Opinion
Civil Action 00-0442-RV-L.
March 5, 2001.
FINAL JUDGMENT
In accordance with the separate Order entered this date granting the defendants' motions to dismiss, it is ORDERED, ADJUDGED and DECREED that the claims of the plaintiff Jeffery Ray Jones against defendants State of Alabama, Don Siegelman, Bill Pryor, Jim Bennett, Seth Hammett, Lowell Barron, the Mobile County Commission, Sam Jones, Gary Tanner and Freeman Jockisch be and hereby are DISMISSED with prejudice.
ORDER ON MOTIONS TO DISMISS AND MOTION FOR JUDGMENT
This matter is before the Court on the defendants' motions to dismiss the amended complaint, (Docs. 33, 36), and on the plaintiff's motion for judgment. (Doc. 41). The parties have filed briefs in support of their respective positions. (Docs. 34, 37-39, 45). After careful consideration of the parties' arguments as set forth in the foregoing materials, as well as in the parties' filings concerning the defendants' motions to dismiss the original complaint, (Docs. 10, 22-25, 28-29), the Court concludes that the plaintiff's motion for judgment is due to be denied and that the defendants' motions to dismiss are due to be granted.
The defendants' motions to dismiss the original complaint, (Does. 9, 21) are moot.
BACKGROUND
The plaintiff is a citizen registered to vote in Mobile County, Alabama. He was the sole Republican candidate for a place on the Mobile County Commission in the June 2000 primary.
The amended complaint is not a model of clarity. However, indulging very generous assumptions in favor of the plaintiff, he asserts constitutional and statutory challenges to the following procedures utilized in Mobile County primary elections:
• a requirement that primary voters identify their party to a poll worker in order to vote (Doc. 31, ¶¶ 17, 42, 47);
• a requirement that primary voters sign a poll list containing a pledge to support the party's nominees ( id., ¶¶ 16, 41, 47);
• the practice of poll workers asking voters who remain in the booth for over four minutes whether they need assistance and reminding these voters of their right to such assistance, including by poll officials if so desired ( id., ¶ 44);
"All persons who are qualified electors . . . and who are also members of a political party and entitled to participate in such primary election under the rules of said party shall be entitled to vote therein and shall receive the official primary ballot of that political party, and no other . . . ." Ala. Code § 17-16-4(a). "In every election held in this state, the voter shall sign his name on one of the po11 lists . . . ." preference by use of a "party control button" on the voting machine. (Doc. 31, ¶ Id. § 17-7-15. The plaintiff alleges that poll workers enforce the voter's indicated 43).
"All poll lists for primary elections shall state at the top thereof that by participating in said primary election a voter shall indicate his preference for the party holding said primary, and will support the nominees of that party in the general election . . . . No person shall be eligible to participate in said primary unless he signs said poll list and thereby certifies to the truth of said statement." Ala. Code § 17-16-14(b). The plaintiff alleges that poll workers enforce the identification and pledge requirements through use of an "officer's control button" that activates the voting machine only when these requirements are satisfied. (Doc. 31, ¶ 45).
See Harris v. Siegelman, 700 F. Supp. 1083, 1088 (M.D. Ala. 1988).
"All persons who are qualified electors . . . and who are also members of a political party and entitled to participate in such primary election under the rules of said party shall be entitled to vote therein and shall receive the official primary ballot of that political party, and no other . . . ." Ala. Code § 17-16-4(a). "In every election held in this state, the voter shall sign his name on one of the po11 lists . . . ." preference by use of a "party control button" on the voting machine. (Doc. 31, ¶ Id. § 17-7-15. The plaintiff alleges that poll workers enforce the voter's indicated 43).
"All poll lists for primary elections shall state at the top thereof that by participating in said primary election a voter shall indicate his preference for the party holding said primary, and will support the nominees of that party in the general election . . . . No person shall be eligible to participate in said primary unless he signs said poll list and thereby certifies to the truth of said statement." Ala. Code § 17-16-14(b). The plaintiff alleges that poll workers enforce the identification and pledge requirements through use of an "officer's control button" that activates the voting machine only when these requirements are satisfied. (Doc. 31, ¶ 45).
See Harris v. Siegelman, 700 F. Supp. 1083, 1088 (M.D. Ala. 1988).
• the inclusion of ballot initiatives on primary election ballotts ( id., ¶¶ 51-52).
The plaintiff sued the State of Alabama and several legislative and executive officials (the "State defendants"). He also sued the Mobile County Commission and the three county commissioners (the "County defendants").
The plaintiff also sued three corporate defendants allegedly involved in the manufacture and distribution of the electronic voting machines used in Mobile County. However, the plaintiff's motion to dismiss these defendants, (Doc. 32), has previously been granted. (Doc. 42).
CAUSES OF ACTION
The amended complaint asserts the following constitutional and statutory claims:• violation of Article Four, Section Four;
• violation of the Fifteenth Amendment;
• violation of the Fourteenth Amendment's Equal Protection Clause;
While identifying the plaintiff's "caus[e] of action" as one under the Equal Protection Clause, the amended complaint elsewhere speaks of an undifferentiated "right to vote," (Doc. 31, ¶¶ 19, 46, 65, 75, 80), a right to "secrecy of the ballot," ( id., ¶¶ 16, 19, 21, 41, 49, 60, 62-62, 65, 75, 79, 82-84), and a "right of association." (Id., ¶¶ 59, 61-63). Because the same analysis applies to primary election procedure challenges whether couched in terms of equal protection, free association, right to vote or right to privacy, see, e.g., Nader v. Schaffer, 417 F. Supp. 837 (D. Conn.)(three-judge court), aff'd, 429 U.S. 989 (1976); Pontikes v. Kusper, 345 F. Supp. 1104 (N.D. Ill. 1972)(three-judge court), aff'd, 414 U.S. 51 (1973), the plaintiff's nomenclature is secondary and separate analysis of each constitutional protection unnecessary.
• violation of the Voting Rights Act of 1965.
(Doc. 31, ¶¶ 65-69).
ANALYSIS
A motion to dismiss should not be granted "`unless the plaintiff can prove no set of facts which would entitle him to relief.'" Martinez v. American Airlines, Inc., 74 F.3d 247, 248 (11th Cir. 1996) (quoting Peterson v. Atlanta Housing Authority, 998 F.2d 904, 912 (11th Cir. 1992)). In making this determination, the Court must "take all the allegations in the complaint as true, and view the complaint in the light most favorable to the plaintiff." Id.
I. Article IV, Section 4.
"The United States shall guarantee to every State in this Union a Republican Form of Government . . . ." U.S. Const. art. IV, § 4. Since at least Luther v. Borden, 48 U.S. 1 (1849), the Supreme Court has repeatedly held that claims raised under the Guarantee Clause present "political questions" not justiciable in the courts. While other factors have come into play in various decisions, the consistent thread restricting the clause's justiciability has been its lack of "manageable standards which a court could utilize independently" to determine what does or does not constitute a "republican form of government." Baker v. Carr, 369 U.S. 186, 223 (1962).
The predecessor to the Eleventh Circuit has gone so far as to declare as an absolute rule that "suits arising under the guarantee clause clearly present non-justiciable political questions." O'Hair v. White, 675 F.2d 680, 684 N.5 (5th Cir. 1982). While the Supreme Court has more recently "suggested that perhaps not all clams under the Guarantee Clause present nonjusticiable political questions," it has declined to resolve this "difficult question." New York v. United States, 505 U.S. 144, 185 (1992).
The Court concludes that the plaintiff's challenges to Alabama's voting procedures follow the general if not universal rule and present political questions not justiciable under the Guarantee Clause. The plaintiff has identified, and the Court detects, no judicially manageable standards for measuring the challenged procedures against the guarantee of a republican form of government.
Alternatively, on the merits the plaintiff has identified no conceivable basis for concluding that the modest restrictions on voting in a party primary that are at issue in this case could possibly implicate the existence of a republican form of government, especially absent a one-party system that renders nomination tantamount to election. See Romer v. Evans, 517 U.S. 620, 648 (1996)(Scalia, J., dissenting) (the Guarantee Clause "prevent[s] monarchists").
In his brief, the plaintiff notes that Alabama primary ballots do not list unopposed candidates. Ala. Code § 17-16-11(c). He extrapolates that it would violate the Guarantee Clause for the state to follow a similar procedure in a general election, omitting unopposed nominees from the ballot. (Doc. 41 at 10). The hypothetical exceeds the bounds of the amended complaint and therefore is not properly before the Court. At any rate, Alabama does not omit unopposed nominees from the general election ballot but affirmatively requires that ballots "shall contain the names of all candidates nominated" by various means, so long as they comply with Alabama procedural requirements. Ala. Code § 17-8-2 (emphasis added).
In summary, the plaintiff's claims under Article IV, Section 4 are due to be dismissed.
II. Fifteenth Amendment.
The plaintiff's claims are non-justiciable only to the extent asserted under the Guarantee Clause. The plaintiff may challenge the questioned procedures under other constitutional and statutory provisions, as they do provide judicially manageable standards for resolution. E.g., Quinn v. Millsap, 491 U.S. 95, 102 (1989) (the non-justiciability of a claim under the Guarantee Clause does not preclude review of a parallel claim under the Equal Protection Clause).
"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U.S. Const. amend. XV, § 1. "[Vote dilution, vote denial, and traditional race discrimination claims arising under the Fourteenth and Fifteenth Amendments all require proof of intentional discrimination . . . ." Burton v. City of Belle Glade, 178 F.3d 1175, 1187 N.8 (11th Cir. 1999) (emphasis in original).
The amended complaint does not allege that the plaintiff's right to vote has been denied or abridged on account of his race. At oral argument, the plaintiff identified the class he purports to represent as "anyone who refuses to reveal [the] secrecy of [their] ballot" or who will not "reveal their party affiliation," not a class based on race or color.
Because the plaintiff does not assert any claim of race discrimination, his claim for violation of the Fifteenth Amendment is due to be dismissed.
III. Equal Protection Clause.
State laws challenged under the Equal Protection Clause may be subject to any of three competing levels of scrutiny. The "most exacting scrutiny" is reserved for classifications based on race or national origin and those "affecting fundamental rights." Clark v. Jeter, 486 U.S. 456, 461 (1988). As noted in Part II, the plaintiff alleges no discrimination based on race or national origin. However, he does suggest that voting in a primary election is a fundamental right. (Doc. 41 at 8).
As a general proposition, "the right of suffrage is a fundamental matter in a free and democratic society." Reynolds v. Sims, 377 U.S. 533, 56 1-62 (1964). Thus, the Supreme Court has applied exacting scrutiny in assessing equal protection challenges to various voting restrictions. E.g., Kramer v. Union Free School District, 395 U.S. 621, 628-29 (1969) (restriction of franchise to landholders and parents in school district elections); Harper v. Virginia State Board of Elections, 383 U.S. 663, 670 (1966) (poll tax).
The plaintiff, however, has not shown that the fundamental right to vote in an election encompasses an equally fundamental right to vote in a primary. In California Democratic Party v. Jones, 530 U.S. 567, 120 S.Ct. 2402 (2000), the Court struck down a California law establishing a "blanket" primary that required all political parties to allow non-party members to vote in their primaries. In dissent, Justice Stevens posited a "fundamental right of such nonmembers to cast a meaningful vote for the candidate of their choice." Id. at 2422 (Stevens, J., dissenting). The majority responded that " [s]electing a candidate is quite different from voting for the candidate of one's choice. If the `fundamental right' to cast a meaningful vote were really at issue in this context, [the California law] would be not only constitutionally permissible but constitutionally required, which no one believes." Id. at 2407 N.5 (emphasis added). This language would appear to dispel any suggestion that Alabama's primary voting procedures invade a fundamental right to vote.
Moreover, even if this case did involve a fundamental right, "[t]here must be more than a minimal infringement on the rights to vote and of association before strict judicial review is warranted." Nader v. Schaffer, 417 F. Supp. 837, 849 (D. Conn.)(three-judge court), aff'd, 429 U.S. 989 (1976); accord Ziskis v. Symington, 47 F.3d 1004, 1006 (9th Cir. 1995). Both the Nader and Ziskis Courts held that a state law requirement that a primary voter affirmatively join a party before being allowed to vote in its primary constituted such a minimal infringement.
Necessarily, Alabama's lesser requirement that a primary voter simply identify the primary in which he or she desires to vote, while leaving the voter free not to join the party, constitutes a minimal infringement that cannot trigger strict scrutiny. "Any imposition this [public declaration of party affiliation] places on the voter is minimal." Pontikes v. Kusper, 345 F. Supp. 1104, 1109 (N.D. Ill. 1 972)(three-judge court), aff'd, 414 U.S. 51 (1973). The pledge to support the party's candidates is a similarly minimal imposition, especially since it is unenforceable by external compulsion. See Nader v. Schaffer, 417 F. Supp. at 846 ("Any elector in Connecticut may, however, in the subsequent general election vote for any party's candidate or an independent, as he chooses, and there is no way to compel him to disclose for whom he voted.").
With strict scrutiny eliminated from consideration, the potentially appropriate analyses are reduced to two. Under "rational basis" review, the classification "must be rationally related to a legitimate governmental purpose." Clark v. Jeter, 486 U.S. at 461. Under "intermediate scrutiny," the classification "must be substantially related to an important governmental objective." Id. It is unnecessary to determine which of these standards should apply to this case because the challenged procedures pass even intermediate scrutiny.
The plaintiff's brief focuses principally on a claim that the challenged procedures violate his First Amendment right to freedom of speech, apparently by requiring him to disclose his party of preference as a predicate to voting in a primary. (Doc. 41 at 2-12). Because the amended complaint asserts no claim for violation of his free speech rights, the plaintiff cannot inject such a claim into this litigation by brief. Even could he do so, and even could he show that the right to speak includes the right not to divulge party preference incident to primary voting, the "minimal infringement" on any such right imposed by the identification requirement would not support application of strict scrutiny analysis.
A. Pledge of Support.
"It is clear that preservation of the integrity of the electoral process is a legitimate and valid state goal." Rosario v. Rockefeller, 410 U.S. 752, 761 (1973). More precisely, inhibiting the practice of "raiding," in which those antipathetic to a party nonetheless vote in its primary for nefarious purposes (typically, to help nominate a candidate most vulnerable to defeat in the general election by the raider's preferred candidate) constitutes an "important state goal." Id. at 760.
While other factors may contribute to the importance of this goal, chief among them is the recognized First Amendment associational interest of the political parties and their members, which interest encompasses the "corollary" of "the right not to associate." California Democratic Party v. Jones, 120 S.Ct. at 2408 (emphasis added). At no time is this interest greater than at "[t]he moment of choosing the party's nominee." Id. Thus, for example, the state cannot constitutionally require political parties to allow non-members to vote in a blanket primary. Id. at 2405, 2414.
On the other hand, a political party and its membership may desire to allow non-members or certain non-members (especially independents) to vote in its primary, and preservation of the party's associational interest in this context precludes a state from forbidding primary voting by non-members. Tashjian v. Republican Party, 479 U.S. 208 (1986). Alabama law neither requires political parties to allow non-members to vote, in violation of California Democratic Party v. Jones, nor forbids them to do, in violation of Tashjian. Instead, Alabama law honors the parties' associational interests by allowing each party's governing body to "declare and determine who shall be entitled and qualified to vote in such primary election." Ala. Code § 17-16-14(a).
Requiring primary voters to sign a pledge of support for the party's candidates is substantially related to the important state interest in reducing raiding. The courts have repeatedly held that a requirement that a voter join the party before voting in its primary is an appropriate means of reducing raiding. See Rosario v. Rockefeller, 410 U.S. at 76 1-62; Ziskis v. Symington, 47 F.3d at 1005-06; Nader v. Schaffer, 417 F. Supp. at 848-50; see also Allen v. Berman, 1999 WL 475559 (2nd Cir. 1999). A pledge of support affords a similar, "minimal demonstration by the voter that he has some `commitment' to the party in whose primary he wishes to participate," Nader v. Schaffer, 417 F. Supp. at 847, and the pledge accordingly satisfies the "substantial relation" test of intermediate scrutiny.
A pledge of party support in the general election might at first blush appear more intrusive than party enrollment, which may carry with it no agreement to support the party's candidates in the general election. However, the pledge is at best an unenforceable promise, see Nader v. Schaffer, 417 F. Supp. at 846; see also Ala. Code § 17-8-11 ("Every voter in Alabama shall have the right to vote a secret ballot, and that ballot shall be kept secret and inviolate."). Thus, the pledge is no more intrusive than a requirement to join the party; while either act may create a psychological incentive to vote for the party's candidates in the general election, neither creates a legal obligation to do so. B. Identification of Party Preference.
The plaintiff also complains that, because Alabama law prevents unopposed party candidates from being listed on the primary ballot, voters are required to sign a pledge to support candidates of whom they are unaware. (Doc. 31, ¶ 20). Any voter ignorance, however, would not enhance the minimal imposition on the voter of executing the pledge, especially since the pledge is unenforceable in a general election.
The requirement that a primary voter identify the party in whose primary he or she desires to participate is supported by similar considerations. Vindication of the important state interest in reducing raiding would be hamstrung if voters did not indicate their party of preference. Likewise, lack of identification would frustrate the state's "`compelling' interest in preventing election fraud." Pontikes v. Kusper, 345 F. Supp. 1104, 1109 (N.D. Ill. 1972)(three-judge court), aff'd, 414 U.S. 51 (1973). Most obviously, the lack of such identification would encourage voters to vote in one party's primary and in another party's runoff, despite party rules against such crossover voting. The importance of the identification requirement is reflected in Alabama's 1986 gubernatorial primaries, in which massive violations" of the anti-crossover rule were established through a comparison of those voting in the Republican primary and later in the Democratic runoff. See Curry v. Baker, 802 F.2d 1302, 1312 (1 1th Cir.), cert. dismissed, 479 U.S. 1023 (1986); Henderson v. Graddick, 641 F. Supp. 1192, 1197 (M.D. Ala.), appeal dismissed, 479 U.S. 1023 (1986).
The Alabama Democratic Party's rule prohibiting crossover voting "has the force and effect of law" pursuant to Ala. Code § 17-16-11 (a). Curry v. Baker, 802 F.2d 1302, 1306 (11th Cir.), cert. dismissed, 479 U.S. 1023 (1986). The rule The rule has been held to be constitutional. Henderson v. Graddick, 641 F. Supp. 1192, 1194-95 (M.D. Ala.)(three-judge court), appeal dismissed, 479 U.S. 1023 (1986).
The bankruptcy of the plaintiff's position is amply shown by a few examples. Under the plaintiff's theory, it would be unconstitutional to hold primaries on different days, because the very act of voting would expose the voter's party preference. Likewise, a runoff in only one party (as occurred locally in June 2000) would be unconstitutional for the same reason. Indeed, any statutorily sanctioned party registration format that allowed anyone outside the party to learn of a citizen's party membership would be unconstitutional, a proposition rejected in Pontikes v. Kusper, 345 F. Supp. at 1109.
The balancing of state interests and voter disclosure may be different when the voter alleges that he or she will be subjected to harassment if information concerning his political affiliation becomes public. See Cool Moose Party v. Rhode Island, 6 F. Supp.2d 1116, 1124 (D.R.I. 1998), aff'd, 183 F.3d 80 (1St Cir. 1999); Nader v. Schaffer, 417 F. Supp. at 844; see generally NAACP v. Alabama, 357 U.S. 449 (1958). The plaintiff, however, has made no such allegation. In summary, the means selected by Alabama bear a substantial relation to the state's important goals and, as noted previously, "[a]ny imposition this [public declaration] places on the voter is minimal." Pontikes v. Kusper, 345 F. Supp. at 1109.
Given his declared candidacy as a Republican, the plaintiff would be hard pressed to attribute any harassment to Alabama's disclosure requirement, unless it were his intention to vote in the Democratic primary.
C. Time Limits and Assistance.
Concerning time limits for voting and inquiries regarding the need for assistance, the plaintiff argues that communications with the voter "should be expressed prior to entering the voting booth and not by way of interruption." (Doc. 41 at 12). Assuming the plaintiff truly intends to challenge these procedures, he has no standing to do so.
The doctrine of standing encompasses both jurisdictional and prudential concerns. E.g., Bischoff v. Osceola County, 222 F.3d 874, 883 (11th Cir. 2000). At least to the extent that standing is a jurisdictional matter, the Court is obligated to confirm its existence, regardless of any challenge by the parties. United States v. Hays, 515 U.S. 737, 742 (1995).
The "irreducible constitutional minimum of standing" is three-fold: (1) "the plaintiff must have suffered an `injury in fact' — an invasion of a legally protected interest which is (a) concrete and particularized, . . . and (b) `actual or imminent, not `conjectural' or `hypothetical'"; (2) "there must be a causal connection between the injury and the conduct complained of', such that "the injury [is] `fairly' . . . trace[able] to the challenged action of the defendant'"; and (3) "it must be `likely,' as opposed to merely `speculative,' that the injury will be `redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (quoting earlier Supreme Court decisions). The burden is on the plaintiff to establish each of these elements. E.F. Hutton Co. v. Hadley, 901 F.2d 979, 984
The plaintiff has failed even to allege that he has ever in the past been impacted by the four-minute rule or by a pol1 worker's inquiry concerning his need for assistance. Nor does he allege a substantial — or any — likelihood that he will be so impacted in the future. For want of injury in fact, the plaintiff lacks standing to challenge these procedures and the Court lacks subject matter jurisdiction to consider them.
D. Ballot Initiatives on Primary Election Dates.
The amended complaint alleges that, on the date of the June 2000 primary, the plaintiff was "prevented" from voting on a constitutional amendment because he refused to identify his party preference. (Doc. 31, ¶¶ 51-52). At oral argument, the plaintiff conceded that voters could vote on the constitutional amendment separately, without identifying their party preference, and he further admitted that he failed to request the opportunity to do so. Even if it is arguably unconstitutional to predicate a voter's right to vote on a constitutional amendment on his identification of his party preference, the plaintiff's admissions establish that no such thing occurred. IV. Voting Rights Act of 1965.
The plaintiff's suggestion at oral argument that poll workers were constitutionally obligated to advise him to take advantage of this opportunity merits no discussion.
"No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or [in some situations, on account of language]." 42 U.S.C. § 1973 (a).
Section 1973, commonly known as Section 2 of the Civil Rights Act of 1965, by its terms applies only to voting infringements due to race or color. E.g., Burton v. City of Belle Glade, 178 F.3d at 1197-98. Because, as noted in Part II, the plaintiff alleges no racial discrimination, his claim under Section 2 is due to be dismissed. V. Hatch Act.
The plaintiff prays for the convening of a three-judge court pursuant to 28 U.S.C. § 2284. (Doc. 31, ¶ 74). Such a court may be convened "when otherwise required by Congress, or when an action is filed challenging the constitutionality of the apportionment of Congressional districts or the apportionment of any statewide legislative body." Id. § 22 84(a). Because the plaintiff does not challenge the apportionment of any legislative body or district, he must rely on congressional enactment to establish a right to have a three-judge court hear his case. Section 5 of the Voting Rights of 1965 provides for the convening of such a court. 42 U.S.C. § 1973c. However, Section 5 addresses only the requirement of pre-clearance of certain changes to voting rules, a claim the plaintiff has not asserted. Indeed, the plaintiff admits that the defendants "have produced proof of preclearance." (Doc. 29 at 2). Accordingly, no three-judge court may be convened.
In a preliminary statement, the amended complaint alleges that "an actual controversy with the Hatch Act exits [sic]." (Doc. 31, ¶ 18). However, the amended complaint does not reference the Hatch Act again, either in the body of the complaint, the statement of causes of action, or the prayer for relief. Nor does the plaintiff reference the Hatch Act in his brief. Accordingly, the Court concludes that the plaintiff asserts no such claim.
At any rate, the Hatch Act imposes restrictions on political activity only on certain federal employees, see 5 U.S.C. § 7322-24, and the plaintiff does not allege that he is a federal employee. Moreover, to the extent the plaintiff alleges that identifying one's party of preference at a primary election and signing a pledge to support that party's candidates violates the Hatch Act as applied to persons subject to its requirements, (Doc. 31, ¶ 18), "[a]n employee retains the right to vote as he chooses and to express his opinion on political subjects and candidates." 5 U.S.C. § 7323 (c). The Hatch Act's prohibition on political activity "encompasses only active participation in, on behalf of, or in connection with, the organized efforts of political parties or partisan committees, clubs and candidates." Blaylock v. United States Merit Systems Protection Board, 851 F.2d 1348, 1354 (11th Cir. 1988). "Congress expressly preserved the right of federal employees to express their own political opinions both privately and publicly." Id. at 1351. For example, implementing regulations explicitly permit a covered employee to "stand outside of polling places on election day and hand out brochures on behalf of a partisan political candidate or political party." 5 C.F.R. § 734.205 (2000). A covered employee therefore could not violate the Hatch Act by identifying his party preference or giving a pledge of support incident to voting in an Alabama primary.
For all the foregoing reasons, the plaintiff's claim under the Hatch Act, if any, is due to be dismissed.
CONCULSION
For the reasons set forth above, the plaintiff's motion for judgment is denied and the defendants' motions to dismiss are granted. Final judgment shall be entered accordingly by separate order.