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Democratizing Democracy

November 25, 2018

Democratizing Democracy: A Private Right of Action Under the Help America Vote Act Would Improve Election Accuracy and Restore Voter Confidence

By: Jack Davis, Volume 103 Staff Member

Confidence that a person’s vote will be accurately and honestly recorded is confidence in democracy itself. The recount litigation in Bush v. Gore thrust the potential for inaccurate recording of ballots into the national spotlight.[1] Immediately following Bush’s victory, increasing public confidence in election security became a government priority.[2] To increase voter confidence, Congress passed the Help America Vote Act (“HAVA”) of 2002, which required that voters had the opportunity to review how their ballots were interpreted by the system before they were cast.[3] It also required that voting systems “shall produce a record with an audit capacity.”[4] The U.S. Attorney General “may bring a civil action against any State or jurisdiction . . . as may be necessary to carry out the uniform and nondiscriminatory election technology requirements.”[5]

Has HAVA made American democracy ready to face the challenges of 2020 and beyond? Has HAVA provided sufficient redress for concerns about the technical accuracy of paper voting systems?[6] After Election Day, the nation once more watched Florida perform a recount of its gubernatorial election.[7]Incumbent governor Rick Scott evidently wanted to watch more closely: he filed suit in Florida state court in order to enjoin Palm Beach County Supervisor of Elections Susan Bucher against barring Scott’s representatives from witnessing the recount.[8] Although the recount was automatically triggered due to the closeness of the election results, questions of technical accuracy arose nonetheless as all sides puzzled over the high proportion of “undervote ballots” in Broward County.[9]

In the face of such domestic challenges as well as international threats like Russian hackers,[10] including reports that election machines remain vulnerable to tampering,[11] one wonders whether HAVA’s vesting of enforcement power to the Attorney General has been sufficient or if it is time to put HAVA enforcement into the voters’ own hands. There is clearly interest in private litigation to safeguard our democratic process.[12]The Supreme Court should hold that HAVA provides a private right of action under 42 U.S.C. § 1983.

I. Brunner v. Ohio Republican Party and the Circuit Divergence Over a HAVA Private Right of Action

HAVA does not unambiguously grant a private right of action on its face. It provides that the Attorney General may bring actions against states for declaratory and injunctive relief,[13] and it requires that states set up their own grievance procedures for individual complaints.[14] However, private actions against states for a violation of federal rights are generally authorized under 42 U.S.C. § 1983.[15] This section comes from the Reconstruction-era Civil Rights Act of 1871 and was intended to allow individuals to recover for injuries to constitutional or federal statutory rights incurred when a tortfeasor acts under color of state law.[16]

A. The Supreme Court Casts Doubt on a Private § 1983 HAVA Action in Brunner v. Ohio Republican Party

Voters tested the power of § 1983 to bring a private action under HAVA in litigation that would be decided by the Supreme Court in Brunner v. Ohio Republican Party.[17] An Ohio Republican in 2008 sought a Temporary Restraining Order (“TRO”) mandating that the Secretary of State, Jennifer Brenner, comply with HAVA’s voter verification requirements.[18] Relying upon the finding of a high likelihood of success on the merits, among other factors, the Southern District of Ohio issued the TRO.[19]

The Supreme Court vacated the TRO in a one-paragraph opinion, stating that while the Court “express[es] no opinion on whether or not HAVA is being properly implemented,” the Court nonetheless believes plaintiffs were “not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce [HAVA] in an action brought by a private litigant to justify the issuance of a TRO.”[20] This holding relied upon Gonzaga Univ. v. Doe, which held that for there to be a private right of action under § 1983, Congress must have unambiguously conferred an individual right in the statute of which a plaintiff alleges a violation.[21]

B. Circuit Split After Brenner

Although the Brenner decision made the prospect of a HAVA private right of action seem bleak,[22] the decision did not explicitly foreclose it because the holding was reached in the context of evaluating a TRO. Then, in 2016, the First Circuit decided Colon-Marrero v. Velez and held that there is a private right of action under HAVA via § 1983.[23] Plaintiffs were Puerto Rican voters being removed from the voter registry after not voting in one election cycle pursuant to Puerto Rican statute, contravening HAVA’s requirement that voters retain eligibility unless they do not vote in two consecutive cycles.[24] The court confronted Gonzaga head-on and held that HAVA’s § 303 unambiguously confers individual rights upon voters and that Congress did not intend to prohibit private action under § 1983.[25]

On the other hand, in 2012 the Ninth Circuit in Crowley v. Nevada ex rel. Nevada Secretary of State upheld summary judgment against a plaintiff who lost a county election by twenty-six votes, demanded a recount, then alleged HAVA violations for noncompliance with paper audit procedures after observing the recount.[26] The court, citing Gonzaga, found that the plaintiff was not among those conferred rights under HAVA § 301 because § 301 is concerned with assisting states in the administration and regulation of federal elections, not benefiting candidates or voters.[27]

II. The Supreme Court—or Congress—Should Permit a Uniform HAVA Private Right of Action

Colon-Marrero passed the Gonzaga test because the First Circuit found that the HAVA provisions relating to maintenance of a centralized computer voter registration list manifested an “unmistakable focus on the benefited class,” namely the vote registrants.[28] The court noted that “the fact that a statutory command is directed at state officials as part of a broader plan for implementation does not preclude it from likewise creating privately enforceable rights.”[29] Crowley failed the Gonzaga test because “[t]he explicit text of § 301 further specifies that the voting systems standards apply to systems ‘used in an election for Federal office,’” and does not create individual rights.[30]

A. The Supreme Court Should Hold that HAVA Passes the Gonzaga Test

The First and Ninth Circuit’s holdings are not strictly contradictory because they concerned distinct fact patterns where plaintiffs cited different passages of HAVA. The Ninth Circuit hinted that HAVA might create a private right of action for “some litigant,” though it found that HAVA’s recount provisions did not.[31] The two cases are nonetheless methodologically similar because they conduct the Gonzaga analysis at the level of HAVA’s language on the specific aspect of voting at issue.

This approach is mistaken. The question of whether Congress clearly intended the voter to benefit from HAVA should not depend on whether a voter (or candidate) has been disenfranchised at the level of voter registration, electronic counting, or auditing. In the proper case, the Supreme Court should issue a firm holding (unlike the Brunner opinion) that HAVA is clearly meant to benefit voters, and therefore, voters should have a private right of action under § 1983. This is a good approach because it allows the Court to preserve the applicability of Gonzaga while permitting a HAVA private right of action.[32]

B. The Benefits of a HAVA Private Right of Action

A HAVA private right of action would also help voters secure their rights more effectively than action under the Equal Protection Clause. Bush v. Gore provided some precedent that the Equal Protection Clause could be the basis for election security litigation by voters.[33] HAVA is preferable, however, because an action under the Equal Protection Clause would be judged against the state’s showing of a “compelling government interest” in their choice of voting systems and procedures, whereas HAVA provides more measurable criteria for liability.[34]

Voters should know what voting standards exist and should have the right to enforce them. An individual has a right to vote and to have their vote counted on equal terms with their peers. A HAVA private right of action via § 1983 would allow voters to develop election law and technology through their own actions. The Supreme Court should hold that HAVA is meant to benefit the voter and therefore provides a § 1983 private right of action. If not, Congress should amend HAVA to clarify that the voter, not merely state officials, are the subjects of its efforts to protect American democracy.

  1. Bush v. Gore, 531 U.S. 98 (2000); see, e.g., Dan Balz, Up by 930, Bush Side Assails Recount, Wash. Post: On Politics (Nov. 19, 2000), http://www.washingtonpost.com/wp-srv/onpolitics/elections/election19.htm?noredirect=on (describing sadness that people are losing the right to vote due to “some technicality out of their control.”).
  2. Nat’l Comm’n on Fed. Election Reform, To Assure Pride and Confidence in the Electoral Process, at 1, 46 (2001) (describing in a “Letter to the American People” that the events of 2000 were a “political ordeal unlike any in living memory” and stating that “it is critical that all Americans have confidence in our electoral system.”).
  3. Help America Vote Act (HAVA) of 2002, 52 U.S.C. §§ 20901–21145 (2016).
  4. 52 U.S.C. § 21081(a)(2).
  5. 52 U.S.C. § 21111.
  6. See Help America Vote Act of 2002, Pub. L. No. 107-252 (2002) (“An Act: [t]o establish a program to provide funds to States to replace punch card voting systems.”).
  7. See Tara Golshan & Rachel Withers, Florida Begins Recounts in Governor and Senate Races, Vox (Updated Nov. 10, 2018).
  8. Plaintiff’s Complaint at 4–5, Rick Scott For Senate v. Bucher, Filing No. 80580741 (Nov. 8, 2018). Note that HAVA would not have provided this remedy.
  9. See Audra D. S. Burch & Glenn Thrush, Florida Recounts Senate Votes Yet Again, and Nelson’s Chances Dwindle, N.Y. Times (Nov. 16, 2018), https://www.nytimes.com/2018/11/16/us/rick-scott-bill-nelson-recount.html (explaining that an “undercount” is a ballot recorded where votes were not cast in some race, which can be the voter’s choice or can by symptomatic of a technical problem).
  10. See, e.g., Maya Kosoff, Russian Hackers May Be Preparing Another Major U.S. Attack, Vanity Fair (Jan. 12, 2018), https://www.vanityfair.com/news/2018/01/russian-hackers-may-be-preparing-another-major-us-attack.
  11. See, e.g., Thomas Brewster, These Hackers Reveal How East It Is to Hack US Voting Machines, Forbes (July 29, 2017), https://www.forbes.com/sites/thomasbrewster/2017/07/29/def-con-hacking-election-voting-machines/#2f53dd391d55.
  12. But cf. Nelson Calls on Scott to Recuse Himself from Florida Recount, CBS News (Nov. 12, 2018), https://wdef.com/2018/11/12/nelson-calls-on-scott-to-recuse-himself-from-florida-recount/ (“Nelson said Scott is ‘using his power as governor to try to undermine the voting process,’ as he called on him to remove himself from the recount.”).
  13. 52 U.S.C. § 21111.
  14. 52 U.S.C. § 21112.
  15. 42 U.S.C. § 1983.
  16. See Wilson v. Garcia, 471 U.S. 261, 276–78 (1985) (quoting Almond v. Kent, 459 F.2d 200, 204 (4th Cir. 1972)) (explaining that concern about states extending “refuge” to perpetrators of violence and deception in the South, particularly the Ku Klux Klan, motivated the Civil Right Act of 1871).
  17. Brunner v. Ohio Republican Party, 555 U.S. 5, 6 (2008).
  18. Ohio Republican Party v. Brunner, 582 F. Supp. 2d 957, 959 (S.D. Ohio 2008).
  19. Id. at 961, 966–67 (“[I]t is well-settled that the following factors are to be considered in determining whether a temporary restraining order is necessary: (1) Whether the movant has shown a strong or substantial likelihood or probability of success on the merits; (2) Whether the movant has shown irreparable injury; (3) Whether the issuance of a preliminary injunction [TRO] would cause substantial harm to others; and (4) Whether the public interest would be served by granting injunctive relief.”).
  20. Brunner, 555 U.S. at 6.
  21. Gonzaga University v. Doe, 536 U.S. 273, 290 (2002) (“In sum, if Congress wishes to create new rights enforceable under § 1983, it must do so in clear and unambiguous terms.”); see also Alexander v. Sandoval, 532 U.S. 275, 289 (2001) (quoting California v. SierraClub, 451 U. S. 287, 294 (1981)) (“Statutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons.’”).
  22. See Daniel P. Tokaji, Public Rights and Private Rights of Action: The Enforcement of Federal Election Laws, 44 Ind. L. Rev. 113, 157 (2010) (arguing that because the outcome in Brenner was unjust yet rightly decided under existing law, future courts deciding election law cases should “carve out an exception” to the usual application of the Gonzaga individual rights test and instead employ a public right analysis).
  23. Colon-Marrero v. Velez, 813 F.3d 1 (1st Cir. 2016).
  24. Id. at 4.
  25. Id. at 16–22.
  26. Crowley v. Nevada ex rel. Nevada Secretary of State, 678 F.3d 730, 736 (9th Cir. 2012).
  27. Id. at 735.
  28. Colon-Marrero, 813 F.3d at 17.
  29. Id.
  30. Crowley, 678 F.3d at 735.
  31. Id. at 736.
  32. Contra Tokaji, supra note 20 (arguing that courts should carve out an exception to the applicability of Gonzaga because elections are a public, not individual, right). Of course, Gonzaga itself remains open for scrutiny as a matter of policy. This approach is workable under the assumption that the Court is unlikely to overturn or substantially limit Gonzaga and its progeny.
  33. Cf. Jakob Brecheisen, Bush v. Gore, Minn. L. Rev.: De Novo (Apr. 1, 2018), https://www.minnesotalawreview.org/2018/04/bush-v-gore/ (describing Bush v. Gore’s precedential value for voters bringing Equal Protection Clause actions).
  34. See Stewart v. Blackwell, 444 F.3d 843, 859 (6th Cir. 2006), superseded, 473 F.3d 692 (6th Cir. 2007). The content of HAVA’s technical and procedural requirements likewise remains open for scrutiny.
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