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You Can't HAVA Federal Relief in a Local Recount

By Robyn Hagan Cain on April 27, 2012 | Last updated on March 21, 2019

If there’s one thing that we learned from Bush v. Gore and the 2000 Florida recount, it’s that recounts lack order.

The Ninth Circuit Court of Appeals reached a similar conclusion this week, finding that federal law does not mandate ballot recount methods in elections for non-federal offices, reports Metropolitan News-Enterprise.

What's interesting about this case is that Congress acted after the 2000 presidential election to head off another recount kerfuffle, passing the Help America Vote Act (HAVA) in 2002. HAVA § 301, however, does not apply to state and local elections, according to the Ninth Circuit.

In 2006, plaintiff Martin Crowley was a candidate for Justice of the Peace in Churchill County. After finishing first in the primary election, Crowley lost the general election by 26 votes. He was granted a recount.

Crowley, who was present for the recount, alleges that several HAVA violations occurred during the process. He sued the county, seeking declaratory judgments that the Nevada Secretary of State violated HAVA, the recount was botched, and an independent overseer should be appointed for future elections.

The district court dismissed Crowley's declaratory relief claims for failure to state a cognizable private claim because "declaratory relief claims are within the express purview of the United States Attorney General's enforcement," and HAVA § 301 -- the relevant part of the law in this case -- did not create a private right of action for declaratory relief.

The Ninth Circuit Court of Appeals agreed. Judge Richard Tallman, writing for the three-judge panel, held that "even if HAVA § 301 confers a federal right in a contested federal election, Crowley would not be a member of the class intended to benefit from the right because the recount provision of HAVA § 301 was not intended to benefit voters or candidates in local elections. Therefore, the district court correctly granted summary judgment for the defendants."

Recounts are an inevitable in most election years, but candidates running for state and local office will be have to rely on state laws when challenging the recount process.

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