Crowley v. NEVADA EX REL. NEVADA SECRETARY

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARTIN CROWLEY, 

Plaintiff-Appellant,

v. No. 10-17887

D.C. No.

STATE OF NEVADA, by and through

The Nevada Secretary of State;  3:08-cv-00618-

and the CLERK OF CHURCHILL LRH-VPC

COUNTY, a subdivision of the State OPINION

of Nevada,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted

February 13, 2012—San Francisco, California

Filed April 26, 2012

Before: Susan P. Graber, Marsha S. Berzon, and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

4465

CROWLEY v. STATE OF NEVADA 4467

COUNSEL

Jeffrey A. Dickerson, Esq., Reno, Nevada, and Martin G.

Crowley, Esq. (argued), Fallon, Nevada, for plaintiff-

appellant Martin Crowley.

Douglas R. Rands, Esq. (argued), Rands, South & Gardner,

Reno, Nevada; Catherine Cortez Masto, Nevada Attorney

General, Carson City, Nevada, and C. Wayne Howle

(argued), Solicitor General, Carson City, Nevada, 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.

4468 CROWLEY v. STATE OF NEVADA

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 dis-

missal 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 vio-

lated 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 accor-

dance with HAVA’s provisions. The district court: (1) granted

defendant Churchill County’s motion to dismiss the declara-

tory 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 Jus-

tice 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 v. STATE OF NEVADA 4469

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 elec-

1

Crowley uses the term “VVPAT” to describe the “permanent paper

record” discussed in 42 U.S.C. § 15481(a)(2), which provides as follows:

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 oppor-

tunity 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.

(emphasis added).

The concept of the VVPAT derives from the Mercuri method, which

was created by Rebecca Mercuri. See Rebecca Mercuri, A Better Ballot

Box?, IEEE Spectrum, Oct. 2002, at 46, 47. Under this method, after the

voter has made a selection in all the elections on the ballot, the electronic

voting system displays a receipt or paper—the VVPAT—behind a trans-

parent window. Id. The voter must validate the choices printed on the

VVPAT to cast the ballot. Id. The paper is then dropped into a secure bal-

lot box for later tallying. Id.; see also Rebecca Mercuri, Facts About Voter

Verified Paper Ballots, NotableSoftware.com (Feb. 23, 2004), http://

www.notablesoftware.com/Papers/VVPBFacts.pdf.

4470 CROWLEY v. STATE OF NEVADA

tion and remain in storage at the Churchill County Adminis-

trative 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 inde-

pendent overseer be appointed for any future election; (5) a

First Amendment violation; and (6) a third declaratory judg-

ment 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 declara-

tory 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 dis-

trict 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 refer-

enced 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

CROWLEY v. STATE OF NEVADA 4471

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 sub-

stantive 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 pro-

cess 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 fur-

ther 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 viola-

tions of HAVA § 301.

4472 CROWLEY v. STATE OF NEVADA

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 judg-

ment, 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).

1

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 responsi-

bility for the administration of Federal elections, and

for other purposes.

2

The trial court ruled on summary judgment before the effective date of

the 2010 amendments to the Federal Rules of Civil Procedure.

CROWLEY v. STATE OF NEVADA 4473

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 follow-

ing requirements:

(1) IN GENERAL.—

(A) Except as provided in subparagraph (B), the vot-

ing system (including any lever voting system, opti-

cal 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 pro-

duce a record with an audit capacity for such system.

(B) MANUAL AUDIT CAPACITY.—

(i) The voting system shall produce a per-

manent paper record with a manual audit

capacity for such system.

(ii) The voting system shall provide the

voter with an opportunity to change the bal-

lot or correct any error before the perma-

nent paper record is produced.

(iii) The paper record produced under sub-

paragraph (A) shall be available as an offi-

4474 CROWLEY v. STATE OF NEVADA

cial record for any recount conducted with

respect to any election in which the system

is used.

2

Section 1983 provides a cause of action against any person

who, under the color of state law, abridges rights “unambigu-

ously” created by the Constitution or laws of the United

States. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002);

Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980); 42 U.S.C. § 1983.

“[Section] 1983 is not itself a source of substantive rights, but

merely provides a method for vindicating federal rights else-

where conferred.” Graham v. Connor, 490 U.S. 386, 393-94

(1989) (internal quotation marks omitted). Section 1983 can

be used as a mechanism to enforce federal rights guaranteed

by statute only if (1) the statute creates enforceable rights and

(2) Congress has not foreclosed the possibility of a § 1983

remedy for violations of the statute in question. See Gonzaga

Univ., 536 U.S. at 279; Blessing v. Freestone, 520 U.S. 329,

340-41 (1997).

To determine whether a federal statute has created rights

enforceable through a § 1983 action, the court considers

whether the statute: (1) is intended to benefit a class of indi-

viduals of which the plaintiff is a member; (2) sets forth a

standard, clarifying the nature of the right, that makes the

right capable of enforcement by the judiciary; and (3) is man-

datory, rather than precatory in nature. Blessing, 520 U.S. at

340-41; Cal. State Foster Parent Ass’n v. Wagner, 624 F.3d

974, 978-79 (9th Cir. 2010).

[1] Crowley fails at step one of this test. Therefore, we

need not and do not ultimately address whether HAVA § 301

could ever be enforced via a § 1983 cause of action brought

to challenge the recount procedures in an election for federal

office. The preeminent purpose of HAVA is to assist states

with the administration and regulation of federal elections.

CROWLEY v. STATE OF NEVADA 4475

See ACLU of N.M. v. Santillanes, 546 F.3d 1313, 1325 (10th

Cir. 2008) (rejecting the ACLU’s argument that HAVA pre-

empted a municipal law governing the conduct only of munic-

ipal elections in Albuquerque). But see 42 U.S.C.

§§ 15301-15306 (providing for financial assistance to the

states for elections generally). The explicit text of § 301 fur-

ther specifies that the voting systems standards apply to sys-

tems “used in an election for Federal office.” To the extent

that § 301 contains certain procedural requirements for

recounts, as Crowley asserts it does, any such requirements

would not apply here.

[2] Crowley did not request a recount of an election for

federal office. He contests only the recount method used in an

election for county office—albeit one on the same ballot with

two elections for federal office. Although HAVA “applies to

all elections that include elections to federal offices,” Santil-

lanes 546 F.3d at 1325, there is no indication that § 301 was

intended to benefit a candidate or voter dissatisfied with a

recount in a county election for justice of the peace. Cf. Boat-

owners & Tenants Ass’n. v. Port of Seattle, 716 F.2d 669, 673

(9th Cir. 1983) (concluding that the River and Harbor

Improvements Act, Pub. L. No. 112-106, 52 Stat. 802 (codi-

fied at 33 U.S.C. §§ 540-633), was not enacted to benefit the

plaintiff association of pleasure craft owners and therefore

was not enforceable by the association via § 1983). 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. Therefore, he cannot enforce violations of

HAVA § 301 through a § 1983 cause of action.3

3

Crowley argues that the Sixth Circuit’s opinion in Sandusky, 387 F.3d

565, supports holding that HAVA § 301 confers upon individuals, such as

himself, a private federal right enforceable through a § 1983 cause of

action. Sandusky has no effect on our reasoning, which does not depend

on whether there is rights-creating language but on the fact that Crowley,

at least, is not an intended beneficiary of the particular statute, because his

only concern is with a local election.

4476 CROWLEY v. STATE OF NEVADA

3

Finally, Crowley argues that HAVA applies to all Nevada

elections because it was referenced in Nevada’s Fiscal Year

2005-2006 State Plan (the “Plan”) and because Nevada

Revised Statutes § 293.4685 “makes the provisions of HAVA

compulsory upon State Elections.” Even assuming that Crow-

ley correctly interprets the state statutes, the right that he

asserts is state-created, not federal. “To the extent that the vio-

lation of a state law amounts to the deprivation of a state-

created interest that reaches beyond that guaranteed by the

federal Constitution, Section 1983 offers no redress.” Lovell

ex rel. Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370

(9th Cir. 1996); see also Draper v. Coombs, 792 F.2d 915,

921 (9th Cir. 1986) (allowing § 1983 action to proceed on the

basis of a state-law claim, but only “where the violation of

state law causes the deprivation of rights protected by the

Constitution and statutes of the United States” (internal quota-

tion marks and brackets omitted)). Therefore, this state-law

argument is unavailing.

4

[3] In sum, even if HAVA § 301 confers a federal right in

a contested federal election, Crowley would not be a member

of the class intended to benefit from the right because the

recount provision of HAVA § 301 was not intended to benefit

voters or candidates in local elections. Therefore, the district

court correctly granted summary judgment in favor of defen-

dants on claims two and three.

B

Because we conclude that the statutory language of HAVA

§ 301 clearly does not confer private rights on voters or candi-

dates seeking recounts in local elections, Crowley’s remaining

contentions also fail. He argues that the district court erred by

dismissing his first and fourth claims for declaratory relief.

CROWLEY v. STATE OF NEVADA 4477

We review de novo a district court’s dismissal of claims under

Federal Rule of Civil Procedure 12(b)(6). Again, we may

affirm on any proper ground. See Johnson v. Riverside

Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).

[4] The district court concluded that HAVA does not

create a private right of action at all for declaratory relief, but

we need not decide whether Crowley has a private cause of

action under HAVA. Assuming that Congress intended to,

and did create a private right of action for some litigant,4

Crowley would not be able to rely on HAVA § 301 to chal-

lenge the recount procedures used in an election for county

office for the same reasons that he is not an intended benefi-

ciary for § 1983 purposes. See Cannon v. Univ. of Chi., 441

U.S. 677, 692 n.13 (1979) (holding that, for a statute to create

an implied private right of action, its text must be “phrased in

terms of the persons benefited”); see also Gonzaga Univ., 536

U.S. at 285 (“A court’s role in discerning whether personal

rights exist in the § 1983 context should . . . not differ from

its role in discerning whether personal rights exist in the

implied right of action context.”). Thus the district court’s dis-

missal of Crowley’s claims for declaratory relief is affirmed.

III

In conclusion, because Crowley contests the recount proce-

dures employed in a county election for justice of the peace,

violations of HAVA § 301 cannot provide the basis for his

claims.

AFFIRMED.

4

We note that case law casts doubt on this assumption. See Brunner v.

Ohio Republican Party, 555 U.S. 5, 6 (2008) (per curiam) (vacating a tem-

porary restraining order because “[r]espondents . . . are not sufficiently

likely to prevail on the question whether Congress has authorized the Dis-

trict Court to enforce § 303 in an action brought by a private litigant to

justify the issuance of a TRO”); Sandusky, 387 F.3d at 572 (“HAVA does

not itself create a private right of action.”).