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Oct
17
I’ve read the very brief per curiam opinion from the U.S. Supreme Court in Brunner v. Ohio Republican Party and definitely appreciate this explanation of it from Lyle Denniston who writes and reports at SCOTUSblog.
On the definitive nature of the decision:
The Supreme Court, acting on the case after the Circuit Justice, Justice John Paul Stevens referred the matter to the full bench, not only granted the secretary of state’s plea to stay the federal judge’s temporary restraining order, but actually vacated it, thus removing any legal obligation spelled out in that order.
On the challenge itself:
The state GOP had complained that the Ohio Secretary of State had violated her duty, under federal election procedures law, to share with county election boards the lists of voters whose names in a voter registration database do not match data in the state’s drivers’ license files. The GOP argued that the secretary of state had put a stop to required efforts to pass along the non-matching data so that local election officials could deal with it. Lack of matches could be the basis for challenges.
The Supreme Court said it was not expressing any opinion on whether the state official had violated any duty under federal law. But, it said, it was not persuaded that the federal law gives a private party — like the state GOP — a right to go to court to enforce those provisions in the Help America Vote Act.
Also, from Election Law Blog:
In other words, it looks like individuals cannot sue for violations of this aspect of HAVA; it would fall to the DOJ to bring such suit.
What is the upshot of this ruling? It means that the Secretary need not provide the “no match” data to the county boards, and therefore the ORP won’t be able to make its public information requests to get the data to raise voter challenges at the polls.
I haven’t thought enough about the private right of action question but I do think the Court reached the right result for a different reason. As I’ve long maintained, courts need to be aggressively asserting laches in election cases. If cases reasonably could have been brought earlier, but are brought just before the election, courts should be wary of entertaining such claims to interfere with the upcoming election.
That bold part? Also known as: voter intimidation and voter suppression tactics.
By Jill Miller Zimon at 1:14 pm October 17th, 2008 in Courts, Elections, Law, Ohio, Politics, Republicans, Voting, WH2008
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5 Responses to “Fave analyst Lyle Denniston on Brunner v. Ohio Republican Party”
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Thank you for this summary of the ruling. It’s good news for fair and free elections.
[...] Posted by John Hummel on October 17, 2008 Ms. Zimon of She Writes Like She Talks, a blogger actually in Ohio, goes over the recent Supreme Court decision siding with the Ohio Secretary of State to halt the GOP’s pr…. [...]
while relieved at the result, I do wish that there should be more private causes of action for a government body not doing its job. What recourse does an individual citizen have if the government is not enforcing the laws? Petition your legislator? Not very satisfying, and unlikely to bring quick results, if any.
Jill- If you read the originial three-panel decision from the Sixth Circuit Court of Appeals, they made the same argument of laches, and cited Supreme Court precedent to suggest that eleciton officials, like Brunner, are to be given deference, especially this close to an election. Something I’ll prolly be writing about over at BSB over the weekend.
C- There is a legal process called getting a writ of mandamus in which a court can order a public official to do something that by law they are required to do but aren’t. In this case, what Brunner was alleged to have done did not violate HAVA, as HAVA is largely silent on what states are supposed to about these government database mismatches.
However, the Ohio GOP asserted that Brunner was violating the spirit, if not the actual letter, of HAVA and asked for a restraining order against Brunner to force her to do what they wanted. All the Court said was under that particular legal theory, it is not entirely clear that Congress created in HAVA the ability for private citizen and entities to seek enforcement of HAVA through the Court instead of the U.S. Department of Justice.
It’s technical, but the Court did not even say definitively that there is no private right of action in HAVA. It’s that in order to get a restraining order, the Ohio GOP had to show that it was likely to prevail in demonstrating that HAVA creates a private right of action. Since the Court found that they may fail in proving that, they found the restraining order to be improper, but leave the actual issue of whether HAVA provides a private right of action for a later date.
Thanks, Modern – I think that’s a great supplement and I look forward to whatever you write about the topic – I’ll be sure to link to it.