CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/14/2023 1

Last-Minute Change to Ballot-Petition Due 

Date and Interference with Write-In Votes 

Swanson v. Alabama (2:02-cv-644) and Campbell v. 

Bennett (2:02-cv-784) (Myron H. Thompson) 

and Swanson v. Bennett (2:02-cv-1244) 

(W. Harold Albritton) (M.D. Ala.) 

Two lawsuits, one initially filed pro se, challenged the constitutionality of a last-minute moving up of the due date for independent 

candidates’ ballot-petition signatures. The change had to be precleared pursuant to section 5 of the Voting Rights Act, and it was 

not known until a week before the new date that it would be precleared in time for the pending elections. The district judge denied 

temporary restraining orders but issued preliminary injunctions 

placing aggrieved candidates who otherwise had submitted sufficient numbers of signatures on the ballot. A postelection action by 

the original pro se candidate and plaintiff was unsuccessful. On 

summary judgment after the election, the judge found the sudden 

change in due date to be a moot issue and other constitutional 

claims to be without merit. 

Subject: Getting on the ballot. Topics: Getting on the ballot; pro 

se party; enjoining certification. 

On June 4, 2002, the day ballot-petition signatures were due, Johnny Swanson, who wished to be an independent candidate for the U.S. Senate, filed a 

pro se federal complaint against the State of Alabama in the Middle District 

of Alabama complaining that he was incorrectly told that the due date would 

be July 1 because a new law moving up the due date would not be in effect 

until the 2004 election.1 On June 14, Judge Myron H. Thompson denied the 

request for a temporary restraining order included in the complaint.2

Judge Thompson initially referred the case to Magistrate Judge Susan 

Russ Walker for pretrial matters,3 but Judge Thompson withdrew the referral 

once counsel appeared for Swanson.4

Ray Campbell, who wished to be a candidate for Alabama’s house of representatives and who was represented by counsel, filed a similar complaint 

on July 11 against state election officials.5 Six days later, the court reassigned 

this case to Judge Thompson.6 On July 31, Campbell filed a motion for a 

1. Complaint, Swanson v. Alabama, No. 2:02-cv-644 (M.D. Ala. June 4, 2002), D.E. 1; 

Swanson v. Worley, 490 F.3d 894, 897 (11th Cir. 2007); Swanson v. Bennett, 219 F. Supp. 2d 

1225, 1227–28 (M.D. Ala. 2002). 

2. Order, Swanson, No. 2:02-cv-644 (M.D. Ala. June 14, 2002), D.E. 6. 

3. Order, id. (June 14, 2002), D.E. 7. 

4. Order, id. (July 18, 2002), D.E. 16. 

5. Complaint, Campbell v. Bennett, No. 2:02-cv-784 (M.D. Ala. July 11, 2002), D.E. 1. 

6. Docket Sheet, id. (July 11, 2002). 
Last-Minute Change to Ballot-Petition Due Date and Interference with Write-In Votes 

2 Federal Judicial Center 9/14/2023 

temporary restraining order and a preliminary injunction.7 On August 1, 

Judge Thompson denied the temporary restraining order and set the case for 

hearing on August 5.8

On August 8, Judge Thompson issued a preliminary injunction placing 

Campbell on the ballot.9 The signature-deadline change moved the deadline 

for independent candidates from six days after the last primary election to 

the date of the first primary election.10 The purpose of the change was to 

prevent primary-election losers from running in the general election.11

Because the change in the signature due date had to be precleared pursuant 

to section 5 of the Voting Rights Act,12 and because it was not submitted for 

preclearance until March 29, election officials told candidates that it would 

not go into effect until 2004.13 Upon its May 28 preclearance, however, one 

week before the new deadline, election officials announced that it would go 

into effect immediately.14 Judge Thompson held the short notice to be 

probably unconstitutional.15

In the earlier case, with the court’s permission,16 Swanson amended his 

complaint on August 13 to add two additional candidates as plaintiffs and to 

substitute state officers for the state so as to avoid Eleventh Amendment difficulties.17 On August 30, Judge Thompson issued a preliminary injunction 

in favor of the two new plaintiffs.18 Swanson, however, never submitted 

enough signatures, and Judge Thompson found the signature requirement 

itself to be probably constitutional.19

On summary judgment in 2004, Judge Thompson determined that the 

deadline-change issue was moot and the signature requirement was indeed 

7. Motion, id. (July 31, 2002), D.E. 5. 

8. Order, id. (Aug. 1, 2002), D.E. 9. 

9. Campbell v. Bennett, 212 F. Supp. 2d 1339 (M.D. Ala. 2002). 

10. Swanson v. Worley, 490 F.3d 894, 897 (11th Cir. 2007); Swanson v. Bennett, 219 F. 

Supp. 2d 1225, 1227 (M.D. Ala. 2002); Campbell, 212 F. Supp. 2d at 1341. 

11. Campbell, 212 F. Supp. 2d at 1341. 

12. Pub. L. No. 89-110, § 5, 79 Stat. 437, 439, as amended, 52 U.S.C. § 10304 (requiring 

preclearance of changes to voting procedures in jurisdictions with a certified history of discrimination). 

On June 25, 2013, the Supreme Court declined to hold section 5 unconstitutional, but the 

Court did hold unconstitutional the criteria for which jurisdictions require section 5 preclearance. Shelby County v. Holder, 570 U.S. 529 (2013). 

13. Swanson, 490 F.3d at 897; Swanson, 219 F. Supp. 2d at 1227–28; Campbell, 212 F. 

Supp. 2d at 1341–43. 

14. Swanson, 490 F.3d at 897; Swanson, 219 F. Supp. 2d at 1228; Campbell, 212 F. Supp. 

2d at 1342. 

15. Campbell, 212 F. Supp. 2d at 1343–47. 

16. Order, Swanson v. Alabama, No. 2:02-cv-644 (M.D. Ala. Aug. 13, 2002), D.E. 44. 

17. Amended Complaint, id. (Aug. 13, 2002), D.E. 45; Swanson, 490 F.3d at 897; see Order, Swanson, No. 2:02-cv-644 (M.D. Ala. July 18, 2002), D.E. 17 (encouraging the candidate 

to amend the complaint to avoid Eleventh Amendment difficulties). 

18. Swanson, 219 F. Supp. 2d at 1225; Swanson, 490 F.3d at 898–99; see Independents Put 

on Ballot, Montgomery Advertiser, Sept. 4, 2002, at C3. 

19. Swanson, 219 F. Supp. 2d at 1227, 1231–34; Swanson, 490 F.3d at 899. 
Last-Minute Change to Ballot-Petition Due Date and Interference with Write-In Votes 

Federal Judicial Center 9/14/2023 3

constitutional.20 In 2006, Judge Thompson resolved in favor of the defendants an issue that the Swanson plaintiffs argued remained pending: that the 

new deadline unconstitutionally prevented independent candidates from collecting signatures at primary-election polling places.21 The court of appeals 

affirmed this decision on June 29, 2007.22

In the November 5, 2002, general election, Swanson ran as a write-in 

candidate. On the Friday after the election, he filed a pro se federal complaint 

and a motion for a temporary restraining order alleging that voters were improperly prevented from voting for him because of intimidation, equipment 

malfunction, and other improprieties.23 On the day the complaint was filed, 

Judge W. Harold Albritton set the matter for hearing on November 13.24

In a time-pressured case with lawyers on both sides, the judge usually 

could efficiently conference with the lawyers, frequently by telephone, to 

work out scheduling issues.25 With a pro se plaintiff, however, scheduling 

issues were more often addressed with arms-length formal orders.26

On November 18, Judge Albritton denied Swanson immediate relief because claimed injuries to voters were not his injuries and there was no reason 

to believe that the alleged wrongs changed the outcome of the election.27

On February 18, 2003, Judge Albritton granted the defendants’ motion to 

dismiss the complaint: 

In this case, the Plaintiff argues that he is neither contesting the election nor 

seeking a “recanvass” or “recount.” Instead, he insists that he is only requesting “an 

audit to determine the accuracy of the count.” Semantics aside, the Plaintiff is directly contesting the number of votes he received. . . . Because such an action, regardless of how it is characterized, conflicts with the Constitution’s express textual 

mandate that the Senate shall have the power to judge the elections and returns of 

its members, the court is without jurisdiction to proceed.28

20. Swanson v. Bennett, 340 F. Supp. 2d 1295 (M.D. Ala. 2004); Swanson, 490 F.3d at 

899–900; see Campbell v. Bennett, 340 F. Supp. 2d 1301 (M.D. Ala. 2004); Opinion, Campbell v. Bennett, No. 2:02-cv-784 (M.D. Ala. Aug. 24, 2004), D.E. 33. 

21. Swanson v. Worley, 432 F. Supp. 2d 1262 (M.D. Ala. 2006); Swanson, 490 F.3d at 

900–01. 

22. Swanson, 490 F.3d 894; see Phillip Rawls, Court Upholds State’s Ballot Access Laws, 

Mobile Press-Reg., July 6, 2007, at B2. 

23. Complaint, Swanson v. Bennett, No. 2:02-cv-1244 (M.D. Ala. Nov. 8, 2002), D.E. 1. 

24. Order, id. (Nov. 8, 2002), D.E. 3; Minutes, id. (Nov. 13, 2002), D.E. 10; see Order, id.

(Nov. 12, 2002), D.E. 7 (moving the hearing from 2:00 p.m. to 10:00 a.m.). 

Tim Reagan interviewed Judge Albritton for this report by telephone on June 18, 2013. 

25. Interview with Hon. W. Harold Albritton, June 18, 2013. 

26. Id. 

27. Opinion, Swanson, No. 2:02-cv-1244 (M.D. Ala. Nov. 18, 2002), D.E. 11. 

28. Opinion at 6, id. (Feb. 18, 2003), D.E. 18 (citation omitted).