Opposition Brief — Dougherty v. Marks

FLIED

No. 94-814 oe is. LRU

In The

Supreme Court of the United States

October Term, 1994

IDA DOUGHERTY, et al.

Petitioners,

v.

BRUCE S. MARKS, et al.

and

WILLIAM STINSON, et al.

Respondents.

On Petition for Writ of Certiorari To The

United States Court of Appeals For

The Third Circuit

BRIEF IN OPPOSITION

JOHN P. KRILL, JR. PAUL R. ROSEN

(Counsel of Record) JEFFREY M. GOLDSTEIN

ROBERT L. BYER SPECTOR, GADON & ROSEN

LINDA J. SHOREY 1700 Market Street

KIRKPATPRICK & LOCKHART Philadelphia, PA 19103

240 N. Third Street (215) 241-8888

Harrisburg, PA 17101 Attorneys for Respondents,

(717) 231-4500 Kathy Steck, Manuel Lorenzo,

Attorneys for Respondent, Lydia Colon, Lillian Cruz, Diana

Bruce S. Marks Inzarry, Ruth Martinez, Zorida

Rodriguez, Yesenia Vasquez and

the Republican State Committee

QUESTIONS PRESENTED

When a federal court finds that the majority members of a

city’s election board conspired with a candidate of their

political party to defeat the other party’s candidate through

a pervasive scheme of fraudulently and illegally obtaining

absentee ballots, in violation of constitutional and statutory

rights, does the federal court have the discretion in equity

to order the certification of the other candidate as the

winner of the election, if it finds, based on a combination

of voting machine results, survey data and statistical

methods, that the other candidate would have been declared

the winner but for the wrongdoing?

Is a case moot which raises the issue of whether a federal

court may order the certification of the winner of a state

election as a remedy for pervasive official fraud, when the

state legislature in subsequent proceedings also seated the

same candidate, the brief term of the certified winner has

ended and the facts of the case are unlikely to be repeated

or to escape future review?

TABLE OF CONTENTS

PP ee rere i

TAREE GP GOED Sree ee ect AVER RS: ii

TAREE GP ATIGRENEEE 6 hehe co eb cee an iii

STATEMENT OF THE CASE ......0cccsccsccseces 2

REASONS WHY THE PETITION

SEP CS EE? nc ccovednbsactiaweevsenns 12

1. The question raised by the petition is

WOE 26 i incensak Pesto brwsbics 12

2. The question raised by Petitioners asks this

Court to rule on the propriety of a remedy

in a unique factual situation; it presents

neither an important question of federal

law nor a question of federal law that

should be settled by this Court.......... 15

CUTLER AMS 6c cceuas cbagarebiarddy 6aen base 18

TABLE OF AUTHORITIES

Cases

Curry v. Baker, 802 F.2d 1302 (11th Cir.),

stay dismissed, 479 U.S. 1301, cert. [dismissed],

a i ik ii ack arW diners eseere ino. 0 & 1 3

Donatelli v. Mitchell, 2 F.3d 508 (3d Cir. 1993) ......... 16

Dunn v. Blumstein, 405 U.S. 330 (1972) .............. 14

Se Wy I, A Ss I x ccc ccm ccvecsccs 14

Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994) ......... 3, 16

Marks v. Stinson, Civil Action No. 93-6157,

1994 U.S. Dist. (E.D. Pa. Apr. 26, 1994) .............. 4

Marks v. Stinson, Docket Nos. 94-1474, 94-1475,

94-1476, 94-1481 and 94-1482, 1994 U.S. App.

ee a oie oe wok cae evince 11, 17

Weinstein v. Bradford, 423 U.S. 147 (1975) ............ 14

Constitution, Statutes and Rules

ke tes shal ub eG gue ape «Ww 0 be 6 13

ee Gs 5 ie vo eae da Soe eve cc eces 11

es i owen taped bee svenves 4

25 P.S. §3146.2(a) and (3)(1) and (e)(2) ............... 5

ere ee tk kd teen vee « 5

ees ya ko bbe ae 0 bed beet 5

i 5

as FES ie 5 CREE e Ue B56 FERRY 11

Third Circuit Internal Operating Procedure, §5.1.2........ 17

ili

No. 94-814

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1994

IDA DOUGHERTY, et al.

Petitioners,

v.

BRUCE S. MARKS, et al.

and

WILLIAM STINSON, et al.

Respondents.

On Petition for Writ of Certiorari

To The United States Court of Appeals

For The Third Circuit

BRIEF IN OPPOSITION

Respondents Bruce S. Marks, Kathy Steck, Manuel

Lorenzo, Lydia Colon, Lillian Cruz, Diana Irizarry, Ruth Martinez,

Zorida Rodriguez, Yesenia Vasquez and the Republican State

Committee respectfully request this Court deny the petition for writ

of certiorari seeking review of the Third Circuit’s decision in this

case.

STATEMENT OF THE CASE

Republican Bruce S. Marks and Democrat William Stinson ran

in a special election, conducted on November 2, 1993, to represent

Pennsylvania’s Second Senatorial District. This election was held

to fill the remainder of a term expiring November 30, 1993.

According to the certified results of the Philadelphia County Board

of Elections ("Board"), of the 38,818 votes cast on the voting

machines on election day, 19,691 were cast for Marks, while

19,127 were cast for Stinson. Of the 1,767 absentee ballots cast,

Marks received only 371 votes, while Stinson received 1,396 votes.

When all votes were added, Stinson won by a final count of 20,523

to 20,062, i.e., by 461 votes. The Board certified Stinson as the

winner of the election.

On November 22, 1993 Marks, the Republican State Committee

and Kathy Steck filed a complaint in the United States District

Court for the Eastern District of Pennsylvania against William

Stinson, the William Stinson Campaign, the Board and its

Commissioners, Margaret M. Tartaglione, John F. Kane and

Alexander Z. Talmadge, Jr. On December 22, 1993, an amended

complaint was filed. Seven minority voters joined in the amended

complaint, which alleged violations of the Civil Rights Act and the

Voting Rights Act.

After four days of hearing on a motion for a preliminary

injunction, the district court, on February 17, 1994, issued an

opinion finding a pervasive scheme of fraud and wrongdoing by

defendants with respect to the obiaining of absentee ballots. It

issued a preliminary injunction that: (1) ordered the Board in the

future to deliver absentee ballot packages directly to voters, by mail

or by hand, and to accept delivery of completed absentee ballots

only from the voter in person or by mail, as required by law; (2)

ordered the Board to cease discriminatory practices and to distribute

absentee ballot materials, at least in the district in question, printed

both in Spanish and in English; (3) enjoined Stinson from serving

as state Senator; and (4) ordered the Board to certify the election

based on the machine vote total.

Stinson and the Board appealed to the Third Circuit.

Petitioners, ten absentee ballot voters in the special election, filed

a mandamus petition, which the Third Circuit treated as a motion

to intervene and granted. On March 16, 1994, the Third Circuit

issued an order and opinion which upheld every provision of the

preliminary injunction but one, that ordering the election winner to

be certified on the machine vote totals. Marks v. Stinson, 19 F.3d

873 (3d Cir. 1994) ("Marks I”).

The Third Circuit instructed the district court as to further

proceedings on remand:

[T}he district court should not direct the

certification of a candidate unless it finds, on the

basis of record evidence, that the designated

candidate would have won the election but for the

wrongdoing. See e.g. Curry v. Baker, 802 F.2d

1302 (11th Cir.), stay dismissed, 479 U.S. 1301,

cert. [dismissed], 479 U.S. 1023 (1986).

Id. at 889 (footnote omitted). The Third Circuit authorized the

district court to certify a candidate as a winner even if a precise

count of valid votes could not be made and pointed out how this

might be achieved:

We do not suggest that such a finding would have

to be made with mathematical precision. Courts,

with the aid of expert testimony, have been able to

demonstrate that a particular result is worthy of the

public’s confidence even though not established

solely by applying mathematics to the record

evidence. See e.g. Curry, 802 F.2d at 1317-19.

What is required is evidence and an analysis that

demonstrate that the district court’s remedy is

worthy of the confidence of the electorate.

Id. at 889 n.14 (emphasis added).

After remand from the Third Circuit, the final hearing

commenced on March 28 and lasted nine days. On April 26, 1994,

the district court issued an opinion and order.

In its opinion the district court found that the Board and

Stinson —

engaged in a conspiracy for the purpose of denying

hundreds of voters in the Second Senatorial District,

specifically Latinos and African-Americans, Bruce Marks,

and the Republican party of rights and privileges as set

forth in the Constitution and laws of the United States and

of the Commonwealth of Pennsylvania. The conspirators

intentionally engaged in a plan to promote the Democrat

candidate by illegally soliciting and processing absentee

ballots to help ensure that William Stinson would receive

a plurality of votes in the highly contested Special Election

in the Second Senatorial District.

Marks v. Stinson, Civil Action No. 93-6157, 1994 U.S. Dist.

LEXIS 5273, (E.D. Pa. Apr. 26, 1994) ("Marks II"), slip op. at 67

(conclusion of law 4). The findings of fact establishing this

conclusion are summarized below with references to the specific

findings, which appear in the district court’s opinion reproduced in

Appendix B to the Petition For Writ of Certiorari.

Under Pennsylvania law, a qualified elector may vote by

absentee ballot if he or she is, inter alia, absent fiom the

Commonwealth or county of residence “because his duties,

occupation or business require him to be elsewhere during the

entire period the poils are open" or is physically unable to go to the

polls. 25 P.S. §3146.1(j) and (k). An elector who wishes to vote

by absentee ballot must submit to the appropriate Board an

absentee ballot application, including a statement that the elector

expects to be out of the county on election day or that the elector

is physically unable to go to the polls, with a declaration Stating the

nature of the disability and the name, address, and telephone

number of the attending physician. 25 P.S. §3146.2(a) and (31)

and (e)(2). (FF 9-10)

Absentee ballots applications are processed by the Board to

determine if the applicant possesses all necessary qualifications. If

the Board concludes that the applicant is not qualified, it must

immediately notify the applicant. 25 P.S. §3146.2b(d). After

approving an absentee ballot application, the Board is required to

"mail or deliver" an absentee ballot package to the elector at the

address listed on the application. The Board may not deliver it to

any other person. 25 P.S. §3146.5. (FF 15, 16, 21, 22)

The elector must mark the ballot "in secret,” seal the ballot in

an inner envelope, seal the inner envelope in a declaration

envelope, and execute the declaration on the declaration envelope.

25 P.S. §3146.6(a). An elector may legally receive assistance in

filling out the absentee ballot only if the elector has a physical

disability that "renders him unable to see or mark ... the ballot.” 25

P.S. §3146.6(a). The elector must "send by mail” or deliver "in

person" the executed declaration package to the Board. 25 P.S.

§3146.6. If an elector who sent in an absentee ballot becomes able

to get to the polls on election day, the absentee ballot is void as a

matter of law, and the elector has a duty to go to the polls and void

the ballot. 25 P.S. §3146.6(b). (FF 22, 24, 26)

The Stinson campaign sent its workers into areas where a

majority of the residents were white to solicit voter registration

applications and absentee ballot applications. The goal was to

obtain twenty absentee ballot applications from each division. (FF

53) Those who expressed hesitancy to register because they did

not wish to go to a polling place were told by campaign workers

that they could fill out an absentee ballot application and obtain an

absentee ballot as a matter of convenience. (FF 64) Many

improper applications were received based on _ this

misrepresentation. (FF 64) To conceal the fact that many of these

improper absentee ballot applications were solicited several months

before election day, the Stinson campaign workers told canvassers

not to fill in the true date on the application. (FF 54, 66) The

applications that the Stinson campaign obtained in this way were

then submitted directly to Commissioner Tartaglione’s office and

over 500 corresponding absentee ballot packages were provided

from her office directly to the Stinson campaign. (FF 53-57, 76)

Stinson was aware of the improper conduct regarding the absentee

ballots, yet he permitted the conduct to continue and even

admonished a campaign worker who questioned its legality. (FF

62, 66, 67, 71, 72, 76)

About three weeks before the election, the Stinson campaign

learned that a poll showed Marks running ahead of Stinson. (FF

83) The campaign responded by saturating Hispanic and African-

American areas of the district with absentee ballot applications

using tactics similar to those earlier employed. (FF 84) This time,

however, campaign workers soliciting absentee ballot applications

told Hispanic and African-American voters that there was a "new

way to vote" from the convenience of one’s own home. (FF 91)

The absentee ballot applications from the minority sections of the

district were then delivered by Stinson campaign workers directly

to Commissioner Talmadge’s office. (FF 83-103, 105, 123-25, 127,

131-32)

The Democrat Commissioners, Tartaglione and Talmadge, and

Board employees working with them were aware of the absentee

ballot campaign of Stinson and his workers and assisted that

campaign by delivering hundreds of absentee ballot packages

directly to Stinson workers rather than mailing or delivering them,

as required by law, to the electors whose names and addresses

appeared on the applications. (FF 50, 143) This assistance was

designed to aid the Stinson campaign in obtaining more votes

through personal contact between the electors and the Stinson

campaign workers. (FF 97) The Board’s assistance to the Stinson

campaign was covert and was disclosed neither to Republican

Commissioner Kane nor in public meetings. (FF 43, 44, 50, 55-56,

61, 94-97)

After illegally obtaining absentee ballots from the Commission,

the Stinson campaign used them in a variety of ways. Stinson

campaign workers took the absentee ballots directly to applicants’

homes where improper influence was exerted over voters. (FF 98)

In numerous instances, Stinson workers executed applications,

ballots, and declarations without the voter understanding the nature

of the document. (FF 98) In other instances, Stinson workers

instructed the voter to check certain places on the ballot, or filled

out and forged the ballot. (FF 98) Voters were also assisted in

completing applications and declaration packages after the statutory

deadline for receipt by the Board had passed, and such ballots were

counted by the Board. Many voters who cast absentee ballots

testified that they were unaware that they had signed absentee

ballot applications. (FF 62, 67, 98, 99, 100)

In one program targeted at minority voters, the Stinson

campaign paid its workers $1.00 per absentee ballot that they could

obtain for William Stinson. (FF 107) The Stinson campaign thus

obtained and delivered to the Board approximately 600 ballots,

most, if not all of which, were cast for Stinson. (FF 104-115) In

non-minority areas, approximately 450 absentee ballots in favor of

Stinson were obtained illegally by the Stinson campaign. (FF 63)

Although the Board cooperated with the Stinson campaign’s

illegal handling of ballots, there was no evidence that voters relied

on representations by the Board in voting by absentee ballot when

they were not qualified to do so. Instead, the Board’s written

instructions on the application and in the absentee ballot package,

in Spanish and English, make clear that a voter in the county must

go to the polls. There was no evidence to suggest that any voters

returned their absentee ballots through party committee persons or

Stinson campaign workers based on representations by the Board.

Instead, the written instructions of the Board make clear that a

voter must either mail or deliver the completed ballot "in person”

to the Board. These instructions are the only published information

provided to the public and voters on the absentee ballot process.

(FF 22, 134)

In response to the Third Circuit's direction that expert

testimony might be of use, three experts in statistics and/or survey

research testified at the final hearing: one called by Plaintiffs; one

called by Petitioners; and one appointed by the court. The court

found the methodology and testimony of each of the three experts

independently established to a reasonable degree of scientific

certainty that Marks would have won a plurality of the illegal votes

cast in the November 1993 special election if the wrongdoing had

not occurred and the voters who cast illegal absentee ballots had

gone to the polls at the established turn-out ratios. (FF 211) The

district court found certification of Marks as the winner of the

special election worthy of the confidence of the electorate. (FF

211) These ultimate findings were based on the following findings

by the district court with respect to the expert testimony.

A survey of absentee voters in the special election was

conducted by workers associated with the Marks campaign shortly

after the election. Dr. Brian Sullivan, an expert in econometrics

and survey research, reviewed the survey. Dr. Sullivan conducted

numerous verifications and statistical adjustments to the survey

data. In light of his review procedures, the Court found that the

data were reliable. (FF 165-172) Using these data, together with

other election statistics, the total illegal absentee ballots cast in the

election can be allocated to each candidate. As shown by Dr.

Sullivan’s method of statistical allocation, Stinson received 1,138

illegal absentee ballots and Marks received 257 illegal absentee

ballots. (FF 175-176) This methodology demonstrates that Marks

won the election by at least 420 votes. This methodology provides

a reliable result since it removed illegal absentee ballot votes from

Marks’ total, even though the Marks campaign was not engaged in

any illegal conduct, scheme or conspiracy regarding absentee

ballots. (FF 177)

These data also support a statistical method to reallocate back

to each candidate the number of votes that he would have received

but for the wrongdoing of the defendants. (FF 178-182) This

“recapture” methodology shows that Marks would have won the

election by 416 votes but for the wrongdoing of defendants. It

gives the benefit of doubt to Stinson on this issue by, again,

removing a certain number of absentee ballot votes from Marks,

even though the Marks campaign did not engaged in any illegal

conduct regarding absentee ballots. (FF 184) The results

determined from the survey data described above are to a degree of

Statistical reliability that exceeds 99%, based on a determination of

standard deviations and statistical confidence levels. (FF 185)

Petitioners’ expert, Dr. Paul Shaman, created tables showing,

for each of a series of ranges of possible combinations of improper

votes, the probability that Marks won the election. (FF 188)

Without using some specific data, one cannot select an appropriate

range in any of Dr. Shaman’s tables. Data, however, exist which

can be used with Dr. Shaman’s probability tables to determine the

probability of a Marks victory. Given that at least 1,000 ballots

were illegally delivered to voters by the Stinson campaign and

returned to the Board as Stinson votes, the probability of a Marks

win is 100% according to Dr. Shaman’s tables. This is so even if

30% of the 1,000 ballots are deemed "recaptured" and entirely

allocated to Stinson, which would overcompensate him in

correcting for the effects of his own wrongdoing. (FF 190) See

also FF 63 (450 illegal non-minority area ballots) and FF 104-16

(600 illegal minority area ballots).

The analysis of survey research conducted by Plaintiffs’ expert,

Dr. Sullivan, also provide data that can be used with Dr. Shaman’s

tables. These data also show a 100% probability of a Marks win.

(FF 191-192)

Dr. Orley Ashenfelter, the court-appointed expert, analyzed data

on the machine and absentee votes for each candidate in the last

twenty-one elections for the state Senate in Philadelphia. Using

regression analysis, Dr. Ashenfelter quantified the relationship

between absentee votes and machine votes in these elections and

compared it to the absentee and machine vote relationship in the

November 1993 special election. (FF 199-201) Regression

analysis shows that, if the 1993 election had been consistent with

the historical relationship between machine and absentee voting,

Marks would have received an overall victory margin ranging from

697 to 800 votes. (FF 202-204) The actual difference in absentee

votes between the candidates in the 1993 election was more than

three standard deviations larger than the expected result. (FF 203)

The record establishes one predominant reason for this large

difference in 1993 from historically and statistically expected

relationships: the pervasive scheme of the defendants to obtain

absentee ballots for Stinson through illegal and discriminatory

means. (FF 207)

Based on its findings of pervasive election fraud involving the

election officials conspiring with the Stinson campaign, the district

court, inter alia, enjoined the Board from distributing official

absentee ballot material to any candidates or their representatives

and ordered that absentee ballot packages either be mailed or hand

delivered; enjoined the Board from receiving any absentee ballot

materials from anyone other than the voter; ordered the Board to

maintain all official absentee ballot applications and other ballot

materials in its possession for public access; enjoined the Board

from delivering or returning such records to any political parties,

candidates or their representatives; enjoined the Board from

employing discriminatory practices which involve applying the

Pennsylvania Electicn Code or any other law in a manner that

favors or disfavors a candidate; and ordered the Board to take all

steps necessary to enforce the terms of the district court’s order and

to comply with the Pennsylvania Election Code and other laws.

Based on the unchallenged machine vote count, together with the

survey research and statistical projections of the three experts, the

10

court also ordered the Board to recertify the special election "based

on the finding and conclusion that Bruce S. Marks received a

PLURALITY of the legally cast votes, or in other words, that

Bruce S. Marks would have won the election BUT FOR the

wrongdoing.”

Petitioners, the Board, Stinson, Talmadge and Tartaglione filed

immediate appeals from the district court’s permanent injunction.

On April 28, 1994, the Third Circuit denied motions for stay but

granted motions for expedited appeal. On August 18, 1994, the

Third Circuit issued a memorandum opinion and order affirming

the district court’s April 26, 1994 permanent injunction. Marks v.

Stinson, Docket Nos. 94-1474, 94-1475, 94-1476, 94-1481 and 94-

1482, 1994 U.S. App. LEXIS 28021, (3d Cir. Aug. 19, 1994)

("Marks IIT").

While this federal litigation was ongoing, a proceeding was

underway in the Pennsylvania Senate. On January 20, 1994, Marks

filed a petition for an election contest with the President pro

tempore of the Pennsylvania Senate, pursuant to section 1747 of the

Pennsylvania Election Code, 25 P.S. §3407, and article II, section

9 of the Pennsylvania Constitution. The petition was referred to

the Senate Committee on Rules and Executive Nominations on

January 31, 1994. The Committee appointed a subcommittee on

the election contest. On February 7, 1994, the subcommittee

adopted a pleading schedule. Both Marks and Stinson submitted

filings pursuant to the schedule. The subcommittee notified Marks

and Stinson on April 26, 1994, that it would hear oral argument on

April 27, 1994. Counsel for Stinson did not appeal at oral

argument. On April 28, the subcommittee issued a report to the

Senate, concluding that Marks would have been the winner of the

election in the absence of the extensive wrongdoing perpetrated by

the Stinson campaign and the Democrat members of the

Philadelphia Board of Elections. On April 28, 1994, the Senate of

Pennsylvania adopted a resolution declaring Marks the winner of

the November 1993 special election. Pursuant to the resolution,

Marks was administered the oath of office and seated as a member

of the Senate on April 28, 1994.

The Senate term which was to be filled in the November 1993

special election ended November 30, 1994. The general election

to fill the second district state senatorial seat for a full term (four

years) was held November 8, 1994. The four-year term of the

winner of that election began December 1, 1994.

REASONS WHY THE PETITION SHOULD BE DENIED

1. The question raised by the petition is moot.

The question Petitioners raise takes issue with that portion of

the district court’s remedy that ordered the Board to certify Marks

as the winner of the special election. That portion of the remedy

was specific to the November 8, 1993 special election and the

remainder of the term the special election was held to fill.

The Senate of Pennsylvania, pursuant to its constitutional and

Statutory authority, resolved the election contest filed by Marks in

his favor on April 28, 1994. The Senate concluded that Marks was

the winner of the special election. No challenge was made to the

Senate’s determination and Marks served the remainder of the term

the special election was held to fill, which ended November 30,

1994.

A new state Senator was elected in the general election held on

November 8, 1994 to represent the second district. In accordance

with Pennsylvania law, her term as state senator began December

1, 1994.

As a result of these events, the relief Petitioners requested from

the district court, a new election or the declaration of a vacancy,

cannot be provided. No decision that this Court could make with

12

en

respect to the question raised by Petitioners can change either the

April 1994 decision of the Pennsylvania Senate or the November

1994 decision of the people. Petitioners have no legally cognizable

interest that can be affected by a decision of this Court.

This case does not now present this Court with a live case or

controversy and is, therefore, moot. Article III of the United States

Constitution does not permit this Court to provide advisory

opinions, which is all this Court could give with respect to the

question presented.

A similar situation arose in Hall v. Beals, 396 U.S. 45 (1969),

which involved a class action challenging the Colorado six-month

residency requirement for voting. After this Court noted probable

jurisdiction of the case, the Colorado legislature reduced the

residency requirement from six months to two months and the 1968

election was held. This Court concluded the case was moot

because (1) it was impossible to grant the relief that had been

sought, (2) the appellants had then satisfied the residency

requirement, and (3) most importantly, the six month residency

stature was no longer in effect. This Court held: "The case has

therefore lost its character as a present, live controversy of the kind

that must exist if we are to avoid advisory opinions on abstract

propositions of la." /d. at 48.

Here, as in Hall, it is impossible for the relief requested by the

Petitioners in district court to be granted.

The Court also considered in Hall whether the case was one

which fell within the exception to the mootness doctrine of capable

of repetition, yet evading review. It concluded it was not, because

the same restriction on voting would not affect the petitioners again

and because the state had altered its statutory scheme to the benefit

of those who at the next election would be similarly situated to the

petitioners.

13

Here, as in Hall, this case is not one that is capable of

repetition, yet evading review. This Court, in Weinstein v.

Bradford, 423 U.S. 147, 149 (1975), stated that such an exception

to the mootness doctrine, in the absence of a class action —

was limited to the situation where two elements combined:

(1) the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and (2)

there was a reasonable expectation that the same

complaining party would be subjected to the same action

again.

This case is not a class action and meets neither of these two

requirements.

In the first instance, the district court’s order directing the

Board to certify the winner of the special election, while evading

review here because the term filled by the special election has

ended, would easily be reviewable if it occurred after a general

election for a full four-year term. And a general election is the

situation Petitioners posit to this Court in their Petition.

Furthermore, it is highly unlikely that Petitioners would be

subject to the same action again. As noted supra in the Statement

of the Case, the situations where Pennsylvania law permits voting

by absentee ballot, e.g., illness and absence from the county on

business, are temporary. For Petitioners to be subject to the same

action again would not only require that they again vote by

absentee ballot, but also that there be massive fraud in the absentee

ballot process and an election that tums on the absentee ballot

count. This is not a situation such as was present in Dunn v.

Blumstein, 405 U.S. 330 (1972), a class action where the

complaining class would continue to be subject to the chalienged

durational residency requirement at the next election and would

therefore continue to be disenfranchised.

Ma

Although Petitioners here were not disenfranchised, even their

own interpretation of the consequences of the case shows that they,

at most, suffered a temporary disenfranchisement that did not rise

to the level of a constitutional violation of their right to vote. Any

disenfranchisemeni they may have suffered was temporary and

ended on November 8, 1994 when they had the opportunity to vote

in the general election for state senator for the second district.

Furthermore, even if this issue were not moot, it does not offer

this Court a sufficiently robust controversy. Petitioners were

intervenors in the case who, at their own choice and insistence,

were not aligned with either side of the litigation. None of the

losing defendants joined in the petition or filed a petition of their

own. The question presented deals with only one aspect of the

relief — the portion that directly impacted on the candidates in the

special election. Neither candidate has any interest in that relief at

this point. A new state senator was elected as the state senator

from the second district on November 8, 1994, and her term began

on December 1, 1994. This is not the context in which this Court

should exercise its authority.

2. The question raised by Petitioners asks this Court to

rule on the propriety of a remedy in a unique factual

situation; it presents neither an important question of

federal law nor a question of federal law that should be

settled by this Court.

Petitioners fail to point out certain facts that make this case

unique, and they misinterpret the opinions of the district court and

the Third Circuit. The election in this case, as noted by Petitioners,

was a special state election to fill a vacancy in the Pennsylvania

State Senate for state’s second senatorial district. However, to

understand the situation before the district court and the

appropriateness of the remedy provided, further elaboration is

essential.

15

Petitioners’ assertion that the district court did not make a

finding as to the actual number of illegal absentee votes ignores

findings of fact nos. 63 and 114. In finding of fact no. 63, the

district court found that approximately 450 absentee ballots were

returned to the Stinson campaign and delivered to the Board from

the non-minority areas of the district, in violation of Pennsylvania

law. In finding of fact no. 114, the district court found that over

600 absentee ballots were returned to the Stinson campaign and

delivered to the Board from the minority areas of the district. This

totals to over 1,050 illegal absentee votes. The numbers of illegal

absentee votes predicted by expert witnesses Drs. Ashenfelter and

Sullivan are consistent with this number. Dr. Ashenfelter estimated

illegal absentee votes in the range of 1,158 to 1,261 and Dr.

Sullivan projected 1,395. Also, using the district court’s number

of illegal absentee votes with the probability tables of Petitioners’

own expert Dr. Shaman shows a 100% probability that Marks

would have won the special election but for wrongdoing.

Petitioners assert the Third Circuit concluded in its decision on

the appeals from the district court’s preliminary injunction, Marks

/, that Petitioners had been "unconstitutionally disenfranchised by

the district court" when the district court ordered the winner of the

election to be certified based solely on the voting machine tally.

This is incorrect. The Third Circuit did not conclude that

Petitioners nor any other absentee voter had been unconstitutionally

disenfranchised. Nor, based on Third Circuit precedent, could the

Third Circuit have done that.

The Third Circuit instructed the district court that it had to

consider how many absentee voters would have gone to the polls

but for the misconduct and what impact that would have had on the

results of the election. See Marks I. While the Third Circuit

mentioned disenfranchisement of the absentee voters, such

disenfranchisement would only last until the next election. Under

Third Circuit precedent, such temporary disenfranchisement does

not rise to the level of a constitutional violation. See Donatelli v.

Mitchell, 2 F.3d 508 (3d Cir. 1993) (no substantial denial of

16

a ————————————————

fundamental right to vote where state senator is assigned to

constituency which did not elect him).

Petitioners also did not inform this Court of the proceeding that

took place in the Pennsylvania Senate. As set forth supra in the

Statement of the Case, Marks, in accordance with Pennsylvania

constitutional and statutory law, filed an election contest with the

state Senate on January 20, 1994. On April 28, 1994, the state

Senate reached a decision consistent with that of the district court,

i.¢., that but for the wrongdoing Marks would have won the special

election, and had Marks sworn in as the state Senator from the

second district.

When these missing facts are supplied and _ the

misinterpretations of the underlying district court and Third Circuit

decisions are corrected, it is apparent that this is a unique fact

situation. It is also apparent that, in light of the gross and

pervasive official misconduct, the remedy is appropriate. The

district court did not appoint Marks state senator, the voters of the

second district elected him. The court removed the obstacles to his

seating that the conspirators erected.

Another fact not pointed out by Petitioners that sheds light on

the unimportance of the question presented is that the Third Circuit

decision, Marks Ill, which affirms the district court’s final

injunction order and is the decision supporting the judgment

Petitioners seek to have reviewed, is an unpublished memorandum

decision. Under the Third Circuit’s Internal Operating Procedures,

§5.1.2, its memorandum opinions have no precedential value.

A case that is not precedential does not present the important

federal question that Petitioners argue exists. This case presents a

unique fact situation that is unlikely to occur again. It does not

present an important federal question which this Court should

consider.

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CONCLUSION

For the foregoing reasons, the question presented by Petitioners

does not present a certiorari worthy question and the Petition for

Writ of Certiorari should be denied.

December 6, 1994

Respectfully submitted,

John P. Krill, Jr.

(Counsel of Record)

Robert L. Byer

Linda J. Shorey

KIRKPATRICK & LOCKHART

240 N. Third Street

Harrisburg, PA 17101

(717) 231-4500

Attorneys for Respondent,

Bruce S. Marks

Paul R. Rosen

Jeffrey M. Goldstein

SPECTOR, GADON & ROSEN

1700 Market Street

Philadelphia, PA 19103

(215) 241-8888

Attorneys for Respondents,

Kathy Steck, Manuel Lorenzo,

Lydia Colon, Lillian Cruz,

Diana Irizarry, Ruth Martinez,

Zorida Rodriguez,

Yesenia Vasquez, and the

Republican State Committee

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