October 14, 2008

Some Additional Thoughts on Ohio Republican Party v. Brunner

Following up on this post, I have now had a chance to quickly read through the en banc court's set of opinions. I have the following initial thoughts:

1. Assuming no further action, what are the practical results of this ruling? A majority of the en banc court has reinstated a TRO, which will require the Ohio Secretary of State to send along to county elections boards those names that are a "mismatch" between voter registration and Ohio Bureau of Motor Vehicle records. The TRO does not require, and the en banc court majority emphasizes, that a county board is not required upon hearing of the mismatch to remove eligible voters from the rolls. But the court does suggest (on page 9 of the pdf) that it would be the basis for not counting absentee ballots of voters flagged as a mismatch barring further investigation by the board. There may also be some boards that could try to require mismatched voters voting in person to cast provisional ballots. And it also appears that to the extent the mismatch lists are public, it will provide the potential basis for challenges by the ORP on election day (though I believe it is now harder to mount such challenges in Ohio than it was in 2004, when the ORP threatened to make 35,000 challenges at the polls.

These questions are especially important in Ohio, which is polling closer than other battleground states.

2. Will Justice Stevens, or the Supreme Court as a Whole, Reverse the En Banc Court? In 2004, Justice Stevens, as Circuit Justice for the Sixth Circuit, was asked to overturn the decision of a 2-1 panel of the Sixth Circuit reversing TROs issued by two district courts which would have barred the ORP from making certain challenges at the polls on election day. The case arrived on the eve of the election, and there was simply no time for Justice Stevens to act. He stated that he expected everyone to act in good faith, and the threatened challenges did not materialize.

It is hard to say what would happen at the Supreme Court this time if there is a request for an emergency stay of the TRO. There are some important legal questions presented by the case that are not quickly resolved (such as whether HAVA gives a group like the ORP standing to bring a private right of action for alleged HAVA violations. But there's also some broader questions about election litigation brought soon before the election. First, there is the question of laches. Why did the ORP wait so long to sue, and will this in fact (as one of the dissenters claims) gum up the works at the Secretary's office just as that office must create the poll books for election day? Second, there is the question of deference: how much discretion should be given to the district court's decision to grant a TRO here? On the one hand, the Court in Purcell instructed that appellate courts should defer to district courts deciding these questions on the ground. On the other hand, the same opinion said that courts deciding pre-election cases must be especially wary of granting relief just before the election, which can cause voter confusion or worse.

Finally, there's the question of voter fraud. The district court, as I noted, cited flimsy evidence of voter fraud based on two newspaper articles about ACORN. But Justice Stevens, regular blog readers will remember, played up the existence of voter fraud in his plurality opinion in Crawford v. Marion County.

3. The Sixth Circuit Needs to Take an Anger Management Course. Judge Griffin is upset that the original Sixth Circuit panel decided this case initially last week, rather than wait for a ruling on the request for initial en banc consideration. Judge Martin issues a blistering dissent focused on Judge Bachelder's decision not to recuse herself from deciding the case, given that her husband is running for office as a Republican and is in fact the Deputy Speaker of the House. This is not the first time the nastiness has come through in a Sixth Circuit election case. Maybe Justice Stevens needs to take these judges on a retreat.

Posted by Rick Hasen at October 14, 2008 04:26 PM