County Of Nassau v. State Of N.Y. .
| Decision Date | 14 June 2010 |
| Docket Number | No. 10-CV-1659 (JFB)(AKT).,10-CV-1659 (JFB)(AKT). |
| Citation | 724 F.Supp.2d 295 |
| Parties | COUNTY OF NASSAU, et al., Plaintiffs, v. State of NEW YORK, et al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
OPINION TEXT STARTS HERE
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John Ciampoli, Alpa Sanghvi, and Peter James Clines, Nassau County Attorney's Office, State of New York, Mineola, NY, for plaintiffs.
Derrick Jeffrey Robinson, New York State Office of the Attorney General, Mineola, NY, and Paul Michael Collins, New York State Board of Elections, Office of Special Counsel, Albany, NY, for defendants.
Plaintiffs Nassau County, the Nassau County Board of Elections (“the Nassau BOE”), John DeGrace, and William Biamonte (collectively “plaintiffs” or “Nassau”) bring this proceeding under Article 78 and § 3001 of the New York Civil Practice Law and Rules (“CPLR”) against defendants New York State (“NYS”), the New York State Board of Elections (“NYS BOE”), James A. Walsh, Douglas A. Kellner, Evelyn A. Aquila, and Gregory P. Peterson (collectively “defendants”). 1 Plaintiffs have moved to remand this case to New York State Supreme Court, Nassau County. Defendants have cross moved to dismiss the case for improper venue or, in the alternative, to transfer the case to the United States District Court for the Northern District of New York.
As set forth below, the Court grants plaintiffs' motion to remand this case to state court. Plaintiffs' claims (1) do not assert a federal cause of action, (2) necessarily raise a substantial question of federal law, or (3) come within the “artful pleading doctrine.” As such, there is no federal jurisdiction over this case, and remand is required. Because the Court lacks jurisdiction and remands the case, it denies defendants' motions as moot.
Central to the resolution of the pending motions is the interaction between a federal statute, the Help America Vote Act (“HAVA”), 42 U.S.C. § 15301, et seq., and a state statute, the Election Reform and Modernization Act of 2005 (“ERMA”).
Congress enacted HAVA in 2002 in response to problems identified during the 2000 presidential election. See generally Loeber v. Spargo, No. 1:04-CV-1193 (LEK/RFT), 2008 WL 111172, at *2 (N.D.N.Y. Jan. 8, 2008); Espada v. N.Y. Bd. of Elections, No. 07 Civ. 7622(SAS), 2007 WL 2588477, at *3 (S.D.N.Y. Sept. 4, 2007). Title I of HAVA, 42 U.S.C. §§ 15301-06, provides for federal payments to states to allow the states to replace punch card and lever voting machines and to improve election administration. Title II, 42 U.S.C. §§ 15321-15472, provides for, inter alia, the establishment of an Election Assistance Commission to “serve as a national clearinghouse and resource for the compilation of information and review of procedures with respect to the administration of Federal elections.” 42 U.S.C. § 15322.
Most relevant to this case, Title III of HAVA sets minimum requirements for federal elections. 42 U.S.C. §§ 15481-15512. Particularly important here is § 15481, which set standards for voting systems in federal elections. Under § 15481, “the voting system (including any lever voting system, optical scanning voting system, or direct recording electronic system)” must, inter alia, allow the voter to correct any errors on the ballot before the ballot is cast, notify the voter if the voter selects more than one candidate for an office, have an audit capacity, and be accessible to individuals with disabilities. See § 15481. The statute, however, leaves it to the states to determine how to implement Title III's requirements. See § 15485 ().
Additionally, Title IV of HAVA gives the Attorney General of the United States the power to bring a civil action for declaratory and injunctive relief against a state for violations of Title III. 42 U.S.C. § 15511. Title IV also requires states receiving funds under HAVA to establish administrative grievance procedures. 42 U.S.C. § 15512. 2
On July 12, 2005, the New York State Legislature passed the Election Reform and Modernization Act of 2005 (“ERMA”). See 2005 N.Y. Sess. Law Ch. 181 (McKinney). The statute was amended in 2007. See 2007 N.Y. Sess. Law Ch. 506 (McKinney). ERMA implements the requirements of HAVA in New York State. Among other things, it gives the New York State Board of Elections, a defendant in the instant case, the power to determine whether a voting machine complies with HAVA. See N.Y. Elec. Law § 7-201.
The deadline for implementing HAVA was January 1, 2006. 42 U.S.C. § 15481(d). Although ERMA had passed in the summer of 2005, “public hearing requirements caused [the NYS BOE] to miss the January 1, 2006 deadline for non-lever voting machine implementation.” (DeGrace/Biamonte Aff. ¶ 8.) 3 New York was the only state in the country not to implement HAVA by the January 1, 2006 deadline. See generally Virginia Smith Rosborough, Take the Counties into Account: The Help America Vote Act in New York State, 18 Alb. L.J. Sci. & Tech. 711, 712 (2008).
On March 1, 2006, the United States sued the NYS BOE and NYS in the Northern District of New York for non-compliance with HAVA. (Boivin Decl. ¶ 4.) Since 2006, Judge Sharpe of the Northern District has entered three remedial orders directing the NYS BOE and NYS to comply with HAVA. ( See Boivin Decl. Exs. A-C.) According to plaintiffs' memorandum of law in support of their motion to remand, Nassau County has twice tried to intervene in the action in the Northern District, but both of those applications have been denied. (Pl.'s Mem. of Law in Support of Mot. to Remand at 2.)
Plaintiffs commenced this action on March 23, 2010 by filing a complaint in New York State Supreme Court, Nassau County. Nassau County currently uses lever voting machines and wants to continue using lever machines. (Compl. ¶¶ 36, 42.) The complaint alleges that even though HAVA does not require the replacement of lever voting machines, ERMA permits only the use of electronic, computerized voting machines approved by the NYS BOE. ( Id. ¶ 48.) According to the complaint, since at least February 2006, defendant NYS BOE has been attempting to work with outside contractors to develop a computerized voting system employing optical-scan technology. However, these efforts allegedly have been plagued with problems and delays. ( See generally id. ¶¶ 55-76.) Most recently, on December 15, 2009, the commissioners of the NYS BOE certified two different voting systems, although, in doing so, they noted potential security and documentation issues with the systems. ( Id. ¶ 73.) The NYS BOE then directed local election boards to choose one of the certified systems to use. ( Id. ¶ 74.)
Although the Nassau BOE eventually notified the NYS BOE of its preferred system, it does not want to use electronic voting systems at all, citing security and reliability concerns. Plaintiffs assert that the lever voter machines currently in use are more reliable and less susceptible to fraud. ( Id. ¶ 115.) Pursuant to Article 78 and New York CPLR § 3001, the CPLR's declaratory judgment provision, the complaint seeks:
(1) a declaratory judgment, that by requiring the use of electronic voting technology, ERMA violates Article I, Section I of New York State Constitution which prohibits disenfranchisement ( id. ¶¶ 144-50);
(2) a declaratory judgment that ERMA violates Article II, Section 8 of the New York State Constitution, which requires bipartisanship in the counting and recording of votes ( id. ¶¶ 151-60);
(3) a declaratory judgment that ERMA violates the New York State Constitution by requiring local boards of election to delegate the sovereign function of supervising elections to private parties ( id. ¶¶ 161-66);
(4) a declaratory judgment that ERMA violates the New York State Constitution by requiring local boards of elections to use electronic voting machines that violate the right to cast a secret ballot ( id. ¶¶ 167-77);
(5) a declaratory judgment that defendants' actions violate the New York State Civil Rights Act ( id. ¶¶ 178-91);
(6) a declaratory judgment that defendants' actions in certifying machines on December 15, 2009 were arbitrary, capricious, an abuse of discretion, and contrary to law ( id. ¶¶ 192-202); and
(7) that, in the event plaintiffs must comply with ERMA, they not be required to deploy the new ERMA electronic voting machines until the Fall of 2011 at the earliest.
The complaint does not refer to the Northern District litigation. Defendant NYS BOE removed the case to this Court on April 14, 2010. Twelve days later, the Court held a pre-motion conference regarding the pending motions and set a briefing schedule.
Plaintiffs filed their motion to remand on May 13, 2010; defendants filed their motions to dismiss or, in the alternative, to change venue, on the same day. All motions were fully submitted on June 3, 2010, and the Court heard oral argument on June 9, 2010. 4
The same day this Court held a pre-motion conference on the pending motions, the NYS BOE filed an order to show cause in the Northern District litigation requesting that the court issue an injunction against the plaintiffs in this case pursuant to the All Writs Act, 28 U.S.C. § 1651. Specifically, the NYS BOE requested that plaintiffs here be compelled to accept the electronic, computerized systems and implement those systems for the Fall 2010 primary and general elections. 5 On May 20, 2010, Judge Sharpe issued an order enjoining the plaintiffs here from “taking further action interfering with implementation of the previous Remedial Orders of ...
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