USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1884
M. JANICE AYERS-SCHAFFNER, ET AL.,
Plaintiffs, Appellees,
v.
JOSEPH R. DISTEFANO, ET AL.,
Defendants, Appellants.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Raymond J. Pettine, Senior U.S. District Judge]
__________________________
____________________
Before
Torruella, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Keeton*, District Judge.
______________
____________________
Anthony J. Bucci, Jr., for appellants.
_____________________
Michael DiBiase for appellees.

_______________
____________________
September 30, 1994
____________________

____________________
*Of the District of Massachusetts, sitting by designation.

COFFIN,

Senior
Circuit Judge.
_______________________

This

case

poses

an

interesting, and readily answerable, constitutional question: can

state election officials
curative

election to

defective election?

restrict the

those

right to vote

who participated

The district

in the

court found no state

in a

new,

original,

interest

served by such a limitation, and rejected it as unconstitutional.

We agree, and

thus affirm the

that the contested

new election

district court's order

be open to

qualified voters.1
I. Factual Background
__________________

directing

all registered

and

On June 7, 1994, a nonpartisan primary election was held for

three

seats

on

the

permitted to vote
positions.

Warwick

for up

School

Committee.

to two candidates

Voters

were

for the three

open

After the election, as a result of a protest filed by

several of the 15 candidates, the Rhode Island Board of Elections

ruled that each voter should have
The

Board also

found

that there

election

results

would

procedure

been

used, and

election be conducted.
limited to

been limited to a single vote.

have

was

a probability

been different

it

had

consequently ordered

that

the
that

the

correct

a new

It further ruled that the new election be

those candidates and

voters who participated

in the

original balloting.

____________________

1 We issued an order affirming the district court's judgment

immediately after oral argument in this case on September 16,
1994, notifying the parties that an opinion would follow.
-2-

This
voters in
first

action

followed.2

the City of Warwick

election but did not.

The

plaintiffs

are

who were eligible to

They wish

registered

vote in the

to be allowed to vote in

the

second one.

They

all

similarly situated

Elections, alleging

brought suit on

Warwick residents

violations of

association, equal

behalf of themselves and

against the

their rights of

protection, and due process

Board of

free speech,

as guaranteed by

the First and Fourteenth Amendments.3

The district

court ruled

in their

favor, finding

state interest justified the limitation on voters.

appeals, claiming that
applicable

the district court erred

precedent to

Board claims

that its

the

burden on the plaintiffs

The Board now

in applying the

circumstances of

restriction on

that no

this case.

voters imposes a

The

minimal

while serving legitimate and compelling

state interests.
Like the
it

district court, and substantially

gave, we conclude that

the Board's notion

for the reasons

of the applicable

constitutional principles is off the mark.

II. Discussion
__________
In its simplest form, this case asks us to decide
state may condition

whether a

the right to vote in one election on whether

that right was exercised in a preceding election.

So stated, the

____________________

2 The curative primary election originally was scheduled for

July 19, 1994. After this lawsuit was filed, the Board agreed to
reschedule the election to October 4, 1994.

3 Plaintiffs also alleged state causes of action, which we,

like the district court, need not reach.
-3-

case
the

is hardly worthy of discussion.

most

fundamental

structure,'" Burdick
_______
and depriving
because

of

failure to
See
___

1978)

our

vote in

an

constitutional

S. Ct. 2059,

of the right

2063 (1992),

to cast a

earlier election

generally Reynolds
_________ ________

(1964) (quoted in Griffin

_________ _______

(1st Cir.

under

v. Takushi, 112
_______

a qualified voter

inconceivable.
554-55

significance

The right to vote "`is of

("[A]ny restrictions

is almost

v. Sims, 377
____

v. Burns, 570
_____
on

ballot

U.S. 533,

F.2d 1065, 1075

[the right

to

vote]

strike at the heart of representative government.")

The
the

Board contends that this

case is not

second election here is not a new, independent election, but

simply
this

a recreation of the
distinction

inapposite,
lawful

and

version

renders
that no
of

the

defective primary.
the

right-to-vote

precedent bars
defective

maintains

It asserts that
caselaw

largely

effort to

hold a

by

candidates.4

restricting

The Board

that this plan imposes, at most, only a minimal burden

the plaintiffs

regularly

its

election

participation to the original voters and

on

that one because

because of

scheduled election.

served by its plan.

the easy

access provided

to the

And it cites a litany of purposes

See infra at n.6.

___ _____

The Board's

effort to distinguish

several respects.

this case

is flawed

First, we cannot accept the Board's suggestion

that the second election here is free from the requirements of

genuine

in

election because

its purpose

is simply to

replicate a

____________________

4 No challenge has been made to the Board's decision to

limit the ballot to those who were candidates in the original
primary, and our opinion does not address that issue.
-4-

previous event.

The original election was defective and invalid,

and

deemed

the

Board

objective

of the

identical

to that of the

its results

second

unreliable.

election therefore
original one, to

The

must be

primary

viewed as

choose through valid

procedures the candidates supported by a majority of the eligible

voters.

To

exclude

them

exclude plaintiffs
from

the only

from the second

primary

that

election is

will determine

to

the

candidates for the school committee offices.

Moreover, the

goal of reconstructing the

is, at best, an illusory one.

voted

the first

time will

original election

Presumably, some of the voters who

be unable,

participate in the new election.

for various

reasons, to

Unexpected trips and illnesses,

or

even death,

eligible,

may intervene.

having

moved

from

Some
the

voters no

area.

In

longer

may be

addition,

some

undetermined number of voters in the original election voted only

for the bond issue that was on the ballot, and some of them could
be

expected

candidates.

to

vote

this

time

An identical match

for

the

school

committee

of voters is therefore extremely

unlikely.
The

second flaw is found in the Board's suggestion that the

burden imposed
ample

by its action

opportunity

tantamount

to

is slight

vote in

the

because plaintiffs

first

election.

This

had

is

to a claim that plaintiffs waived their right to vote

in the second election by failing

to vote in the first.

However

characterized, the contention is wholly without force.

-5-

While
opportunity
did

it is true that plaintiffs knowingly gave up the only

they expected to have

not thereby

election.
second

Nor did

waive

to vote in

their interest

in

the primary, they

the outcome

they demonstrate any willingness to

chance to vote

if circumstances

should make

of

the

forego a

a curative

election necessary.
failure

In

to vote in the

the absence of any advance

first election would

warning that

preclude voting in

the second, their lack of participation in the original balloting

cannot in any respect be viewed as
in the new primary.

a waiver of the right to vote

And, while access to the

have been easily achieved, what is before

first election may

us is the total denial

of the right to vote in the only primary with any significance in

the school committee race.
it is in no

That burden is undeniably severe, and

way lessened by the

past opportunity to vote in

an

invalid election.5
Third,
articulate

and

most

any

restriction.
brief,6 one is

significantly,

meaningful

Of

the

the Board

interest

seven separate

served
interests

facially meritless,7 and

is
by

unable
its

listed in

the remainder all

to

voter

its

rest

____________________

5 Nor is the ability to vote in the general election a

satisfactory alternative for those voters not allowed to vote in
the primary, as the candidate of their choice may have been
excludedin the preliminary election from which they were barred.
6 The seven interests are as follows:
(1) preserving the integrity of the electoral process,
(2) enhancing confidence of the electors in election
results, (3) recreating the election to fashion a
remedy that would generate a valid expression of the
will of the voters who participated in the June 7, 1994
originally scheduled election, (4) encourage better
-6-

on the premise that limiting the pool of eligible voters to those

who actually voted in the first election is necessary to preserve

the

integrity

process.

of

either

As to the

the

original

or

original election, it

the Board found the process to

overall

electoral

is precisely because

be vulnerable that a new election

was scheduled,

and any concern for preserving the original votes

and outcome is

therefore without substance.

Indeed, the

Board

explicitly found "a probability that the order of finish of the[]

candidates
been

might have

followed.

Preserving what

the election had

objective,
light of

had the

we

have discussed

inevitable

correct procedure

would have been

_____

it been properly conducted,

is, as
the

been altered"

changes in

the outcome of

while a legitimate

earlier, not
the

feasible in

availability

of

the

original voters.

____________________
voter participation in elections by informing voters
that they will only get one opportunity to vote in each
election, (5) avoiding the debasement and disillusion
of those votes that were cast in the original election
which would occur if the election were not recreated as
provided in the Board's Decision, (6) not punishing
those voters who took the time and made the effort to
participate in the original election by diluting their
votes, and (7) avoiding the patent unfairness that
could result to those candidates and their supporters
that seemingly prevailed in the original June 7, 1994
primary.

7 We share the district court's view that there is no

substance in the asserted interest in "encourag[ing] better
participation in elections by informing voters that they will

only get one opportunity to vote in each election."

We doubt
that a voter would decide to vote in an election only to preserve
the opportunity
to vote in an
unlikely-to-occur curative
election. Moreover, those who voted in the original election are
___
being given another opportunity to vote under the Board's ruling.
-7-

With

the

interest

in

electoral

inappropriately linked to the original

served

as

it relates

to that

school committee

candidates.

either

election, or unable to be

election,

integrity that remains concerns

integrity

the only

interest in

the overall process for choosing

The Board's

restriction on voters

does not serve this interest.

Once the Board wiped the slate clean by nullifying the first
election,

what

process"

surrounding

candidates,
original

needed

not

the

election.

Constitution

to

be

the

recreated
selection

particular

of

conditions

See Griffin,
___ _______

protects the

was

570 F.2d

right of

the

"democratic

school

committee

surrounding
at 1079

all citizens

the

n.14 ("The

to democratic

processes, not the right of any particular candidate or voters to

a
is

certain result.")
the right

effectively.

of

all

The

foundation of our "democratic process"

qualified

voters

to

cast

their

votes

See, e.g., Burdick, 112 S. Ct. at 2063; Anderson v.

___
Celebrezze,
__________
U.S.

1,

____

_______

460 U.S. 780,

17-18 (1964);

________

787 (1983); Wesberry

________

Reynolds v.
________

Sims,
____

v. Sanders, 376
_______

377 U.S.

at 554-55.

Depriving eligible voters of the right to vote in the "effective"

election

shakes

supports,

the broad

electoral process.
failure

that

to

vote,

foundation
goal

and

weakens,

of preserving

Indeed, it
precisely

the

rather

integrity of

imposes a penalty
the

course

than

for the

of action

we

the

past

deemed

transparently unconstitutional at the outset of our discussion.

The Board's effort

to characterize

its order

"time, place and manner" restriction blinks reality.

as merely

The states'

-8-

authority
embodied in
carefully
"some

sort

democratic

to

regulate

elections

stems

from

the Constitution, that elections

to ensure that
of order,
processes,"

Burdick, 112
_______

chaos,
S.

recognition,

must be structured

they are fair and

rather than

honest, and so that

is to

Ct.

accompany the

at 2063

(quoting

Storer v.Brown, 415 U.S.724, 730 (1974)). Thisauthority, however,

______
_____

does not extinguish the State's responsibility to

observe the limits established by the First Amendment
rights of the State's citizens. The power to regulate
the time, place, and manner of elections does not
justify, without more, the abridgement of fundamental
rights, such as the right to vote . . . .
Tashjian v.
________

Republican Party of Connecticut, 479 U.S.

________________________________

(1986) (citing

Wesberry v. Sanders,
________
_______

376 U.S. at 6-7).

208, 217

In this

case, the contested order does not implicate the structure of the

election, but goes directly to the heart of the voting privilege,

denying the privilege to many fully qualified voters.8
To put our analysis

in traditional right-to-vote terms, see

___

Burdick, 112 S. Ct. at 2062,9

_______

the Board has failed to offer even

____________________

8
It is, of course, well established that states may
restrict the voting privilege
through residency and other
registration requirements. The crucial distinction here is that
the plaintiffs have satisfied
the state's standard voting
requirements.
9

Quoting from Anderson, 460 U.S. at 789, and Tashjian, 479

________
________
U.S. at 213-214, the Supreme Court in Burdick formulated the
_______
standard as follows:
A court considering a challenge to a state election law
must weigh "the character and magnitude of the asserted
injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to
vindicate" against "the precise interests put forward
by the State as justifications for the burden imposed
by its rule," taking into consideration "the extent to
which those interests make it necessary to burden the
-9-

a rational basis
right to
injury

for its direct,

vote.

In light

to the

retroactive limitation on

of the obviously severe

plaintiffs,

participate in the selection

who would

be

the

nature of the

denied the

right

to

of school committee candidates, the

restriction cannot be permitted.

Although the

Board cites numerous

cases in support

position, none involves an

equivalent action.

cases

access

upholding

inapplicable, as
requirements

ballot

provides

no

justification

restriction of the right to vote.

The long

line of

are

patently

requirements

limiting candidates through

for

of its

reasonable advance
the

retroactive

See, e.g., Munro v. Socialist

___ ____ _____
_________

Workers Party, 479 U.S. 189 (1986) (requirements for placement of

_____________
minority

party candidates on ballot);

Storer v. Brown, 415 U.S.

______
_____

724 (1974) (requirements of party disaffiliation and no voting in

preceding primary for access to ballot as independent); Felice v.

______
Rhode Island Board of Elections, 781 F. Supp. 100
________________________________
(candidate must

file declaration

____________________
plaintiff's rights."

precisely as name

(D.R.I. 1991)

appeared on

Under this standard, the rigorousness of our

inquiry into the propriety of a state election law
depends
upon the extent
to which
a challenged
regulation burdens First and
Fourteenth Amendment
rights. Thus, as we have recognized when those rights
are subjected to "severe" restrictions, the regulation
must be "narrowly drawn to advance a state interest of
compelling importance." . . . But when a state election
law
provision
imposes
only
"reasonable,
nondiscriminatory restrictions" upon the First and
Fourteenth Amendment rights of voters, "the State's
important regulatory interests are generally sufficient
to justify" the restrictions.
-10-

voting

list).10

The

right-to-vote

cases

also

involve

conditions explicitly established in advance as prerequisites for

__________
voting, see,
___
(upholding

e.g., Rosario v.
____ _______
advance

party

Rockefeller, 410 U.S.

___________

affiliation

requirement

primary); Dunn v. Blumstein, 405 U.S. 330

____
_________
fide

residence requirements,

requirement).
segment

The

of the

electorate, qualified

local law, is barred

party

one-year durational

no federal case
to

for

(1972) (upholding bona

but rejecting

Board points to

752 (1973)

vote under

in which a

state and

from participating in an election

based on

the failure to meet some later-imposed, additional criteria.

The

Board's

most

apposite

precedent is

Rhode

Island

Supreme Court
1981),

case, Buonanno v.
________

in which the state

DiStefano, 430
_________

Board of Elections

election limited to two polling places where

malfunctioned during the regular election.
had voted

at those two polling

A.2d 765

(R.I.

ordered a special

voting machines had

Only those voters who

places were eligible to

vote in

the special election.

The Supreme

Court upheld

the Board's order,

describing as

"ingenious" the Board's attempt to reconstruct the election.

at 771.

As the

district court in this case noted,

Id.
___

however, the

____________________

10 The Board claims that these cases are relevant in light

of the Supreme Court's statement that "`the rights of voters and
the rights of candidates do
not lend themselves to neat
separation,'" Burdick, 112 S. Ct. at 2065-66 (quoting Bullock v.
_______
_______
Carter, 405 U.S. 134, 143 (1972)).
The issue in Burdick was
______
_______
whether a state could bar write-in voting. The petitioner was a
voter.
The Court noted the close link between voters' and
candidates' rights in the course of rejecting the suggestion that
the challenge to the law was more potent because framed as a
right-to-vote rather than a ballot access case.
-11-

Supreme Court made

Board's

decision

only scant
limiting the

reference to the
special

election

portion of

the

to those

who

previously
the

had voted,11

petitioner

ruling.
slate"

and,

did not

in fact,

challenge

In addition, the Board

by

invalidating

reconstruction of
decide here

only a

whether

significant; for our

upholding a

the

without constitutional

that aspect

likely that

of

the Board's

in Buonanno did not

________

whole

election,

portion of

the breadth

of

purposes, it is

voting restriction

it appears

in

called

for

the voting.

We need

not

the voting

limitation

is

but

enough to say that

such a

analysis is

"clean the

a case

limited context

of doubtful support

and

when an

entire election has been invalidated.

Indeed,
analogous to

an
the

earlier

Rhode

present case

Island

case

suggests that

more

factually

the state's

high

court views full voter participation as the appropriate procedure

when a completely new election is held.

In Whitman
_______

v. Mott, 114
____

R.I. 530, 336 A.2d 836 (R.I. 1975), cited in

Buonanno, the court

________

invalidated a

voters were allowed

town council election because

to vote for five of the six candidates when they should have been
limited

to

three votes.

The

Court

scheduled a

new election

limited to the six original candidates, but expressly ruled "that

____________________

11
The court
recognized that
practical difficulties
concerning voter turnout are involved in holding a new election,
but noted that "[a]t least the new election gave to the voters
who had taken the pains to go to the polls a second chance to
express their choice about whom they desired to serve in the
council at-large positions." Id. at 771. The court then stated
___
that "[t]he practical difficulties are far outweighed by the
value served by this remedy." Id.

___
-12-

anyone

eligible to

election may cast a

vote on

the day

ballot for those candidates

thinks is best qualified to serve."

841.

specified for

the special

whom he or

she

114 R.I. at 539, 336 A.2d at

See also Griffin v. Burns, 431 F. Supp. 1361 (D.R.I. 1977),

___ ____ _______
_____

aff'd, 570 F.2d 1065 (1st Cir. 1978).12

_____
It
most

bears repeating that "[t]he right

important and

to vote is one of the

cherished constitutional

rights,"

Board of Elections of the City of New York, 58 N.Y.2d

___________________________________________
447 N.E.2d

42, 43,

460 N.Y.S.2d

election designed to determine

a majority of the properly

494, 495 (1983).

Leaks v.
_____

882, 883,
In

a fresh

which candidates are supported by

registered voters, we cannot conceive

of a governmental interest sufficiently strong to limit the right

to

vote to only a portion of

case,

the qualified electorate.

In this

at least, where such an interest has not been articulated,

____________________
12

In

Griffin,
the district
court found
that the
_______
invalidation of absentee and shut-in ballots in a party primary
for a Providence city council seat was unconstitutional.
In
ordering a new election open to all qualified voters, the court
stated:
Although a new election cannot replicate the conditions
of the March 29 election, each qualified voter will
have a full opportunity to cast a ballot, and to have
that ballot counted. The Constitution demands no less,
and the Court can do no more.

431 F. Supp. at 1369. In affirming, we observed that "a new

primary . . . had the virtue of giving the voters a further
chance, in a fair election, to express their views." 570 F.2d at
1079.
-13-

we conclude that

present voting status

yardstick for eligibility.

is the only

appropriate

See id.13
___ _____

The judgment of the district court is therefore AFFIRMED.

________________________________________________________

____________________
13

Leaks
also involved a primary
election that was
_____
invalidated.
The election board had ordered a new election
limited only to those voters eligible to participate in the first
________
election.
The Court of Appeals reversed in a brief memorandum
decision, ordering that all voters eligible at the time of the
special election be allowed to vote.
-14-