Supremacy Clause/§1983 Upheld Unanimously In Provisional Vote Cases; DOJ Opposed

Now that the dust has settled a bit from the election, courts have unanimously upheld causes of action under 42 U.S.C. § 1983 and preemption/Supremacy Clause to enforce the right to a provisional ballot under the Help America Vote Act (HAVA).
The preemption holdings in particular should be useful to litigants seeking to enforce federal law. The unanimity of the § 1983 holdings-- unremarkable given the clear language of the statute--makes it all the more astonishing to find out that the federal government had intervened to argue that HAVA can only be enforced by the Justice Department and not private parties. The government’s position does not bode well for its stance toward future § 1983 cases involving other statutes.

HAVA provides, inter alia, that "if an individual declares that such individual is a registered voter" …but the name of the individual does not appear on the official list …such individual shall be permitted to cast a provisional ballot as follows." 42 U.S.C. § 15482(a). The statute contains detailed provisions implementing this right, including a requirement that "information on the right of an individual to cast a provisional ballot…be posted at polling places." Id. § 15482(b)(2)(E) (emphasis added).

Not surprisingly, courts have found that HAVA focuses on individuals and includes "rights-creating language," as required by Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), and thus is enforceable under § 1983. The Sixth Circuit, Sandusky Co. Democratic Party v. Blackwell, CF.3d C, 2004 WL 2384445 (6th Cir. Oct. 26, 2004), affirmed the § 1983 district court holding that we previously reported (while reversing on the merits). At least four other district courts have upheld HAVA's enforceability under § 1983. See Lucas Co. Democratic Party v. Blackwell, CF.Supp.2dC, 2004 WL 2382297 (N.D. Ohio Oct. 21, 2004); Florida Democratic Party v. Hood, CF.Supp.2dC, 2004 WL 2414419 (N.D. Flor. Oct. 21, 2004); Bay Co. Democratic Party v. Land, CF.Supp.2dC, 2004 WL 2345560 (E.D. Mich. Oct. 19, 2004); ACLU v. Kiffmeyer, 2004 WL 2428690 (D. Minn. Oct. 28, 2004).

The Sixth Circuit in Sandusky did not address the lower court's holding that HAVA is also enforceable through a preemption claim under the Supremacy Clause. However, three other courts have addressed the issue in some fashion. The best discussion is found in League of Women Voters v. Blackwell, CF.Supp.2dC, 2004 WL 2359988 (N.D. Ohio Oct. 20, 2004). After discussing the Supreme Court cases that uphold federal jurisdiction over preemption claims without addressing the cause of action, the court stated:

"The best explanation of Ex Parte Young and its progeny is that the Supremacy Clause creates an implied right of action for injunctive relief against state officers who are threatening to violate the federal Constitution or laws." Burgio and Campofelice v. NYS Dep't of Labor, 107 F.3d 1000, 1006 (2d Cir.1997) (quoting Wright, Miller, and Cooper, Federal Practice and Procedure: Jurisdiction 2d '' 3566 (1984)); see also Fallon, Meltzer, & Shapiro, Hart & Wechsler's The Federal Courts & The Federal System 903 (5th ed. 2003) ("[T]he rule that there is an implied right of action to enjoin state or local regulation that is preempted by a federal statutory or constitutional provision ... is well-established.").

Because plaintiffs' claim is that defendant's actions in his official duties violate a federal law which has preemptive effect, the Supremacy Clause provides the cause of action and federal jurisdiction.

The court also found that "'in suits against state officials for declaratory and injunctive relief, a plaintiff may invoke the jurisdiction of the federal courts by asserting a claim of preemption, even absent an explicit statutory cause of action.'" League of Women Voters, 2004 WL 2359988 at *4 (quoting Local Union No. 12004 v. Mass., 377 F.3d 64 (1st Cir. 2004)).

In addition, the court in Bay County Democratic Party, supra, proceeded to the merits of the preemption/Supremacy Clause claim without discussing the existence of the cause of action, and the court in ACLU, supra, upheld jurisdiction over the Supremacy Clause claim in a single sentence with no discussion.

These Supremacy Clause/preemption holdings clearly establish that preemption is a viable alternative means of enforcing federal statutes even if there is no "right" enforceable under § 1983. However, so far courts have generally enforced preemption claims only where a state or local law, regulation or policy of general application is being challenged, not when a discrete action by governmental officials is alleged to violate federal law. Preemption claims also are not available to seek damages or attorneys' fees.