Plaintiffs-Appellees, Cross-Appellants, v. STATE OF ALABAMA, JAMES BENNETT,
Alabama Secretary of State, et al., Defendants-Appellees, Cross-Appellants,
CLARENCE T. HELLUMS, JR., on behalf of himself and all others similarly
situated, Defendant-Appellant, Cross-Appellee.
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
October 13, 1995
Appeals from the United States District Court
for the Southern
District of Alabama.
(District Court No. CV-94-0885-AH-S)
Joe R. Whatley, Jr., Cooper, Mitch, Crawford,
Kuykendall & Whatley,
Birmingham, AL, for appellants.
Albert Jordan, Wallace, Jordan, Ratliff, Byers
& Brandt, Birmingham,
AL, William Pryor, Deputy Attorney General, Montgomery, AL, for appellees.
Before TJOFLAT, Chief Judge, ANDERSON and BARKETT,
 In this case, Larry Roe, on behalf of himself and others who
voted in Alabama's November 8, 1994, general election (the "Roe Class"),
claims that the State of Alabama is attempting to dilute the votes that
the Roe Class cast in that election, in violation of the Due Process
Clause of the Fourteenth Amendment. This dilution will occur, the Roe
Class contends, if Alabama's election officials comply with the order of
a state trial court, issued in Odom v. Bennett, No. 94-2434-R
(Montgomery County Cir. Ct. 1994), requiring them to include in their
vote totals absentee ballots (the "contested ballots") that do not
conform to Ala. Code Section(s) 17-10-7 in that they were not enclosed
in an envelope bearing the signatures of the voter and either a notary
public or two witnesses. Instead, these ballots were enclosed in
envelopes bearing only the voters' signatures.
 On December 5, 1994, the district court, concluding that the
Odom court's order, if implemented, would retroactively amend the
State's election code and "dilute the ballot box," entered a preliminary
injunction ordering the Alabama Secretary of State (defendant James
Bennett) to certify the election results without counting the contested
ballots. The Secretary of State (and the other state defendants in the
case) and John Davis, who had cast a contested ballot and was a
plaintiff in Odom v. Bennett, immediately appealed the injunction.
Following oral argument, we affirmed the preliminary injunction in part
(including the district court's conclusion that the plaintiffs were
likely to prevail on the merits of their constitutional claim), vacated
it in part, and certified to the Supreme Court of Alabama the question
whether an absentee ballot enclosed in an envelope that does not bear
the signature of either a notary public or two witnesses meets the
requirement of Ala. Code Section(s) 17-10-7. Roe v. Alabama, 43 F.3d 574
(11th Cir. 1995) (Roe I). In effect, our decision permitted those
elected to all offices except the offices of Chief Justice of the
Supreme Court of Alabama and Treasurer of Alabama to be sworn in. Thus,
the elections to those two offices are the ones involved in this
 On March 14, 1995, the Alabama Supreme Court answered the
question in the affirmative; the signature of the voter alone, if
accompanied by the voter's residence address and reason for voting
absentee, satisfies the statute's requirements. Roe v. Mobile County
Appointment Bd., No. 1940461, 1995 WL 121871 (Ala. March 14, 1995). In
addition to answering the certified question, the court indicated that,
in the past, the election officials in some of Alabama's sixty-seven
counties had counted ballots such as those that are contested in this
 After receiving the Alabama Supreme Court's response to our
question, we remanded the case to the district court and instructed it
to determine whether, prior to and at the time of the November 8, 1994,
general election, the practice in Alabama had been to reject or,
conversely, to count absentee ballots whose envelope did not include the
signature of either a notary public or two witnesses.[fn2] Roe v.
Alabama, 52 F.3d 300 (11th Cir. 1995) (Roe II), cert. denied, ___ U.S.
___ (Oct. 2, 1995).
 Following the receipt of our mandate, and after extensive
discovery, the district court and the parties met in pretrial conference
and narrowed the issues to be tried. The court, with the consent of all
parties, also certified the Roe Class and, after Clarence T. Hellums was
substituted for the deceased John Davis, the court certified the Hellums
Class (consisting of voters who had cast contested ballots). The
Hellums Class then filed two cross claims against the state defendants.
The first claim alleged that, by not counting the contested ballots, the
state defendants would disenfranchise the Hellums Class in violation of
the Due Process Clause of the Fourteenth Amendment; the second claim
alleged that the State defendants would deny the Class the equal
protection of the laws if they counted contested ballots in some
counties but not in others (where the Class members had voted). The
claims of the Roe and Hellums classes thus turned on the same question:
whether it had been the practice in Alabama prior to and in the November
8 election to count ballots such as the contested ballots. If the
practice had been not to count such ballots, the Roe Class would
prevail; if the practice had been to count them, the Hellums Class would
 The trial of the case took three days. Introduced into
evidence, in addition to the stipulated facts, were the answers to
interrogatories that had been propounded, in a format agreed to by the
parties, to the election officials in all of Alabama's sixty-seven
counties, and the testimony of forty-eight witnesses (thirty-eight of
whom testified in person, ten by deposition), including the Secretary of
State and a former Attorney General (who had issued the definitive
opinion concerning the proper interpretation of Ala. Code Section(s)
17-10-7).[fn3] On the basis of that evidence, the district court found
that the practice in Alabama prior to the November 8, 1994 election, had
been uniformly to exclude ballots enclosed in envelopes that did not
bear the signature of either a notary public or two witnesses as
required by a literal reading of Ala. Code Section(s) 17-10-7.[fn4]
 Given this finding of fact, which the state defendants did
contest, the district court concluded that the Roe Class and plaintiff
Hooper were entitled to relief; to include the contested ballots in the
vote totals would depreciate the votes of the members of the Roe Class
and deprive plaintiff Hooper of the office of Chief Justice of Alabama.
The same finding of fact also required the court to reject the claims of
the Hellums Class; eliminating the contested ballots from the vote
totals would not operate to deny the members of that class due process
or the equal protection of the laws. Accordingly, the district court
entered a final judgment that, among other things, ordered the Secretary
of State to certify the results of the elections of chief justice and
 The Hellums Class now appeals the district court's final
judgment. It also moves this court to stay the district court's judgment
pending the disposition of its appeal. We granted a temporary stay of
the final judgment to enable the parties to brief the motion to stay.
Because the granting of a stay would turn on the likelihood of the
Hellums Class prevailing on the merits of its appeal, see Garcia-Mir v.
Meese, 781 F.2d 1450 (11th Cir. 1986); 11th Cir. R. 27-1(b)(1), we
directed the parties to brief the merits as well. They have done so,
and we have heard argument thereon.
 For the reasons that follow, we conclude that the Hellums
cannot prevail on appeal. Accordingly, we deny its motion to stay and
affirm the judgment of the district court.
 First, the district court's findings of fact are not clearly
erroneous; rather, its findings are supported overwhelmingly by the
evidence. With the exception of Washington County, there has been no
practice to count ballots that bear only the signature of the voter.
Indeed, the practice has been to require, in the words of Ala. Code
17-10-7, in addition to the voter's signature, the signature of either a
notary public or two witnesses.[fn5] Given this practice, we fail to see
how the State's refusal to count the contested ballots could deny the
Hellums Class due process of law, the Class' first cross claim. The
Class' second cross claim fails because refusing to count the contested
ballots could not deny them equal protection of the law. The fact that
a small number of contested ballots (forty-nine) slipped through is of
 The Hellums Class' fall-back position, as outlined to us
argument, is that neither class states a claim cognizable under the
United States Constitution. In other words, we should revisit Roe I and
Roe II, which, in affirming the district court's preliminary injunction,
held that Roe had presented a claim under the Constitution.[fn6]
 Roe I and Roe II establish law which is binding upon this
Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
Although the law established by the prior panel was announced in a
preliminary injunction posture, nevertheless the principle of law
adopted was clear. The facts establish on remand in the district court
were stronger in favor of the Roe Class than the prior panel could have
expected. We therefore adhere to our prior conclusion that Roe has
presented a claim for relief.
 Assuming that to be true, the Hellums Class contends that,
matter of comity, we should decline to exercise our jurisdiction so as
not to interfere with Alabama's election process. If we dismissed the
case, the Hellums Class represents, the Class would immediately move the
Montgomery County Circuit Court, once again, to order the county
election officials to amend their vote totals to include the contested
ballots and the Secretary of State to include them in the election
results for the office of chief justice.
 Whether the Montgomery County Circuit Court has jurisdiction
grant the Hellums Class such relief is, as we noted in Roe I, highly
doubtful. Roe I, 43 F.3d at 582. See Ala. Code Section(s) 17-15-6.[fn7]
The Alabama Attorney General, appearing on behalf of the Secretary of
State and the election officials of the State's sixty-seven counties
(the Odom defendants), citing section 17-15-6, has moved the Montgomery
County Circuit Court to dismiss Odom v. Bennett for want of subject
matter jurisdiction. But, putting this issue aside, directing the
district court to dismiss this case would, as we observed in Roe I,
leave the Roe Class without an adequate forum for the vindication of its
federal constitutional claims. Roe I, 43 F.3d at 582.
 Finally, the Hellums Class urges us to give effect to the
Supreme Court of Alabama's answer to the question we certified in Roe I:
that the envelopes enclosing absentee ballots need not bear the
signature of either a notary public or two witnesses. What the Hellums
Class ignores is that the Alabama Supreme Court, in answering our
question, construed an Alabama statute; the court did not, and was not
called upon to, decide whether the counting of the contested ballots
cast in the November 8, 1994, general election - in the face of Ala.
Code Section(s) 17-10-4 and in the face of a uniform state-wide practice
of excluding such ballots[fn8] - infringed the Roe Class'
constitutional rights. See Griffin v. Burns, 570 F.2d 1065 (1st Cir.
 In conclusion, we AFFIRM the judgment of the district court.
The State defendants, who have not appealed and who stand ready to
comply with the district court's injunction, are directed to comply with
that injunction forthwith.
 Because this litigation is now at an end, we direct the Clerk
issue the mandate instanter.
[fn1] The Republican candidates for chief justice and
treasurer, Perry O. Hooper, Sr., and James D. Martin, are plaintiffs in
this case; the Democratic candidate for treasurer, Lucille Baxley, is
[fn2] In remanding the case for this determination, we
instructed the district court to make findings of fact on 17 issues. We
did not, however, limit the court's authority to try other relevant
[fn3] Some of these 48 witnesses testified at the December 5,
1994 hearing on the plaintiffs' motion for a preliminary injunction; the
testimony they gave at that hearing was incorporated into the record of
[fn4] The court found this to be the practice in all of
Alabama's 67 counties except Washington County. In Washington County,
ballots such as the contested ballots were regularly counted and
included in the county's vote totals. In the November 8, 1994,
election, Washington County's vote totals included 14 contested ballots.
In three other counties - where the practice was to exclude such
ballots - a total of 35 contested ballots "slipped through" and were
counted. The 49 contested ballots (from these three counties and
Washington County) do not affect the outcome of the two elections at
issue. Plaintiff Perry O. Hooper, Sr., prevails in the election for
chief justice by a total of 262 votes; intervenor Lucille Baxley
prevails in the election for state treasurer by a total of 1,032 votes.
[fn5] The Hellums Class contends that the district court
precluded the Class from engaging in discovery that might have undercut
the evidence of "past practice" on which the district court relied.
Specifically, the Class argues that the district court abused its
discretion in not permitting it to count the absentee ballot envelopes
(in each of Alabama's 67 counties) from past elections (as well as the
November 8, 1994, election); among these envelopes, the Class contends,
there may be a significant number that, like the contested ballot
envelopes, are without the signature of either a notary public or two
witnesses. Such envelopes would presumably establish that the practice
the district court found to be uniform was, in fact, not uniform. If
not uniform, the argument concludes, then not counting the contested
ballots would deny the Hellums Class' right to due process and equal
protection (the Class' two cross claims).
The district court barred the requested discovery
the court stated in the addendum to its final judgment) to permit the
Hellums Class to inspect the approximately 100,000 envelopes would
prolong the proceedings and delay interminably the disposition of the
case. The Hellums Class made no showing that it was likely that a
significant number of nonconforming envelopes would be uncovered;
moreover, the testimony of the election officials before the court,
considered as a whole, demonstrated no likelihood that a significant
number of nonconforming ballots existed.
Finally, we note that John Davis, in the complaint
Michael Odom filed in Odom v. Bennett, alleged that the election
officials in all of Alabama's 67 counties were rejecting the contested
ballots on the instructions of the Secretary of State. The Secretary's
instructions were in keeping with the opinion the Alabama Attorney
General issued in 1980 (which emphasized that absentee ballots must bear
the signature of either a notary public or two witnesses) and the
Alabama Election Handbook (written by the Alabama Law Institute) and the
Alabama Voter's Guide, both of which were issued by every Secretary of
In sum, we find no merit in the Hellums Class'
argument that the
district court abused its discretion in denying the Class the discovery
[fn6] The Hellums Class argues that the Roe Class claim fails
because that Class did not establish an essential element of its claim:
that without the burden of the notary/two witness requirement, persons
who did not vote would have voted in the November 8, 1994, general
election. According to the Hellums Class, the Roe I panel erred, in
footnote 15 of its opinion, in taking "judicial notice of the fact that
reducing the inconvenience of voting absentee - by eliminating the
necessity of obtaining the signature of a notary or two witnesses -
would increase the number of absentee ballots."
We doubt that this point is an essential element
of the Roe
Class' claim. The Roe Class included those who voted (as well as those
who would have voted but for the burden of executing a proper
affidavit); their claim is that their votes would be diluted if the
contested ballots were counted. Assuming, however, that the element in
question is essential to the Roe Class' claim, we conclude that the
Hellums Class effectively stipulated that the element had been
established. At the pretrial conference, in submitting the issues to be
tried, counsel for the Hellums Class said nothing that would indicate
that the Roe Class had to produce a witness who would say that he would
have voted absentee but for the burden of finding a notary or two
witnesses. This silence must be viewed against the background fact that
this court in its footnote 15 had taken judicial notice of the fact.
None of the triable issues delineated at the pretrial conference
concerned this point. Moreover, at trial, the Hellums Class said nothing
when the Roe Class did not present the testimony it now claims is
missing. When, at the conclusion of the trial, the court invited
counsel to submit oral argument or memoranda addressing the findings of
fact and conclusions of law the court should reach, see Fed. R. Civ. P.
52(a), the Hellums Class stood silent. Under the circumstances, we
conclude that the Hellums Class waived any argument they may have had
that the Roe Class had to establish the element in question.
[fn7] Section 17-15-6 provides:
No jurisdiction exists in or shall be exercised
judge, court or officer exercising chancery powers to
entertain any proceeding for ascertaining the legality,
conduct or results of any election, except so far as
authority to do so shall be specially and specifically
enumerated and set down by statute; and any injunction,
process or order from any judge, court or officer in the
exercise of chancery powers, whereby the results of any
election are sought to be inquired into, questioned, or
affected . . . save as may be specially and specifically
enumerated and set down by statute, shall be null and void
and shall not be enforced by any officer or obeyed by any
officer or obeyed by any person . . . .
[fn8] As noted supra, the Alabama Supreme Court, in answering
our certified question, stated that, in the past, election officials in
some counties included in their vote totals ballots such as those
contested in this case. In making this statement, the Alabama Supreme
Court relied upon some affidavits the Odom plaintiffs attached to their
motion for summary judgment in that case. However, these affiants were
not subjected to cross examination in Odom, nor did the opposing party
have an opportunity to oppose or otherwise contest same. After we
remanded the instant case for trial, these affiants were examined under
oath in the district court. Their testimony in the district court -
whether given in answer to interrogatories, on deposition, or at trial
- was, contrary to their affidavits in Odom, that their counties never
counted absentee ballots such as those at issue here or that they had no
knowledge of how such ballots were treated. Thus, the factual predicate
for the Alabama Supreme Court's observations with respect to past
practice was demonstrated in the district court to have been erroneous.