Crowley v. Nevada

• Decision Date: 26 April 2012
• Docket Number: No. 10–17887.,10–17887.
• Citation: 12 Cal. Daily Op. Serv. 4552,2012 Daily Journal D.A.R. 5364,678 F.3d 730
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

678 F.3d 730

12 Cal. Daily Op. Serv. 4552

2012 Daily Journal D.A.R. 5364

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.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Feb. 13, 2012.

Filed April 26, 2012.

Jeffrey A. Dickerson, Esq., Reno, NV, and Martin G. Crowley, Esq. (argued), Fallon, NV, for plaintiff-appellant Martin Crowley.

Douglas R. Rands, Esq. (argued), Rands, South & Gardner, Reno, NV; Catherine Cortez Masto, Nevada Attorney General, and C. Wayne Howle (argued), Solicitor General, Carson City, NV, 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.

Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding. D.C. No. 3:08–cv–00618–LRH–VPC.

Before: SUSAN P. GRABER, MARSHA S. BERZON, and RICHARD C. TALLMAN, Circuit Judges.

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.

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 election 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. See42 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 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.

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).

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.

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 official record for any recount conducted with respect to any election in which the system is used.

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...