American Civil Liberties Union of Ohio, Inc. v. ROBERT TAFT, Governor of Ohio

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0327P (6th Cir.)
File Name: 04a0327p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AMERICAN CIVIL LIBERTIES
UNION OF OHIO, INC.,
Plaintiff-Appellant,
v.
ROBERT TAFT, Governor of
Ohio,
Defendant-Appellee.
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No. 02-3924
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 02-00766—Edmund A. Sargus, Jr., District Judge.
Argued: January 28, 2004
Decided and Filed: September 27, 2004
Before: MARTIN, RYAN, and MOORE, Circuit Judges.
_________________
COUNSEL
ARGUED: Scott T. Greenwood, AMERICAN CIVIL
LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,
Ohio, for Appellant. Arthur James Marziale, Jr., OFFICE OF
THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,
2 ACLU v. Taft No. 02-3924
for Appellee. ON BRIEF: Raymond Vasvari, AMERICAN
CIVIL LIBERTIES UNION OF OHIO FOUNDATION,
Cleveland, Ohio, for Appellant. Arthur James Marziale, Jr.,
Elizabeth L. Schuster, OFFICE OF THE ATTORNEY
GENERAL OF OHIO, Columbus, Ohio, for Appellee. Keith
A. Wilkowski, VASSAR, DILLS & DAWSON, Toledo,
Ohio, for Amicus Curiae.
MOORE, J., delivered the opinion of the court, in which
MARTIN, J., joined. RYAN, J. (pp. 15-20), delivered a
separate dissenting opinoin.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. In this appeal,
we conclude that Article I, section 2, clause 4 of the United
States Constitution is mandatory, imposing upon a state
executive the duty to issue a writ of election when one of her
state’s seats in the United States House of Representatives
(“House”) becomes vacant during a congressional term.
Because Robert Taft, Governor of Ohio (“Governor Taft”),
refused to issue a writ of election when one of Ohio’s seats in
the House became vacant due to the expulsion of James A.
Traficant, Jr. (“Traficant”) and more than five months
remained before the next Congress would convene, we hold
that Governor Taft violated Article I, section 2, clause 4 and
denied the voters in Ohio’s Seventeenth Congressional
District, including members of the American Civil Liberties
Union (“ACLU”), their rights to vote and to equal
representation in violation of the Fourteenth Amendment.
Accordingly, we REVERSE the district court’s decision and
REMAND so that the district court may award appropriate
declaratory relief and attorney’s fees to the ACLU.

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No. 02-3924 ACLU v. Taft 3
1At the time he was expelled from the House, Traficant represented
the “old” Seventeenth District, which was comprised of Mahoning and
Columbiana C ounties and parts of Trumbell County. In 2002, however,
Ohio redrew its congressional districts. Tim Ryan, who was elected in the
November 5, 20 02 general election, represents the “new” S eventeenth
District, which is comprised of parts of Mahoning, T rumb ull, Portage, and
Summit Counties. The former Seventeenth Congressional District no
longer existed when Traficant was expelled in July 2002, but any special
election to fill his seat would have had to follow the old bounda ries.
I. BACKGROUND
Traficant represented the Seventeenth Ohio Congressional
District (“the District”) from January 1985 through July 24,
2002, during the 99th through 107th Congresses. On July 24,
2002, the House passed House Resolution 495, expelling
Traficant from the House. Subsequently, Governor Taft
publicly announced that he would not call a special election
to fill the House vacancy left by Traficant’s expulsion.
Governor Taft decided, after consulting with local elected
officials, not to hold a special election, citing the cost of an
election, the difficulty presented by redistricting that was to
take effect for the regularly scheduled election in 2002,1 the
small length of time an elected replacement could be expected
to serve, and the uninterrupted continuation of constituent
services by the Clerk of the House. The 107th Congress was
scheduled to adjourn on October 3, 2002; however, it did not
adjourn sine die until November 22, 2002. Tim Ryan was
elected to the House by the “new” Seventeenth District at a
general election held on November 5, 2002, but did not take
office until January 3, 2003. Therefore, the “old”
Seventeenth District was without representation in the House
and had diminished constituent services from July 2002 until
January 2003.
On August 5, 2002, the ACLU filed a verified complaint in
the United States District Court for the Southern District of
Ohio, asserting a § 1983 claim and pendent state-law claims
against Governor Taft. The ACLU prayed for injunctive and
4 ACLU v. Taft No. 02-3924
2W e note tha t the AC LU filed its notice of appeal on August 19,
2002, specifying that the ACLU was appealing the district court’s
August 19, 2002 order denying “preliminary and permanent injunctive
relief and entering judgment for the Defendant.” Joint Appendix (“J.A.”)
at 169 . The district co urt’s August 19 written order, however, only denies
the ACLU’s motion for a temporary restraining order. In its August 19
oral ruling, the district court denied from the bench all injunctive relief,
“be it a temporary restraining order and a preliminary injunction or a
permanent injunction.” J.A. at 228. A final written judgment in the case
was entered on August 27, 2002. Therefore, we have jurisdiction over the
appeal pursuant to Fed. R. A pp. P . 4(a)(2). See Metro. Life Ins. Co. v.
Ma rsh, 119 F.3d 41 5, 418 n.3 (6th Cir. 1997).
declaratory relief, requiring Governor Taft to call a special
election to fill the House vacancy in the District, and for
reasonable attorney’s fees pursuant to 42 U.S.C. § 1988. On
August 19, 2002, the district court issued oral and written
orders denying injunctive relief. On August 26, 2002, the
district court issued an opinion and order denying the
ACLU’s motion for a temporary restraining order and a
preliminary injunction and dismissing the case, thereby
denying a permanent injunction as well. On August 23, 2002,
the ACLU filed a motion in the Sixth Circuit requesting
emergency injunctive relief pending appeal, which a panel of
this court denied on September 4, 2002.
The district court had jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1343, and 1367. We have jurisdiction over the
appeal pursuant to 28 U.S.C. § 1291.2
II. ANALYSIS
A. Standard of Review
We review a district court’s decision to deny a preliminary
injunction for abuse of discretion. Blue Cross & Blue Shield
Mut. v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322
(6th Cir. 1997). We also review a district court’s decision to
deny a permanent injunction for abuse of discretion, and in
doing so, we review the district court’s factual findings for

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No. 02-3924 ACLU v. Taft 5
clear error and review the district court’s legal conclusions de
novo. Sec’y of Labor v. 3re.com, Inc., 317 F.3d 534, 537 (6th
Cir. 2003). Although the district court did not specifically
rule on the ACLU’s request for declaratory relief, instead
dismissing the case in toto after ruling on the ACLU’s motion
for preliminary injunctive relief, we review a “district court’s
exercise of discretion under the Declaratory Judgment Act,
28 U.S.C. § 2201(a), for abuse of discretion.” Scottsdale Ins.
Co. v. Roumph, 211 F.3d 964, 967 (6th Cir. 2000).
B. Standing and Mootness
Jurisdiction, including standing, is “‘assessed under the
facts existing when the complaint is filed.’” Cleveland
Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 524 (6th
Cir. 2001) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 570 n.4 (1992)), cert. denied, 535 U.S. 971 (2002). In
order to meet the standing requirements derived from Article
III,
a plaintiff must show: “(1) it has suffered an ‘injury in
fact’ that is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the
defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a
favorable decision.”
Id. at 523-24 (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., 528 U.S. 167, 180-81 (2000)). To bring suit on
behalf of its members, an association must show “‘its
members would otherwise have standing to sue in their own
right, the interests at stake are germane to the organization’s
purpose, and neither the claim asserted nor the relief
requested requires the participation of individual members in
the lawsuit.’” Id. at 524 (quoting Friends of the Earth, Inc.,
528 U.S. at 181).
6 ACLU v. Taft No. 02-3924
The ACLU filed the complaint in this action “on behalf of
its members who reside in and who are electors in the
Seventeenth Ohio Congressional District.” J.A. at 6 (Compl.
¶ 3). In this case, the ACLU has demonstrated that its
members would have had “standing to sue in their own right.”
Cleveland Branch, N.A.A.C.P., 263 F.3d at 524. The ACLU
submitted affidavits from Louise Lefkort, Robert H.
Sacherman, and Carol C. Sacherman, who were all members
of the ACLU, resided in the “old” Seventeenth District, were
registered to vote in that district, and desired to vote in a
special election to fill the House seat left vacant by the
expulsion of Traficant. These members had suffered an actual
injury, as they were without representation in the House and
had been threatened with the imminent denial of their right to
vote. This injury was fairly traceable to Governor Taft’s
actions because Governor Taft announced that he was not
going to issue a writ of election calling for a special election.
This injury would have been redressable by injunctive and
declaratory relief, in that an injunction requiring Governor
Taft to issue a writ of election would have allowed residents
of the district to exercise their right to vote and to regain
representation in the House.
The ACLU has also shown that the interests at stake in this
case are germane to the organization’s purpose. The ACLU
submitted an affidavit from its Executive Director, Christine
Link, explaining the organization’s purpose as follows: “The
object of this organization is to aid in maintaining and
extending constitutional and other fundamental rights,
liberties, privileges, and immunities, and to take all legitimate
actions in furtherance of that object without political
partisanship.” J.A. at 161 (Link Aff.) (emphasis in original).
This case addresses citizens’ right to vote and right to equal
representation, which falls squarely within the ACLU’s
purpose of guaranteeing constitutional and fundamental
rights. Finally, this action does not require the participation
of individual members of the organization.

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No. 02-3924 ACLU v. Taft 7
While standing is assessed at the outset of the litigation, a
case may become moot during the course of litigation,
depriving the court of jurisdiction. Cleveland Branch,
N.A.A.C.P., 263 F.3d at 524-25. The doctrines of standing
and mootness serve different purposes: “In essence, standing
concerns only whether a plaintiff has a viable claim that a
defendant’s unlawful conduct ‘was occurring at the time the
complaint was filed’ while mootness addresses whether that
plaintiff continues to have an interest in the outcome of the
litigation.” Id. at 525 (citations omitted). These different
purposes are reflected in well-established exceptions to the
mootness doctrine, including the doctrine that a case will not
become moot if the injury is capable of repetition, while
evading review. Friends of the Earth, Inc., 528 U.S. at 190.
At this time, the 108th Congress has convened; therefore,
we can no longer provide appropriate injunctive relief. We
can, however, still award declaratory relief and attorney’s
fees, provided the case has not become moot. Vacancies in
the House can happen near the end of a congressional term,
making it difficult for litigation to provide an effective
remedy. See Jackson v. Ogilvie, 426 F.2d 1333, 1337 (7th
Cir.) (noting, while treating an identical situation, that the
case would not be mooted by the inappropriateness of an
injunction, that plaintiffs would be entitled to declaratory
judgment, and that cases “of this type in the election field are
peculiarly ‘capable of repetition, yet evading review.’”
(quoting Moore v. Ogilvie, 394 U.S. 814, 816 (1969)), cert.
denied, 400 U.S. 833 (1970). In fact, since this case was
filed, another House vacancy occurred in Ohio’s Third
Congressional District due to the resignation of Tony Hall to
take a position in the Bush administration. We conclude that
the injury involved in this case is capable of repetition, while
evading review, and thus is not moot.
C. Laches
We agree with the district court’s conclusion that the
ACLU’s action is not barred by the doctrine of laches. Where
8 ACLU v. Taft No. 02-3924
a plaintiff seeks solely equitable relief, his action may be
barred by the equitable defense of laches if (1) the plaintiff
delayed unreasonably in asserting his rights and (2) the
defendant was prejudiced by this delay. Brown-Graves Co.
v. Central States, Southeast and Southwest Areas Pension
Fund, 206 F.3d 680, 684 (6th Cir. 2000). In this case,
Governor Taft announced on July 25, 2002 that he was not
going to call a special election to fill the vacancy in the
District. The ACLU filed on August 5, 2002, eleven days
later, its complaint, its motion for a temporary restraining
order and preliminary injunction, and its supporting
memorandum. It is true that in Kay v. Austin, 621 F.2d 809,
813 (6th Cir. 1980), we held that a plaintiff seeking to be
named on a presidential primary ballot was barred from
obtaining injunctive relief because he delayed bringing suit
until twenty-five days after he knew the choice of candidates
had been made. In Kay, however, the defendant Secretary of
State introduced evidence specifically demonstrating how this
short delay had prejudiced the defendant, in that the Secretary
provided evidence that most of the costs associated with the
elections preparations had been expended during this delay.
Id.
In this case, each day that passed may have made it more
difficult to hold a special election; however, there is no
evidence in the record indicating specifically how this short
delay prejudiced Governor Taft. Likewise, there is no
evidence that Governor Taft had expended money or made
alternate preparations during the delay. We conclude that the
passage of eleven days was not unreasonable delay.
Moreover, we conclude that Governor Taft has not
sufficiently demonstrated that he was prejudiced by this
delay.
D. Article I, Section 2, Clause 4
Article I, section 2, clause 4 of the United States
Constitution addresses the mechanism for filling vacancies in
the House that occur during a congressional term, providing:

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No. 02-3924 ACLU v. Taft 9
“When vacancies happen in the Representation from any
State, the Executive Authority thereof shall issue Writs of
Elections to fill such Vacancies.” Article I, section 4, clause
1 gives primary control over the election of Senators and
Representatives to the states, providing: “The Times, Places
and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Place of
chusing Senators.” Congress, in turn, has enacted 2 U.S.C.
§ 8, indicating that states have the authority to determine the
time of elections, providing: “The time for holding elections
in any State, District, or Territory for a Representative or
Delegate to fill a vacancy, whether such vacancy is caused by
a failure to elect at the time prescribed by law, or by the
death, resignation, or incapacity of a person elected, may be
prescribed by the laws of the several States and Territories
respectively.” The district court concluded that the
considerable discretion given to state government officials to
determine election procedures, particularly the discretion to
set a time for a special election to replace a Representative,
applied to the decision of whether to hold such a special
election at all. The ACLU argues that Article I, section 2,
clause 4 is mandatory; therefore the government must call for
a special election.
Given the infrequency of House vacancies, and the even
greater infrequency of governors refusing to call special
elections to fill them, only one case, Jackson v. Ogilvie, deals
with such a situation. Jackson arose when the governor of
Illinois refused to call a special election after the death of a
Representative on August 13, 1969. 426 F.2d at 1334.
Voters brought suit on December 16, 1969, and “the district
court dismissed the action for want of jurisdiction” on March
16, 1970, finding the rights asserted too insubstantial to
support jurisdiction, as “the relatively short period in which
the Sixth District will remain unrepresented” was not enough
to raise constitutional questions. Id. at 1334-35. The Seventh
Circuit reversed in an opinion issued on May 6, 1970,
10 ACLU v. Taft No. 02-3924
concluding that the district court had erred by dismissing the
action due to the limited time that a Representative would
serve, stating, “Except in those instances [where the period of
possible service could truly be deemed de minimis] the
delegation to the state legislature of this power over procedure
does not, in our opinion, alter the character of the Governor’s
duty to issue a writ of election.” Id. at 1336. In so holding,
the court found that a special election could still be held on
November 3, 1970, the date of the next general election, and
concluded that it was “not prepared to say as a matter of law
that representation from the time the results of the November
3 election will be determined to January 3, 1971 is de
minimis.” Id. at 1337.
In comparing Jackson to the instant case, both parties agree
that the time periods involved are important; they merely
disagree on which time periods are important. Under Illinois
law at that time, 162 days had to elapse between the issuance
of the writ of election and the election itself. Id. at 1335. The
Seventh Circuit held that the governor had a duty to issue a
writ at the time of the Representative’s death, which would
have allowed an election to be held on January 23, 1970, with
eleven months left on the term. Id. at 1337. When the district
court dismissed the case, an election could have been held on
August 25, 1970, with four months left on the term. Finally,
the Seventh Circuit refused to hold as a matter of law that the
amount of time between the certification of an election held
on the next general election date, November 3, 1970, and the
beginning of the next term, on January 3, 1971, is de minimis.
The ACLU emphasizes Jackson’s indication that the time of
possible service in the House in this case, November 5, 2002
to January 3, 2003, was not de minimis. Conversely,
Governor Taft emphasizes that Jackson only conclusively
held that an enforceable duty existed when eleven months
remained on the term at the time the vacancy occurred.
The parties and the district court cite three other cases that
influence our decision in this case. In Valenti v. Rockefeller,
292 F. Supp. 851, 853 (W.D.N.Y. & S.D.N.Y. 1968) (three-

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No. 02-3924 ACLU v. Taft 11
3The probativeness of Valenti v. Rockefeller, 292 F. Supp. 851, 853
(W.D.N.Y. & S.D.N .Y. 1968 ), is substantially diminished by the fact that
it addre ssed a vacancy in the Senate. The United States Constitution
allows Senate vacancies to be filled by the governor through a temporary
app ointment, and thus the seat may be filled during the period between
the vacancy and the special election. U.S. Const. amend. XVII; Valenti,
292 F. Supp. at 855. Mo reover, if one of a state’s seats in the Senate
becomes vacant, that state will still be represe nted in the Senate, whereas
if one of a state’s seats in the House becomes vacant, residents of that
district will not be repre sented in the House. Valenti, 292 F. Supp. at 863.
judge district court), aff’d mem., 393 U.S. 405 (1969), a U.S.
Senate vacancy occurred in June 1968 upon the assassination
of Senator Robert F. Kennedy, and state statutory law
mandated that the vacancy would be filled in November 1970,
as sixty days were required prior to the primary election, and
replacement Senate elections were to be held in even-
numbered years. The plaintiffs in Valenti argued that the
operation of state law unconstitutionally denied them their
rights to vote and to representation. Id. The district court
determined that the delay was constitutional when balanced
against the state interests of voter turnout and interest; of
preserving local elections from “the more party-oriented
political currents generated by statewide or national contests”;
and of avoiding the economic hardship on Senate candidates
of financing a campaign in the off-year.3 Id. at 854, 859. In
Mason v. Casey, No. 91-5728, 1991 WL 185243, at *1-2
(E.D. Pa. Sept. 18, 1991), a House vacancy occurred on
September 11, 1991, and state statutory law mandated that the
special election would be held at least sixty days after the
governor issued a writ of election. Like in Valenti, the
plaintiffs argued that the operation of state law created an
unconstitutional delay beyond the plaintiffs’ proposed date of
November 5, 1991, and the district court held the delay which
likely was five additional months to be constitutional. Id. at
*2-3. Finally, in State ex rel. Armstrong v. Davey, 198 N.E.
180, 181 (Ohio 1935), the Ohio Supreme Court ratified the
governor’s decision to set a replacement date at a later date
than the plaintiff felt was proper.
12 ACLU v. Taft No. 02-3924
4W e are no t at all persuaded by the Sup reme Court of Rhode Island ’s
statement in In re the Representation Vacancy, 15 R.I. 621, 624 (R.I.
1887), that the go verno r, having the power under Article I, section 2,
clause 4 of the United States Constitution, to issue a writ of election, also
has the discretion to decide, considering the 49th Congress’s adjournment
date, whether to exercise that power. This statement is dicta and the
decision is an advisory opinion, not binding on this court. Nor are we
persuaded by similar non-b inding dicta in People ex rel. Fitzgerald v.
Voorhis, 119 N.E. 10 6, 108 (N.Y . 1918).
5The district court relied on the 107th Congress’s scheduled
adjournment date of October 3, 2002 in concluding that the ACLU had
not met its burden of demonstrating irreparable harm, as the parties
contemplated holding a November 5, 2002 election and there was no way
of knowing whether a hold-over session would occur, and thus whether
the Seventeenth District would be unrepresented in a House vote. W e
conclude the scheduled adjournment date should not be use d in evaluating
whether a special election may be held in comp liance with state law and
whether the time remaining after such an election would truly be de
minimis. As history shows, the H ouse rarely adjourns sine die on its
sched ule adjournment date, and important legislation has been passed
after such date. In fact, the amicus brief filed by Representative Marcy
Kaptur notes that the 107th Congress passed several pieces of important
legislation after its scheduled adjournment date of October 3, 2002,
including the Iraq war resolution (October 10) and the creation of the
Department of Ho meland Security (November 13 ).
Like the Seventh Circuit, we conclude that Article I, section
2, clause 4 is mandatory, requiring the state’s executive to
issue a writ to fill a vacancy in the House.4 We recognize that
there may be instances where the time remaining in the
congressional term is truly de minimis, thereby excusing the
executive from issuing the writ, but the time involved in this
case cannot be considered de minimis.5
We also recognize that Article I, section 4, clause 1 gives
states the discretion to determine the “Times, Places, and
Manner” of holding such elections, and that the states have
valid interests in ensuring fair and reliable elections. As
Valenti and Mason indicate, legislative balancing between a
state’s interests in ensuring fair and reliable elections, and its
citizens’ rights to vote and to equal representation, is entitled

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No. 02-3924 ACLU v. Taft 13
6To the extent that the O hio election code purp orts to give unfettered
discretion to Governor Taft regarding the time for calling the special
election, it is not a meaningful standard entitled to deference. The Ohio
code provides:
W hen a vacancy in the office of representative to congress
occurs, the governo r, upon satisfacto ry information thereof, sha ll
issue a writ of election directing that a sp ecial election b e held to
fill such vacancy in the territory entitled to fill it on a day
specified in the writ.
Ohio Rev. Code A nn. § 3521.03. M oreover, the Ohio Supreme Court has
interpreted an earlier, similar version of this provision as granting the
governor discretion to decide when to call a special election, but not to
decide whether to call an election. State ex. rel. Armstrong v. Davey, 198
N.E. 180, 181 (Ohio 19 35). W hile the Eleventh Amendm ent prevents us
from compelling Governor Taft to comply with state law, we may
consider Governor Taft’s failure to act consistently with Ohio law when
determining how much deference to accord his decision under the
Constitution’s delegation of election procedures to the states.
to considerable deference. Ohio has exercised its discretion
to determine the time, place, and manner of elections by
enacting a comprehensive election code. Governor Taft
complains of the expense, inconvenience, and possible
inaccuracies that would have accompanied a special election
held on November 5, 2002. We point out that the Ohio
legislature, through its election code, has determined the
length of time it considers necessary for conducting such a
special election. If the Ohio legislature determines that more
time is needed to hold such an election, it may amend its
election code, and should a need to review such provisions
arise, we will accord them appropriate deference.
Had Ohio’s election code imposed requirements that made
a special election an impossibility in this case, the ACLU
would have been faced with the burden of proving those
enacted requirements were unconstitutional. As Governor
Taft concedes, however, it would have been possible to hold
a special election that complied with the requirements
imposed by the legislature in the election code to fill the
vacancy in the Seventeenth District.6
14 ACLU v. Taft No. 02-3924
In summation, we conclude that Article I, section 2, clause
4 imposed a mandatory duty upon Governor Taft to hold a
special election to fill the vacancy in the District created by
the expulsion of Traficant. Although there may be situations
where an executive’s duty is excused because the time
remaining on the Congressional term is truly de minimis, this
was not such a situation. While legislative balancing of the
state’s and its voters’ interests is entitled to deference, a
special election that complied with Ohio’s election code could
have been held in this case. Therefore, we hold that Governor
Taft violated his duty to call a special election under Article
I, section 2, clause 4 and denied ACLU members the rights to
vote and to equal protection in violation of the Fourteenth
Amendment. These constitutional violations entitle the
ACLU to declaratory relief pursuant to 42 U.S.C. § 1983 and
28 U.S.C. § 2201 and to reasonable attorney’s fees pursuant
to 42 U.S.C. § 1988.
III. CONCLUSION
We conclude that the district court committed errors of law,
and thus abused its discretion by failing to award the ACLU
appropriate equitable and declaratory relief. Accordingly, we
REVERSE the district court’s decision and REMAND this
case so the district court may award appropriate declaratory
relief and attorney’s fees to the ACLU.

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No. 02-3924 ACLU v. Taft 15
_______________
DISSENT
_______________
RYAN, Circuit Judge, dissenting. The majority holds that
Governor Taft was required by Article I, § 2, cl. 4 of the U.S.
Constitution to hold a special election to fill the vacancy
caused by the expulsion of Congressman James A. Traficant
from the U.S. House of Representatives. I do not believe the
United States Constitution required Governor Taft to hold a
special election in the circumstances of this case and so I must
dissent.
I.
Our Constitution grants limited, enumerated powers to the
federal government, while reserving the remainder of the
governing authority to the states. Beyond the unenumerated
powers retained by the states, the Constitution delegates to
them certain tasks necessary for the proper administration and
functioning of the federal government. One such task is the
duty imposed by Article I, § 2, cl. 4, which provides that
“[w]hen vacancies happen in the Representation from any
State, the Executive Authority thereof shall issue Writs of
Election to fill such Vacancies.” U.S. Const., Art. I, § 2, cl.
4.
Although clause 4 uses the imperative “shall,” that should
not be understood as a universal and absolute command to act
without regard to the facts and circumstances that bear
directly upon the purpose of Section 2. That is so, not only as
a matter of common sense, but also because, under our
Constitution,“[t]he States . . . retain ‘a residuary and
inviolable sovereignty.’ . . . They are not relegated to the role
of mere provinces or political corporations, but retain the
dignity, though not the full authority, of sovereignty.” Alden
v. Maine, 527 U.S. 706, 715 (1999) (quoting The Federalist
No. 39, at 245 (James Madison) (Clinton Rossiter ed., 1961)).
16 ACLU v. Taft No. 02-3924
In interpreting clause 4 and similar provisions of the federal
Constitution, we are obligated to take cognizance of the
principles of federalism and comity that inhere in our unique
system of dual sovereignty. Implicit in these principles is the
obvious proposition that the Constitution does not impose
upon the states the obligation to take action, which, in the
circumstances at hand, would be wasteful, imprudent, and
manifestly ineffective to carry into effect the purpose of the
constitutional mandate.
The authors of Clause 4 were not theoreticians given to
creating mindless formalisms that, if applied literally,
woodenly, or mechanistically, would require the states to take
action in obedience to the verb “shall,” which, under the
circumstances, is foolish, wasteful, and probably ineffective.
Neither constitutional “textualism,” “originalism,” nor any
other interpretive “ism” requires that, in carrying out the
mandate of Clause 4, a Governor abandon all common sense
and reasonableness and become, instead, a mere issuing clerk
when a “vacanc[y] happen[s]” in a state’s congressional
representation.
As Justice Oliver Wendell Holmes, speaking for the U.S.
Supreme Court, stated, albeit with regard to a different
constitutional provision:
The interpretation of constitutional principles must not
be too literal. We must remember that the machinery of
government would not work if it were not allowed a little
play in its joints.
Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931).
That “play in its joints” must certainly include a Governor’s
discretion to respond to the mandatory language of Clause 4
in a reasonably sensible manner.

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No. 02-3924 ACLU v. Taft 17
II.
With these principles in mind, I conclude that, given the
circumstances Governor Taft faced when former
Congressman Traficant was expelled from Congress, he was
not required under clause 4 to call a special election. The
vacancy in the 17th district “happen[ed]” on July 24, 2002,
slightly more than three months before the general election
and less than six months before the end of the congressional
term.
After taking into account the public notice requirements of
Ohio’s election laws and the need for a primary election and
a general election, Governor Taft concluded, and the plaintiff
has conceded, that the earliest practical date on which a
special election could have been held was November 5, 2002,
the date of the general election. In order to have held a
special election on the date of the general election, the
financially strapped counties that comprised the 17th district
would have been required to expend significant amounts of
money and effort to give notice of the vacancy to potential
candidates, print primary as well as general election ballots,
pay additional election workers to staff the polling stations,
certify the results, and allow for possible challenges.
In addition to these demands on the resources of the
affected Ohio counties, the Governor was faced with a unique
circumstance that could only have added further confusion to
the already confusing necessity of conducting a special
election together with the regular general election. As the
majority points out, the 17th district was redrawn in 2002.
The “old” 17th district represented by Traficant comprised
Mahoning and Columbiana Counties and parts of Trumbull
County. But the decennial 1990 census required
reapportionment and resulted in a “new” 17th district
comprising parts of Mahoning, Trumbull, Portage, and
Summit Counties. Consequently, on election day, some
voters in the affected counties would have had the option of
voting for two congressional candidates, neither of whom was
18 ACLU v. Taft No. 02-3924
an incumbent 17th district congressman: one to fill the short-
term vacancy in the old 17th district and another to represent
the new 17th district in the next session of Congress. Adding
to the confusion, voters whose precincts were recently added
to the 17th district would have been eligible to vote for only
one candidate and could not have participated at all in the
special election. With this confusing array of possibilities,
candidates and election workers would have faced the
formidable task of explaining to voters why some of them
were being asked to take the extraordinary step of voting for
two congressional representatives, while their neighbors were
being asked to vote for only one.
Despite the obvious cost and confusion, a special election
might nevertheless have been required were it not for the very
real likelihood that Congressman Traficant’s replacement
would have arrived too late to represent the citizens of the
17th district. Because Ohio election law imposes certain
delays for canvassing (Ohio Rev. Code Ann. § 3505.32
(Anderson Supp. 2003)), counting overseas ballots (Ohio
Rev. Code Ann. § 3509.05 (Anderson 1996)), and permitting
applications for a recount (Ohio Rev. Code Ann. § 3515.02
(Anderson 1996)), the earliest the special election could have
been certified and, therefore, the earliest any newly elected
representative could have participated in the business of the
House, was on November 25, 2002. See Ohio Rev. Code
Ann. § 3505.38 (Anderson 1996). Against this backdrop,
Governor Taft—unless Clause 4 renders him a mindless
automaton—had to consider, in addition to cost and voter
confusion, that, at the time the ACLU filed its complaint, the
House was scheduled to adjourn sine die on October 3, 2002,
almost two months before any newly elected representative
from the 17th district could have taken his or her seat. He
would also have been obligated to consider that since 1933,
the year in which the Congress changed its start date to
January 3, the House has only reconvened after the general
election approximately one out of every three times.

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No. 02-3924 ACLU v. Taft 19
At oral argument before the district court, the ACLU
speculated that a special election “could have” permitted a
newly elected representative from the 17th district to vote in
one of these infrequent lame duck sessions of Congress. In
fact, as proved by later events, Congress did reconvene for a
lame duck session. However, it adjourned on November 22,
2002, three days before a newly elected representative from
the 17th district could have taken his or her seat. Although
the majority implies otherwise, there was never any
possibility that the 17th district could have been represented
in the House votes on the Iraq war resolution, which took
place on October 10, or on the creation of the Department of
Homeland Security, which took place on November 13. See
maj. op. at 12 n.5. Nor, contrary to the majority’s contention,
is there any evidence in the record that the citizens of the 17th
district suffered from “diminished constituent services” as a
result of the Governor’s refusal to hold a special election.
Maj. op. at 3. House Rule 2(i)(1) provides that, in the event
of a vacancy, the Clerk of the House of Representatives shall
continue to supervise a congressman’s staff, thereby ensuring
the continuation of constituent services. Moreover, when
questioned by the district court on this issue, the ACLU
expressly disavowed any injury related to constituent
services.
III.
Governor Taft was undoubtedly bound by the language of
Clause 4, but implicit in that Section is the duty to exercise a
limited discretion to assure that the execution of the mandate
does not, under the circumstances, amount to a wasteful,
unduly confusing, and very probably ineffective and useless
election.
Given the substantial cost of a special election, the
likelihood of confusion, and the high probability, as proved
by later events, that a newly elected representative would not
have been able to take his or her seat, I do not believe that
Governor Taft was required to hold a special election to fill
20 ACLU v. Taft No. 02-3924
the vacancy caused by the expulsion of Congressman James
Traficant from the House. Holding a special election under
these circumstances would have been absurd and
meaningless, and in holding that the Governor was obligated
to do so, this court pays no more than mere lip service to
those principles of federalism and comity that are inherent in
the Constitution. What’s worse perhaps, under its “capable of
repetition, while evading review” exercise of jurisdiction,
maj. op. at 6, the court implicitly mandates mindless
compliance with Clause 4 in the future, in an even more
absurd and unreasonable circumstance.
I respectfully dissent.

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