CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 9/15/2023 1

Crossover Votes 

Foster v. Salaam (Ira De Ment, M.D. Ala. 2:02-cv-1093) 

A federal complaint alleged that Republicans were improperly permitted to vote in a June 2002 runoff Democratic primary election 

for a seat in Alabama’s house of representatives. The district judge 

determined that the claim under section 5 of the Voting Rights Act 

was not valid, so a three-judge district court did not need to be appointed. The plaintiffs sought voluntary dismissal and pursued the 

matter in state court. 

Subject: Voting irregularities. Topics: Primary election; 

enjoining certification; enjoining elections; section 5 preclearance; 

three-judge court. 

Three months after a June 25, 2002, runoff primary election for Democratic 

nominee for a seat in Alabama’s house of representatives, fourteen voters 

filed a federal complaint against the declared winner and the Democratic 

Party claiming that Republicans were improperly permitted to vote in the 

election.1 The complaint included a motion for a preliminary injunction 

against certification of the winner of the runoff election.2 The complaint also 

included a claim that the primary-election runoff procedures had not been 

cleared pursuant to section 5 of the Voting Rights Act.3 Five days later, the 

plaintiffs filed a motion to stay the November 5 election for the house seat in 

dispute.4 On October 15, Judge Ira De Ment granted the plaintiffs’ motion to 

add Alabama’s secretary of state and a probate judge as defendants.5

On October 2, Judge De Ment set the matter for hearing on October 17.6

On October 9, Judge De Ment ruled that the plaintiffs had not stated a section 5 claim requiring the empaneling of a three-judge district court to hear 

it: “There is no allegation that the Alabama Democratic Party has instituted a 

new procedure, practice or party rule; rather, the Complaint contains accusations that the Alabama Democratic Party violated Alabama election laws that 

already have received preclearance.”7 Following the hearing, Judge De Ment 

1. Complaint, Foster v. Salaam, No. 2:02-cv-1093 (M.D. Ala. Sept. 25, 2002), D.E. 1. 

2. Id. at 10, 11, 13, 14; Docket Sheet, id. (Sept. 25, 2002). 

3. Complaint, supra note 1, at 8–10; see Voting Rights Act of 1965, Pub. L. No. 89-110, 

§ 5, 79 Stat. 437, 439, as amended, 42 U.S.C. § 1973c (requiring preclearance of changes to 

voting procedures in jurisdictions with a certified history of discrimination and requiring 

that preclearance disputes be heard by a three-judge district court). 

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). 

4. Motion, Foster, No. 2:02-cv-1093 (M.D. Ala. Sept. 30, 2002), D.E. 2. 

5. Order, id. (Oct. 15, 2002), D.E. 18. 

Judge De Ment died on July 16, 2011. Federal Judicial Center Biographical Directory of 

Article III Federal Judges, www.fjc.gov/history/judges. 

6. Order, Foster, No. 2:02-cv-1093 (M.D. Ala. Oct. 2, 2002), D.E. 5; Minutes, id. (Oct. 17, 

2002), D.E. 32. 

7. Opinion at 8, id. (Oct. 9, 2002), D.E. 10. 
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2 Federal Judicial Center 9/15/2023 

granted the plaintiffs’ motion to voluntarily dismiss their complaint without 

prejudice to seek relief in state court.8

The defendant candidate was elected to Alabama’s house in November.9

8. Order, id. (Oct. 22, 2002), D.E. 36; see Defeated Candidate Denied Relief, Montgomery 

Advertiser, Oct. 23, 2002, at C3. 

9. See Clash Breaks Out at Polls, Montgomery Advertiser, Nov. 6, 2002, at B1.