Nelson v. Miller

Decision Date25 March 1999
Docket NumberNo. 97-1155,97-1155
Citation170 F.3d 641
Parties9 A.D. Cases 234, 15 NDLR P 27 King NELSON; Karla Hudson; Charis Austin; Walter R. Saumier; Charlotte Czarnecki; Kyle Austin, Plaintiffs-Appellants, v. Candice S. MILLER, in her official capacity as Secretary of State for the State of Michigan, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Diane C. Smith (argued and briefed), Amy E. Maes (argued and briefed), Michigan Protection & Advocacy Service, Lansing, Michigan, for Plaintiffs-Appellants.

Gary P. Gordon, Asst. Attorney Gen. (briefed), Office of the Attorney General Habeas Corpus Division, Denise C. Barton, Asst. Attorney Gen. (argued and briefed), Office of the Attorney General, Public Employment & Elections Division, Lansing, Michigan, for Defendant-Appellee.

Jessica Dunsay Silver (argued and briefed), Seth M. Galanter (briefed), U.S. Department of Justice, Civil Rights Division, Appellate Section, Washington, D.C., for Intervenor.

Samuel Bagenstos, Mark L. Gross, U.S. Department of Justice, Civil Rights Division Appellate Section, Washington, D.C., for Amicus Curiae.

Before: KRUPANSKY, NELSON, and BATCHELDER, Circuit Judges.


BATCHELDER, Circuit Judge.

This class action was brought on behalf of all blind registered voters in the State of Michigan who cannot independently read or mark election ballots provided for them. The Plaintiffs claim that the Michigan Constitution provides all Michigan voters with a right to "secrecy of the ballot." Because the Secretary of State, according to Plaintiffs, is "the Chief Election Officer for the State of Michigan ha[ving] the ultimate responsibility to administer the Michigan Election Law," (J.A. at 12 (Compl.)), and has refused to implement methods by which the Plaintiffs could cast their votes unassisted by another person, 1 they argue that she is violating their rights under the Americans with Disabilities Act of 1990, 42 U.S.C.A. §§ 12101-02, 12131-50 (West 1995 & Supp.1998) (the "ADA"), and the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (West 1999) ("RA"). 2 Plaintiffs request that she be permanently enjoined from failing to implement such methods in the future. 3

The district court granted the Defendant's motion for dismissal pursuant to FED. R. CIV. P. 12(b)(6), finding that Michigan's current voting law, which permits blind voters to have third-party assistance of their choosing in marking their ballots, complies with the ADA and RA and thus that the Plaintiffs had failed to allege facts upon which relief could be granted under either act. First, the court found that the ADA and RA, statutes that apply generally to disability-based discrimination, needed to be read in conjunction with older, specific congressional acts dealing with voting rights for the disabled, namely the Voting Rights Act of 1965 (as amended in 1982), 42 U.S.C.A. § 1973aa-6 (West 1994) ("VRA"), and the Voting Accessibility for the Elderly & Handicapped Act of 1984, 42 U.S.C.A. § 1973ee-1 (West 1994) ("VAEH"), insofar as they involved the elections of federal officers. Accord In re Thirteen Ballots Cast in 1985 Gen. Election, 209 N.J.Super. 286, 507 A.2d 314, 315 (Law Div.1985) (finding the VRA to apply to only federal, rather than state and local, elections); NAACP v. Philadelphia Bd. of Elections, No. CIV. A. 97-7085, 1998 WL 321253, at * 3 (E.D.Pa. June 16, 1998)(unpublished) ("The VAEH deals only with federal elections. Congress could amend the VAEH to apply to non-federal elections, but has not chosen to do so."). Citing 42 U.S.C. § 12201, 4 the court stated that Congress did not intend for the ADA to displace the Federal Voting Rights Acts. The court then noted that the VRA specifically required that a blind voter be provided assistance by a person of his or her choice when voting (with certain exceptions not material here), 42 U.S.C. § 1973aa-6, and that the Senate Report accompanying the VAEH (which requires polling places to be "accessible" to handicapped voters), specifically noted " 'that any minimal effect on the privacy of those who are elderly or handicapped is more than offset by the expanded opportunities for participation in the political process.' " Nelson v. Miller, 950 F.Supp. 201, 203 (W.D.Mich.1996) (quoting S. REP. NO. 98-590, at 7 (1984), reprinted in 1984 U.S.C.C.A.N. 2801, 2807). Accordingly, to the extent that these statutes applied to the Defendant, the court concluded that the Defendant could not be said to have violated them by providing the Plaintiffs with the same type of meaningful assistance prescribed by them.

Second, as for state and local elections not covered by the VRA and VAEH, the court reasoned that nothing in the language of the ADA or RA indicated that voting privacy was a benefit Congress sought to protect under them, see id. at 204 n. 3, and that Congress did not intend the ADA and RA to extend to blind voters in state and local elections anything more than it had already extended to them in federal elections through the VRA and VAEH. See id. at 205 n. 4; cf. Philadelphia Bd. of Elections, 1998 WL 321253, at * 4 ("Defendants are not required to provide the specific procedures authorized under the VAEH, but the decision to do so is a reasonable modification to comply with the ADA.... The defendants' provision of the alternative ballot procedures [authorized by the VAEH] to qualified individuals with disabilities fulfills their obligation under the ADA....").

On appeal the United States entered the case as amicus curiae in support of the Plaintiffs/Appellants, disagreeing with the district court's premise that the ADA and RA do not require that more be extended to Michigan's blind voters than already extended to them via the VRA and VAEH. When the Defendant/Appellee alleged Eleventh Amendment immunity and challenged the constitutionality of the ADA in her appellate brief, the United States was permitted to intervene. The United States argues that the Eleventh Amendment does not bar the Plaintiffs' action, and that the ADA is not unconstitutional.

For the following reasons, we AFFIRM the judgment of the district court, but do so on grounds different from those advanced below. First, we find that Eleventh Amendment immunity does not bar this suit, because this action falls within the Ex parte Young exception. Second, we hold that we need not reach the question of whether Congress abrogated Eleventh Amendment immunity by enacting the ADA pursuant to § 5 of the Fourteenth Amendment. Third, we hold that Plaintiffs' complaint must be dismissed because Plaintiffs can state no facts tending to establish that they are being denied any right in violation of the ADA and the RA.


The Eleventh Amendment to the United States Constitution provides, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. C ONST. amend. XI. While "the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts," Seminole Tribe v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), the Supreme Court has long " 'understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms,' " id. (quoting Blatchford v. Native Village of Noatak, 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991)). That presupposition is "that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State," Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), "unless [it] consent[s] to [such suits] in unequivocal terms or unless Congress, pursuant to a valid exercise of power, unequivocally expresses its intent to abrogate the immunity," Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985). Therefore, under Eleventh Amendment immunity jurisprudence, courts have recognized that there is no Eleventh Amendment bar in three instances: (1) where the state has consented to suit; (2) where the application of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and its progeny is appropriate; or (3) where Congress has abrogated the state's immunity. It is undisputed that the state has not consented to this suit; hence, we will address only the Ex parte Young exception and the abrogation exception.

A. The

Ex parte Young Exception

Appellants have not brought suit against the State of Michigan. Rather, they have sued only the Secretary of State in her official capacity as the state officer charged with enforcing Michigan's election laws. Thus, the question arises as to whether the Secretary of State can be cloaked with the State of Michigan's Eleventh Amendment sovereign immunity in this instance. "The Eleventh Amendment bars a suit against state officials when 'the state is the real, substantial party in interest.' " Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945)). While it is clear to us that it is MICH. COMP. LAWS ANN. § 168.751, and not the Secretary of State's enforcement of that statute, that is the heart of this litigation, and thus that it is the State of Michigan, and not the Secretary of State, who is the real party in interest, 5 we feel constrained to deny Appellee's Eleventh Amendment challenge on the basis of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and its progeny, even though, as one able commentator has put it, "[o]ne does not go to the trouble of amending the Constitution in order to alter the caption on the complaint," David P. Currie, Ex Parte Young After Seminole Tribe, 72...

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