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Election Law @ Moritz


Commentary

Understanding the Supreme Courtís Decision in Brunner v Ohio Republican Party

There is a great deal of bad commentary in the media on the United States Supreme Court’s recent decision holding in favor of the Ohio Secretary of State, Jennifer Brunner, and against the Ohio Republican Party. The holding did not sanction Brunner’s conduct nor was it a “normal” judicial decision not to intervene in elections at “a late date.” Both claims are false.

The Background of the Case

In 2002 Congress passed a statute, the Help American Vote Act (HAVA), that requires the Secretary of State in all states to compare voter registration lists with other readily available computerized lists, most prominently the state motor vehicle registrations, in order to verify names and addresses.

Ohio’s Secretary of State, running the names of over 660,000 new voter registrations in Ohio, has found close to 200,000 of the registrations to not match the motor vehicle registrations. The 2002 act does not detail what she should do with the list of mismatches.

Brunner’s position, the rationale for which changed during the litigation, was to keep the information on mismatches in her office until after at least after the election and not to make it available to the 88 county election boards that are primarily responsible for gathering and counting votes. Under her system, if poll workers decided to challenge a voter’s credentials, they could call her office and get information on specific names on the list. But the mismatch itself would not be the basis of the challenge.

A challenge would result in the voter cast a provisional ballot that would give the board time to check out the credential issues. It would not “purge” voters or block voters from casting ballots.

In the court papers, her justification was twofold: First, the computer technology was of the state, and the counties did not match, and the state’s list would be hard be subdivide. And second, that most of the errors would prove to be technical and not disqualifying.

Republicans wanted county elections boards to have the mismatch information before the election so challenges could be made at the time people on the list voted.

What’s At Stake

President Bush carried Ohio by a scant 119,000 votes in 2004. In other words, if 60,000 voters had voted for Senator Kerry instead of President Bush, Senator Kerry would have won the election.

Democrats, and organizations sympathetic to the Democratic Party, such as the very controversial not-for-profit group ACORN, have been very aggressive in registering new voters that will vote for Senator Obama. The super majority of the 660,000 new registrations and, therefore, the 200,000 mismatches in issue are likely Democratic voters.

Brunner ran successfully on the Ohio Democratic ticket, which swept all state wide positions except one, and is a strong and loyal Democrat party member. Republicans suspect she is protecting a significant number of problematic new voter registrations from challenges.

The Judicial Opinions

A federal district court judge ruled that Brunner had to make the list of mismatched information to the country election boards. A three judge panel of the Sixth Circuit Court of Appeals overruled the district court judge. The Sixth Circuit then took the case en banc (before all the judges of the court) and ruled 10-6 in favor of the district court judge and reversed its own panel.

Of the judges on the Sixth Circuit, a Republican President had appointed nine of them and a Democratic President had appointed seven. All nine Republican appointees and one of the Democratic appointees were in the majority.

The United States Supreme Court, in a one and one-half page unsigned, unanimous (per curiam) opinion, reversed the Sixth Circuit. The Supreme Court held, very simply, that the Republican Party, a private party, would, if the Court proceeded to a full hearing, likely be held to be unable to sue (would not have “standing” to sue) for violations of HAVA.

The Supreme Court was careful to note that it was not reaching the merits of whether Brunner was complying with the dictates of the statute.

Two errors need to be cleared up. First, of the total number of federal judges on all levels that did reach the issue on the merits, eleven of seventeen federal judges did decide that Jennifer Brunner’s policies were likely to be in violation of HAVA. This alone should be sobering to Ms. Brunner, who has a clear official duty to comply with the statute.

Second, the Supreme Court was not electing to decline to get involved in an election “at a late date” or at any date. The Court strongly implied, in essence, that the plaintiffs did not have standing and would not have had standing had they sued two years earlier.

The eleven federal judges who do not like the Brunner policy note that it is unreasonable to expect local election officials to challenge voters on random grounds in hopes of accessing the mismatch information one voter at a time. Her policy of withholding the mismatch information until after the election will likely result in very few polling place challenges that result in checks of the list. The bottom line: There will be fewer provisional ballots being cast and checked later.

So Where Are We?

Eleven federal judges think Brunner is in violation of the statute. So who can sue Brunner to force compliance? Selected government legal officers may sue. The State Attorney General, another Democrat, and the United States Attorney General come to mind. Neither look to have the stomach for it.

The Ohio Republicans have tried another gambit, suing in state court, the Ohio Supreme Court. If the state court takes the case and decides on the merits it could be appealed to the United States Supreme Court, on the merits, insofar as the state court relies on the violation of federal law found by the eleven federal judges. (If, as the new state suit also alleges, Brunner is also violating an independent state-law obligation, and if the state court chooses to rely solely on that ground for its decision, then there would be no further U.S. Supreme Court review, unless somehow the state court decision itself contradicted federal law.)

If Brunner’s decision stands there will be, in the end, more unchallenged votes cast by new registrants. In other words, new registrants will be asked to cast far fewer provisional ballots cast that are subject to subsequent verification.

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Tokaji and Strause release The New Soft Money: Outside Spending in Congressional Elections

Dan Tokaji and Renata Strause will release their report on independent spending, entitled The New Soft Money: Outside Spending in Congressional Elections on Wednesday, June 18.  The report includes interviews with former Members of Congress, such as Senators George Allen, Kent Conrad, and Ben Nelson, and Representatives Mark Critz, Tim Holden, Steve LaTourette, and Joe Walsh, as well as recent congressional candidates, campaign staff, political operatives, legislative staff, and representatives of outside groups. See here for details.

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