Julius Mcgruder and Conway Gilcrest, Appellants, v. the Phillips County Election Commission, et al., Appellees, 850 F.2d 406 (8th Cir. 1988)

L.T. Simes, II, West Helena, Ark., for appellants.

Raymond F. Galloway, Helena, Ark., for appellees.

Before JOHN R. GIBSON and FLOYD R. GIBSON, Circuit Judges, and HARPER, Senior District Judge.^* 

HARPER, Senior District Judge.

Appellants appeal the district court's dismissal of their amended complaint. Appellants are Julius McGruder and the Reverend Conway Gilcrest. They sued the Phillips County Election Commission; and John L. Anderson, Bart Lindsey and Bankston Waters in their official capacities as election commissioners. Appellants based their claims on the Fifth Amendment; the Thirteenth Amendment; the Fourteenth Amendment; the Fifteenth Amendment; 42 U.S.C. § 1973, et seq.; 42 U.S.C. § 1981; 42 U.S.C. § 1983; and 28 U.S.C. § 1343. The matter was tried before the United States District Court for the Eastern District of Arkansas.

Appellants are two black individuals who are citizens of Phillips County, Arkansas. They were unsuccessful candidates in the Phillips County general election which took place on November 4, 1986. Reverend Gilcrest was the incumbent alderman for Ward 4, Position 2. McGruder was the challenger for Justice of the Peace, District 7. Subsequent to their unsuccessful bid for these offices, appellants filed an action in federal court alleging that appellees, in various ways, denied and abridged the Phillips County citizens' right to vote on account of race. (Appellants have raised eight issues on appeal. Specific allegations contained in the complaint will be discussed below pursuant to each related issue.)

After a hearing, the district court entered an Order dismissing the complaint because appellants failed to allege facts supportive of a violation of Phillips County residents' federal statutory or constitutional voting rights. This appeal followed, and is limited to the applicability of 42 U.S.C. § 1973 et seq. (the Voting Rights Act) to appellants' various allegations. Appellants raise eight issues on appeal:

I Whether black citizens in Phillips County are denied the right to be present during the tabulation of the ballots.

II Whether the Election Commission's policy of failure to train and educate election judges, clerks and sheriffs denies black candidates their right to effectively participate in the political process.

III Whether Reverend Julius McGruder and Conway Gilcrest were discriminated against because of their race.

IV Whether the Court should order the elimination of the intermingling of the sheriff's department and the Commission.

V Whether District Court erred in failing to make detailed findings of fact and failed to discuss all substantial evidence contrary to his discussion.

VI Whether the District Court erred by holding that it had no jurisdiction under the Voting Rights Act and by narrowing the scope of appellants' complaint.

VII Whether the Election Commission denies black citizens the right to bring sample ballots and voting aids into the polling precincts.

VIII Whether black citizens do not have equal access to the Phillips County Election Commission.

Appellants are requesting that we reverse and remand this case with instructions that the District Court order the separation of the sheriff's department, staff and officials from the electoral process; order direct training of the general public; order the availability of voting machines at the offices of black businesses, professions and civic groups; order sufficient training of election judges, clerks and sheriffs; order the Election Commission to cease placing election sheriffs at black precincts only; order the Election Commission to establish objective guidelines for the selection of election judges, clerks and sheriffs; order the Election Commission to establish an objective procedure such that black candidates can verify the accuracy of the vote tabulation; and order the Election Commission to comply with certain Arkansas statutes, discussed below, relating to the election process. Each issue on appeal will be discussed separately.

I. WHETHER BLACK CITIZENS IN PHILLIPS COUNTY ARE DENIED THE RIGHT TO BE PRESENT DURING THE TABULATION OF THE BALLOTS.

Ark.Code Ann. 7-5-316 (1987) states: "After the polls have been closed, any candidate * * * may be present * * * at the count of the ballots * * * for the purpose of determining whether or not the ballots * * * are fairly and accurately counted." Based on the testimony presented at the hearing, the District Court found that the following procedure was undertaken pursuant to vote tabulation: Ballot boxes were delivered from the precincts to the circuit courtroom in the courthouse. The vote tabulator was located on a table near the courtroom rail. No barrier existed in the courtroom which would preclude observation of the tabulating process. People were allowed on either side of the rail during the process, so long as enough room was left around the table for counting and tabulating the ballots. We are in agreement with the District Court that plaintiffs have failed to allege any federal violation pertaining to the tabulation of ballots. Plaintiffs have the option, of course, for filing for an election contest in the Arkansas state court. Such an action would not, however, be cognizable in federal court, as there is no violation of the Voting Rights Act, or any other federal statute or constitutional provision. This issue on appeal is denied.

II. WHETHER THE ELECTION COMMISSION'S POLICY OF FAILURE TO TRAIN AND EDUCATE ELECTION JUDGES, CLERKS AND SHERIFFS DENIES BLACK CANDIDATES THEIR RIGHT TO EFFECTIVELY PARTICIPATE IN THE POLITICAL PROCESS.

Appellants' next issue on appeal concerns the training and education of election officials. Appellants contend that a lack of training resulted in the election judges, clerks and sheriffs engaging in behavior which interfered with the voting process and which, in turn, prevented election of appellants to office.

There are no Arkansas or federal statutes imposing a duty on appellees to train and educate election judges, clerks and sheriffs. Nonetheless, the Commission undertook the responsibility of presenting two training sessions, one in 1984 and one in 1986. Neither training session was related to the 1986 general election at issue herein. Nor were they particularly successful since, according to the District Court's findings, only ten to twelve percent of the judges and clerks who had been notified managed to attend the training sessions. We emphasize the fact that the Election Commission was under no legal obligation to present these training sessions. Failure to train is not violative of the Voting Rights Act.

The District Court further found that the Commission placed a demonstration machine at each polling place, and published instructions to voters, for posting at all polling places. Furthermore, the Commission is willing to make available its voting equipment should any interested group wish to offer a training session.

In view of the fact that the Election Commission is not required by law to train and educate either election personnel or voters, this issue on appeal is denied. Appellants have not taken any action pursuant to training which violates the Voting Rights Act.

III. WHETHER APPELLANTS WERE DISCRIMINATED AGAINST BECAUSE OF THEIR RACE.

Appellants next complain that as a result of gerrymandering, and the failure of the Commission to properly train election judges, clerks and sheriffs, certain voting machines were improperly installed at one of the polling places.

First, appellees were not responsible for the redistricting that appellants refer to and, therefore, cannot be held responsible. This portion of the issue clearly has no merit.

Appellants also refer to an incident surrounding the exchange in location of two voting machines at one of the polling places. This particular polling place served three voter precincts, Precincts 16, 17 and 18. McGruder's race for Justice of the Peace appeared on the ballot for Precinct 16, but not Precinct 17. One voting machine for Precinct 16 and one for Precinct 17 were inadvertently interchanged. The mistake was discovered and corrected around 9:00 a.m. The district court could find no showing by appellants that McGruder was harmed by the mix-up in voting machines. If a voter from Precinct 16 had entered a voting machine and found McGruder's name absent from the ballot, the Court reasoned that the voter would have questioned the election officials about the ballot. No evidence was presented that any voter from Precinct 16 experienced this type of difficulty.

Appellants also referred in this portion of their brief to an allegation that the appointment of white election sheriffs at black polling precincts was a deliberate and discriminatory act. The District Court found that appellees did, in fact, attempt but fail to obtain black election sheriffs for these positions. Arkansas law requires that election sheriffs be appointed at each voting precinct. Ark.Code Ann. 7-4-107(c) (1987). Since the Commission could not obtain any black individuals to serve as election sheriffs, it was forced to appoint white election sheriffs. This issue on appeal is denied.

IV. WHETHER THE COURT SHOULD ORDER THE ELIMINATION OF THE INTERMINGLING OF THE SHERIFF'S DEPARTMENT AND THE COMMISSION.

Appellants next complain that appellees regularly use deputy sheriffs to deliver election materials when Ark.Code Ann. 7-5-317(b) requires that "election materials and returns shall be delivered by the election judges * * *." Appellants also take exception to the Commission's use of the sheriff's office and personnel in carrying out various election duties. In their brief, appellants describe Phillips County as containing a population of greater than fifty percent black. This population is severely impoverished and, according to appellants, has experienced a history of confrontations and abuses by the sheriff's department. For these reasons, appellants argue that use of sheriff's department employees adversely affects black individuals because the "administration of justice historically has been unequal and unduly harsh upon blacks."