October 17, 2008

Breaking News: Supreme Court Stays Sixth Circuit Decision

You can find the two page ruling here. Justice Stevens referred the stay application to the Court, and the Court, without dissent, agreed that a stay was in order because the lower courts erred in concluding that the ORP is likely to prevail on its legal argument that section 303 of HAVA (the section requiring state chief election officials to perform matches of their data with motor vehicle department data) creates a private right of action. In other words, it looks like individuals cannot sue for violations of this aspect of HAVA; it would fall to the DOJ to bring such suit.

What is the upshot of this ruling? It means that the Secretary need not provide the "no match" data to the county boards, and therefore the ORP won't be able to make its public information requests to get the data to raise voter challenges at the polls.

I haven't thought enough about the private right of action question but I do think the Court reached the right result for a different reason. As I've long maintained, courts need to be aggressively asserting laches in election cases. If cases reasonably could have been brought earlier, but are brought just before the election, courts should be wary of entertaining such claims to interfere with the upcoming election.

UPDATE: Lyle Denniston pointed out to me that the Court not only granted the stay, but in its last line it vacated the TRO. So it appears Secretary Brunner won't have any further obligations to meet the demands of the ORP in this case.

Posted by Rick Hasen at October 17, 2008 09:09 AM