No private right of action to enforce list maintenance, voter registration provisions of HAVA, federal court holds

court decisions, election law and constitutional law

Continuing a recent tranche of lower court debates over whether certain election-related provisions permit a private right of action, including Section 2 of the Voting Rights Act and Election Day date provisions of federal law, a federal judge in North Carolina just issued the follow decision in RNC v. NC State Bd. of Elections:

Section 21083( a)(2)(A) provides that “[t]he appropriate State or local election official shall perform list maintenance with respect to “that state’s voter registration list in a manner consistent with the NVRA. 52 U.S.C. § 21083(a)(2)(A). Section 21083(a)(5)(A)(i) mandates that, prior to processing a voter’s registration, “a State” must collect the applicant’s “driver’s license number” or “the last 4 digits of the applicant’s social security number.” 52 U.S.C. § 21083(a)(5)(A)(i).

The court finds the first Cort factor, whether Plaintiffs are within the class for whose “especial benefit” these provisions were intended, weighs heavily against implying a private right of action. Cort, 422 U.S. at 78. These provisions of HAVA “are designed only to guide the State in structuring its systemwide efforts at” voter registration and voter list maintenance. Blessing v. Freestone, 520 U.S. 329, 344 (1997). Statutory provisions such as these “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.” Alexander, 532 U.S. at 289 (internal quotation mark omitted).

Although at some level these provisions of HAVA are aimed at ensuring the proper administration and integrity of elections, which in tum benefits all voters, it’s not enough that “the plaintiff falls within” some “general zone of interest that the statute is intended to protect.” Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002). “[S]uch a definition of ‘especial’ beneficiary” would “make[] this factor meaningless.” California v. Sierra Club, 451 U.S. 287, 294 (1981). Rather, something more “is required for a statute to create rights enforceable directly from the statute itself under an implied private right of action.” Gonzaga, 536 U.S. at 283. The statute must manifest “an unmistakable focus on the benefited class.” Cannon v. Univ. of Chicago, 441 U.S. 677, 691 (1979).

Put another way, “[t]he question is not simply who would benefit from” these provisions of HAVA, but rather “whether Congress intended to confer federal rights upon those beneficiaries.” Sierra Club, 451 U.S. at 294. These provisions of HAVA do not “unmistakabl[y] focus” on Plaintiffs or the voters they represent; the provisions do not mention them at all. Cannon, 441 U.S. at 691. The court thus finds that these provisions do not “create[] an individually enforceable right in the class of beneficiaries to which [Plaintiffs] belong.” City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 120 (2005). . . .

. . . the court finds that implying a private right of action under these provisions of HAVA would not be consistent with the underlying purposes of the legislative scheme. Cort, 422 U. S. at 78 . To the contrary, consideration of the legislative scheme as a whole leads the court to discern a legislative intent to deny a private remed y. On that point, HAVA contains “separate . . . enforcement mechanisms.” Indiana Pro t. & Advoc. Servs. v. Indiana Fam. & So c. Servs. Admin., 603 F.3d 365 , 379 (7th Cir. 2010). Specifically, “[t]he Attorney General may bring a civil action against any State or jurisdiction in an appropriate United States District Court” to remedy violations of Section “21083 of this title.” 52 U.S.C. § 21111. In addition, states that receive federal funding must “establish and maintain State-based administrative complaint procedures.” 52 U.S.C.A. § 2111 2(a)(l). North Carolina has done so , N.C.G.S. § 163-91(a), and the concerned citizen took advantage of this complaint procedure, DE 1-3 at 12-14.

There are ways to distinguish the Voting Right Act, the Election Day, and the HAVA cases (far too long for a blog post today!), but it’s interesting to see the RNC and DNC at cross-positions with each other in some of these cases. It also raises some interesting questions if these cases reach the Supreme Court on a similar timeline in the years ahead (no cert petitions are pending on any of them right now).

Share this: