SCOTUS Sides with Secretary of State Brunner

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SCOTUS has ruled with Ohio’s Secretary of State Jennifer Brunner (and overturned one of the politicized 6th Circuit Court’s decisions) and agreed that she should not have to alert county officials to newly registered voters whose records don’t exactly match state records.

The Supreme Court is siding with Ohio’s top elections official in a dispute with the state Republican Party over voter registrations.

The justices on Friday overruled a federal appeals court that had ordered Ohio’s top elections official to do more to help counties verify voter eligibility.

I’ll update as we get more news on this–but this decision ensures that the 200,000 newly registered voters in question will be able to cast real ballots on November 4. 

Update: We don’t get to find out who voted how. It was a per curiam decision.

We express no opinion on the question whether HAVA is being properly implemented. Respondents, however, 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.

Update: Fixed spelling of "per curiam" per a lot of Latin scholars in the comments. 

89 replies
  3. emptywheel says:

    Trying to figure out how the vote broke down.

    I’d drink a little beer if it came down to Kennedy voting on the side of enfranchisement–he regrets Bush v. Gore.

  4. sam1 says:

    I noticed that Martin Eisenstadt, the blogger/pundit/war profiteer, is in the news again as the McCain insider who broke the story connecting “Joe the plumber” to Charles Keating. I recently shot an unauthorized mini documentary on Martin Eisenstadt called “The Last Republican” that I am showing as a webseries on my youtube channel, “youkaysam”. http://www.youtube.com/user/youkaysam
    At times charming and knowledgeable, Martin is, in fact, a dangerous McCain surrogate who hides behind layers and half truths that I like to believe I succeeded in identifying and exposing.

  6. emptywheel says:

    I take that back–they’re not telling who voted how.

    It was per curium.

    We express no opinion on the question whether HAVA is being properly implemented. Respondents, however, 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.

  7. Leen says:

    Some of us have been pounding the pavement on campuses, small towns, inner cities, county fairs etc etc increasing registrations ever since the Supreme Court Judicial Coup in 2000. The number of people out on campuses this year focused on increasing registrations was astounding. This is such good news.

    The Supreme Court sounds like they are taking the disenfranchisement of voters far more seriously than in 2000.

  8. JohnLopresti says:

    I hope congress learns this election season where HAVA’s flaws need repair. Prof Hasen kindly has posted the per curiam opinion in Brunner v OH RepubParty, like ew says, who exactly was it who voted in favor?, given the deflection at this late phase in the campaign represents some slowing of a new broad spectrum suppression of voters strategem of Republican “leaders”. I wonder just how much rollback Mukasey implemented in that longstanding guideline at DoJ to counsel US attys to avoid closing seconds litigation, or even how much Mukasey might have done to prepare the voting rights section for a return to career hires rather than patronage harbingers from season Bush.

  9. perris says:

    We express no opinion on the question whether HAVA is being properly implemented. Respondents, however, 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.

    I was wondering how on the planet a court of roberts, scalia and alito would be on the side of voters, now we see the other judges were making it clear, there is no “there” here and we will issue a sumary judgement.

    I do believe roberts didn’t want to embarass himself so decided not to decide

    The Supreme Court is siding with Ohio’s top elections official in a dispute with the state Republican Party over voter registrations.

    for obama, this is game and set, not quite match though…that happens on the 5th

  10. Leen says:

    Is this the Supreme Courts Mea Culpa… after the disastrous consequences of their 2000 Supreme Court Judicial decision (Coup) which resulted in the selection of President Bush? Mea Maxima Culpa

  13. Leen says:

    Chris Matthews will be all over this tonight.

    I can hear our nations concerned citizens clapping. Tonight I sit at a table of 8 with Senator Sherrod Brown at the Athens County Democratic dinner ( a seat for a peasant at the big table). Any particular questions you think I should ask?

    • scribe says:

      “How exactly do you intend to legislatively destroy the business model which supports the Fox News Channel?”

  16. newspaperbrat says:

    Thanks for such good news EW!

    Off topic but MSNBC has live coverage of a fired up speech he is making in Virgina – slamming McSame on the economy to the huge crowd.

  17. MadDog says:

    OT – Would that this Bill of Rights issue had the same support from SCOTUS:

    EFF Challenges Constitutionality of Telecom Immunity in Federal Court

    The Electronic Frontier Foundation (EFF) Thursday challenged the constitutionality of a law aimed at granting retroactive immunity to telecommunications companies that participated in the president’s illegal domestic wiretapping program.

    In a brief filed in the U.S. District Court in San Francisco, EFF argues that the flawed FISA Amendments Act (FAA) violates the federal government’s separation of powers as established in the Constitution and robs innocent telecom customers of their rights without due process of law…

    The full brief is here (PDF).

    The summary of evidence is here (PDF).

  18. posaune says:

    Thank you EW . . . . for this and all you do! and to FDL for our “real” news.

    note to self: make contribution today to FDL for access to reality.

  19. MadDog says:

    The Supreme Court is siding with Ohio’s top elections official in a dispute with the state Republican Party over voter registrations.

    Seems like even the Supreme Court can’t stand the Repugs anymore.

    • Leen says:

      they know OBL got his wish “to witness the U.S. become a shadow of its former self”…they know they helped with this

  20. moondancer says:

    Amazing. After years of rewriting or erasing, they actually protect US citizens from the slings and arrows of the GOP.

  21. bonkers says:

    Will this have impact on some of the other Repub tricks in states like WI and CO? I know in WI the AG has a lawsuit pending over similar issues as this OH case.

  22. bgrothus says:

    Pukes trying to generate a big whoop in NM over some “voter fraud” they say they found. Let’s see where it goes, most likely nowhere.

  23. jayt says:

    OT – and it may have been already mentioned:

    Colin Powell on Meet the Press Sunday, possible announcement of an endorsement.

      • Leen says:

        good question. would sure like to see the Senators (Biden, Kerry, Kennedy Boxer etc) get a hold of those NSA intercepts that they were demanding during the John Bolton nomination hearings. The ones that allegedly had to do with the NSA taping into Colin Powells negotiations with Iran and other nations.
        http://www.guardian.co.uk/worl…..sa.comment
        The Bolton confirmation hearings have revealed his constant efforts to undermine Powell on Iran and Iraq, Syria and North Korea. They have also exposed a most curious incident that has triggered the administration’s stonewall reflex. The foreign relations committee has discovered that Bolton made a highly unusual request and gained access to 10 intercepts by the National Security Agency, which monitors worldwide communications, of conversations involving past and present government officials. Whose conversations did Bolton secretly secure and why?

    • puravida says:

      I’ve read an Obama endorsement is likely-which would effectively kill McCain’s foreign policy cred and legitimize Obama’s.

    • dosido says:

      Mornin’ all.

      OT Sen Kit Bond has the liar pulpit @ msnbc now> Did Someone set his face on fire?

      thanks for saying it for me. Andrea Mitchell sounded a little awkward calling him on his BS, but she did it.

      They’re still going with the terrorist meme and a Senator is repeating this crap? What. a. jerk. He should know better.

    • puravida says:

      Don’t know if you saw this downstairs…

      I love taking my kids with me when I vote and I always give them the stickers. *g*

      So…who ya votin’ for, anyway?

  28. klynn says:

    EW, thanks for keeping up with this evolving story. Brunner is a sharp thinker. From what I hear, she knew she had a solid chance to get this ruling.

    Glad she stayed firm to the voter concerns.

  29. dersuuzala says:

    OT on ACORN. When the mess at Abu Ghraib came out, it was a “few bad apples” that caused it and the rest of the system was fine. But now, a small number of ACORN contractors may have accepted questionable applications, yet, the whole organization is somehow culpable. Why is that?
    Never mind, “simple answer to simple question…”
    So, what prevents some republican operatives to get hired and deliberately file false applications, knowing fully well that ACORN will flag those? Can ACORN track the filers of the bad apps?
    Not exactly a conspiracy but a fairly easily done false flag operation.

    • dosido says:

      I am so sick of this. A good organization that both parties support is now under fire because McCain is a big baby.

  31. mamazboy says:

    Hmmm… the Guardian (UK) says it was 9-0:

    “Scotus is what we call the Supreme Court (as in Supreme Court of the United States), and today, by a refreshingly unanimous 9-0 count, the high court tossed a Republican effort to make the Ohio state official in charge of administering the election scour a list of new voters for any discrepancies.”

    How can we verify, just out of curiosity? Anybody know?

    • LabDancer says:

      “per curiam” is not a precise synonym for “unanimous”.

      Per curiam decisions are quite rare, and over time are increasingly so, due to the effects of stare decisis [the formalities of precedents], and particularly with panels having members with large ideological and/or jurisprudential differences – like this one.

      Yet per curiam decisions offer a few uses, among their less-appreciated ones being plausible deniability. This is purely by way of illustration, but assume a fat, jolly whacked-out thug of a justice on the Supreme Court were to wish to attend the upcoming mid-winter session of the Federalist Society, or to pine for an invitation to a workshop on the future role of the SCOTUS in determining whether there are possible limits to Article II executive branch powers and if so where those might be found, if for no reason more complicated than his love of good booze, cigars and basking in the love of his fans. This result, without more [and I for one do not expect any more, not now and not from this level], would give said justice the wiggle room to say something like: Hey – Don’t blame me! It was obvious where the majority stood on this, and frankly it’s more than a little awkward when the GOP launches such attacks at the last minute.

      As to the report from the Guardian, I think it’s possible the reporter may not have understood. The top court in Great Britain is called the Privy Council of the House of Lords, and unlike the SCOTUS it has no independent power under any constitution. The top courts in Australia and Canada are set up more like the SCOTUS, that is, under a national constitution, plus I get the impression the SCO Canuckia has super powers that can only be overcome by krytonite or a national constitutional conference resulting in amendment – a process maybe even more convoluted given as far as I can tell the eskimos haven’t had any amendments since Trudeau came down from the mountain with their tablets.

      [I’m hedging on that. skdadl? Ishmael? Call me … if I’m out to lunch.]

      Nonetheless, per the comment from bmaz @ 81, I agree that there’s a cloud in this silver lining, or vice versa, depending on whether you blog here or at justaminute.

      However, there is the additional attractive feature that either way this episode argues for the 11th Congress to revisit the HAVA.

      So much to do in 4 years – looks like it’s gonna take 8 or more.

  32. scribe says:

    I’m in the middle of writing a brief and stopped by for a minute.

    The quote you put up indicates not only that the Ohio case is pretty much over, but also that the S.Ct. is putting a stop to the Rethug machine pretty much anywhere, at least as far as with respect to this angle of vote suppression. In short – they are ruling there is no clear-cut argument that the Republicans even have standing to sue to compel a SoS to do what they want. That ruling would apply nationwide regardless of what the individual states’ laws say on databases, etc.

    Remember my lecture on injunctions a week or two ago, in the context of the Michigan case? Same principle, but a different part of the 4 part test – the plaintiffs have not shown their right to relief is clear. Therefore, no injunction. If you don’t clearly have standing – which is what the S.Ct. says. The test, iluminated by the cite to the Gonzaga case, is whether Congress unambiguously created both a federal right and a federal remedy when it passed the statute which the party is trying to enforce. From the Gonzaga case:

    We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983. Section 1983 provides a remedy only for the deprivation of “rights, privileges, or immunities secured by the Constitution and laws” of the United States. Accordingly, it is rights, not the broader or vaguer “benefits” or “interests,” that may be enforced under the authority of that section. . . .
    We have recognized that whether a statutory violation may be enforced through § 1983 “is a different inquiry than that involved in determining whether a private right of action can be implied from a particular statute.” Wilder, supra, at 508, n. 9. But the inquiries overlap in one meaningful respect—in either case we must first determine whether Congress intended to create a federal right. Thus we have held that “[t]he question whether Congress . . . intended to create a private right of action [is] definitively answered in the negative” where a “statute by its terms grants no private rights to any identifiable class.” Touche Ross & Co. v. Redington, 442 U. S. 560, 576 (1979). For a statute to create such private rights, its text must be “phrased in terms of the persons benefited.” Cannon v. University of Chicago, 441 U. S. 677, 692, n. 13 (1979). We have recognized, for example, that Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 create individual rights because those statutes are phrased “with an unmistakable focus on the benefited class.” Id., at 691 (emphasis added).3 But even where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent “to create not just a private right but also a private remedy.” Alexander v. Sandoval, 532 U. S. 275, 286 (2001) (emphases added).

    So, I think that’s a lot bigger than just Ohio (as if that weren’t big enough).

    I think the S.Ct. is saying: resolve this election at the ballot box, not the courthouse.

    Oh – and the (winning) attorney for Gonzaga in that earlier case?

    John G. Roberts, Jr.

    Does that help you break out the voting?

    • perris says:

      sorry about the snippet out of context but here I go;

      But even where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent “to create not just a private right but also a private remedy.”

      I am not happy with this if I am understanding it correctly

      they might be making precedent to say;

      “even if there is a right, implied or written, the court must remain silent if there is no remedy unless commented in law”

      or in other words, there is no redress that the law doesn’t carve for itself

      is that a valid interpretation of this passage?

      if so;

      BAH

      • scribe says:

        OK – I did a lousy job of laying out the format on that. The part you quote is from the case of Gonzaga v. Doe, a 2002 Supreme Court case (successfully argued for Gonzaga by now-Chief Justice Roberts while he was in private practice). That was the case where a student at Gonzaga University was alleged in a conversation between students to have engaged in some sexual misconduct (I think it was that he got laid, a Bad Thing at a Catholic school) and a faculty member overheard it. He wanted to be a teacher and, in Washington, the college is supposed to give an affidavit of good moral character to the state before the state will certify him to teach. After investigating, the faculty member turned around and let the state know of the private information which implicated Doe, and the state refused to certify Doe to teach. Doe sued under the Family and Educational privacy act of 1974, which prohibits schools receiving federal funding (like just about every college, including Gonzaga) from releasing educational information (like the overheard conversation) without prior permission from the person implicated.

        The Supreme Court decided that Doe did not have standing to sue because the Privacy Act did not clearly create a right and a remedy for violation of that right.

        So, your upset is appropriate.

        You need to remember that one of the key themes of Roberts’ jurisprudence (as with his mentor and former boss Rehnquist) was and is limiting the standing of individuals to sue the government, and limiting standing to sue, generally. The Gonzaga case was right up his alley, so to speak, when he took it and argued it.

        This is a good example of how a “neutral” principle of law – in this instance limits on standing – can be seen as “good” or “bad” depending solely on whose ox is being gored and how. I thought very ill of the Gonzaga decision when it came down (bad for privacy), but not so much today when it makes the Ohio Republicans siddown and shuttup.

        • bmaz says:

          Yeah, agreed both here and your earlier. However, I ran across this at TPM, and I had the same general thought when I heard of this SCOTUS ruling. Beware of what you ask for and celebrate. This decision seems admirable at this moment, and for the instant purpose, but it is in line with a trend that sucks big eggs and that we have consistently decried in other areas; i.e. the constant move to shut off avenues of private standing and redress:

          It’s always surprising when the Supreme Court takes what seems to be a position favorable to Democrats on voting issues. But it’s worth keeping in mind that while the immediate consequences of the decision are good for Ohio Democrats, the long-term consequences may be different. Any time the Supreme Court curtails standing or limits private rights of action, they are limiting the ability of private people, such as civil rights litigants, to enforce legislation. There may be some value to limiting these rights in election cases, given that these issues in particular could be particularly vulnerable to political (i.e. Dem v. Repub.) lawsuits. But as a general matter, the 25-year erosion of standing and private right of action has had pretty negative results for civil rights litigants.

          For example, in 2001, the Court, in a 5-4 decision written by Scalia, decided that there is no private right of action in Title VI disparate impact cases. The case, Alexander v. Sandoval, involved the right to drivers’ license examinations in one’s native language; plaintiffs argued that the failure to accommodate non-English speakers resulted in disparate-impact discrimination based on national origin. The Alabama district court and the 11th Circuit, no paragons of progressive thought, ruled for the plaintiffs; the Supreme Court reversed, saying that the relevant section of the Civil Rights Act did not provide for a private right of action. This means that the only way to enforce this type of civil rights violation is through action by the Department of Justice. Maybe this is somewhat tolerable when there is a Democratic administration interested in enforcing civil rights. But it’s useless in a Republican admininstration devoted to setting those rights back.

          So: no matter how glad we may be about Brunner case, we might want to stay worried about the principle of the case overall.

        • Adie says:

          Yes. We won’t let our guard down. Issue by issue, one foot in front of the other, and maybe we can make some progress, eventually, in restoring the people’s Constitutional Rights.

  33. bgrothus says:

    OT: re the Periodic Table

    Glenn Seaborg discovered numerous of the transuranic elements including plutonium. He did not want to use Pl for it, instead called it Pu. He is also the discoverer/namer of curium.

    • skdadl says:

      Ok, that pre-dates me. I should have known. I was so bad at chemistry, though. The only part I liked was the ethers and the esters — lovely perfume, and really fascinating formulae.

  38. urbanmeemaw says:

    I’m so proud of my Secretary of State Jennifer Brunner. She inherited a huge mess and has worked so hard to ensure the voting process is fair, in spite of the GOP efforts to distract with bright, shiny objects. She is an inspiration. One very sharp lady.

    • Adie says:

      I’ll join your little cheering squad, if I may. Not only has Brunner inherited an office and heaven knows what else, in total disarray, but she was sharply criticized and roadblocks thrown down to disrupt her attempts to clean the place up. By whom? Repubble party hacks, of course.

      I’m hoping they sense a shift in the winds and at least pretending to clean up their act a bit. More, please, reforms from top to bottom of the system.

      Thank you Secy of State Brunner.

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