SCOTUS slaps Ohio GOP

Republicans are all about not counting votes. They’ve seen Democrats as cheaters since at least 1960, when allegations of election fraud in Illinois marred the Kennedy-Nixon election, and the butthurt persists to this day.

They’re good at getting election officials to see things their way because they’ve had lots of practice. After all, if you look at votes cast, Hubert Humphrey beat Richard Nixon in 1968. By whittling down the number of votes counted, the Republicans ensured that Nixon took LBJ’s place in the White House. And without Nixon, we never would have had the eight-year horror show that is the George W. Bush administration, but that’s a whole ‘nother kettle of fish.

Nowadays, getting election officials not to count votes is ridiculously easy thanks to the grotesquely misnamed Help America Vote Act of 2002. HAVA is the abomination that Congress foisted upon us in the wake of the 2000 Florida presidential election debacle. Since Republicans ran the whole show in Washington in 2002, HAVA is stuffed to the gills with Republican-favoring goodies.

The Ohio Republican Party recently sued Ohio Secretary of State Jennifer Brunner, the state’s top election official, for violating HAVA. In particular, the GOP alleged that Brunner breached her statutory duty to send county election boards a list of voters whose data in the voter registration database doesn’t match data in the drivers’ license system. Such non-matching information is a basis for challenging a voter, don’tcha know, and a challenged voter must submit a “provisional ballot” that only gets counted if the elector’s eligibility is confirmed after the fact.

On October 9, the U.S. District Court for the Southern District of Ohio issues a temporary restraining order requiring Brunner to update the statewide voter registration database and otherwise comply with HAVA. Brunner immediately petitioned the U.S. Court of Appeals for the Sixth Circuit to stay the order. The court of appeals voted 9-6 to keep the TRO in place.

Brunner then took her request for a stay to Justice John Paul Stevens, the Circuit Justice in charge of the Sixth Circuit. Stevens referred the request to SCOTUS as a whole, and the Court issued its ruling today. Brunner v. Ohio Republican Party, 555 U.S. ____ (2008) (pdf, 2 pages).

The Court went considerably farther than Brunner requested. It not only stayed the TRO but vacated it entirely.

The legal issue wasn’t so much what HAVA requires but instead who gets to enforce those requirements. The big question is whether Section 303 of HAVA creates a private cause of action. The Supreme Court came very close to answering the question with a big fat no, ruling that the Ohio Republicans “are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce Section 303 in an action brought by a private litigant to justify the issuance of a TRO.” In other words, go complain to the federal Department of Justice and demand that they enforce HAVA. Absent a “substantial likelihood of success on the merits,” a court can’t issue a TRO.

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