Supreme Court Blocks Ohio Voter Registration Rematch

By Jeralyn, Section Elections 2008
Posted on Fri Oct 17, 2008 at 12:53:46 PM EST
Tags: voter registration (all tags)

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The Supreme Court today summarily overturned the Sixth Circuit Court of Appeal's 9 to 6 en banc ruling designed to disrupt new voters in Ohio at the behest of the Republican party.

The Court in a per curiam ruling held, as argued by the Ohio voting officials, that the GOP appears to have no standing under Section 1983 to sue to overturn the state's established voter registration procedures.

We express no opinion on the question whether HAVA is being properly implemented. Respondents, however, are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce Section 303 in an action brought by a private litigant to justify the issuance of a TRO.

The Order in Brunner v. Ohio Republican Party, 07A332, is here. Scotusblog has more. People for the American Way (PFAW)issued this statement:

This is a good decision for democracy. The facts are clear: there isn’t a shred of evidence of organized voter fraud in this country, and GOP efforts to prevent it only risk disenfranchising American citizens who have every right to cast a ballot.
The “voter fraud” fraud has been pushed by the right wing to help justify draconian restrictions on the right to vote. We should all be grateful that the Court managed to look through the deceit and exaggeration that has dominated this discussion.
Unfortunately, plenty of opportunity remains for the right wing to undermine this election. I certainly hope they will resist challenging massive numbers of voters as they try to cast a ballot, but we shouldn’t take anything for granted.

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Supreme Court Blocks Ohio Voter Registration Rematch | 13 comments (13 topical)

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The best parts of the ruling (5.00 / 0) (#1)
by scribe on Fri Oct 17, 2008 at 01:03:16 PM EST

are that (a) it removes this particular tool from the GOP's toolbox in every state and (b) from looking at the cases cited as authority for denying the GOP standing, it appears Roberts was on board with this one. Gonzaga v. Doe, which is the main case relied upon for showing the GOP lacks standing, was a case Roberts argued and won (for Gonzaga) while he was in private practice.

The S.Ct. seems to be saying: "resolve this election at the ballot box, and not the courtroom." That's a sentiment I heartily approve of.

No, if the question pivots on standing (none / 0) (#2)
by Cream City on Fri Oct 17, 2008 at 01:07:18 PM EST

then I don't see how it stops the FOP AG's suit in my state, for example. I would presume that the SC would see a state AG as having standing. I.e., it just means that the GOP will use different tools. (And my state AG is definitely a tool.:-)


Ah, even more nuance in the Wisconsin case (none / 0) (#4)
by Cream City on Fri Oct 17, 2008 at 01:19:11 PM EST

but we may know more in a week. From jsonline.com (and see also archives here for an earlier post or two):

High court's ruling in state case debated
Madison - A U.S. Supreme Court order today in an Ohio case could make waves in Wisconsin Attorney General J.B. Van Hollen's lawsuit against the state's election authority. . . . A state Department of Justice lawyer said the order would have no effect on Van Hollen's ability to continue his suit because he is trying to enforce state election laws - not federal ones - as a state official. . . .
Van Hollen last month asked a Dane County judge to force the board to check voter information for people who registered to vote between January 2006 and August 2008. A federal law required the checks to be run starting on Jan. 1, 2006, but Wisconsin didn't start them until Aug. 6, 2008, because of technical difficulties.
"A state attorney general is in no different position than a private litigant...," [a lawyer against Van Hollen] said, adding that he would file a brief on the matter on Monday. But Kevin St. John, an aide to Van Hollen, said the U.S. Supreme Court order has no implications for his case.
That's because Van Hollen - who, he noted, is a state official rather than a private citizen - filed his case under state, rather than federal, law. The state law mirrors the federal Help America Vote Act that is at the heart of the Ohio case. "They are absolutely different," St. John said of the two cases.
Van Hollen and other Republicans have argued the case will guard against voter fraud, while Democrats have claimed it will block legitimate voters from casting ballots. Dane County Circuit Judge Maryann Sumi is slated to hear arguments in the case Thursday.

Fortunately, WI seems to have a safe margin (none / 0) (#5)
by magster on Fri Oct 17, 2008 at 01:33:02 PM EST

and the RNC is pulling out.


It appears to be correct, so far as it goes (none / 0) (#8)
by scribe on Fri Oct 17, 2008 at 01:39:18 PM EST

as to state law. But, then the Wisconsin AG runs up against that other provision of HAVA which prohibits states from purging voters from the eligible rolls within 90 days of an election. Where state and federal laws come into conflict - federal law will control.

Given the Wisconsin AG's speech at the Repub Convention about fightin' votin' fraud and then turnin' aroun' and, youbetcha, starting a suit to disenfranchise voters by purging them from the rolls, it may be that HAVA (and other laws - state and/or federal) would give standing to individual voters suing (either individually or, more sensibly, as a class action) to enjoin their being purged from the rolls. They - because their vote and right to vote was being challenged - would have a personalized and concrete harm sufficient enough to confer standing on them to stop the AG's suit.


: You see a conflict (none / 0) (#11)
by Cream City on Fri Oct 17, 2008 at 01:55:56 PM EST

where the state GOP does not: this is how it fights voter fraud.
That said, they're going to get support from the major newspaper/radio/tv station in the state, with its nonstop front-paging of the ACORN idiocies in the major city in the state. The major Dem stronghold of the state. The GOP recruitments for pollwatchers are underway in a big way. It's going to be ugly.

Hmm (5.00 / 1) (#3)
by Steve M on Fri Oct 17, 2008 at 01:15:34 PM EST

Assume, for the sake of argument, that the Ohio SoS is in fact failing to comply with HAVA. What is the remedy, and who can pursue it?

I am not a lawyer. . . (5.00 / 0) (#10)
by LarryInNYC on Fri Oct 17, 2008 at 01:55:47 PM EST

etc, etc, but wouldn't a party who can show harm have standing to sue? That would be a voter or voters negatively affected by the law or perhaps a candidate negatively effected.


That would most likely be (none / 0) (#6)
by scribe on Fri Oct 17, 2008 at 01:34:03 PM EST

either (a) the Ohio AG, or (b) the Ohio SoS. Both of whom are ... Democrats. (See the importance of those down-ballot races?)

Maybe - big maybe - Congress, since the cases cited by the S.Ct. appear to revolve around statutes creating "rights" where those statutes are passed pursuant to Congress' spending power. But that's pretty dubious....


: It would seem odd (5.00 / 0) (#9)
by Steve M on Fri Oct 17, 2008 at 01:48:31 PM EST

to have state officials as the sole authorities responsible for enforcing a federal law.

County election clerks? (none / 0) (#7)
by magster on Fri Oct 17, 2008 at 01:36:21 PM EST

The candidate him/herself?

Like Cream City sd. above, the state AG?


: Enforcement of a federal law (5.00 / 1) (#12)
by Peter G on Fri Oct 17, 2008 at 05:33:36 PM EST

is either by the appropriate division of the U.S. Dept of Justice (here, the Voting Rights Section of the Civil Rights Division of DoJ) or by another means specified by Congress in the law in question. The S.Ct. decision does not turn exactly on "standing" but rather on the ground that Congress did not clearly create a "private right of action" to enforce this law, which exists for the benefit not of any private entity (such as a political party) but for the protection of the democratic rights of the people as a whole. (It is not strange, however, to allow state government enforcement of a federal law in this context, since voting, even for federal offices, is a state-run function.)

I'm very glad for this ruling but (none / 0) (#13)
by sallywally on Fri Oct 17, 2008 at 05:56:15 PM EST

the GOP is now going to file a state suit here in Ohio.

They aren't going to give up now - here or anywhere else, I'm sure - and not after the election if there's anything they can do then.

In how many states are these shenanigans being carried out? Just swing states? It seems like I remember about eight states being under attack.

Does this ruling offer us anything positive in terms of SCOTUS responses in the various electoral lawsuits the very anti-litigious (LOL) Repub party is filing?