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Wednesday, October 05, 2016

Wright v. City of Miami Gardens: Remedies in Election Law Cases

There is a scene at the beginning of The Empire Strike Back where the Imperial Fleet tracks the rebels to the ice planet Hoth, and rebel ships start to evacuate. As one of the escaping ships approaches a looming Star Destroyer, the Star Destroyer's captain comments, "Our first catch of the day."  I'd like to offer our first catch of the symposium in terms of election law rulings by discussing one likely to fly under the national radar:  the Florida Supreme Court's ruling in Wright v. City of Miami Gardens.  I think the court probably resolved the constitutional issue in the case incorrectly (although I certainly understand its reasoning and am not greatly troubled by it), but I am truly concerned about the court's approach to the question of remedies.  It decided to nullify a mayoral election, unseat the declared winner, and order a new election, without any explanation or legal analysis whatsoever of whether that was the correct remedy, or the circumstances under which new elections are the legally/constitutionally required or appropriate response to a statutory or constitutional violation.  The court seemed to assume that a new election must presumptively or automatically be held.  This is a potentially dangerous precedent heading into what is sure to be an especially contentious and litigious election season. 

The facts of the case are fairly idiosyncratic. People wishing to run for mayor were required to pay a $620 filing fee (which seems high, but we'll save that issue for another post).  One candidate, James Barry Wright, the former police chief of Opa-locka, Florida, paid the filing fee on the day before the deadline using a "starter" check from a recently opened bank account.  It is undisputed he had sufficient funds to cover the filing fee. 

Two weeks after the filing deadline, election officials notified Wright that his bank had refused to honor the check. Because the deadline had passed, he was not permitted to tender an alternate form of payment, and he was disqualified from the ballot.  It turned out the bank had made an internal error, and its failure to honor the check was not Wright's fault.  The election -- a non-partisan mayoral race -- was held with three other candidates on the ballot, including incumbent Mayor Oliver Gilbert, who won; a sitting city council member; and a third candidate described in newspapers as a "political newcomer." 

The Florida Supreme Court held that Florida law required a putative candidate to pay the filing fee by the deadline to qualify for the ballot.  Wright had not achieved payment because the bank failed to honor his check. The court went on to hold, however, that the filing fee requirement was unconstitutional as applied to Wright.  It held, "[D]isqualifying a candidate who did everything right due to an error of a third party bank that was totally beyond the control of the candidate is both unreasonable and unnecessary, as well as plainly irrational." 

The court's reasoning is certainly appealing.  The court surely overstates things, however, in calling the law irrational.  There is always an element of irrationality to hard-and-fast deadlines (try filing a notice of appeal a day late!), and certain benefits to be obtained from bright-line rules.  More importantly, as a general matter, when a person has a duty and chooses to fulfill it through a third party, we hold that person responsible if that third party fails to perform.  Here, Wright chose the bank upon which to rely.  By writing a check, he directed the bank -- his agent, bailee, and/or fiduciary -- to pay his filing fee.  In refusing to honor the check, the bank failed to pay the fee on his behalf.  It is not irrational to hold Wright accountable for the failure his agent to fulfill his duty for him.  Moreover, Wright could have chosen to pay through a certified check or cashier's check, wholly precluding any doubts over whether the check would clear.  And it could perhaps even be argued that paying with a starter check unnecessarily injects an additional element of uncertainty into the process.  While I certainly understand how the court reached its conclusion, I think it was too quick to constitutionalize the Justices' personal intuitions about fairness and unnecessarily chipped away about broader legal principles of agency law. 

Even assuming that the court ruled correctly on the merits, the more interesting question is whether the court was justified in ordering a new election as a result.  In a single paragraph at the end of the opinion, without citation to a single authority, the Court just asserted that Wright's exclusion from the ballot "tainted the entire Miami Gardens election," and this problem is "irremediable without a new election."  The court seems to suggest that, if any candidate is excluded from a ballot, the results of an election must automatically be thrown out, and a new election held.  This seems problematic for numerous reasons:

1.  It doesn't seem like the court gave serious independent consideration to the question of remedies at all.  As I have written previously, this is extremely common in election law cases; almost all of the litigants' attention often focuses on the merits, and very little thought is given to litigating the appropriate scope of relief.  My fellow symposium participant Josh Douglas has written a fascinating piece considering similar issues. 

2.  Nullifying an election means invalidating all of the votes that were properly cast by people who exercised their fundamental right to vote.  Thus, third parties -- the voters able to select the candidate of their choice -- had an important stake in the outcome of this case, yet their interests were neither represented nor considered.

3.  Pursuant to the court order, a special election will be held in December.  Voter turnout is likely to be substantially lower than at the original election, which was held in conjunction with the primaries.  By ordering a new election to promote democratic interests, the court ironically may be undermining those very interests.  Many voters are unlikely to even know the new election is being held.  Members of traditionally marginalized and historically underrepresented communities may find it difficult to vote yet again, especially only a month after the November general election.  Moreover, because there is only a single office on the ballot, voter interest may also be unusually low.  Additionally, particularly in local races, candidates are unlikely to have the financial resources to engage in yet additional rounds of campaigning and get-out-the-vote efforts.  While the original election was undoubtedly flawed, the special election may be equally flawed for different reasons, by reflecting the will of a much smaller sliver of the community. 

4.  The court gave no consideration as to whether there was a substantial likelihood that the exclusion of the candidate had a material effect on the outcome of the election.  We generally apply the concept of "harmless error," even to proceedings as solemn as capital murder trials, rather than automatically reversing when serious mistakes are made.  It could be argued that the exclusion of a candidate should be analogized to "structural error" in a criminal case that requires automatic reversal.  On the other hand, for all the reasons listed above, perhaps the need for a new election should depend on the candidates' relative standing in the polls, or the extent to which an excluded candidate can show some modicum of public support.  In a partisan general election, for example, it's not clear that the erroneous exclusion of a third-party candidate should necessarily require the results to be invalidated.   This was a non-partisan race with three other candidates, including the incumbent mayor, on the ballot.  Should there come a point when there are "enough" candidates on the ballot that the exclusion of one should be deemed unlikely to have impacted the election's outcome?

5.  The even more interesting question is what the court would do if, after a partisan general election is held, it turns out that a candidate was erroneously excluded from the ballot in a party's primary for that office.  Would the court order a new primary held?  If so, to what end?  If the excluded candidate won, would a new general election then have to be held?  If we do not believe that new elections are appropriate under such circumstances, why should the results be any different in general elections?

6.  If it turns out that some independent or third-party candidate is erroneously excluded from the presidential ballot in one or more counties in Florida, and this ruling is followed, it could potentially paralyze the nation.  Is there a principled basis for limiting this holding solely to local races? 




Posted by Michael T. Morley on October 5, 2016 at 09:41 AM | Permalink


What a stupid case. Florida has adopted the UCC, and the UCC plainly provides that a check is not an assignment of funds, that the only obligation represented by a check is the drawer's obligation to pay if the bank dishonors, and that the claim for wrongful dishonor belongs exclusively to the drawer, not the payee. See UCC 3-408 and 4-402 and see also Barnhill v. Johnson, 503 U.S. 393 (1992). The candidate who wished to avoid the risk of a wrongful dishonor could easily have purchased a cashier's check or a teller's check per UCC 3-310(a); that he chose not to do so hardly justifies a new election.

Posted by: Michael Masinter | Oct 5, 2016 8:29:01 PM

The timing of this post couldn't be better since this is an example of an issue that I need to address as part of the American Law Institute project that I'm currently working on. So additional head-scratching on this would be very much welcome--for a very practical, and not merely theoretical, purpose.

One specific thought: I need to track down a case that I remember reading that involved a mistake--made by election officials--that accidentally dropped a candidate from some, but not all of the paper ballots, distributed to voters in the particular election. The court voided the election on the ground that the number of improperly printed ballots (which omitted the candidate's name) exceeded the certified margin of victory between the winner and this wrong candidate (who got votes from voters who had received the proper ballot with his name on it).

So the facts of this remembered case are somewhat different from the new Florida case. For one, the government itself was solely responsible for the error that left the candidate's name off the ballot. I can't recall whether the court thought in terms of the candidate's rights--my memory is that it was more of an infringement on the right of voters to receive a proper ballot with all the qualified candidates on it.

In terms of materiality (versus "harmless error"), the court in the remembered case did (as I say) compare the margin of victory with the number of improper ballots. But, as I recall, the court did not require the wronged candidate (or wronged voters) to make any showing that the certified margin of victory likely would have been reversed if the mistake had not been made. The pure numerical relationship between number of invalid ballots exceeding the certified margin of victory was enough to require voiding the election and holding a new one.

Thoughts on how ALI should treat these and related cases? Thanks much, Ned

Posted by: Edward Foley | Oct 5, 2016 5:28:59 PM

This case purports to be dealing solely with the rights of the candidate; no voters were among the plaintiffs. One possible alternate remedy for a wrongfully excluded candidate would be monetary damages, by analogy to Ashby v. White, which permitted voters to recover damages for improper denial of the right to vote. The plaintiff could have been given the chance to show, by a preponderance of the evidence, that he suffered financial harm from the wrongful exclusion. This could include either the expenses he incurred in connection with the election, if any, before his filing fee was rejected, and potentially the salary he would have received as mayor.

If we do not think the plaintiff's evidence would be strong enough to establish an entitlement to salary as mayor, it's unclear that same quantum of evidence should be deemed sufficient to set aside the results of an election and require a new one.

Other possible remedies, of course, include a declaratory judgment and nominal damages, which are both even less satisfactory. I agree, there do not appear to be any great solutions. At a minimum, though, I think the rules concerning when new elections should be required should be clear and predictable -- not determined on an ad hoc basis -- and result of careful, deliberate thought, rather than what appears to be just an automatic assumption by the court.

If we applied Daryl Levinson's theory of remedial equilibration to election law, the problems inherent in crafting a remedy should make the court reluctant to recognize a right that is so problematic to enforce under these circumstances in the first place.

Posted by: Michael T. Morley | Oct 5, 2016 10:28:43 AM

Interesting post (and thanks for the shout-out)! I, too, have been fascinated by this case. A few thoughts:

1. The problem with these kinds of cases is that there are *no* good remedies to fix the problem. Now, perhaps the argument is that there is not a really a harm here because the candidate should have used a more secure form of paying the fee. But if we agree that this *was* a problem, not of his making, then no remedy really works well.

2. Ordering a new election is not totally unprecedented. In Bauer v. Souto, the Connecticut Supreme Court ordered a new election when there was a problem with one voting machine. Of course, one difference there is that the court could say that it was very likely the outcome would have been different had that machine worked.

3. The court's opinion here does seem to elevate the right to be a candidate as a constitutional right, which seems to go against the U.S. Supreme Court's decision in Clemens v. Fashing.

4. Steve Huefner has a great piece on how to remedy these kinds of election wrongs, conveniently titled "Remedying Election Wrongs" (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=946770).

Again, I don't think your analysis is necessarily incorrect. But if you are a judge who believes there has been a wrong here, what's the appropriate remedy? It seems like the answer is do nothing or order a new election, and neither solution is satisfying.

Posted by: Josh Douglas | Oct 5, 2016 9:58:05 AM

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