En Banc Sixth Circuit Reinstates TRO in Ohio Election Case:

The U.S. Court of Appeals for the Sixth Circuit issued an order this evening reinstating the district court's TRO requiring Ohio Secretary of State Jennifer Brunner to provide county election boards with state voter registration information so as to facilitate confirmation of registration information. Rick Hasen has details and initial thoughts here and here.

A majority of the en banc court has reinstated a TRO, which will require the Ohio Secretary of State to send along to county elections boards those names that are a "mismatch" between voter registration and Ohio Bureau of Motor Vehicle records. The TRO does not require, and the en banc court majority emphasizes, that a county board is not required upon hearing of the mismatch to remove eligible voters from the rolls. But the court does suggest (on page 9 of the pdf) that it would be the basis for not counting absentee ballots of voters flagged as a mismatch barring further investigation by the board. There may also be some boards that could try to require mismatched voters voting in person to cast provisional ballots. And it also appears that to the extent the mismatch lists are public, it will provide the potential basis for challenges by the ORP on election day (though I believe it is now harder to mount such challenges in Ohio than it was in 2004, when the ORP threatened to make 35,000 challenges at the polls.

The AP reports here.

The opinion is now available here. [Note: Link updated to reflect revised opinion Wed., Oct. 15 at 10AM]

richard cabeza:
Enforce election law?

What has this pitiful country come to?
10.15.2008 12:13am
Psalm91 (mail):
Noun-verb-ACORN Day 3. What's the next theme?
10.15.2008 12:24am
Alec M:
Strikes me as rather bizarre that a majority of the en banc court found that this law actually gives rise to a private cause of action. I thought Scalia said that courts shouldn't go around inferring private causes of action all over the place, and they only did that sort of thing in the "bad old days."
10.15.2008 12:34am
J. Aldridge:
So the Ohio's Secretary of State is prevented from aiding and abetting ACORN? Priceless.
10.15.2008 12:55am
MS (mail):
The en banc opinions read something like the above comments.
10.15.2008 12:57am
Bill Poser (mail) (www):
Here in Canada we just had a federal election. There have been no shenanigans about voter registration and no lawsuits. You can register at the polling station if you want to. You just need proof of citizenship and residency (such as utility bill). If you're already registered, you just show your voter card or ID such as a driver's license. There is no risk of corruption due to the use of insecure machines because there aren't any. We have simple paper ballots. The votes are counted rapidly. In my riding, there are an average of 150 voters per polling station, 230 polling stations. Counting paper ballots is very fast if done in parallel. The polls closed at 19:00. We knew the results in most ridings within an hour of the closing of the polls. As of right now, less than three hours after the closing of the polls, 193 of the 230 polls in my riding have reported in.

Granted, things are somewhat more complicated in the US because of of the tendency to have more races at the same time (we have a municipal election here next month), but even so I am amazed at the mess that the US has made of elections.
10.15.2008 1:49am
richard cabeza:
What does the method of polling have to do with the method of voter identification verification?
10.15.2008 1:51am
Bill Poser (mail) (www):

What does the method of polling have to do with the method of voter identification verification?

Nothing. I'm just pointing out that neither error nor fraud due to the use of voting machines nor voting by those ineligible or denial of the vote to those eligible is an issue here.
10.15.2008 2:02am
richard cabeza:
Ok, Bill. I was wondering if I was missing part of the process (I have no idea how the data is moved around each device or group, even in my own State).

Though, the scale of the election does tend to bury problems in the news.
10.15.2008 2:05am
Bill Poser (mail) (www):

I guess they could become related if somebody decided to combine biometric identification of voters with the use of electronic voting machines. That is probably such a bad idea that I shouldn't mention it.
10.15.2008 2:09am
"Enforce election law? What has this pitiful country come to?"

Cabeza, is it necessary for you to play the hack every single post? It gets old quick. The fact is that the election law on this issue is not clear. The SoS claims that HAVA doesn't require her to take the actions that the District Court claims she does and being this close to the election, forcing the SoS to create a new system of verification is very onerous and may well cause more harm than good. But such subtleties don't fit your hackery MO and so we get one more of your pointless and fact-free comments.
10.15.2008 2:22am
richard cabeza:
Page seven:
So far as this record is concerned, the Secretary has given no tenable explanation why her current interpretation of the statute, as opposed to the office’s prior implementation of the law, remotely furthers the anti-fraud objective of the law.

TIA, thank you for your inciteful analysis. I will be sure to bring up your concerns at the next shareholder meeting.
10.15.2008 2:35am
The prior implementation that was used by Ken Blackwell to limit voter participation? If that's what your hanging your hat on, that says it all.
10.15.2008 2:42am
Random Commenter:
TIA - just out of curiosity, are you opposed to the facilitation of a review of voter ID mismatches by the county election boards?
10.15.2008 3:05am
The CoA's opinion provides no explanation of how the SoS's currrent system is deficient to meet the stated requirements of HAVA. What the SoS has done has provided the county election boards with full access to her database to search for mismatches. But the county board's don't want to do the actual work of checking for mismatches. Instead, they want that responsibility to fall on the SoS. The SoS's response is "I've given you the tools so do your job." Contrary to what you've tried to spin, it's clear that this has nothing to do with stopping or enabling voter fraud and everything to do with the local election boards trying to pass the buck on verifying the registrations. The CoA majority chastised the SoS for the lack of information on how the system was implemented or how it works but had to admit that there was little time to actually develop the record. But they didn't let that stop them from substituting their view of the system in place of the SoS.
10.15.2008 3:05am
Random Commenter:
"I'm just pointing out that neither error nor fraud due to the use of voting machines nor voting by those ineligible or denial of the vote to those eligible is an issue here."

Bill - saying voter fraud isn't an issue up there isn't quite the same thing as saying it doesn't happen. Are you arguing the latter?

P.s. I wholeheartedly agree with your assessment of the mess complex voting systems have produced in the US. Long live the paper ballot.
10.15.2008 3:07am
Random Commenter:
"The CoA majority chastised the SoS for the lack of information on how the system was implemented or how it works but had to admit that there was little time to actually develop the record. But they didn't let that stop them from substituting their view of the system in place of the SoS."

I am thinking you've never had to QA a query of someone else's complicated database.

Care to answer my question?
10.15.2008 3:20am
Bill Poser (mail) (www):

It's true that there could be voter fraud here in Canada without it being an issue, but I don't know of any reason to believe that there is much. I'm not aware of any studies suggesting that there is much fraud, or suggestions that there are serious holes in the registration or voter identification procedures. For that matter, I haven't seen much evidence of voter fraud (in the form of ineligible people voting) in the US, even though it is an issue.
10.15.2008 3:37am
CrazyTrain (mail):
Do these judges hate each other or what? People talk about the 9th being wild, but the judges there seem to like each other, or at least tolerate each other. Even with Reinhardt and O'Scanlain, I could never imagine one of them calling the other out so personally like the judge here do (Batchhelder should have recused herself, but still . . .) I vote to split up the 6th Circuit, and get rid of the whole lot of them . . .

And yes, Bill, we Americans know everything is better in Canada . . . We all just wish we were Canadian.
10.15.2008 3:45am
Ohio Lawyer:
Craytrain, you are right. These judges hate each other, and they often speak about each other in ways that would get attorneys disciplined. But Martin has a point. Bachelder's husband is a Republican running in this year's election. He has at least as much of a stake in this litigation as a judge who happens to have an SP500 Index Fund does in a case concerning AT&T case.

Judge Bachelder should have disqualified herself. Two Ohio Supreme Court justices who are running for reelection (Stratton and O'Connor) disqualified themselves from similar challenges in state court.

On another note, I think the Election Blog and this blog have missed one key goal of this litigation. The Secretary of State has one seat on the three-member apportionment board. That board will reapportion Ohio's state and federal legislative districts based on the 2010 Census. One of the other seats is firmly in Republican hands (auditor). The other is firmly in Democratic hands (attorney general). If the Republicans can knock of Brunner, they control reapportionment. That is why key reason that the have launched a full frontal assault on anything Brunner does.
10.15.2008 8:12am
Sarah (mail) (www):
Erm, I'm pretty sure that the 2008 presidential election is nearly as important, if not more so, than the possibility of gerrymandering future elections. I mean, if you're going to bring in the apportionment board, we could also bring in things like the Auditor of State being the only statewide elected position in Ohio held by a Republican, or the larger "oh, woohoo, Ohio Democrats look just as corrupt as we do, let's run against them on that since all our highly-visible corrupt guys are out of office" strategy the Ohio GOP appears to have latched onto of late.
10.15.2008 8:26am
The early absentees were already put in the system. Obama has already won Ohio, because Jenny was given a free week for ACORN to sign up fake voters and have them vote early.
10.15.2008 11:00am
JosephSlater (mail):

On behalf of the Obama campaign, I accept your concession.

That makes the score 20-0, so far.
10.15.2008 11:04am
Norman Bates (mail):
As I predicted in an earlier thread. I also was able to correctly guess the party affiliation (Democrat) of the two panel judges in the panel decision. My successes were based on the simple and obvious premise that the Democrats are trying to steal this election.
10.15.2008 11:07am
Sarcastro (www):
Norman Bates is a master of the scientific method! He had a hypothesis based on a theory and then it was proven! As is well known in scientific circles, this means the theory is now true and must be accepted as an article of faith.

Democratic judges tend to disagree with Republican judges. I was able to predict this based on the simple premise that Republican judges always write opinions based on principle, whereas Democratic ones write them based on hatred for the Republicans.

I must admit I knew what the result would be beforehand, since all true principles are Republican anyhow.

And I also know that Democratic judges are totally in on the conspiracy to steal the election! Democrats always flock together to do evil without any sense of reward. This is because they are united by their hatred of America.

This is just like all those Democratic whiners in 2000, only this time it's true, as proven conclusively by Norman Bates and his astounding science!
10.15.2008 12:32pm
On behalf of the Obama campaign, I accept your concession.

That makes the score 20-0, so far.

I am on the board of a fairly large gun club in a mostly union area.

It is so depressing. Not just that he is going to win, but who is voting for him and why.

"Is vote for Obama. Unions says to, he gets in and plants come back. My Grankids will have good jobs likes I did."

"Obama won't not ban guns, the unions says so."

"Obamas only raise taxes on the rich."
10.15.2008 12:48pm
CiarandDenlane (mail):
I hope either that the Ohio BMV is better organized than the DMV in my home state (Virginia) or (what I can't tell from a quick scan of the opinion) that one can vote even if there is a mismatch because of a BMV error.

I have lived at the same address for more than ten years. Nevertheless, DMV went ahead and changed my address several times. It was at least a minor hassle to get that mistake corrected for DMV purposes. I would have found it annoying to have been disenfranchised as a result.
10.15.2008 1:00pm
Sarcastro (www):
Happyshooter is right. Most Obama voters talk like cave men.

Do we really want a Neanderthal to be President?
10.15.2008 1:04pm
Norman Bates (mail):
Sarcasto: I accept your accolades but with the caveat that those who have read my post will realize you are crediting me with far more than I claim.
10.15.2008 1:18pm
Sarcastro (www):
Norman Bates even so, Democratic judges are obviously trying to help ACORN and the Chicago Machine steal the election for no obvious reward.

Because there is no such thing as an objective Democratic judge. Especially not one that disagrees with Norman Bates!
10.15.2008 1:21pm
PDXLawyer (mail):
Bill Poser wrote:

"For that matter, I haven't seen much evidence of voter fraud (in the form of ineligible people voting) in the US, even though it is an issue."

Check out this article:

In the 2004 Washington race, several hundred convicted felons (ineligible to vote in WA) did in fact vote. The US Attorney concluded there was no evidence of voter fraud because there was no direct evidence that they knew their voting was illegal.
10.15.2008 1:43pm
Sarcasto: Cavemen with $45k avalanche trucks, second homes, and the ability to read at about a 4th grade level.
10.15.2008 1:46pm
Bob from Ohio (mail):
There are 33 million people in Canada. California has 36 million itself. 10 states at least have 10+ million.

You have one race in each district. None is as important as the presidency on the party's future. Besides Congress, 1/3 have senate races. Most [all?] states are electing state legislatures plus many have state issues or other races.

The scale does make a difference. A huge difference.

Plus, while we tend to think of Canadians as Little Americans, I know there are distinct cultural and historical differences.

Is there a history of big city voter fraud in Canada? There is in the US, that is what the non-urban GOP fears. Rightly or wrongly.

Many Dems here think, or say they think, that there is a big conspiracy for Diebold to steal elections.

So, fraud, or belief in fraud, is a major issue here.
10.15.2008 1:48pm
Sarcastro (www):
Happyshooter But I thought these small town, salt-of-the-earth types were the ones gong to save America from the nasty elites!

I'm so confused! Who do I get to blame for this election, the rubes or the elites, or some unholy crossbreed of both?

Ah, dash it all, I'm just going to blame ACORN!
10.15.2008 1:53pm
Whatever the merits of the argument that Judge Batchelder should have recused herself, seeing Boyce Martin complain of an appearance of impropriety is rich. Given his conduct as Chief Judge during the Michigan affirmative action cases, he should not be casting stones.
10.15.2008 4:35pm
co-sign 3:35:
Boyce Martin is a clown.
10.15.2008 5:49pm
"I am thinking you've never had to QA a query of someone else's complicated database."

I'm pretty confident that I have more experience working with election databases than any of the judges of the CoA.
10.15.2008 6:28pm
one of many:
Bill Posner, I think the reason it is more controversial in the US is that right now the balance is so close than many elections are too often decided by a minuscule number of votes compared to the total cast. Not just the presidential race which is confounded by the electoral college, but many other races (like the governor of Minnesota who retained office by less than 1% of the total vote, or the governor of Washington who took office after multiple recounts by a 129 vote margin out of 2.7ish million total votes). If the great sort takes place and the US clusters on a state level (where US voting takes place) into homogeneous groups then there will be less controversy. Hand counting paper ballots works fine when it a 2:1 blowout but for really close races it can be wrong. (The Washington State 2004 governor election is really a great example of problems, like ballots getting lost when someone apparently put a bin of ballots on top of them.)
10.15.2008 6:35pm
Phil17 (mail):
Pardon my ignorance, but I think of a TRO as, well, restraining some action.

This TRO is affirmative, requiring someone to take action.
How common is this?
10.15.2008 7:22pm
Opher Banarie (mail) (www):
You think anyone at SCOTUS is planning vacations between November 5th and January 20th?
10.15.2008 7:54pm
Greg Q (mail) (www):
You know, this one seems worthy of a followup, given that Brunner was hiding "more than 200,000" probably fraudulent "registrations."

That is likely enough for the Democrats to have stolen Ohio's electoral votes, if she'd gotten away with it.
10.15.2008 8:10pm
just me (mail):
Although it doesn't sound like all the 200,000 registrations were fraudulent, some of them, probably many of them would be legitimate, although why she wouldn't have put them through the system to check their validity is beyond me.

I also came across this indication of what appears to be fraud.
10.15.2008 9:32pm
PDXLawyer (mail):
Greg Q: Please don't exaggerate like this. It doesn't help your case. The 200,000 figure is the number of registrations that contain discrepencies. Some are surely obvious nonsense registrations, like "Minnie Mouse," which may corrupt the registration system (and the production of which ought to be cracked down upon), but are unlikely lead to fraudulent votes being counted.

Some of the rest surely involve simple database or transcription errors or failures by people who move to notify the motor vehicles people - in other words, they involve people who *are* eligible to vote. I wouldn't be surprised if this category is large, for completely non-nefarious reasons. Sorting out the fraudulent from the non-fraudulent would require individualized investigation.

At least, for the 2/3 of registrations which came back matched, county officials no longer have to worry too much. They can concentrate their attention on the remaining 1/3. I think that's progress. The Secretary of State's continued insistence that nothing should be done to try to reconcile discrepencies is troubling, but can easily be attributed to a hyper-partisan outlook rather than a subjective intent to enable fraud.
10.15.2008 10:00pm
PDXLawyer (mail):
just me: Thanks for the link. Seems to me like there's enough there to indict, if the reporter would be willing to testify to all this under oath.
10.15.2008 10:07pm
Ohio Scrivener (mail):
This story is starting to get more interesting. For the first time this year, Ohio allowed an early voting period with same-day registration and voting. When you allow registration and voting on the same day, it sure seems important that you also make sure the registration is accurate. Hiding registration discrepancies while accepting votes from new voters is hard to justify.
10.15.2008 10:40pm
Jack P.:
As Judge Moore's dissent points out, the court has ordered the Ohio Secretary of State to violate the National Voter Registration Act of 1993 (Public Law 103-31):
Moreover, the majority’s view would require the Secretary to violate the National Voter Registration Act (“NVRA”) and HAVA.... See 42 U.S.C. § 1973gg-6.... Therefore, the TRO, now sanctioned by the majority’s forced interpretation of HAVA, mandates that the Secretary violate federal law.

The NVRA clearly provides:
(2)(A) A State shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters.

Congress is pretty clear here: A state must finish any systematic removal of voters from the rolls 90 days before the election. Congress has prohibited a state from doing what the district court and the en banc majority has ordered.

The potential for 200,000 mismatches between the state voter database and the state motor vehicle database is consistent with experience from other states. Mismatches of 15-30% have been found. Some of it has been due to diffences in how the databases handle spaces and punctuation: one example is “O'Neil” versus “ONeil”.
10.16.2008 12:39am
"You know, this one seems worthy of a followup, given that Brunner was hiding "more than 200,000" probably fraudulent "registrations." "

Wow, Greg, great to see that you've actually reviewed the registrations. What we've learned so far is that 2/3rd of the early registrations show no conflict between the voter registration information and what's in the other state databases. So if ACORN was the one pushing these registrations, the claims that all of their registrations are fraudulent is already disproven.

The other 1/3rd? We don't know. People are assuming that the DMV database is error-free. Why? There's no such thing as an error-free database and the data error is just as likely the result of bad data in the DMV database versus the voter registration. The other thing to keep in mind is that in urban areas, many people don't have drivers licenses (I know, a foreign concept to those who live in the suburbs). The DMV database is pretty useless for doing any voter identification. I have no doubt that in that 200,000 there are some fraudulent registrations. I've seen how Republican petition collectors submit fraudulent signatures to know that it happens. But I'm pretty confident that the number is a lot less than 200,000 and that the impact on the actual election results will be minimal.
10.16.2008 12:52am
Jack P.:
An IEEE Spectrum article from October 2006 (yeah, two years ago) has some more information on database mismatches:

Weiser says there are some simple reasons for the high number of mismatches, and it is not out of line with the results of any comparison of two large databases of names. They can occur when the voter omits, say, a middle initial from one list but not the other, or if a hyphen in a last name gets turned into a space, or if an apostrophe gets dropped and “O’Brien” becomes “OBrien” or “O Brien.” When the Social Security number, which is usually assigned at birth, is used instead of the driver’s license number, mismatches are likely for women who change their surnames when they marry.

Then there’s the problem of simple database mistakes. A study by the Board of Elections in the City of New York compared 15 000 new voter registrations with the New York state motor vehicle database. It found that 20 percent of the records failed to match because of typographical errors made by election officials.

With 20% due to typos alone in that sample reported from New York, Wisconsin's recent 22% mismatch doesn't look that bad.
10.16.2008 1:09am
Re the court ordering Brunner to violate the NVRA: Going from the paragraph quoted in the post above, it doesn't seem to me that the court is requiring Brunner to violate the NVRA. The TRO requires her to send the names that are a mismatch to the county boards. The TRO does not require the boards to remove voters from the rolls. "But the court does suggest (on page 9 of the pdf) that it would be the basis for not counting absentee ballots of voters flagged as a mismatch barring further investigation by the board. There may also be some boards that could try to require mismatched voters voting in person to cast provisional ballots."

Would that count as "any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters."

I don't believe it does. I can see where it's arguable, but I believe Judge Moore's statement to be an overstatement.
10.16.2008 11:26am
Jack P.:

Well, you may have a point: The court's order effectively requires the State of Ohio to undertake a ‘a program the purpose of which is to systematically remove the names of eligible voters from the official lists of eligible voters.’

Big difference there. The cited portion of the NVRA says nothing about intentionally preventing eligible voters from casting regular ballots. So you have a point. Tossing out elible voters may be okey-dokey.

If 200,000 registrants with potential mismatches must cast provisional ballots, then we expect that about a third of those ballots may be uncounted. However, that's an interesting expectation, as it's drawn from a national average. The distribution within particular jurisdictions needs to be looked at in more detail. It may turn out that there's a third of chance that none of the provisional ballots will be counted within particular jurisdictions or statewide.
10.16.2008 1:41pm
Let's pretend we live in a world where the Democrats are not trying like hell to get ineligible voters to vote, and Republicans are not trying like hell to get eligible voters' ballots disqualified. Let's impute neutral motives to both sides -- or at least I will. The court's order does not require the Secretary to remove the names of eligible voters. It merely requires her to share the mismatch information with the county boards. They, in turn, can require those mismatches to cast provisional ballots, which will then be counted if it is a matter of an error in the DMV database, for instance, and the voter is eligible. In my view, it is correct to have a way to separate potentially ineligible voters' votes from those who are eligible.

I guess I don't see what the problem is as long as those votes cast provisionally by eligible voters are counted and those cast by those who are not eligible to vote are not.
10.16.2008 4:41pm
Jack P.:

I understand that the administration of George Bush, 41, was notoriously liberal, so you may discount that adminsistration's policy. Nevertheless in that administration, the DoJ prosecuted practices like the one the district court and the Sixth circuit have mandated.

You can play pretend all you want. But Republican Judge George C. Smith's order paves the way for a practice that the DoJ, under a nominally Republican administration, obtained a consent decree from the Republican party to prohibit.

The mismatch information for each registrant is available to the county boards. The order, though, requires Ohio to reprogram the database routines, on the eve of the election, to provide a list of the mismatches.

We're not blind here.
10.16.2008 6:37pm
Jack P,

I'm not trying to pull one over on you, nor am I playing pretend. I'm arguing in good faith with the information I have. I wasn't aware of the DOJ's prosecution of the mandated practices. It was my understanding that the mismatch information is available to the county boards, but that the information was rendered useless because the boards would have to enter each voter's name separately to locate a mismatch. The lists were a way for the boards to identify mismatches, making the database less of a haystack to find the needles. If that indeed is a practice prosecuted by a Republican DOJ, then I guess I don't agree with the DOJ at that time.

My preferred practices would be those that encouraged registration and discouraged fraud. I think the order accomplishes that. I am guessing we disagree on that. But I won't accuse you of sophistry to make my point. I can't wait for this election to be over so that I can have conversations with people that don't devolve into arguments where motives and character are thrown into question. I hope you have a lovely evening in which you are rooting for the Red Sox to dig themselves out of this hole.

10.16.2008 8:00pm