Legal News

High Court Deals Blow to Ohio GOP, Reverses Sixth Circuit

By Dan Slater

For those 3L’s out there who are finding their election-law classes a good bit drier than they expected, check out what’s been happening in Ohio. The Secretary of State, Democrat Jennifer Brunner, has been going head to head with the state GOP over allegations of voter fraud. After a Supreme Court decision issued this afternoon, Brunner is, for now, at least, on top.

For background, hit up Scotus blog. Here’s what’s been happening: the state GOP had complained that Brunner violated her duty to share with county election boards the lists of voters whose names in a voter registration database do not match data in the state’s drivers’ license files. Lack of matches could be the basis for challenges.

Brunner, however, argues that many mismatches will appear for trivial reasons, such as typographical errors. She said Wednesday that as many as 200,000 of Ohio’s 660,000 new registrants this year could be affected.

On October 9, U.S. District Court for the Southern District of Ohio directed Brunner to either provide lists of mismatches to election officials or give them an easy way to search a state database. A politically-divided Sixth Circuit, according to this NLJ story, affirmed the district court and ordered Brunner to identify for 88 county election boards which voter registrations contained information that did not match in a check with Ohio driver’s license or Social Security records.

In the Sixth Circuit’s majority, Judge Jeffrey Sutton wrote: “The problem with the current system [of cross-checking] is not that it is insufficiently user-friendly, but that it is effectively useless.”

In a dissent, Judge Karen Nelson Moore called the majority’s action “judicial activism in the extreme.” And, in a separate dissent, Judge Boyce Martin wrote, “In a case full of irony, we have a majority of this court inferring a private right of action – on the basis of, well, nothing – to create utter bedlam in the state’s election.” He added that it was “troubling” that another circuit judge, Alice Batchelder, “did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio.” Batchelder’s husband, Bill Batchelder, is an incumbent Republican candidate and former state court judge in Ohio. Judge Batchelder, notes the NLJ, did not write a separate response to Martin’s criticism.

Talk about dissension on the court!

Brunner appealed to the High Court and won a reversal of the order. Here’s the Court’s per curiam order, via Scotus blog.

Full post as published by Law Blog - WSJ.com on October 17, 2008 (boomark / email).