Myrna COLÓN-MARRERO; Josefina Romaguera Agrait, Plaintiffs, Appellees; Cross-Appellants, v. Liza M. García VÉLEZ, as President of the Puerto Rico State Elections Commission, Defendant, Appellant; Cross-Appellee, Guillermo San Antonio-Acha, as Electoral Commissioner of the Popular Democratic Party; Jorge Dávila, as Electoral Commissioner of the New Progressive Party; Roberto I. Aponte-Berríos, as Electoral Commissioner of the Puerto Rico Independence Party; Julio Fontanet Maldonado, as Electoral Commissioner of the Movimiento Union Soberanista; Adrián Díaz-Díaz, as Electoral Commissioner of the Puertoriqueños por Puerto Rico; Lillian Aponte-Dones, as Electoral Commissioner of the Partido del Pueblo Trabajador, Defendants.
Nos. 15-1356, 15-1722
United States Court of Appeals, First Circuit
Feb. 1, 2016
Jorge Martínez-Luciano, with whom Martínez-Luciano & Rodríguez-Escudero was on brief, for defendant-appellee San Antonio-Acha.
Joan Schlump Peters, with whom Andrés Guillemard-Noble and Nachman & Guillemard, P.S.C. were on brief, for defendant-appellee Dávila.
Carlos A. Del Valle Cruz, with whom Del Valle Law, Carlos M. Hernández López, and Rafael E. García Rodón were on brief, for plaintiffs-appellees/cross-appellants.
Before HOWARD, Chief Judge, SELYA and LIPEZ, Circuit Judges.
We revisit in this case whether federal law forbids Puerto Rico from removing individuals from its active voter registry for the office of Resident Commissioner—the only federal elective position in Puerto Rico—based solely on their failure to vote in one general election. In 2012, in an interlocutory appeal brought just weeks before Election Day, the panel majority held that the National Voter Registration Act (“NVRA“) does not apply to Puerto Rico and thus does not supersede the Commonwealth‘s voter deactivation procedures. See Colón-Marrero v. Conty-Pérez, 703 F.3d 134, 137 (1st Cir.2012) (per curiam). The majority also concluded, however, that plaintiffs were likely to succeed on the merits of their claim that another federal statute—the Help America Vote Act (“HAVA“)—does bar Puerto Rico from removing voters from the registry for the office of Resident Commissioner unless they fail to participate in the preceding two general federal elections. Id. at 138. We nonetheless refused to order plaintiffs’ immediate reinstatement to the voter registry, deeming such preliminary injunctive relief “improvident” given the uncertain feasibility of properly reinstating voters in the short time remaining before the election. Id. at 139.
On remand for consideration of the merits of plaintiffs’ claims after the 2012 election, the district court agreed with our preliminary assessment that HAVA invalidates Article 6.012 of Puerto Rico Act No. 78 of 2011 insofar as it applies to voter eligibility for federal elections. It thus issued injunctive and declaratory relief barring the Puerto Rico State Elections Commission (“SEC“) from removing otherwise eligible voters from the active election registry unless HAVA‘s requirements are met. Defendant Liza M. García Vélez, as SEC president, now challenges that ruling.1 In a cross-appeal, plaintiffs ask us to reconsider our conclusion that NVRA does not apply to Puerto Rico, and they further argue that excluding the Commonwealth from NVRA‘s coverage would violate the Equal Protection Clause of the Constitution.
Having considered each of these claims, we reiterate our conclusion that NVRA does not apply to Puerto Rico. In addition, we reject plaintiffs’ constitutional challenge to that statute‘s coverage. We also adhere to our preliminary view that HAVA, which comprehensively addresses federal election administration, invalidates Article 6.012‘s deactivation procedure. We further hold that plaintiffs may bring a private cause of action seeking relief under HAVA pursuant to
I. Factual Background
A. The 2012 Litigation
Plaintiffs Myrna Colón-Marrero and Josefina Romaguera Agrait filed this action in September 2012 claiming they were unlawfully removed from the Commonwealth‘s active voter registry, pursuant to
The district court denied plaintiffs’ request for a preliminary injunction, and Colón-Marrero (but not Romaguera Agrait) appealed. After holding a special oral argument session on October 11, 2012, a panel of this court concluded that Colón-Marrero had shown a likelihood of success on the merits of her claim for reinstatement. See Colón-Marrero, 703 F.3d at 136. We determined, however, that “serious factual questions remained as to the balance of harms and the public interest in ordering the immediate reinstatement of the more than 300,000 voters who had been stricken from the registration roll.” Id. Accordingly, we remanded the case to the district court for fact-finding on the feasibility of reactivating the affected voters in time for the November 6 election. See id.
Based on testimony presented at a two-day hearing on October 15 and 16, the district court found it would be feasible to reactivate the I-8 voters if this court ordered such relief by October 23 and devised a same-day recusal procedure that would allow the Commonwealth to exclude voters who had become ineligible for reasons other than Article 6.012 (such as moving out of the precinct or the Commonwealth). Id. at 136-37. The district court certified its findings to this court on October 17. In a brief order the next day, the appellate panel, with one dissenting member, affirmed the denial of preliminary relief because the district court‘s findings did
Opinions explaining the October 18 ruling were issued on November 2. Among other factors, the majority noted that Puerto Rico law does not include a mechanism for same-day challenges to voter eligibility, which the district court had identified as necessary, and the majority observed that, “[e]ven if it were appropriate for a federal court to prescribe alternative recusal procedures, we would be ill equipped to do so in the short time remaining before the election.” Id. at 139. The majority also pointed out that, although plaintiff originally sought to vote only for the federal position of Resident Commissioner—rather than seeking to vote generally in the election6—she had elicited “scant evidence” at the evidentiary hearing on the practicality of a limited reinstatement. Id. at 138. As a result, the district court had made no finding on that issue—“a major concern for the majority because the candidates for both Resident Commissioner and Governor appear on the same ballot.” Id. at 138-39. Moreover, the panel expressed concern about the plaintiffs’ decision to bring this action “less than two months before a general election that had long been scheduled for November 6.” Id. at 139.
Having determined that, in these circumstances, it would be “improvident to grant plaintiff‘s requested relief with only eighteen days remaining before the general election,” id., the panel refused to grant a preliminary injunction and remanded the case to the district court for further proceedings.7
B. Proceedings on Remand
In June 2013, on remand, the parties agreed to submit the case to the district court for decision on the merits based on a joint stipulation of facts and memoranda of law. On March 31, 2014, the district court ordered the parties to file the stipulation by April 30 and simultaneous memoranda by May 30, with replies due by June 20. The court described the case at that point as follows:
Although the nature of the controversies has been well defined during the preliminary injunction relief stage, primarily during the remand hearing and in the First Circuit‘s opinion issued in Colón-Marrero v. Conty-Pérez, 703 F.3d 134 (1st Cir.2012), the parties are advised that the scope of relief—whether the remedy is limited to the election of the Resident Commissioner in Puerto Rico or extends to the general election process—is an open question that shall be addressed in the parties’ briefs.
In compliance with the order, the parties filed a limited stipulation of facts stating only that (1) the two plaintiffs voted in the 2004 general election, (2) did not vote in the 2008 general election, (3) did not follow the reactivation requirement of Article 6.012 to re-establish eligibility to vote in 2012, and (4) did not vote in the 2012 general election. In their memoranda, the last of which was filed on June 20, 2014, the parties presented arguments on plaintiffs’ HAVA and constitutional claims—with all parties agreeing that our 2012 ruling governed on the applicability of NVRA.
The court thus held that the one-election deactivation standard of Article 6.012 must give way to HAVA‘s two-election requirement. It further concluded that, because “Puerto Rico has a single voter registration system, not two,” HAVA “necessarily regulates the registration lists for the general elections in Puerto Rico, which always include the election for the Resident Commissioner as an integral part of the general election process.” The court permanently enjoined the SEC “from removing from the official list of eligible voters any registrant who did not vote in a single general election” and declared that “the SEC is affirmatively ordered that no lawfully registered voter may be removed from the official list of eligible voters unless they have not voted in the two immediately preceding elections and have received and have been given notice of an intent to remove them from such list.”
These appeals followed. Defendant García Vélez challenges the grant of declaratory and injunctive relief for plaintiffs based on HAVA. In their cross-appeal, plaintiffs argue that this court should reconsider its ruling that NVRA does not apply to Puerto Rico, emphasizing that “said determination was solely a preliminary injunction review as to probable outcomes.” Alternatively, plaintiffs seek a ruling that excluding Puerto Rico from NVRA violates the Equal Protection Clause of the United States Constitution.9
II. The Cross-Appeal: Applicability of NVRA
A. Statutory Construction
We decline to revisit our prior decision that NVRA does not apply to Puerto Rico. Although plaintiffs are correct that we reached that decision in the context of a request for preliminary relief, our examination of the statute was neither tentative nor incomplete. We concluded that “[t]he textual signals and the legislative history, taken together, constitute persuasive evidence that Congress did not intend to include Puerto Rico as a ‘State’ under the NVRA.” Colón-Marrero, 703 F.3d at 138.10 Indeed, the district court and parties have treated our analysis as decisive, and plaintiffs essentially admit in their brief that they reiterate their NVRA statutory construction argument out of an abundance of caution. To eliminate any ambiguity, we now explicitly reaffirm our earlier determination that NVRA does not apply to Puerto Rico for the reasons outlined in our November 2012 opinion. See Colón-Marrero, 703 F.3d at 137-38.
We also find unavailing plaintiffs’ theory that they are entitled to the protections provided by NVRA because excluding Puerto Rico from the statute‘s coverage violates the Equal Protection Clause. Plaintiffs assert that, absent NVRA‘s protections, citizens residing in Puerto Rico have a version of the right to vote that is unconstitutionally inferior to the right afforded citizens residing in the fifty states and the District of Columbia.
Plaintiffs first suggest that Congress‘s decision not to apply NVRA to Puerto Rico must be examined under strict scrutiny. They rely on the fact that a legislative classification is subject to strict scrutiny if it “impermissibly interferes with the exercise of a fundamental right,” Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976), and that the right to vote “is of the most fundamental significance under our constitutional structure,” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). But a necessary prerequisite to strict scrutiny is a showing that a fundamental right has been burdened, see Romer v. Evans, 517 U.S. 620, 631 (1996), and the plaintiffs have failed at the threshold to demonstrate how NVRA‘s exclusion of Puerto Rico burdens their right to vote. The mere fact that a statute concerns voting does not establish that the statute infringes on a fundamental right. See Igartua de la Rosa v. United States, 32 F.3d 8, 10 & n. 2 (1st Cir.1994) (per curiam). Absent a showing that NVRA substantially burdens the rights of Puerto Rico residents to vote in federal elections—and no such showing has even been attempted here—strict scrutiny does not apply.
In the absence of strict scrutiny, plaintiffs’ equal protection challenge prompts rational basis review. See Romer, 517 U.S. at 631. Plaintiffs’ claim founders on this standard. To be sure, NVRA prescribes more restrictive deactivation prerequisites than does Article 6.012 and, in that respect, arguably offers greater protection to the federal voting rights of mainland citizens. Yet, significant factual differences exist between federal elections in Puerto Rico and in the jurisdictions covered by NVRA. Unlike in the states and the District of Columbia, general federal elections in Puerto Rico occur on a four-year, rather than two-year, cycle. See
In addition, the only federal election in Puerto Rico is for the office of Resident Commissioner, a non-voting position in Congress. Unlike the District of Columbia, Puerto Rico does not choose Presidential electors. See
We thus conclude that plaintiffs have not articulated a viable constitutional challenge to NVRA based on the exclusion of Puerto Rico from its scope.
At the heart of this appeal is the district court‘s grant of declaratory and injunctive relief for plaintiffs based on its determination that HAVA‘s two-election deactivation threshold supersedes the single-election trigger of Article 6.012.12 Appellant García Vélez, as SEC president, challenges those remedies on two separate grounds. She first argues that the pertinent provision of HAVA—like the equivalent section of NVRA—does not apply to Puerto Rico elections. Second, she insists that, even if Puerto Rico is within the provision‘s scope, there is no private right of action to seek a remedy.
We consider each of these issues of law in turn. Our review is de novo. See Gen. Motors Corp. v. Darling‘s, 444 F.3d 98, 107 (1st Cir.2006).
A. Does HAVA section 303(a)(4) Supersede Article 6.012‘s Deactivation Procedure?
The November 2000 presidential election “and its attendant controversies” prompted Congress “to review and reform the administration of federal elections.” Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1155 (11th Cir.2008); see also H.R. 107-329, pt. 1, at 31 (2001), 2001 WL 1579545, at *31 (“The circumstances surrounding the election that took place in November 2000 brought an increased focus on the process of election administration, and highlighted the need for improvements.“); Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, The Law of Democracy 1169 (4th ed. 2012). HAVA was the product of that review, and the statute, inter alia, revisited the subject of voter registration that also had been the primary focus of NVRA. See
The specific HAVA provision at issue in this case, section 303(a), is titled “Computerized statewide voter registration list requirements.”
The State election system shall include provisions to ensure that voter registration records in the State are accurate and are updated regularly, including the following:
(A) A system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible voters. Under such system, consistent with the National Voter Registration Act of 1993 (
42 U.S.C.1973gg et seq. ), registrants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote.(B) Safeguards to ensure that eligible voters are not removed in error from the official list of eligible voters.
Based on the highlighted language above, appellant argues that this subsection of HAVA applies only to those jurisdictions governed by NVRA. Her contention is that the HAVA requirement would not be “consistent with” NVRA if it is applied beyond the scope of that statute given that Congress excluded Puerto Rico from essentially the same deactivation requirement under NVRA—i.e., by limiting NVRA‘s coverage to the states and the District of Columbia.14 The district court
Our starting point in discerning the meaning of a statute is the provision itself, and “[t]he plain meaning of a statute‘s text must be given effect ‘unless it would produce an absurd result or one manifestly at odds with the statute‘s intended effect.‘” Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 858 (1st Cir.1998) (quoting Parisi ex rel. Cooney v. Chater, 69 F.3d 614, 617 (1st Cir.1995)); see also Matamoros v. Starbucks Corp., 699 F.3d 129, 134 (1st Cir.2012) (“We assume that the ordinary meaning of the statutory language expresses the legislature‘s intent, and we resort to extrinsic aids to statutory construction (such as legislative history) only when the wording of the statute is freighted with ambiguity or leads to an unreasonable result.“). “Of course, we focus on ‘the plain meaning of the whole statute, not of isolated sentences.‘” Arnold, 136 F.3d at 858 (quoting Beecham v. United States, 511 U.S. 368, 372 (1994)).
1. The Statute‘s Text
The plain meaning of section 303(a)(4)(A) is apparent from both its structure and its wording. Most significantly, the provision‘s mandate is stated independently of the “consistent with” phrase that is the foundation of appellant‘s argument. The first sentence of the subsection explains that a “system of file maintenance” must be created “to remove registrants who are ineligible to vote from the official list of eligible voters,” and the second sentence explains how “such system” must operate.
Rather, in clear, affirmative language, the second sentence directs removal of registrants from “the official list of eligible voters” if they have not responded to a notice and did not vote in “2 consecutive general elections for Federal office.” Id. The provision then emphasizes the need for both notice and a voting gap by stating that removal is barred “solely by reason of a failure to vote.” Id. The reference to NVRA, by contrast, appears in a subordinate clause in that sentence. Its content and placement clearly signal a collateral purpose: to instruct responsible election officials and others (including the courts) that the measures required by HAVA do not alter NVRA‘s requirements and, hence, they should be implemented consistently with NVRA.
Appellant insists that examining section 303(a)(4)(A) in context undermines this textual analysis. She argues that, despite the explicit inclusion of Puerto Rico and the territories within HAVA‘s overall scope, Congress expressly exempted these jurisdictions from obligations that also appear in NVRA. We disagree.
As a prelude to our discussion of appellant‘s contextual argument, we pause briefly to note the detailed landscape of HAVA section 303. Section 303 governs two different categories of prescriptions, as reflected in its overall heading: “Computerized statewide voter registration list requirements and requirements for voters who register by mail.”
Appellant claims that the inapplicability of HAVA‘s deactivation requirements to Puerto Rico is announced in section 303(b)(5), which provides that “[n]othing in this subsection shall be construed to require a State that was not required to comply with a provision of the National Voter Registration Act of 1993 before October 29, 2002, to comply with such a provision after October 29, 2002.”
Appellant‘s effort to prove her point through context, however, relies on taking this particular provision out of context. As described above, subsection (a) of HAVA section 303—
The language appellant invokes (“Nothing in this subsection....“) is the fifth, and final, paragraph of subsection (b)—i.e., the subsection that addresses registration by mail. Given its placement, section 303(b)(5) can only reasonably be construed to refer to the requirements related to voting by mail. Moreover, paragraph (5) by its terms merely states that HAVA is not changing the scope of NVRA, i.e., a state excluded from NVRA‘s requirements remains excluded from obligations imposed by NVRA. It says nothing about the state‘s additional obligations under HAVA.
However, two provisions within subsection (a) also invoke NVRA—although neither proves helpful to appellant. Both provisions appear within the subsection‘s second paragraph, which is labeled “Computerized list maintenance,” and, specifically, under subheading (A) of that paragraph, labeled “In general.”16 The introductory portion of section (a)(2)(A) directs state and local election officials to “perform list maintenance with respect to
One of those instructions states that, “[i]f an individual is to be removed from the computerized list, such individual shall be removed in accordance with the provisions of the National Voter Registration Act of 1993.” See
This reliance on NVRA does not, however, describe a limitation of HAVA‘s coverage. Rather, by invoking these NVRA provisions, and directing that removal of voters under HAVA be done “in accordance with” NVRA, Congress is simply borrowing the earlier statute‘s procedures for effectuating the independent HAVA requirement to maintain an accurate list of
eligible voters. It is telling that, while Congress piggybacks in section 303(a)(2)(A)(i) on NVRA‘s methodology, it affirmatively sets out the deactivation prerequisites in a separate provision—section (a)(4)(A) reproduced above—and labels those requirements as elements of the “[m]inimum standard for accuracy.”17
To similar effect is the other subparagraph within section 303(a)(2)(A) addressing the list maintenance requirements in relation to NVRA. Section (a)(2)(A)(iii) provides that, “if a State is described in section 4(b) of the National Voter Registration Act of 1993, that State shall remove the names of ineligible voters from the computerized list in accordance with State law.”
Put simply, HAVA‘s look-back to NVRA in section 303(a)(4)(A) is sensibly understood only as an assurance that the obligations and procedures required by that HAVA subsection—i.e., a system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible
Nothing in the two sentences of section 303(a)(4)(A)—or in the other provisions within subsection (a) discussed above—suggests that, despite this explicit difference between the statutes’ coverage, this HAVA provision applies only to jurisdictions subject to NVRA. Indeed, it is inconceivable that Congress would have made HAVA applicable to these jurisdictions, but exempted them from this aspect of HAVA without saying so clearly. The fact that the removal requirements in the two statutes overlap does not signify their irrelevance to Puerto Rico, but rather underscores their perceived importance as part of any effort to improve the administration of elections.
Nor is it illogical to hold that HAVA requires Puerto Rico election officials to adopt voter registration procedures for the office of Resident Commissioner that we have concluded NVRA does not require of them. Different considerations, and experience over time, may have affected political judgments about the need for uniform national requirements in Puerto Rico even though citizens residing there elect only one federal official. Indeed, as described above, the November 2000 election “brought an increased focus on the process of election administration, and highlighted the need for improvements.” H.R. Rep. 107-329, pt. 1, at 31, 2001 WL 1579545, at *31. In addition, the House Report on HAVA observed that the legislation “for the first time” provides financial assistance from the federal government to state and local governments “to improve their election infrastructure,” making “funds available to those jurisdictions that want to modernize their systems.” Id. at 32, 2001 WL 1579545, at *32. There is nothing absurd or unreasonable in a legislative judgment that such assistance should be available to all United States jurisdictions, along with the corresponding obligation to comply with national standards for maintaining accurate voter registration records.
We thus agree with the district court—and the prior panel—that “a sensible reading” of HAVA section 303(a)(4) compels the conclusion that Congress intended the obligations it sets forth to apply to all jurisdictions within HAVA‘s definition of “State.” Colón-Marrero, 703 F.3d at 138; Colón-Marrero, No. 12-1749CCC, 2015 WL 3508142, at *3 n. 3 (D.P.R. June 4, 2015) (quoting panel opinion). Accordingly, we hold that, under the plain language of HAVA section 303(a)(4)(A), Puerto Rico may not deactivate voters unless they have not responded to a notice and did not vote in two consecutive general elections for federal office. See
B. May plaintiffs seek a remedy under HAVA?
Appellant argues that, even if Puerto Rico election officials must comply with HAVA‘s requirements, plaintiffs’ claims
1. HAVA‘s Enforcement Provisions
HAVA by its terms does not create a private right of action. The statute, however, does expressly provide two mechanisms for remedying grievances: (1) a civil action brought by the Attorney General,
taining these two procedures constitute a separate subchapter of HAVA titled “Enforcement.” See
2. Governing Law
Even when a federal statute does not explicitly provide for a private remedy, two different paths may be available to individuals seeking to enforce their rights under the provision. The statute may either include an implied right of action under the provision itself or be enforceable through a cause of action brought under
Plaintiffs in this case assert a remedy only under § 1983, and we therefore examine that pathway to relief. If a plaintiff satisfies the threshold inquiry and demonstrates that Congress intended to confer an individual right, the right is presumptively enforceable by § 1983. Id. To rebut the presumption, the defendant must show that Congress “shut the door to private enforcement either expressly” in the statute creating the right, “or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983,” id. at 284 n. 4 (quoting Blessing v. Freestone, 520 U.S. 329, 341 (1997)).
3. Does HAVA section 303(a)(4) create an individual right?
Taken as a whole, HAVA is aimed at “Election Administration Improvement“—the title of the United States Code chapter in which it is codified—and many of its provisions are therefore framed as requirements for the state officials who are in charge of the election process. Subchapter I, for example, provides for payments to states to facilitate improvements in their election procedures and, among other things, it directs states to use such funds to carry out tasks such as educating voters, training poll workers, or establishing voter fraud hotlines. See
The fact that many of HAVA‘s provisions—indeed, probably most of them—are crafted in regulatory terms rather than in terms of voters’ rights does not bar a conclusion that a particular provision confers an individual right. The Supreme Court has made clear that generalized language in some sections of a statute is not a barrier to a private right of action under another section of the same statute. For example, in Blessing, the Supreme Court examined provisions of Title IV-D of the Social Security Act that the plaintiffs had relied upon, concluding that they did not give rise to individualized rights because they were designed “to guide the State in structuring its systemwide efforts at enforcing support obligations.” 520 U.S. at 344. The Court noted,
Hence, the question before us is whether the specific provision on which plaintiffs rely—HAVA section 303(a)(4)(A)—creates a private right. The Supreme Court has identified three factors to guide the inquiry into whether Congress has “unambiguously conferred [a] right to support a cause of action brought under § 1983.” Gonzaga Univ., 536 U.S. at 283.
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. Blessing, 520 U.S. at 340-41 (quoting Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 431 (1987)) (citations omitted).
Establishing the first factor—the intent to benefit the plaintiff—requires more than a showing that the plaintiff is an intended beneficiary of the statute or “within the general zone of interest that the statute is intended to protect.” Gonzaga Univ., 536 U.S. at 283. Rather, “the plaintiff must demonstrate that the federal statute creates an individually enforceable right in the class of beneficiaries to which he belongs.” Rancho Palos Verdes, 544 U.S. at 120; see also Gonzaga Univ., 536 U.S. at 281 (“Since the [Adoption Assistance and Child Welfare Act of 1980] conferred no specific, individually enforceable rights, there was no basis for private enforcement, even by a class of the statute‘s principal beneficiaries.” (citing Suter v. Artist M., 503 U.S. 347, 357 (1992))); California v. Sierra Club, 451 U.S. 287, 294 (1981) (“The question is not simply who would benefit from the Act, but whether Congress intended to confer federal rights upon those beneficiaries.“).
The targeted portion of HAVA section 303(a)(4) fits comfortably among those statutory provisions found to create individually enforceable rights because of their “unmistakable focus on the benefited class.” Gonzaga Univ., 536 U.S. at 287 (quoting Cannon v. Univ. of Chi., 441 U.S. 677, 691 (1979)). Although section 303(a)‘s primary focus is the obligation of states to adopt measures to ensure accurate registration records, and section 303(a)(4)(A) furthers that objective by directing state officials to implement certain safeguards for voter roll maintenance, 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. Language that directs state officials in the implementation of statutory objectives may still create an enforceable right where it “mentions a specific, discrete beneficiary group within the statutory text” and “speaks in individualistic
The relevant text of section 303(a)(4)(A) satisfies these requirements. It specifies a discrete class of beneficiaries—“registrants“—and describes specific procedures for removing individual registrants from the state‘s active voter rolls, including the requirement of notice and failure to vote in consecutive elections.
The rights-creating role of this language is reinforced by the contrast drawn by the Supreme Court in Gonzaga University between the language quoted above from Titles VI and IX and the language of the Family Educational Rights and Privacy Act of 1974 (“FERPA“) under review in that case. The Court pointed out that the FERPA provisions “speak only to the Secretary of Education, directing that ‘[n]o funds shall be made available’ to any ‘educational agency or institution’ which has a prohibited ‘policy or practice.‘” 536 U.S. at 287 (quoting
Similarly illustrative is the Court‘s decision in Blessing. There, the Court observed that a provision requiring child support programs to operate in “substantial compliance” with Title IV-D of the Social Security Act “[f]ar from creat[es] an individual entitlement to services,” and instead provides a “standard [that] is simply a yardstick for the Secretary to measure ... systemwide performance.” 520 U.S. at 343. The Court in Sandoval likewise found the necessary “rights-creating language” absent from § 602 of Title VI of the Civil Rights Act of 1964. 532 U.S. at 288 (quoting Cannon, 441 U.S. at 690). The Court explained:
Whereas § 601 decrees that “[n]o person ... shall ... be subjected to discrimination,”
42 U.S.C. § 2000d , the text of § 602 provides that “[e]ach Federal department and agency ... is authorized and directed to effectuate the provisions of [§ 601],”42 U.S.C. § 2000d-1 . Far from displaying congressional intent to create new rights, § 602 limits agencies to “effectuat[ing]” rights already created by § 601.
Id. at 288-89. The Court then utilized the “two steps removed” imagery to which it returned the next year (as quoted above) in Gonzaga University, 536 U.S. at 287:
And the focus of § 602 is twice removed from the individuals who will ultimately benefit from Title VI‘s protection. 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.” Section 602 is yet a step further removed: It focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating.
Sandoval, 532 U.S. at 289 (citation omitted) (quoting Sierra Club, 451 U.S. at 294).
By contrast, no gap exists between the operative text of HAVA section 303(a)(4)(A) and the persons whose interests are at stake. The statutory proscription—“no registrant may be removed“—directly and explicitly protects individual voters. That rights-creating language explains why appellant incorrectly invokes the Supreme Court‘s one-paragraph decision in Brunner v. Ohio Republican Party, 555 U.S. 5 (2008) (per curiam), in support of her view that plaintiffs may not bring a private action under section 303(a)(4)(A). In Brunner, the Court vacated a temporary restraining order directing Ohio‘s Secretary of State to update the state‘s voter registration database, having concluded that the plaintiffs were not sufficiently likely to prove that HAVA section 303 gave them a private right of action. 555 U.S. at 5-6. The subsection of section 303 at issue in Brunner, however, directs action by the state‘s chief election official,23 and it lacks any language show-
ing an intent to create individually enforceable rights. Thus, Brunner does not govern the private-right question here.24 Cf. Sandusky Cty. Democratic Party v. Blackwell, 387 F.3d 565, 572-73 (6th Cir.2004) (per curiam) (holding that the rights-creating language of HAVA § 302(a)(2),
Moreover, it is noteworthy that HAVA, including section 303(a)(4), was enacted pursuant to Congress‘s authority under the Elections Clause of the Constitution. See H.R. Rep. 107-329, pt. 1, at 57, 2001 WL 1579545, at *57;
The other two factors of the private-right inquiry described in Blessing are easily satisfied by section 303(a)(4). Enforcing the right to retention on a state‘s active voter registry would impose no “strain [on] judicial competence,” as the right is concrete and well-defined. Blessing, 520 U.S. at 341. The specificity of the provision‘s directives shields against potentially disparate outcomes, bolstering the conclusion that the language is rights-creating. See Rullan, 397 F.3d at 75. The statute‘s requirements are also “couched in mandatory, rather than precatory, terms,” and “unambiguously impose a binding obligation.” Id.; accord Sandusky, 387 F.3d at 573 (“[T]here can be no doubt that HAVA as a whole is ‘couched in mandatory, rather than precatory, terms.‘“).
We therefore conclude that plaintiffs are entitled to a presumption that HAVA section 303(a)(4)(A) provides them with a right that is enforceable under § 1983. Appellant makes no meaningful attempt to rebut this presumption, and we could thus end our analysis here. Recognizing the importance of this issue, however, we explain why the rationales the Supreme Court has found adequate to defeat such a presumption do not apply here.
4. Did Congress manifest an intent to foreclose a remedy under § 1983?
Congressional intent to “shut the door to private enforcement” of a federal statute may be shown by means of language in the act itself specifically foreclosing a remedy under § 1983 or by implication from Congress‘s creation of “a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.” Gonzaga Univ., 536 U.S. at 284 n. 4 (quoting Blessing, 520 U.S. at 341). We have found no express language in HAVA rejecting a private remedy under § 1983 for violation of the individual right that we have determined is created by section 303(a)(4)(A). We thus must consider whether an individual remedy under § 1983 is compatible with the enforcement mechanisms that HAVA does provide “for the deprivation of [the] federally secured right” it creates. Wright, 479 U.S. at 424 (internal quotation marks omitted).
The Supreme Court has cautioned against “lightly conclud[ing] that Congress intended to preclude reliance on § 1983,” id. at 423-24 (quoting Smith v. Robinson, 468 U.S. 992, 1012 (1984)), and the availability of a private remedy through an administrative mechanism is not necessarily enough to show such intent, see, e.g., Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 (1989). Rather, to confine individuals to a statutory remedy, the legislation must reveal Congress‘s purpose to exclude independent relief in federal court pursuant to § 1983. See, e.g., Wilder v. Va. Hosp. Ass‘n, 496 U.S. 498, 523 (1990) (finding no “indication that Congress specifically intended that [the statute‘s] administrative procedure replace private remedies available under § 1983“).
The rarity of that deliberate exclusion was noted in Rancho Palos Verdes, see 544 U.S. at 121, 125, where the Supreme Court observed that it previously had rejected § 1983 as an available remedy for violations of federal statutory rights
In Rancho Palos Verdes, the Court added a third exemplar to the short list of statutes found to preclude relief under § 1983 for violation of a federal right. See 544 U.S. at 120-21. The statute at issue, a provision of the Telecommunications Act of 1996 (“TCA“),
In its discussion, the Court in Rancho Palos Verdes observed that, for statutory violations, the “dividing line between those cases in which we have held that an action would lie under § 1983 and those in which we have not” has been “the existence of a more restrictive private remedy” in the statute itself. Id. at 121. Importantly, however, it is not a remedy of any type that has supported an inference that Congress intended to foreclose private enforcement through § 1983. “[A] plaintiff‘s ability to invoke § 1983 cannot be defeated simply by [t]he availability of administrative mechanisms to protect the plaintiff‘s interests.” Blessing, 520 U.S. at 347 (quoting Golden State, 493 U.S. at 106). The Supreme Court has emphasized that, in all of its cases holding that § 1983 is available, the statutes did not provide a private judicial remedy for the violation of federal rights. See Rancho Palos Verdes, 544 U.S. at 121-22 (citing cases).
HAVA‘s enforcement provisions, described above in Section III.B.1, fall clearly on the § 1983 side of the dividing line. There is no private judicial remedy provid-
We thus find no congressional intention to preclude federal judicial review of violations of section 303(a)(4)(A) that are asserted through the vehicle of a private lawsuit brought under § 1983.
IV. Conclusion
We hold that HAVA section 303(a)(4)(A) invalidates the voter deactivation procedure of Article 6.012 of Puerto Rico Law 78 and, hence, individuals may not be removed from the Commonwealth‘s active voter registry for federal elections unless they have failed to respond to a notice and did not vote in the preceding two consecutive general federal elections. Because HAVA affords plaintiffs an individually enforceable right to remain on the active voter registry absent those failures to act, and appellant has not shown that Congress intended to foreclose a remedy under
Accordingly, we affirm the district court‘s grant of declaratory and injunctive relief barring the SEC from removing voters from the official list of eligible voters for federal elections unless HAVA‘s requirements have been met. We recognize that questions may arise concerning the administrative steps necessary to bring the SEC‘s procedures into compliance with HAVA. The district court should therefore retain jurisdiction over this case for the time necessary to resolve any conflicts that arise between the parties during the transition.
So ordered. Costs are awarded to plaintiffs.
Appendix follows.
APPENDIX
52 U.S.C.A. § 21083
§ 21083. Computerized statewide voter registration list requirements and requirements for voters who register by mail
(a) Computerized statewide voter registration list requirements
(1) Implementation
(A) In general
Except as provided in subparagraph (B), each State, acting through the chief State election official, shall implement, in a uniform and nondiscriminatory manner, a single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and
(i) The computerized list shall serve as the single system for storing and managing the official list of registered voters throughout the State.
(ii) The computerized list contains the name and registration information of every legally registered voter in the State.
(iii) Under the computerized list, a unique identifier is assigned to each legally registered voter in the State.
(iv) The computerized list shall be coordinated with other agency databases within the State.
(v) Any election official in the State, including any local election official, may obtain immediate electronic access to the information contained in the computerized list.
(vi) All voter registration information obtained by any local election official in the State shall be electronically entered into the computerized list on an expedited basis at the time the information is provided to the local official.
(vii) The chief State election official shall provide such support as may be required so that local election officials are able to enter information as described in clause (vi).
(viii) The computerized list shall serve as the official voter registration list for the conduct of all elections for Federal office in the State.
(B) Exception
The requirement under subparagraph (A) shall not apply to a State in which, under a State law in effect continuously on and after October 29, 2002, there is no voter registration requirement for individuals in the State with respect to elections for Federal office.
(2) Computerized list maintenance
(A) In general
The appropriate State or local election official shall perform list maintenance with respect to the computerized list on a regular basis as follows:
(i) If an individual is to be removed from the computerized list, such individual shall be removed in accordance with the provisions of the National Voter Registration Act of 1993 (
(ii) For purposes of removing names of ineligible voters from the official list of eligible voters—
(I) under section 8(a)(3)(B) of such Act (
(II) by reason of the death of the registrant under section 8(a)(4)(A) of such Act (
(iii) Notwithstanding the preceding provisions of this subparagraph, if a State is described in section 4(b) of the National Voter Registration Act of 1993 (
The list maintenance performed under subparagraph (A) shall be conducted in a manner that ensures that—
(i) the name of each registered voter appears in the computerized list;
(ii) only voters who are not registered or who are not eligible to vote are removed from the computerized list; and
(iii) duplicate names are eliminated from the computerized list.
(3) Technological security of computerized list
The appropriate State or local official shall provide adequate technological security measures to prevent the unauthorized access to the computerized list established under this section.
(4) Minimum standard for accuracy of State voter registration records
The State election system shall include provisions to ensure that voter registration records in the State are accurate and are updated regularly, including the following:
(A) A system of file maintenance that makes a reasonable effort to remove registrants who are ineligible to vote from the official list of eligible voters. Under such system, consistent with the National Voter Registration Act of 1993 (
(B) Safeguards to ensure that eligible voters are not removed in error from the official list of eligible voters.
(5) Verification of voter registration information
(A) Requiring provision of certain information by applicants
(i) In general
Except as provided in clause (ii), notwithstanding any other provision of law, an application for voter registration for an election for Federal office may not be accepted or processed by a State unless the application includes—
(I) in the case of an applicant who has been issued a current and valid driver‘s license, the applicant‘s driver‘s license number; or
(II) in the case of any other applicant (other than an applicant to whom clause (ii) applies), the last 4 digits of the applicant‘s social security number.
(ii) Special rule for applicants without driver‘s license or social security number
If an applicant for voter registration for an election for Federal office has not been issued a current and valid driver‘s license or a social security number, the State shall assign the applicant a number which will serve to identify the applicant for voter registration purposes. To the extent that the State has a computerized list in effect under this subsection and the list assigns unique identifying numbers to registrants, the number assigned under this clause shall be the unique identifying number assigned under the list.
(iii) Determination of validity of numbers provided
The State shall determine whether the information provided by an individual is sufficient to meet the requirements of this subparagraph, in accordance with State law.
(i) Sharing information in databases
The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.
(ii) Agreements with Commissioner of Social Security
The official responsible for the State motor vehicle authority shall enter into an agreement with the Commissioner of Social Security under section 405(r)(8) of Title 42 (as added by subparagraph (C)).
(C) Omitted
(D) Special rule for certain States
In the case of a State which is permitted to use social security numbers, and provides for the use of social security numbers, on applications for voter registration, in accordance with section 7 of the Privacy Act of 1974 (
(b) Requirements for voters who register by mail
(1) In general
Notwithstanding section 6(e) of the National Voter Registration Act of 1993 (
(A) the individual registered to vote in a jurisdiction by mail; and
(B)(i) the individual has not previously voted in an election for Federal office in the State; or
(ii) the individual has not previously voted in such an election in the jurisdiction and the jurisdiction is located in a State that does not have a computerized list that complies with the requirements of subsection (a).
(2) Requirements
(A) In general
An individual meets the requirements of this paragraph if the individual—
(i) in the case of an individual who votes in person—
(I) presents to the appropriate State or local election official a current and valid photo identification; or
(II) presents to the appropriate State or local election official a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter; or
(ii) in the case of an individual who votes by mail, submits with the ballot—
(I) a copy of a current and valid photo identification; or
(II) a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter.
(B) Fail-safe voting
(i) In person
An individual who desires to vote in person, but who does not meet the requirements of subparagraph (A)(i), may cast a provisional ballot under section 21082(a) of this title.
(ii) By mail
(3) Inapplicability
Paragraph (1) shall not apply in the case of a person—
(A) who registers to vote by mail under section 6 of the National Voter Registration Act of 1993 (
(i) a copy of a current and valid photo identification; or
(ii) a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter;
(B)(i) who registers to vote by mail under section 6 of the National Voter Registration Act of 1993 (
(I) a driver‘s license number; or
(II) at least the last 4 digits of the individual‘s social security number; and
(ii) with respect to whom a State or local election official matches the information submitted under clause (i) with an existing State identification record bearing the same number, name and date of birth as provided in such registration; or
(C) who is—
(i) entitled to vote by absentee ballot under the Uniformed and Overseas Citizens Absentee Voting Act [
(ii) provided the right to vote otherwise than in person under section 20102(b)(2)(B)(ii) of this title; or
(iii) entitled to vote otherwise than in person under any other Federal law.
(4) Contents of mail-in registration form
(A) In general
The mail voter registration form developed under section 6 of the National Voter Registration Act of 1993 (
(i) The question “Are you a citizen of the United States of America?” and boxes for the applicant to check to indicate whether the applicant is or is not a citizen of the United States.
(ii) The question “Will you be 18 years of age on or before election day?” and boxes for the applicant to check to indicate whether or not the applicant will be 18 years of age or older on election day.
(iii) The statement “If you checked ‘no’ in response to either of these questions, do not complete this form.”
(iv) A statement informing the individual that if the form is submitted by mail and the individual is registering for the first time, the appropriate information required under this section must be submitted with the mail-in registration form in order to avoid the additional identification requirements upon voting for the first time.
(B) Incomplete forms
If an applicant for voter registration fails to answer the question included on the mail voter registration form pursuant to subparagraph (A)(i), the registrar shall notify the applicant of the failure and provide the applicant with an opportunity to complete the form in a timely manner to allow for the completion of the registration form prior to the next election for Federal office (subject to State law).
Nothing in this subsection shall be construed to require a State that was not required to comply with a provision of the National Voter Registration Act of 1993 (
Notes
If a voter fails to exercise his/her right to vote in a general election, his/her file in the General Voter Registry shall be inactivated. The Commission may exclude voters from the General Voter Registry on the grounds provided by this subtitle or established through regulations. The exclusion of a voter shall not entail the elimination of his/her information from the General Voter Registry.
Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office—
(1) shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965; and
(2) shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person‘s failure to vote, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual—
(A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (B) to the notice sent by the applicable registrar; and then
(B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office.
The Attorney General may bring a civil action against any State or jurisdiction in an appropriate United States District Court for such declaratory and injunctive relief (including a temporary restraining order, a permanent or temporary injunction, or other order) as may be necessary to carry out the uniform and nondiscriminatory election technology and administration requirements [required by HAVA].
The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.