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
The opinion of the court was delivered by: Tallman, Circuit Judge:
Argued and Submitted February 13, 2012-San Francisco, California
Before: Susan P. Graber, Marsha S. Berzon, and Richard C. Tallman, Circuit Judges.
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.
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")*fn1 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 elec-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 ...