United States Court of Appeals,

Eleventh Circuit.

Nos. 94-7138, 94-7155.

Larry ROE, Perry O. Hooper, Sr., James D. Martin, PlaintiffsAppellees,

v.

STATE OF ALABAMA, By and Through its Attorney General James

EVANS, Defendant-Appellant,

James Bennett, Honorable Alabama Secretary of State, DefendantAppellant.

John W. Davis, a representative of a class of persons who have

sought to have their ballots counted in an action in the Circuit

Court of Coosa County, Alabama, Defendant-Appellant,

Mobile County Appointing Board, Lionel W. Noonan, Defendants,

Wilcox County Appointing Board, Jerry Boggan, DefendantsAppellants,

O.P. Woodruff, Honorable Probate Judge of Lowndes County, Willie

Vaughner, Honorable Sheriff of Lowndes County, et al., Defendants,

Elsie Davis, Honorable Circuit Clerk of Lowndes County, W.A.

Kynard, Honorable Circuit Clerk of Dallas County, Mary C. Moore,

Honorable Circuit Clerk of Perry County, Curtis J. Elzie, Honorable

Circuit Clerk of Bullock County, David S. Nix, Honorable Circuit

Clerk of Barbour County, Devon Kiker, Honorable Circuit Clerk of

Russell County, Eddie D. Mallard, Honorable Circuit Clerk of Macon

County, Debra P. Hackett, Honorable Circuit Clerk of Montgomery

County, Barbara Craft, Honorable Circuit Clerk of Calhoun County,

Polly Conradi, Honorable Circuit Clerk of Jefferson County, Billy

S. Yates, Honorable Circuit Clerk of Etowah County, Earl Carter,

Honorable Circuit Clerk of Jefferson County, Bessemer Division,

Carolyn M. Smith, Honorable Circuit Clerk of Cherokee County, Jean

Browning, Honorable Circuit Clerk of St. Clair County, Samuel L.

Grice, Honorable Circuit Clerk of Talladega County, Jackie Calhoun,

Honorable Circuit Clerk of Baldwin County, Jackie B. Howard,

Honorable Circuit Clerk of Washington County, Susan F. Wilson,

Honorable Circuit Clerk of Mobile County, Donald R. Gibson,

Honorable Circuit Clerk of Choctaw County, Wayne Brunson, Honorable

Circuit Clerk of Clarke County, John Sawyer, Honorable Circuit

Clerk of Monroe County, James D. Taylor, Honorable Circuit Clerk of

Escambia County, Brenda M. Peacock, Honorable Circuit Clerk of Pike

County, Ann W. Tate, Honorable Circuit Clerk of Crenshaw County,

Bobby T. Branum, Honorable Circuit Clerk of Butler County, Jean E.

Riley, Honorable Circuit Clerk of Conecuh County, Julia L. Trant,

Honorable Circuit Clerk of Houston County, Jim Ellis, Honorable
Circuit Clerk of Coffee County, Roger A. Powell, Honorable Circuit

Clerk of Covington County, Connie Burdeshaw, Honorable Circuit

Clerk of Henry County, Willie Powell, Honorable Circuit Clerk of

Wilcox County, Veleria Thomley, Honorable Circuit Clerk of Geneva

County, Bettye B. Garrett, Honorable Circuit Clerk of Dale County,

Vinita B. Thompson, Honorable Circuit Clerk of Walker County, James

E. Renfroe, Honorable Circuit Clerk of Fayette County, Carl F.

Woods, Honorable Circuit Clerk of Lamar County, Seyaine Sealy,

Honorable Circuit Clerk of Marengo County, Jack T. Pate, Honorable

Circuit Clerk of Pickens County, Johnnie Knott, Honorable Circuit

Clerk of Greene County, Carole Smith, Honorable Circuit Clerk of

Sumter County, Betty Gayle Pate, Honorable Circuit Clerk of Hale

County, Kim S. Benefield, Honorable Circuit Clerk of Randolph

County, Frank Lucas, Honorable Circuit Clerk of Tallapoosa County,

Fred Posey, Honorable Circuit Clerk of Autauga County, Horace D.

Perry, Honorable Circuit Clerk of Cleburne County, Robert Giddens,

Honorable Circuit Clerk of Clay County, Phyllis Cumbee, Honorable

Circuit Clerk of Chambers County, Earl Sayers, Honorable Circuit

Clerk of Elmore County, Dan Reeves, Honorable Circuit Clerk of

Shelby County, Doris T. Turner, Honorable Circuit Clerk of

Tuscaloosa County, Mike Smith, Honorable Circuit Clerk of Chilton

County, Gerald D. Parker, Honorable Circuit Clerk of Coosa County,

R.L. Foster, Honorable Circuit Clerk of Bibb County, Billy D.

Harbin, Honorable Circuit Clerk of Madison County, Jimmy Lindsey,

Honorable Circuit Clerk of DeKalb County, Jean Albert Scott,

Honorable Circuit Clerk of Marshall County, Charles Page, Jr.,

Honorable Circuit Clerk of Limestone County, Leonard V. Griggs,

Honorable Circuit Clerk of Jackson County, J.T. Newton, Honorable

Circuit Clerk of Franklin County, James O. Garrard, Honorable

Circuit Clerk of Marion County, W.F. Bailey, Honorable Circuit

Clerk of Winston County, Robert G. Bates, Honorable Circuit Clerk

of Cullman County, Michael E. Criswell, Honorable Circuit Clerk of

Blount County, C. Phillip Bowling, Honorable Circuit Clerk of

Colbert County, Kenneth C. Austin, Honorable Circuit Clerk of

Lauderdale County, W. Larry Smith, Honorable Circuit Clerk of

Lawrence County, Cleo D. Teague, Honorable Circuit Clerk of Morgan

County, Defendants-Appellants.

April 26, 1995.

Appeal from the United States District Court for the Southern

District of Alabama (No. CV 94-885-AH-S); Alex T. Howard, Jr.,

Judge.

Before TJOFLAT, Chief Judge, EDMONDSON and BIRCH, Circuit Judges.

PER CURIAM:

Following oral argument, we certified the following question

to the Supreme Court of Alabama:

WHETHER ABSENTEE BALLOTS THAT, ON THE ACCOMPANYING AFFIDAVIT

ENVELOPE, FAIL TO HAVE TWO WITNESSES AND LACK PROPER
 1

"Contested absentee ballots," as we defined them in our

previous opinion, are those absentee ballots that were

accompanied by an affidavit envelope that was signed by the voter

but either: (1) was not properly notarized; or (2) was not

properly witnessed by two adult witnesses. See Roe, 43 F.3d at

578 n. 5. 

NOTARIZATION (FOR EXAMPLE, BALLOT ENVELOPES THAT HAVE ONLY A

SIGNATURE OR ONLY ONE WITNESS, OR ON WHICH THE VOTER AND THE

NOTARY HAVE SIGNED THE BALLOT BUT THE NOTARY FAILS TO FILL IN

THE "TITLE OF OFFICIAL") MEET THE REQUIREMENTS OF ALABAMA LAW,

SPECIFICALLY ALABAMA CODE SECTION 17-10-7, TO BE LEGAL BALLOTS

DUE TO BE COUNTED IN THE NOVEMBER 8, 1994 GENERAL ELECTION.

Roe v. Alabama, 43 F.3d 574, 583 (11th Cir.1995). The Supreme

Court of Alabama has answered in the affirmative. Roe v. Mobile

County Appointment Bd., --- So.2d ---- (Ala.1995) (slip op.

1940461, March 14, 1995).

We remand these proceedings to the district court for a trial

on the merits. The court should address, and make findings of fact

on, the following issues:

1. The extent to which, if at all, ballots such as the ballots

at issue in this case (the "contested absentee ballots") 1

 were

regularly excluded from the vote count in Alabama counties prior to

the November 8 election and, if so, in which counties;

2. The extent to which, if at all, ballots such as the

contested absentee ballots were regularly counted in Alabama

counties prior to the November 8, 1994 election and, if so, in

which counties;

3. In any county in which ballots such as the contested

absentee ballots were regularly counted prior to the November 8

election, whether contested absentee ballots were counted in that

county on November 8;

4. In any county in which ballots such as the contested
absentee ballots were regularly counted prior to the November 8

election, whether a reasonable absentee voter in that county knew

or should have known that such ballots were counted;

5. In any county in which ballots such as the contested

absentee ballots were counted prior to the November 8 election and

in which a reasonable voter in that county knew or should have

known that such ballots were counted, the source of information

regarding the practice from which a reasonable voter learned or

should have learned of the practice;

6. In any county in which ballots such as the contested

absentee ballots were regularly counted prior to the November 8

election:

a. The percentage of total votes for statewide office

cast by absentee ballot (both contested and other) and the

percentage of total votes cast by contested absentee ballot in

the November 8 election in that county; and

b. The percentage of total votes for statewide office

cast by absentee ballot (whether the affidavit was complete or

not) in the previous two elections for statewide office in

that county;

7. Whether state officials such as the Attorney General of

Alabama or the Secretary of State of Alabama have taken consistent

positions regarding whether ballots such as the contested absentee

ballots are to be counted or excluded and, if so, the form in which

such positions were communicated to the average voter or county

voting official and the time at which such positions were taken;

8. Whether county voting officials charged with running the

elections instructed prospective voters that ballots such as the

contested absentee ballots might be counted and, if so, the extent

of this practice on the part of county voting officials;
 2

The "number of votes initially certified" includes those

vote totals originally sent to the Secretary of State or the

Governor pursuant to sections 17-13-7 and 17-14-22 of the Alabama

Election Code before the Montgomery County Circuit Court ordered

that contested absentee ballots be counted. See Odom v. Bennett,

No. 94-2434-R (Montgomery County Cir.Ct., filed Nov. 16, 1994); 

see generally Ala.Code §§ 17-13-7, 17-14-22 (1988). In addition,

the district court should ascertain the effect of any

supplemental certifications that were made for any reason other

than to comply with the Odom court's order. 

9. Whether the 1994 written absentee ballot instructions to

voters stated that ballots lacking proper notarization and the

signatures of two adult witnesses would not be counted, the precise

words used in such written instructions, and whether a reasonable

voter could have understood the written instructions to be

aspirational rather than mandatory;

10. The number of votes initially certified2 to the Secretary

of the State of Alabama from each of Alabama's sixty-seven counties

in favor of Sonny Hornsby, the Democratic candidate for Chief

Justice of the Supreme Court of Alabama;

11. The number of votes initially certified to the Secretary

of the State of Alabama from each of Alabama's sixty-seven counties

in favor of Perry O. Hooper, Sr., the Republican candidate for

Chief Justice of the Supreme Court of Alabama;

12. The number of votes initially certified to the Secretary

of the State of Alabama from each of Alabama's sixty-seven counties

in favor of candidates for Chief Justice other than Sonny Hornsby

or Perry O. Hooper, Sr., if any;

13. The number of votes initially certified to the Governor of

the State of Alabama from each of Alabama's sixty-seven counties in

favor of Lucy Baxley, the Democratic candidate for Treasurer of the
State of Alabama;

14. The number of votes initially certified to the Governor of

the State of Alabama from each of Alabama's sixty-seven counties in

favor of James D. Martin, the Republican candidate for Treasurer of

the State of Alabama;

15. The number of votes initially certified to the Governor of

the State of Alabama from each of Alabama's sixty-seven counties in

favor of candidates for Treasurer other than Lucy Baxley or James

D. Martin, if any;

16. Whether any of the vote totals initially certified from

any county contained any contested absentee ballots and, if so,

a. Whether there exists a previous official vote count

from that county, or those counties, that reliably tabulated

the votes without including the contested absentee ballots,

i.e., a tabulation of voting booth ballots and uncontested

absentee ballots;

b. The number of contested absentee ballots contained in

the county's, or counties', initial vote total(s), if

calculable, and the number of contested absentee ballots

contained in the statewide initial vote total, if calculable;

17. If any of the vote totals initially certified from each

county contained contested absentee ballots, whether those

contested absentee ballots are in any way physically separable from

the larger pool of ballots, and, if not, whether there exists any

other method, short of obtaining the testimony of each voter who

cast a contested absentee ballot, of identifying and counting

contested absentee ballots for purposes of determining the effect

of the contested absentee ballots on the elections for the offices

of Chief Justice and Treasurer.

In addressing these issues, the district court should be

cognizant of the purpose of this court's remand: The parties
should have a speedy trial to determine the practice in Alabama

regarding the counting of contested absentee ballots prior to the

November 8 election, to determine the extent to which such practice

was known to reasonable absentee voters in Alabama, and to

determine what effect, if any, the contested absentee ballots had

on the outcome of the elections for Chief Justice and Treasurer.

This court is particularly concerned with the possible effect of

any contested absentee ballots included in initial certifications.

In setting out issues that we think will require factfinding after

trial, we do not limit the authority of the district court to order

other issues tried and to find additional facts. We note in

passing that the plaintiffs, the Davis class, and the state

defendants (including the Secretary of State) may be able to

establish certain facts by stipulation.

The district court's preliminary injunction, as modified by

our previous order, is affirmed. See Roe, 43 F.3d at 583.

IT IS SO ORDERED.