November 03, 2008
A Few More Thoughts on the New Virginia Lawsuit
Following up on this post, I've now had a chance to read the complaint and I think there's a strong argument that because of the long delay the suit could well be barred by laches.
More fundamentally, the suit under UOCAVA may be barred for the same reason the Ohio mismatch case failed at the Supreme Court-- there's no private right of action: "42 USC Sec. 1973ff-4 Enforcement: The Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as may be necessary to carry out this subchapter." The McCain campaign likely doesn't have standing to bring this suit; only DOJ does (and don't count them out!).
I see this as the politics of the situation, this is the final (?) Hail Mary of the McCain campaign. The suit wants to require Virginia to wait 10 days for additional military ballots (to November 14) before certifying federal election results in Virginia, which could be very important only if the race is very close and turns on Virginia. Of course, election law aficionados remember the role military ballots played in the results of election 2000. The must-read academic article on this subject is: Diane Mazur, The Bullying of America: A Cautionary Tale about Military Voting and Civil-Military Relations, 4 Election Law Journal 105 (2005).