Dobrovolny v. Nebraska (100 F. Supp. 2d 1012, 2000)

MEMORANDUM AND ORDER

KOPF, District Judge.

This case is before me for decision after a bench trial. Before issuing my findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a), I will briefly summarize the claims and my decision.

This action was brought by parties who unsuccessfully sought to place initiative petitions on the November 1996 general election ballot in Nebraska. They assert several claims: (1) various voter registration list maintenance provisions found in 42 U.S.C. § 1973gg-6 (1994) were violated; (2) initiative petition signature requirements in Article III, Section 2 of the Nebraska Constitution violate the First Amendment and the Due Process Clause of the Fourteenth Amendment; (3) Neb. Rev.Stat.Ann. § 32-1409 (Lexis 1996) violates the First Amendment and the Due Process Clause; and (4) they were denied access to initiative petition and voter registration records in violation of their First Amendment rights.

Defendants raise two main defenses. They assert that plaintiffs cannot bring a private cause of action under the National Voter Registration Act (NVRA), 42 U.S.C. §§ 1973gg to 1973gg-10 (1994) predicated on state ballot questions. They also assert that this court’s earlier decision in Dobrovolny v. Moore, 936 F.Supp. 1536 (D.Neb.1996) (hereinafter Dobrovolny I), aff'd, 126 F.3d 1111 (8th Cir.1997), cert. denied, 523 U.S. 1005, 118 S.Ct. 1188, 140 L.Ed.2d 319 (1998), operates as a res judicata bar to the claims that the petition signature requirements of the Nebraska Constitution violate the First Amendment and the Due Process Clause.

Subsequent to the submission of this case, the Nebraska Supreme Court ruled that § 32-1409(1) violates the Nebraska Constitution and enjoined the Secretary of State from implementing § 32-1409(1). State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465 (1999). This decision significantly impacts the federal constitutional claims regarding § 32-1409 and access to records.

For the reasons more fully set forth below, I have found for the defendants on all claims. First, plaintiffs and plaintiff-intervenors cannot bring a private cause of action under the NVRA predicated on state ballot questions. Second, Dobrovolny I presents a res judicata bar to the federal constitutional claims regarding the petition signature requirements of the Nebraska Constitution. Third, I do not decide the federal constitutional claims regarding § 32-1409 because the claim is in effect moot given the declaratory judgment and injunction entered in State ex rel. Stenberg v. Moore. Fourth, this court lacks jurisdiction to hear the claims of denial of access to initiative petition and voter registration records in 1996 because there is no longer a live case or controversy regarding the access claim in light of the unique circumstances surrounding the November 1996 general election in Nebraska, the failure to establish any more than isolated instances of denial of access, and the holding of State ex rel. Stenberg v. Moore.

I. BACKGROUND

A. Procedural History

The plaintiffs are Stan Dobrovolny and Steven Willey. The plaintiff-intervenors are Citizens for Local Option and Control Committee, Nebraska Keno Operators Association, and Richard Bellino. For convenience, I will refer to the plaintiffs and the plaintiff-intervenors collectively as “plaintiffs.” For a time, plaintiffs sought to bring this action as a class action, but no class was ever certified and this is not a class action. (Order on Pretrial Conference, Filing 109 ¶ B(17).) The defendants are the State of Nebraska, Scott A. Moore (in his official capacity as Secretary of State of Nebraska and in his individual capacity), and Margaret A. Jurgensen (in her official capacity as Douglas County Election Commissioner and in her individual capacity).

There are two complaints in this case: the Third Amended Complaint filed by plaintiffs Dobrovolny and Willey (filing 29) (the “Dobrovolny Complaint”) and the Complaint in Intervention filed by plaintiff-intervenors Richard Bellino, Nebraska Keno Operators Association, and Citizens for Local Option and Control Committee (filing 31) (the “Intervenors’ Complaint”).

In September 1996, a three-day hearing was held before me on motions for a preliminary injunction and sanctions. At the conclusion of that hearing, I found that I had subject matter jurisdiction, but abstained to permit the Lancaster County District Court to decide a case then pending before it. It appeared that the state court would decide state law in a way that would obviate the need for this court to decide difficult federal constitutional questions regarding state law. (Filing 36.)

While the case before me was stayed, Judge Cheuvront, the state district judge, reached a decision on the merits in the case before him. He found that § 32-1409(1) “is unconstitutional in that it unduly restricts the initiative petition process in violation of Article III, § 4 of the Constitution of the State of Nebraska and the First Amendment of the United States Constitution.” State of Nebraska ex rel. Dobrovolny v. Moore, Docket 547, Page 043 (Lancaster County District Court Oct. 25, 1996) at p. 7. Despite the quoted language, Judge Cheuvront’s opinion was rendered largely on state law grounds.

On appeal,, the Nebraska Supreme Court reversed, finding that plaintiffs had simultaneously sought to enforce § 32-1409 and to challenge its constitutionality, and that parties seeking to enforce a statute were not permitted to challenge its constitutionality. State ex rel. Dobrovolny v. Moore, 254 Neb. 392, 576 N.W.2d 772 (1998) (No. S-98-983).

After the Nebraska Supreme Court’s decision in State ex rel. Dobrovolny v. Moore, the case before me was reopened. The parties filed motions for summary judgment and partial summary judgment. (Filings 75, 76, and 78). I ruled that: (1) requests for injunctive relief with respect to the November 1996 election are moot and may not be granted; (2) the State of Nebraska has Eleventh Amendment immunity on all claims for general money damages (including petition circulation costs), except to the extent that attorney fees and reasonable expenses may be awarded under the NVRA; (3) the only claim against defendants Moore and Jur-gensen for general money damages was made in the Intervenors’ NVRA claim, and defendants Moore and Jurgensen, in their official capacities, have Eleventh Amendment immunity on that one claim for general money damages, except to the extent that attorney fees and reasonable expenses may be awarded under the NVRA; and (4) the NVRA does not create a private right of action for money damages independent of attorneys’ fees and expenses. (Filing 111.) I reserved judgment on the remaining issues raised by these motions.

A one-day bench trial was held before me on June 16, 1999, with arguments and testimony focusing on the claims that defendants had violated the NVRA. The motions for summary judgment and partial summary judgment had been voluminously briefed, and the parties submitted pretrial briefs and proposed findings of fact and conclusions of law prior to the bench trial. The parties were given a lengthy period after the conclusion of the bench trial in which to file proposed findings of fact and conclusions of law indexed to the record, as well as any desired additional briefs.

B. The Issues Before the Court

The issues in this case have evolved between the time of the 1996 hearing before me and submission of this case for decision. To the extent the Order on Final Pretrial Conference (filing 109) excludes issues raised in the Third Amended Complaint or the Intervenors’ Complaint, the Order on Final Pretrial Conference governs the case. Fed.R.Civ.P. 16(e). There are five groups of issues.

1. National Voter Registration Act Claims

There are questions whether the State of Nebraska has kept and maintained a reasonably current voter registration system, including a uniform, systematic, and reasonably periodic process for maintaining the State’s voter registration list, in violation of the National Voter Registration Act; whether plaintiffs are entitled to recover declaratory relief, equitable relief, or money damages; whether plaintiffs are entitled to recover attorneys’ fees, litigation expenses, and costs under the NVRA; and whether the plaintiffs can bring this action as a private cause of action under the NVRA. (Filing 109, ¶¶ C(l), (3) & (5)-(7).)

2.Federal Constitutional Claims Regarding Petition Signature Requirements of Article III, Section 2 of the Nebraska Constitution

Both Due Process Clause and First Amendment claims are raised. The Due Process Clause issue is whether the provisions of Article III, Section 2 of the Nebraska Constitution, as interpreted by the Nebraska Supreme Court, violate the procedural due process rights of petition circulators because circulators of initiative petitions lack prior notice of the number of signatures needed to place an initiative on the ballot, entitling plaintiffs to a declaratory judgment and other relief under 42 U.S.C. §§ 1983 and 1988. (Id. ¶ C(8).) Two First Amendment issues are raised: (1) whether the provisions of Article III, Section 2 of the Nebraska Constitution, as interpreted by the Nebraska Supreme Court, violate the First Amendment because circulators of initiative petitions lack prior notice of the number of signatures needed to place an initiative on the ballot, entitling plaintiffs to §§ 1983 and 1988 relief, and (2) whether the provision in Article III, Section 2 of the Nebraska Constitution allowing only registered voters to sign initiative petitions violates the First Amendment and entitles plaintiffs to §§ 1983 and 1988 relief. (Id. ¶¶ C(8) & (9).)

3.Claims Regarding Constitutionality of § 32-1109

Plaintiffs have raised questions whether subparts (1) and (3) of § 32-1409 violate the First Amendment and the Due Process Clause, both on their face and as applied, entitling them to relief under §§ 1983 and 1988. (Id. HUC(IO) & (11).) I explain these claims more fully in Part III(C) of this opinion.

4. Preclusion of Federal Constitutional Claims Regarding Petition Signature Requirements of Article III, Section 2 of the Nebraska Constitution

Another issue is whether the Second and Third claims for relief in the Third Amended Complaint are barred by issue or claim preclusion. (Id. ¶ C(16).) The Second Claim for Relief includes the assertion that lack of prior knowledge of the required number of signatures violates procedural due process. (Filing 29, ¶ 29.) The Third Claim for Relief includes two assertions: lack of prior knowledge of the required number of signatures violates the First Amendment and the Nebraska constitutional requirement that only registered Nebraska voters may sign initiative petitions violates the First Amendment rights of Nebraska citizens who have chosen not to register to vote. (Filing 29, ¶¶ 34-36.) Similar claims are made in the Interve-nors’ Complaint. (Filing 31.)

5. Claims Regarding Specific Denial of Access to Records

The Fifth Claim for Relief in the Dobro-volny Complaint alleges that in specific instances, defendants Moore and Jurgen-sen denied plaintiffs access to initiative petition and voter registration records needed to validate signatures, or to rebut invalidity findings of county election officials or the Secretary of State. (No similar claim for relief is made in the Interve-nors’ Complaint.) At the bench trial, this issue was characterized as a claim that “the state election officials unreasonably interfered with [plaintiffs’] ability to access information in their offices and thereby chilled [plaintiffs’] First Amendment right to pursue the initiative petitions.” (T. at 31: 1-3.) Only injunctive and declaratory relief is sought with respect to these claims.

II. FINDINGS OF FACT

I find the material facts to be these:

A. General Findings

1. Plaintiff Stan Dobrovolny is a citizen, resident, registered voter, and a taxpayer of Holt County, Nebraska. Dobro-volny is president of Nebraskans’ for Equal Taxation, an organization which proposed and circulated an initiative petition in 1996 to amend the Nebraska Constitution to alter Nebraska’s property tax structure (hereinafter the “Property Tax Relief Initiative” or “Property Tax Relief Petition”). (Filing 109, ¶ B(l).)

2. Plaintiff Steven K. Willey is a citizen, resident, registered voter and taxpayer of Sarpy County, Nebraska. Willey is Chairman of the Citizens for Local Option and Control Committee and President of the Nebraska Keno Operators Association. (Id. ¶8(2).)

3. Plaintiffs Citizens for Local Option and Control Committee and Nebraska Keno Operators Association are organizations which proposed an initiative measure in 1996 that would have permitted local communities to change Nebraska’s gaming laws by majority vote (hereinafter the “Keno Initiative” or “Keno Petition”). (Id. ÍB(3).)

4. Plaintiff Richard Bellino is a Nebraska registered voter and taxpayer who signed and supported the Keno Petition. (Id. ¶ B(4).)

5. Defendant Scott Moore is a resident of Lincoln, Lancaster County, Nebraska, and the duly elected and currently serving Secretary of State of the State of Nebraska. Moore has served as the Secretary of State since January 1995. As Secretary of State, Moore has duties specified under Nebraska statutes to interpret and enforce Nebraska’s election laws. (Id. ¶ B(5).)

6. Defendant Margaret A. Jurgensen served as the Election Commissioner of Douglas County, Nebraska, in 1996. She was appointed by the Governor of the State of Nebraska. The Douglas County Election Commissioner has specified duties with respect to elections under the Nebraska statutes. (Id. ¶ B(6).) The parties have agreed that Jurgensen is a state agent for purposes of any award of attorneys’ fees. (T. at 40:4-14.)

B. NVRA Claims

7. Defendant State of Nebraska was, at all times pertinent to any issues herein, a duly admitted state of the United States of America. The State is one of the States of the United States of America affirmatively charged with the duties imposed by the NVRA. By virtue of the applicable law of Nebraska, Moore is the “chief election official” of the State of Nebraska, as that term is used in the NVRA. (Filing 109, ¶ B(7).)

8. During 1996, all of the plaintiffs participated in the circulation of initiative petitions for signature by registered voters. To get their initiative petitions on the ballot, plaintiffs were required by Nebraska law to file their initiative petitions with the Secretary of State at least four months prior to the general election in November 1996. The petitions were required to contain that number of valid signatures equaling ten (10) percent of the total number of registered voters in Nebraska (on the date those petitions were due) in order to qualify for placement on the November 1996 general election ballot. On July 3 and July 5, 1996, the petitions supporting the Property Tax Relief Initiative were filed with the Secretary of State. Records maintained by the Secretary of State show that the petitions supporting the Property Tax Relief Initiative contained 107,620 signatures. On July 5, 1996, petitions supporting the Keno Initiative were filed with the Secretary of State. Records maintained by the Secretary of State show that petitions supporting the Keno Initiative contained 133,100 signatures. (Id. ¶ B(9).)

9. In conformance with his duties under Neb.Rev.Stat.Ann. § 32-202 (Lexis 1999 Supp.) to prepare and transmit reports as required by the NVRA, Moore, or stáff members in his office acting under his supervision, compiled listings of the total number of registered voters in the State of Nebraska on a periodic basis. As a result of that process, Moore ultimately determined that there were 989,388 registered voters in the State of Nebraska on July 5, 1996. Based upon Article III, Section 2 of the Nebraska Constitution, as interpreted by the Nebraska Supreme Court in Duggan v. Beermann, 245 Neb. 907, 515 N.W.2d 788 (1994), and upon the applicable Nebraska statutes, Moore ultimately determined that signatures from ten percent of the registered voters in Nebraska on July 6, 1996 (98,939 signatures), were needed to place initiative measures on the November 1996 Nebraska statewide general election ballot. (Fifing 109, ¶ B(10).)

10. Section 32-1409 requires the Secretary of State to deliver initiative petition signature pages filed with his office to the county election commissioners and county clerks in Nebraska so that those county election officials can conduct signature validation tests. In July, 1996, Moore sent the initiative petition signature pages filed with his office, including those filed for the Property Tax Relief Initiative and the Keno Initiative, to the county election officials in Nebraska, including defendant Jur-gensen. On July 15, 1996, Moore also sent instructions for implementation of the signature validation process required by § 32-1409 to all county election officials in Nebraska, including defendant Jurgensen. Those instructions were also provided to proponents of the initiative measures which had been submitted, including the plaintiffs’ organizations. (Fifing 109, liB(ll).)

11. Nebraska county election officials returned the initiative petition signature pages to Moore in August and September 1996. (Fifing 109, ¶ B(12).) When they returned the initiative petitions, county officials also completed and returned a petition log. (Ex. 131 at 9:16-21.) A “petition log” is a document submitted by the county election officials to the Secretary of State which shows the number of valid and invalid signatures and shows which particular signatures have been invalidated. (Id. at 9:18-11:5.) Based upon the initiative petitions and petition logs returned to him, the Secretary of State determined that, in his opinion, 87,254 of the signatures on the petitions supporting the Property Tax Relief Petition were valid. In addition, the Secretary of State determined that, in his opinion, 87,289 of the signatures on the petitions supporting the Keno Petition were valid. (Fifing 109, ¶ B(12).)

12. On September 3, 1996, Moore sent representatives of the organizations promoting the Property Tax Relief Initiative and the Keno Initiative a letter, offering them an opportunity to meet with him on September 6, 1996, to provide him with additional evidence supporting the validity of the signatures on their initiative petitions. Moore held that meeting on September 6, 1996, and representatives supporting the Keno Initiative attended that meeting. (Id. ¶ B(13).)

13. On September 12, 1996, Moore announced his decision that neither the Property Tax Relief Initiative nor the Keno Initiative would be placed on the general election ballot based upon his determination that the petitions supporting those initiatives did not obtain sufficient signatures to meet constitutional requirements. (Id. ¶ B(14); Ex. 127.) On September 13, 1996, Moore certified the general election ballot pursuant to Neb.Rev.Stat.Ann. § 32-801 (Lexis 1995), and neither the Property Tax Relief Initiative nor the Keno Initiative were certified on that ballot. (Fifing 109 ¶ B(14).)

14. Dobrovolny’s attorney sent a letter dated July 18, 1996, to Moore. This letter claims that Nebraska was not in compliance with the NVRA at the time the letter was sent because it did not maintain a uniform, accurate, and current voter registration system. (Ex. 125; T. at 54:4-8.)

15. Moore acknowledged receipt of the July 18 letter in his capacity as Secretary of State and chief election official of the state (within the meaning of the NVRA) and treated the July 18 letter as notice of non-compliance with the NVRA. (Ex. 126; T. at 54:9-18 & 57:1-3.)

16. The NVRA was first effective in Nebraska on January 1,1995. (Ex. 1 at 1-2.) The State of Nebraska maintains one system of voter registration for both state and federal elections, and the November 1996 Nebraska general election included election for federal offices, elections for state offices, and state initiatives. (T. at 58:6-18 & 79:14-23.)

17. The NVRA voter registration list maintenance procedures are found in § 1973gg-6 (1994). There are three key features of these provisions. First, states are required to “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of registered voters” because of the death of the registrant, or a change in the residence of the registrant (if the provisions of §§ 1973gg-6(b), (c) and (d) are followed). 42 U.S.C. § 1973gg-6(a)(4). Other than removals via this general program, the name of a registered voter may be removed only if the registrant so requests or if state law requires removal for criminal conviction or mental incapacity. Id. § 1973gg-6(a)(3). Second,

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 (42 U.S.C. § 1973 et seq.); 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.

Id. § 1973gg-6(b). Third, the general program for maintaining voter registration lists must include a process for removing the names of persons who have moved. A state begins this process by mailing a notice to all persons believed to have moved. Either National Change of Address (NCOA) information from the post office, or the results of a mass mailing to all registered voters, can serve to identify persons believed to have moved. Recipients of this notice may not be removed from the voter registration lists unless (1) they confirm in writing that they have moved outside the jurisdiction or (2) they do not respond to the notice and do not vote in an election during the two-year period beginning on the date they were mailed notice. Id. §§ 1973gg-6(c) & (d). The state cannot mail the notice within the 90-day period prior to the date of a primary or general election for federal office. Id. § 1973gg-6(e)(2). (Ex. 1 at 5-7 to 5-10, 5-15 & 5-18 to 5-21.)

18.In 1996, the State of Nebraska used both the NCOA and the mass mailing methods to begin the process of removing from its voter registration lists the names of voters who had moved and were no longer qualified to be registered in a particular precinct. Neb.Rev.Stat.Ann. § 32-329(1) (Lexis 1995). (T. at 55:2-15, 95:14-99:23.) In 1996, approximately 60 to 70 of the 93 counties in Nebraska used the NCOA method and the remaining counties used the mass mailing method. (T. at 101:4-24.) The Federal Election Commission (“FEC”) Guide to Implementing the NVRA notes that the NCOA method cannot be used without a computerized voter registry and a list of no less than 100 names, and suggests that “States should consider giving local jurisdictions the option of using NCOAwhen some, but not all local jurisdictions, have computerized registries.” (Ex. 1 at 5-19.) When the NCOA method is used, it is apparently used uniformly, and when the mass mailing method is used, it is also apparently used uniformly. (T. at 60:1-8.)

19. In 1996, Nebraska used two methods for removing the names of convicted felons from voter registration lists, depending upon whether the conviction occurred in a federal court or a state court. In the case of state convictions, the clerk of the district court is required to notify the county clerk or election commissioner (in the county of residence of the convicted person) of the conviction so that the name can be purged. (T. at 93:11-18.) In the case of federal convictions, the United States Attorney for the District of Nebraska notifies the Secretary of State of Nebraska of any federal convictions, and the Secretary of State’s office in turn notifies county election officials. (Id. at 93:18-21.) See also Neb.Rev.Stat.Ann. § 32-313 (Lexis 1995).

20. In 1996, no one method was used for removing the names of deceased persons from Nebraska’s voter registration records. Nebraska statutes provide that “the election commissioner or county clerk may at any time” remove from the list of registered voters the name “of a deceased person when the election commissioner or county clerk has any supporting information on the death of such voter.” Neb.Rev. StatAnn. § 32-327 (Lexis 1995). They also require that the Bureau of Vital Statistics must every three months provide, for a fee, a record of deaths to the appropriate election commissioner or county clerk. Id. Testimony indicated that “[gjeneral practice has been to use information from obituaries, mortuaries, and vital statistics” to remove the names of deceased voters from voter registration lists. (T. at 95:11-13.)

21. In 1996, the Nebraska Secretary of State’s office did not direct all of Nebraska’s county election officials to undertake a purge of ineligible voters or voter registration list maintenance procedures on any specific dates. (Id. at 116:17-117:14.) Purges and list maintenance procedures were done on a rolling basis, at the discretion of each individual county election official. (Id.) However, every six months county election officials were required to file with the Secretary of State a report of the activity regarding voter registration, to assist the office of the Secretary of State in completing the reports required by the FEC under the NVRA. (Id. at 117:19-24.) The first such report was due on July 1, 1995. The majority of the counties sent the report “within a couple of week[s].” (Id. at 118:10.) Ultimately, all counties sent the required report, though some required repeated requests. (Id. at 117:23-119:3.) Though these counties were delinquent in reporting, there was no indication that these counties failed to engage in the required list maintenance procedures. (Id. at 130:14-131:3.) Nebraska statutes and the NVRA require that a list maintenance procedure be conducted at least every two years. (Id. at 106:11-107:13.)

22. Under Nebraska’s methods of maintaining and purging its voter registration lists in 1996, although it would not have been lawful, it was nonetheless possible for a person to be shown as a registered voter in more than one county at the same time, thereby skewing the State’s total registered voter count. There was testimony from the Assistant Secretary of State for elections that this did occur an unknown number of times in 1996. (Id. at 121:20-123:2 & 132:9-15).

23. In 1995 and 1996, Nebraska did not budget or maintain a statewide networked computer system to allow for verification of voter registration list maintenance on a periodic basis. The state has since budgeted and funded a computerized system for maintaining voter registration records, which is installed and now operating. The state had not, however, budgeted and funded such a system in 1995 and 1996. (Id. at 124:15-126:3.)

24. The NVRA prohibits conducting some of the voter registration list maintenance procedures in the 90 days immediately preceding a federal election, and the office of the Secretary of State has instructed local election officials that they may not conduct list maintenance procedures immediately preceding a federal election. To the best of the knowledge of the Assistant Secretary of State for elections, county election officials followed these instructions in 1996 and thereafter. {Id. at 104:1- 106:10.)

25. On July 5, 1996, five initiative petition proposals were submitted to the Secretary of State for approval, including the Property Tax Relief Petition and the Keno Petition. (Ex. 130 at 8:12-22.) County election officials had to review over 660,000 signatures when reviewing these five initiative measures. (Ex. 130 at 47:24-25.)

26. The State of Nebraska has not been the subject of any inquiry by the Federal Election Commission with respect to compliance with the National Voter Registration Act. (T. at 135:16-22.)

C. Federal Constitutional Claims Regarding Petition Signature Requirements of Article III, Section 2 of the Nebraska Constitution

27. In 1988, the people of Nebraska passed by majority vote an amendment to Article III, Section 2 of the Nebraska Constitution dealing with the initiative in Nebraska. (Filing 109, ¶ B(8).) Prior to this amendment, the number of signatures needed to place an initiative on the ballot in Nebraska was based on the number of votes in the last gubernatorial election. The 1988 amendments changed the terminology in Article III, Sections 2 and 3 from “electors” to “registered voters” when referring to the eligibility of an initiative and referendum petition signatory. They did not amend Article III, Section 4 — which created an inconsistency and a question as to how many signatures were needed to put an initiative petition on the ballot. Dobrovolny I, 936 F.Supp. at 1540. The inconsistency in terminology was resolved in Duggan v. Beermann, 245 Neb. 907, 515 N.W.2d 788 (1994), when the Nebraska Supreme Court held that the number of signatures required by the Nebraska Constitution for placement of an initiative measure on the general election ballot is equal to ten percent of the number of registered voters in Nebraska measured on the date the signatures are turned in to the Secretary of State for certification. Article III, Section 2, as amended in 1988 and interpreted in Duggan, now requires more signatures to place an initiative petition on the ballot than it did prior to its amendment.

D. Claims Regarding Constitutionality of Neb.Rev.Stat. § 32-1409

28.At the relevant times in 1996, sub-part (1) of § 32-1409 provided as follows:

Upon the receipt of the petitions, the Secretary of State, with the aid and assistance of the election commissioner or county clerk, shall determine the validity and sufficiency of signatures on the pages of the filed petition. The Secretary of State shall deliver the various pages of the filed petition to the election commissioner or county clerk by hand carrier, by use of law enforcement officials, or by certified mail, return receipt requested. Upon receipt of the pages of the petition, the election commissioner or county clerk shall issue to the Secretary of State a written receipt that the pages of the petition are in the custody of the election commissioner or county clerk. The election commissioner or county clerk shall compare the signature of each person signing and the circulator upon each of the pages of the petition with the voter registration records to determine if the circulator was a registered voter one month prior to the date of circulating and signing the petition and to determine if each signer was a registered voter on or before the date on which the petition was required to be filed with the Secretary of State. The election commissioner or county clerk shall also compare the signer’s printed name, street and number or voting precinct, and city, village, or post office address with the voter registration records to determine whether the signer was a registered voter. The signature and address shall be presumed to be valid only if the election commissioner or county clerk finds the printed name, street and number or voting precinct, and city, village, or post office address to match the registration records and that the registration was received on or before the date on which the petition was required to be filed with the Secretary of State. The finding of the election commissioner or county clerk may be rebutted by any credible evidence which the Secretary of State finds sufficient. The express purpose of the comparison of names and addresses with the voter registration records, in addition to helping to determine the validity of such petition, the sufficiency of such petition, and the qualifications of the signer, shall be to prevent fraud, deception, and misrepresentation in the petition process.

Neb.Rev.Stat.Ann. § 32-1409(1) (Lexis 1995).

29. At the relevant times in 1996, sub-part (3) of § 32-1409 provided as follows:

Upon receipt of the pages of the petition, the Secretary of State shall issue a written receipt indicating the number of pages of the petition that are in his or her custody. When all the petitions and certifications have been received by the Secretary of State, he or she shall strike from the pages of the petition all but the earliest dated signature of any duplicate signatures and such stricken signatures shall not be added to the total number of valid signatures. Not more than twenty signatures on one sheet shall be counted. All signatures secured in a manner contrary to sections 32-1401 to 32-1416 shall not be counted. Clerical and technical errors in a petition shall be disregarded if the forms prescribed in sections 32-1401 to 32-1403 are substantially followed. The Secretary of State shall total the valid signatures and determine if constitutional and statutory requirements have been met. The Secretary of State shall immediately serve a copy of such determination by certified or registered mail upon the person filing the initiative or referendum petition. If the petition is found to be valid and sufficient, the Secretary of State shall proceed to place the measure on the general election ballot.

Id. § 32-1409(3) (Lexis 1995).

30. After - the Nebraska Supreme Court’s April 1998 decision in State ex rel. Dobrovolny v. Moore, the Attorney General of the State of Nebraska brought an action in state court for a declaratory judgment that § 32-1409(1) violated the state constitution because it removed the presumption of validity of signatures and did not act to facilitate the operation of the initiative process. In December 1999, (after the bench trial and post-trial submissions by the parties in the case before me) the Nebraska Supreme Court ruled that § 32-1409(1) violates the state constitution and enjoined the Secretary of State from implementing § 32-1409(1). State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465 (1999). Section 32-1409(1) has not been amended by the Nebraska Legislature since the decision in State ex rel. Stenberg v. Moore.

E. Preclusion of Federal Constitutional Claims Regarding Petition Signature Requirements of Article III, Section 2 of the Nebraska Constitution

31.Dobrovolny I was a suit brought by Nebraska residents who were supporters and organizers of various initiative petition drives. The plaintiffs were Kent Bernbeck, co-chair of the Nebraska Term Limits Committee, an organization devoted to circulation of an initiative petition and passage of a constitutional amendment that would limit the terms of elected officials (the “Term Limits Petition”); Stan Dobrovolny, president of Nebraskans for Equal Taxation, an organization devoted to circulation of the Property Tax Relief Petition and ultimate passage of a constitutional amendment regarding property taxes; and Richard Bellino, a sponsor of the Initiative to Preserve Nebraska Assets and Live Horse Racing which proposed the Keno Initiative and passage of an amendment to the Nebraska Constitution which would legalize gambling. (The Property Tax Relief Petition and Keno Petition involved in Dobrovolny I are the same petitions involved in the case now before me.) Scott Moore was the defendant, both in his official capacity as Secretary of State of the State of Nebraska and individually. All three initiatives were presented to the office of the Nebraska Secretary of State in an attempt to place those initiative proposals on the November 1996 general election ballot in Nebraska.

32. The issue in Dobrovolny I was “whether determining the number of signatures required to place an initiative measure on the general election ballot on the date the signatures are due based on the number of registered voters on that date violates the petitioners’ First Amendment or Due Process rights under the United States Constitution.” Dobrovolny I, 936 F.Supp. at 1537. Dobrovolny I held that this method of determining the number of signatures needed to place an initiative petition on the ballot did not violate the First Amendment or the Due Process Clause. The Court of Appeals affirmed. Dobrovolny v. Moore, 126 F.3d 1111 (8th Cir.1997), cert. denied, 523 U.S. 1005, 118 S.Ct. 1188, 140 L.Ed.2d 319 (1998).

F. Claims Regarding Specific Denial of Access to Records

33. Douglas County began verification of signatures on the five initiative petitions on July 22, 1996, and completed the process on September 4, 1996. During this time, there were twelve computer terminals in the Douglas County Election Commissioner’s office, and two to four terminals were always available to members of the public who wanted to review petitions and petition signatures (subject to access rights of other members of the public). (Ex. 133 at 24:5-25:13.) After September 4, 1996, there were always four computer terminals available to the public for verification of petition signatures. (Ex. 133 at 25:17-22.)

34. From July 22 to September 4,1996, the ability to view actual voter registration cards in Douglas County was restricted to employees of the Douglas County Election Commissioner’s office because those employees were verifying petition signatures. However, during this time, members of the public could purchase certified copies of those voter registration cards for three dollars, or simple photocopies of those cards for fifteen cents. (Ex. 133 at 79:1-80:14.) After September 4, 1995, members of the public could view voter registration cards by asking a member of the election commissioner’s staff to see the card. (Ex. 131 at 60:6-61:16.) The voter registration card is the only document in the Douglas County Election Commissioner’s office which bears the registered voter’s signature. In addition to voter registration cards, the Douglas County Election Commissioner maintains a voter file (containing name, address, date of birth, voter history, and party affiliation), and information on mainframe computer terminals (which includes all information in the voter file as well as information concerning absentee voting and petitions). (Ex. 133 at 74:4-75:14.) The information stored in the mainframe computer can be accessed in several ways: by sitting at a terminal in the election commissioner’s office to view the information; by purchasing a magnetic tape, which can be sorted to provide various data; by purchasing floppy disks, containing the entire Douglas County voter file by ward; or online (after payment of a fee). (Ex. 133 at 75:19-76:15 & 77:8-15.) Computer disks purchased from Douglas County were not accessible without technical computer assistance. (Ex. 132 at 32:18-33:25.)

35.Carol Prokop, office manager for the Douglas County Election Commissioner, met Jane Shen, a woman working on the Property Tax Relief Petition’s signature rehabilitation project, twice on October 3, 1996. (Ex. 131 at 61:17-63:19.) The first time, Ms. Shen asked to see four voter registration cards. Ms. Prokop showed Ms. Shen two of the requested cards and was unable to show her the two other requested cards because the individuals named were not registered voters in Douglas County. (Ex. 131 at 61:17-62:30.) On the second meeting, Ms. Shen asked to see voter registration cards for the persons who had signed a one-inch stack of petitions. (Ex. 131 at 62:21-63:19.) Ms. Prokop told Ms. Shen to make a list of names from the petitions and someone from the office would pull the cards for her so that she could view them. (Ex. 131 at 62:21-63:19.) Ms. Shen did not complain about that process, and she left and was not seen again in the Douglas County Election Commissioner’s office. (Id.)

36. The Assistant Secretary of State for elections was not aware of any widespread or significant denial of access to election records by county or state election officials in 1996, but rather of minor, isolated instances in which county and state election officials were trying to fairly regulate access to public records in the context of the attempt to put five different initiative petitions, collectively containing over 660,000 signatures, on the November 1996 general election ballot. (Ex. 131 at 21:12-28:3; Ex. 130 at 47:24-25.)

37. There was testimony that in 1996 the information needed by petition supporters regarding petition signatures was more quickly and easily obtained in Sarpy County than it was in Douglas County, as Sarpy County in no way limited access to its voter registration cards, had scanned its voter registration cards into the computer and had a more accessible, more informative computer database than did Douglas County. (Ex. 128 at 8-11, 23.)

38. There was evidence that the invalidity rate in Douglas and Lancaster Counties (42 percent and 40 percent invalid', respectively) was higher than other counties. (Ex. 132 at 32:9-17).

39. One of plaintiffs’ witnesses testified that election officials in Scottsbluff County would not permit her to use the computers or to access the paper files without a clerk’s office employee present, that few of the employees available to assist were computer-proficient, and that on a few occasions the employees in the clerk’s office would cease assisting the witness and instead attend to ministerial matters that were not time-sensitive and were unrelated to the signature verification or election process. This witness stated that it took five working days to accomplish what she could have accomplished in two and one-half days, absent the restrictions imposed by Scottsbluff County election officials. (Ex. 132 at 176-188 (Test, of Edwards).) Another witness testified that it took repeated calls and a wait of over a week to obtain a voter registration list from Scotts-bluff County. (Id. at 211:7-212:21 (Test, of Haight).) When initiative petition supporters initially appeared in their office to attempt to rehabilitate signatures, the staff in the Scottsbluff County clerk’s office was uncertain about which records could be released to the public. This was the reason for the one-week wait. (Ex. 109 at 164:17-165:6.)

40. Petitions were in the custody of the Secretary of State in August and September 1996. The Secretary of State made a decision not to assign office personnel to oversee members of the public reviewing the petitions, as that would have severely limited access to the petitions, and as a consequence some petitions were misfiled. There were so many boxes of petitions that for a time they were placed in an unsecured hallway. (Ex. 130 at 50-51.) Some petitions from Nance County were never received by the Secretary of State. (Ex. 130 at 46:12-47:12.) Because of a fraud investigation, the Nebraska State Patrol took possibly hundreds of the petitions, and these petitions were unavailable for rehabilitation. (Ex. 130 at 47:13-25.)

41. The protocol that county election officials should follow when considering the validity of petition signatures that were not an exact match to the voter registration cards was poorly communicated. (Ex. 130 at 43-45.) Defendant Jurgensen misunderstood the instructions from the Secretary of State’s office, causing her to certify some signatures as valid when they were in fact invalid. (Ex. 133 at 15-18; 46-48.) Counties used different notation systems to record the reasons why they had invalidated particular petition signatures. (Ex. 109 at 160:7-10.)

III. CONCLUSIONS OF LAW

Before I turn in detail to the conclusions of law regarding the issues before me, I will preview the legal issues and my conclusions as to those issues.

The first issue is whether plaintiffs may bring a private cause of action under the NVRA predicated on state ballot questions. I find that plaintiffs cannot bring a private cause of action under the NVRA and accordingly do not decide whether defendants violated the NVRA.

The second issue is whether an earlier case, Dobrovolny v. Moore, 936 F.Supp. 1536 (D.Neb.1996) (hereinafter Dobrovolny I), aff'd, 126 F.3d 1111 (8th Cir.1997), cert. denied, 523 U.S. 1005, 118 S.Ct. 1188, 140 L.Ed.2d 319 (1998), operates as a res judicata bar to plaintiffs’ claims that the petition signature requirements of the Nebraska Constitution violate the First Amendment and the Due Process Clause of the Fourteenth Amendment. I conclude that Dobrovolny I operates as a res judicata bar and do not reach the merits of plaintiffs’ federal constitutional claims regarding the petition signature requirements.

The third issue is whether § 32-1409 violates the First Amendment, both on its face and as applied. I conclude that I should not decide this question because the claim has been in effect mooted by the Nebraska Supreme Court’s decision holding that this statute violated the Nebraska Constitution.

The final issue is whether plaintiffs are entitled to declaratory and injunctive relief regarding their claims that denial of access to initiative petition and voter registration records violated their First Amendment rights. I find that I lack jurisdiction to decide this claim as it no longer presents a live case or controversy.

A. NVRA Claims

Plaintiffs assert that defendants have violated two NVRA voter registration list maintenance requirements and that they may bring a private right of action pursuant to 42 U.S.C. § 1973gg-9(b) to remedy these alleged violations. I will briefly outline the alleged violations before addressing the question whether plaintiffs may bring a NVRA private right of action.

The NVRA provides that each state must conduct a uniform and nondiscriminatory general program to remove the names of ineligible voters from the official voter registration rolls by reason of the death or change of address of the registrant. 42 U.S.C. §§ 1973gg-6(a)(4) & 1973gg-6(b)(l). Plaintiffs assert that Nebraska’s program of removing ineligible voters is not “uniform and nondiscriminatory” as required by § 1973gg-6(b)(l) in several respects. First, all counties in Nebraska do not use the same methods for removals by reason of death or change of address. Second, different procedures are used for removals due to conviction of federal felonies than for removals due to conviction of state felonies. Third, all counties do not conduct their voter registration list maintenance procedures at the same times.

One of the listed purposes of the NVRA is “to ensure that accurate and current voter registration rolls are maintained,” 42 U.S.C. § 1973gg(b) (1994), and plaintiffs assert that this statement of purpose creates a requirement that voter registration rolls be “accurate ” and “current.” Plaintiffs assert that Nebraska’s rolls were not “accurate ” in 1996 for two reasons. First, although it was not legal, it was possible for the same person to be simultaneously registered to vote in more than one county. Second, although it is unclear, plaintiffs appear to argue that the rolls were not “accurate” because the names of registered voters who died or were convicted of a felony were not removed immediately upon the occurrence of the disqualifying event, or pursuant to a fixed schedule. Plaintiffs also assert that Nebraska’s voter registration rolls were not “current ” in 1996 because on the date that the initiative petitions were due, the Secretary of State did not know the number of registered voters in Nebraska (although that number was capable of later calculation).

Does the NVRA Provide a Private Right of Action for an Alleged Violation of the NVRA Predicated on State Ballot Questions?

The key question under the NVRA is whether the NVRA provides a private right of action for an alleged violation of the NVRA predicated on state ballot questions. This question is one of statutory construction. Analysis is limited to determining congressional intent and begins with the language of the statute. Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (holding that there is no implied private cause of action for damages under § 17(a) of the Securities Exchange Act of 1934). Resolving the statutory construction question also includes analysis of the statutory scheme of which the language allegedly creating the private right of action is a part. Id. at 571, 99 S.Ct. 2479. Nevertheless, “[t]he central inquiry remains whether Congress intended to create, either expressly or by implication, a private cause of action.” Id. at 575, 99 S.Ct. 2479. The Supreme Court has been “extremely reluctant to imply a cause of action ... that is significantly broader than the remedy that Congress chose to provide.” Id. at 574, 99 S.Ct. 2479.

The question whether the NVRA provides a private right of action for an alleged violation of the NVRA predicated on state ballot questions is a question of first impression. The majority of the reported cases construing the NVRA are suits against states that would not comply with the expanded voter registration requirements of the NVRA, and were usually defended on the ground that Congress lacked authority to force the states to participate in federal voter registration on the scale contemplated by the NVRA. See, e.g., Disabled in Action v. Hammons, 202 F.3d 110 (2d Cir.2000) (New York); Association of Community Organizations for Reform Now (ACORN) v. Fowler, 178 F.3d 350 (5th Cir.1999) (Louisiana); National Coalition for Students with Disabilities Educ. & Legal Defense Fund v. Allen, 152 F.3d 283 (4th Cir.1998) (Virginia); Association of Community Organizations for Reform Now (ACORN) v. Miller, 129 F.3d 833 (6th Cir.1997) (Michigan); Voting Rights Coalition v. Wilson, 60 F.3d 1411 (9th Cir.1995) (California), cert. denied, 516 U.S. 1093, 116 S.Ct. 815, 133 L.Ed.2d 759 (1996); Association of Community Organizations for Reform Now (ACORN) v. Edgar, 56 F.3d 791 (7th Cir.1995) (Illinois). A few of the reported cases relate to the interplay between the preclearance provisions of the Voting Rights Act and the NVRA. See, e.g., Lopez v. Monterey County, 525 U.S. 266, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999); Young v. Fordice, 520 U.S. 273, 117 S.Ct. 1228, 137 L.Ed.2d 448 (1997).

In analyzing whether plaintiffs can assert a private right of action under the NVRA, I will consider whether Congress has the authority to create a private right of action predicated on state ballot questions, whether Congress intended to create such a right of action, and principles of federalism. I first consider the authority under which Congress enacted the NVRA.

Congressional Authority

The NVRA was enacted under Congress’ constitutional authority to regulate federal elections. Article I, Section IV, Clause 1 of the Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” This provision gives Congress a general supervisory power over federal elections under which it may supplement state regulations or substitute its own. Smiley v. Holm, 285 U.S. 355, 366-67, 52 S.Ct. 397, 76 L.Ed. 795 (1932); ACORN v. Edgar, 56 F.3d at 795. However, Article I, Section IV does not give Congress the power to directly regulate state voter registration procedures in state elections or state ballot issues. ACORN v. Edgar, 56 F.3d at 794. Therefore, I conclude that Congress’ authority to regulate federal elections under Article I, Section IV of the Constitution does not permit Congress to create a private right of action under the NVRA predicated on state ballot questions.

Congressional Intent — Words and Structure of NVRA

I will next analyze whether Congress intended to create a private right of action for an alleged violation of the NVRA predicated on state ballot questions by considering the factors traditionally used to determine legislative intent: “the language and focus of the statute, its legislative history, and its purpose.” Touche Ross, 442 U.S. at 575-76, 99 S.Ct. 2479. I analyze congressional intent because it determines the scope of a private right of action. See, e.g., Wisdom v. First Midwest Bank, 167 F.3d 402, 407-08 (8th Cir.1999). This is so whether the question is the scope of an explicitly created private right of action, or if the question is whether Congress intended to create an implied right of action. See, e.g., Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 104 S.Ct. 1248, 79 L.Ed.2d 568 (1984); Touche Ross, 442 U.S. at 568, 575-76, 99 S.Ct. 2479.

The language and focus of the NVRA indicate that Congress. did not intend to create such a private right of action. Generally, the NVRA

requires States to provide simplified systems for registering to vote in federal elections, i.e., elections for federal officials, such as tbe President, congressional Representatives, and United States Senators. The States must provide a system for voter registration by mail, § 1973gg-4, a system for voter registration at various state offices (including those that provide “public assistance” and those that provide services to people with disabilities), § 1973gg-5, and, particularly important, a system for voter registration on a driver’s license application, § 1973gg-3. The NVRA specifies various details about how these systems must work_It also imposes requirements about just when, and how, States may remove people from the federal voter [registration] rolls. §§ 1973gg-6(a)(3), (4).

Young v. Fordice, 520 U.S. 273, 275-76, 117 S.Ct. 1228, 137 L.Ed.2d 448 (1997) (emphasis in original) (examining interplay between NVRA and the Voting Rights Act of 1965, and finding that plan by Mississippi to comply with NVRA for federal elections, yet retain separate system for state elections, required preclearanee under Voting Rights Act).

The provisions of the NVRA are expressly limited to federal elections. The congressional findings state that

(1) the right of citizens of the United States to vote is a fundamental right;

(2) it is the duty of the Federal, State, and local governments to promote the exercise of that right; and

(3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and disproportionately harm voter participation by various groups, including racial minorities.

42 U.S.C. § 1973gg(a) (emphasis added). The purposes of the NVRA are also clearly tied to increasing voter participation in federal elections. The act provides that

The purposes of this subchapter are — ■

(1) to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office;

(2) to make it possible for Federal, State, and local governments to implement this subchapter in a manner that enhances the participation of eligible citizens as voters in elections for Federal office;

(3) to protect the integrity of the electoral process; and

(4) to ensure that accurate and current voter registration rolls are maintained.

Id. § 1973gg(b) (emphasis added).

Plaintiffs argue that the fact that the broad language of 42 U.S.C. §§ 1973gg(a)(2) and 1973gg(b)(3) and (4) is not expressly limited by reference to federal elections somehow bolsters their claim. This argument is without merit, as the cited language is limited by the scope of the power granted to Congress by Article I, Section IV of the Constitution.

The provision of the NVRA creating certain private rights of action states as follows:

(1) A person who is aggrieved by a violation of this subchapter [the NVRA] may provide written notice of the violation to the chief election official of the State involved.

(2) If the violation is not corrected within 90 days after receipt of a notice under paragraph (1), or within 20 days after receipt of the notice if the violation occurred within 120 days before the date of an election for Federal office, the aggrieved person may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to the violation.

(3) If the violation occurred within 30 days before the date of an election for Federal office, the aggrieved person need not provide notice to the chief election official of the State under paragraph (1) before bringing a civil action under paragraph (2).

42 U.S.C. § 1973gg-9(b). If a civil enforcement action is brought, the prevailing party (other than the United States) may be awarded “reasonable attorney fees, including litigation expenses, and costs.” Id. § 1973gg-9(c).

In fact, all of the provisions of the NVRA are directed to what states must do with respect to elections for federal office. Young, 520 U.S. at 275-76, 117 S.Ct. 1228. Therefore, I find that the words and structure of the NVRA indicate that a private right of action to enforce the voter registration list maintenance provisions of the NVRA is limited to challenges by voters harmed by violations of the NVRA in the context of elections for federal offices.

Congressional Intent — Legislative History

The legislative history of the NVRA suggests that Congress intended that the NVRA private right of .action exist only in the context of denial of access to voting for federal elective office. The legislative history indicates that the NVRA was intended to increase voter participation in federal elections by eliminating barriers to voting.

The House Report on the NVRA indicates that Congress wanted to make it easier to register to vote so that voter participation in federal elections would increase. H.R.Rep. No. 103-9, at 3 (1993) (found in Ex. 1, App. B at B-2) (“while Congress may not be able to directly affect voter turnout in Federal elections through the enactment of legislation, Congress does have the authority and responsibility to make the registration process for Federal elections as accessible as possible while maintaining the integrity of the electoral process.... ”). The voter registration list maintenance provisions of the NVRA are intended to eliminate the possibility that list maintenance could be used as a barrier to deprive members of disadvantaged groups from exercising their right to vote for federal office. The House Report states that the committee was concerned that voter registration list purging programs “can be abused and may result in the elimination of names of voters from the rolls solely due to their failure to respond to a mailing.” Id. at 15 (found in Ex. 1, App. B at B-8). The Senate Report also expresses concern that voter registration list maintenance procedures could be misused in a manner that disproportionately impacts minorities. S.Rep. No. 103-6, at 17-20 (1993) (found in Ex. 1, App. C at C-9 to C-10) (“While most States use the procedure of removal for non-voting merely as an inexpensive method for eliminating persons believed to have moved or died, many persons may be removed from the election rolls merely for exercising their right not to vote, a practice which some believe tends to disproportionately affect persons of low incomes, and blacks and other minorities.... In response to the concerns of various witnesses representing civil rights organizations, these [voter registration list maintenance procedure] requirements of the bill were added to prevent the discriminatory nature of periodic voter purges, which they assert appear to affect blacks and minorities more than others.”).

Congress was aware that the NVRA was enacted under its Article I, Section IV constitutional authority to regulate federal elections. S.Rep. No. 103-6, at 3 (found in Ex. 1, App. C at C-2). It is unlikely that Congress would have intended that the NVRA private right of action include claims based on state ballot questions, as the authority under which Congress enacted the NVRA does not permit it to directly regulate state ballot issues or elections.

Congressional Intent— Purpose of NVRA

It would be