5th Cir.1991).

In addition to this federalism concern, a number of addi-

tional factors weigh against the issuance of an injunction: (1)

The campaign for statewide and federal offices for the Septem-

ber 21 open primary election is well underway. Qualification

date for candidates for those offices closed on Friday, July 12,

1996. Enjoining that election would be expensive for the can-

didates and the State. Ordering another election at a different

time would also be confusing to the voters. (2) By contrast, the

injury to the plaintiffs will be relatively minimal. To be as-

sured of participating in the election of their representatives

and senators, plaintiffs must vote on September 21. But they

have the right to vote in those elections on that date and if they

do so, their vote will count. If plaintiffs’ representatives and

senators are elected on September 21, they will be required to

return to the polls on November 5 to vote in the presidential

election. However, compared with the cost of enjoining the

September 21 election, two trips to the polls is a relatively mi-

nor cost.

CONCLUSION

For the reasons discussed above, we conclude that plain-

tiffs are entitled to a declaratory judgment that | .ouisiana’s

election scheme conflicts with 2 U.S.C. ss 1,7 to the extent that

the Louisiana scheme authorizes a contested election for mem-

bers of Congress to be decided in the open primary before the

uniform federal election day. The next scheduled session of

the Louisiana legislature is in May 1997. We remand this case

to the district court with directions to reconsider plaintiffs’ re-

quest for injunctive relief if the state has not acted to resolve

the conflict within a reasonable time after the 1997 legislative

App. 12

session. We also remand all remaining issues in this case to the

district court. °

REVERSED and RENDERED.

DENNIS, Circuit Judge, dissenting:

Article |, Section 4, Clause 1 of the United States Constitu-

tion establishes the power and the duty of each state legisla-

ture to prescribe “[t]he Times, Places and Manner of holding

Elections for Senators and Representatives,” subject to the

power of the Congress to “at any time by Law make or alter

such Regulations, except as to the Places of choosing Sena-

tors.” Thus, except to the extent that Congress acts to change

or supplement state laws, the States retain broad authority to

regulate elections under the Times, Places and Manner Clause.

It cannot be doubted that the Clause invests each state legisla-

ture with the “authority to provide a complete code for con-

gressional elections, not only as to times and places, but in re-

lation to notices, registration, supervision of voting, protection

of voters, prevention of fraud and corrupt practices, counting

of votes, duties of inspectors and canvassers, and making and

publication of election returns| ].” Smiley v. Holm, 285 U.S. 355,

366, 52 S.Ct. 397, 399, 76 L.Ed. 795 (1932).

This view is confirmed by the second clause of article 1,

§ 4, which provides that “the Congress may at any time

by law make or alter such regulations,” with the single

8 We decide this case under our federal question jurisdiction to

resolve a claim under the Supremacy Clause. See Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 96 n. 14, 103 S.Ct. 2890, 2899 n. 14, 77 L.Ed.2d

490 (1983). The issues not considered in this opinion include

whether plaintiffs have stated a claim for a violation of the Privileges

and Immunities Clause of the Fourteenth Amendment and whether

plaintiffs have stated a claim enforceable under 42 U.S.C. § 1983.

App. 13

exception stated. The phrase “such regulations” plainly

refers to regulations of the same general character that

the legislature of the State is authorized to prescribe

with respect to congressional elections. In exercising

this power, the Congress may supplement these state

regulations or may substitute its own. It may impose

additional penalties for the violation of the state laws or

provide independent sanctions. It “has a general super-

visory power over the whole subject.” [Citations omit-

ted.] But this broad authority is conferred by the consti-

tutional provision now under consideration, and is

exercised by the Congress in making “such regulations” ;

that is, regulations of the sort which, if there be no over-

ruling action by the Congress, may be provided by the

Legislature of the state upon the same subject.

Id. at 366-367, 52 S.Ct. at 399. See also, Roudebush v. Hartke,

405 U.S. 15, 24-25, 92 S.Ct. 804, 810-11, 31 L.Ed.2d 1 (1972);

(“Unless Congress Acts, Art. I, § 4, empowers the States to reg-

ulate the conduct of senatorial elections.”); Storer v. Brown, 415

US. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974) (“[ ] Art

L, § 4, cl 1, authorizes the States to prescribe ‘[t]he Times, Places

and Manner of holding Elections for Senators and Representa-

tives.’ “); United States v. Classic, 313 U.S. 299, 311, 61 S.Ct. 1031,

1035-36, 85 L.Ed. 1368 (1941) (“[T}he states are given, and in

fact exercise, a wide discretion in the formulation of a system

for the choice by the people of representatives in Congress.”)

Congress, in deference and respect to the states, has been

slow to exercise the powers expressly conferred upon it in re-

lation to elections by the fourth section of the first article of the

Constitution. See, “The Ku-Klux Cases.” Ex Parte Yarbrough et

al., 110 U.S. 651, 660-662, 4 S.Ct. 152, 156- 58, 28 L.Ed. 274

App. 14

(1884). It was not until 1842 that Congress took any action un-

der the Times, Places and Manner Clause by providing that

each member of Congress should be elected by a separate dis-

trict, composed of contiguous territory. 5 St. 491. Id. Thirty

years afterwards, in an act to apportion representatives to

Congress among the several states according to the ninth cen-

sus, Congress provided for the first time a regulation for the

time of holding elections of representatives. The Act of Feb. 2,

1872, ch. 11. §§ 3 and 4, 17 Stat 28, 29, in pertinent parts, pro-

vides:

Sec. 3. That the Tuesday next after the first Monday in

November, in the year eighteen hundred and seventy-

six, is hereby fixed and established as the day, in each of

the States and Territories of the United States, for the

election of Representatives and Delegates to the forty-

fifth Congress; and the Tuesday next after the first Mon-

day in November, in every second year thereafter, is

hereby fixed and established as the day for the election,

in each of said States and territories, of Representatives

and delegates to the Congress commencing on the

fourth day of March next thereafter.

Sec. 4. That if, upon trial, there shall be a failure to elect a

Representative or Delegate in Congress in any State,

District, or Territory, upon the day here by fixed and es-

tablished for such election, or if, after any such election,

a vacancy shall occur in any such State, District, or Terri-

tory, from death, resignation, or otherwise, an election

shall be held to fill any vacancy caused by such failure,

resignation, death, or otherwise, at such time as is or

may be provided by law for filling vacancies in the State

or Territory in which the same may occur.

App. 15

In substance, the same provisions have been continued in

the present federal statutes regulating the time of holding elec-

tions for Representatives. 2 U.S.C. § 7 provides that the Tues-

day next after the first Monday in November, in every even

numbered year, is established as the day for the election in

each of the states and territories. 2 U.S.C. § 8 provides that the

time for holding elections for Representative to fill a vacancy,

whether such vacancy is caused by a failure to elect at the time

prescribed by law, or by the death, resignation, or incapacity of

a person elected, may be prescribed by the laws of the several

states and territories respectively.

The Louisiana laws prescribing the times, places and man-

ner of holding elections for Senators and Representatives pro-

vide for “open” primary and general elections. All qualified

voters may vote for candidates in primary and general elec-

tions without regard to the voter’s party affiliation or lack of it,

and all candidates who qualify for a primary or general elec-

tion may be voted on without regard to the candidate's party

affiliation or lack of it. La.R.S. 18:401(B). The times for the elec-

tions are fixed as follows: (a) The primary election is held on

the first Saturday in October next preceding the date of the

general election, La.R.S. 18:1272(A); and (b) the general elec-

tion is held on the Tuesday next after the first Monday in No-

vember in every even numbered year, i.e., on the federal elec-

tion day. La.R.S. 18:1272(B). The Louisiana laws also provide

that a candidate who receives a majority of the votes cast in the

primary election “is elected.” La.R.S. 18:511(A).

The plaintiffs contend that the Louisiana election laws are

unconstitutional because they (a) allow a possibility that a can-

didate for Representative will be elected by receiving a major-

ity of votes in the primary election; (b) and are thus contrary

App. 16

to the federal statute which requires that a Representative be

elected on the federal election day, which Louisiana designates

as the general election day. ~

The Supremacy Clause, Art. V, cl. 2 of the United States

Constitution, provides that:

This Constitution, and the Laws of the United States

which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made under the Au-

thority of the United States, shall be the supreme Law of

the Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any

State to the contrary notwithstanding.

The United States Supreme Court has developed a doc-

trine of preemption for deciding when a state law or constitu-

tion, in whole or in part, is “contrary” to the United States Con-

stitutive:, or a valid federal law or treaty, made in pursuance

thereof, that requires the state provision to yield to the federal.

The principal precepts comprising this doctrine were summa-

rized recently by the court in Northwest Central Pipeline Corpo-

ration v. State Corporation, Commission of Kansas, 489 U.S. 493,

509, 109 S.Ct. 1262, 1273, 103 L.Ed.2d 509 (1989):

Congress has the power under the Supremacy Clause of

Article VI of the Constitution to pre-empt state law. De-

termining whether it has exercised this power requires

that we examine congressional intent. In the absence of

explicit statutory language signaling an intent to pre-

empt, we infer such intent where Congress has legis-

lated comprehensively to occupy an entire field of regu-

lation, leaving no room for the States to supplement

federal law, Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

67 S.Ct. 1146, 91 L.Ed. 1447 (1947), or where the state law

App. 17

at issue conflicts with federal law, either because it is im-

possible to comply with both, Florida Lime & Avocado

Giowers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S.Ct. 1210,

1217-1218, 10 L.Ed.2d 248 (1963), or because the state

law stands as an obstacle to the accomplishment and ex-

ecution of congressional objectives, Hines v. Davidowitz,

312 U.S. 52, 67, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941). See

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299-300,

108 S.Ct. 1145, 1150-1151, 99 L.Ed.2d 316 (1988);

Louisiana Public Service Comm'n v. FCC, 476 U.S. 355, 368-

369, 106 S.Ct. 1890, 1898-1899, 90 L.Ed.2d 369 (1986); Pa-

cific Gas & Electric Co. v. State Energy Resources Conserva-

tion and Development Comm'n, 461 U.S. 190, 203-204, 103

S.Ct. 1713, 1721-1722, 75 L.Ed.2d 752 (1983).

Applying the preemption precepts to the Louisiana laws

prescribing the times, places and manner of electing Represen-

tatives, it is clear that, under the supremacy clause, the state’s

laws are not contrary to the federal statutes that partially regu-

late the same subjects. Obviously there is no explicit statutory

language signaling an intent to pre-empt, and we cannot infer

an intention to occupy the entire field of election regulation be-

cause Congress has not legislated comprehensively on the sub-

ject. The plaintiffs present no argument to this effect but con-

tend that the state law at issue conflicts with the federal law,

either because it is impossible to comply with both or because

the state law stands as an obstacle to the accomplishment and

execution of congressional objectives.

In order to demonstrate that it is impossible to harmonize

or to comply with both the state and federal laws the plaintiffs

advance an esoteric interpretation of the federal statutes that is

not supported by either the scant legislative history or the pre-

App. 18

vious judicial understanding of the those laws and the Consti-

tution. They argue that it was the congressional intent in en-

acting the predecessor to 2 U.S.C. §§ 7 and 8 to require each

state to adopt regulations for electing Representatives that

would always result in a contested election for each seat on the

federal election day, or at least guarantee that there would be

an opportunity for a candidate to qualify for one. Therefore,

they contend that the state’s open primary and general elec-

tion laws are totally incompatible with the federal law because

they have failed more often than not to produce contested elec-

tions for Representatives on the federal election day.

The meager legislative history tends to show a congres-

sional aim to establish the federal election day as a center of

gravity to prevent the calendrical dispersion of independent

state congressional elections. But it does not indicate an inten-

tion to prevent variation among the states in the manner of

election so long as each election scheme relates to the federal

election day by using it either as the primary or general con-

gressional election day. The few remarks by Senators Butler

and Thurman express concern over each state’s autonomous

power to carry out completely independent elections of Rep-

resentatives and Presidential electors in any month of the year.

They feared that under such an undisciplined regime there

would be undue influence upon outcomes by strategic timing

of elections and the lack of any semblance of uniformity. See

majority opinion p. 5, n. 3, and p. 6. However, their remarks

evince no concern over the fact that primaries closely linked to

the proposed federal election day might fail to materialize into

contested elections on the Tuesday next after the first Monday

in November. From the sparse legislative history one can only

infer a legislative objective of rough uniformity by tethering

each state’s congressional election scheme to the federal elec-

App. 19

tion day; the congressional record does not reflect an over-

weening desire for contested Representative elections in each

district on every federal election day.

Like its successor, the Louisiana party primary system that

preceded the current open primary and general election sys-

tem, more often than not failed to produce contested elections

on the federal election day. ' The plaintiffs have not supplied

any statistics by which we may compare the open primary to

the party primary and other systems. However, during the

last decade of the old regime, out of a total of 44 Senatorial and

Representative elections only 20 resulted in contested elections

on the general election day. See, Louisiana Almanac 1995-1996,

p- 458-459. During its entire existence the party primary sys-

tem probably resulted proportionately in even fewer actual

contests on the federal election day. In United States v. Classic,

313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) the Supreme

Court observed:

! For much of the history of the electoral party primary,

Louisiana, like the rest of the South, was a one-party state in which

general elections meant little. Paul Grosser, “Political Parties.”

LOUISIANA POLITICS; FESTIVAL IN A LABYRINTH 257 (1982).

See also, United States v. Classic, 313 U.S. 299, 314 n. 2,61 S.Ct. 1031,

1037 n. 2, 85 L.Ed. 1368 (1941). “Since the end of Reconstruction, the

Republican party in Louisiana had served as little more than a nomi-

nal element in state politics. The domination of the Democratic

party was so pervasive that victory in a Democratic primary invari-

ably meant election.” Bennett Wall, LOUISIANA: A HISTORY 2nd

Ed. 362 (1990). The Republicans only fielded candidates on an

“episodic” basis, and did not elect a member of Congress (after Re-

construction) until 1972. Grosser, supra at 257-8. During all of those

decades in which many states held general elections which were of-

ten uncontested and usually mere formalities, Congress never chose

to act to require the de facto determinative election to be held on fed-

eral election day.

App. 20

ees

Pursuant to the authority given by § 2 of Article I of the

Constitution, and subject to the legislative power of

Congress under s4 of Article I, and other pertinent pro-

visions of the Constitution, the states are given, and in

fact exercise a wide discretion in the formulation of a

system for the choice by the people of representatives in

Congress. In common with many other states Louisiana

has exercised that discretion by setting up machinery for

the effective choice of party candidates for representa-

tive in Congress by primary elections and by its laws it

eliminates or seriously restricts the candidacy at the

general election of all those who are defeated in the pri-

mary.

* * *

[T]he practical operation of the primary law in other-

wise excluding from the ballot on the general election

the names of candidates rejected at the primary is such

as to impose serious restrictions upon the choice of can-

didates by the voters save by voting at the primary elec-

tion. In fact, as alleged in the indictment, the practical

operation of the primary in Louisiana, is and has been

since the primary election was established in 1900 to se-

cure the election of the Democratic primary nominee for

the Second Congressional District of Louisiana.’

* * *

2 For a discussion of the practical effect of the primary in control-

ling or restricting election of candidates at general elections, see,

Hasbrouck, Party Government in the House of Representatives

(1927) 172, 176, 177; Merriam and Overacker, Primary Elections

(1928) 267-269; Stoney, Suffrage in the South; 29 Survey Graphic,

163, 164.

App. 21

Here, even apart from the circumstance that the

Le ...s.ana primary is made by law an integral part of the

procedure of choice, the right to choose a representative

is in fact controlled by the primary because, as is alleged

in the indictment, the choice of candidates at the Demo-

cratic primary determines the choice of the elected rep-

Id. at 311, 313-314, 318-319, 61 S.Ct. at 1035-36, 1036-37,

1039.

Nevertheless, the plaintiffs concede that “[p]rior to the en-

actment of the open primary regime in 1978, Louisiana’s Con-

gressional election system complied with the Federal Election

Day Statutes.” Respondents’ Brief at p. 32. Accordingly, they

argue that this court should strike down the open primary law

as it applies to Congressional elections and “revive Louisiana’s

pre-1978 election system for Congressional elections to the ex-

tent practicable because the pre-1978 election system is ‘the

only valid expression of the legislative intent.’ Frost, 278 U.S.

at 526-27, 49 S.Ct. at 239.” Id. This concession and Congress's

refusal during the past century to abolish or alter state party

primary regulations casts grave doubt on Respondents’ argu-

ment that it was Congress's intent by the Federal Election Day

laws to insure that contested Congressional elections, or the

opportunity to qualify for them, take place in every district on

each federal election day. Because it is upon this erroneous in-

terpretation of the Federal Election Day laws that respondents

rely to show that the state’s open election laws are contrary

thereto and that it is impossible to comply with both, their ar-

gument in this respect is without merit.

Respondents and the majority find significance also in the

fact that La.R.S. 18:511(A) provides that “[a] candidate who re-

App. 22

ceives a majority of the votes cast for an office in a primary

election is elected.” Because the Federal Election Day laws do

not necessarily preclude a candidate from being declared

elected after receiving a majority of the votes in the open pri-

mary, I do not believe this provision is contrary to the federal

law. However, if the majority concludes that this provision

alone prevents the open elections laws from passing Su-

premacy Clause muster, it would be a simple matter for this

court to enjoin such a declaration that a congressional candi-

date is elected until the federal election day, rather than declar-

ing the whole law unconstitutional in its application to Con-

Nor is the state’s open elections law contrary to the Federal

Election Day laws because the state law stands as an obstacle

to the accomplishment and execution of congressional objec-

tives. 2 U.S.C. § 7 was enacted, the Supreme Court has ob-

served, “to remedy more than one evil arising from the elec-

tion of members of Congress occurring at different times in the

different States.” Ex parte Yarbrough, 110 U.S. 651, 661, 4 S.Ct.

152, 157, 28 L.Ed. 274 (1884). But those evils unduly benefiting

certain states and political parties and unnecessarily burden-

ing voters and politicians, Cong.Globe, 42nd Cong., 2d Sess.

141 (1871) (remarks of Senator Butler), are not perpetuated by

the current state open elections laws any more, if at all, than by

the previous party primary laws that respondents wish us to

revive. As noted above, the legislative history indicates that

the evil perceived by Congress at that time was the unbridled

power of the states to independently arrange their election

dates in a haphazard and pernicious manner completely un-

tethered to a federally prescribed national election day. Al-

though the present law does impose the burden of double elec-

tions on employed voters, so did the old party primary law

App. 23

and so does virtually every other election system. The passage

of time, however, “has mitigated those burdens to the extent

that “the poor laboring man” no longer “loses his day’s work”

by going to the polls.” Id. See Busbee v. Smith, 549 F.Supp. 494,

524 (D.D.C.1982). Improvements of registration and election

laws have greatly reduced the danger of a voter crossing state

lines to vote in more than one Congressional district election.

The advent of polling coupled with the instantaneity of mod-

ern media coverage has largely superceded whatever effects

the outcome of a congressional primary in one state may have

on an election in another.

App. 24

APPENDIX B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

G. SCOTT LOVE; CIVIL ACTION

PAULS. BERGERON;

KATHLEEN B. BALHOFF; AND

BENNIE BAKER-BOURGEOIS

VERSUS NUMBER 95-788

EDWIN W. EDWARDS,

GOVERNOR OF LOUISIANA; AND

FOX MCKEITHEN, SECRETARY

OF STATE OF LOUISIANA

(Filed April 11, 1996)

RULING ON CROSS MOTIONS FOR SUMMARY

JUDGMENT

This matter is before the Court on cross motions for sum-

mary judgment. After reviewing the record, the Court finds

that there are no genuine issues of material fact, and that the

defendants are entitled to judgment as a matter of law. The

Court specifically finds that Louisiana’s method of conducting

Congressional elections does not violate the laws and Consti-

tution of the United States.

Therefore:

IT IS ORDERED that the defendants’ motion for sum-

mary judgment be and it is hereby GRANTED.

IT IS FURTHER ORDERED that the plaintiffs’ motion for

summary judgment be and it is hereby DENIED.

Judgment shall be entered dismissing the plaintiffs’ suit

with prejudice.

Baton Rouge, Louisiana, April 11, 1996.

s/ Frank J. Polozola

FRANK J. POLOZOLA

United States District Judge

CIVIL ACTION

NUMBER 95-788-B

EDWIN W. EDWARDS,

GOVERNOR OF LOUISIANA; and

FOX MCKEITHEN, SECRETARY

OF STATE OF LOUISIANA

(Filed April 11, 1996)

JUDGMENT

For the written reasons assigned:

IT IS ORDERED AND ADJUDGED that judgment shall be

entered in favor of the defendants and against the plaintiffs

dismissing this suit with prejudice.

Baton Rouge, Louisiana, April 11, 1996.

s/ Frank ]. Polozola

FRANK J. POLOZOLA

United States District Judge

App. 26

APPENDIX D

Louisiana Revised Statutes 18:402:

§ 402. Dates of primary and general elections

A. Gubernatorial elections. Elections for governor and offi-

cers elected at the same time as the governor shall be held

every four years, beginning in 1983.

(1) Gubernatorial primary elections shall be held on the

second to last Saturday in October of an election year.

(2) Gubernatorial general elections shall be held on the

fourth Saturday after the second to last Saturday in October of

an election year.

B. Congressional elections. Elections for members of Con-

gress and officers elected at the same time as members of Con-

gress shall be held every two years, beginning in 1982.

(1) Congressional primary elections shall be held on the

first Saturday in October of an election year.

(2) Congressional general elections shall be held on the first

Tuesday after the first Monday in November of an election year.

C. Municipal and ward elections. In all municipalities with

a population of less than four hundred seventy-five thousand,

elections for municipal and ward officers who are not elected

at the same time as the governor or members of congress shall

be held every four years.

(1) Primary elections for municipal and ward officers who

are not elected at the same time as the governor or members of

congress shall be held on the first Saturday in April of an elec-

tion year, or on the second Tuesday in March of an election

year, if the statewide presidential preference primary election

is scheduled on the second Tuesday in March of the presiden-

App. 27

(2) General elections for municipal and ward officers who

are not elected at the same time as the governor or members of

Congress shall be held on the fourth Saturday after the first

Saturday in April of an election year unless the primary elec-

tion for such officers is held on the second Tuesday in March;

in such case the general election shall be held on the third Sat-

urday in April of an election year.

D. Parochial and municipal elections in a parish containing

a municipality with a population of four hundred seventy-five

thousand or more and in which the municipal and parochial

elections are held at the same time. Elections for parochial and

municipal officers in such a parish containing a municipality

with a population of four hundred seventy-five thousand or

more shall be held every four years, beginning in 1986.

(1) Primary elections for parochial and municipal officers

in a parish containing a municipality with a population of four

hundred seventy-five thousand or more and in which the mu-

nicipal and parochial elections are held at the same time shall

be held on the first Saturday in February of an election year.

(2) General elections for parochial and municipal officers

in a parish containing a municipality with a population of four

hundred seventy-five thousand or more and in which the mu-

nicipal and parochial elections are held at the same time shall

be held on the fourth Saturday after the first Saturday in Feb-

ruary of an election year.

E. Special elections to fill newly created office or vacancy in

office. An election to fill a newly created office or a vacancy in

an existing office, except the office of state legislator or repre-

sentative in congress, shall be held on the dates fixed by the ap-

propriate authority in the proclamation ordering a special elec-

tion as follows:

App. 28

(1) A special primary election shall be held on the first of

the following days that is not less than twelve weeks after the

date on which the proclamation calling the special primary

election was issued; however, no special primary election shall

be held at the same time as a gubernatorial election if the date

of the gubernatorial election is less than fourteen weeks after

the date on which the proclamation was issued and, in such

case, the special primary election shall be held on the first of

the following days after that gubernatorial election:

(a) The second to last Saturday in October, when the spe-

cial general election is held on the fourth Saturday after the

second to last Saturday in October.

(b) The first Saturday in October, when the special general

election is held on the first Tuesday after the first Monday in

November.

(c) The first Saturday in April, when the special general

election is held on the fourth Saturday after the first Saturday

in April or on the second Tuesday in March during the presi-

dential election year, if the statewide presidential preference

primary election is scheduled on the second Tuesday in March

of the presidential election year; however, commencing in 1986

and every fourth year thereafter, this date shall not be applica-

ble in a parish containing a municipality with a population of

four hundred seventy-five thousand or more.

(d) The third Saturday in October, when the special general

election is held on the fourth Saturday after the third Saturday

in October of 1985 and every fourth year thereafter.

(e)(i) The first Saturday in February of an election year for

parish and municipal officers in a parish containing a munici-

pality with a population of four hundred seventy-five thou-

sand or more.

App. 29

(ii) The first Saturday in February of 1995, except in

parishes and municipalities where an election on bonds, taxes,

and other propositions or questions has been called and held

in January of 1995. Notwithstanding the provisions contained

in R.S. 18:467 and 468, the qualifying period for primary elec-

tions held on the first Saturday in February of 1995 shall open

on the third Monday in December of 1994 and shall close at

5:00 p.m. on the Wednesday following the third Monday in

December of 1994.

(2) A special general election shall be held on one of the fol-

lowing days:

(a) The fourth Saturday after the second to last Saturday in

October of 1983 and every fourth year thereafter.

(b) The first Tuesday after the first Monday in November

of even-numbered years.

(c) The fourth Saturday after the first Saturday in April of

any year unless the primary election is held on the second

Tuesday in March; in such case the general election shall be

held on the third Saturday in April; however commencing in

1986 and every fourth year thereafter, this date shall not be ap-

plicable in a parish containing a municipality with a popula-

tion of four hundred seventy-five thousand or more.

(d) The fourth Saturday after the third Saturday in October

of 1985 and every fourth year thereafter.

(e)(i) The fourth Saturday after the first Saturday in Febru-

ary in a parish containing a municipality with a population of

four hundred seventy-five thousand or more, when the special

primary election in such parish and municipality is held on the

first Saturday in February of an election year for parish and

municipal officers.

(ii) The fourth Saturday after the first Saturday in February

App. 30

of 1995, when the special primary election is held as autho-

rized in R.S. 18:402(E)(1)(e)(ii) on the first Saturday in Febru-

ary of 1995.

(3) The secretary of state shall not include the name of any

candidate on any ballot for a special election ‘> fill a vacancy in

any office to which this Subsection is applicable unless such

special election has been called in accordance with the provi-

sions of this Subsection and scheduled on one of the dates pro-

vided herein. Any elector who is eligible to vote in any such

special election may apply for injunctive relief to prohibit the

placing of the name of any candidate in an improperly called

election on the ballot. Venue for such application shall be in

any parish in which the election is called, and the secretary of

state shall be the proper party defendant.

F. Bond, tax, or other elections. Every bond, tax, or other

election at which a proposition or question is to be submitted

to the voters shall be held only on one of the following dates:

(1) The second to last Saturday in October or the fourth Sat-

urday after the second to last Saturday in October of 1983 and

every fourth year thereafter.

(2) The first Saturday in October or the first Tuesday after

the first Monday in November of even-numbered years.

(3) The first Saturday in April or the fourth Saturday after

the first Saturday in April of any year or on the second Tuesday

in March or third Saturday in April during the presidential

election year, if the statewide presidential preference primary

election is scheduled on the second Tuesday in March of the

presidential election year; however, commencing in 1994 and

every fourth year thereafter, the first Saturday in April shall

not be applicable in a parish containing a municipality with a

population of four hundred seventy-five thousand or more.

App. 31

(4) The third Saturday in October or the fourth Saturday af-

ter the third Saturday in October of 1985 and every fourth year

thereafter.

(5) The third Saturday in January of any year, the third Sat-

urday in July of any year which dates, in ad-ition to the other

dates provided for in this Subsection, shall be exclusively for

elections on bonds, taxes, and other propositions or questions

and for no other kind of election; however, commencing in

1994 and every fourth year thereafter, the third Saturday in

January shall not be applicable in a parish containing a munic-

ipality with a population of four hundred seventy-five thou-

sand or more.

(6) For a parish containing a municipality with a popula-

tion of four hundred seventy-five thousand or more, the first

Saturday in February or the fourth Saturday after the first Sat-

urday in February in 1986 and every fourth year thereafter.

(7) In case of an emergency, upon application to and ap-

proval by the State Bond Commission by two-thirds vote of its

total membership, and with approval of the governor, the gov-

erning authority of a parish, of a municipality, or of a parish or

city school board may conduct a bond or tax election on a Sat-

urday which is not provided for in this Subsection.

G. Prohibited days. No election of any kind shall be held in

this state on any of the days of Rosh Hashanah, Yom Kippur,

Sukkoth, Shmini Atzereth, Simchas Torah, the first two days

and the last two days of Passover, Shavuoth, Fast of AV, or the

three days preceding Easter. If the date of any election falls on

any of the above named days, the election shall be held on the

same weekday of the preceding week.

Louisiana Revised Statutes 18:511:

§511. Election of candidates in a primary election

App. 32

A. Majority vote. A candidate who receives a majority of

the votes cast for an office in a primary election is elected. If

there are two or more offices of the same character to be filled,

the number of votes necessary to constitute a majority shall be

greater than the result obtained by dividing the total votes cast

for all of the candidates by the number of offices to be filled

and dividing the result so obtained by two. If more candidates

receive a majority than there are offices to be filled, those of

such candidates receiving the highest total of votes shall be

elected, to the number required to fill all of the offices. Any

votes received by a withdrawn candidate or a deceased candi-

date shall be void and shall not be counted for any purpose

whatsoever.

B. Election of unopposed candidates for public office. If,

after the close of the qualifying period for candidates in a pri-

mary election, the number of candidates for a public office

does not exceed the number of persons to be elected to the of-

fice, the candidates for that office, or those remaining after the

withdrawal of one or more candidates, are declared elected by

the people, and their names shall not appear on the ballot in ei-

ther the primary or the general election.

C. Election of unopposed candidates for membership on

party committees. If, after the close of the qualifying period

for candidates in a primary election, the number of candidates

for membership on a political party committee does not ex-

ceed the number of members to be elected to the committee,

the candidates for membership on that political party commit-

tee, or those remaining after the death or withdrawal of one or

more candidates, are declared elected by the people, and their

names shall not appear on the ballot in either the primary or

the general election.

App. 33

D. Effect of a tie vote. If, as a result of a tie vote in a pri-

mary election, the number of candidates who would be elected

to an office exceeds the number of persons to be elected to the

office, the candidates who received the same majority of the

votes cast in the primary election are not elected, but they are

qualified as candidates in the general election.