Monthly Archives: October 2006

Breaking News: Sixth Circuit Issues Three Opinions on Ohio Voter ID Appeal

Here are the three opinions: majority opinion (Judge Gibbons); concurring opinion (Judge McKeague); concurrence and dissent (Judge Tarnow) [note: corrected link].
Most of the 20-page majority opinion considers the authority of the Attorney General to appeal when the Secretary of State did not wish to appeal. It is only on page 15 when the court gets to the merits. In a nutshell, the majority sees two reasons why those challenging the law are unlikely to succeed on the merits. (1) Plaintiffs may not have standing (a point Judge McKeague highlights in the separate concurring opinion, noting that plaintiffs cannot point to anyone in particular who would be disenfranchised by the law) and (2) given a directive that has been issued by Ohio clearing up certain ambiguities and potential disparate treatment of voter id requirements across the state, there does not appear to be a likely constitutional violation. The judges stressed that Ohio was willing to work with plaintiffs to make sure that no one would be disenfranchised by the new law.
The dissenting judge (perhaps not coincidentally, a district judge sitting by designation) thought that the Sixth Circuit had an obligation to defer to the district court’s factual findings. In making this point, the dissenting judge relied upon the Supreme Court’s recent Purcell opinion. The majority too relied upon Purcell, this time for the point that last minute changes by courts in election rules may contribute to voter confusion. (This is the reading of Purcell I expected and feared.)
The plaintiffs had said they planned to appeal this reversal of the TRO to the Supreme Court. My prediction is that the Supreme Court will decline to reverse the Sixth Circuit.
Still left to be determined is how to treat absentee ballots that have come in that do not comply with the voter id law and were sent while the TRO was still valid. A footnote provides: “After full adjudication of the merits, if the Secretary prevails and the voter requirements are deemed enforceable, the district court and the parties will have to address how these ballots should be handled to comport with due process and equal protection concerns.”
Much more on this case over at Moritz.

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Meet Me in St. Louis?

In 2004, a number of reporters called me to ask me where they should go to watch an election meltdown, should one occur. I suggested Ohio or Pennsylvania. Ohio turned out to be the place to be, but with the presidential election turning out beyond the margin of litigation, the many problems there did not lead to election meltdown.
Of course, 2006 is not a presidential election year, so it is hard to see an election meltdown in any particular race having national repercussions…..unless the balance of the House or Senate depends upon the outcome of a single race or handful of races.
If the House hangs in the balance, then the scene for a potential meltdown could be anywhere polling now shows a close House race. Indeed, with 435 races, there could be more than one race that goes to a recount and/or litigation, including races involving write-in candidates or possible voter confusion, such as the TX-22 (Tom DeLay’s old seat) or FL-16 (Mark Foley’s old seat). Indeed, thanks to the Supreme Court’s opinion in LULAC, three congressional races in Texas are actually part one of a two-stage general election. If, for example, Henry Bonilla gets less than 50% of the vote in the TX-23 primary (something Democrats are hoping for), control of the House might not be determined until December. Think of the resources that would be poured into that race.
But current polling makes it difficult to believe the partisan balance in the House will be so close. Much more likely is a that the balance of power in the Senate hangs in the balance. The current polling for the Senate shows a very close partisan makeup, with the Senate balance most likely determined by the outcome of elections in Virginia, Tennessee, and Missouri. The first two of these races have shown a lot of volatility in polling in recent weeks, thanks to various controversies. I think these are not likely to be close enough on election day to go into extra innings. But Missouri is another story. Look at how close the Missouri polls have been for some time.
Add to that the volatile mix of the state voter i.d. law now being thrown out, and controversies over St. Louis voter registration efforts by ACORN and election officials’ response to them. There is also a long history of Republicans accusing Democrats of vote fraud in St. Louis. So it would not at all be surprising, if the balance of the Senate rides on what happens in Missouri, to hear Republicans complain about vote fraud again in St. Louis and Democrats complaining of voter suppression.
It will be very important for neutral observers to be on the ground in Missouri in election day. If I were a journalist interested in the potential election meltdown of 2006, I’d head to St. Louis.

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