I have a few initial thoughts about Brunner v. Ohio Republican Party and the Supreme Court's order granting the Ohio Secretary of State's request for a stay and vacating the TRO that would have required her to provide information about mismatches between voter registration data and the Ohio BMV database to county election boards. As Rick Hasen notes here, this means that the Ohio Republican Party will not be able to obtain mismatch data that it could use to challenge voters and absentee ballots.
First, I think the Supreme Court is correct that, under Gonzaga University v. Doe and Alexander v. Sandoval that it is doubtful whether there is a private cause of action to enforce Section 303 of the Help America Vote Act in federal district court. There are also reasons for federal courts to be particularly reluctant to enforce such actions on the virtual eve of an election. Yet on the U.S. Court of Appeals for the Sixth Circuit, it was largely the more liberal judges who argued that there was no private cause of action (save for Judge Gilman, a Clinton appointee, who joined the ten-judge majority).
While I am skeptical that a cause of action existed, I believe that the majority had the better of the argument on the merits, particularly given the highly deferential standard of review. In short, I believe it is difficult to argue that the district court abused its discretion in ordering the Secretary of State to implement the office's prior approach mismatches between the BMV and voter registration data. Further, I find the laches argument against the Ohio GOP somewhat strained because it is unclear on the record when Ohio Secretary of State Jennifer Brunner changed the manner in which her office handled data mismatches, so it is unclear when the Ohio GOP was on notice and should have been expected to file suit. [NOTE: It appears the change was made by Brunner's predecessor. If so, this would strengthen the laches argument considerably, particularly if it could be shown the Ohio GOP was on notice of the change.] Still, if there is no private cause of action, there is no basis for a federal court to address the case.
Another interesting aspect of the ruling is the spat between Judges Martin and Batchelder over whether the latter should have recused herself from the case. I will address this in a follow-up post.
UPDATE: Bill Dyer offers his thoughts:
(1) Today's ruling turned on important but esoteric legal principles that don't have much to do with voting rights in general or the situation on the ground in Ohio in particular, and it ought not be interpreted as the Supreme Court either rejecting or accepting the proposition that there's wide-spread and systematic voting fraud being undertaken there or anywhere else. (2) It does, however, emphasize that the Supreme Court thinks this is an important topic. And most importantly, (3) Congress desperately needs to further reform the voter fraud and voter registration laws to specify who may sue under them, when, how, and for what relief.Rick Hasen rounds up more news and reactions here.
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