We
also conclude that it was premature for the district court to identify
which ballots were miscast due to poll-worker error. Although there is
evidence to support the district court's findings, and indeed some
portions of the January 12 order reflect the unanimous Board votes to
count the 7 admitted poll-worker error ballots and the 9
correct-precinct ballots, we conclude that it was premature to make the
findings when the Board and Williams lacked the opportunity to present
their own evidence and arguments in opposition. As a result, we
VACATE
the portion of the district court's January 12 order directing the
Board to count the 149 ballots, the 7 ballots, and the 9 ballots. We
VACATE AS MOOT
the portion of the district court's January 12, 2011 order enjoining
the Board from complying with Directive 2011–04. That Directive has,
in effect, been superseded by Directive 2011–05. With respect to the
NEOCH consent decree, all parties agree that the consent decree
remains and should be followed. Because the parties do not contest it,
we
AFFIRM the district court's January 12, 2011 order
that the Board “investigate all ballots subject to the NEOCH Consent
Decree for poll worker error and count those ballots as required by that
Consent Decree.” We leave to the district court in the first
instance, applying the uniformity requirement of
Bush v. Gore, to direct the Board how to proceed regarding
the 9 ballots unanimously determined by the Board to have been cast in
the correct precinct, the 7 ballots unanimously determined by the Board
to have been miscast because of poll-worker error, the
269 ballots cast in the correct location but wrong precinct in
which the determination of poll-worker error remains disputed, and,
pursuant to the
NEOCH Consent Decree, the NEOCH ballots.
We remand this case to the district court for further proceedings consistent with this opinion.
Accordingly, the district court has to determine how the Board should proceed regarding the various ballots mentioned in the last sentence above.
Josh