Supreme Court Sides with Ohio Secretary of State in Voter Match-Up Case
Supremes Bail Out Brunner But Ohio Republicans Press the Attack on Voter Registration Fraud
with John Michael Spinelli
Columbus, Ohio: The United States Supreme Court Friday came to the defense of Ohio Secretary of State Jennifer Brunner with a "Per Curiam" decision by Justice Stevens that says Brunner, a Democrat, does not have to update Ohio's Statewide Voter Registration Database (SWVRD) as the Ohio Republican Party wanted her to do and that the US Court of Appeals for the Sixth Circuit directed her to do as recently as last Wednesday.
Today's decision of the full court without the mention of specific judges means Brunner does not have to provide Ohio's 88 boards of elections with lists of new registrants whose information does not "match up" with government databases. But while the decision may give Brunner some breathing room, the fury surrounding voting in Ohio likely won't disappear in the weeks remaining until America and Ohioans vote on November. 4th.
In case No. 08A332, Jennifer Brunner v. Ohio Republican Party ET Al, brought by Brunner to the high court to ask for a stay of the district appeals court ruling requiring her to update the SWVFRD and inform Ohio's 88 local boards of elections of so-called mismatches between various databases including that of Ohio's bureau of motor vehicles and the Social Security Administration. Justice John Paul Stevens, Circuit Justice for the Sixth Court, referring the matter to the Court, granted Brunner's application for a stay and vacated the temporary restraining order (TRO) imposed by the district appeals court in Ohio
According to the two-page decision posted on the court's Web site, Brunner, the first woman to hold the office and the first Democrat to hold the post in 16 years, argued that the "District Court had no jurisdiction to
enter the TRO and that its ruling on the merits was erroneous."
In his short rendering, Stevens said there was no attempt to express an "opinion on the question of whether
HAVA [Help America Vote Act, 2002] is being properly implemented" or not. The respondents, the decision read, referring to the Ohio Republicans who sought records of newly registered voters, "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 (Ohio Republican legislator Larry Wolpert) to justify the issuance of a TRO."
“The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.”
Brunner had previously said the lower court's order could have affected as many as 200,000 Ohioans, about a third of the 666,000 newly registered to vote in Ohio, potentially forcing them to cast provisional ballots instead of regular ballots, as reported by Bloomberg news. With the enthusiasm generated by Barack Obama this year, the Democratic presidential standard bearer and the first African-American to be the party's candidate, newly registered voters sympathetic to Obama and Democrats would have been far more impacted than Republicans, who see their political brand name shrinking in popularity.
The Ohio Republican Party, who has been at odds with Brunner from her first day on the job in 2007, accused her of ignoring her duty under a federal law to help weed out fraudulent registrations. Being the crucial battleground state it is, Ohio, as it has done in the past, could make or break the White House fortunes of either Obama or his rival, Arizona Republican John McCain.
Without Ohio's 20 electoral votes, McCain would have to carry every other state that voted for George W. Bush in 2004, plus one that voted Democratic. Moreover, the race in Ohio is still very close. Some polls have Obama up by a few points while other shows the two candidates in a statistical head-heat in Ohio.
Making her case in court papers, Brunner said lists compiled so far "will display myriad discrepancies" and argued that "Many of those discrepancies bear no relationship whatsoever to a voter's eligibility to vote a regular, as opposed to a provisional, ballot.''
Brunner said mismatches "may well be used at the county level unnecessarily to challenge fully qualified voters and severely disrupt the voting process.'' The plaintiff in the case, the Ohio Republican Party, said HAVA "requires Brunner to share the mismatches with county boards so they can investigate potential fraud before counting votes.
The Ohio GOP attacked Brunner for her "steadfast refusal to provide the HAVA 'mismatch' data to the county boards of elections in a meaningful way.''
The Supreme Court today questioned whether Congress authorized private litigants to sue under HAVA.
The Cincinnati-based 6th U.S. Circuit Court of Appeals had upheld U.S. District Judge George C. Smith's order on a 9-6 vote.
In Ohio and other states, would-be voters whose eligibility is in doubt can cast provisional ballots, which will count only if eventually validated by election officials.
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