The Supreme Court on the Ohio election case

A widely ignored US Supreme Court decision last week in Jennifer Bruner, Ohio Secretary of State v. Ohio Republican Party et al. could in its own way prove to be as important to the 2008 presidential election as the Bush v Gore case was in 2000. Michael Dorf picks up the tale at Findlaw:

" A terse ruling last week in Brunner v. Ohio Republican Party-a case that could have important ramifications for the Presidential election-should serve as a reminder that the Supreme Court is, for all of its imperfections, capable of genuinely putting aside politics to apply the law.

The Underlying Dispute: Did Ohio's Secretary of State Violate the Post-Bush v. Gore Federal Voting Statute?

In the wake of Bush v. Gore, Congress enacted the Help America Vote Act (HAVA), a statute that, among other things, sets standards for federal elections...

Ohio is a swing state that President Bush narrowly carried in 2004 amidst allegations of irregularities that disproportionately suppressed the votes of Democrats. Ohio's current Secretary of State is a Democrat, Jennifer Brunner. She was recently sued by the Ohio Republican Party and a Republican state representative in Ohio, who claimed that by failing to provide county election officials with lists of newly registered voters whose registration information did not match their motor vehicle information, she had violated HAVA.

Secretary Brunner in turn responded that HAVA does not specifically require her to provide lists to county officials; that doing so would be unduly burden her office; and that, in any event, another federal law-the National Voter Registration Act or "Motor Voter"-forbids systematic purging of voters from the rolls within 90 days of an election, so that there would be no point in providing this information to county election officials at this late date.

A federal district judge originally ruled in favor of the Ohio Republican Party, granting a temporary restraining order (TRO) against Secretary Brunner. However, a panel of the Sixth Circuit quickly reversed that decision, only to be reversed in turn by the full (en banc) Sixth Circuit.

Last week's en banc opinion in Ohio Republican Party v. Brunner rejected Secretary Brunner's reading of HAVA and also rejected the argument, advanced by the Secretary, that private parties could not sue to enforce HAVA. The en banc court said this was a close question, but that the district judge acted within his authority in finding a sufficient likelihood of success on the merits to grant the plaintiffs their TRO. (To gain the temporary relief of a TRO, a plaintiff must show only that he is likely to succeed in proving the allegations of the complaint, not that he actually will succeed in doing so, and that he will suffer irreparable injury absent the TRO.)

Faster than you can say "Bush v. Gore," the Supreme Court reversed the Sixth Circuit's en banc decision. It held that the legal standard governing who can sue to enforce statutes is simply too demanding for the plaintiffs to have established a likelihood of success on the merits. It was probable, instead, that they lacked the right to bring the case in the first place. As a consequence, the federal court suit was dismissed. Thus, it now appears that Secretary Brunner's decision not to flag discrepancies between voter registrations and motor vehicle records for county election officials will stand.

Had the Supreme Court not reversed the en banc Sixth Circuit ruling, thousands of newly registered Ohio voters might have been purged from the rolls. Because the Democrats have registered more new Ohio voters than have the Republicans, last week's ruling was no doubt welcome news to the Obama campaign and a disappointment to the McCain campaign. Should Senator Obama capture Ohio by a razor-thin margin, and should Ohio prove decisive in the Electoral College race, he will have the Supreme Court to thank on Inauguration Day...

The conservatives who had fashioned a test that makes it very hard for plaintiffs to bring civil rights lawsuits, were consistent enough to say that the test must be equally difficult for Republican plaintiffs to satisfy. Whether or not one agrees with that strict test, one should at least respect the Justices for applying it in a way that did not focus on the results-in this case a benefit to a Democratic Secretary of State and, more importantly, the Democratic Party...

It is no doubt faint praise to laud the Supreme Court for having the intellectual honesty to apply its legal principles even-handedly, regardless of whether those principles favor Democrats or Republicans. At a minimum, justice is supposed to be blind. Still, given the lingering shadow that Bush v. Gore casts over the Supreme Court's objectivity in cases involving Presidential elections, even such minimal fairness is heartening."