United States Court of Appeals,

Eleventh Circuit.

No. 95-6814.

Larry ROE, on behalf of himself and all others similarly

situated, Plaintiffs-Appellees, Cross-Appellants,

v.

STATE OF ALABAMA, James Bennett, Alabama Secretary of State, et

al., Defendants-Appellees, Cross-Appellants,

Clarence T. Hellums, Jr., on behalf of himself and all others

similarly situated, Defendant-Appellant, Cross-Appellee.

Oct. 13, 1995.

Appeals from the United States District Court for the Southern

District of Alabama. (No. CV-94-0885-AH-S), Alex T. Howard, Jr.,

Judge.

Before TJOFLAT, Chief Judge, ANDERSON and BARKETT, Circuit Judges.

PER CURIAM:

In this case, Larry Roe, on behalf of himself and others who

voted in Alabama's November 8, 1994, general election (the "Roe

Class"), claims that the State of Alabama is attempting to dilute

the votes that the Roe Class cast in that election, in violation of

the Due Process Clause of the Fourteenth Amendment. This dilution

will occur, the Roe Class contends, if Alabama's election officials

comply with the order of a state trial court, issued in Odom v.

Bennett, No. 94-2434-R (Montgomery County Cir.Ct.1994), requiring

them to include in their vote totals absentee ballots (the

"contested ballots") that do not conform to Ala.Code § 17-10-7 in

that they were not enclosed in an envelope bearing the signatures

of the voter and either a notary public or two witnesses. Instead,

these ballots were enclosed in envelopes bearing only the voters'

signatures.
 1

The Republican candidates for chief justice and treasurer,

Perry O. Hooper, Sr., and James D. Martin, are plaintiffs in this

case; the Democratic candidate for treasurer, Lucille Baxley, is

an intervenor. 

On December 5, 1994, the district court, concluding that the

Odom court's order, if implemented, would retroactively amend the

State's election code and "dilute the ballot box," entered a

preliminary injunction ordering the Alabama Secretary of State

(defendant James Bennett) to certify the election results without

counting the contested ballots. The Secretary of State (and the

other state defendants in the case) and John Davis, who had cast a

contested ballot and was a plaintiff in Odom v. Bennett,

immediately appealed the injunction. Following oral argument, we

affirmed the preliminary injunction in part (including the district

court's conclusion that the plaintiffs were likely to prevail on

the merits of their constitutional claim), vacated it in part, and

certified to the Supreme Court of Alabama the question whether an

absentee ballot enclosed in an envelope that does not bear the

signature of either a notary public or two witnesses meets the

requirement of Ala.Code § 17-10-7. Roe v. Alabama, 43 F.3d 574

(11th Cir.1995) (Roe I ). In effect, our decision permitted those

elected to all offices except the offices of Chief Justice of the

Supreme Court of Alabama and Treasurer of Alabama to be sworn in.

Thus, the elections to those two offices are the ones involved in

this case.1

On March 14, 1995, the Alabama Supreme Court answered the

question in the affirmative; the signature of the voter alone, if

accompanied by the voter's residence address and reason for voting
 2

In remanding the case for this determination, we instructed

the district court to make findings of fact on 17 issues. We did

not, however, limit the court's authority to try other relevant

issues. 

absentee, satisfies the statute's requirements. Roe v. Mobile

County Appointment Bd., No. 1940461, 1995 WL 121871, --- So.2d ----

(Ala. March 14, 1995). In addition to answering the certified

question, the court indicated that, in the past, the election

officials in some of Alabama's sixty-seven counties had counted

ballots such as those that are contested in this case.

After receiving the Alabama Supreme Court's response to our

question, we remanded the case to the district court and instructed

it to determine whether, prior to and at the time of the November

8, 1994, general election, the practice in Alabama had been to

reject or, conversely, to count absentee ballots whose envelope did

not include the signature of either a notary public or two

witnesses.2

 Roe v. Alabama, 52 F.3d 300 (11th Cir.1995) (Roe II ),

cert. denied, --- U.S. ----, 116 S.Ct. 276, --- L.Ed.2d ----

(1995).

Following the receipt of our mandate, and after extensive

discovery, the district court and the parties met in pretrial

conference and narrowed the issues to be tried. The court, with

the consent of all parties, also certified the Roe Class and, after

Clarence T. Hellums was substituted for the deceased John Davis,

the court certified the Hellums Class (consisting of voters who had

cast contested ballots). The Hellums Class then filed two cross

claims against the state defendants. The first claim alleged that,

by not counting the contested ballots, the state defendants would
 3

Some of these 48 witnesses testified at the December 5,

1994 hearing on the plaintiffs' motion for a preliminary

injunction; the testimony they gave at that hearing was

incorporated into the record of the trial. 

disenfranchise the Hellums Class in violation of the Due Process

Clause of the Fourteenth Amendment; the second claim alleged that

the State defendants would deny the Class the equal protection of

the laws if they counted contested ballots in some counties but not

in others (where the Class members had voted). The claims of the

Roe and Hellums classes thus turned on the same question: whether

it had been the practice in Alabama prior to and in the November 8

election to count ballots such as the contested ballots. If the

practice had been not to count such ballots, the Roe Class would

prevail; if the practice had been to count them, the Hellums Class

would prevail.

The trial of the case took three days. Introduced into

evidence, in addition to the stipulated facts, were the answers to

interrogatories that had been propounded, in a format agreed to by

the parties, to the election officials in all of Alabama's

sixty-seven counties, and the testimony of forty-eight witnesses

(thirty-eight of whom testified in person, ten by deposition),

including the Secretary of State and a former Attorney General (who

had issued the definitive opinion concerning the proper

interpretation of Ala.Code § 17-10-7).3 On the basis of that

evidence, the district court found that the practice in Alabama

prior to the November 8, 1994 election, had been uniformly to

exclude ballots enclosed in envelopes that did not bear the

signature of either a notary public or two witnesses as required by
 4

The court found this to be the practice in all of Alabama's

67 counties except Washington County. In Washington County,

ballots such as the contested ballots were regularly counted and

included in the county's vote totals. In the November 8, 1994,

election, Washington County's vote totals included 14 contested

ballots. In three other counties—where the practice was to

exclude such ballots—a total of 35 contested ballots "slipped

through" and were counted. The 49 contested ballots (from these

three counties and Washington County) do not affect the outcome

of the two elections at issue. Plaintiff Perry O. Hooper, Sr.,

prevails in the election for chief justice by a total of 262

votes; intervenor Lucille Baxley prevails in the election for

state treasurer by a total of 1,032 votes. 

a literal reading of Ala.Code § 17-10-7.4

Given this finding of fact, which the state defendants did not

contest, the district court concluded that the Roe Class and

plaintiff Hooper were entitled to relief; to include the contested

ballots in the vote totals would depreciate the votes of the

members of the Roe Class and deprive plaintiff Hooper of the office

of Chief Justice of Alabama. The same finding of fact also

required the court to reject the claims of the Hellums Class;

eliminating the contested ballots from the vote totals would not

operate to deny the members of that class due process or the equal

protection of the laws. Accordingly, the district court entered a

final judgment that, among other things, ordered the Secretary of

State to certify the results of the elections of chief justice and

treasurer.

The Hellums Class now appeals the district court's final

judgment. It also moves this court to stay the district court's

judgment pending the disposition of its appeal. We granted a

temporary stay of the final judgment to enable the parties to brief

the motion to stay. Because the granting of a stay would turn on

the likelihood of the Hellums Class prevailing on the merits of its
 5

The Hellums Class contends that the district court

precluded the Class from engaging in discovery that might have

undercut the evidence of "past practice" on which the district

court relied. Specifically, the Class argues that the district

court abused its discretion in not permitting it to count the

absentee ballot envelopes (in each of Alabama's 67 counties) from

past elections (as well as the November 8, 1994, election); 

among these envelopes, the Class contends, there may be a

significant number that, like the contested ballot envelopes, are

without the signature of either a notary public or two witnesses. 

Such envelopes would presumably establish that the practice the

district court found to be uniform was, in fact, not uniform. If

not uniform, the argument concludes, then not counting the

contested ballots would deny the Hellums Class' right to due

process and equal protection (the Class' two cross claims).

The district court barred the requested discovery

because (as the court stated in the addendum to its final

judgment) to permit the Hellums Class to inspect the

approximately 100,000 envelopes would prolong the

proceedings and delay interminably the disposition of the

case. The Hellums Class made no showing that it was likely

that a significant number of nonconforming envelopes would

be uncovered; moreover, the testimony of the election

officials before the court, considered as a whole,

demonstrated no likelihood that a significant number of

nonconforming ballots existed.

appeal, see Garcia-Mir v. Meese, 781 F.2d 1450 (11th Cir.1986);

11th Cir.R. 27-1(b)(1), we directed the parties to brief the merits

as well. They have done so, and we have heard argument thereon.

For the reasons that follow, we conclude that the Hellums

Class cannot prevail on appeal. Accordingly, we deny its motion to

stay and affirm the judgment of the district court.

 First, the district court's findings of fact are not clearly

erroneous; rather, its findings are supported overwhelmingly by

the evidence. With the exception of Washington County, there has

been no practice to count ballots that bear only the signature of

the voter. Indeed, the practice has been to require, in the words

of Ala.Code § 17-10-7, in addition to the voter's signature, the

signature of either a notary public or two witnesses.5 Given this
Finally, we note that John Davis, in the complaint he

and Michael Odom filed in Odom v. Bennett, alleged that the

election officials in all of Alabama's 67 counties were

rejecting the contested ballots on the instructions of the

Secretary of State. The Secretary's instructions were in

keeping with the opinion the Alabama Attorney General issued

in 1980 (which emphasized that absentee ballots must bear

the signature of either a notary public or two witnesses)

and the Alabama Election Handbook (written by the Alabama

Law Institute) and the Alabama Voter's Guide, both of which

were issued by every Secretary of State thereafter.

In sum, we find no merit in the Hellums Class' argument

that the district court abused its discretion in denying the

Class the discovery in question. 

 6

The Hellums Class argues that the Roe Class claim fails

because that Class did not establish an essential element of its

claim: that without the burden of the notary/two witness

requirement, persons who did not vote would have voted in the

November 8, 1994, general election. According to the Hellums

Class, the Roe I panel erred, in footnote 15 of its opinion, in

taking "judicial notice of the fact that reducing the

inconvenience of voting absentee—by eliminating the necessity of

obtaining the signature of a notary or two witnesses—would

increase the number of absentee ballots."

practice, we fail to see how the State's refusal to count the

contested ballots could deny the Hellums Class due process of law,

the Class' first cross claim. The Class' second cross claim fails

because refusing to count the contested ballots could not deny them

equal protection of the law. The fact that a small number of

contested ballots (forty-nine) slipped through is of no

consequence.

The Hellums Class' fall-back position, as outlined to us in

oral argument, is that neither class states a claim cognizable

under the United States Constitution. In other words, we should

revisit Roe I and Roe II, which, in affirming the district court's

preliminary injunction, held that Roe had presented a claim under

the Constitution.6
We doubt that this point is an essential element of the

Roe Class' claim. The Roe Class included those who voted

(as well as those who would have voted but for the burden of

executing a proper affidavit); their claim is that their

votes would be diluted if the contested ballots were

counted. Assuming, however, that the element in question is

essential to the Roe Class' claim, we conclude that the

Hellums Class effectively stipulated that the element had

been established. At the pretrial conference, in submitting

the issues to be tried, counsel for the Hellums Class said

nothing that would indicate that the Roe Class had to

produce a witness who would say that he would have voted

absentee but for the burden of finding a notary or two

witnesses. This silence must be viewed against the

background fact that this court in its footnote 15 had taken

judicial notice of the fact. None of the triable issues

delineated at the pretrial conference concerned this point. 

Moreover, at trial, the Hellums Class said nothing when the

Roe Class did not present the testimony it now claims is

missing. When, at the conclusion of the trial, the court

invited counsel to submit oral argument or memoranda

addressing the findings of fact and conclusions of law the

court should reach, see Fed.R.Civ.P. 52(a), the Hellums

Class stood silent. Under the circumstances, we conclude

that the Hellums Class waived any argument they may have had

that the Roe Class had to establish the element in question. 

Roe I and Roe II establish law which is binding upon this

panel. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981)

(en banc). Although the law established by the prior panel was

announced in a preliminary injunction posture, nevertheless the

principle of law adopted was clear. The facts established on

remand in the district court were stronger in favor of the Roe

Class than the prior panel could have expected. We therefore

adhere to our prior conclusion that Roe has presented a claim for

relief.

Assuming that to be true, the Hellums Class contends that, as

a matter of comity, we should decline to exercise our jurisdiction

so as not to interfere with Alabama's election process. If we

dismissed the case, the Hellums Class represents, the Class would
 7

Section 17-15-6 provides:

No jurisdiction exists in or shall be exercised by any

judge, court or officer exercising chancery powers to

entertain any proceeding for ascertaining the legality,

conduct or results of any election, except so far as

authority to do so shall be specially and specifically

enumerated and set down by statute; and any

injunction, process or order from any judge, court or

officer in the exercise of chancery powers, whereby the

results of any election are sought to be inquired into,

questioned, or affected ... save as may be specially

and specifically enumerated and set down by statute,

shall be null and void and shall not be enforced by any

officer or obeyed by any officer or obeyed by any

person.... 

immediately move the Montgomery County Circuit Court, once again,

to order the county election officials to amend their vote totals

to include the contested ballots and the Secretary of State to

include them in the election results for the office of chief

justice.

 Whether the Montgomery County Circuit Court has jurisdiction

to grant the Hellums Class such relief is, as we noted in Roe I,

highly doubtful. Roe I, 43 F.3d at 582. See Ala.Code § 17-15-6.7

The Alabama Attorney General, appearing on behalf of the Secretary

of State and the election officials of the State's sixty-seven

counties (the Odom defendants), citing section 17-15-6, has moved

the Montgomery County Circuit Court to dismiss Odom v. Bennett for

want of subject matter jurisdiction. But, putting this issue

aside, directing the district court to dismiss this case would, as

we observed in Roe I, leave the Roe Class without an adequate forum

for the vindication of its federal constitutional claims. Roe I,

43 F.3d at 582.

 Finally, the Hellums Class urges us to give effect to the
 8

As noted supra, the Alabama Supreme Court, in answering our

certified question, stated that, in the past, election officials

in some counties included in their vote totals ballots such as

those contested in this case. In making this statement, the

Alabama Supreme Court relied upon some affidavits the Odom

plaintiffs attached to their motion for summary judgment in that

case. However, these affiants were not subjected to cross

examination in Odom, nor did the opposing party have an

opportunity to oppose or otherwise contest same. After we

remanded the instant case for trial, these affiants were examined

under oath in the district court. Their testimony in the

district court—whether given in answer to interrogatories, on

deposition, or at trial—was, contrary to their affidavits in

Odom, that their counties never counted absentee ballots such as

those at issue here or that they had no knowledge of how such

ballots were treated. Thus, the factual predicate for the

Alabama Supreme Court's observations with respect to past

practice was demonstrated in the district court to have been

erroneous. 

Supreme Court of Alabama's answer to the question we certified in

Roe I: that the envelopes enclosing absentee ballots need not bear

the signature of either a notary public or two witnesses. What the

Hellums Class ignores is that the Alabama Supreme Court, in

answering our question, construed an Alabama statute; the court

did not, and was not called upon to, decide whether the counting of

the contested ballots cast in the November 8, 1994, general

election—in the face of Ala.Code § 17-10-4 and in the face of a

uniform state-wide practice of excluding such ballots8

—infringed

the Roe Class' constitutional rights. See Griffin v. Burns, 570

F.2d 1065 (1st Cir.1978).

In conclusion, we AFFIRM the judgment of the district court.

The State defendants, who have not appealed and who stand ready to

comply with the district court's injunction, are directed to comply

with that injunction forthwith.

Because this litigation is now at an end, we direct the Clerk

to issue the mandate instanter.