Kozuszek, Nicole v. Brewer, Dale ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3224
N ICOLE K OZUSZEK and W ESLEY K OZUSZEK, JR.,
Plaintiffs-Appellants,
v.
D ALE B REWER, in her individual capacity, and
G EORGE N ELSON, in his individual capacity,
Defendants-Appellees.
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 05 C 394—Rudy Lozano, Judge.
A RGUED A PRIL 8, 2008—D ECIDED O CTOBER 8, 2008
Before K ANNE, W ILLIAMS, and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. Nicole Kozuszek and her
brother Wesley Kozuszek, Jr., lived in Porter County,
Indiana. On November 4, 2003, the Kozuszeks voted in
an Indiana general election, but because of questions
surrounding their residence, election officials spoiled (i.e.,
did not count) their ballots. Now the Kozuszeks have
sued two Porter County officials under 42 U.S.C. § 1983,
alleging that these officials violated the Kozuszeks’ federal
2 No. 07-3224
constitutional rights by improperly spoiling their ballots.
Because there is no evidence that these officials acted
willfully to impair the Kozuszeks’ votes, we affirm the
district court’s grant of summary judgment in the offi-
cials’ favor.
I. BACKGROUND
On October 5, 2003, about one month before the election,
Wesley Kozuszek reported his car stolen to the police in
Chesterton, a town of about 11,000 people in Porter
County. A police officer met Wesley at his Chesterton
apartment, which he had rented through May 2004. The
police report on the incident listed this Chesterton
address for Wesley and indicated that he resided there.
Wesley’s sister, Nicole Kozuszek, also provided a state-
ment listing the same Chesterton address as her “home.”
The Kozuszeks, however, had registered to vote based on
their parents’ address in the neighboring town of Porter,
which had a population of about 5,000. Because Wesley
and Nicole would be unable to vote in person on election
day, they had obtained absentee ballots. In particular,
Wesley Kozuszek was voting absentee because he was
working on election day as a Democratic poll watcher at
a Chesterton polling place.
About a week before the election, Chesterton Police Chief
George Nelson attended a training session for election
workers. Wesley was not at the meeting, but like the other
workers, he had submitted a “claim voucher” that indi-
cated where he wanted his paycheck mailed. Nelson
No. 07-3224 3
noticed that Wesley had reported a Porter address, but
recalled that the recent police report describing the theft
of Wesley’s car had listed a Chesterton address. Nelson
mentioned this discrepancy to Dale Brewer, a Republican
member of the Porter County Election Board and an
election official who happened to be near Nelson during
the training session.
Brewer claims she did not think about the matter again
until election day, when she saw Wesley volunteering at
the Chesterton precinct. Brewer approached Wesley and
asked him, “How do you like living in Chesterton?”
Brewer claims Wesley responded that he liked living in
Chesterton okay, but that he only slept there once in a
while. Wesley claims he told Brewer, “No, I don’t live
in Chesterton. I live at home with my mother in Porter.” In
any event, Brewer claims she thought Wesley’s response
was strange, so she decided to investigate further.
At Brewer’s request, the Chesterton police (who were
stationed in the same building where Wesley was work-
ing) provided Brewer with the police report of the car
theft. Brewer reviewed the report and separately con-
tacted the two other members of the Porter County Elec-
tion Board, Stankiewicz (a Democrat) and Bozik (a Republi-
can), to tell them about the discrepancy in the addresses.
The two other board members agreed with Brewer that
if there was a residence conflict, a challenge should be
issued.
Brewer then contacted Porter election personnel and
discovered that the Kozuszeks were registered to vote in
the town of Porter and were casting absentee ballots there.
4 No. 07-3224
Brewer went to the precinct where the Kozuszeks’ ballots
would be tallied and filled out a challenge form, listing
her reasons for the challenge as being the Chesterton
police report and a “3-0 vote election board.” She did not
mention her encounter with Wesley earlier that day
and did not provide Wesley’s claim voucher that listed
a Porter address.
Poll inspector Rita Newman did not rule on Brewer’s
challenge until the polls had closed, at which time she
spoiled the Kozuszeks’ ballots. Brewer and Nelson do not
contest the Kozuszeks’ claim that this spoliation was in
error.
On November 1, 2005, the Kozuszeks brought this suit
for monetary damages under 42 U.S.C. § 1983. They claim
that Brewer and Nelson violated their right to vote and
their due process and equal protection rights under the
United States Constitution. Specifically, the Kozuszeks
allege that Brewer challenged their votes because their
mother was a Democrat who was running for re-election
as Porter town council president. The Kozuszeks have
also brought supplemental claims under the Indiana
constitution and Indiana common law.
After denying a motion to dismiss, the district court
granted the defendants’ motion for summary judgment
on the Kozuszeks’ federal constitutional claims and
declined to exercise supplemental jurisdiction over the
state claims, which were dismissed without prejudice. The
Kozuszeks then filed this appeal, which challenges the
district court’s decision on their federal claims.
No. 07-3224 5
II. ANALYSIS
There was no willful impairment of the Kozuszeks’
right to vote.
Both parties agree that the Kozuszeks’ federal constitu-
tional claims are governed by Bodine v. Elkhart County
Election Bd., 788 F.2d 1270 (7th Cir. 1986), in which we laid
out the requirements for election fraud claims under
section 1983. We held that “section 1983 is implicated only
when there is ‘willful conduct which undermines the
organic processes by which candidates are elected.’ ” Id. at
1271-72 (quoting Hennings v. Grafton, 523 F.2d 861, 864 (7th
Cir. 1975)) (emphasis in Bodine). By “willful” we meant,
at a minimum, that the alleged perpetrators had acted with
the intent of undermining the electoral process or impair-
ing a citizen’s right to vote. See Kasper v. Bd. of Election
Comm’rs, 814 F.2d 332, 343 (7th Cir. 1987) (“[I]ntent is an
essential ingredient of a constitutional election fraud case
under § 1983.”); see Bodine, 788 F.2d at 1272 (plaintiffs’
section 1983 claim failed because at most it alleged “willful
neglect” and not “fraud or other willful conduct”). So,
construing all facts in the light most favorable to the
Kozuszeks, the crucial question is whether a reasonable
jury could conclude that Brewer and Nelson willfully
acted to spoil the Kozuszeks’ ballots. See Rawoof v. Texor
Petroleum Co., 521 F.3d 750, 755 (7th Cir. 2008).
As a preliminary matter, we note there is no evidence
that Nelson did anything wrong here. The only evidence
tying Nelson to anything material in this case is that:
(1) Nelson correctly noticed an inconsistency between
the Porter address that Wesley Kozuszek reported on his
6 No. 07-3224
claim voucher and the Chesterton address he reported
when his car was stolen, and (2) Nelson pointed out this
disparity to Brewer, an election official who could further
investigate the matter. No reasonable jury could conclude
on these facts that Nelson was part of some nefarious
scheme to spoil the Kozuszeks’ ballots. Nelson simply
reported a possible instance of voter fraud to an appro-
priate person who could handle the matter.
The Kozuszeks also hint at a Capulet/Montague-style
feud between Chesterton and Porter officials, which they
suggest might have tainted Nelson’s decisionmaking.
But the Kozuszeks provide little detail on the alleged beef
(the Kozuszeks’ attorney suggested at oral argument that
it related to annexation issues) and at any rate, the
Kozuszeks do not connect the dispute to Nelson. So this
allegation is just unsupported conjecture, which has no
place in our summary judgment analysis. See Joseph P.
Caulfield & Assocs. v. Litho Prods., 155 F.3d 883, 891 (7th
Cir. 1998).
The Kozuszeks have a somewhat stronger case against
Brewer, since she was the central figure involved in
challenging their votes. But the Kozuszeks present no
direct evidence that Brewer engaged in fraud or other
willful conduct. Instead, they point to a “mosaic” of
circumstantial evidence that they claim shows that Brewer
“willfully” undermined the election process. See Burks v.
Wis. Dept. of Transp., 464 F.3d 744, 750 n.2 (7th Cir. 2006)
(“The only difference between a claim under Title VII
and a claim under § 1983 is who can be named as a defen-
dant in the action.”); Sylvester v. SOS Children’s Vills. Ill.,
No. 07-3224 7
Inc., 453 F.3d 900, 903 (7th Cir. 2006) (“A case of discrimina-
tion [under Title VII] can [like a mosaic] be made by
assembling a number of pieces of evidence none mean-
ingful in itself, consistent with the proposition of
statistical theory that a number of observations each of
which supports a proposition only weakly can, when
taken as a whole, provide strong support if all point in
the same direction: ‘a number of weak proofs can add up
to a strong proof.’ ” (quoting Mataya v. Kingston, 371 F.3d
353, 358 (7th Cir. 2004))); Koszola v. Bd. of Educ., 385 F.3d
1104, 1109 (7th Cir. 2004) (a jury can infer intentional
discrimination in a Title VII case based on a “convincing
mosaic of circumstantial evidence” that “point[s] directly
to a discriminatory reason” (internal quotation marks
omitted)).
The Kozuszeks’ “mosaic” has two main pieces. First, the
Kozuszeks claim that Brewer waited until election day
to start investigating Wesley because she knew he would
be occupied and unable to thwart her last-minute chal-
lenge. Second, they claim that Brewer should have in-
formed the poll inspector that Wesley had told Brewer
that he lived in Porter and had submitted a claim voucher
listing a Porter address.
We agree with the district court that no reasonable
jury could conclude on these facts that Brewer acted
willfully to spoil the Kozuszeks’ ballots. First, while Brewer
could have begun looking into Wesley’s inconsistent
addresses after talking with Nelson a week before the
election, she was not required to do so. More importantly,
the Kozuszeks have presented no evidence that Brewer
8 No. 07-3224
delayed her investigation for an impermissible reason.
Brewer, on the other hand, has a rational explanation for
the delay—when Nelson told her about the conflicting
addresses, she didn’t know whether Wesley was registered
to vote, and if so, where he was registered. She only
became suspicious of Wesley after she ran into him on
election day and he answered her question about his
residence in a strange way that conflicted with what was
on the police report. The Kozuszeks have not presented
any evidence that casts doubt on Brewer’s explanation.
Second, even though Brewer could have informed the
poll inspector about the claim voucher and her earlier
conversation with Wesley, there is no evidence that she
violated her job duties by failing to do so. And again, the
Kozuszeks do not provide any evidence that Brewer
deliberately withheld this information so that their
ballots would be spoiled. In fact, the poll inspector
already had all the information she needed to resolve
the challenge, as she had evidence that Wesley and
Nicole didn’t live in Porter, where they were registered to
vote. See Ind. Code. § 3-11-10-21 (2003) (“The vote of an
absentee voter may be challenged at the polls for the
reason that the absentee voter is not a legal voter of the
precinct where the ballot is being cast. The precinct
election board may hear and determine a challenge
under this section as though the ballot was cast by the
voter in person.”); id. § 3-11-10-22; id. § 3-11.5-4-15; id.
§ 3-11.5-4-16. And there is no evidence that the poll
inspector did not exercise her own judgment, independent
of Brewer, when she decided to spoil the Kozuszeks’
ballots.
No. 07-3224 9
The Kozuszeks also claim that Brewer “misrepresented”
to the poll inspector that her challenge was pursuant to a
“3-0 vote election board.” But there is no indication this
was a willful misrepresentation. Brewer had contacted the
two other board members and told them about the poten-
tial residency problem. They agreed with Brewer that a
challenge would be appropriate if there was an address
discrepancy, which Brewer proceeded to confirm. So
even if the other board members technically did not “vote”
on the matter, they certainly approved of Brewer’s
actions, and her description of a “3-0 vote” does not
suggest she acted willfully.
The Kozuszeks further allege that Brewer spoiled their
ballots because she was a Republican commissioned to
help defeat Porter Democrats, including the Kozuszeks’
mother. Apart from being pure speculation, the Kozuszeks’
allegation implies that a party member aggrieved by an
election can successfully sue under section 1983 simply
because a rival party administered the election. That
neither makes sense nor accords with the proper role of
the federal courts. See Bodine, 788 F.2d at 1272 (“section
1983 does not cover garden variety election irregularities”
(characterizing Griffin v. Burns, 570 F.2d 1065, 1076 (1st
Cir. 1978))); see also Dieckhoff v. Severson, 915 F.2d 1145,
1148 (7th Cir. 1990) (noting that courts must balance
protecting “the fundamental right to vote enshrined in
the first and fourteenth amendments with the avoidance
of excessive entanglement of federal courts in state and
local election matters (i.e., federalism)”). At any rate, one
of the board members who gave the go-ahead to Brewer
was a Democrat (Stankiewicz), which takes the sting out
of the Kozuszeks’ allegation.
10 No. 07-3224
The Kozuszeks also criticize Brewer for not asking
Wesley to further explain his residency situation when
she ran into him, and they question her decision to look
into Nicole Kozuszek’s residency, given that Wesley was
the one with the conflicting addresses. Like the other
pieces in the “mosaic,” we do not see how these actions
show that Brewer violated her job duties or engaged in
willful conduct. Regarding Wesley, it’s not clear what
further questioning would have accomplished, since he
claims that he had already and unequivocally told
Brewer that he lived in Porter, not Chesterton. Regarding
Nicole, Brewer saw on the police report that she had also
listed the Chesterton address as her “home.” Brewer
apparently knew of Nicole (remember it’s a small commu-
nity) and had thought she was still living with her folks
in Porter. So Brewer became curious whether Nicole had
changed her voter registration information after her
apparent move to Chesterton. The Kozuszeks present no
evidence that casts doubt on this explanation or
suggests that Brewer was on a Kozuszek witch hunt. So
there was no constitutional violation here.1
1
Additionally, because Brewer and Nelson did not violate the
Kozuszeks’ constitutional rights, they are shielded from liability
by qualified immunity, which generally protects state actors
from civil damages “insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982); Miller v. Jones, 444 F.3d 929, 934 (7th
Cir. 2006); see also Saucier v. Katz, 533 U.S. 194, 201-02 (2001).
No. 07-3224 11
One final observation. In addition to finding that the
defendants had not acted willfully, the district court noted
that “[t]here is no evidence that any elected position in
[the] election was decided by two or less votes. As such,
there can be no real argument that the [spoliation] of these
two votes either undermined the election or caused the
election to be unfair.” This holding implies that any
level of election fraud is fine, so long as the fraud doesn’t
impact the final results of an election. But an election is
more than just a sum total of votes. It is also about the
act of voting—an individual’s ability to express his or her
political preferences at the ballot box. An official who
willfully interferes with this act violates the Constitution,
regardless whether the vote would have affected the
election outcome. See Bodine, 788 F.2d at 1271-72. For
example, a Democrat whose ballot is willfully spoiled can
sue under section 1983 even if she lives in the “reddest” of
states (where her candidate will lose) or the “bluest” of
states (where her candidate will win regardless of her
vote). So we expressly disavow the district court’s rea-
soning on this point.
III. CONCLUSION
The judgment of the district court is A FFIRMED.
10-8-08