Joint Appendix — Foster v. Love
Supreme Court brief1997
Ask Donna
What actually matters in this document.
Text
No. 96-670 ; %
In the i a=
Supreme Court of the United States . |;
October Term, 1996 | a
¢
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, PAULS. 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
oo .
JOINT APPENDIX
°
M.MILLER BAKER RICHARD P. IEYOUB
ALAN D. Titus Attorney General of Louisiana
BRIAN M. TAUSCHER Roy A. MONGRUE, JR.
CARR GOODSON LEE & WARNER Assistant Attorney General
A Professional Law Corporation ANGIE ROGERS LAPLACE
1301 K STREET, N.W. Assistant Attorney General
Suite 400 East Tower LOUISIANA DEPARTMENT OF JUSTICE
Washington D.C. 20005-3300 Crvi Division
(202) 310-5583 One American Place, 6th Floor
301 Main Street
DANIEL J. BALHOFF Post Office Box 94005
PRICE & GUIDRY (504) 342-7013
8201 Jefferson Highway
Baton Rouge, Louisiana 70809
(504) 929-7481
Counsel for Respondents Counsel for Petitioners
Petition For Certiorari Filed: October 28, 1996
Petition For Certiorari Granted : March 17, 1997
CLERK
ay? a"
TABLE OF CONTENTS
Page
Relevant Docket Entries in the United States
Relevant Docket Entries in the United States
Piaintiffs’ Statement of Material Facts as to _
Which There is No Genuine Issue to be Tried EE
Defendant's Statement of Material Facts as to
Which There is No Genuine Issue to be Tried eT
Plaintiffs’ Statement of Disputed Material Facts /
Response to Defendants’ Statement of Material Facts
as to Which There is No Genuine Issue to be Tried................. 35
Affidavits filed by Plaintiffs in Support of
Their Motion for Summary Judgment ............:scccccsccssssssssssssse.. 38
District Court April 11, 1996 Judgment.............:.ccc00esseessssssssssse 47
District Court April 11, 1996 Ruling on
Cross Motions for Summary Judgment ..............:cccssssssssssssssss.. 48
Opinion of the United States Court of
Appeals for the Fifth Circuit, July 30, 1996.00... 50
Ruling of the United States Court of Appeals for
the Fifth Circuit on Petition for Panel Rehearing and
Suggestion for Rehearing En Banc, November 15, 1996......... 73
8/7/95
9/5/95
9/5/95
9/6/95
Edwards, Et Al.
Filed: 08/07/95
CIVIL DOCKET FOR CASE #: 95-CV-788
1 COMPLAINT Filing Fee $120.00 Receipt
#57419 (ph) [Entry date 08/08/95]
9 MOTION by G. Scott Love, Paul S. Berg-
eron, Kathleen B. Balhoff, Bennie Baker-
for (Mo-
tion oy | 1/07/98) (ph)
[Entry date 09/06/95]
11 MOTION by G. Scott Love, Paul S. Berg-
_ eron, Kathleen B. Balhoff, Bennie Baker-
tion for S} (ph) [Honey dane OCR eS
9/14/95
9/18/95
10/4/95
10/4/95
10/4/95
2/16/96
4/11/%
4/12/%
14
18
21
ORDER [11-1] motion for Expe-
9:00 10/23/95 for [9-1] motion for Sum-
mary Judgment with oral argument
( by Frank J. Polo-zola), is-
sued notices. (
ANSWER to Complaint Edwin Ed-
wanda, Pox McKalthen tatne, Sheri M.
Morris). (ph) [Entry date 09/19/95]
MOTION by Edwin Edwards, Fox McKei-
hearing oot for 500 2/1700) GAS eee
ing set :
date 10/05/95}
SJ (ph) [Entry date 10/05/95]
ORDER [20-1] motion for Expe-
dited set for
10/23/95 for [18-1] motion for
vised via telephone on 2/16/96 (rg)
RULING granting [18-1] dfts’ motion by
for Summary +~_— 9-1
Ss motion ~
Shall be entered the
suite with by
Frank J. ) notices.
(hj) date 04/12/96]
JUDGMENT for dfts Edwin Edwards, Fox
McKeithen against G. Scott Love,
Paul S. Bergeron, B. Balhoff,
Bennie Baker-Bourgeois dismissing this
4/24/96
28
suit with . (signed by Judge
Frank J. Polozola), issued notices. (hj)
NOTICE OF APPEAL, by G. Scott Love,
Paul S. Bergeron, Kathleen B. Balhoff,
due on 5/24/96 (ph)
4 5
GENERAL DOCKET Love. E/Res’s Brief due on 5/17/96 for
FIFTH CIRCUIT COURT OF APPEALS Fox McKeithen, for Michael J. Foster. Re-
- or ” ply Brief due on 5/24/96 for Bennie
for Kathleen B. Balhoff,
for Paul S. Bergeron, for Scott Love.
Love, Et Al. (dmd)
5/6/96 APPELLANT'S BRIEF filed Appellant
V. Scott Love, Pea 2 Bergeron,
B. Balhoff, Appellant,
Bennie of brief:
Foster, McKeithen, Et Al. 7. # of pages: 34. of COS: 05/03/96.
erm y Boy en mociiidiens.
96-30429 s Bri Satisfied.
i. Daher Soupes ee Kahtece tole
B. ,
4/25/% Civil Rights case docketed. ny marly (dmd)
Appellant Scott Love, 5/6/96 Record excerpts filed by Appellant Scott
Bergeron, Appellant Kathleen B. Balhof, Love, Paul S Boson Appel-
Appellant, Bennie Baker-Bourgeois. [96- lant B. Balhoff, Appellant Bennie
30429] Fee due on 5/6/96 for Bennie # of : 4. Suffi-
Baker-Bourgeois, for Kathleen B. Balhoff, cient [¥/Nf N--No Binding. [96-0400]
for Paul S. Bergeron, for Scott Love. Sufficient Record Excerpts due on 5/6/96
(dmd) av Soom oe ay mae
4/25/96 MOTION filed Scott Love, - Balhoff, for Paul Scott
omg Sy te amin
B. Balhoff, Appellant ie, 5/20/96 APPELLEE’S BRIEF filed ye oo
Baker-Bourgeois to expedite appeal. Michael J. Foster,
[284749-] [96-30429] (jmp) then, of 7. # of pages: 19.
ORDER filed a Date of 05/17/96. Sufficient [Y/N]:
4/26/96 COURT trachea > Cm J wn E/Res’s Brief ddl satisfied.
to all counsel. [96-30429] Oral
tnd bring schedule to be estaba by 5/24/96 CASE CALENDARED for oral argument.
the Clerk of Court. 5/30/96 REPLY BRIEF filed by Appellant Scott
a [ A/Pet’s Brief due 5/3/96 lant B. Bath Bennie
s on ;
eee for Kathleen Baker-Bourgeois. Copies of Brief: 7. # of
B. Balhoff, for Paul S. for Scott
5/30/96
6/19/96
6/25/96
7/2/%
7/8/%
6
pages: 13. Date of COS: 05/28/96. Suf-
ficient [Y/N]: Y. [96-30429] (dmd)
COURT ORDER filed suggestion
for hearing en banc [30738-] (wed)
to all counsel. [96-30429] (THIS
ORDER WAS ENTERED TO REFLECT
THAT NO POLL WAS TAKEN IN CON-
JUNCTION WITH THE ORDER PREVI-
OUSLY ENTERED, DENYING SAME)
(pok)
SUPPLEMENTAL LETTER BRIEF __ re-
of Appellant Scott Love, l-
geois, Michael J. Foster, Appellee
Fox for from panel.
Abr due: 6/25/96 due: 7/2/96 [96-
30429] (vib)
SUPPLEMENTAL LETTER BRIEF filed
by Appellant Scott Love, t Paul
Seaaee ceca
Brief: 4. # of : 13. Date of
COS: yr ty [ ] A/Pet Supple-
mental Brief ddl satisfied. (vlb)
SUPPLEMENTAL LETTER BRIEF filed
oe Foster,
of Brief: 4. # of
page Date of COS, 0702/96. [96-30429]
Brief ddl satisfied.
(dmd)
by Roy A. oe date een
McKeithen, Michael J. Foster, M.
Miller Baker for Appellant Bennie Baker-
Bourgeois, Appellant Kathleen B. Balhoff,
Appellant Paul S. Bergeron, Appellant
7/15/96
7/30/96
7/30/96
8/12/96
9/10/96
11/5/96
11/15/96
7
Scott Love [96-30429] (vib)
Pre dane non p< ge ete
A Paul S. Appellant Benn
Ka B. ae at
15/96 request
pa Dey coma dieiiies os
tk Peal with election
qualifications, etc. [96-30429] (jmp)
OPINION filed. Issd in T form? Y Issue
— due on 8/20/96. [96-30429]
JUDGMENT entered and filed. [96-30429]
SUGGESTION filed by Appellee Michael
J. Foster, Appellee Fox McKeithen for
en banc. # of copies filed: 20.
[ 1] Issue Mandate ddl cancelled.
[96-30429] (ccb)
RESPONSE/OPPOSITION filed by
plan Scot Love Appel Pol Bey _,
odin’ Want Bennie Baker-Bourgeois 5
suggestion for rehearing en banc as re-
pellee Michael J. Foster, Appellee ex
McKeithen. [409138-1] [96-30429] (ksw)
SUPREME COURT NOTICE that petition
for certiorari was filed on 10/28/96 by
«ye Fox
. (dmd)
COURT ONDE ie ing psn
(Y/N)?: Y Issue Mandate due on
pin de (wed, jld,Fallon) to all
counsel. [96-30429] (DENNIS,
FROM FAILURE TO GRANT REHEAR-
11/26/96
3/24/97
35
36
ING EN BANC, WITH WHOM POLITZ
AND SMITH JOINED) (rmf)
MANDATE issued. Approved BOC is-
sued (Y/N)?: Y. [96-30429] Issue Man-
date ddl satisfied. (dmd)
SUPREME COURT ORDER _ received
granting petition certiorari [463603-1]
filed by Appellee Michael J. Foster, Jr., Ap-
pellee Fox McKeithen on 3/17/97. [96-
30429]. (ksw)
UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788-B-MI
G. Scott Love, PAuULS. BERGERON; KATHLEEN
B. BALHOFF; AND BENNIE BAKER-BOURGEOIS, PLAINTIFFS
v.
EDWIN W. EDWARDS, GOVERNOR OF LOUISIANA; AND Fox
MCKEITHEN, SECRETARY OF STATE OF LOUISIANA, DEFENDANTS
FIRST AMENDED COMPLAINT FOR DECLARATORY
RELIEF AND PERMANENT INJUNCTIVE RELIEF
(Filed: 09/06/95
Plaintiffs G. Scott Love, Paul S. Bergeron, Kathleen B. Balhoff,
and Bennie Baker-Bourgeois, by counsel, as and for their First
Amended Complaint against Defendants Edwin W. Edwards,
Governor of Louisiana, and Fox McKeithen, Secretary of State
of Louisiana, allege upon information and belief as follows:
NATURE OF THE ACTION
1. This is a federal civil rights action brought under 42 U.S.C.
§ 1983 against Defendants for conducting, under color of state
law, regular congressional elections in Louisiana on dates ear-
lier than the day mandated by federal law, in violation of
Plaintiffs’ federal statutory and constitutional rights.
2. An actual, justiciable controversy exists between the par-
ties over Defendants’ holding of regular congressional elec-
tions within the State of Louisiana on dates earlier that the day
10
required by federal law. Plaintiffs seek declaratory relief pur-
suant to 28 U.S.C. § 2201, 42, U.S.C. §1983, and FED. R. CIV. P.
57, and permanent injunctive relief pursuant to 28 U.S.C. §
2202, 42 U.S.C. § 1983, and FED. R. CIV. P. 65 requiring Defen-
dants to conduct all future regular elections in Louisiana for
U. S. Representative and U. S. Senator, including the impend-
ing 1996 elections, on the dates compelled by federal law.
THE PARTIES
3. Plaintiff G. Scott Love is a citizen of Louisiana and of the
United States who resides in East Baton Rouge Parish,
Louisiana. Love is a registered voter who resides in the Sixth
Congressional District of Louisiana. Love has voted in previ-
ous federal elections in Louisiana for U.S. Representative, U.S.
Senator, and presidential Elector, and intends to do so again in
the 1996 and future elections in Louisiana for the same offices.
4. Plaintiff Paul S. Bergeron is a citizen of Louisiana and of
the United States who resides in East Baton Rouge Parish,
Louisiana. Bergeron is a registered voter who resides in the
Sixth Congressional District of Louisiana. Bergeron has voted
in previous federal elections in Louisiana for U.S. Representa-
tive, U.S. Senator, and Presidential Elector, and intends to do
so again in the 1996 and future elections in Louisiana for the
same offices.
5. Plaintiff Kathleen B. Balhoff is a citizen of Louisiana and of
the United States who resides in East Baton Rouge Parish,
Louisiana. Balhoff is a registered voter who resides in the
Sixth Congressional District of Louisiana. Balhoff has voted in
previous federal elections in Louisiana for U.S. Representative,
USS. Senator, and Presidential Elector, and intends to do so
again in the 1996 and future elections in Louisiana for the same
offices.
6. Plaintiff Bennie Baker-Bourgeois is a citizen of Louisiana
11
and of the United States who resides in Lafourche Parish,
Louisiana. Baker-Bourgeois is a registered voter who resides
in the Third Congressional District of Louisiana. Baker-Bour-
geois has voted in previous federal elections in Louisiana for
U.S. Representative, U.S. Senator, and Presidential Elector, and
intends to do so again in the 1996 and future elections in
Louisiana for the same offices.
7. Defendant Edwin W. Edwards is Governor of the State of
Louisiana and is a resident of East Baton Rouge Parish,
Louisiana. Pursuant to Article IV, § 5 of the Louisiana Consti-
tution, Edwards is responsible for executing the laws of
Louisiana. Edwards is sued in his official capacity.
8. Defendant Fox McKeithen is Secretary of State of
Louisiana and is a resident of East Baton Rouge Parish,
Louisiana. Pursuant to LA. R.S. § 18:421, McKeithen is the
chief election officer of Louisiana. Pursuant to LA. R.S. §
18:1277, McKeithen is also responsible for certifying the results
of congressional elections. McKeithen is sued in his official ca-
pacity.
JURISDICTION
9. This action arises under 42 U.S.C. § 1983, 2 U.S.C. §§ 7 and
1, the Supremacy Clause of Article VI of the U.S. Constitution,
and the Privileges or Immunities Clause of the Fourteenth
Amendment to the U.S. Constitution.
10. The jurisdiction of this Court over claims arising under 2
U.S.C. §§ 7 and 1 and the U.S. Constitution is founded on 28
U.S.C. § 1331.
VENUE
12. Venue in this Court is proper under 28 U.S.C. § 1391(b).
12
THE CAUSE OF ACTION
Federal Law Requirements for the Timing
of Congressional & Presidential Elections
13. Article I, § 4, cl. 1 of the U.S. Constitution 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 to the Places of chusing Senators.
14. Acting pursuant to its constitutional authority under Ar-
ticle I, § 4, cl. 1, in 1872 Congress enacted 2 U.S.C. § 7, which
States:
The Tuesday next after the Ist 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.
Hereinafter, the date prescribed by 2 U.S.C. § 7 for the holding
of regular elections for U.S. Representatives is referred to as
“Federal Election Day.”
15. Title 2, § 1 of the U.S. Code requires that in U.S. Senate
election years, regular elections of U.S. Senators throughout
the United States shall take place on Federal Election Day.
16. Under authority granted by Article II, § 1, cl. 4 of the U.S.
Constitution, Congress has mandated in 3 U.S.C. § 1 that in
Presidential election years, presidential Electors throughout
the United States shall be appointed by the States on Federal
Election Day.
17. Article VI, § 2 of the U.S. Constitution provides:
13
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.
18. Section 1 of the Fourteenth Amendment to the U.S. Consti-
a — me ger part: “No State shall make or en-
ree any law which shall abridge the privi or i iti
of citizens of the United States...” ree 3 ee re
Louisiana Law Governing the Timing
of Congressional & Presidential Elections
19. LA. RS. § 18:1272(A) provides:
after. The primary election shall be held on the first Saturday
(emphasis added).
20. LA. R.S. § 18:402(B)(1) Provides: “Con j
¢ gressional prima
elections shall be held on the first Saturday in October of an election
year.” (emphasis added).
22. Regarding the election of U.S. Representatives and U.S
Senators, LA. R.S. § 18:1271 provides: ai
Except as otherwise specifically provided in this Part,
14
United States senators and representatives in Congress
shall be elected as provided in this Title for the election
of public officers.
23. By operation of LA. R.S. § 1271, the following provision
of the Louisiana Election Code is applicable to primary elec-
tions for U.S. Representative and U.S. Senator:
Majority vote. 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). Thus, should a candi-
date for U.S. Representative or U.S. Senator in Louisiana se-
cure a majority of the vote in the October open primary estab-
lished by LA. R.S. §§ 18:1272(A), 18:1272(B), and 18:402(B)(1),
under LA. R.S. §§ 18:1271 and 18:511(A) such candidate is
“elected” and no election is conducted on Federal Election
Day.
24. Pursuant to authority under Article II, § 1, cl. 2 of the U.S.
Constitution enabling states to choose their own method of
“appointing” Presidential Electors, Louisiana has enacted LA.
R.S. § 18:1251, which provides for the popular election of Pres-
idential Electors in Presidential election years. In accordance
with the Congressional command in 3 U.S.C. § 1 that Presiden-
tial Electors be appointed on Federal Election Day, LA. R.S. §
18:1251 provides in pertinent part:
The election [of Presidential Electors] shall be held on the
Tuesday following the first Monday in November...
(emphasis added).
25. By permitting a candidate to win outright in the October
open primary by securing a majority of the vote, Louisiana
conducts binding and conclusive elections for U.S. Represen-
tative and U.S. Senator on the first Saturday in October. Only
when the October open primary results in a failure to elect a
15
candidate to such offices does Louisiana, pursuant to LA. R.S.
§§ 18:481, 18:1271, 18:1271(A) and 18:1272(B), conduct a run-
off election on Federal Election Day between the candidates
who receive the two highest numbers of votes in the primary.
Elections for U.S. Representatives in Louisiana, 1978-1994
26. Since Louisiana’s open primary first took effect in federal
elections in 1978, there have been seventy regular elections for
U.S. Representative in Louisiana's eight (1978-1990) and later
seven (1992-1994) congressional districts.
27. Thirteen of the seventy regular elections for U.S. Repre-
sentative held in Louisiana since 1978, or 18.5%, were uncon-
tested, i.e., only one candidate qualified for the open prima
ry
and therefore was declared elected without a contested pri-
mary election pursuant to LA. R.S. § 18:511(B).
28. Forty-eight of the seventy regular elections for U.S. Rep-
ee held in Louisiana since 1978, or 68.5%, were deter-
mined conclusively in the contested open prima
ry and thus
held on such day when one candidate received a majority of
the vote and therefore was elected outright pursuant to LA.
R.S. §§ 18:1272(A), 18:402(B)(1), 18:1271, and 18:511(A).
29. Only nine of the seventy regular elections for U.S. Repre-
sentative held in Louisiana since 1978, or 12.8%, were held on
the Federal Election Day when a failure of any candidate to re-
ceive a majority of the vote in the contested open pri
| primary re-
sulted in a run-off election pursuant to LA. R.S. §§ 18:1272(A),
18:1271, and 18:481.
30. Of the fifty-seven contested regular elections for U.S.
Representative held in Louisiana since\1978, forty-eight, or
84.2%, were determined conclusively in the open primary and
thus held on such day, and nine, or 15.7%, were determined in
run-off elections held on the Federal Election Day.
16
Elections for U.S. Senator in Louisiana, 1978-1994
31. Since Louisiana’s open primary first took effect in federal
elections in 1978, there have been six regular elections for U.S.
Senator from Louisiana. These elections took place in 1978,
1980, 1984, 1986, 1990, and 1992. All of these elections were
contested.
32. Five of the six contested regular elections for U.S.. Sena-
tor held in Louisiana since 1978, or 83.3%, were determined
conclusively in the open primary and thus were held on such
day because one candidate received a majority of the vote and
therefore was elected pursuant to LA. R.S. §§ 18:1272(B),
18:1271, and 18:511(A).
33. Only one of the six contested elections for U.S. Senator
held in Louisiana since 1978, or 16.6%, was held on the Federal
Election Day when the failure of any candidate to receive a ma-
jority of the vote in the primary resulted in a run-off election
pursuant to LA. R.S. §§ 18:1272(B), 18:1271, and 18:481.
Past and Future Injury to Plaintiffs Resulting
from Louisiana’s Violation of Federal Law Requirements
for Timing of Congressional Elections
34. On October 6, 1996, pursuant to LA. R.S. §§ 18:402(B)(1),
18:1271, 18:1272(A), and 18:1272(B), Defendants will conduct
open primary elections in Louisiana for Representatives from
each Congressional District (including the Sixth and Third
Congressional Districts) and U.S. Senator.
35. Should any candidate for U.S. Representative for the
Sixth or Third Congressional Districts of Louisiana or U.S. Sen-
ator in the October 6, 1996 open primary win a majority of the
vote, under LA. R.S. §§ 18:402(B)(1), 18:511(A), 18:1271(A), and
18:1272(B), such candidate shall be elected, and Plaintiffs will
be denied their right to vote for U.S. Representative or U.S.
Senator on Federal Election Day, November 5, 1996.
ar ye it of each Plaintiff to vote for U.S.
Senator on Federal Election Day is a secured
the Constitution and laws of the United States and the axe
Fy paras nial of that individualized right is irreparable in
per se.
tiffs must then return to the ballot on Federal Election Da
y to
vote for Presidential Electors. Under LA. R.S. §§ 18:402(B\1)
18:511(A), 18:1271, 18:1272(A), and 18:1272(B), this irreparable
injury to Plaintiffs will be repeated in 1996 and all subsequen
Presidential election years. |
3. As a result of Louisiana’s noncompliance with the federal
liming requirement for congressional elections, Plaintiffs have
in the past and will in the future suffer irreparable injury by
being deprived of the right to participate in the political
process and advocate the defeat or election of candidates for
eee and U.S. Senator during the time period
a conclusive pri for such offices
Ab primary and Federal
COUNT I - DECLARATORY RELIEF
40. Plaintiffs reallege paragraphs 1-39 as if set forth here at
18
41. Plaintiffs’ rights to vote in elections for U.S. Representa-
tive and U.S. Senator on Federal Election Day are privileges or
immunities of U.S. citizenship protected by the Privileges or
Immunities Clause of the Fourteenth Amendment to the U.S.
Constitution.
42. Plaintiffs’ rights to vote in elections for U.S. Representa-
tive and U.S. Senator on Federal Election Day pursuant to 2
U.S.C. §§ 7 and 1 are federal statutory rights protected by the
Supremacy Clause of Article VI of the U.S. Constitution.
43. Congress enacted 2 U.S.C. §§ 7 and 1 for the benefit of all
44. By providing for the conclusive election of a candidate for
U.S. Representative and U.S. Senator in the October open pri-
mary, LA. R.S. §§ 18;402(B)(1), 18:511(A), 18:1271, 18:1272(A),
and 18:1272(B) allow Louisiana to circumvent the holding of
regular congressional elections on Federal Election Day and
deny Plaintiffs their rights to vote for U.S. Representative and
U.S. Senator on such date. Accordingly, LA. R.S. §§
18:402(B)(1), 18:511(A), 18:1271, 18:1272(A), and 18:1272(B) vi-
olate 2 U.S.C. §§ 7 and 1 and as such are unconstitutional un-
der the Supremacy Clause of Article VI of the U.S. Constitution
and the Privileges or Immunities Clause of the Fourteenth
Amendment to the U.S. Constitution.
45. By conducting elections for U.S.. Representative and U.S.
Senator in Louisiana in accordance with LA. RS. §§
18:402(B)(1), 18:511(A), 18:1271, 18:1272(A), and 18:1272(B),
Defendants under color of state law have in the past and will
in the future violate the rights secured to Plaintiffs by the Con-
stitution and laws of the United States to vote in congressional
elections on Federal Election Day. the past violations and
prospective future violations of Plaintiffs’ rights to vote in con-
gressional elections on Federal Election Day create a real and
19
justiciable controversy susceptible of resolution by declaratory
judgment.
COUNT II - PERMANENT INJUNCTION
46. Plaintiffs reallege paragraphs 1-45 as if set forth here at
47. By conducting elections for U.S. Representative and U.S.
Senator in Louisiana in accordance with LA. RS. §§
18:402(B)(1), 18:511(A), 18:1271, 18:1272(A), and 18:1272(B),
Defendants under color of state law have in the past and will
in the future violate the rights secured to Plaintiffs by the Con-
stitution and laws of the United States to vote in congressional
elections on Federal Election Day.
48. Plaintiffs’ rights to vote for a U.S. Representative and US.
Senator on Federal Election Day are important rights, the de-
privation of which denies each plaintiff the full scope of his or
her individualized right to vote for a U.S. Representative or
U.S. Senator. This deprivation of each Plaintiff's right to vote
on Federal Election Day constitutes injury per se for which
there is no adequate remedy at law.
49. By impairing the Plaintiffs’ rights to vote for a U.S. Rep-
resentative or U.S. Senator on Federal Election Day whenever
a congressional candidate secures a majority of the votes case
in Louisiana’s open primary, Defendants directly and proxi-
mately have caused and will continue to cause irreparable in-
jury to Plaintiffs for which there is no adequate remedy at law.
Among other things, in Presidential election years Plaintiffs
have been in the past and will be in the future burdened with
the need to vote in regular federal elections on two different
days, and Plaintiffs have been in the past and will be in the fu-
ture deprived of the right to participate in the political process
and advocate the defeat or election of candidates for U.S. Rep-
resentative and U.S. Senator during the time period between a
20
conclusive primary for such offices and Federal Election Day.
50. It is in the public interest that Defendants be enjoined per-
manently from violating Plaintiffs’ rights under 2 U.S.C. §§ 7
and 1 to vote for U.S. Representative and U.S. Senator on Fed-
eral Election day, because Plaintiffs’ rights to vote on Federal
Election Day are protected by the Supremacy Clause of Article
VI of the U.S. Constitution and Privileges or Immunities
Clause of the Fourteenth Amendment to the U.S. Constitution.
WHEREFORE, Plaintiffs respectfully request that this Court:
(a) Declare, pursuant to 28 U.S.C. § 2201, 42 U.S.C. §
1983, and Fed. R. CIV. P. 57, the October open pri-
mary for regular congressional elections estab-
lished by LA. R.S. §§ 18:402(B)(1), 18:511(A),
18:1271, 18:1272(A), and 18:1272(B) to be an
“election” within the meaning of the 2 U.S.C. §§
7 and because such primary allows the conclu-
sive election of U.S. Representatives and U.S.
Senators;
(b) Declare, pursuant to 28 U.S.C. § 2201, 42 U.S.C. §
1983, and FED. R. CIV. P. 57, the Plaintiffs’ rights
to vote for U.S. Representative and U.S. Senator
in regular congressional elections on Federal
Election Day under 2 U.S.C. §§ 7 and 1 to be priv-
ileges of U.S. citizenship protected by the Privi-
leges or Immunities Clause of the Fourteenth
Amendment to the U.S. Constitution;
(c) Declare, pursuant to 28 U.S.C. § 2201, 42 U.S.C. §
1983, and FED. R. CIV. P. 57, the October open
primary for regular congressional elections es-
tablished by LA. R.S. §§ 18:402(B)(1), 18:511(A),
18:1271, 18:1272(A), and 18:1272(B) to be uncon-
(d)
(e)
(f)
21
stitutional under the Supremacy Clause of Arti-
cle VI of the U.S. Constitution by providing for
the regular election of U.S. Representatives and
Senators on a date earlier than that permitted by
2 U.S.C. §§ 7 and 1;
Declare, pursuant to 28 U.S.C. § 2201, 42 U.S.C. §
_ 1983, and FED. R. CIV. P. 57, the October open
primary for regular congressional elections es-
tablished by LA. RS. §§ 18:402(B)(1), and
18:511(A), 18:1271, 18:1272(A), and 18:1272(B) to
be unconstitutional under the Privileges or Im-
munities Clause of ine Fourteenth Amendment
to the U.S. Constitution because such primary
denies the Plaintiffs their privilege as U.S. citi-
zens to vote in regular congressional elections on
Federal Electiun Day;
Enter a permanent injunction pursuant to 28
U.S.C. § 2202, 42 U.S.C. § 1983, and FED. R. CIV.
P. 65 enjoining Defendants from conducting the
October open primary for regular congressional
elections established by LA. R.S. §§ 18:402(B)(1),
18:511(A), 18:1271, 18:1272(A), and 18:1272(B),
and requiring Defendants to conduct the 1996
and all future conclusive regular elections for
U.S. Representative and U.S. Senator in
Louisiana on Federal Election Day as designated
by 2 U.S.C. §§ 7 and 1;
Grant Plaintiffs their costs of this action and rea-
sonable attorney fees pursuant to 42 U.S.C. §
1988; and
22 23
(g) Grant Plaintiffs such other relief as the Court
deems just and equitable.
DATED: September 6, 1995 Respectfully submitted,
MATHEWS, ATKINSON, GUGLIELMO,
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on this 6th day of September, 1995, that
a copy of the foregoing pleading has been served by U.S. Mail,
first class postage prepaid, or hand-delivery, upon the follow-
ing counsel of record.
MARKS & DAY
THomas E. BALHoFF (La. Bar No. 2716)
Judith R. Atkinson (La. Bar No. 17240)
Daniel J. Balhoff (La. Bar No. 18776) TA
320 Sumerulos Street
P.O. Box 3177
Baton Rouge, Louisiana 70821-3177
(504) 387-6966
CARR, GOODSON & LEE, P.C.
M. MILLER BAKER (La. Bar No. 14065)
Brian M. Tauscher
1301 k Street, N.W.
Suite 400 East Tower
Washington, D.C. 20005-3300
(202) 310-5500
John S. Baker, Jr. (La. Bar No. 2700)
L.S.U. Law Center Room 414
Baton Rouge, Louisiana 70803
(504) 388-8846
Attorneys for Plaintiffs
Roy A. Mongrue, Jr.
Angie R. LaPlace
Assistant Attorneys General
Civil Division
Post Office Box 94005
Baton Rouge, Louisiana 70804
Sheri Marcus Morris, Esquire
Office of the Secretary of State of
Louisiana
Post Office Box 94125
Baton Rouge, Louisiana 70804-9125
(s/ Thomas E. Balhoff
24
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788-B-MI
G. Scott Love, Et. AL, PLAINTIFFS
versus
EDWIN W. EDWARDS, ET. AL, DEFENDANTS.
ANSWER
NOW INTO COURT through undersigned counsel
come defendants, EDWIN W. EDWARDS, in his offical capac-
ity as Governor of the State of Louisiana, and W. Fox McKei-
then, in his official capacity as Secretary of the State of
Louisiana, who in answer to Plaintiffs’ Complaint for Declara-
tory Relief and Permanent Injunctive Relief, as amended on
September 6, 1995, asserts the following defenses.
FIRST DEFENSE
This court lacks subject matter jurisdiction.
SECOND DEFENSE
The complaint fails to state a cause of action or facts
sufficient to constitute a claim upon which relief can be
granted.
THIRD DEFENSE
Defendants futher answer the complaint as follows:
1. The allegations contained in paragraphs 1 and 2 are con-
25
clusions of law which do not require an answer; alternatively,
the allegations are denied.
2. The allegations contained in paragraphs 3, 4, 5 and 6 are
denied for lack of sufficient information to justify belief
therein.
3. The allegations contained in paragraph 7 are admitted.
4. The allegations contained in paragraph 8 are admitted
with the exception that W. Fox McKeithen is not a resident of
East Baton Rouge Parish.
5. The allegations contained in paragraphs 9, 10, 11 and 12
are conclusions of law and do not require an answer; alterna-
tively, the allegations are denied.
6. The allegations contained in paragraphs 13, 14, 15, 16, 17,
18, 19, 20, 21, 22 and 23 are conclusions of law and do not re-
quire an answer; alternatively, the allegations are denied.
7. The allegations contained in paragrapls 24, 25 and 26 are
denied. |
8. The allegations contained in paragraphs 27, 28, 29 and 30
are conclusions of law and do not require an answer; alterna-
tively, the allegations are denied for lack of sufficient informa-
tion to justify a belief therein.
9. The allegations contained in paragraph 31 are denied for
lack of sufficient information to justify a belief therein.
10. The allegations contained in paragraphs 32 and 33 are
conclusions of law and do not require an answer; alterna-
tively, the allegations are denied for lack of sufficient informa-
tion to justify a belief therein.
11. The allegations contained in paragraph 34 are admitted.
12. The allegations contained in paragraph 35 are conclu-
26
sions of law and do not require an answer; alternatively, the al-
legations are denied.
13. The allegations contained in paragraph 36 are admitted.
14. The allegations contained in paragraph 37, 38 and 39 are
conclusions of law and do not require an answer; alterna-
tively, the allegations are denied.
15. Defendants adopt their responses to paragraphs 1-39 as
if set forth here at length in respose to the allegations con-
tained in paragraph 40.
16. The allegations contained in paragraph 41, 42, 43, 44 and
45 are conclusions of law and do not require an answer; alter-
natively, the allegations are denied.
17. Defendants adopt their responses to paragraphs 1-45 as
if set forth here at length in respose to the allegations con-
tained in paragraph 46.
18. The allegations contained in paragraph 47, 48, 49 and 50
are conclusions of law and do not require an answer; alterna-
tively, the allegations are denied.
WHEREFORE, defendants EDWIN W. EDWARDS, in his offi-
cal capacity as Governor of the State of Louisiana, and W. Fox
McKeithen, in his official capacity as Secretary of the State of
Louisiana, pray that this answer be deemed good and suffi-
cient and that after due legal proceedings are had, plaintiffs’
complaint be dismissed at plaintiffs’ cost, with prejudice.
RESPECTFULLY SUBMITTED:
RICHARD P. IEYOUB
ATTORNEY GENERAL
ls/ Angie Rogers Laplace
27
Roy A. Mongrue, Jr., #9549
Angie Rogers Laplace, #19669
LOUISIANA DEPARTMENT OF JUSTICE
CIVIL DIVISION
P.O. Box 94005
Baton Rouge, LA 70804-9005
(504) 342-7013
Counsel for Edwin W. Edwards, Governor
s/ Sheri M. Morr
Sheri Marcus Morris #20937
Counsel for W. Fox McKeithen
Secretary of State
P.O. Box 94125
Baton Rouge, LA 70804-9215
(504) 342-2065
CERIFICATE OF SERVICE
I HEREBY CERTIFY that on September 18th, 1995, I
served a true and correct copy of the foregoing by U.S. Postal
Service to the following counsel:
Thomas E. Balhoff M. Miller Baker
Judith R. Atkinson Brian M. Tauscher
Daniel J. Balhoff 1301 K Street, N.W.
MATHEWS, ATKINSON, Suite 400 East Tower
GUGLIELMO, MARKS Washington, D.C. 20005-3300
& DAY
320 Somerulos Street John S. Baker, Jr.
P.O. Box 3177 L.S.U. Law Center Rm. 414
Baton Rouge, LA 70821-3177 Baton Rouge, LA 70803
ANGIE ROGERS LAPLACE
28
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788-B-MI
G. Scott LOVE, PAUL S. BERGERON; KATHLEEN
B. BALHOFF; AND BENNIE BAKER-BOURGEOIS, PLAINTIFFS
v.
EpwIN W. EDWARDS, GOVERNOR OF LOUISIANA; AND Fox
MCKEITHEN, SECRETARY OF STATE OF LOUISIANA, DEFENDANTS
STATEMENT OF MATERIAL FACTS AS TO WHICH
THERE IS NO GENUINE ISSUE TO BE TRIED
Plaintiffs G. Scott Love, Paul S. Bergeron, Kathleen B. Balhoff,
and Bennie Baker-Bourgeois, by counsel, pursuant to ULLR
Rule 2.09 and in support of their Motion for Summary Judg-
ment, submit the following statement of material facts as to
which there is no genuine issue to be tried:
1. Plaintiff G. Scott Love is a citizen of Louisiana and of the
United States who resides in East Baton Rouge “arish,
Louisiana. Love is a registered voter who resides in the Sixth
Congressional District of Louisiana. Love has voted in previ-
ous federal elections in Louisiana for U.S. Representative, U.S.
Senator, and Presidential Elector, and intends to do so again in
the 1996 and future elections in Louisiana for the same offices.
See Affidavit of G. Scott Love (attached hereto as Exhibit A).
2. Plaintiff Paul S. Bergeron is a citizen of Louisiana and of
the United States who resides in East Baton Rouge Parish,
29
Louisiana. Bergeron is a registered voter who resides in the
Sixth Congressional District of Louisiana. Bergeron has voted
in the previous federal elections in Louisiana for U.S. Repre-
sentative, U.S. Senator, and Presidential Elector, and intends to
do so again in the 1996 and future elections in Louisiana for the
same offices. See Affidavit of Paul S. Bergeron (attached hereto
as Exhibit B).
3. Plaintiff Kathleen B. Balhoff is a citizen of Louisiana and of
the United States who resides in East Baton Rouge Parish,
Louisiana. Balhoff is a registered voter who resides in the
Sixth Congressional District of Louisiana. Balhoff has voted in
previous federal elections in Louisiana for U.S. Representative,
U.S. Senator, and Presidential Elector, and intends to do so
again in the 1996 and future elections in Louisiana for the same
offices. See Affidavit of Kathleen B. Balhoff (attached hereto as
Exhibit C).
4. Plaintiff Bennie Baker-Bourgeois is a citizen of Louisiana
and of the United States who resides in Lafourche Parish,
Louisiana. Baker-Bourgeois is a registered voter who resides
in the Third Congressional District of Louisiana. Baker-Bour-
geois has voted in previous federal elections in Louisiana for
U.S. Representative, U.S. Senator, and Presidential Elector, and
intends to do so again in the 1996 and future elections in
Louisiana for the same offices. See Affidavit of Bennie Baker-
Bourgeois (attached hereto as Exhibit D).
5. Defendant Edwin W. Edwards is Governor of the State of
Louisiana and is a resident of East Baton Rouge Parish,
Louisiana. Pursuant to Article IV, § 5 of the Louisiana Consti-
tution, Edwards is responsible for executing the laws of
Louisiana.
6. Defendant Fox McKeithen is Secretary of State of
Louisiana and is a resident of East Baton Rouge Parish,
Louisiana. Pursuant to La. R.S. § 18:421, McKeithen is the chief
30
election officer of Louisiana. Pursuant to La. R.S. § 18:1277,
McKeithen is also responsible for certifying the results of con-
7. Since the open primary first took effect in Louisiana fed-
eral elections in 1978, there have been seventy regular elections
for U.S. Representative held in Louisiana’s eight (1978-1990)
and later seven (1992-1994) congressional districts.
8. Thirteen of the seventy regular elections for U.S. Represen-
tative held in Louisiana since 1978, or 18.5%, were uncontested
when only one candidate qualified for the open primary and
was thereby declared elected without a contested primary
election.
9. Forty-eight of the seventy regular elections for U.S. Repre-
sentative held in Louisiana since 1978, or 68.5%, were deter-
mined conclusively in the contested open primary and thus
held on such day when one candidate received a majority of
the vote and was thereby elected outright.
10. Nine of the seventy regular elections for U.S. Representa-
tive held in Louisiana since 1978, or 12.8%, were held on the
Federal Election Day in November when the failure of any
candidate to receive a majority of the vote in the contested
open primary resulted in a run-off election.
11. Of the fifty-seven contested regular elections for U.S..
Representative held in Louisiana since 1978, forty-eight, or
84.2%, were determined conclusively in the open primary and
thus held on such day, and nine, or 15.7%, were determined in
run-off elections held on the Federal Election Day in Novem-
ber.
12. Since the open primary first took effect in Louisiana fed-
eral elections in 1978, there have been six regular elections for
U.S. Senator held in Louisiana. these elections took place in
1978, 1980, 1984, 1986, 1990, and 1992. All of these elections
were contested.
31
13. Five of the six contested regular elections for U.S. Senator
held in Louisiana since 1978, or 83.3%, were determined con-
clusively in the open primary and thus held on such day when
cine Comeskdate seceived a majority of the vote and was theseby
14. One of the six contested elections for U.S. Senator held in
Louisiana since 1978, or 16.6%, was held on the Federal Elec-
tion Day in November when the failure of any candidate to re-
ceive a majority of the vote in the primary resulted in a run-off
DATED: September 5, 1995 Respectfully submitted,
MATHEWS, ATKINSON, GUGLIELMO,
MARKS & DAY
by: /s/ Thomas E. Balhoff
THOMAS E. BALHOFF (La. Bar No. 2716)
Judith R. Atkinson (La. Bar No. 17240)
Daniel J. Balhoff (La. Bar No. 18776)
320 Somerulos Street
P.O. Box 3177
Baton Rouge, Louisiana 70821-3177
(504) 387-6966
CARR, GOODSON & LEE, P.C.
by: /s/ M. Miller Baker
M. MILLER BAKER (La. Bar No. 14065)
Brian M. Tauscher
1301 K Street, N.W.
Suite 400 East Tower
Washington, D.C. 20005-3306
(202) 310-5500
32
John S. Baker, Jr. (La. Bar No. 2700)
L.S.U. Law Center Room 414
Baton Rouge, Louisiana 70803
(504) 388-8846
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I HEREBY CERTIFY on this 5th day of September, 1995, that
a copy of the foregoing pleading has been served by U.S. Mail,
first class postage prepaid, or hand-delivery, upon the follow-
ing counsel of record.
Roy A. Mongrue, Jr.
Angie R. Laplace
Assistant Attorneys General
Civil Division
Post Office Box 94005
Baton Rouge, Louisiana 70804
Sheri Marcus Morris, Esquire
Office of the Secretary of State of Louisiana
Post Office Box 94125
Baton Rouge, Louisiana 70804-9125
(s/ Thomas E. Balhoff
33
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788-B-MI
G. Scott LOVE, ET AL, PLAINTIFFS
versus
EDWIN W. EDWARDS, ET AL, DEFENDANTS.
STATEMENT OF MATERIAL FACTS AS TO
WHICH THERE IS NO GENUINE ISSUE TO BE TRIED
Defendants, Edwin Edwards, Governor of the State of
Louisiana and W. Fox McKeithen, Secretary of State of
Louisiana, through undersigned counsel, pursuant to ULLR
29 and in support of their Motion for summary Judgment, sub-
mit the following statement of material facts as to which there
is NO genuine issue to be tried:
1. Requiring the state of Louisiana to place an unopposed
candidate for office on the ballot for election will result in un-
necessary expense to the State of Louisiana, and an unneces-
sary depletion of the public fisc, and will needlessly cause elec-
tors to cast meaningless votes.
2. Louisiana’s open primary procedure for conducting elec-
tions in the state of Louisiana has received the requisite pre-
clearance by the United States Attorney General.
3. The state of Louisiana has held elections on the first Tues-
day following the first Monday in November, 1982 and every
two years thereafter whenever more than one candidate for
34
U.S. Senator or U.S. Representative was qualified to run in that
election.
Respectfully submitted,
Richard P. leyoub
Attorney General of Louisiana
s/ Ancie R Lapl
ANGIE ROGERS LAPLACE
Assistant Attorney General
Bar Roll No. 19669
ls/ Roy A. Mongrue. Ir.
Roy A. MONGRUE, JR.
Assistant Atto:ney General
Bar Roll No. 9549
LOUISIANA DEPARTMENT OF JUSTICE
P.O. Box 94005
Baton Rouge, Louisiana 70804
(504) 342-7013
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy of the above and foregoing
has been served upon opposing counsel of record by deposit-
ing the same in the United States Mail, postage prepaid, and
properly address, this 4th day of Ottober, 1995.
(s/ Roy A. Mongrue. Jr.
Roy A. MONGRUE, JR.
35
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NUMBER: 95-788-B-M1
G. Scott LOVE, ET AL.
vz.
EDWIN W. EDWARDS, ET AL.
PLAINTIFFS’ STATEMENT OF DISPUTED MATERIAL
FACTS/ RESPONSE TO DEFENDANTS’ STATEMENT
OF MATERIAL FACTS AS TO WHICH THERE
IS NO GENUINE ISSUE TO BE TRIED
NOW INTO COURT, through undersigned counsel, come
plaintiffs G. Scott Love, Paul S. Bergeron, Kathleen B. Balhoff,
and Bennie Baker-Bourgeois, and submit the following re-
sponses to defendants’ Statement of Material Facts as to Which
There is No Genuine Issue to be Tried:
1. Admitted.
2. It is admitted that the United States Attorney General has
precleared elections pursuant to the voting Rights Acts, but it
is not admitted that said preclearance bears upon Louisiana’s
compliance or noncompliance with the Federal Election Day
Statutes.
3. Denied. Defendants’ statement appears to imply that
there is a November election whenever more than one candi-
date “qualifies.” This is not true, unless by “qualifies” defen-
dants mean that a candidate was one of the top two contenders
36
in the October election, and no candidate received more than
50% of the vote in the October election.
Respectfully Submitted:
MATHEWS, ATKINSON, GUGLIELMO,
MARKS & DAY
320 Sumerulos Street
Post Office Box 3177
Baton Rouge, Louisiana 70821-3177
(504) 387-6966
by: /s/ Daniel J. Balhoff
THOMAS E. BALHOFF (2716)
Judith R. Atkinson (17240)
Daniel J. Balhoff (18776)
M. Miller Baker (14065)
CARR, GOODSON & LEE, P.C.
1301 K Street, N.W.
Suite 400 East Tower
Washington, D.C. 20005-3300
(202) 310-5500
John S. Baker, Jr. (2700)
L.S.U. Law Center, Room 414
Baton Rouge, Louisiana 70803
(504) 388-8846
CERTIFICATE
I hereby certify that a copy of the foregoing was this hand de-
livered to:
Sheri Marcus Morris,Esq Roy A. Mongrue, Jr., Esq.
Office of the Secretary Angie R. LaPlace
of State of Louisiana Assistant Attorneys General
19th Floor, State Capitol Civil Division
900 Riverside North 301 Main Street, 6th Floor
37
Baton Rouge, LA 70802 One American Place
Baton Rouge, LA 70801
Baton Rouge, Louisiana, this 17th day of October, 1995.
DANIEL J. BALHOFF
38
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788-B-M1
G. Scott LovE, ET AL.
versus
EDWIN W. EDWARDS, ET AL.
AFFIDAVIT OF KATHLEEN BRADY BALHOFF
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
|, Kathleen Brady Balhoff, after being duly sworn, hereby
state the following:
1. I submit this affidavit in support of the Plaintiffs’ Motion
for Summary Judgment. The information contained in the af-
fidavit is based on personal knowledge.
2. I am a citizen of the United States and a citizen of
Louisiana. I reside in and am registered to vote in East Baton
Rouge Parish, Louisiana. As a resident of East Baton Rouge
Parish, I am represented by the U.S. Representative elected
from the Sixth Congressional District of Louisiana.
3. By the term “Federal Election Day” as it is used in this affi-
davit, I mean the day in November mandated by federal law
for the holding of regular elections for U.S. Representatives,
U.S. Senators, and Presidential Electors.
4. Lintend to vote in the regular elections for U.S. Represen-
39
tative, U.S. Senator, and Presidential Elector in 1996. Because
the open primary for U.S. Representative from the Third Con-
gressional District and U.S. Senator currently scheduled under
Louisiana law for October 6, 1996 is potentially a conclusive
election, I intend to vote in such open primary. If I fail to vote
in such open primary, I may be foreclosed from voting for U.S.
Representative and U.S. Senator in 1996, because any candi-
date that receives a majority of the vote in the open primary
will be elected and there will be no election for such office on
the Federal Election Day on November 5, 1996. I intend to re-
turn to the polls on Federal Election Day, November 5, 1996, to
vote for Presidential Electors. To ensure my right to vote for
U.S. Representative, U.S. Senator, and Presidential Electors in
1996, lam burdened by Louisiana law with the requirement to
vote on two different days: the October 6, 1996 open primary,
and the Federal Election Day on November 5, 1996.
5. In the 1994 election for U.S. Representative from the Sixth
Congressional District, | was prevented by the Louisiana law
exercising my right under the Constitution and federal law to
vote in an election for U.S. Representative on the Federal Elec-
tion Day in November 1994.
I declare under penalty of perjury that the foregoing is true
a correct to the best of my knowledge, information and be-
ls/ Kathleen Brady Balhoff
KATHLEEN BRADY BALHOFF
Subscribed and sworn to before me this 4th day of September, 1995.
ls/ Daniel J. Balhoff
NOTARY PUBLIC
40
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788-B-M1
G. Scott LOvE, ET AL.
versus
EDWIN W. EDWARDS, ET AL.
AFFIDAVIT OF GLEN SCOTT LOVE
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
1, Glen Scott Love, after being duly sworn, hereby state the
following:
1. I submit this affidavit in support of the Plaintiffs’ Motion
for Summary Judgment. The information in this Affidavit is
based on personal knowledge.
2. | am a citizen of the United States and a citizen of
Louisiana. I reside in and am regist -.ed to vote in East Baton
Rouge Parish, Louisiana. As a resident of East Baton Rouge
Parish, I am represented by the U.S. Representative elected
from the Sixth Congressional District of Louisiana.
3. By the term “Federal Election Day” as it is used in this affi-
davit, I mean the day in November mandated by federal law
for the holding of regular elections for U.S. Representatives,
U.S. Senators, and Presidential Electors.
4. lintend to vote in the regular elections for U.S. representa-
41
tive, U.S. Senator, and Presidential Elector in 1996. Because the
open primary for U.S. Representative from the Third Congres-
sional District and U.S. Senator currently scheduled under
Louisiana law for October 6, 1996 is potentially a conclusive
election, I intend to vote in such open primary. If I fail to vote
in such open primary, I may be foreclosed from voting for U.S.
Representative and U.S. Senator in 1996, because any candi-
date that receives a majority of the vote in the open primary
will be elected and there will be no election for such office on
the Federal Election Day on November 5, 1996. I intend to re-
turn to the polls on Federal Election Day, November 5, 1996, to
vote for Presidential Electors. To ensure my right to vote for
U.S. Representative, U.S. Senator, and Presidential Electors in
1996, I am burdened by Louisiana law with the requirement to
vote on two different days: the October 6, 1996 open primary,
and the Federal Election Day on November 5, 1996.
5. In the 1994 election for U.S. Representative from the Sixth
Congressional District, I was prevented by Louisiana law from
exercising my right under the Constitution and federal law to
vote in an election for U.S. Representative on the Federal Elec-
tion Day in November 1994.
I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge, information and be-
lief.
ls/ Glen Scott Love
GLEN SCOTT LOVE
Subscribed and sworn to before me this 3rd day of September, 1995.
(s/ Daniel J. Balhoff
NOTARY PUBLIC
42
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788-B-M1
G. Scott LOVE, PAUL S. BERGERON; KATHLEEN
B. BALHOFF; AND BENNIE BAKER-BOURGEOIS
Plaintiffs
versus
EDWIN W. EDWARDS, GOVERNOR OF LOUISIANA; AND Fox
MCcKEITHEN, SECRETARY OF STATE OF LOUISIANA
DEFENDANTS
AFFIDAVIT OF BENNIE BAKER-BOURGEOIS
I, Bennie Baker-Bourgeois, after being duly sworn, hereby
state the following:
1. I submit this affidavit in support of the Plaintiffs’ Motion
for Summary Judgment. The information in this Affidavit is
based on personal knowledge.
2. I am a citizen of the United States and a citizen of
Louisiana. I reside in and am registered to vote in Lafourche
Parish, Louisiana. As a resident of Lafourche Parish, | am rep-
resented by the U.S. Representative elected from the Third
Congressional District of Louisiana.
3. By the term “Federal Election Day” as it is used in this affi-
davit, I mean the day in November mandated by federal law
for the holding of regular elections for U.S. Representatives,
U.S. Senators, and Presidential Electors.
43
4. l intend to vote in the regular elections for U.S. j
U.S. Senator, and Presidential Elector in 1996. a em
primary for U.S. Representative from the Third i
District and U.S. Senator currently scheduled under Louisiana law
for October 6, 1996 is potentially a conclusive election, | intend to
vote in such open primary. If | fail to vote in such open primary, |
may be foreclosed from voting for U.S. Representative and U.S.
Senator in 1996, because any candidate that receives a majority of
the vote in the open primary will be elected and there will be no
election for such office on the Federal Election Day on November
5, 1996. 1 intend to return to the polls on Federal Election Day, No-
vember 5, 1996, to vote for Presidential Electors. To ensure m
right to vote for U.S. Representative, U.S. Senator, and Presidential
Electors in 1996, | am burdened by Louisiana law with the require-
ment to vote on two different days: the October 6, 1996 open pri-
mary, and the Federal Election Day on November 5, 1996.
5. In the 1994 election for U.S. Representative from the Third
Congressional District, I did not vote in the October open primary
in which Billy Tauzin received a majority of the vote and was
SE ae tenetuntmnpee
vented Louisiana law from exercising my right under the
Constiadion end ated tewrtn veteinan dieainn ter US, Reree
sentative on the Federal Election Day in November 1994.
6. In the 1992 elections for U.S. Representative from the Third
Congressional District and U.S. Senator from Louisiana, | voted in
the October open primary which resulted in the conclusive elec-
tions of Billy Tauzin as U.S. Representative and John Breaux as
U.S. Senator. I returned to the polls on the Federal Election Day
in November 1992 to vote for Presidential Electors. Louisiana law
thus burdened me with the necessity to vote on two different days
in the 1992 regular federal elections of Louisiana.
7. In the 1990 elections for U.S. Representative from the Third
Congressional District and U.S. Senator from Louisiana, I did not
4H
vote in the October open primary in which Billy Tauzin received
a majority of the vote for U.S. and Bennett John-
ston received a majority of the vote for US. Senator, resulting in
the outright election of both under Louisiana law. I was therefore
prevented by Louisiana law from exercising my right under the
Constituthn and federal law to vote in the election for U.S. Rep-
resentative and U.S. Senator on the Federal Election Day in No-
vember 1990.
8. Because the 1990, 1992, and 1994 election campaigns for US.
ive from the Third District, and the 1990 and 1992
i and
I declare under penalty of perjury that the foregoing is true
correct to the best of my knowledge, information and belief.
is). Bennie Baker-B
BENNIE BAKER-BOURGEOIS
PARISH OF LAFOURCHE
STATE OF LOUISIANA
Subscribed and sworn to before me this 31st day of August, 1995.
(s/ Margaret Smith Sallors
NotTArY PUBLIC
45
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788-B-M1
G. Scott Love, Et AL.
versus
EDWIN W. EDWARDS, ET AL.
AFFIDAVIT OF PAULS. BERGERON
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
L, Paul S. Bergeron, after being duly sworn, hereby state the
following:
1. I submit this affidavit in support of the Plaintiffs’ Motion
for Summary Judgment. The information contained in this Af-
fidavit is based on personal knowledge.
2. I am a citizen of the United States and a citizen of
Louisiana. I reside in and am registered to vote in East Baton
Rouge Parish, Louisiana. As a resident of East Baton Rouge
Parish, I am represented by the U.S. Representative elected
from the Sixth Congressional District of Louisiana.
3. By the term “Federal Election Day” as it is used in this affi-
davit, I mean the day in November mandated by federal law
for the holding of regular elections for U.S. Representatives,
U.S. Senators, and Presidential Electors.
4. l intend to vote in the regular elections for U.S. Represen-
+e
tative, U.S. Senator, and Presidential Elector in 1996. Because
the open primary for U.S. Representative from the Sixth Con-
gressional District and U.S. Senator currently scheduled under
Louisiana law for October 6, 1996 is potentially a conclusive
election, I intend to vote in such open primary. If I fail to vote
in such open primary, I may be foreclosed from voting for U.S.
Representative and U.S. Senator in 1996, because any candi-
date that receives a majority of the vote in the open primary
will be elected and there will be no election for such office on
the Federal Election Day on November 5, 1996. I intend to re-
turn to the polls on Federal Election Day, November 5, 1996, to
vote for Presidential Electors. To ensure my right to vote for
U.S. Representative, U.S. Senator, and Presidential Electors in
1996, | am burdened by Louisiana law with the requirement to
vote on two different days: the October 6, 1996 open primary, ~
and the Federal Election Day on November 5, 1996.
5. In the 1994 election for U.S. Representative from the Sixth
Congressional District, | was prevented by the Louisiana law
exercising my right under the Constitution and federal law to
vote in an election for U.S. Representative on the Federal Elec-
tion Day in November 1994.
I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge, information and be-
lief.
ls/ Paul S. Bergeron
PAUL S. BERGERON
Subscribed and sworn to before me this 26th day of September, 1995.
(s/ Daniel |. Balhoff
Notary PUBLIC
47
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788-B
G. Scott Love, PAUL S. BERGERON; KATHLEEN
B. BALHOFF; AND BENNIE BAKER-BOURGEOIS, PLAINTIFFS
versus
EDWIN W. EDWARDS, GOVERNOR OF LOUISIANA; AND Fox
MCKEITHEN, SECRETARY OF STATE OF LOUISIANA, DEFENDANTS
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.
ls Frank J. Polozola
FRANK J. POLOZOLA
United States District Judge
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CIVIL ACTION NO. 95-788
G. Scott Love, PAUL S. BERGERON; KATHLEEN
B. BALHOFF; AND BENNIE BAKER-BOURGEOIS
EDWIN W. EDWARDS, GOVERNOR OF LOUISIANA; AND Fox
MCKEITHEN, SECRETARY OF STATE OF LOUISIANA
RULING ON CROSS MOTIONS
FOR SUMMARY JUDGMENT
This matter is before the Court on cross motions for summary
judgment. After reviewing the record, the Court finds that
there are no genuine issues of material fact, and that the defen-
dants are entitled to judgment as a matter of law. the Court
specifically finds that Louisiana’s method of conducting Con-
gressional elections does not violate the laws and Constitution
of the United States.
Therefore:
IT IS ORDERED that the defendants’ motion for summary
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
49
Baton Rouge, Louisiana April 11, 1996.
(s/ Frank J. Polozola
FRANK J. POLOZOLA
United States District Judge
50
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 THE
STATE OF TLOUISIANA, and FOX MCKEITHEN,
SECRETARY OF STATE OF LOUISIANA,
Defendants-A ppellees.
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.
L.
51
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.
II.
We review a district court's grant of summary judgment de
novo. Mozeke v. International Paper Co., 856 F.2d 722, 724 (5th
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 preempted as fol-
lows:
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-
sively, thus occupying an entire field of regulation and
leaving no room for the States to supplement federal
52
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. I, § 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
the election, in each of the States and Territories of the
United States, of Representatives and Delegates to the
53
Congress commencing on the 3d day of January next
thereafter.
This same election day was later adopted for elections for
U.S. 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. 3 U.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
adopting this scheme, Congress precluded a state from hold-
1 3US.C.§] states:
The electors of President and Vice President shall
. . be
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
54
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
the exception in § 8. During the consideration of § 8, Senator
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 respectively.
55
Thurman explained that Section 8
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 I think in every
State the right then is determined by lot... .
the electors of President and Vice President
on another day.
This throws a great burden needlessly and uselessly, it iio
to me, upon the people, and I move this for the purpose of hav-
a ahee oer ton 2 take place in the future at a time when
pact ees constitutions as to State elections may be con-
Cong.Globe, 42d Cong., 2d Sess. 112 (1871).
On a different day, Mr. Butler reintroduced this amendment and
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 stated:
(1983).
Unless we do fix some ti i Representati
3 Mr. Butler who introduced the amendment stated the follow- shall be elected, it will Agee poor es to ~—
; . upon
ing reasons: a different day, and we may have a canvass going on all ite
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 throwing 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
to hold two elections: one for the State on one day, and one for
the Union at different times. It gives some States undue advan-
Nee. at fives come parties undue advantage... But what I con-
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.
141 (1871). ong.Globe, 42d Cong., 2d Sess.
56
I think, therefore, there can be no failure to elect except
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
U.S.C. § 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. § 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
57
affiliation, appear on the same ballot and all voters regardless
of party affiliation may vote for the candidate of their choice.
La.RevStat. § 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.RevStat. §
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
ae the two top candidates is required. La.Rev.Stat.
4 La.RS. § 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-
docion Clan te coed nny Bt 2 petmnary on quaaeal
lection on t to the idate’
to eA regard candidate’s
5
fear apm is a for September 21 this year because
6 La.RS. § 18:1272(A) states:
7? La.RS. § 18:1271 states:
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 bailot. 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]
Except as otherwise provided in this Part, United States sena-
tors and representatives in Congress shall be elected as pro-
vided in this Title for the election of public officers.
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).
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-
Il.
[4] Having decided that the Louisiana open primary elec-
tion scheme conflicts with 2 U.S.C. §§ 1, 7, we now turn to a
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-
60
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);
Mississippi State Chapter, Operation Push, Inc., v. Mabus, 932 F.2d
400 (Sth 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 under way. 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 Louisiana’s
election scheme conflicts with 2 U.S.C. §§ 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
61
to the district court with directions to reconsider plaintiffs’ re-
aaea is _tunctive relief if the state has not acted to resolve
Se ee natumansietiam ats the Wer tagialative
all — nage
session. - remand all remaining issues in this case to the
REVERSED and RENDERED.
DENNIS, Circuit Judge, dissenting:
. Article I, 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-
See nen eene nat only a9to,sienes and places, but in s-
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).
8 We decide this case under our federal
question jurisdiction to
Fee ne Cnentes the On Clause. See Shaw v. Delta Air
nes, 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.
62
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
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-
63
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
(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,
a ch. 11. §§ 3 and 4, 17 Stat 28, 29, in pertinent parts, pro-
vides:
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 US. 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-
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,
64
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.
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
65
unconstitutional because they (a) allow a ibility that a can-
didate for Representative will be elected mc a mere
ity of votes in the primary election; (b) and are thus contrary
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.
3 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-
stitution, 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-
06
lation, leaving no room for the States to supplement fed-
eral law, Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67
S.Ct. 1146, 91 L.Ed. 1447 (1947), or where the state wand at
issue conflicts with federal law, either because it is im-
possible to comply with both, Florida Lime & Avocado
Growers, 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
67
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-
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
68
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-
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
1 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.
69
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:
Pursuant to the authority given by § 2 of Article I of the
Constitution, and subject to the legislative power of
Congress under § 4 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
70
* * *
Here, even apart from the circumstance that the
Louisiana 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-
resentative. ...
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 us.
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
Elections
(1927) 172, 176, 177; Merriam and Overacker, Primary
(1928) 267-269; Stoney, Suffrage in the South; 29 Survey Graphic,
163, 164.
71
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.
Appellants and the majority find significance also in the
fact that La.R.S. 18:511(A) provides that “[a] candidate who re-
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
72
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
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 FSupp. 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.
73
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
NO. 96-30429
G. SCOTT LOVE, PAULS. BERGERON, KATHLEEN B.
BALHOFF, and BENNIE BAKER-BOURGEOIS,
Plaintiffs-A ppellants,
VERSUS
MICHAEL J. FOSTER, JR., GOVERNOR OF THE
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
RULING ON PETITION FOR PANEL REHEARING AND
PETITION FOR REHEARING EN BANC
(Filed November 15, 1996)
Before DAVIS, DENNIS and FALLON,, District Judge.
PER CURIAM:
Treating the Suggestion for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is DE-
in his dissent. The court having been polled at the request of
one of the members of the court and a majority of the judges
who are in regular active service not having voted in favor, the
Petition for Rehearing En Banc is DENIED.
1. District Judge of the Eastern District of Louisiana, sitting by designation.
74
In response to the petition for rehearing, we make it clear
that all we ee tedessnanbetamtelaadenatin to the extent
it precludes any legal election for United States Representa-
tives and Senators on Federal Election Day, conflicts with 2
U.S.C. §§1 and, 7 and is invalid. Also, we do not suggest that
Louisiana may not retain its open primary system. One way it
can retain this system and avoid any conflict with the federal
statute is to hold the open primary on Federal Election Day
and provide for a runoff election between November and Jan-
uary when the elected member of Congress takes office. See 2
U.S.C. §8.
DENNIS, Circuit Judge, with whom POLITZ, Chief Judge and
SMITH, Circuit Judge join, dissenting from failure to grant re-
hearing en banc.
I respectfully dissent from the court's failure to grant re-
hearing en banc because (1) the panel majority erroneously de-
clared a state statute preempted by a federal law due to its fail-
ure to correctly apply the controlling Supreme Court
precedents regarding federal preemption; and, (2), even as
supplemented by per curiam, the panel opinion should be
clarified and limited because it casts doubt on the constitution-
ality of all other state primary election systems.
1. The state statute should be upheld under a correct
preemption analysis. The consideration of whether a state
law is contrary to the Constitution or a federal law and must,
therefore, yield under the Supremacy Clause starts with the
basic assumption that Congress did not intend to displace
state law. Maryland v. Louisiana, 451 U.S. 725, 746 (1981); see
Cipollone v. Liggett Group, Inc., 505 U.S. 504, 523 (1992) (citation
omitted) (“[T]he historic police powers of the States [are] not
to be superseded by . . . Federal Act unless that [is] the clear
and manifest purpose of Congress.’”). Accordingly, the party
claiming preemption has the burden of proof, see 2 Rotunda &
75
Nowak, Treatise on Constitutional Law § 12.4 at 90 (2d ed. 1992),
and must persuade the court that preemption is proper in one
of several ways.
“First, Congress can define explicitly the extent to which its
enactments pre-empt state law. Pre-emption fundamentally is
a intent known through explicit statutory language, the courts’
task is an easy one.” English v. General Electric Co., 496 U.S . 72,
78 - 79 (1990)(citations omitted).
“Second, in the absence of explicit statutory language,
state law is preempted where it regulates conduct in a field
that Congress intended the Federal Government to occupy ex-
clusively. Such an intent may be inferred from a ‘scheme of
federal regulation . . . so pervasive as to make reasonable the
inference that Congress left no room for the States to supple-
ment it,’ or where an Act of Congress ‘touchfes] a field in
which the federal interest is so dominant that the federal sys-
tem will be assumed to preclude enforcement of state laws on
the same subject’ .. . . [However], ‘[w]here . . . the field which
Congress is said to have pre-empted’ includes areas that have
‘been traditionally occupied by the States,’ congressional in-
tent to supersede state laws must be ‘“clear and manifest.”’”
Id. at 79.
“Finally, state law is pre-empted to the extent that it actu-
ally conflicts with federal law. Thus, the Court has found pre-
emption [1] where it is impossible for a private party to com-
ply with both state and federal requirements, or [2] where state
law ‘stands as an obstacle to the accomplishment and execu-
tion of the full purposes and objectives of Congress.” Id.
The plaintiffs, G. Scott Love and others, failed to overcome
the presumption that “Congress did not intend to displace
state law[, ] “ Maryland v. Louisiana, 451 U.S. 725, 746 (1981).
Nor did they carry their burden of proof to show that preemp-
tion is proper in one of the prescribed ways.
76
The plaintiffs correctly, although tacitly, conceded that
Congress did not insert specific preemptive language into the
federal election day law that explicitly preempted Louisiana's
power to regulate Congressional elections. Nor did they base
their argument on a field preemption rationale. Moreover, it is
evident there was no “clear and manifest” intent on the part of
Congress to displace the states’ historic function of conducting
and regulating Congressional elections. As the Supreme Court
in Storer v. Brown, 415 U.S. 724, 729-730 (1974) recognized:
[U]nder our Constitution . . . the States are given the ini-
tial task of determining the qualifications of voters who
will elect members of Congress. Art I, §2, cl 1. Also Art I,
§ 4, cl 1, authorizes the States to prescribe “[t]he Times,
Places and Manner of holding Elections for Senators and
Representatives.” Moreover, as a practical matter, there
must be a substantial regulation of elections if they are
to be fair and honest and if some sort of order, rather
than chaos, is to accompany the democratic processes. In
any event, the States have evolved comprehensive, and
in many respects complex, election codes regulating in
most substantial ways, with respect to both federal and
state elections, the time, place, and manner of holding
primary and general elections, the registration and qual-
ifications of voters, and the selection and qualification of
candidates.
Furthermore, the plaintiffs did not contend, and the panel
majority did not decide, that the state election law actually
conflicts with the federal election day law for the first reason
that a state law can be conflict-preempted,; i.e., that it is impos-
sible for a private party to comply with both state and federal
requirements. The federal election day law applies to the
states, not individuals, and therefore places no requirements
77
upon private parties that might conflict with lati
their conduct by the state.' eee
The issue of preemption under the Su
premacy Clause is
narrowed then to this: Does the state statute “actually conflict”
with. /ederal law because the state law “stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress”?
It is not disputed that the main purpose of the federal law
as clearly demonstrated by its text and legislative history, is to
Le
1. Two cases in which that conflict theory was argued rejected further
but
demonstrate its irrelevance here. In Florida Avocado Growers v. Paul 373 US
132, 142-143 (1963), the case usually cited for the first conflict-preemption
mule, the Supreme Court observed that “[a) holding of federal exclusion of
te w is inescapable and requires no inquiry into congressional design
where compliance with both federal and state regulations is a physical im-
ceed 8 percent when in prime commercial marketing Florida
condition, and
Bre any Jvoid rejection of their avocados in California by leaving them
pd trees beyond the earliest picking date set by the federal orders. Thus,
Court concluded that the present record demonstrated no inevitable col.
penalties on licensees for violation of federal standards
because paying both
‘ederal fines and state-imposed punitive damages for the same incident is
physically impossible and exposure to punitive damages does not frus-
trate any purpose of the federal remedial scheme.
78
establish the federal election day to restrict the states’ original
powers to conduct Congressional elections in different, dis-
persed months of the year. Congress feared that, without a fed-
erally prescribed benchmark, there could be undue influence
upon election results by states’ strategic timing “ elections
and unscrupulous individuals “throwing voters from one
state to another; and that voters would be burdened with dou-
ble elections in Presidential election years.
The plaintiffs concede that the traditional partisan state
primary systems, such as Louisiana’s pre-1978 system, do ~
actually conflict with or stand as an obstacle to the accomp -
ment and execution of the full purposes and objectives of Con-
gress.’ They admit this even though they also niraty a
that state partisan primary systems frequently determine the
outcome of congressional elections prior to the federal election
day.’ The crucial distinction between the partisan primary sys-
2. “Prior to the enactment of the open primary regime in 1078,
Louisiana’s Congressional election system complied with the Federal
tion Day Statutes.” Appellants’ Brief at 32; “Primary elections, partisan or
otherwise, in advance of Federal Election Day ballot are permissible under
the Federal Election Day Statutes so long as such ‘primaries are not conclu-
sive ipso jure.” Id. at 17. |
3. "The [appellants] do not dispute that where only one candidate ‘qual
fies’ for U.S. Representative or U.S. Senator in the sense of timely eee
appropriate candidacy papers and otherwise meeting the relevant Age Sn!
residence requirements, that candidate is indeed unopposed cor yan
eral Election Day ballot, and the State is not required to place sae
date’s name on the Federal Election Day ballot.” Appellants’ Reply at 6.
1941): “In common with
See also United States v. Classic, 313 U.S. 299, 311 ( !
many other states Louisiana has exercised [its] discretion [under §2 of Arti-
its laws it eliminates or seriously restricts the candidacy at the general elec-
tion of all those who are defeated in the primary.
79
tem and Louisiana’s current open primary system for preemp-
tion purposes, they contend, however, is that while partisan
primary elections may be determinative de facto, they are not
conclusive de jure, because it is usually theoretically possible
under such state laws for a non-primary candidate to get on
the general election ballot on federal election day through
nomination papers or write-in procedures. See Appellants’
Brief at 10 and Reply Brief at 6.
The plaintiffs fail to demonstrate, however, that the
Louisiana open primary law hinders the accomplishment of
the purpose of the federal election day law. Certainly, they
have not shown that it does so any more than Louisiana’s for-
mer party primary law or other typical partisan primary sys-
tems. Neither the Louisiana open primary system nor the typi-
cal partisan primary system frustrates the federal statute’s
goal of controlling and containing the power of the states to in-
dependently arrange congressional elections by requiring that
they be tied to a common termination date. Nor does either
primary system present an obstacle to the federal objective of
guarding against “throwing voters” from state to state. The
open primary does not hinder, any more than the partisan pri-
mary, the federal objective of elimination of unnecessary elec-
tions and undue influence due to the timing of elections. The
text and the legislative history of the federal statute do not re-
veal a clear congressional purpose to oust or displace state
powers to enact state open primary systems or partisan pri-
mary systems that use the federal election day as the general
election date. The most plausible inference from the federal
law establishing the federal election day is that Congress did
not contemplate that state power to enact any reasonable pri-
mary system incorporating the federal election day would be
impaired.
Because the Supreme Court is “generally reluctant to infer
80
preemption,” e.g., Exxon Corp. v. Governor of Maryland, 437 U.S.
117, 132 (1978), and cases cited therein, Congress must speak
clearly and make its intention to preempt unmistakable.
Under the standard applicable here, there is no “actual
conflict” unless the state law frustrates the purposes of the fed-
eral law. This criterion is not easy to meet. For example, a state
law does not frustrate federal purposes merely because it pro-
vides for less competition, La.Pub.Serv.Com. v. FCC, 476 US.
355 (1986), or requires that federally licensed vessels in inter-
state commerce also meet local pollution standards, Huron
Portland Cement Co. v. Detroit, 362 U.S. 440 (1960), or prohibits
items transported in interstate commerce that do not meet
state maturity standards which are set higher than federal ma-
turity standards. Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132 (1963). In all these cases, the state requirements
place hurdles in the way of federal regulation, but theses hur-
dles are not treated as improper unless the party claiming pre-
emption proves that Congress clearly intended to preclude
concurrent state and federal regulation. See 2 Rotunda &
Nowak, Treatise on Constitutional Law § 12.4 at 91 (2d ed. 1992).
The Supreme Court's recent preemption cases signal that,
out of respect for Federalism, the more democratic branches of
the central government should be preferred to make the pri-
mary decisions limiting the power of the states to regulate con-
currently with the federal government. Because Congress has
the ultimate power to decide preemption cases—Congress af-
ter all can always overrule the Court on this question—Con-
gress ought to exercise this power unambiguously and shoul-
der the ultimate responsibility as well. Id.; cf. Michigan v. Long,
463 U.S. 1032 (1983)(states should not be bound by phantom
federal restrictions).
2. If not overruled, the panel decision should be limited
and clarified. The panel majority evidently was not at first
81
convinced by the plaintiffs’ argument that de facto determina-
tive primary elections may stand because they do not “actuall
conflict” with the federal election day law, while de jure io.
minative primary elections do conflict and are therefore pre-
empted. Instead of distinguishing between de facto and de jure
ae tive primary elections, the panel held sweepingly
hat Congress intended that all determinative federal elec-
tions be held on federal election day except for the rare excep-
tions specified in 2 U.S.C. § 8.” Love v. Foster, 90 F.3d 1026, 1030
(emphasis added). Specifically, 2 U.S.C. § 8 provides that
[t]he time for holding elections . . . 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 =.
scribed by the laws of the several States and Territories respec -
tively.” Under the panel majority holding, any system permit-
ting a determinative primary election, whether de facto or de
jure, before the federal election day, is preempted. Accordin
tthe original panel decision, only elections by plurality vote
on federal election day or primaries held on that day, fol-
lowed by run-off elections afterwards, are permissible, be-
cause all election day primary systems allow the possibility of
either de facto or de jure determinative elections, both of which
actually conflict” with the federal law.
The panel majority’s supplemental i
but does not clearly acknowledge, abandonment of its orginal
broad holding in favor of a rationale based on the de jure —de
facto distinction underlying the plaintiffs’ argument. The per
curiam states that “all we hold is that Louisiana’s election
me nt rs extent it precludes any legal election...on Federal
aa + oo with...” the federal election day law.
The panel majority’s resolution of the case is flawed in sev-
82
eral respects. The court is left without a single, clear justifica-
tion for its decision. The panel neither clearly states its inten-
tion to jettison its original broad holding nor offers any expla-
nation for its approval of a strictly de jure —de facto rationale.
Consequently, the doubt that the initial opinion casts on all
pre-federal election day primary systems has not been dis-
pelled; and the per curiam is void of any demonstration of a
Congressional intent to displace either open or partisan pri-
mary systems that incorporate the federal election day. As a
further result, the panel majority fails to give clear guidance to
states in the framing of election laws. Although it suggests one
way to devise an open primary system compatible with fed-
eral law, the two rationales the panel majority in turn embraces
suggest other contradictory possibilities—on the one hand,
that no pre-federal election day primaries that might result in
de facto elections are permissible; on the other, that an open
election system such as Louisiana’s will pass muster if it pre-
vents de jure determinative primary elections by allowing for
write-in candidates and by requiring that a primary victor’s
name be placed on the ballot on the federal election day.
Conclusion
This case presents issues worthy of the time, attention, and
efforts of the entire court, viz., whether the panel precipitously
declared state statutes preempted by federal law without fol-
lowing the teachings of the Supreme Court, and whether the
panel decision’s potential serious impact on other state pri-
mary election systems warrants further clarification and limi-
tation. Accordingly, I respectfully dissent from the court's de-
cision to deny reconsideration of this case. ;
ie 1.
.
;
a
3
*
4
=a
Oe oe
— . oe
oe ee on ee “a ae
wee a a
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.