by James Oliphant
From a legal perspective, the Supreme Court's actions today seemed innocuous enough.
The court, using fairly routine language, lifted an order directing the Ohio secretary of state from supplying the names of as many as 200,000 newly registered voters to local election officials in that state.
The Ohio Republican Party had sued, saying that Secretary of State Jennifer Brunner had not complied with the federal Help America Vote Act, which requires that information on new voter registrations be compared with personal information in federal databases. The Republicans wanted the identities of potential mismatches provided to election boards in time to perhaps force some voters to cast provisional ballots instead of regular ballots on Election Day.
Trial judges are only to use the powerful remedy of a temporary restraining order when it appears likely that the party seeking it will ultimately win the underlying case on the merits. The full U.S. Court of Appeals for the Sixth Circuit sided with the judge.
But the court reversed, holding that it appears Help America Vote Act doesn't allow private parties to file lawsuits to enforce it.
The clinical language of the unsigned opinion of the court masks the potentially incendiary situation that was unfolding. Ohio is so fractured that George W. Bush won the state in 2004 by just 118,000 votes over John Kerry.
The drama in Florida in 2000, which led to a recount and finally to a Supreme Court decision that stopped further counting of ballots, was triggered when Bush seemingly won the state over Al Gore by just 2,000 votes. (The final margin was 537 votes.)
Had the Republican Party succeeded in its lawsuit in Ohio, many of the voters in question could have been forced to vote by provisional ballot, in which a vote is cast and counted, but subject to later verification of personal information. The party also could have filed pre-election court challenges against certain voters if it had obtained their identities from the secretary of state.
Some 660,000 new voters have been registered in the state this year alone, the majority of whom likely are Democrats.
It isn't difficult to imagine a scenario where the race between John McCain and Barack Obama could come down to Ohio. In fact, Ohio is so important to McCain that statistician Nate Silver, who runs the invaluable website Five Thirty-Eight, says that if the Republican loses the Buckeye State, his chances of winning the general election are .08 percent.
The McCain campaign indirectly criticized the outcome Friday, releasing a statement from campaign manager Rick Davis that said:
Today's decision by the United States Supreme Court does not address violations of the Help America Vote Act (HAVA) by Ohio Secretary of State Jennifer Brunner. Rather, the Court ruled that Congress had likely not authorized private individuals or political parties to bring suit under the section of HAVA requiring voter registration verification through data-matching. It remains our belief that American citizens should be guaranteed that their legitimate votes are not wiped away by illegally cast ballots. What is no longer in question is the partisan nature of Jennifer Brunner's efforts to minimize the level of fairness and transparency in this election."
This likely isn't the last we will hear about alleged voting improprieties in Ohio. While the Republicans will continue to warn about potential voter fraud, Democrats will holler, as they did in 2004, that Republican are working to suppress voters.
The Democrat Brunner is a target of Republicans just as GOP Secretary of State Kenneth Blackwell was a punching bag for Dems four years ago. And it's why Obama, when campaigning in Ohio, often jokes that this time "we are" in charge of counting the votes.
Comments
Could someone explain to me how a "provisional ballot" is even constitutional? If it is subject to verification of the voter's identity, how is the voter's right to a secret ballot maintained?
Posted by: My Aunt Fanny | October 17, 2008 4:24 PM
The ruling was simply this: The plaintiffs don't get a TRO because they probably don't have standing and, thus, aren't likely to win in a ruling on the merits.
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The answer for the Ohio Republicans is simple. Find a proper party, with standing, that is willing to sue - and start over. And that, in my view, is exactly what they will try.
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And, no, this is not Bush v. Gore redux. The actions of the Florida election officials that prompted Bush v. Gore involved adopting several un-uniform standards for recounting ballots. They were so diverse in practice that any one of them, applied to all the counties subject to recount, would have resulted in widely different recount results. The Supreme Court, drawing on past precedent ruled that the disparity of recount procedures violated the Equal Protection Clause of the Fourteenth Amendment.
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In contrast, this case involves compliance with a law that impacts upon the fairness of the election. Counting the ballots of ineligible voters denigrates the value of those cast by eligible voters. Furthermore, forcing voters of questionable eligibility to cast a provisional ballot does not deprive them of the right to vote. Their vote will get counted if they turn out to be eligible voters. By suggesting that this is Bush v. Gore re-warmed and re-served, you appear to advocate the position that a particular election outcome (in favor of Obama) is more important than the integrity of the voting process itself. That is vile, Mr. Oliphant - that is vile.
Posted by: John W. | October 17, 2008 4:56 PM
Repubics are smacked down again, this time by the justices that have been appointed by shrub himself. They keep trying to skew the process in their favor since their annointed candidate is such a poor choice. Sorry repubics. You lose.
Posted by: tried and true American | October 18, 2008 12:06 AM
Republican voter-supression. THAT'S the REAL Voter Fraud.
I hope the good people of Ohio remember what the Republican party tried to do to them with this lawsuit,
Posted by: athena | October 18, 2008 12:27 PM