Metropolitan News-Enterprise


Friday, April 27, 2012


Page 3


Ninth Circuit Rejects Effort to Apply Federal Voting Law to Local Recount


By a MetNews Staff Writer


Federal law does not require states and localities to use a particular method of recounting ballots in elections for non-federal offices, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The court affirmed a district judge’s ruling dismissing a suit by Martin Crowley against the state of Nevada and the Churchill County clerk. Crowley sought declaratory relief and damages after a recount of a 2006 election for justice of the peace, which he lost by 26 votes, failed to change the results.

Crowley brought suit under 42 U.S.C. Sec. 1983 and Sec. 301 of the Help America Vote Act of 2002. HAVA was enacted in response to problems in Florida and elsewhere during the 2002 elections, and established standards for the conduct of federal elections and authorized payments to state and local governments to replace antiquated voting systems.

Sec. 301 establishes standards for systems used in federal elections, including that the system “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,” “produce a permanent paper record with a manual audit capacity,” and “provide the voter with an opportunity to change the ballot or correct any error before the permanent paper record is produced, “ and that such paper record be made public.

Crowley argued that HAVA applied because Nevada law provides for use of the same voting system in state and local elections as that used in federal elections, and that the recount in his race was not conducted in accordance with HAVA because there was no “voter-verified paper audit trail.”

But U.S. District Judge Larry Hicks of the District of Nevada said that HAVA does not confer a private right of action for individuals to seek declaratory relief, nor does federal law allow a Sec. 1983 claim based on a HAVA violation.

Judge Richard Tallman, writing for the Ninth Circuit, agreed.

It is not clear that Sec. 301 of HAVA was intended to establish standards for recounts, the judge said. But even if it applies to recounts for federal office, it certainly does not apply to state and local offices, he said, even when federal offices are on the same ballot.

“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,” the judge wrote. “Therefore, he cannot enforce violations of HAVA § 301 through a § 1983 cause of action,” and cannot obtain declaratory relief for the same reason, Tallman said.

Further assuming that Crowley is correct in asserting that Nevada law incorporates HAVA, the judge said, his claims still fail because Sec. 1983 cannot be used to vindicate a right created by state law.

Judges Susan P. Graber and Marsha S. Berzon concurred in the opinion.

The case is Crowley v. State of Nevada, 10-17887.


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