472 F2d 121 Pettengill v. Putnam County R-1 School District Unionville Missouri

472 F.2d 121

Larry PETTENGILL et al., Appellants,
al., Appellees.

No. 72-1532.

United States Court of Appeals,
Eighth Circuit.

Submitted Jan. 12, 1973.
Decided Jan. 18, 1973.
Rehearing Denied Feb. 12, 1973.

Frick & Mayberry, Kirksville, Mo., filed brief for appellants.

Lawrence M. Berkowitz, Kansas City, Mo., filed brief for appellees.

Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, District Judge.*



The appellants, property owners and residents of the Putnam County R-1 Reorganized School District of Putnam County, Missouri, brought an action in Federal District Court in their own behalf and on behalf of all those similarly situated to set aside a school bond election held by the appellee-school district on October 19, 1971. Appellants contended that certain election irregularities deprived them of their right to a fundamentally fair election and of their right to have their votes undiluted by illegal votes cast in the election, and that these irregularities subject the property of appellants to a taking without due process of law. The district court dismissed the complaint for want of jurisdiction. This appeal followed. We affirm the action of the district court.


Appellants alleged the following facts in their complaint: That appellee-school board held an election on a proposed $1,100,000 school bond issue, with the bonds to be retired by the levy of a property tax; that 1,466 votes were cast in favor of the proposition, 726 being cast against; that the proposition was declared to have passed by a margin of five votes over the required two-thirds majority; that appellants believed that five electors personally voting and six electors casting absentee ballots were not qualified to vote because they did not satisfy the residency requirements prescribed by law; that two electors were not qualified to vote because they were not of lawful age when they applied for absentee ballots; that 116 electors cast absentee ballots which were void since there were irregularities in the application, delivery or execution of these ballots; that on November 5, 1971, appellees were informed of these irregularities and were requested to declare that the bond election had failed of passage or to hold a hearing on these irregularities; that these requests were denied.


Appellants attempt to posit the existence of federal jurisdiction on the theory that the board of education of the appellee-school district has diluted appellants' legal votes by counting illegally cast votes and that such (state) action amounts to a deprivation of appellants' civil rights. According to appellants, the complaint alleges facts actionable under the provisions of 42 U.S.C. Sec. 1983, with federal jurisdiction resting either upon 28 U.S.C. Sec. 1343, the jurisdictional counterpart to Sec. 1983, or upon 28 U.S.C. Sec. 1331, which authorizes federal jurisdiction for civil actions of a requisite amount arising under the Constitution, laws, or treaties of the United States.


We reject this theory. Appellants cite no cases, and we have found none, which authorize a federal court to be the arbiter of disputes over whether particular persons were or were not entitled to vote or over alleged irregularities in the transmission and handling of absentee voter ballots.


In Powell v. Power, 436 F.2d 84 (2d Cir. 1970), six voters in a congressional primary election sought the intervention of the federal court, alleging that state officials had permitted a number of individuals to cast ballots in the election, which individuals were not qualified to vote under state law. In affirming the district court's denial of relief sought under the Voting Rights Act of 1965 and the Civil Rights Act of 1871, 42 U.S.C. Sec. 1983, the Court said:


In the plaintiffs' view, [these] federal statutes comprehensively protect their ballots against dilution by illegal voting, whether or not the dilution was wilful or knowing. It is appropriate to note at the outset that the plaintiffs do not claim any discrimination because of race. Thus, they face a considerable burden of persuasion in asserting so sweeping and novel a conception, one apparently never before asserted, so far as reported cases reveal. Were we to embrace plaintiffs' theory, this court would henceforth be thrust into the details of virtually every election, tinkering with the state's election machinery, reviewing petitions, registration cards, vote tallies, and certificates of election for all manner of error and insufficiency under state and federal law. [Id. at 86.]


We here adopt and apply this rationale. In essence, the appellants' complaint asks the federal court to oversee the administrative details of a local election. We find no constitutional basis for doing so in the absence of aggravating factors such as denying the right of citizens to vote for reasons of race, see United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960), or fraudulent interference with a free election by stuffing of the ballot box, see United States v. Saylor, 322 U.S. 385, 64 S.Ct. 1101, 88 L.Ed. 1341 (1944), or other unlawful conduct which interferes with the individual's right to vote, see 42 U.S.C. Sec. 1985. No similar circumstance is alleged in the complaint in this case.


Appellants complain that the state courts of Missouri will not afford them a forum for their complaint. See Nichols v. Reorganized School District No. 1 of Laclede County, 364 S.W.2d 9 (Mo.1963). The lack of a state remedy to appellants does not alone operate to give federal jurisdiction over their cause. Missouri law does permit challenges to absentee ballots, which challenges may be presented to election officials for review. Mo.Rev.Stat. Sec. 112.080 (Supp. 1972), V.A.M.S.


Accordingly, we find no basis for federal intervention in this local election dispute and we affirm the judgment of dismissal by the district court.


Eastern District of Michigan, sitting by designation