Martin Crowley v. State of Nevada, et al
Filing
FILED OPINION (SUSAN P. GRABER, MARSHA S. BERZON and RICHARD C. TALLMAN) AFFIRMED. Judge: RCT Authoring. FILED AND ENTERED JUDGMENT. [8153909]
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTIN CROWLEY,
Plaintiff-Appellant,
v.
STATE OF NEVADA, by and through
The Nevada Secretary of State;
and the CLERK OF CHURCHILL
COUNTY, a subdivision of the State
of Nevada,
Defendants-Appellees.
No. 10-17887
D.C. No.
3:08-cv-00618LRH-VPC
OPINION
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
February 13, 2012—San Francisco, California
Filed April 26, 2012
Before: Susan P. Graber, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Tallman
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CROWLEY v. STATE OF NEVADA
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COUNSEL
Jeffrey A. Dickerson, Esq., Reno, Nevada, and Martin G.
Crowley, Esq. (argued), Fallon, Nevada, for plaintiffappellant Martin Crowley.
Douglas R. Rands, Esq. (argued), Rands, South & Gardner,
Reno, Nevada; Catherine Cortez Masto, Nevada Attorney
General, Carson City, Nevada, and C. Wayne Howle
(argued), Solicitor General, Carson City, Nevada, for
defendants-appellees State of Nevada, by and through the
Nevada Secretary of State, and the Clerk of Churchill County,
a subdivision of the State of Nevada.
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CROWLEY v. STATE OF NEVADA
OPINION
TALLMAN, Circuit Judge:
Plaintiff-Appellant, Martin Crowley (“Crowley”), appeals
the district court’s grant of summary judgment in favor of
Defendants-Appellees, the State of Nevada, and the Churchill
County Clerk. Crowley also appeals the district court’s dismissal of two claims for failure to state a claim. In 2006,
Crowley ran for Churchill County Justice of the Peace. After
he lost the general election, he requested a recount. The
recount confirmed the election results. Crowley then sought
relief in federal district court, alleging the defendants had violated the Help America Vote Act of 2002 (“HAVA”), Pub. L.
No. 107-252, 116 Stat. 1666 (codified at 42 U.S.C.
§§ 15301-15545), by failing to conduct the recount in accordance with HAVA’s provisions. The district court: (1) granted
defendant Churchill County’s motion to dismiss the declaratory relief claims, concluding that HAVA does not confer a
private right of action for individuals to seek declaratory relief
for HAVA violations; and (2) granted defendants’ motion for
summary judgment on Crowley’s 42 U.S.C. § 1983 claims
based upon violations of HAVA.
Because HAVA § 301 was not intended to benefit voters
and candidates in local elections with respect to recounts,
such individuals do not have a private right of action under
§ 1983. We therefore affirm the district court’s judgment.
I
In 2006, plaintiff Martin Crowley was a candidate for Justice of the Peace in Churchill County. After having finished
first in the primary election, Crowley lost the general election
by twenty-six votes. Crowley requested and was provided a
recount.
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Crowley was present for the November 21, 2006, recount
at which he alleges, several violations of HAVA, 42 U.S.C.
§ 15301-15545, occurred. The recount confirmed the election
results. Crowley’s claims center on his allegation that the
State of Nevada and Churchill County failed to use the Voter
Verified Paper Audit Trail (“VVPAT”)1 for the recount. It is
uncontested that the election officials did not use the VVPAT
in the recount. Instead they used paper ballots printed from
the electronic media removed from each voting machine used
in the 2006 election. The VVPATs were, however, removed
from the electronic voting machines on the night of the elec1
Crowley uses the term “VVPAT” to describe the “permanent paper
record” discussed in 42 U.S.C. § 15481(a)(2), which provides as follows:
Audit capacity
(A) In general.
The voting system shall produce a record with an audit
capacity for such system.
(B) Manual audit capacity.
(i) The voting system shall produce a permanent paper
record with a manual audit capacity for such system.
(ii) The voting system shall provide the voter with an opportunity to change the ballot or correct any error before the
permanent paper record is produced.
(iii) The paper record produced under subparagraph (A) shall
be available as an official record for any recount conducted
with respect to any election in which the system is used.
(emphasis added).
The concept of the VVPAT derives from the Mercuri method, which
was created by Rebecca Mercuri. See Rebecca Mercuri, A Better Ballot
Box?, IEEE Spectrum, Oct. 2002, at 46, 47. Under this method, after the
voter has made a selection in all the elections on the ballot, the electronic
voting system displays a receipt or paper—the VVPAT—behind a transparent window. Id. The voter must validate the choices printed on the
VVPAT to cast the ballot. Id. The paper is then dropped into a secure ballot box for later tallying. Id.; see also Rebecca Mercuri, Facts About Voter
Verified Paper Ballots, NotableSoftware.com (Feb. 23, 2004), http://
www.notablesoftware.com/Papers/VVPBFacts.pdf.
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tion and remain in storage at the Churchill County Administrative Office. Crowley asserts that failure to use the VVPATs
in the recount violates HAVA § 301 because he interprets that
statute to require the use of the VVPAT for all recounts. See
42 U.S.C. § 15481(a)(2).
Crowley brought suit against the Clerk of Churchill County
and the State of Nevada, by and through the Nevada Secretary
of State (“defendants”). He alleged six claims for relief: (1)
a declaratory judgment that the recount violated HAVA
§§ 301 and 303; (2) a 42 U.S.C. § 1983 claim for violations
of federal voting rights; (3) another § 1983 claim for violation
of due process; (4) another declaratory judgment that an independent overseer be appointed for any future election; (5) a
First Amendment violation; and (6) a third declaratory judgment that the Secretary of State for Nevada did not comply
with HAVA certification procedures in 2006.
The district court dismissed all of Crowley’s declaratory
relief claims for failure to state a cognizable private claim
because it ruled, under 42 U.S.C. § 15511, that “declaratory
relief claims are within the express purview of the United
States Attorney General’s enforcement,” and that HAVA
§ 301 did not create a private right of action to seek declaratory relief. The district court was unpersuaded by Crowley’s
reliance on Sandusky County Democratic Party v. Blackwell,
387 F.3d 565, 572 (6th Cir. 2004) (per curiam), as the Sixth
Circuit did not address HAVA § 301, but HAVA § 302, 42
U.S.C. § 15482(b), “which explicitly refers to the ‘right of an
individual to cast a provisional ballot.’ ” Accordingly, the district court specifically limited any action to a 42 U.S.C.
§ 1983 claim. The district court also dismissed the Clerk of
Churchill County from claim six because that claim referenced only the Secretary’s action and thus lacked the facts to
support allegations against the County.
Subsequently, on cross-motions for summary judgment, the
district court granted summary judgment in favor of the
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defendants on all remaining claims. The district court first
held that the defendants did not violate HAVA § 301 or
Nevada Revised Statutes § 293B.400 by using a manual paper
audit instead of the VVPAT, because neither statute required
the use of the VVPAT in a recount. Second, the court held
that Crowley had presented no evidence to support his substantive due process claim that absentee ballots had been
destroyed and were not counted. Finally, the district court
held that Crowley’s First Amendment claim also failed
because Crowley provided no evidence that his vote was not
counted in the election. Crowley timely appealed.
II
Before us now is Crowley’s appeal, limited to the district
court’s dismissal of claims one and four for declaratory relief
and the grant of summary judgment in favor of defendants on
the § 1983 claims. We have jurisdiction under 28 U.S.C.
§ 1291. Crowley argues that HAVA requires the state election
officials to use the VVPAT in a recount and that, by refusing
to use the VVPAT, state officials violated Crowley’s due process rights. He argues that Nevada Revised Statutes
§ 293.4685 and Nevada’s Fiscal Year 2005-2006 State Plan
incorporate HAVA to apply to state elections. Crowley further asserts that the district court erred in ruling that he could
not seek declaratory relief for alleged violations of 42 U.S.C.
§ 15481. Lastly, he argues that the district court erred by
holding that he could not assert a private claim for violations
of HAVA § 301 in a § 1983 action.
A
We turn first to Crowley’s claim that the district court erred
by granting summary judgment in favor of defendants on
claims two and three, invoking 42 U.S.C. § 1983 for violations of HAVA § 301.
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We review a district court’s grant of summary judgment de
novo. See FTC v. Stefanchik, 559 F.3d 924, 927 (9th Cir.
2009). Our review is governed by the same standard used by
the trial court under Federal Rules of Civil Procedure 56(c)
(2009).2 We view the evidence in the light most favorable to
the nonmoving party, asking whether there are any genuine
issues of material fact and whether the district court correctly
applied the relevant substantive law. Trunk v. City of San
Diego, 629 F.3d 1099, 1105 (9th Cir. 2011). When the district
court disposes of a case on cross-motions for summary judgment, we may review both the grant of the prevailing party’s
motion and the corresponding denial of the opponent’s
motion. Id.; see Jones-Hamilton Co. v. Beazer Materials &
Servs., Inc., 973 F.2d 688, 694 n.2 (9th Cir. 1992). Summary
judgment may be affirmed on any ground supported by the
record. See Video Software Dealers Ass’n v. Schwarzenegger,
556 F.3d 950, 956 (9th Cir. 2009).
1
In the wake of the 2000 presidential election, Congress
enacted HAVA. HAVA’s purpose as set forth in the preface
is:
To establish a program to provide funds to States to
replace punch card voting systems, to establish the
Election Assistance Commission to assist in the
administration of Federal elections and to otherwise
provide assistance with the administration of certain
Federal election laws and programs, to establish
minimum election administration standards for
States and units of local government with responsibility for the administration of Federal elections, and
for other purposes.
2
The trial court ruled on summary judgment before the effective date of
the 2010 amendments to the Federal Rules of Civil Procedure.
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The relevant text of HAVA § 301 provides:
Sec. 301. VOTING SYSTEMS STANDARDS.
(a) REQUIREMENTS.—Each voting system used in
an election for Federal office shall meet the following requirements:
(1) IN GENERAL.—
(A) Except as provided in subparagraph (B), the voting system (including any lever voting system, optical scanning voting system, or direct electronic
recording system) shall—
(i) permit the voter to verify (in a private
and independent manner) the votes selected
by the voter on the ballot before the ballot
is cast and counted; . . . .
(2) AUDIT CAPACITY.—
(A) IN GENERAL.—The voting system shall produce a record with an audit capacity for such system.
(B) MANUAL AUDIT CAPACITY.—
(i) The voting system shall produce a permanent paper record with a manual audit
capacity for such system.
(ii) The voting system shall provide the
voter with an opportunity to change the ballot or correct any error before the permanent paper record is produced.
(iii) The paper record produced under subparagraph (A) shall be available as an offi-
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cial record for any recount conducted with
respect to any election in which the system
is used.
2
Section 1983 provides a cause of action against any person
who, under the color of state law, abridges rights “unambiguously” created by the Constitution or laws of the United
States. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002);
Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980); 42 U.S.C. § 1983.
“[Section] 1983 is not itself a source of substantive rights, but
merely provides a method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386, 393-94
(1989) (internal quotation marks omitted). Section 1983 can
be used as a mechanism to enforce federal rights guaranteed
by statute only if (1) the statute creates enforceable rights and
(2) Congress has not foreclosed the possibility of a § 1983
remedy for violations of the statute in question. See Gonzaga
Univ., 536 U.S. at 279; Blessing v. Freestone, 520 U.S. 329,
340-41 (1997).
To determine whether a federal statute has created rights
enforceable through a § 1983 action, the court considers
whether the statute: (1) is intended to benefit a class of individuals of which the plaintiff is a member; (2) sets forth a
standard, clarifying the nature of the right, that makes the
right capable of enforcement by the judiciary; and (3) is mandatory, rather than precatory in nature. Blessing, 520 U.S. at
340-41; Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d
974, 978-79 (9th Cir. 2010).
[1] Crowley fails at step one of this test. Therefore, we
need not and do not ultimately address whether HAVA § 301
could ever be enforced via a § 1983 cause of action brought
to challenge the recount procedures in an election for federal
office. The preeminent purpose of HAVA is to assist states
with the administration and regulation of federal elections.
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See ACLU of N.M. v. Santillanes, 546 F.3d 1313, 1325 (10th
Cir. 2008) (rejecting the ACLU’s argument that HAVA preempted a municipal law governing the conduct only of municipal elections in Albuquerque). But see 42 U.S.C.
§§ 15301-15306 (providing for financial assistance to the
states for elections generally). The explicit text of § 301 further specifies that the voting systems standards apply to systems “used in an election for Federal office.” To the extent
that § 301 contains certain procedural requirements for
recounts, as Crowley asserts it does, any such requirements
would not apply here.
[2] Crowley did not request a recount of an election for
federal office. He contests only the recount method used in an
election for county office—albeit one on the same ballot with
two elections for federal office. Although HAVA “applies to
all elections that include elections to federal offices,” Santillanes 546 F.3d at 1325, there is no indication that § 301 was
intended to benefit a candidate or voter dissatisfied with a
recount in a county election for justice of the peace. Cf. Boatowners & Tenants Ass’n. v. Port of Seattle, 716 F.2d 669, 673
(9th Cir. 1983) (concluding that the River and Harbor
Improvements Act, Pub. L. No. 112-106, 52 Stat. 802 (codified at 33 U.S.C. §§ 540-633), was not enacted to benefit the
plaintiff association of pleasure craft owners and therefore
was not enforceable by the association via § 1983). Assuming
arguendo that § 301 confers a federal right, Crowley is not a
member of the class intended to benefit from the enactment
of HAVA § 301. Therefore, he cannot enforce violations of
HAVA § 301 through a § 1983 cause of action.3
3
Crowley argues that the Sixth Circuit’s opinion in Sandusky, 387 F.3d
565, supports holding that HAVA § 301 confers upon individuals, such as
himself, a private federal right enforceable through a § 1983 cause of
action. Sandusky has no effect on our reasoning, which does not depend
on whether there is rights-creating language but on the fact that Crowley,
at least, is not an intended beneficiary of the particular statute, because his
only concern is with a local election.
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3
Finally, Crowley argues that HAVA applies to all Nevada
elections because it was referenced in Nevada’s Fiscal Year
2005-2006 State Plan (the “Plan”) and because Nevada
Revised Statutes § 293.4685 “makes the provisions of HAVA
compulsory upon State Elections.” Even assuming that Crowley correctly interprets the state statutes, the right that he
asserts is state-created, not federal. “To the extent that the violation of a state law amounts to the deprivation of a statecreated interest that reaches beyond that guaranteed by the
federal Constitution, Section 1983 offers no redress.” Lovell
ex rel. Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370
(9th Cir. 1996); see also Draper v. Coombs, 792 F.2d 915,
921 (9th Cir. 1986) (allowing § 1983 action to proceed on the
basis of a state-law claim, but only “where the violation of
state law causes the deprivation of rights protected by the
Constitution and statutes of the United States” (internal quotation marks and brackets omitted)). Therefore, this state-law
argument is unavailing.
4
[3] In sum, even if HAVA § 301 confers a federal right in
a contested federal election, Crowley would not be a member
of the class intended to benefit from the right because the
recount provision of HAVA § 301 was not intended to benefit
voters or candidates in local elections. Therefore, the district
court correctly granted summary judgment in favor of defendants on claims two and three.
B
Because we conclude that the statutory language of HAVA
§ 301 clearly does not confer private rights on voters or candidates seeking recounts in local elections, Crowley’s remaining
contentions also fail. He argues that the district court erred by
dismissing his first and fourth claims for declaratory relief.
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We review de novo a district court’s dismissal of claims under
Federal Rule of Civil Procedure 12(b)(6). Again, we may
affirm on any proper ground. See Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).
[4] The district court concluded that HAVA does not
create a private right of action at all for declaratory relief, but
we need not decide whether Crowley has a private cause of
action under HAVA. Assuming that Congress intended to,
and did create a private right of action for some litigant,4
Crowley would not be able to rely on HAVA § 301 to challenge the recount procedures used in an election for county
office for the same reasons that he is not an intended beneficiary for § 1983 purposes. See Cannon v. Univ. of Chi., 441
U.S. 677, 692 n.13 (1979) (holding that, for a statute to create
an implied private right of action, its text must be “phrased in
terms of the persons benefited”); see also Gonzaga Univ., 536
U.S. at 285 (“A court’s role in discerning whether personal
rights exist in the § 1983 context should . . . not differ from
its role in discerning whether personal rights exist in the
implied right of action context.”). Thus the district court’s dismissal of Crowley’s claims for declaratory relief is affirmed.
III
In conclusion, because Crowley contests the recount procedures employed in a county election for justice of the peace,
violations of HAVA § 301 cannot provide the basis for his
claims.
AFFIRMED.
4
We note that case law casts doubt on this assumption. See Brunner v.
Ohio Republican Party, 555 U.S. 5, 6 (2008) (per curiam) (vacating a temporary restraining order because “[r]espondents . . . are not sufficiently
likely to prevail on the question whether Congress has authorized the District Court to enforce § 303 in an action brought by a private litigant to
justify the issuance of a TRO”); Sandusky, 387 F.3d at 572 (“HAVA does
not itself create a private right of action.”).
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