UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
July 5, 1968
CHARLES R. BARR, AND THOMAS W. NOVOTNY, INDIVIDUALLY, AND REPRESENTING THE MEMBERS OF THE UNINCORPORATED ASSOCIATION OF ILLINOIS VOTERS, MORE COMMONLY KNOWN AS OPERATION EAGLE EYE, AND DAVID R. REED, INDIVIDUALLY, ON BEHALF OF THEMSELVES AND ALL OTHER ILLINOIS VOTERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
RUTHIE MAE CHATMAN, BETTY JEAN BUSSIE, RUBY ROBERTS, MATTIE M. TAYLOR AND LILLIE RUBEN, DEFENDANTS-APPELLEES
Kiley, Swygert and Fairchild, Circuit Judges.
SWYGERT, Circuit Judge.
Charles R. Barr, Thomas W. Novotny,*fn1 and David R. Reed instituted a class action pursuant to FED.R.CIV.P. 23 on behalf of "all Illinois residents who voted for the election of a United States Senator [on] November 8, 1966." The complaint alleged that the defendants, Ruthie Mae Chatman, Betty Jean Bussie, Ruby Roberts, Mattie M. Taylor, and Lillie Ruben,*fn2 in violation of 42 U.S.C. § 1983, engaged in an "intentional miscount of the ballots cast * * * in the 47th Precinct of the 24th Ward of the City of Chicago, which misconduct necessarily distorted the outcome of the election by changing the weight of each vote cast on November 8, 1966."*fn3
Four-fold relief was requested by the plaintiffs. First, they sought a permanent injunction restraining the defendants from ever holding a public office or engaging in a public occupation, "whether it be as an employee or representative of any Federal, State of Local governmental authority or body." Second, they sought "nominal damage" in the amount of $3,822,724, representing one dollar for each Illinois resident who voted in the election. Third, they sought punitive damages in the amount of $1,911,362. Fourth, they sought that all damages be paid "to the State of Illinois to be used by the State for all of the people of the State of Illinois." After the defendants filed their answer, the district court dismissed the case on the grounds that it was an improper class action*fn4 and that the complaint failed to state a claim on which relief could be granted.
We agree that the district court properly dismissed the plaintiffs' complaint. Although judicial protection of the right to vote, against debasement or dilution, is essential to a representative democracy, a complaint brought under 42 U.S.C. § 1983, which alleges any voting irregularity, however slight, does not thereby automatically state a claim for relief. The plaintiffs' complaint does not allege, for example, that any voters were barred from a polling place nor that any votes cast were not counted. Instead, the plaintiffs contend that there was an alleged counting irregularity in one precinct in the entire state.
We do not believe that this alleged dilution of the right to vote, if it be a dilution at all, sets forth an injury cognizable under section 1983. Our statement in a recent case, in which we sustained the dismissal of a complaint brought under this section, alleging election irregularities, is pertinent:
§ 1983 is designed for the redress, through federal court action, of a party who is, or a class of persons who are, injured by subjection to a deprivation of a constitutional right, * * not for the enforcement of abstract rights nor for redress for conduct, which although it constitutes a public wrong * * * the only impact resulting therefrom is that which the individual who seeks redress shares in common with all members of the public, without specific individual injury to himself. Manion v. Holzman, 379 F.2d 843, 845 (7th Cir. 1967).
What the plaintiffs are here attempting is to convert activities on the part of election judges which may have amounted to a possible criminal offense into an alleged deprivation of the rights of over three million Illinois residents who voted in the November 1966 senatorial election.
Several considerations lead us to conclude that this attempt was improper. First, the alleged misconduct had no effect on the results of the election. Second, the election was concluded long ago, and the victor in that election has taken his rightful place in the United States Senate. Third, there is no allegation that any of the defendants are now serving or are likely in the future to serve as election judges. Fourth, none of the voters in the precinct in question, who would have been much more directly affected by any counting irregularities, sought either to join in this action or to institute an action of their own. Fifth, and most significantly, the plaintiffs pray that any recovery which they might obtain be paid to the State of Illinois for the use of the people of Illinois. This prayer serves to undermine any claim that the plaintiffs, either individually or as a group, sustained any injury to themselves.*fn5
The judgment of the district court is affirmed.