Brunner wins: Supreme Court reverses Sixth Circuit on “mismatched” voter registration forms

posted at 12:06 pm on October 17, 2008 by Allahpundit

Just across. I thought it was Stevens, as the Sixth Circuit’s Circuit Justice, who was set to rule with a possible rehearing among the full Court forthcoming, but AFP makes it sound like the full Court’s already decided.

I have a feeling this turned on some procedural nuance — laches, maybe — rather than on the merits. We’ll know soon enough. Stand by for updates while Brunner locks up that database of 200,000 mismatched forms nice and tight in her desk drawer.

Update: Yes, it was the full Court, and yes, it was a procedural issue. Standing, specifically:

In a brief unsigned opinion, the justices said they were not commenting on whether Ohio is complying with a provision of the Help America Vote Act of 2002 that lays out requirements for verifying voter eligibility.

Instead, they said they were granting Brunner’s request because it appears that the law does not allow private entities, like the Ohio GOP, to file suit to enforce the provision of the law at issue.

I’m looking for the opinion. If private entities can’t sue, does that mean the statute’s relying on, er, Brunner to force herself to turn over the database?

Update: Here’s the opinion lifting the TRO. It’s a page long, but the footnote is the important part. Judging from a quick skim of the syllabus in this case from 2002, which the Court cites as precedent, it boils down to the fact that the voting statute confers exclusive power upon Brunner and the head of the DMV to deal with mismatched forms, which means the Ohio GOP can’t force them to do anything by suing. From the 2002 case dealing with a different statute called FERPA:

There is no question that FERPA’s confidentiality provisions create no rights enforceable under §1983. The provisions entirely lack the sort of individually focused rights-creating language that is critical. FERPA’s provisions speak only to the Secretary, directing that “[n]o funds shall be made available” to any “educational … institution” which has a prohibited “policy or practice,” §1232g(b)(1). This focus is two steps removed from the interests of individual students and parents and clearly does not confer the sort of individual entitlement that is enforceable under §1983. E.g., Cannon, supra, at 690—693. Furthermore, because FERPA’s confidentiality provisions speak only in terms of institutional “policy or practice,” not individual instances of disclosure, see §§1232g(b)(1)—(2), they have an “aggregate” focus, they are not concerned with whether the needs of any particular person have been satisfied, and they cannot give rise to individual rights, Blessing, supra, at 344… The conclusion that FERPA fails to confer enforceable rights is buttressed by the mechanism that Congress provided for enforcing FERPA violations. The Secretary is expressly authorized to “deal with violations,” §1232g(f), and required to establish a review board to investigate and adjudicate such violations, §1232g(g)… These procedures squarely distinguish this case from Wright and Wilder, where an aggrieved individual lacked any federal review mechanism.

There were no dissents so evidently Roberts, Alito, Scalia, and Thomas agreed. Exit question: Can the head of the DMV sue Brunner?

Update: Rick Hasen at Election Law Blog says it’s up to the DOJ:

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…

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.

Update: Any legal eagles willing and able to explain to me why this concept wouldn’t apply to a voting case?

Update: Zero Sheep answers my question.

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Those who cast count the votes decide everything.

Let’s roll …. again!

ex-Democrat on October 17, 2008 at 9:42 PM

SOo Mickey Mouse can vote? WTF? Hope he’s not using my address.

johnnyU on October 17, 2008 at 9:44 PM

It doesn’t have to be over!

The Supreme Court decision was only on the basis of what lawyers call “standing” and disavowed deciding the merits fo the case. The Ohio GOP brought the cae, but the Court reuled that the federal statute invoked by the Ohio GOP could not be sued under by a private litigant. That means it takes an enforcement action by the Attorney General. AG Mukasey could bring the suit on Monday, and the case would probably be a winner given the en banc Suxth Circuit decision.

Phil Byler on October 18, 2008 at 9:57 AM

Whenever a Democrat wins anything,,, America always loses something!

JellyToast on October 18, 2008 at 10:42 AM

I think this is but a feint by the conservative members of the court knowing the following with near certainty:

1. There will be voting fraud in Ohio and other states.
2. There will be a challenge by the GOP
3. It will eventually end up before the full SCOTUS
4. They will then hate to rule on the admissibility of fraudulent votes and order a recount with a new federal guidelines on what constitutes a legal vote

Using the equal protection clause they would be able to mandate that federal rules regarding how all votes are counted in states during federal elections must have one set of rules, not possibly 50. The voting irregularities in one state can dilute the votes in another and that is a violation of the equal protection clause ultimately.

mustng66 on October 18, 2008 at 2:15 PM

Wouldn’t it help to stop alot of the opportunity for fraud if you could only register to vote at your town hall and/or moter vehicle dept. and proper id is required?

artchick on October 18, 2008 at 9:14 PM

Run the Marxists out of the government. I AM JOE!!!!

hopefloats on October 19, 2008 at 12:26 AM

This is a harbinger of life under a possible Obama regime.
All the stops will be pulled out and any and every bogus legal maneuver will be used to deny Conservatives any rights.
They won’t need the fairness doctrine to shut down Conservative opinion. They’ll get some attorney generals in Missouri or Minnesota to argue that the Conservatives are publishing lies and slander (even though it is totally false and denying them the right to express their opinion is suppression of free speech) and they will shut them down and no one will be able to fight this.
They’ll get a couple of hyper libs on the Scotus and our goose is cooked for more than 4 years. Barack Hussein will make such sweeping changes in the structure of the economy and on the rules of free speech, that the train towards socialism will be heading downhill at full speed without any way to stop it.

FactsofLife on October 19, 2008 at 8:48 AM

Wow! This pretty much sums it up perfectly. About 10 minutes long, but it’s the best synopsis I’ve seen so far:

Send this link on to anybody out there that [a] doesn’t think this election is important, [b] is STILL “on the fence”, [c] has been suckered into the Hope/Change propaganda, [d] thinks McCain is a Bush 3rd-term (gimme a break), or [e] simply doesn’t care about where this country is headed.

ErinF on October 19, 2008 at 9:32 AM

a couple of hyper libs on the Scotus and our goose is cooked for more than 4EVER years.

Hate to be a total downer on Sunday AM

oldleprechaun on October 19, 2008 at 10:50 AM

No! I AM JOE!!!!

moxie_neanderthal on October 20, 2008 at 3:49 PM