UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-30436

G. SCOTT LOVE, PAUL S. BERGERON,

KATHLEEN B. BALHOFF, AND BENNIE

BAKER BOURGEOIS,

Plaintiffs-Appellants,

versus

MIKE FOSTER, State of Louisiana, Govenor;

FOX MCKEITHEN, State of Louisiana, Secretary,

Defendants-Appellees.

Appeals from the United States District Court

for the Middle District of Louisiana

July 16, 1998

Before POLITZ, Chief Judge, WISDOM and JONES, Circuit Judges.

POLITZ, Chief Judge:

On remand from the Supreme Court and this court the trial judge, in light of

a failure by the Louisiana Legislature to correct a constitutional defect in the state’s

election code, set the dates for Louisiana’s future congressional elections. The

plaintiffs appeal this order, contending that by striking down the provision for an

October election for congressional office the Supreme Court vitiated the entire

election code. They further contend that by operation of Louisiana law, the

el e ction system replaced by the present code automatically is revived. For the1 Love v. Foster , 90 F.3d 1026, 1031 (5th Cir. 1996), aff’d Foster v. Love , ___ U.S. ___,

118 S.Ct. 464, 139 L.Ed.2d 369 (1997).

2 Id ., 118 S.Ct. at 468, 139 L.Ed.2d at 376.

2 reasons assigned we reject these contentions and affirm the action of the district

court.

Background

In 1995 the four plainti ffs, Louisiana voters, sought declaratory and

injunctive relief, alleging that the state’s election provisions violated federal

statutes which require a uniform, nationwide election day for members of Congress.

The district court granted summary judgment to the defendants and plaintiffs

appealed to this court. We reversed, holding that the plaintiffs were “entitled to a

declaratory judgment that Louisiana’s election scheme conflicts with 2 U.S.C. §§

1, 7 t o the extent that the Louisiana scheme authorizes a contested election for

members of Congress to be decided in the open primary before the uniform federal

election day.” 1 The Supreme Court granted certiorari and in due course affirmed,

holding that “[w]h en Louisiana’s statute is applied to select from among

congressional candidates in October, it conflicts with federal law and to that extent

is void.” 2

In our decision, affirmed by the Supreme Court, we remand ed with directions

that the plaintiffs’ request for injunctive relief be reconsidered if the Louisiana

Legislature failed to act timely to resolve the conflict occasioned by the October

primary. The Legislature declined to act in a special session called by the

Governor and the district court did as directed and ordered elections consistent with3

the provisions of the Louisiana election code, federal statutes, and the holdings of

this court and the Supreme Court. The trial court ordered that the upcoming

congressional election and, absent intervening action by the Legislature, future

elections for members of Congress shall be held on federal election day, the first

Tuesday following the first Monday in November. In this year that date is

November 3, 1998. In the event no candidate receives a majority of the votes cast,

the court ordered a runoff election on the next available election date contained in

Louisiana law, R.S. 18:512(C), the third Saturday after federal election day which,

this year, is December 5, 1998. Otherwise, the elections are to be conducted in full

accordance with the Louisiana election code as currently written.

Plaintiffs appeal, contending t hat the district court erred when it failed to

order reinstated the c losed primary election system in effect prior to the open

primary system instituted by Act 1 of the 1975 Regular Session, and Act 697 of the

1976 Regular Session. It is the position of plaintiffs-appellants that the decisions

by t his court and by our Supreme Court mandated the trial court’s abolition of

Louisiana’s open primary system and the re i nstatement of the previously extant

closed primary scheme.

Analysis

Neither our earlier opinion nor that of the Supreme Court leaves any room

for doubt or uncertainty. It is manifest that Louisiana’s practice of holding, and in

most instances deciding, congressional elections prior to the federally established

uniform election day is in direct conflict with federal law. But it was only the3 Love , 90 F.3d at 1031.

4 Leavitt v. Jane L. , 518 U.S. 137 (1996).

5 Dow Hydrocarbons & Resources v. Kennedy

, 694 So.2d 215 (L a

. 1997)(Kimball, J.

concurring).

4 timing of the first primary election that was found to be legally repugnant. There

has been no relevant finding that the remainder of Louisiana’s election code is in

conflict with the Constitution or with any federal statute. In our earlier rejection

of the invitation to declare the current election system invalid, and to replace it with

the previous s cheme, we stated that such a “drastic remedy would require us to

radically overhaul the state’s election procedure and reinstate an election system

which the state abolished eighteen years ago.” 3 We were not then prepared to take

t hat Gargantuan step, nor, apparently, was the Supreme Court. We are not now

prepared to do so unless mandated by dispositive law.

The critical question at bar is whether the invalidity of the provision for the

October primary election dooms the entirety of the Louisiana election code. Stated

more precisely, is that section severable from the legislation? Severability is a

matter of state law, 4 to which we now turn.

Unde r Louisiana law, when a portion of a statute is found to be invalid, a

severability analysis is an essential element of judicial review. 5 Louisiana Revised

Statute 24:175, which contains the state’s general rule on severability, provides:

Unless otherwise specifically provided therein, the provisions of each

act of the legislature are severable, whether or not a provision to that

effect is included in the act. If any provision or item of an act, or an application thereof, i s held invalid, such invalidity shall not affect

other provisions, items, or applications of the act which can be given6 Police Ass’n of New Orleans v. City of New Orleans

, 649 So.2d 951, 965 (La. 1995). See

also Polk v. Edwards

, 626 So.2d 1128, 1148 (La. 1993); Cox Cable of New Orleans, Inc. v. City

of New Orleans

, 624 So.2d 890, 895 (La. 1993); R adiofone, Inc. v. City of New Orleans

, 616

So.2d 1243, 1249 (La. 1993); State v. Azar , 539 So.2d 1222, 1226 (La. 1989).

7 State v. Johnson , 343 So.2d 705 (La. 1977).

8 When the statute was enacted in 1976, it provided that congressional primaries were to be held

on the third Saturday in September. This sect io n was amended by Act 10 of the 1982 Regular

Session of the Legislature to provide for the current October date.

5 effect without the invalid provision, item, or application.

As the election code contains no bar to severability, th e court is required to

determine whether the remaining pa rts of the legislation can be given effect without

the invalid provision. The Louisiana Supreme Court has determined that “[t]he test

for severability is whether the unconstitutional portion s of the law are so

interrelated and connected with the c onstitutional portions that they cannot be

separated without destroying the intention of the legislative body enactin g the

law.” 6 Stated simply, the first question is whether the legislature would have

passed the statute without the invalid features. 7

In 1976 the Louisiana Legislature completely rewrote the state’s election

code. The revision abolished the state’s dual primary system in favor of an open

primary system where a ll qualified candidates, regardless of party affiliation,

appear on the same ballot, and all voters, with like disregard of party, are entitled

to vote. The election code provided that this initial balloting take place on the first

Saturday in October 8 with a runoff, if required, on federal election day. It appears

certain beyond peradventure that the Legislature would have enacted the new open

primary system with or without the con stitutionally impermissible October election9 Dow Hydrocarbons & Resources v. Kennedy , 694 So.2d 215, 218 n.7 (La. 1997).

1 0 Perschall v. State

, 697 So.2d 240 (La. 1997). S ee also State v. Johnson

, 343 So.2d 705 (La.

1977).

11 La. R.S. 18:402 B(1).

12 La. R.S. 18:402 B(2).

6 date. The obvious principal concern of the Legislature was the enactment of an

open primary election system.

Finding it abundantly clear that the Legislature would have adopted the

statute without th e invalid provision, our inquiry must now focus on the critical

question whether the remainder of the statute is capable of enforcement without

that provision. “It is not within the authority of the judiciary to rewrite the

legislation in order to salvage the remainder.” 9 Rather, for the legislation to survive

the valid portions of the election code must form a complete act within itself. 10

Article I, Section 4, Clause 1 of the United States Constitution provides:

The Times, Places and Manner of holding Ele ctions for

Senators and Representatives, shall be prescribed in each

State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .

This clause establishes the power of each state to regulate elections, limited by the

power of the Congress to make modifications. In exercising this authority, the

Louisiana Legislature enacted an election code which, inter alia

, sets three dates for

congressional elections: (1) a primary election to be held on the first Saturday in

October, 11 (2) a runoff election to be held on federal election day, 12 and (3) in the13 La. R.S. 18:512 (c).

14 2 U.S.C. § 7. See also 2 U.S.C. § 1.

7 event of a tie, a third election to be held on the third Satu rday thereafter. 1 3 In

absence of action by Congress , these dates are consistent with the constitutional

provision authorizing the states to regulate the time, place, and manner of holding

elections.

It is beyond dispute that Congress has acted in this are a, however, and has

required a uniform day for the election of all congressional candidates. It has

established a federal election day on the “Tuesday next after the 1st Mond ay in

November, in every even numbered year

. . . .” 14 Louisiana’s practice of allowing

what turned out frequently to be decisive congressional elections prior to federal

election day thwarted the congressional intent to establish this unif orm day,

providing the basis for invalidating this section of the Louisiana election system.

The question which remains is whether the Louisiana election schema, without the

October first primary, may stand on its own.

We harbor no doubt that this question may be answered in the affirmative.

The Louisiana election code systemically is complete. It provides for an open

prim ary for election of state and federal office holders. It establishes detailed

procedures for implementing elections and regulating the voting pr ocess. It

provides an encompassing body of law governing the conduct of local, state, and

federal elections.

Examining the Louisiana election code without the October, formerly8

September, first p rimary date, we find an adequate and sufficient election day

series t o accomplish the true purpose of the election code – the proper and

appropriate election of the candidates favored by the majority of the voting

electorate. There remains a date for the initial elections which coincides with the

November federal date. There is another election day prescribed in the event that

no candidate receives a majority of the votes cast in the November election. True

enough, the present statutory reference is to a “tie vote,” but the commanding

concept is clear; the election code provides in R.S. 18:512(C) for an election after

the Novemb er election in the event the November balloting fails to result in a

candidate polling the majority of the votes cast. Thus the election code, with the

October election removed, provides dates for both a primary and a runoff election.

We find neither error nor abuse of discretion by the district court in its

resolution of the issues presented by the rulings of this court, affirmed by the

Supreme Court, and the explicit and implicit charges to fashion a remedy consistent

with these rulings which p reserves the Louisiana election code, and the election

scheme adopted by the Loui siana Legislature. Absent action by Congress, any

further changes that might be made therein are the exclusive provi nce of the

Louisia na Legislature and Governor, as are any refinements or valid significant

changes they may wish to make as a consequence of today’s resolution.

In sum, therefore, we entertain no doubt that the Louisiana authorities would

have adopted their election code without the October (previously September) first

primary date, that the invalidated October first primary is severable, and that the9

election statutes, after t he severing of the October primary election, remain

complete, sufficient, enforceable, and stand on their own.

It cannot be gainsaid that the careful method of the district court in resolving

this conundrum was approached with total allegiance to the concepts of comity,

federalism, and judicial restraint. Accordingly, the judgment appealed is

AFFIRMED.10

EDITH H. JONES, Circuit Judge, concurring in part and dissenting in part:

The Chief Judge’s opinion persuasively analyzes the critical question

in this case, se verability under Louisiana law. Finding that Louisiana’s open

primary law, taken together with the governing federal law setting an initial

election date, is sufficiently severable from the invalid election dates, the opinion

affirms Judge Polozola’s order. I do not disagree with the panel opinion in this

respect. I write separately, however, to indicate that the district judge did not, in

my view, have the authority t o enjoin Louisiana to conduct its open primary

elections indefinitely according to the dates set forth in his injunction. The district

court’s order should be viewed as a stop-gap measure, made necessary by the rapid

onset of this fall’s election campaigns, but it does not remove the imperative for the

Louisiana legislature to enact its own election dates.

The parties should not be misled into thinking that Judge Polozola’s

order is a permanent substitute for proper legislative action. The train of events

that led to this order may well have given them that impression, however. When

the plaintiffs initially prevailed in this court, they sought an injunction restoring the

Louisiana closed-primary system as it had existed before 1978. This court denied

their request, describing such relief as a radical overhaul of the state’s election

machinery, and remanded to the district cour t with instructions to defer to the

legislature. The Supreme Court’s opinion does not reach the extent of affirmative

relief to which the plaintiffs may be entitled. After remand to the district court, the

Louisiana legislature failed to enact an alternate, constitutional set of election dates11

for the open primary system. When the district court held its final remedial hearing

before entering the order now on appeal, the plaintiffs again urged, citing Louisiana

law, that the statutory timing of Louisiana’s open primary was non-severable from

the rest of the sc heme and that Louisiana must return to the pre-existing closedprimary system.

The district court may have known, as this court was informed only

during oral argument, that Louisiana’s election system could not be wound back to

its pre-1978 status. Plaintiffs conceded in our court that the state election law has

changed so much as to make recourse to such a remedy utterly impracticable.

Plaintiffs admitted, in essence, that their request for injunctive relief was founded

on an impossibility. Faced with the prospect of impending elections, but with no

help from the plaintiffs or the legislature, what was the district court to do? He

chose the sensible course of emp loying the federal November election date and

adapting Louisiana’s December fall-back date for any runoffs following the open

primary.

Rational though it appears, the district court’s temporary remedy,

fashioned to accommodate the fall 1998 election, is not an ultimate solution to this

litigation. This is not an area in which federal courts are even permitted, much less

required or competent to fashion a remedy. First, federal courts do not have the

authority to rewrite statutes to render them constitutional. U niversal Amusement

Co ., Inc. v. Vance , 587 F.2d 159, 172 (5th Cir. 1978) (en banc), aff’d. 445 U.S.

308, 100 S. Ct. 1156 (1980). In this case, only because of necessity as described12

above, the statute has been judicially rewritten: the date of the op en primary has

been moved from October to the first Tuesday in November, and any possible

runoff date has been set to occur in December. Second, the finding that Louisiana’s

election dates were in conflict with federal law engendered no obligation of the

court to grant affirmative injunctive relief

-- other than to prevent operation of the

offending provision. Unlike a civil rights or voting rights case, in which federal

courts issue injunctions to protect the rights that have been abridged, this case deals

only with preemption. It is Louisiana’s business to amend the statute that ran afoul

of governi ng federal law. Finally, federal courts must always be reluctant to

tamper with state election mechanisms. W hite v. Weiser

, 412 U.S. 783, 795, 93 S.

Ct. 2348, 2355 (1973); Love v. Foster

, 90 F.3d 1026, 1030 (5th C ir. 1996). The

Louisiana legislature’s inability to amend its law to adopt the district court’s simple

solution strongly suggests that more is at play politically than the choice of election

dates. Even if, as here, a temporary judicial intervention has become necessary, the

state government must re-a s sume its legislative responsibilities at the earliest

possible moment.

For these reasons, the district court’s remedy is good for this election

only, but Louisiana must pass legislation to conform i ts election law to federal

requirements for any election following those of 1998.