CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 4/3/2019 1

Unsuccessful Attempt at Federal Mandamus 

Relief Against State Election Officials 

Fox v. Detzner (Mark E. Walker, N.D. Fla. 4:18-cv-529) 

A district judge denied as beyond the court’s jurisdiction a federal 

mandamus action seeking an order requiring state election officials 

to follow the law. The judge also denied a request for a temporary 

restraining order because the plaintiffs did not comply with the notice requirements of Federal Rule of Civil Procedure 65. 

Subject: Voting procedures. Topics: Voting technology; matters 

for state courts; case assignment. 

A November 13, 2018, “Complaint in Mandamus and Request for Expedited 

Consideration” filed in the U.S. District Court for the Northern District of 

Florida sought to compel Florida election officials to preserve election ballot 

materials for the November 6 general election as required by law.1 Among 

other concerns, the plaintiffs—eight voters—alleged that “[b]ecause of the 

scheduled statewide recounts commencing as soon as Sunday, November 11, 

2008, the unpreserved digital ballot images are in danger of being obliterated 

and overwritten by the tabulation of recounted ballots.”2

The prayer for relief included a temporary restraining order request.3

Senior Judges Robert L. Hinkle4

 and William Stafford5 disqualified themselves from the case in turn over the next two days. On Friday, November 16, 

Judge Mark E. Walker denied the plaintiffs immediate relief.6

 First, “a federal 

court lacks the general power to issue writs of mandamus to direct state officers in the performance of their duties when mandamus is the only relief 

sought.”7 Second, the plaintiffs had not followed the notice requirements that 

Federal Rule of Civil Procedure 65 requires for a temporary restraining order.8

On Monday, Judge Walker instructed the plaintiffs to inform him how 

they intended to proceed with the case by noon on the following day.9

 The 

plaintiffs responded that they probably would file an amended complaint 

within the next several days,10 and they did so on December 26.11 Judge Walker 

granted the defendants a dismissal on April 2, 2019, finding that the plaintiffs’ 

 

1. Complaint, Fox v. Detzner, No. 4:18-cv-529 (N.D. Fla. Nov. 13, 2018), D.E. 1; see Jeffrey 

Schweers, Seven Lawsuits and Counting: Tallahassee Is Ground Zero, Tallahassee Democrat, 

Nov. 14, 2018, at A6. 

2. Complaint, supra note 1, at 3. 

3. Id. at 15. 

4. Disqualification, Fox, No. 4:18-cv-529 (N.D. Fla. Nov. 14, 2018), D.E. 3. 

5. Disqualification, id. (Nov. 15, 2018), D.E. 4. 

6. Order, id. (Nov. 16, 2018), D.E. 6. 

7. Id. at 1–2 (citing Moye v. Clerk, 474 F.2d 1275, 1276 (5th Cir. 1973)). 

8. Id. at 2. 

9. Order, id. (Nov. 19, 2018), D.E. 26. 

10. Notice, id. (Nov. 20, 2018), D.E. 27. 

11. Amended Complaint, id. (Dec. 26, 2018), D.E. 28. 
Unsuccessful Attempt at Federal Mandamus Relief Against State Election Officials 

2 Federal Judicial Center 4/3/2019 

cited legal obligations on election officials did not afford the plaintiffs a private 

right of action.12

 

12. Opinion, Fox v. Lee, id. (Apr. 2, 2019), D.E. 82 (granting dismissal without a hearing).