Respondents Brief — Foster v. Love

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QUESTION PRESENTED

Whether Louisiana Revised Statutes §§ 18:511(A),

18:1272(A), and 18:402(B\(1), which in combination permit

congressional elections to occur on the first Saturday of

October of an election year, are preempted by 2 U.S.C. §§ 1

and 7, which require that congressional elections occur on

the “Tuesday next after the first Monday in November” of

an election year.

el et ed lite ee ee a te i i |

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...............

B. Louisiana Law Provides for

Congressional Elections in October _.

C. Because Louisiana’s Open Primary

Law Conflicts with Federal Law, It Is

Unconstitutional Under the

Supremacy Clause and Must Yield ..

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SO ee” Pe

TABLE OF AUTHORITIES

Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982),

aff'd, 459 US. 1166, 108 S. Ct. 809 (1983) 14, 16

Federal Savings & Loan Ass'n v. Guerra,

479 U.S. 272, 107 S. Ct. 683 (1987) ......... 22

. Brown, 717 F.2d 1491 (6th Cir. 1983), cert.

port v. nied, 469 U.S. 825, 105 8. Ct. 108 (1984). .. 19

Ex parte Yarbrough, 110 U.S. 651, 4 S. Ct. 152

(18B4) eee eee ee eee ee eeeees 14

Hines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399

yy) ) ) oe 23

Kelly v. Washington, 302 U.S. 1, 58 S.Ct. 87

(IDBT) oo ccc cc ceccccccccseseccscceses 24

Love v. Foster, 90 F.3d 1026 (6th Cir. 1996) ...... 9, 23

Love v. Foster, 100 F.3d 418 (6th Cir. 1996) ..... 10, 21

Maryland v. Louisiana, 451 U.S. 725, 101 8. Ct.

2114 (1981)... ee eee eee e eee 22

Newberry v. U.S., 256 U.S. 232, 41 S.Ct 469 >

(IGRI) . 0 cece cece c eee ececnenccrecees

Northwest Central Pipeline Corp. v. State Corp.,

Comm'n of Kansas, 489 U.S. 493, 109 S. Ct.

1962 (1989)... ee cece eee eee eens 23, 24

SS es SS = ee

iv

Pacific Gas & Elec. Co. v. State Energy Resources

Conservation & Dev. Comm'n, 461 U.S. 190,

108 8. Ct. 1718 (1983). ............... 24, 25

Public Citizen v. Miller, 813 F. Supp. 821 (N.D. Ga.

1993), aff'd, 992 F.2d 1548 (11th Cir. 1993)

ons Senet. Pew SS 15, 16

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 67

RO EE oe ee 24, 25

State v. Frear, 142 Wis. 320, 125 N.W. 961 (Wis.

BRED ov SARTET TATE. AMAIBIVOAL cc cece. 24

Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct.

il ele Det ees Be nes sc 22

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,

115 S. Ct. 1842 (1995) ...... BOSE ed foe 12

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

1031 (1941), reh’g denied, 314 U.S. 707, 62

DGS GOO occ ccsicccccchhasddled 18, 24

CONSTITUTION OF THE UNITED STATES

U.S. Const. art. 1, §4,c..1 ...........0.005. 12, 24

Supremacy Clause, U.S. Const. art. VI, cl 2....... 22

Oe SS ee eee eee in oe i . - ’ 2 >

. <, : ss ; >

ad vi

FEDERAL STATUTES MISCELLANEOUS

SUBO.§R.... 6 scccecre URGE IRM» 13 26 AM. JUR. 2p Elections § 228 (1996) ............ -

BUBCGF oo. cie ET. SUN A 12 CONG. GLOBE, 42d Cong., 2d Sess. (1871) ... 14, 16, 23

DUG. 0B. va. ids btu 4h | 10, 11, 15, 16, 22, 25 2 ELLIOT’s DEBATES 535 (J. Elliot ed. 1987)........ 12

SUB. 9B ince k sdb cies. WH es UTE. 14 THE FEDERALIST No. 61 (Alexander Hamilton). .... . 12

LOUISIANA STATUTES

La. RS. § 18:401(A) ... 2. 6 eens 19, 20

LA. RS. § 18:401(B) .. . ec eee ee 17

LA. RS. § 18:402(B) .... 2. ee eee eee 17, 18

LA RG. § 18481 2... twee eres eens 18

LA. RG. § 1BBIUA) .. . 2 cee cece eeecens 18

La. RS. § 18:5110B) . . . 2. ee ee eee eee 20

LA. RG. § 18:1271 2... cece ee erences 17

==. =

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article I, § 4, cl. 1 of the U.S. Constitution:

The Times, Places and Manner of holding Elections for

Senators and

2 U.S.C. § 7:

§ 7. Time for election

The Tuesday next after the lst 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.

2 U.S.C. § 8:

§ 8. Vacancies

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

Territory 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.

Louisiana Revised Statute § 18:401

§ 401. Purpose and nature of primary and general

elections

A. Purpose. Primary and general elections are held to

elect persons to Congress and to all the elective offices in

this state, except the office of presidential elector.

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

candidates for public office in primary and general

elections without regard to the voter’s party affiliation or

lack of it, and all candidates for public office who qualify

(1) Congressional primary elections shall be held

on the first Saturday in October of an election year.

(2) Congressional general elections shall be held on

the first Tuesday after the first Mon i

November of an election year. scaling

Louisiana Revised Statute § 18:481

§ 481. Candidates who qualify for a general election

4

Louisiana Revised Statute § 18:511

§ 511. Election of candidates in a primary election

Louisiana Revised Statute § 18:1272

§ 1272. United States senators, representatives in

Congress; time of electing

elections, shall be held on the first Tuesday

East Baton Rouge and Lafourche parishes. They

commenced this action against Petitioners (the “State” or

“Louisiana”) for declaratory and injunctive relief under 42

U.S.C. § 1983 and 28 U.S.C. §§ 2201, 2202 on August 8,

1995 in the United States District Court for the Middle

Voters have voted in previous federal

Representative, U.S. Senator, and

U.S. Representative held in Louisiana since

Forty-eight of the seventy regular elections

for U.S. Representative held in Louisiana

since 1978, or 68.5%, were determined

conclusively in the contested open primary

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and thus held on such day when one

candidate received a majority of the vote and

was thereby elected outright.

Nine of the seventy regular elections for U.S.

Representative 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.

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

November.

Since the open primary first took effect in

Louisiana congressional 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.

Five of the six contested regular elections for

U.S. Senator held in Louisiana since 1978,

or 83.3%, were determined conclusively in

the open primary and thus held on such day

when one candidate received a majority of

the vote and was thereby elected.

October 28, 1995, and took the case under advisement.

On April 11, 1996 the district court entered

summary judgment in favor of the State. In a one-

paragraph discussion of the merits, the ruling stated:

J.A. 48. The same day the district court entered a separate

final judgment in the State’s favor. J.A. 47.

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1996). J.A. 60. Tho court of

onat-aie cir 7 wont pg

Legislature did not act to correct the problem in its 1997

session. Jd. at 1081-32. J.A. 60-61.

On August 18, 1996, the State filed a for

rehearing en banc in the court of appeals. a may he

On November 15, 1996, the court of appeals denied

the State’s suggestion for rehearing en banc and petition

for panel rehearing, with three members of the full court

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Federal Law Re

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Id. at 413-14. J.A. 74.

On March 17, 1997, this Court granted the State’s

petition for writ of certiorari.

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

Sen. Thurman) (emphasis added).

By its enactment of Section 7, Congress required all

U.S.C. § 8, which permits states to schedule post-federal

aaussh ta Gala aaa See Busbee, 549 F. Supp. at

526 (“section 8 creates an exception to section 7’s absolute

rule in a limited class of cases”). See also Public Citizen v.

Miller, 813 F. Supp. 821, 828-81 (N.D. Ga. 19998), aff'd, 992

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F.2d 1548 (11th Cir. 1993) (upholding under Section 8 a

post-federal election day run-off election of U.S. Senator

necessitated by a failure to elect on federal election day).

Thus, states with majority vote requirements can hold any

necessary run-off election on a date subsequent to federal

election day, so long as the initial attempt to elect is held

on federal election day.

B. Louisiana Law Provides for

Congressional Elections in October

By operation of La. R.S. § 18:1271,* the following

provision of the Louisiana election code applies to primary

elections 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

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La. R.S. § 18:511(A) (emphasis added). Thus, if a

congressional candidate in the October primary secures a

majority of the votes cast, that candidate “is elected” on

that day, and no election for the congressional office is or

can be held on federal election day: No candidate’s name

appears on the federal election day ballot, and no vote can

be cast for the office on federal election day.

If there is a failure to elect in Louisiana’s October

congressional primary, that is, if no candidate secures a

majority of the vote, Louisiana law provides for a run-off

between the top two vote-getters in a so-called general

election. See LA. R.S. § 18:481 (“the candidates who qualify

support by

qualified electors.” Newberry v. U.S., 256 U.S. 232, 250, 41

S. Ct. 469, 472 (1921); see also United States v. Classic, 313

US. 299, 316-17, 61 S. Ct. 1081, 1088 (1941), reh'g denied,

$14 U.S. 707, 62 S. Ct. 51 (1941) (moting the difference

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» Louisiana’s so-called “primary” is an

“election” for purposes of 2 U.S.C. §§ 1 and 7 because it

contemplates the conclusive election of congressional

candidates that receive a majority of votes cast.

ballot on federal election day, the Voters are unaware of

any other state in the Union which permits conclusive

congressional elections in advance of federal election day.

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congressional primary accomplishes its stated purpose

under La. RS. § 18:401(A) of “electling) persons to

Congress.” Between 1978 (when the open primary system

first took effect in congressional elections) and 1994,

Louisiana held seventy regular elections for U.S.

Representative, of which fifty-seven were contested (in that

more than one candidate qualified to appear on the October

open primary ballot).’ J.A. 30, 9] 7,11. Louisiana has also

held six regular elections for U.S. Senator, all of which

were contested. J.A. 30, 4 12. Of the contested elections,

only nine elections (15.8%) for U.S. Representative and one

election (16.7%) for U.S. Senator were held on federal

election day. J.A. 30, #] 11, 14. The remaining forty-eight

elections for U.S. Representative and five elections for U.S.

Senator — more than eighty percent of the total number of

contested congressional elections — were held on and

conclusively determined in Louisiana’s October primary.

J.A. 30, % 11, 18.

The potentially (and as the record reveals, usually)

conclusive character of Louisiana’s congressional primary

is precisely what transforms it from a mere qualifying or

winnowing primary into an outright election for purposes

" The remaining thirteen elections for U.S.

Representative in Louisiana were uncontested, i.e., only

one candidate qualified to appear on the open primary

ballot and was therefore declared “elected” pursuant to

La. R.S. § 18:511(B). The Voters do not dispute that where

federal election day ballot, and the State is not required to

place such candidate’s name on the federal election day

ballot.

As the court of specifically noted,

100 F.8d at 413-14, J.A. 74, Louisiana may iene a

existing open system for congressional elections by

day

opted to qualify. Under Louisiana’s primary regime

however, ifs candidate secures a majority of the votes cas

primary, candidate is

Pr elected and there is

the Forty-Fourth

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Congress, beginning with the elections for

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the States to supplement Northwest Central

Pipeline, 489 U.S. at 509, 109 S. Ct. at 1278 (citing Rice v.

Santa Fe Elevator Corp., 331 U.S. 218, 67 8S. Ct. 1146

(1947). However, “[tJhere is no constitutional rule which

circumscribe its regulation and occupy only a limited field.”

its powers to regulate elections under [Art. I] §4 .. .”

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The judgment of the court of appeals should be

affirmed.

DATED: June 2, 1997