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Thoughts on Brunner v. Ohio Republican Party:

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.

Steve:
Assuming for the sake of argument that there really is a HAVA violation taking place, how does the statute contemplate that it will be addressed (assuming the Court is correct and there's no private right of action)?
10.17.2008 6:14pm
Oren:
Steve, the AG is empowered to file suit to enforce the provisions of HAVA.
10.17.2008 6:20pm
Meh Neh:
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)

Judge Gilman is a Clinton appointee, but it is not accurate to describe him as a "liberal" judge. In divided cases, he is more likely to vote with the court's conservative bloc than he is to vote with Martin, Daughtrey, Moore, Cole and Clay, who make up the court's longstanding liberal bloc.

With the addition of Judge White to the Sixth Circuit, the court probably has nine hard-right active judges and six solidly left-leaning active judges, although White doesn't really have enough of a record to know how she will turn out. Judge Gilman is the closest thing the Sixth Circuit has to a swing vote, but he votes with the conservatives more often than the liberals.
10.17.2008 6:25pm
Repeal 16-17 (mail):
Steve, the AG is empowered to file suit to enforce the provisions of HAVA.


The AG, or another authorized governmental entity, should file suit to enforce HAVA. This dispute should not continue to hang over the election.
10.17.2008 6:34pm
Greg Q (mail) (www):
Steve, the AG is empowered to file suit to enforce the provisions of HAVA.

And since the State AG is a Democrat, and Democrats are the party of Vote Fraud, this means the voters of Ohio are screwed.

Does anyone think that, if the Democrats manage to steal the State of Ohio for Obama using these fraudulent votes, and that's the margin of victory for Obama, that Obama's presidency will be considered legitimate?

Given that the State SoS, a Democrat, is on record favoring vote fraud, does anyone believe there's any possible vote for Obama in Ohio that won't be taken as "Democrats stole the vote"?
10.17.2008 6:36pm
Greg Q (mail) (www):
Question:

Was this a ruling by Stevens? Or did he get at least 4 other members of the SC to back him on this?
10.17.2008 6:37pm
Steve:
Steve, the AG is empowered to file suit to enforce the provisions of HAVA.

Only the AG? Meaning the enforcement of this federal statute is left up to a state official, who will necessarily belong to one party or the other? That sounds like a poor enforcement mechanism.
10.17.2008 6:39pm
J. Aldridge:
If you think the Supreme Court is correct, then you also agree the SCOTUS is also the final arbitrator of state law.
10.17.2008 6:39pm
PDXLawyer (mail):
Greg Q: It was on a vote of the full Supreme Court.
10.17.2008 6:41pm
J. Aldridge:
HAVA can only enforced if it is in pursuance to some delegated power belonging to Congress.
10.17.2008 6:42pm
U.Va. Grad:
And since the State AG is a Democrat, and Democrats are the party of Vote Fraud, this means the voters of Ohio are screwed.

The state AG is irrelevant. It's DOJ that has the power to file suit under HAVA. So, to the extent the voters of Ohio are screwed, that's Mukasey's fault.
10.17.2008 6:47pm
PDXLawyer (mail):
I had understood that, on the theory that there is no private right of action, the person with standing would be the Attorny General of the United States.
10.17.2008 6:47pm
loki13 (mail):
Prof. Adler,

There are so many, um, interesting things in your post I hardly know where to start. But I do have one question-

As standing is a basic matter of the court's jurisdiction, then why is there any argument as to the merits? IOW, even ignoring the fact that these cases usually aren't TRO'd before an election like this, why should the trial court's finding of standing be given deference? And even assuming, arguendo, that it is given deference, isn't the finding of standing so against the *actual law* (hence the 9-0 benchslap) that the level of review wouldn't make a difference?

This is an actual question, not a snarky one.
10.17.2008 6:56pm
Greg Q (mail) (www):
PDXLawyer,

Crap. Thanks.
10.17.2008 6:58pm
Greg Q (mail) (www):
It's DOJ that has the power to file suit under HAVA. So, to the extent the voters of Ohio are screwed, that's Mukasey's fault.

So, where the hell is Mukasey?
10.17.2008 6:58pm
Oren:
PDXLawyer correctly parsed my original comment -- it is the attorney general that is empowered to enforce this law (why would a State AG be empowered to enforce a Federal Act, I'm not sure).
10.17.2008 7:04pm
Ohio Lawyer:

The AG, or another authorized governmental entity, should file suit to enforce HAVA. This dispute should not continue to hang over the election.


The dispute would have hung over the election either way. It would have been worse the other way. Could you imagine 200,000 hearings on 200,000 provisional ballots?

It sounds like the vast majority of the discrepancies were things like using a middle initial instead of a middle name or a maiden name instead of a married name. That's not worth the chaos.


Given that the State SoS, a Democrat, is on record favoring vote fraud, does anyone believe there's any possible vote for Obama in Ohio that won't be taken as "Democrats stole the vote"?

And if the case had gone the other way, it would have been taken as "Republicans stole the vote," especially given that the Sixth Circuit majority was almost entirely Republican, the District Court judge was Republican, and one of the Sixth Circuit Judges was married to a state Republican candidate with a direct stake in the litigation.
10.17.2008 7:21pm
Jiffy:
Professor Adler's defense of the 6th Circuit's decision on the merits (both as to "abuse of discretion" and laches) is based on the factual claim that the SoS made some change in reporting procedures, but, at least according the the Supreme Court brief filed by the Ohio SG, that's disputed. One of the arguments made by the SG was that that the District Court should not have denied the SoS's request for an evidentiary hearing on that and other issues.
10.17.2008 7:42pm
Jonathan H. Adler (mail) (www):
loki13 --

The basis for the Supreme Court's order is that there is no private cause of action to enforce the statute, not that the plaintiffs lacked Article III standing. The two issues are distinct, and are not jurisdictional in the same way. A party can have standing but lack a private cause of action, and I believe that was the case here.

As for deference, the standard of review of a trial court's issuance of a TRO is whether the trial court abused its discretion in making its determination of the parties' likelihood of success on their statutory claims and its balancing of the equities. So, if there had been a private cause of action to enforce the relevant HAVA provision (a matter Judge Sutton rightly characterized as a close question under relevant precedent), I believe the en banc majority would have reached the correct substantive result given the degree of deference the appellate court owed the trial court.

JHA
10.17.2008 7:42pm
Guest01:
On the laches argument (not that I think it is particularly strong): I think that it was Brunner's predecessor that changed the policy.

"The Secretary's predecessor—not the current Secretary—set up the database to withhold the mismatch reports that ORP seeks."

That's on page 2 of the reply brief to the USSC.

I think there was some confusion in the en banc decision as to when this mismatch feature of the program was turned off, but it appears that Brunner didn't know when it was turned off because it wasn't her that turned it off.
10.17.2008 7:46pm
DangerMouse:
Given that the State SoS, a Democrat, is on record favoring vote fraud, does anyone believe there's any possible vote for Obama in Ohio that won't be taken as "Democrats stole the vote"?

Greg,

I understand your disappointment, but you shouldn't sound so upset. No matter what the Courts ruled, ACORN is going to steal the vote anyway. Democrats always try to steal the vote. It's just a fact of life. And don't think they have any shame about it either. They love to corrupt the electoral process. They had so much fun doing it in 2000, they'll do it again.

By the way, just by suggesting that voter fraud might be taking place, Obama thinks you should be prosecuted and sent to jail. The One will not tolerate people questioning him. That's why they're also trying to railroad a citizen who just asked The One a question.
10.17.2008 8:11pm
PDXLawyer (mail):
I read the reply brief, which was, well, interesting.

Is the Supreme Court really that different from all other appellate courts? This brief makes all kinds of factual contentions without ever citing to the record. You'd get laughed out of court if you tried something like that in an ordinary non-political state appellate court case.

Of course, the ground on which the Supreme Court ruled had nothing to do with any of the factual issues, so this doesn't affect the outcome. Still, I wonder about this choice to just blow off a fairly basic groundrule of appellate advocacy. Any USSC followers who can shed some light on this?
10.17.2008 8:36pm
Ohio Scrivener (mail):
Ohio Lawyer writes:

The dispute would have hung over the election either way. It would have been worse the other way. Could you imagine 200,000 hearings on 200,000 provisional ballots?

It sounds like the vast majority of the discrepancies were things like using a middle initial instead of a middle name or a maiden name instead of a married name. That's not worth the chaos.


From one Ohio lawyer to another, I find that argument internally inconsistent. If as you say, the "vast majority" of the discrepancies are minor things like middle initials, married names and the like, then you can put away the specter of "200,000 hearings." This election is not the first time in Ohio that a person has registered with a married name or wrong middle initial. Those commonplace events do not stop a person from voting (at most they require a provisional ballot) and they hardly require a hearing to correct.

While the "majority" of the discrepancies may very well be minor just as you have described, the only way to test your claim is through disclosure.
10.17.2008 9:04pm
Chico's Bail Bonds (mail):
Adler,

That is a very unusual interpretation of the abuse of discretion standard you have there. In abuse of discretion review, appellate courts give deference to factual findings and application of fact to law. They don't give deference to pure issue of law, which is exactly what this case turned on. Another way of putting it is that there is no "discretion" to interpret the law incorrectly and there is no reason for an appellate court, much less the Supreme Court, to defer to a district court's interpretation of the law.

Equally strange is your assertion that the republican party had Article III standing. What exactly is their injury in fact? If you guessed that it is the Secretary of State is violating the law, the Supreme Court said you have likely guessed wrong. Remember, the injury has to be particularized to the republican party, which apparently is not the case, according to the Supreme Court.
10.17.2008 9:25pm
Lev:

It sounds like the vast majority of the discrepancies were things like using a middle initial instead of a middle name or a maiden name instead of a married name. That's not worth the chaos.


A fellow I know told this story about college registration, back in the days before PCs. The guy in line ahead of him was registering, and told the college personnel person filling out the form that his name was Sam H Houston (names changed to "protect" the innocent). The registrar duly wrote down Sam Houston. The guy told her his middle initial was H and she should put it down. She said there was no need to because middle initials made no difference.

Whereupon the fellow I know piped up and told her that she better put the guy's middle initial down, because his name was Sam Houston, and he had no middle initial.
10.17.2008 9:55pm
Ohio Lawyer:

at most they require a provisional ballot) and they hardly require a hearing to correct.



You assume that the Republicans won't challenge every voter on that list and every provisional ballot of people on that list. I don't make that assumption.

The Republicans could have asked for this information months ago. They could have sued months ago. It looks like they waited until the last minute to sue in order to cause the most confusion.
10.17.2008 10:04pm
Ohio Lawyer:
And even forcing someone cast a provisional ballot decreases the chance that it will be counted, increases the chance of voter error, and increases the chance that it will be subject to litigation.
10.17.2008 10:19pm
Aleks:
Re: Does anyone think that, if the Democrats manage to steal the State of Ohio for Obama using these fraudulent votes, and that's the margin of victory for Obama, that Obama's presidency will be considered legitimate?

If Obama also wins any of FL, VA, MO, CO, or NC then yes, his election should seen as legit no matter what Sore Loserman whining the Right does in Ohio, because any of those states would put him over the top.
10.17.2008 10:29pm
another cynic:
Wasn't everyone, including parties, judges, and commenters alike, on the opposite sides last time? As in Democratic plaintiffs getting TROs from Democratic-appointed judges, and Republican-apppointed judges reversing, and all of the critics and commentators on the opposite sides as they are now on the importance of granting relief or avoiding judicial interference with elections?

What a joke
10.17.2008 10:40pm
Greg Q (mail) (www):
And if the case had gone the other way, it would have been taken as "Republicans stole the vote,"

Only among the highly delusional and dishonest. Of course, that does describe a large proportion of the Democrat Party.

Any honest voter should have little difficulty proving his / her right to vote. Proving fraud after the fact is much more difficult.

I do hope the Ohio Republican Party makes a big deal out of this. Flyers and ads saying "Don't Let Jennifer Brunner Steal this Election" should be plastered everywhere for the next three weeks.
10.18.2008 12:03am
Greg Q (mail) (www):
Note:

Brunner claims that her predecessor is the one who made the change. She did not, however, provide a single bit of support for this claim.
10.18.2008 12:05am
ed (mail) (www):
Hmmmmm.

"It sounds like the vast majority of the discrepancies were things like using a middle initial instead of a middle name or a maiden name instead of a married name. That's not worth the chaos."

It is absolutely worth the chaos.

People are finding innumerable instances of voter registration fraud. Obama workers brought into Ohio for temporary campaign work have registered to vote -in Ohio- illegally.

So yes it is important. Frankly I think it's important enough that, just this once, every single vote -without exception- should be matched physically against a living breathing person. And that person should be required to prove identity and legal right to vote.
10.18.2008 12:41am
ed (mail) (www):
Hmmmmm.

@ Ohio Lawyer

"The Republicans could have asked for this information months ago. They could have sued months ago. It looks like they waited until the last minute to sue in order to cause the most confusion."

Do you have a source for that or are you pulling it from a nether region?
10.18.2008 12:45am
ed (mail) (www):
Hmmmmm.

*shrug* Like I pointed out before. These are the beginning steps of the 2nd American Civil War.
10.18.2008 12:47am
Bill Dyer (mail) (www):
Prof. Adler: Thanks for your views. My own extended take is up as a guest post at HughHewitt.com, but it's pretty consistent with yours.

Did you notice that Chief Justice Roberts was the winning advocate for the position limiting section 1983 use in Gonzaga? I'm guessing he wrote today's per curiam opinion.

Perhaps in your next post on the case, you'll also address the likelihood and suitability of the DoJ re-filing the same claims, since (a) HAVA expressly authorizes the AG to file cases to enforce section 303 interests like these (as Prof. Kerr notes above), and (b) we now know that on the merits, such a claim would be upheld at least through the Sixth Circuit en banc. It occurs to me that one explanation for the super-swift progress of this case (TRO to SCOTUS in seven days) would be that someone (e.g., Chief Justice Roberts) wants the DoJ to have time to act if a pressing need for it to do so appears (as now is arguably the case, with lower court findings of a probability of success on the merits with respect to a violation of HAVA).

Today's decision is a classic example of a judicially conservative ruling which, in this instance, favors a decidedly liberal cause.
10.18.2008 2:33am
Greg Q (mail) (www):
So, another cynic, are you that dishonest, or just that uninformed? In 2000 the Democrats were getting the Florida Supreme Court to rewrite the election law, after the votes were cast, to be whatever Al Gore needed so that he could steal the election.

This time around, the Republicans are trying to use the courts, before the voting, to force the Ohio Sec of State to follow the existing election law, and prevent fraudulent voting from taking place.

That only looks like "each side switching sides' if you're just not paying attention.
10.18.2008 7:14am
Ohio Lawyer:

Do you have a source for that or are you pulling it from a nether region?


From the en banc dissent, p/16, in the Sixth Circuit:

The time pressures in this case are entirely caused by ORP's last-minute challenges to the procedures initiated by the Secretary of State's office before the current Secretary began her position in 2007. While the Secretary's procedures have been known and in effect for a considerable time, ORP waited to file its suit in the district court until September 26, 2008, and did not file its motion for this temporary restraining order until October 5, 2008.

All the new registrants have to show valid ID at the polls to vote, so claims of potential voter fraud are very close to simple lies. If a registered voter has valid ID that shows that they live in the district, there is no reason except voter suppression and a desire for confusion at the polls to demand that the voter cast a provisional ballot.
10.18.2008 7:25am
Ohio Lawyer:
According to today's Columbus Dispatch, Brunner is following the policy of her Republican predecessor, the Ken Blackwell. The Dispatch writes:

Brunner, in turn, has produced e-mails suggesting that J. Kenneth Blackwell, her Republican predecessor who left office at the end of 2006, decided to notify counties only if there was a match for deceased voter -- and that officials should "let registration errors resolve themselves during the 'check-in' process while voting."

So this policy has been going on since at least 2006, and high-level Republicans have known about it for years.

The Republicans created a policy, implemented, and sat on their hands for years. Then, they waited until one month before a close presidential election to spring their litigation against THEIR OWN POLICY hoping (so far unsuccessfully) that they have stacked the bench with enough judges willing to place party over the impartial application of the law. They also have the gall to blame Brunner for not changing the policy that the they themselves created, implemented, and followed.

Rank hypocrisy. Rank dishonesty.
10.18.2008 8:41am
Ohio Lawyer:

That only looks like "each side switching sides' if you're just not paying attention.


You're right, but you have it backwards. In 2000, the Democrats could not have litigated their complaints until after the election. In 2008, the Republicans waited until just before the election to challenge longstanding policies and practices--policies and practices that started under the Republican former secretary of state. Ohio Republicans had years to file a lawsuit that could have been resolved in an orderly fashion.

Also, in 2000, there was no remedy except litigation. In 2008, the mandatory ID check at the polls solves the Republicans' complaints.
10.18.2008 9:24am
snelson (mail):
As long as Republican pollwatchers are allowed to check every ID themselves, and demand provisional votes for discrepancies, yes. Since we know that in Democrat precincts this will not happen, your argument is typical lawyer weaseling.
10.19.2008 9:47pm