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Friday, October 17, 2008

Today's SCOTUS ruling does NOT mean there's no voting fraud problem in Ohio

Today's SCOTUS ruling on the Ohio voting case is almost impenetrable. But I'm convinced it's an important case on an important subject, even though I think its moral is deeply concealed. It's not a statement that there's no voter fraud going on in Ohio, nor even a statement that clears the Democratic Secretary of State in Ohio, Jennifer Brunner, of complicity in that fraud. Rather, my guest-post on the decision at HughHewitt.com argues that it's a implied call for further Congressional reform of the Help America Vote Act from 2002, which fails to specify when, how, and on whose behalf the federal courts may and may not intervene to prevent dilution of voting power or abuses connected with the attempted exercise of voting rights.


[Copied here for archival purposes on November 5, 2008, from the post linked above at HughHewitt.com.]

(Guest Post by Bill Dyer a/k/a Beldar)

As a guest writer here during election season, I've usually stuck to politics. On my own blog, though, I often write about legal topics, and sometimes the intersection of legal and political topics. My goal is to explain some things that I think the media may have not explained very well, and to add context and opinion that's based on my own background as a former appellate court clerk and a practicing courtroom and appellate lawyer for the last 28 years. Tonight, I'll try to help you make sense of a ruling today by the United States Supreme Court in Brunner v. Ohio Republican Party, a voting rights case from Ohio that I doubt many people yet have a handle on, and that I don't think the media have been able to figure out at all.

In three sentences: (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.


The Ohio case involves the Help America Vote Act (“HAVA”), a federal law passed in 2002 in the aftermath of the disputed presidential election and the Supreme Court's landmark 7/2 decision in Bush v. Gore that the Florida Supreme Court's erratic manipulation of the Florida recount violated the U.S. Constitution. That election year also generated complaints from each side that the other had engaged in variety of types of voting fraud or misconduct. The new law was intended both to remedy complaints that it was too hard to register and cast an effective vote, and that it was too easy to engage in voting fraud.

Thus, here's how today's big-picture legal dispute was described earlier this week by the intermediate appellate court, speaking through a nine-judge majority the full U.S. Court of Appeals for the Sixth Circuit (sitting "en banc," meaning with all fourteen of its active judges participating, rather than in a normal, randomly constituted panel of just three judges):

In one respect, [HAVA] makes it easier for individuals to cast ballots by establishing a vote-first-challenge-later approach to dealing with disputes about an individual’s eligibility to vote, the most obvious feature of which is the right to cast a provisional ballot when an election official questions an individual’s eligibility to vote. In another respect, the Act helps to ensure that those votes count, or to put it another way the Act helps to ensure that those votes are not diluted by guarding against voter fraud. The one goal complements the other: Enabling the casting of one vote does little good if another voter fraudulently cancels it out.

In an attempt to balance these interests, and to promote both without undercutting either, HAVA imposed certain federal requirements upon state government officials — and in Ohio, that meant the state's chief elections official (the Ohio Secretary of State) and its top official in charge of motor vehicle licensing (the head of Ohio’s Bureau of Motor Vehicles (“BMV”)). Specifically, HAVA requires that those two state officials match up the information in their respective state databases to look for evidence of potential fraud in voter registrations.

To comply with HAVA, the Ohio Secretary of State developed a procedure, documented in a written manual, regarding how this matching up was to be performed, and what ought to happen in the event that there was a discrepancy. But that was a Republican Secretary of State, J. Kenneth Blackwell. In January 2008, he was succeeded in office by a Democrat, Jennifer Brunner. And Ms. Brunner decided to "turn off" this portion of the manual, for reasons that haven't been thoroughly plumbed yet through this litigation or through any other means. As the en banc Sixth Circuit wrote:

The apparent “turn[ing] off” of this voter-registration-verification process, or at least the discovery that it had been turned off, prompted this dispute. For reasons that the record does not reveal and at a time the record does not reveal, the Secretary of State apparently chose to deactivate at least part of the process, if not all of the process, described in section 15.4 of her manual. In particular, she concedes that at some point she stopped communicating with the county boards about mismatches and stopped renewing validation requests with the BMV after obtaining a mismatch.

So the Ohio Republican Party and a Republican state representative sued Secretary Brunner in federal court, seeking a court order compelling her to comply with her obligations under HAVA by resuming the process of comparing the two data bases. The federal district judge who first heard their motion for an emergency order (called a "temporary restraining order" or "TRO") agreed that they were entitled to emergency relief and therefore entered a TRO on October 10, 2008. Secretary Brunner appealed, and a mere twelve hours or so later, a three-judge panel of the Sixth Circuit disagreed with the district judge. But then on October 14, 2008, the full Sixth Circuit overturned the decision of that three-judge panel and re-instated the TRO issued by the district judge. And it was that decision from the en banc court which was the subject of today's SCOTUS rulling — meaning that this temporary order traversed the entire federal judicial system within a mere seven days after the district court's initial ruling.

If we were scoring this as a tennis match, it would be a fast and furious series of exchanges: a hard service by the GOP and the district judge, a firm return volley by the Dems and the Sixth Circuit panel, a cross-court smash after rushing the net by the GOP and the en banc Sixth Circuit — followed by today's improbable lob and point from the Dems and the SCOTUS. Temporary, emergency orders like this one generally can't be appealed at all. They're intended to maintain the status quo long enough for both sides to get their ducks in order and to have a evidentiary hearing, with witnesses who can testify and then be cross-examined under oath, at which point the TRO may or may not be replaced by a preliminary injunction that will run until a full-blown trial on the merits (typically months later). So the only way the Dems were able to get this into the federal appellate courts to begin with was to persuade them that because the time between now and the election is so short, even a TRO like this one will effectively decide the whole controversy — too much else will happen before even a preliminary injunction evidentiary hearing can be held, too many bells will ring that can't be unrung, and if the appellate courts don't agree to hear the matter now, there will be no way for the losing side from the district court (here, the Dems) ever to get effective appellate review.

But while it's rare that anyone can persuade an intermediate appellate court like the Sixth Circuit to hear an appeal of a TRO, it's vastly more rare for a three-judge appellate panel from such a circuit court to be overturned and re-reviewed by the full circuit court sitting en banc. In the year I clerked on the old Fifth Circuit (1980-1981), which was then the largest circuit court in the country (stretching from Texas to Florida), I don't think that happened a single time in a civil case. That's why I thought this case would end at that level.

For the United States Supreme Court to intervene, however, and agree to overturn a ruling by a circuit court of appeals on a TRO, is spectacularly rare. The biggest surprise about today's ruling is that the SCOTUS involved itself at all. And the temptation from that is to assume that today's ruling must itself be of some cosmic significance — if not on the level of Bush v. Gore, nevertheless something awfully important about whether there actually is any voter fraud going on in Ohio, and whether the Democrat who's the Ohio Secretary of State is facilitating it by refusing to do her job.

However, one who gives in to that temptation, however, and who draws that particularly inference, would clearly be wrong. Today's ruling has a dramatic and fairly well concealed point to it, but it's not on that subject.


The en banc Sixth Circuit agreed with the panel that this was indeed one of those rare cases in which a TRO may properly be appealed, but it differed from the panel on what it described as the key legal issue presented by the case: "whether 42 U.S.C. [section] 15483(a)(5)(B)(i), together with other provisions of HAVA, require the Secretary to provide local election officials with meaningful access to mismatches identified in the [Statewide Voter Registration Database]," instead of just the theoretical (and practically useless) access that Secretary Brunner was actually providing.

The en banc Sixth Circuit believed that the answer to that question is clearly yes — meaning that in all probability, after a full development of the evidence and an eventual trial on the merits, the GOP would win its case. In the meantime, the effects of the TRO were limited and entirely beneficial, according to the en banc court (citations omitted):

At most, the identification of a mismatch allows a county board to investigate whether the mismatch has a legitimate explanation (say, a recent change of address). Nothing about this case or the relief plaintiffs seek will allow them to prevent a single voter from casting a ballot in the November election. At most, the relief could prompt an inquiry into the bona fides of an individual’s registration, and at most it could require an individual to cast a provisional ballot. At that point, the validity of the voter’s registration will be determined and, with it, the validity of his or her vote. That is not only sensible but it is also fair — and it also furthers both objectives of HAVA rather than just one of them.

The en banc Sixth Circuit went on to compare the respective risks of harm to either side from the temporary order. It found an urgent and compelling need to furnish county boards with meaningful information on non-matching registrations before absentee voting began, because otherwise the ability to segregate those votes for investigation would be forever lost. By contrast, it found unpersuasive Secretary Brunner's claims that having to do that which her predecessor had done would impose an incredible hardship and burden. And finally, the en banc Sixth Circuit rejected Secretary Brunner's arguments that the GOP had been guilty of "laches" — an equitable doctrine which basically says that if you've been tardy in asserting your rights, you may have forfeited them. This was all triggered, according to the en banc Sixth Circuit, no earlier than August 2008, when Secretary Brunner had decided to "allow simultaneous registration and voting for six days in Ohio in late September and early October." As for the "turning off" of the county board's cross-checking abilities, the court said that "[t]o this day, it remains unclear when the Secretary told the public that she had changed the office’s prior policy on implementing [section] 15483(a)(5)(B)(i), when she told the public why she made these changes and whether she has made additional changes to the policy since."

To sum up, then, the en banc Sixth Circuit agreed with the Ohio GOP that Secretary of State Brunner appeared to be violating her responsibilities under HAVA in a way that would interfere with local election boards' ability to identify potential instances of voter fraud. Did the Supreme Court disagree?

Nope. The Supreme Court neither agreed nor disagreed with that conclusion, because instead the Supreme Court indicated that this sort of case can't be brought in these circumstances by these sorts of plaintiffs.


It's common-place for Congress to pass laws that create certain duties and responsibilities for other people and entities, including state government officials. One of Congress' annoying habits, however, is that it quite often doesn't bother to say, one way or the other, whether ordinary citizens can go to court to force the intended target of those statutes to comply with their responsibilities. And Congress didn't say that one way or another about the specific database-comparing responsibilities created by HAVA for state election officials like Secretary Brunner. This, unfortunately, leaves the federal courts in the position of literally having to guess what they think Congress would have said, if Congress had thought about the issue and bothered to decide it.

The Ohio GOP here was proceeding under a very old and powerful civil rights statute, 28 U.S.C. section 1983, which allows lawsuits in the federal courts to be brought by people to redress the violation of rights which are secured to them under the Constitution or laws of the United States. But does HAVA give citizens, or groups of them like the Ohio GOP, or the Republican state representative who also was a plaintiff in the case, the sort of statutory right which may be protected under section 1983?

In other cases, the Supreme Court has prescribed a three-part test for making that determination. I will spare you the details, because in my judgment they're horribly boring and so muddy and subjective as to be almost arbitrary. Basically, it boils down to the en banc Sixth Circuit guessing one way as to how this complicated multi-part test would work out for this specific statutory responsibility of Secretary Brunner, and the SCOTUS today saying, "Nope! You guessed wrong!"

The Supreme Court's written ruling itself is barely more than a single page, and it's per curiam — "by the Court" — meaning that all of the Justices joined in it, but no single Justice took credit for writing it, and no Justices dissented or wrote separate opinions of any sort. So even though it's unusual for them to have acted in this sort of case at all, there's no sweeping rhetoric, no highly charged arguments, no sniping from Justice Scalia at Justice Breyer or vice versa.

As to whether Secretary Brunner is or isn't bungling her reponsibilities under HAVA, that gets precisely one sentence: "We express no opinion on the question whether HAVA is being properly implemented." In that one sentence, the SCOTUS, on behalf of the entire federal court system, did a three-step drop-back and punted the whole question of voting fraud deep somewhere well past whatever yard-line corresponds with November 4, 2008.

Instead, we get this: "Respondents, however, are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce [the disputed provision in HAVA] in an action brought by a private litigant to justify the issuance of a TRO." Translation: We think that if we thought about it longer and actually had a full trial on this case, we'd still probably think that this particular requirement of HAVA was not one of the sort that Congress intended private individuals to be able to sue state officials in order to enforce.

So: You're got a right to your vote. You have a right that your vote not be diluted. But you don't have a right to go to the federal courts to get them to stop the state officials who are deliberately screwing off on their job responsibilities (as defined by this particular section of this federal law) in ways likely (and likely intended) to dilute your vote through by voting fraud.

In law school, I was taught an ancient Latin phrase from the Roman civil law that has made its way to us through English common law: Ubi jus, ibi remedium. "For every right, there is a remedy." Today's short ruling from the SCOTUS turns that into: "For every right, there is a remedy (except for when they're messing with your vote in this particular way ... sucker!)." My Latin isn't nearly good enough to come up with a translation for that.


Political liberals are pointing out that many proponents of judicial conservatism — and I proudly count myself among that principled group — generally scorn courts who are too eager to find implied private rights of action that permit everyone and his dog (or polar bear) to race to federal court to "enforce" some "right." That's a very valid point, and I think it explains (a) why the SCOTUS agreed to rule on this temporary order at all, (b) why it ruled the way it did, and (c) why the order was so short, as well as unanimous and unsigned.

HAVA was the product of a great many political compromises, and especially given the incredible firestorm of controversy out of which it arose, it's remarkable that so many legislators were able to agree upon so much. Merely creating responsibilities for state officials, however, without providing a judicial mechanism for the oversight and enforcement of those responsibilities renders illusory the responsibilities themselves, and renders vulnerable the rights they're designed to protect. Voter registration and voter fraud are both incredibly important subjects, but they're subjects best addressed well before Election Day. And to obtain their political legitimacy with all participants regardless of their partisan affiliation, our society's rules on those subjects must be determined in the first instance legislatively — and those legislative determinations must include decisions on what role the courts should have in resolving these disputes, and when, and within what operating rules, the courts may act. Congress owes all of us — citizens and voters and partisans and courts alike — something better than to have to guess how multi-part tests under a super-broad and very vague civil rights law from 1871 ought to turn out in cases like this one.

Saying all that in so many words in the circumstances of this case, however, would have generated a fuss on the Court. The liberal block would have thought that constituted an implied agreement with the Sixth Circuit on the merits — i.e., that Secretary Brunner is deliberately screwing up by refusing to perform her HAVA job responsibilities. And the conservative block was content to leave that subject alone, and instead to make the implied point that "Yes, this stuff is important enough that we'll take it up even through an extremely rare appeal of a TRO, but we're not going to jump in with both feet until Congress has said we may and told us how."

Thus, even though I agree with the ruling, I'm unhappy with this result. Indeed, I'm unhappy with all the reports of voter fraud that I'm seeing every day. But we can't expect to fix these things on the brink of an election. Win or lose on November 4, further reforms of the laws regarding voter fraud have to be a top priority for the GOP on both a national and state basis.


UPDATE (Fri Oct 17 @ 11:10 p.m. CST): It's a mistake to assume that the views an advocate presents on behalf of a client exactly correspond to the advocate's own views. But it's still interesting — and arguably supportive of the political liberals' point mentioned above about judicial conservatives being hostile to implied private rights of action (or the enforceability of rights using section 1983, which is a close, but slightly different, inquiry) — to note that the key recent SCOTUS case relied upon by Secretary Brunner and the Dems and cited by the Court's per curiam opinion today, Gonzaga University v. Doe, 536 U.S. 273 (2002), was argued and won by one John G. Roberts, Jr. As I pointed out in a comment below, Chief Justice Roberts, since he was in the majority (which we know even though the opinion is per curiam because there are no dissents), had the power to assign the drafting of today's order. It strikes me as not unlikely, then — since he certainly would be "up" on these issues — that he may have assigned the drafting to himself, and that he may have been as influential in the Court's internal discussions as he presumably was in the briefing and argument of the Gonzaga case in 2002.

UPDATE (Sat Oct 18 @ 12:05 a.m. CST):Although HAVA is silent on whether citizens or citizen groups like the Ohio GOP could sue under section 1983 (a general civil-rights law), section 401 of HAVA, 42 U.S.C. section 15511, itself provides that "[t]he Attorney General [of the United States] may bring a civil action against any State or jurisdiction in an appropriate United States District Court for such declaratory and injunctive relief (including a temporary restraining order, a permanent or temporary injunction, or other order) as may be necessary to carry out the uniform and nondiscriminatory election technology and administration requirements under sections 301, 302, and 303." Section 303 is the section of HAVA that Secretary Brunner is flouting. Thus, the U.S. Department of Justice could, if it chose, refile these same claims on Monday morning, and we can be almost certain that the resulting TRO would be affirmed on its merits up through at least the en banc Sixth Circuit. I hope Attorney General Mukasey is looking at that possibility this weekend. And it's entirely appropriate for private citizens who are concerned by the SCOTUS ruling today to contact the DoJ to encourage them to take up the case.

Law professors Jonathan Adler and Rick Hassen have more links and observations about Friday's ruling that are worth a look, too. With due and genuine respect, however (because he is a genuine and knowledgeable specialist in election law, albeit a left-leaning one), Prof. Hassen's badly wrong in characterizing this as a decision based on purported foot-dragging by the GOP (which might bar its claims under the doctrine of "laches"). That argument was considered and rejected by the Sixth Circuit en banc, and not mentioned at all by Friday's per curiam decision.

— Beldar

Posted by Beldar at 10:01 PM in 2008 Election, Law (2008), Politics (2008), SCOTUS & federal courts | Permalink


Other weblog posts, if any, whose authors have linked to Today's SCOTUS ruling does NOT mean there's no voting fraud problem in Ohio and sent a trackback ping are listed here:


(1) Dai Alanye made the following comment | Oct 18, 2008 1:07:37 AM | Permalink

There's no doubt in my mind that Brenner is deliberately attempting to assure improper voting, something that could eventually addressed under feasance. She could then become the second Dem elected in '06 to be forced from office. Previously the Attorney General was forced out for setting up a Columbus bordello for himself and friends.

In the meantime the Repubs are taking this to the state Supremes. Since voting is essentially a state right, one would think they can take action, the Feds having effectively chosen not to enter the lists.

The Dems are desperate to make up the 100+ thousand they lost by in '04, and a supposed (but unlikely) 666,000
new registrations are a part of their plan. Absent any blocking of these questionable registrations we can expect to see heavy voting in central city precincts shortly after the polls officially close.

(2) Gregory Koster made the following comment | Oct 18, 2008 1:38:35 PM | Permalink

Dear Mr. Dyer: My head hurts. I've had to spend a lot of time to figure out that the Supreme Court's decision means, OK, Jennifer, the GOP don't got standing to sue, so yer off the hook, not that we're expressing any opinion on what you are doing or not doing. This does meet the theoretical prescriptions of the judicial restraint crowd, but in the case of Jennifer "Whaddya ya gonna do about it, sucker?" Brunner, as you say, the need for a remedy is prominent.

Sincerely yours,
Gregory Koster

(3) Michael Kennedy made the following comment | Oct 18, 2008 6:43:40 PM | Permalink

My understanding is that the ruling was the party did not have standing but the suit has been now refiled by a Republican voter.

(4) Beldar made the following comment | Oct 19, 2008 6:23:37 AM | Permalink

It's not quite "standing" that's at issue here. I explained in my post what actually is at issue -- it's whether this is the sort of right that section 1983 can be used to enforce. And being refiled by a voter won't help at all. Only the United States Attorney General can sue to enforce HAVA's section 303 obligations, as a result of the SCOTUS' ruling.

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