October 11, 2008
Heated Sixth Circuit Opinion in Ohio Matching Case; En Banc Decision May Come Tomorrow
You can find the decision here.
A snippet from the majority opinion: "[An inquiry about the extent of voter fraud] is the kind of inquiry that demands extensive factfinding. However, rather than undertake such factfinding, the district court, citing two newspaper articles, merely assumed there would be widespread voter-fraud absent the issuing of a TRO. Given the shaky ground on which this voter-fraud determination rests, we believe that this unsubstantiated fear does not warrant the district court's conclusion into the established state practice."
From the dissent: "Defendant Ohio Secretary of State Jennifer Brunner's lack of concern for the integrity of the election process is astounding and deeply disturbing. Also troubling is the majority's rush to issue the present order in violation of the practices of our court. Although a petition for initial en banc consideration is pending and will be decided tomorrow by our active judges, Judge Moore, along with visiting Judge Bright, have decided to ignore the en banc petition and issue their order."
In fact, footnote 1 to the majority opinion notes that the en banc petition is pending and states that the stay of the TRO is in effect pending further order from the court.