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

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