Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 83 C 383 -- Richard A. Posner, Judge.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.
ESCHBACH , Circuit Judge. The primary question presented in this appeal is whether proof of a wholly nonracial but politically motivated conspiracy among private parties to mislead voters in a city primary election establishes a right to relief under 42 U.S.C. § 1985(3). The district court held that it did not and, for the reasons stated below, we will affirm.
The facts of this case, which are not in dispute,*fn1 are set forth in the district court's opinion, 585 F. Supp. 1084 (in which it ruled on the post-verdict motions), as follows:
In Gary, winning the Democratic primary is tantamount to winning the general election [In 1983] the Democratic primary was held on May 3. The major offices at stake were Mayor, City Clerk, and City Judge. The favorites in these races, all incumbents, were Richard Hatcher, for Mayor; Barbara Wesson, for City Clerk; and Douglas Grimes, for City Judge. Mayor Hatcher is the long-time Mayor of Gary, and the ticket of hatcher, Wesson, and Grimes was the Administration ticket. But there were other candidates in each of these races. Entering the voting booth, a voter interested in just these three offices would have seen, reading from left to right on the voting machine, a row with 10 names in it, in groups of three, four, and three, each group being under the name of an office (in order, Mayor, City Clerk, and City Judge). To the right of all these names were the names of candidates in aldermanic races. The first three names on the ballot -- Thomas Crump, Robert Gordon, and Richard Gordon Hatcher -- were the candidates for Mayor, The next four -- Kenneth S. Bass, John Damian, John A. Grimes, and Barbara Leek Wesson -- were the candidates for City Clerk. And the next three -- Lloyd Buford Fisher, Charles H. Graddick, and Douglas H. Grimes -- were the candidates for City Judge. In the Mayor's race the "serious" candidates were Crump and Hatcher. They got 23,150 and 27,835 votes respectively, and the third candidate got 1,217. In the City Clerk's race Miss Wesson was the only serious candidate, and she got 26,069 votes. Bass and Damian got 3,343 and 4,192 votes respectively, and John Grimes a surprising 8,957. In the City Judge's race Douglas Grimes and Graddick were the serious candidates, and they got 19,373 and 22,174 votes respectively, and the third candidates 3,285. Graddick went on to win the general election (as did the other Democratic nominees), and he took office on January 1, 1984. Douglas Grimes brought this lawsuit shortly after the primary election and asked for a preliminary injunction to prevent Graddick from running in the general election as the Democratic nominee for City Judge; but this was denied and the matter was set for trial on the merits.
Although John Grimes did not win the City Clerk's race, the fact that this political unknown who had done no significant campaigning got almost 9,000 votes was surprising. And since he had the same last name as Douglas Grimes, and Douglas Grimes, also contrary to expectations, lost the election for City Judge, Douglas Grimes suspected foul play and began to investigate. The investigation revealed that John Grimes (who is now 43 years old) had been at the time of the campaign and election an unemployed carpenter, almost blind as a result of glaucoma, with little education, no steady source of income (although he picked up a few dollars a week doing handyman work for his landlord, and now receives social security disability benefits), and no previous involvement in politics. He has never in his life voted in a primary or general election, and did not vote in the March 1983 primary in which he was a candidate. He has never had the faintest idea of the duties of a City Clerk. It is evident, and no one denies, that John Grimes did not stand for election to this post on his own initiative. he was put up by somebody; the question is by whom.
Defendant Michael Brown, an unemployed 27-year-old, testified that he decided to get into politics by managing someone's campaign. He knew John Grimes, though not well; and he testified that he thought that Grimes would be a good candidate for City Clerk in the May 1983 primary. He was unable to give any explanation of why he thought so, beyond remarking that he didn't think Grimes' handicap should be disqualifying. The deadline for filing as a candidate for the May primary was noon on March 4. Brown testified that he borrowed a car and drove John Grimes to the place for filing. He testified that he knew that a candidate had to be a registered voter, and learned somehow that Grimes was not registered, so the first thing they did when they arrived was to have Grimes register. He did so and then signed the filing form, which was time-stamped 11:59 a.m. on March 4.
Grimes and Brown then went their separate ways. Both testified that they campaigned for Grimes' election, but admitted that their campaigning was limited to sporadic personal canvassing in their respective neighborhoods. Brown's campaigning did not go beyond buying an occasional drink for an acquaintance in the bars that he frequented, and urging them to vote for Grimes. There were no campaign rallies or speeches, campaign leaflets, or billboards or other advertising; there were no campaign workers. The campaign expenditure form that Grimes filed after the election disclosed expenditures of zero.
John Grimes and Michael Brown were connected to the other defendants -- who are, besides Judge Graddick, his campaign manager Bill Smith and his campaign coordinator Bob Lacy -- in several ways. Grimes and Smith have known each other for many years. Grimes has a daughter by Smith's sister, and Grimes and Smith regard each other like the brothers-in-law they would be if Grimes had married Smith's sister. Grimes also has known Lacy and Lacy's wife well for many years. Brown is a friend of Smith -- a particularly good friend -- and of Lacy, and he worked under Lacy in the Graddick campaign, in security, until he began managing John Grimes' "campaign"; and there was testimony that he continued working in the Graddick campaign for a short time after he became Grimes' campaign manager. Grimes encountered both Smith and Lacy several times during the campaign, and afterward Grimes asked Smith to give him a ride to Grimes' lawyer's office so that he could get help with his campaign expenditure form, and Smith obliged him.
As part of his investigation of the election outcome Douglas Grimes went looking for John Grimes to talk to him about the results, and one of John Grimes' sisters, Betty Grimes, according to her testimony, called Bob Lacy to find out what she should do. When she looked in the phone book (apparently referring to a personal book of phone number rather than a telephone directory), Bob Lacy's name "just fell out," and she called him. He denied that she had called him but the jury was entitled to disbelieve his denial, especially since Betty Grimes was a friendly witness to her brother and the other defendants. Also after the election, a journalist tried to interview John Grimes (the "mystery Grimes" as he was then called, because he had done so well in the election yet no one had heard of him) in a parking lot. The journalist testified that when he insinuated laughingly that Grimes had been put up to run for City Clerk in order to help Graddick's campaign against Douglas Grimes, Brown, after a moment's hesitation, joined in the laughter. Finally, John Grimes' bank book which was put into evidence, showed two deposits totalling $700 in mid-March, which was six weeks before he began receiving social security disability benefits. He was unable to account convincingly for these receipts. In fact, he denied having received this money, despite what the bank book (which he acknowledged was his) showed.
Although there was no direct evidence that Graddick's campaign directors, Smith and Lacy, put up Grimes to run for City Clerk, the circumstantial evidence reviewed above provided an adequate basis for the jury to infer that they did so -- both of them; for the jury was entitled to find that Smith and Lacy, in view of their acquaintance with Grimes, must have discussed the matter with each other. The jury was also justified in finding that Graddick had not joined the conspiracy. Although Smith and Lacy testified that they discussed all strategy matters with Graddick, the jury was not required to believe that, or indeed any, part of their testimony. Graddick testified in his own behalf and the jury may have believed that he did not know about the scheme, and was not the kind of man to engage in such tricks. Whether the jury was right or wrong, there was no inconsistency in its exonerating Graddick but finding that the other four defendants were participants in the conspiracy.
As to the effects of the conspiracy: lay and expert testimony established a reasonable probability that many people, enough to swing the election to Graddick, voted for Hon Grimes (whose name appeared before Douglas Grimes' on the ballot, reading from left to right) thinking they were voting for Douglas Grimes. Douglas Grimes' co-plaintiffs so testified, as did another voter in the May primary. And assisted by testimony of the plaintiffs' well-qualified expert witness, Dr. Gerald Wright, a political scientist who teaches at the University of Indiana [sic] at Bloomington, the jury was entitled to conclude that the confused voters who testified were typical of many Gary voters. Granted, the evidence regarding the effects of the conspiracy was not entirely satisfactory. The plaintiffs actually presented two inconsistent theories of how the voters were confused. The lay witnesses testified that they voted for John thinking that he was Douglas, and did not vote in the City Judge's race because they recognized his name. They lay witnesses' theory seems the more plausible but is inconsistent with the heavy turnout in the City Judge's race. Their testimony would lead one to expect that the turnout should have been very light because thousands did not vote in the race at all, thinking that they had ...