Colon-Marrero v. Garcia-Velez , 813 F.3d 1 ( 2016 )

United States Court of Appeals
For the First Circuit
Nos. 15-1356
15-1722
MYRNA COLÓN-MARRERO; JOSEFINA ROMAGUERA AGRAIT,
Plaintiffs, Appellees; Cross-Appellants,
GUILLERMO SAN ANTONIO-ACHA, as Electoral Commissioner of the
Popular Democratic Party; JORGE DÁVILA, as Electoral
Commissioner of the New Progressive Party,
Defendants, Appellees
v.
LIZA M. GARCÍA VÉLEZ, as President of the Puerto Rico State
Elections Commission,
Defendant, Appellant; Cross-Appellee,
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.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Howard, Chief Judge,
Selya and Lipez, Circuit Judges.
José L. Nieto-Mingo, with whom Nieto Law Offices were on
brief, for defendant-appellant/cross-appellee García Vélez.
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.
February 1, 2016
LIPEZ, Circuit Judge. 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
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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
1 Over time, new defendants have been substituted for their
predecessors upon their appointment as president of the SEC or
electoral commissioner. García Vélez, for example, succeeded
Ángel González Román, who previously had succeeded Héctor Conty-
Pérez as SEC president and, as a result of that role, as a defendant
in this case. In addition, certain electoral-commissioner
defendants representing particular political parties, who
originally opposed plaintiffs' request for relief, are either not
part of this appeal or have adopted the plaintiffs' position and
join them as appellees. Currently, García Vélez is the sole
defendant-appellant.
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hold that plaintiffs may bring a private cause of action seeking
relief under HAVA pursuant to 42 U.S.C. § 1983. Accordingly, we
affirm the judgment of the district court.
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
Article 6.012,2 for having "exercised their right not to vote in
the 2008 election for Resident Commissioner."3 Am. Compl. ¶ 1.
They asserted violations of NVRA, HAVA, and the Constitution, and
sought declaratory and injunctive relief that included
invalidation of Article 6.012 and immediate reinstatement of
themselves and all similarly situated persons as eligible voters
2 In pertinent part, Article 6.012, P.R. Laws Ann. tit. 16,
§ 4072 (2011), provides:
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.
3 The only federal office for which Puerto Rico residents
are eligible to vote is Resident Commissioner -- a position that
exists only in Puerto Rico. See 48 U.S.C. § 891; 52 U.S.C.
§ 30101(3).
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"in the upcoming election for federal office." Id. ¶ 2.4 Under
both NVRA and HAVA, registered voters retain eligibility to vote
in a federal election unless they have failed to respond to a
notice seeking to confirm eligible residency and have not voted in
two consecutive general elections for federal office. See 52
U.S.C. § 20507(b)(2)(NVRA); id. § 21083(a)(4)(A) (HAVA).5
Plaintiffs also asked for an order directing the defendants "to
abide by all the voter registration and other applicable mandates
of the NVRA, HAVA and the first, due process and equal protection
amendments to the Constitution." Am. Compl. ¶ 2.
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
4 Plaintiffs estimated in their complaint that approximately
500,000 otherwise qualified voters were deactivated for the 2012
election "simply because they did not vote in the 2008 general
elections." Am. Compl. ¶ 17. More than 200,000 of those voters
used the designated reactivation procedure to qualify to vote in
2012. See Colón-Marrero, 703 F.3d at 136, 139; P.R. Laws Ann.
tit. 16, § 4073. The deactivated voters are known as "I-8 voters."
5 Statutory provisions relating to voting and elections,
including NVRA and HAVA, recently were transferred from Titles 2
and 42 into new Title 52, which is labeled "Voting and Elections."
See 52 U.S.C. Disposition Table. Other than in quoting sources
that use the old code references, we refer to the new Title 52
section numbers.
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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 not alleviate the majority's
feasibility concerns.
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
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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
6 Colón-Marrero raised the broader question of a right to vote
on local candidates and issues to the appeals court for the first
time in her supplemental briefing after the district court's fact-
finding. 703 F.3d at 138.
7 The dissent argued, inter alia, that Puerto Rico is covered
by both NVRA and HAVA, and that the requested preliminary
injunction should have been granted.
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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
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all parties agreeing that our 2012 ruling governed on the
applicability of NVRA.
The district court found in favor of plaintiffs on January
30, 2015, and entered final judgment granting declaratory and
injunctive relief on June 4, 2015.8 In its decision, the court
cited the undisputed fact that HAVA by its terms applies in Puerto
Rico, see 52 U.S.C. § 21141, and it concluded that the HAVA
provision setting out the two-election prerequisite for
deactivating voters is not limited to jurisdictions covered by
NVRA. The court explained that the pertinent provision in HAVA
does not merely incorporate the equivalent NVRA provision, but
"explicitly set[s] forth" the requirement that a voter miss two
consecutive general elections before being deactivated.
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
8
In its June 4 order, the court granted final judgment on
plaintiffs' claim under HAVA and explained that, given the relief
ordered pursuant to that claim, it was unnecessary to reach
plaintiffs' NVRA and constitutional claims. That same day, the
court also reissued the decision that it had issued in January
under the title "Declaratory Judgment" with a new title:
"Memorandum Opinion Declaring Rights and Granting Equitable
Relief."
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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
9 Because plaintiffs sought an order requiring the defendants
to abide by all of NVRA's requirements -- including expanded
methods of voter registration -- invalidation of Article 6.012's
deactivation procedure based on HAVA does not render their other
claims moot.
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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.
B. The Constitutionality of NVRA
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
10NVRA defines "State" as "a State of the United States and
the District of Columbia." 52 U.S.C. § 20502(4).
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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.
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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 48 U.S.C. § 891 (setting
a four-year term for the Resident Commissioner). Article 6.012
thus allows election officials to remove individuals from active
voting rolls after the same four-year period prescribed by NVRA -
- albeit after one election rather than two.
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 U.S. Const. art. II, § 1, cl.2;
id. amend. XXIII. Plaintiffs do not explain why Congress could
not rely on those distinctions to refrain from extending NVRA's
obligations to the federal election process in the Commonwealth.11
11We note, however, that Congress via HAVA later imposed the
same prerequisites for removing Puerto Rico residents from the
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We thus conclude that plaintiffs have not articulated a viable
constitutional challenge to NVRA based on the exclusion of Puerto
Rico from its scope.
III. The Appeal: HAVA and a Private Right of Action
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.
registry of eligible voters for federal elections. See infra
Section III.A.
12 In its Memorandum Opinion, the district court noted that
Puerto Rico has a combined voter registration system for federal
and Commonwealth elections and, hence, it concluded that "the
provision set forth in 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." We, however, offer no view
as to whether the SEC is able to comply with HAVA without also
changing its requirements for eligibility to vote for Commonwealth
offices. See Colón-Marrero, 703 F.3d at 138 ("[I]t is an open and
difficult question -- one not addressed by plaintiff -- whether
HAVA would provide a basis for a federal court ordering the
reinstatement of voters in Commonwealth elections.").
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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 52
U.S.C. § 20501(b) (stating that the purposes of NVRA include
"establish[ing] procedures that will increase the number of
eligible citizens who register to vote in elections for Federal
office" and "ensur[ing] that accurate and current voter
registration rolls are maintained"); 52 U.S.C. §§ 21081-85
(outlining HAVA requirements for election technology and
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administration).13 Unlike NVRA, however, HAVA by its express terms
applies to Puerto Rico and the United States territories, in
addition to the states and the District of Columbia. Id. § 21141.
The specific HAVA provision at issue in this case,
section 303(a), is titled "Computerized statewide voter
registration list requirements." 52 U.S.C. § 21083(a). With an
exception not relevant here, the section directs that "each State
. . . shall implement, in a uniform and nondiscriminatory manner,
a single, uniform, official, centralized, interactive computerized
statewide voter registration list . . . that contains the name and
registration information of every legally registered voter in the
State." Id. § 21083(a)(1)(A). Appellant focuses on HAVA
13Although the two statutes share a purpose to "protect the
integrity of the electoral process," 52 U.S.C. § 20501(b)(3); see
also H.R. Rep. 107-329, pt. 1, at 31 (2001), 2001 WL 1579545, at
*31 (stating that HAVA's purpose is "to improve our country's
election system"), NVRA's primary emphasis is on simplifying the
methods for registering to vote in federal elections, see Young v.
Fordice, 520 U.S. 273, 275 (1997), while HAVA's voter registration
provisions are focused on achieving greater accuracy by improving
technology and administration, see 52 U.S.C. § 21083.
NVRA, for example, "requires each State to permit prospective
voters to 'register to vote in elections for Federal office' by
any of three methods: simultaneously with a driver's license
application, in person, or by mail." Arizona v. Inter Tribal
Council of Ariz., Inc., 133 S. Ct. 2247, 2251 (2013) (quoting 52
U.S.C. § 20503(a)). HAVA's requirements include creation of a
"[c]omputerized statewide voter registration list" to "ensure that
voter registration records in the State are accurate and are
updated regularly." 52 U.S.C. § 21083(a), (a)(4).
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section 303(a)(4), which is titled "Minimum standard for accuracy
of State voter registration records" and provides:
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.
52 U.S.C. § 21083(a)(4) (emphasis added).
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
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of Columbia.14 The district court concluded otherwise, pointing
out that HAVA does not simply invoke NVRA, "leaving it to the
14 NVRA references the deactivation prerequisites in two
different, but related, provisions. The statute requires states
to "conduct a general program that makes a reasonable effort" to
remove the names of no-longer-eligible voters from the active voter
registry on account of their death or a change in residence. 52
U.S.C. § 20507(a)(4). Requirements for such a program, including
the notice and failure-to-vote limitations, are spelled out in the
following subsection, titled "Confirmation of voter registration":
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.
52 U.S.C. § 20507(b) (citation omitted).
The "procedures described in subsections (c) and (d)" include
the second reference to the deactivation prerequisites. In
combination, those two subsections authorize use of Postal Service
information to identify registrants whose addresses may have
changed, but bar removal of names from the list of eligible voters
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reader to refer to that law to determine its contents," but instead
explicitly sets forth the two-election requirement for
deactivation of voters.
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)).
on account of a change in residence absent written confirmation
from the registrant or a failure both to respond to a notice and
vote in two elections after the notice has been sent. Id.
§ 20507(c), (d).
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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. 52
U.S.C. § 21083(a)(4)(A). These required actions are not defined
by reference to obligations arising from NVRA.
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.
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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.
2. The Statutory Context
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." 52 U.S.C. § 21083. Subsection
(a) addresses the statewide registration list, and subsection (b)
addresses registration by mail. Each of those subsections is
divided into five paragraphs, most of which are further subdivided
into a number of subparagraphs. A contextual review thus requires
close examination of multiple provisions. To aid the reader's
understanding of our analysis, and as a supplement to the specific
provisions within section 303 that are reproduced as part of our
discussion, we provide the full text of section 303(a) and (b) in
an appendix to this opinion.
Appellant claims that the inapplicability of HAVA's
deactivation requirements to Puerto Rico is announced in
- 22 -
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." 52 U.S.C. § 21083(b)(5)
(citation omitted). 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
-- 52 U.S.C. § 21083 -- addresses the "Computerized statewide voter
registration list requirements," while subsection (b) details
"Requirements for voters who register by mail."
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.15 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
15 The five paragraphs under the heading "Requirements for
voters who register by mail" are titled: (1) "In general"; (2)
"Requirements"; (3) "Inapplicability"; (4) "Contents of mail-in
registration form"; and (5) "Construction." The "Construction"
paragraph -- the one appellant cites -- contains only the language
quoted above stating that "[n]othing in this subsection" should be
construed to require a state's compliance with a provision of NVRA
if it was not previously required to do so. 52 U.S.C. § 21083(b)(5)
(emphasis added).
- 23 -
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 the computerized list on a regular basis," 52
U.S.C. § 21083(a)(2)(A), and it then specifies how to do so in
terms that refer to NVRA.
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 id. § 21083(a)(2)(A)(i). This
instruction then lists several subsections of NVRA that prescribe
removal procedures. Id. Among those provisions is one titled
16 The five paragraphs of subsection (a) are titled as
follows: (1) "Implementation"; (2) "Computerized list
maintenance"; (3) "Technological security of computerized list";
(4) "Minimum standard for accuracy of State voter registration
records"; and (5) "Verification of voter registration
information." 52 U.S.C. § 21083(a). Subsection (a)(4) -- the
"Minimum standard" provision -- includes the deactivation
language.
- 24 -
"Removal of names from voting rolls," id. § 20507(d), which
contains the notice and non-voting prerequisites for removal,
linked to a change of residence. See id. § 20507(d)(1)(B); see
supra n.14. Other provisions listed contain NVRA's requirements
for (1) the content of the notice that must be sent to registrants,
id. § 20507(d)(2); (2) "a general program" to remove the names of
ineligible voters based on death or change in residence, id.
§ 20507(a)(4); and (3) procedures to allow a registrant who has
moved within a district, without officially changing his address,
to vote in his old or new polling place, id. § 20507(e).
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
17Appellant's failure to acknowledge HAVA's affirmative
requirements leads her to rely incorrectly on an amicus brief
- 25 -
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." 52 U.S.C. § 21083(a)(2)(A)(iii) (citation omitted).
States "described in section 4(b)" of NVRA are those that either
have no registration requirements for voting in federal elections
or allow "all voters in the State" to "register to vote at the
polling place at the time of voting in a general election for
Federal office." Id. § 20503(b). Puerto Rico would not be such
a state even if it were included within NVRA's definition of
"State." Indeed, this litigation would be unnecessary if that
description applied to Puerto Rico.
Put simply, HAVA's look-back to NVRA in section 303(a)(4)(A)
is sensibly understood only as an assurance that the obligations
submitted in the prior appeal by the Civil Rights Division of the
Department of Justice addressing NVRA's applicability to Puerto
Rico. In particular, appellant emphasizes the brief's assertions
that HAVA "does not expand the coverage of the NVRA" and that "HAVA
does not add jurisdictions to the coverage of the NVRA." Rather
than bolstering appellant's argument, those statements reinforce
our conclusion that HAVA section 303(a) leaves NVRA intact while
independently creating obligations for the jurisdictions it
covers. Indeed, the DOJ brief recognizes that "HAVA imposes
obligations of its own on covered jurisdictions -- including Puerto
Rico."
- 26 -
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 voters, but protects eligible voters -- align with those
previously mandated by NVRA.18 By contrast, HAVA does not draw
upon NVRA for the fundamentally different matter of which
jurisdictions it covers. Each statute has its own definition of
a covered "State." Under NVRA, "the term 'State' means a State of
the United States and the District of Columbia." 52 U.S.C. §
20502(4). Under HAVA, the term "State" "includes the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa,
and the United States Virgin Islands." Id. § 21141.
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,
18
HAVA also contains a generally applicable section stating
that it has "No effect on other laws," including NVRA, other than
as explicitly stated with respect to certain registration-by-mail
requirements. See 52 U.S.C. § 21145.
- 27 -
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
- 28 -
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 52 U.S.C.
§ 21083(a)(4)(A).
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 must be
dismissed because individuals have no private right of action to
seek a remedy under the statute. Although the parties debated
this contention in their post-remand memoranda to the district
court, the court did not directly address the issue. Its ruling,
however, reflects an implicit conclusion that plaintiffs have
properly sought relief under HAVA. To evaluate the correctness of
that determination, we must closely examine the statute against
the backdrop of the applicable precedent.
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
- 29 -
General, 52 U.S.C. § 21111,19 and (2) in states receiving funds
under HAVA, "[e]stablishment of State-based administrative
complaint procedures," id. § 21112(a).20 States that do not receive
HAVA funds must either certify that they have a comparable
administrative scheme or submit a detailed compliance plan showing
"the steps the State will take to ensure that it meets the
[statute's] requirements." Id. § 21112(b)(1)(B). The code
sections containing these two procedures constitute a separate
subchapter of HAVA titled "Enforcement." See id. §§ 21111, 21112.
19 Section 21111 states in full:
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].
20
Under the required administrative scheme, "any person who
believes that there is a violation" of HAVA's voting and
registration requirements may file a complaint with the state. 52
U.S.C. § 21112(a)(2)(B). If the state determines that a violation
occurred, it must "provide the appropriate remedy." Id.
§ 21112(a)(2)(F). If the state finds no violation, it must
"dismiss the complaint and publish the results of the procedures."
Id. § 21112(a)(2)(G). If the state does not make a final
determination on the complaint within 90 days, the issue must be
resolved "under alternative dispute resolution procedures
established" for such purpose. Id. § 21112(a)(2)(H), (I).
- 30 -
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 42 U.S.C. § 1983. See generally City of Rancho Palos
Verdes v. Abrams, 544 U.S. 113, 119-21 (2005); Gonzaga Univ. v.
Doe, 536 U.S. 273, 283-85 (2002).21 The inquiries to determine
whether such paths exist are similar and begin with the same
question: did Congress intend to create a federal right? See
Gonzaga Univ., 536 U.S. at 283. One difference between the two
approaches is that an individual seeking to sue under an implied
right of action "must show that the statute manifests an intent
'to create not just a private right but also a private remedy.'"
Id. at 284 (quoting Alexander v. Sandoval, 532 U.S. 275, 286
(2001)). By contrast, an individual pursuing relief under § 1983
"do[es] not have the burden of showing an intent to create a
21
Section 1983 does not itself confer any rights, but "merely
provides a mechanism for enforcing individual rights 'secured'
elsewhere, i.e., rights independently 'secured by the Constitution
and laws' of the United States." Gonzaga Univ., 536 U.S. at 285.
- 31 -
private remedy because § 1983 generally supplies a remedy for the
vindication of rights secured by federal statutes." Id.
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 52 U.S.C.
§ 20901. Subchapter II establishes an independent Election
- 32 -
Assistance Commission, id. § 20921, to "serve as a national
clearinghouse and resource for the compilation of information and
review of procedures with respect to the administration of Federal
elections," id. § 20922, and Subchapter V establishes the "Help
America Vote College Program," id. § 21121. Subchapter III -- the
one directly pertinent to this case -- is titled "Uniform and
Nondiscriminatory Election Technology and Administration
Requirements." See id. §§ 21081-21085. Its provisions include
HAVA section 303, which itself is titled "Computerized statewide
voter registration list requirements and requirements for voters
who register by mail." Id. § 21083. Subchapter III also imposes
requirements for "voting systems" generally,22 public posting of
information on election days, and provisional voting. Id.
§§ 21081-82.
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
22 These include, for example, that a "voting system used in
an election for Federal office" "provide the voter with the
opportunity (in a private and independent manner) to change the
ballot or correct any error before the ballot is cast and counted,"
52 U.S.C. § 21081(a)(1)(A)(ii), and measures to ensure
accessibility for individuals with disabilities, id.
§ 21081(a)(3)(A).
- 33 -
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, however,
that some provisions of Title IV-D might confer enforceable
individual rights, and it returned the case to the district court
"to determine exactly what rights, considered in their most
concrete, specific form, respondents are asserting." Id. at 346;
see also Sandoval, 532 U.S. at 288-89 (contrasting § 601 of Title
VI of the Civil Rights Act of 1964, which creates individual
rights, and § 602, which does not).
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
- 34 -
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
- 35 -
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 terms, rather than
at the aggregate level of institutional policy or practice." Rio
Grande Cmty. Health Ctr. v. Rullan, 397 F.3d 56, 74 (1st Cir.
2005); accord Bryson v. Shumway, 308 F.3d 79, 88 (1st Cir. 2002).
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. 52 U.S.C. § 21083(a)(4)(A). Moreover, the
command of the provision's final clause, that "no registrant may
be removed solely by reason of a failure to vote," id., resembles
- 36 -
the language in Titles VI and IX of the Civil Rights Act of 1964
that the Supreme Court has highlighted as indicative of Congress's
intent to create an individual right: "No person . . . shall . . .
be subjected to discrimination." Gonzaga Univ., 536 U.S. at 287
(quoting 20 U.S.C. § 1681(a); 42 U.S.C. § 2000d). On its face,
section 303(a)(4)(A) confers a "right" on every "registrant" not
to be removed from a state's active registry for failure to
participate in one general election.
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 20 U.S.C. § 1232g(b)(1)).
The Court observed that "[t]his focus is two steps removed from
the interests of individual students and parents and clearly does
not confer the sort of 'individual entitlement' that is enforceable
under § 1983." Id. (quoting Blessing, 520 U.S. at 343). The Court
thus concluded that the FERPA provisions under scrutiny do not
confer enforceable rights. Id.
- 37 -
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, 414 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
- 38 -
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
23 The subsection, 52 U.S.C. § 21083(a)(5)(B)(i), states:
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
- 39 -
lacks any language showing 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), 52
U.S.C. § 21082(a)(2) -- stating that individuals "shall be
permitted to cast a provisional ballot" -- is unambiguous).
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; U.S. Const. art.
I, § 4, cl. 1. The Supreme Court has observed that statutes
enacted under Congress's spending power rarely give rise to
enforceable individual rights, as "the typical remedy for state
noncompliance with federally imposed conditions [in spending
legislation] is not a private cause of action for noncompliance
but rather action by the Federal Government to terminate funds to
accuracy of the information provided on
applications for voter registration.
24
We refuse to draw any significance from the Supreme Court's
broad reference to section 303, rather than to the specific
subsection at issue, when it raised doubts about the availability
of a private remedy. The Brunner Court reproduced the specific
provision it was considering, see 555 U.S. at 5 n.*, and --
particularly given the one-paragraph per curiam -- it would be
absurd to construe the decision as precedent on another subsection
whose language it did not examine.
- 40 -
the State." Gonzaga Univ., 536 U.S. at 280 (quoting Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981)). The Court
further commented that its "more recent decisions . . . have
rejected attempts to infer enforceable rights from Spending Clause
statutes," absent language that unambiguously confers such rights
on the statute's beneficiaries. Id. at 281. Here, the provision
at issue is both authorized by constitutional authority more
specific than the spending power and contains language
unambiguously conferring individual rights.
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
- 41 -
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
- 42 -
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 (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, where the Supreme Court observed
that it previously had rejected § 1983 as an available remedy for
violations of federal statutory rights in only two cases: Middlesex
County Sewerage Authority v. National Sea Clammers Association,
453 U.S. 1 (1981), and Smith, 468 U.S. at 1012. In Sea Clammers,
the environmental statutes at issue contained "unusually elaborate
enforcement provisions," allowing "any interested person" to
challenge actions of the Administrator of the Environmental
Protection Agency in federal appeals courts, 453 U.S. at 13-14,
and, in addition, "authoriz[ing] private persons to sue for
injunctions to enforce these statutes," id. at 14. Similarly, in
Smith, the Court found that "the carefully tailored administrative
and judicial mechanism," 468 U.S. at 1009, in the Education of the
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Handicapped Act manifested "Congress' intent that each child's
individual educational needs be worked out through a process that
begins on the local level and includes ongoing parental
involvement, detailed procedural safeguards, and a right to
judicial review," id. at 1011. Hence, the Court concluded that
Congress meant to foreclose "the ability of a handicapped child to
go directly to court with an equal protection claim." Id.
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"), 42 U.S.C. § 332(c)(7), contains a remedial system
that includes judicial review, but "limits relief in ways that
§ 1983 does not." Id. at 122. The statutory period for filing a
claim is shorter, the district court must hear the claim on an
expedited basis, and the available remedies do not include
attorney's fees and costs. Id. at 122-23. The Court concluded
that enforcement of § 332(c)(7) through § 1983 would "distort
th[is] scheme of expedited judicial review and limited remedies."
Id. at 127. The Court thus held that "the TCA -- by providing a
judicial remedy different from § 1983 in § 332(c)(7) itself --
precluded resort to § 1983." Id.25
25 The Court emphasized in Rancho Palos Verdes that the
availability of a private judicial remedy under a statute does not
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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 provided in the statute. The
Attorney General may bring a civil action in federal court, 52
U.S.C. § 21111, but the only remedial option for individuals is to
file complaints with the state, id. § 21112(a)(2)(B). Pursuant to
conclusively establish congressional intent to foreclose § 1983
relief, but it supports an inference that can be "overcome by
textual indication, express or implicit, that the remedy is to
complement, rather than supplant, § 1983." 544 U.S. at 122.
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the required administrative procedures, a finding by the state
that no violation occurred results in dismissal of the complaint.
Id. § 21112(a)(2)(G). Far from indicating congressional intent to
foreclose a private remedy under § 1983, these limited enforcement
options reflect an intention to leave that door wide open. See,
e.g., Wright, 479 U.S. at 427 ("In both Sea Clammers and Smith v.
Robinson, the statutes at issue themselves provided for private
judicial remedies, thereby evidencing congressional intent to
supplant the § 1983 remedy. There is nothing of that kind found
in the . . . Housing Act."); accord Sandusky, 387 F.3d at 573; Bay
Cty. Democratic Party v. Lund, 347 F. Supp. 2d 404, 426-27 (E.D.
Mich. 2004); cf. Gonzaga Univ., 536 U.S. at 289-90 (noting that
the detailed federal enforcement procedures in FERPA "squarely
distinguish this case" from those "where an aggrieved individual
lacked any federal review mechanism").
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
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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
42 U.S.C. § 1983, plaintiffs properly sought relief for their
improper removal in this federal action.
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.
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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 administered at the State level that contains the name and registration
information of every legally registered voter in the State and assigns a unique identifier to each
legally registered voter in the State (in this subsection referred to as the “computerized list”), and
includes the following:
(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.
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(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 (42 U.S.C. 1973gg et seq.),
including subsections (a)(4), (c)(2), (d), and (e) of section 8 of such
Act (42 U.S.C. 1973gg-6).
(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 (42 U.S.C. 1973gg-
6(a)(3)(B)), the State shall coordinate the computerized list with
State agency records on felony status; and
(II) by reason of the death of the registrant under section
8(a)(4)(A) of such Act (42 U.S.C. 1973gg-6(a)(4)(A)), the State
shall coordinate the computerized list with State agency records on
death.
(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 (42 U.S.C. 1973gg-2(b)), that State shall
remove the names of ineligible voters from the computerized list in
accordance with State law.
(B) Conduct
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.
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(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 (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.
(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.
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(B) Requirements for State officials
(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 (5 U.S.C. 552a note), the provisions of this paragraph shall
be optional.
(b) Requirements for voters who register by mail
(1) In general
Notwithstanding section 6(c) of the National Voter Registration Act of 1993 (42 U.S.C.
1973gg-4(c)) and subject to paragraph (3), a State shall, in a uniform and nondiscriminatory
manner, require an individual to meet the requirements of paragraph (2) if--
(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
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(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
An individual who desires to vote by mail but who does not
meet the requirements of subparagraph (A)(ii) may cast such a ballot
by mail and the ballot shall be counted as a provisional ballot in
accordance with section 21082(a) of this title.
(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
(42 U.S.C. 1973gg-4) and submits as part of such registration either--
(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 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 (42 U.S.C. 1973gg-4) and submits with such registration either--
(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 [52 U.S.C.A. § 20301 et
seq.];
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(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 (42 U.S.C. 1973gg-4) shall include the following:
(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).
(5) Construction
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 (42 U.S.C. 1973gg et
seq.) before October 29, 2002, to comply with such a provision after October 29, 2002.
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