STATEMENT OF MARK CORALLO REGARDING DEPARTMENT OF JUSTICE’S
AMICUS BRIEF IN HAVA LITIGATION IN THE EASTERN DISTRICT OF MICHIGAN

“Through the Help America Vote Act of 2002, Congress made an explicit decision not to disturb states' long-standing authority to determine how ballots are to be counted, and the United States believes that courts must respect that congressional decision. Last week, two federal courts issued conflicting opinions regarding whether HAVA banned the use of traditional precinct-based voting systems. Today, the United States filed a friend-of-the-court brief in Michigan addressing this issue. The Justice Department believes it is critically important that the validity of state rules on provisional ballots be resolved before the November 2 election, so that eligible voters may cast a ballot knowing that their votes will be counted.”

The United States' position is set forth more fully, in the introduction to its brief, quoted below:

MEMORANDUM BY THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS
AND BRIEF IN SUPPORT THEREOF

INTRODUCTORY STATEMENT

The United States in this brief takes no position regarding whether the Michigan statutes or Constitution require the remedy that plaintiffs seek. The United States, likewise, takes no position regarding whether traditional precinct-based voting is to be preferred, from a policy perspective, over a system offering the kind of statewide provisional balloting demanded by the plaintiffs. As was demonstrated during the extensive floor debates on HAVA, there are policy arguments supporting each approach, but that policy decision was left by Congress to the individual States, some of which have decided one way, some the other.

The United States submits this brief, as amicus curiae, for two purposes. First, it is clear that Congress did not intend to authorize private enforcement, via litigation, of the requirements of HAVA, but instead intended to channel private complaints into state administrative processes and to reserve judicial enforcement to the Department of Justice. Second, it is equally clear that Congress did not intend through HAVA to preclude States from choosing precinct-based voting systems. Granting the relief sought by plaintiff here would offend both of these congressional policy judgments.

Had Congress intended to make HAVA privately enforceable via litigation, it could have done so explicitly, as it did in the Voting Rights Act of 1965, and as it did in the National Voter Registration Act (NVRA). That it did not is made clear by HAVA's text and reinforced by its legislative history. Indeed, Senator Dodd of Connecticut—a HAVA conferee and sponsor—openly lamented the fact that HAVA did not create a private right of action:

"While I would have preferred that we extend [a] private right of action... , the House simply would not entertain such an enforcement provision. Nor would they accept federal judicial review of any adverse decision by a State administrative body."

148 Cong. Rec. S10512 (daily ed. Oct. 16, 2002). Congress, having made an explicit decision not to create a private right of action, clearly did not intend to create a right enforceable through Section 1983.

Congress, similarly, could have chosen to set a uniform federal standard with respect to what is a "jurisdiction" for purposes of provisional balloting, precluding the States from operating precinct-based electoral systems. Yet it plainly did not do so. Indeed, HAVA explicitly commands that "the specific choices on the methods of complying with the requirements of this title shall be left to the discretion of the State." 42 U.S.C. 15485. Senator Dodd acknowledged this as well:

"[N]othing in this bill establishes a Federal definition of when a voter is registered or how a vote is counted. Whether a provisional ballot is counted or not depends solely on state law, and the conferees clarified this by adding language in section 302(a)(4) stating that a voter['s] eligibility to vote is determined under State law."

148 Cong. Rec. S10510 (daily ed. Oct. 16, 2002).

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