Yesterday's divided Sixth Circuit decision voiding the district court's TRO against Ohio Secretary of State Jennifer Brunner prompted a strongly worded dissent by Judge Griffin.
Defendant Ohio Secretary of State Jennifer Brunner's lack of concern for the integrity of the election process is astounding and deeply disturbing. Also troubling is the majority's rush to issue the present order in violation of the practices of our court. Although a petition for initial en banc hearing is pending and will be decided tomorrow by our active judges, Jude Moore along with visiting Judge Bright, have decided to ignore the en banc petition and issue their order. I respectfully dissent regarding the merits of their decision and object to the procedure.Judge Griffin then attached of the opinion and order by District Court Judge George Smith.
In the normal course of review, we will grant a stay of a temporary restraining order only if the district court abuses its discretion. . . . Here, defendant Brunner has failed to demonstrate that the district judge abused his discretion, and, thus, the emergency motion for a stay should be denied.
The majority assumes, and I agree, that plaintiffs possess standing to bring this 42 U.S.C. § 1983 action alleging a violation of the Help America Vote Act (HAVA). . . . Defendant Brunner claims compliance with HAVA, but the district court found that the system as currently structured is unable to effectively identify the mismatches of potential voters to the county boards of elections. The court determined that the "Verification of voter registration information" required by HAVA was not executed because "there is no effective way for irregularities to be reviewed." Without implementation, there is no compliance. In order to remedy this violation, "Defendant represented that it could take two or three days of programming work before the State would have the ability to search for mismatches in the same way it has the ability to search other fields such as name, address, social security, date of birth, precinct number . . . ." The district court's TRO requiring defendant to take two or three days to make the identification system effective and in compliance with HAVA is certainly not an abuse of discretion.
Allegations of procedural irregularities on the Sixth Circuit are something we've heard before. An en banc ruling could issue as early as today. Stay tuned.
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