· 428 F.Supp.2d 384 (2006)
Civil Action No. 06-481.
April 28, 2006.
*385 Gregory M. Harvey, Montgomery, McCracken, Walker & Rhoads, Philadelphia, PA, Harry P. Litman, Litman Law Firm, Jay K. Reisinger, Reich, Alexander & Reisinger, Thomas J. Farrell, Valerie M. Antonette, Reich, Alexander, Reisinger & Farrell, LLC, Pittsburgh, PA, for Plaintiffs.
LANCASTER, District Judge.
The parties are familiar with the claims,
defenses, and history of this case; therefore, they need not be detailed here.
I need only state that plaintiffs are seven registered
In order to obtain a preliminary injunction plaintiffs must demonstrate: 1) a reasonable likelihood of ultimate success on the merits; 2) that irreparable harm would result if the relief is not granted; 3) that issuance of the injunctive relief would not result in greater harm to the nonmoving party; and 4) that the public interest would best be served by granting the relief. Continental Group, Inc., v. Amoco Chem. Corp., 614 F.2d 351 356-57 (3d Cir.1980).
A preliminary injunction is not a matter of right. A district court's decision to issue a preliminary injunction is committed to the court's sound discretion. The Court of Appeals for the Third Circuit has held, however, that a preliminary injunction must be denied, unless the moving party can demonstrate both a likelihood of success on the merits and the probability of irreparable harm if relief is not granted. Morton v. Beyer, 822 F.2d 364 367 (3d Cir.1987). Because I find that plaintiffs are not likely to succeed on the merits on any of their claims, the motion is denied.
Plaintiffs' primary basis for this suit
is section 301 of the Help America Vote Act, which I will refer to as either
section 301 or "the Act." I find that Congress did not intend to
provide for a private right of action to enforce section 301. Rather, Congress
empowered the Attorney General of the
Section 301 provides, in substance, that
participating states must ensure that local voting jurisdictions have voting
systems in place that comply with certain mandated features for all federal
elections taking place after January 1, 2006. 42 U.S.C. §
15481. In order to assist participating states in complying with the
Act, the Federal Election Assistance Commission has provided federal funds to
be used to purchase new voting machines. The
The Act does not provide a private right
of action to enforce the mandates of section 301. Plaintiffs contend, however,
that section 301 of the Act creates a federal right enforceable against state
officials under 42 U.S.C. § 1983. In this regard, the Supreme Court decision in Gonzaga University v. Doe, 536 U.S. 273, 122 S.Ct. 2268 153 L.Ed.2d 309 (2002), is
controlling. There, the Supreme Court held that there is no private right of
action to enforce this type of statute unless Congress, in a clear voice and
unambiguously, confers a right to a private cause of action.
The Supreme Court also noted that, in
legislation enacted pursuant to Congress's spending power, the typical remedy
for a*387 jurisdiction's
non-compliance with federally imposed mandates, is not a private cause of
action for enforcement. Rather, the appropriate remedy is an action by the
federal government to discontinue funds to the jurisdiction. Gonzaga, 536
The Supreme Court also stated that
whether Congress intended to create a private right of action enforceable under
section 1983 is definitively answered in the negative where a statute, by its
terms, grants no private rights to any identifiable class of people. Gonzaga, 536
The Supreme Court also instructs that we
may not recognize an implied private right of action unless the statute also
provides a private remedy. Gonzaga, 536
Although not dispositive, I also find it
instructive that Congress did provide a procedure for individuals who feel
aggrieved under the Act to seek redress. Under section 402 of the Act, Congress
requires all states receiving payments under this program to establish and
maintain a state based administrative complaint procedure. 42
U.S.C. § 15512. The
Finally, the authorities relied on by plaintiffs pertain to section 302, are clearly distinguishable, both factually and legally, and are not controlling.
Nor do I find that plaintiffs' constitutional claims are likely to succeed. Their claims are based on a potential series of events that may not happen as plaintiffs predict; indeed, may not happen at all. Principally, plaintiffs contend that one or more of the electronic machines may malfunction on election day causing delays and voter frustration or otherwise not give a correct tally. Second, plaintiffs contend *388 that the county poll workers and the voters may not be sufficiently educated by election day as to how the electronic machines work, resulting in miseast votes and/or incorrectly tabulated votes.
As to the first, it is of course possible that one or more of the electronic machines may malfunction on election day, just as the lever machines in the past have from time-to-time malfunctioned on election day. No election system is perfect and no machine built by man is infallible. Voting machine malfunction has been, and probably always will be, a potential problem in every election.
Nor am I persuaded by plaintiffs'
prediction that poll workers and voters will be unable to successfully adapt to
the new technology by election day. The County has a
proactive and well organized plan to educate poll workers and the voters on how
to use the touch screen election machines. The plan was outlined in a press
release from County Executive Dan Onorato dated April
19, 2006. In fact, poll worker training sessions, voter demonstrations, and
other forms of community outreach, including an interactive demonstration on
Of greater significance, however, and
contrary to plaintiffs' assertions, the demonstration conducted in the
courtroom showed that voting on the iVotronic machine
is not at all complicated. The directions were clear, easy to understand, and
easy to follow. In fact, voting on this machine is no more complicated than and
is very similar in operation to the touch screen check-in kiosks at the Greater
Pittsburgh International Airport, or a common ATM machine, both of which have
been successfully used by
Regardless of the voting system used,
however, there will always exist the possibility that
a voter will not follow directions and will make a mistake. There is no reason
for the court to find, however, that the qualified voters and the selected poll
Nor does the evidence support the conclusion that switching to the touch screen electronic voting machines will have a discriminatory effect on disabled voters. Although it is not disputed that some disabled persons will be unable to vote privately and independently on the electronic machines, it is clear that they will not be deprived of their fundamental right to vote. In fact, disabled persons cannot vote privately and independently on the lever machines either. It cannot be disputed that casting a vote privately and independently is preferred over casting a vote with assistance. However, neither the Americans With Disabilities Act nor the Rehabilitation Act require an accommodation that enables disabled persons to vote in a manner that is comparable in every way with the manner in which persons without disabilities vote. Rather, the statutes mandate only that disabled persons are given the opportunity to vote. Nothing in either statute or their regulations reflects an intention on the part of Congress to require private, independent voting.
Because I find that plaintiffs have failed to demonstrate a likelihood of ultimate success on the merits, I could stop here,*389 and not consider the other factors necessary for granting a preliminary injunction. However, I think it is important to note that in this case, the public interest would not be advanced by granting plaintiffs' request for injunctive relief.
Indeed, if I were to grant plaintiffs the
relief sought, Allegheny County will be forced to either not hold an election,
or assuming lever machines could be readied in time—clearly
an unrealistic assumption—hold the election with
lever machines, which all the parties agree are noncompliant with section 301.
Restated, to grant plaintiffs' injunction would force
DocketNumber： Civil Action No. 06-481
Citation Numbers： 428 F. Supp. 2d 384
Filed Date： 4/28/2006
Modified Date： 11/1/2013
Retrieved Date： 10/30/2013
This opinion cites:
This opinion cited: