Remedies Final Examination
December 7, 2004
Professor Wells
Examination Number______________
Instructions:
Upon receiving this exam booklet, write your bluebook/exam number in the upper right
hand corner of the first page of the exam booklet.
There are 3 questions in this examination: Two (2) essay questions and one (1) question
consisting of short answer sub-questions. Be sure that your exam has all 3 questions. Answer
each question separately, using the corresponding exam question number (and subsections where
necessary). All answers must be contained in the blue book provided.
If possible, use a pen with blue or black ink. Write on only one side of the page. Do not
tear pages out of the bluebook. Do not use pages of the bluebook for scratch paper.
This is a limited open book exam. You may refer to the textbook assigned for this class,
any materials that were handed out in class, your class notes, and any outlines you have prepared
specifically for this class (alone or in conjunction with others). No calculators may be used
during the examination. Do not consult any other materials or persons when taking this exam.
Consulting any other materials or persons is an Honor Code violation.
Each question has a suggested time limit, which is the amount of time I believe necessary
to answer the question. Be advised that the amount of time allotted for each question is roughly
equivalent to the total possible points for that question. In other words, the longer the question,
the more weight to be given it in the grading process. Use your time wisely.
In general, we have not studied the law of a particular state in this class. In answering
questions, use the general principles of law that we studied in class. However, to the extent we
discussed some Missouri law in class, you should discuss it on the exam if it would apply in a
particular setting or if it poses a contrast to the general principles we studied in class.
Remember: The issue to be analyzed is related to the appropriate remedy. You should
assume that the substantive violation has occurred as described (i.e., do not argue about whether
there has been a breach of contract, tort, etc.).
You will have three hours to finish this examination. At the end of the examination,
place your exam inside your bluebook and turn them in.
Question 1:
(75 minutes)
In the U.S.A., states have been primarily responsible for regulating federal, state,
and local elections. State regulations cover a variety of issues, ranging from voter
eligibility requirements to ballot formatting requirements, to vote counting requirements.
All states within the U.S.A. have comprehensive election law procedures, many of which
have been in place for decades. One aspect common in almost every state is the
requirement that voters cast their ballots in the voting precinct in which they reside. In
the majority of states, a voter’s ballot will only be counted as valid if it is cast in the
correct precinct.
After the 2000 election and the voting problems discovered in Florida, Congress
enacted the Help America Vote Act (“HAVA”) in 2002. According to HAVA’s
legislative history, its purpose was to redress “a significant problem which voter’s
experience – i.e., to arrive at a polling place believing that they are eligible to vote, and
then to be turned away because the election workers cannot find their names on the list of
qualified voters.” See House Report No. 107-329. As a result, HAVA §302 requires
states to provide voters with the opportunity to cast provisional ballots at polling places
on election day. Specifically Section 302 states that:
If an individual declares that [they are] a registered voter in the
jurisdiction in which the individual desires to vote and that [they are]
eligible to vote in an election for Federal office, but the name of the
individual does not appear on the official list of eligible voters for the
polling place or an election official asserts that the individual is not
eligible to vote, such individual shall be permitted to cast a provisional
ballot as follows:
(1) An election official at the polling place shall notify the individual
that the individual may cast a provisional ballot in that election;
(2) The individual shall be permitted to cast a provisional ballot at that
polling place;
(3) An election official at the polling place shall transmit the ballot
cast by the individual to an appropriate election official for prompt
verification;
(4) If the appropriate election official to whom the ballot or voter
information is transmitted determines that the individual is eligible
under State law to vote, the individual's provisional ballot shall be
counted as a vote in that election in accordance with State law.
HAVA made clear that its requirements were “minimum” requirements – i.e., that states
were free to deviate from HAVA’s provisions only if such deviation is “more strict than
the requirements [protecting the enfranchisement of voters] established under HAVA.”
See House Report No. 107-329.
Jayhawk is the fifty-first state of the U.S.A. On September 27, 2004, Jayhawk’s
Secretary of State, Phog Allen (“Allen”), issued an official directive (“Directive 200401”) implementing HAVA’s provisional balloting requirements. That directive, which is
the only rule providing for provisional ballots in the state of Jayhawk, states that:
An eligible voter who moves from one Jayhawk precinct to another before
an election may update his or her existing voter registration to the new
voting residence address and vote a provisional ballot for the precinct in
which the person’s new voting residence is located. The official ballot
will be counted in the official canvass if the county board of elections
confirms that the person was timely registered to vote in another Jayhawk
precinct and that such person did not attempt to vote using their former
voting address.
Because Jayhawk law specifically prohibits anyone from voting in
any election in a precinct in which that person is not a legally qualified
voter, poll workers in a precinct must confirm before issuing a provisional
ballot that the person to whom the ballot will be issued is a resident of the
precinct in which they desire to vote. Only after the poll workers have
confirmed that the person is eligible to vote in that precinct shall they
issue a provisional ballot. Under no circumstances shall poll workers issue
a provisional ballot to a person whose current address is not located in the
precinct in which the person desires to vote.
“Voters for Fairness” (“VFF”) is a public interest organization that represents
voter interests around the U.S.A. On October 10, 2004, VFF filed a lawsuit in federal
court claiming that Directive 2004-01 violates HAVA §203 because it (1) limits a voter’s
right to cast a provisional ballot only to those situations where a voter has moved from
one precinct to another, (2) allows poll workers to withhold a provisional ballot if they
cannot confirm on the spot that they voter is voting in the appropriate precinct, and (3)
unduly limits the circumstances in which a provisional ballot will be counted as a valid
ballot.
According to VFF, HAVA meant to provide for provisional voting in many
circumstances in which voters might have been turned away – i.e., if their name was
spelled incorrectly on voter registration rolls or if their name was improperly removed
from registration rolls. VFF claims that Directive 2004-01 unduly limits the right to cast
a provisional ballot only to those situations in which a voter has recently moved to a new
voting precinct. In light of portions of HAVA’s legislative history that support VFF’s
interpretation, VFF claims that Directive 2004-01 is more restrictive than the “minimum”
requirements of HAVA. VFF thus seeks a preliminary injunction against Allen in his
official capacity that (1) prohibits Allen from enforcing Directive 2004-01 and (2)
requires Allen to issue a directive prior to the November 2004 elections that allows
provisional ballots in a greater number of situations as required under HAVA §203.
In response to the lawsuit, Allen does not dispute that Directive 2004-01 allows
provisional ballots only in one situation – when a voter moves to a new residence. Allen
argues, however, that in accordance with longstanding practice of state control over
elections, HAVA leaves total discretion to the states regarding implementation of Section
203’s provisional balloting requirements.
The state of the law is unclear in this area. HAVA’s legislative history clearly
contemplates that states will have great discretion in implementing Section 203 but it also
clearly intended to make provisional balloting broadly available in order to avoid
disenfranchisement of voters. Thus far, there are only two court cases interpreting
HAVA §203. The courts in those cases split regarding the provisional balloting issue.
One court dismissed a voter challenge, holding that states have total discretion when
implementing HAVA while the other court held that states must provide provisional
ballots in all possible situations where a voter might be unfairly disenfranchised.
Allen further argues that VFF should be barred from bringing the lawsuit because
VFF did not file it until October 10, 2004, less than a month before the 2004 elections.
VFF has responded by noting that Allen did not issue Directive 2004-01 until September
27, 2004, which was over two years after HAVA was enacted. VFF alleges that Allen
deliberately waited to issue Directive 2004-01 until it was so close to the election that it
would be too late to challenge the directive. As evidence, VFF produced an email written
by Allen to his subordinates noting that there would be controversy over his ruling and
that he hoped to avoid legal action by issuing the ruling as late as possible. The email
further instructed his subordinates not to discuss the upcoming directive until it was
released.
The court recently held a preliminary injunction hearing. At the hearing, Allen
requested that the court require VFF to post an injunction bond in the amount of $1
million dollars, the estimated cost of complying with any court order requiring that Allen
allow provisional voting on a more widespread basis in the November 2004 election.
At the preliminary injunction hearing, both parties had full notice and were
represented by counsel. All of the facts and law discussed above were presented at the
hearing.
It is now October 24, 2004. The elections will be held November 2, 2004.
You are the federal district judge’s clerk. She has asked you to advise her on two
issues (a) should she issue the preliminary injunction requested by VFF, and (b) can
she waive the bond requirement if she does issue a preliminary injunction?