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Brunner Burned By Sutton ’83

Circuit Judge Jeffrey S. Sutton ’83 (lots of legal talent in those 3/8 reunion years) of the United States Court of Appeals for the Sixth Circuit wrote the opinion for the en banc court reinstating the district court’s Temporary Restraining Order that requires Ohio Secretary of State Jennifer Brunner to provide information on mismatches between voter registration and DMV records.

This is especially important in light of the tip of the iceberg of ACORN’s voter fraud voter registration fraud [edited. Note that I said voter not voting, but regardless, I apologize for my imprecise terminology] being revealed, and may determine the election.

With appeal likely to Justice Stevens (as Circuit Justice for the Sixth Circuit) for a “temporary” stay of the en banc opinion, this may not be the end of this story.  Any “temporary stay” would likely be permanent, as it would be moot after the election, and there is probably not enough time for the entire Court to hear this case in enough time to let the TRO go through.

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#1 Comment By aparent On October 15, 2008 @ 12:00 am

Speaking of voter fraud, it’s apparently an ongoing problem in IL as well — this from an Eph posting on WSO earlier tonight:

“I voted yesterday. I’m a new citizen and from Chicago. This is what happened.

Me: I’m here to vote
(election official clicks, asks questions, sees my i.d.)
Election official: Ma’am, it says here you returned a completed absentee ballot on Sept 25.
Me: That’s physically impossible. I never got my ballot.
Election official: Really? Would you like to file a voter fraud report?
Me: Yes.

90 minutes, two affidavits, and one very Chicago’y moment later, I finally voted.

Here’s to all the non-Chicagoans who don’t vote early or often!”

#2 Comment By Anon ’89er On October 15, 2008 @ 12:13 am

Acorn’s voter fraud? I was not aware that Acorn was voting anywhere.

It is a bit rich to accuse Acorn of some sort of conspiracy considering the enormous conspiracy perpetrated by the White House and a subverted Department of Justice to pursue the prosecution of none-existent voter fraud and to allow election fraud, illegal caging, absentee ballot fraud, and so on.

The willingness of am Attorney General of the US to commit perjury in furtherance of the conspiracy is just one of the more distinctive aspects of this scandal that vastly outweigh the actions and effect of any actual voter registration fraud committed by Acorn.

#3 Comment By Will Slack ’11 On October 15, 2008 @ 12:29 am

To be clear:

ACORN is involved with voter registration fraud – registering non-existent people, mostly due to paying people to do registrations, who can make their money by filling out the forms quickly and fraudulently.

Voter Fraud – non existent people voting, is not what ACORN is accused of (so far as I know). See http://blog.cleveland.com/metro/2008/10/cuyahoga_county_investigates_f.html

#4 Comment By Ken Thomas ’93 On October 15, 2008 @ 12:31 am

I do feel I have to step in here.

What ACORN may or have not done is not clear. But, as has just been pointed out, ACORN registers voters– in fact it has a statutory obligation in most jurisdictions to turn in voter apps, even if they appear incorrect or fraudulent– and in many, many cases, ACORN has documented that it marked such applications as incorrect or clearly fraudulent before submission.

ACORN, however, does not vote. It is my understanding that there is little to no evidence of “voter fraud–” as opposed to election fraud– less than 25 cases filed in the US since 2004. That’s hardly enough to affect an election.

What seems equally clear is that the GOP is preparing– thinking about– what they will do in the case of a close, contestable Obama win. From a strategic point of view, this is exactly what they should be doing– though the consequences, the effects, are hard to imagine.

On that note, I may just post something…

#5 Comment By Ronit On October 15, 2008 @ 12:35 am

Lowell – if you’re going to post incendiary political crap, try to make sure that the main point of your post is at least somewhat close to being accurate.

#6 Comment By nuts On October 15, 2008 @ 1:58 am

This is especially important in light of the tip of the iceberg of ACORN’s voter fraud being revealed, and may determine the election.

This is not an accurate statement. I wonder if the writer would share his sources so that we could have at it.

As others have said, the charge is bad voter registration cards not voter fraud. The voter registration cards appear to be the result of lazy and unethical ACORN employees who get paid by the piece to register new voters.

The writer also provides no evidence that the problem is much greater than what has been discovered, that there is plan for these fictitious registrants to vote, or that its part of a conspiracy being done in battleground states to steal the election. If its true, I would condemn it.

I don’t see any evidence of that. I’d like to remind readers that one of the reasons Bush terminated certain US Attorneys was their decision – prosecutorial discretion – to not pursue certain voter fraud cases the president and Rove wanted prosecuted because they believed the cases had no merit or could not be proven in the court of law.

The new RNC bogeyman is ACORN.

Is there no organization or individual the RNC will not vilify in their attempts to get their candidate elected?

Is it also true that ACORN initiated this by bringing the problem of these bogus registrants to election authorities?

#7 Comment By Anon ’89er On October 15, 2008 @ 2:11 am

Is it also true that ACORN initiated this by bringing the problem of these bogus registrants to election authorities?

ACORN’s statement, per Fox News:

“When we have identified suspicious applications, we have separated them out and flagged them for election officials. We have zero tolerance for fraudulent registrations. We immediately dismiss employees we suspect of submitting fraudulent registrations,” she said. “Today’s raid by the secretary of state’s office is a stunt that serves no useful purpose other than discredit our work registering Nevadans and distracting us from the important work ahead of getting every eligible voter to the polls.”

It is practices, and logical explanations like this, that make it impossible to effectively prosecute ACORN for any crimes. Thus the refusal of honest US Attorneys to prosecute these cases.

#8 Comment By Ken Thomas ’93 On October 15, 2008 @ 2:14 am

nuts, Anon ’89er: I read ACORN’s statements while sitting on a large block of salt taken from the feed lot, but my position is above. If there’s more going on here, I’m open to the evidence, but so far it’s weak– and/or there’s more going on here than the immediately obvious.

#9 Comment By JeffZ On October 15, 2008 @ 4:06 am

This may be the most idiotic post on Ephblog since Broadband was banned. I guess Lowell is yet another viewer hoodwinked by the 24-7 GOP offensive on the ACORN channel, errr, Fox News … if only Fox or the GOP gave a damn when thousands upon thousands of primarily democratic voters have been prevented from voting in past elections by setting up far too few polling stations in heavily minority districts, or via flyers falsely informing voters that they will be arrested if they try to vote despite unpaid parking tickets, or fraudulent purges of voting rolls such as what happened in North Dakota (or was it Montana), or on and on and on. The GOP has concluded that they (a) can not win this election without trying to disenfranchise even more voters than usual, and (b) if they lose, they plan to pin the blame on ACORN. It will be a full throttle assault on voting rights over the next 21 days, with the help of the massive wave of hack partisan judges appointed by GWB over the last eight years. The Dems are ready, but it will be a massive fight. There is approximately a zero percent chance that more “voter fraud” benefiting the Dem could possibly occur than voter suppression which stands to benefit the GOP has, and will continue to, occur. Ever vigilant against the echoes of Jim Crow as the right wing does everything in its power to keep poor, young, and/or minority voters from exercising their rights …

#10 Comment By nuts On October 15, 2008 @ 4:24 am

EphPundit: MCARDLE and DREZNER endorse …and Drezner claims McCain is a closet Buddhist ;-p

#11 Comment By Rory On October 15, 2008 @ 9:49 am

well, thank god Ohio doesn’t have Ken Blackwell as secretary of state, so that while this (silly, IMO) ruling will waste the time of the secretary of state, at least it won’t be used as a way for the secretary of state to screw over the election.

Also, as to the IL example–one blog post does not make voter fraud. There’s a good chance that’s a simple data error and not fraud. anecdotes aren’t compelling until there are tons of them. even in chicago.

#12 Comment By 04 On October 15, 2008 @ 10:08 am

Wow, I didn’t know Matt Drudge wrote for Ephblog!

#13 Comment By PTC On October 15, 2008 @ 5:13 pm

And shame on Obama for representing ACORN while working for the Justice Department! lol. Not. Gonna. Work.

#14 Comment By Ken Thomas ’93 On October 15, 2008 @ 6:52 pm

Jeff and others and all, and not particularly directed at Jeff: looking briefly over the coverage Lowell links, I’d think Lowell would be in a good position to give us both a legal perspective– and a perspective very different from the majority here.

It’s clear to me that, simply, we’ve all taken partisan positions here and most of us lean to one side. At the very least, that results in our often dismissing (or attacking) the opposing position. I think that’s shortsided.

My sources being what they are, they’re highly critical of what is happening around ACORN and highly dismissive. They are especially concerned that things like minor differences in spelling, or the omission of a middle initial, etc., will be used to disenfranchise voters, prevent absentee ballots from being counted, or result in a “provisional” ballot– the final two situations resulting in a vote that won’t be immediatly reported and perhaps never counted.

I like to hear the other perspective, and I’d like to have a forum where Williams graduates don’t step into the partisan role of calling each other idiots. Few people want to watch that: I walk away from such “heated” discussions in person, and I tend to walk away from this whole forum when people use such words (and: I’m somewhat directing this towards Jeff because it seems atypical).

What I’d really like is a forum where we can somewhat follow Dick’s advice, come together to express and discuss our points of view with respect for each other– and reflecting well on the institution which trained us– and show that we can all use our brains and egos to produce something a little better.

And I’d still like to hear the other side here, and come to understand it a little better.

Lowell?

#15 Comment By Whitney Wilson ’90 On October 15, 2008 @ 8:10 pm

Obviously registering ineliglible voters is not the problem; its only a problem if that person casts a vote. The concern about this from a registration standpoint is that once registered, an ineligible person is much more likely (I believe) and able to vote.

I think the (legitimate) concerns about ACORN’s activities is not that Mickey Mouse is going to vote, but that someone who should be registered at all (for example a non-citizen, who could be here legally or illegally) or should not be registered in a particular location (for example a college student might be improperly registered in more than one place) might vote.

Obviously such problems are not necessarily limited to ACORN registration drives, and I don’t know whether there are enough ineligible “voters” to make a difference in a statewide election (eg. a presidential election), but I don’t think the concern is merely a wild right wing paranoid fantasy. The fact that there have been few prosecutions over the years could simply be due to the difficulties of prosecuting such cases (or it could be because there simply aren’t that many cases to begin with).

While the minor problems outlined by Ken (mispellings on the forms, etc) could result in provisional ballots being cast, at least in theory such ballots are counted if they might make a difference and if the provisional voter was, in fact, ineligible. (I realize that some states make it quite difficult to “activate” one’s provisional ballot, but that is really a value/political judgment.)

What is more problematic from my perspective is when a voter is ineligible because they go to a precinct which has a different slate of elections than their correct one (for example a different state senator). I think in most such circumstances, a provisional ballot cast by that voter would be discarded, even though the presidential and U.S. Senate candidates (for example) would be the same.

#16 Comment By JeffZ On October 15, 2008 @ 8:15 pm

Fair enough Ken, I should not have said idiotic, that was an overreaction and not constructive in the least. More a response to the 24-7 obsessive coverage of this by Fox, Limbaugh at all, after they’ve always been wholly dismissive of the far more pervasive and longstanding problems of voter suppreesion, than anything Lowell (who I agree with on certain issues) wrote about in his post. I mean, look what happened in Montana. Look at the fliers that are going around Philly and other largely black communities. I’ve seen some of these and they are flat out scary. There has been, for a number of elections now, a systematic effort to prevent / intimidate ACTUAL voters, often minorities or poor voters, from going to the polls, or once they are there, from having their votes counted. What upset me most about Lowell’s post is the “deciding the election” line … because there is simply no way, no how, that ANY minor incidence of actual voter fraud (and I doubt there will be any material volume thereof) could come close to leveling the playing field, let alone actually deciding the election in the GOP favor. Limbaugh et. al. are seeing the writing on the wall, and they are already prepared to blame ACORN and try to delegitimize Obama before his administration even begins. Of course, if Obama can win by close to the margins currently projected, no one will be able to delegitimaize his victory, but there is a loooong way to go still, starting with tonight.

#17 Comment By Derek On October 15, 2008 @ 8:15 pm

A few points —

John McCain was a keynote speaker at an ACORN national convention way back in . . . 2006. he actively supported the organization’s goals.

You know who reported the oh-so shady and underhanded dealings of ACORN? Those plucky and intrepid and vigilant conservatives at . . . ACORN.

I’ll second the other people who have weighed in here — allegations of registration fraud is not the same thing at all as voter fraud.

The decision in Ohio will have virtually no impact on the election, because the Democrats who want to make sure people are enrolled will do what they have been asked to make sure eligible people can vote. Unlike 2004 when the GOP, which of course wanted to limit voter participation, did everything they could to make sure people could not vote.

Tempest? Meet teacup.

dcat

#18 Comment By PTC On October 15, 2008 @ 8:31 pm

What a shocker. There is a massive black voter registration drive this year… the largest in our nation’s history, blacks could actually turn up in record numbers, vote for Obama, and create spoilers in places like Georgia and Mississippi. I mean, I am shocked.

Another shocker, some of the people who register to vote cannot do so legally, be they black, white, brown or purple!

And the final shocker- A political party using monopolization of perception to attack another political parties legitimacy. That really is the shocker of all shockers. To think that people would take the worst kinds of examples and give the perception that they are the norm in order to score political points… Republicans and Democrats would never do such a thing!

I think this whole thing is cheap propaganda. That is my opinion. Based on years in the game. Biased or not.

Propaganda- Truths, half truths and outright lies used to create a perception and/ or modify or change an opinion. You betcha!

#19 Comment By PTC On October 15, 2008 @ 8:36 pm

Seriously though (forgive my attempt at sarcasm lost on the page) – I’d be interested in the numbers. Based on the demographic, is there any proof that an exorbitant number of people who are ineligible are being registered? Is there any real proof, that ACORN is a criminal organization?

#20 Comment By Whitney Wilson ’90 On October 15, 2008 @ 8:55 pm

PTC, I’m not sure if that question was directed at me, but if so:

I don’t think ACORN is criminal. My perception of the organization is that it is a passionate view of the world that is quite different from mine, and that it works very hard to achieve its social and political goals. In that sense, I think its as American as apple pie. I suspect that many people who work for (at?) ACORN have political views that I would disagree with. That wouldn’t make them unAmerican, but it could mean that many might oppose what they are trying to accomplish (or the ways in which they are doing so).

As for the numbers, I would be pretty surprised if, under the current climate, significant numbers of illegal immigrants try to vote, the risks of deportation would likely be perceived as high. As for other ineligible voters, I have no idea how many register and/or vote. There are often disputes about where college students should vote (at “home” or at school), and I can imagine some number trying to vote twice, but I’m unaware of any studies trying to figure out the numbers (not that I have looked very hard).

#21 Comment By Dick Swart On October 15, 2008 @ 9:30 pm

As this heated argument continues, may we take a moment to remember what has made America great:

http://www.youtube.com/watch?v=bDYRjuzE1vIcohan movie yankee doodle

James Cagney, Michael Curtiz, and Warner Brothers now in its’ 75th year.

Filming began just after Pearl Harbor!

Please, please, continue …

#22 Comment By Dick Swart On October 15, 2008 @ 9:34 pm

ooops …

http://www.youtube.com/watch?v=bDYRjuzE1vI

Don’t you wish you could do a time step?

#23 Comment By PTC On October 15, 2008 @ 10:23 pm

Whitney- Obama answered the question in tonights debate. It seems that Acorn paid people for numbers… and guess what, people put names on the books that do not exist to get paid. These non- people will not vote… because they do not exist. Seems like ACORN screwed up by paying people for numbers.. but the chance of that leading to actual voter fraud… is nil. In simple terms… some people cooked ACORNS books to get paid, but that does not translate into votes.

#24 Comment By JG On October 15, 2008 @ 11:33 pm

Re: college students trying to vote twice…that is the one part of this that I find far-fetched. First of all, it is pretty hard to get college students to vote at all. I think more will turn out this year, but voting twice means either getting 2 absentee ballots or getting an absentee for one state and then voting in person in another. I don’t see that happening other than maybe in the most motivated bizarro case – and that individual would not be motivated by ACORN or anything other than insanity.

There are people who dispute where college students *should* vote, but that isn’t the same thing as questions about where college students *may* vote. In most states, college students can vote where they go to school although many don’t…it is usually based on XX numbers of days living in the county/state.

I think they are catching a lot of problems with voter registration, and I think this may end up helping improve the overall process. There are tremendous flaws – for example, Oregon is an all-mail ballot state. I’ve received multiple ballots at previous and current addresses for years. Now, I only voted once (I swear!), but it drives me nuts that several change of address and re-registration forms mailed in and phone calls didn’t seem to make a difference. This is without ACORN or anyone else being involved – just the complication of registration being done county-by-county with no statewide database. Now I worry that a centralized system could end up kicking people off lists who should not be kicked off, but there has to be some way to check this.

#25 Comment By nuts On October 16, 2008 @ 12:07 am

Also at tonight’s debate John McCain characterized ACORN’s activities and I’ll paraphrase, as massive voter fraud great enough to swing the election. Does John McCain’s charge delegitimize the election on Nov 4 if Obama wins? And if it does, is that irresponsible of John McCain or fair game?

Is the hyperbolic hysteria being leveled against ACORN a proxy fight against Obama or a sincere concern?

How does this public charge activate the base, prepare for election challenges on election day, and give cover to voter caging activities being conducted now?

Is this a case of attack you opponent on their strength, and attack your opponent on your own weakness.

#26 Comment By Soph Mom On October 16, 2008 @ 12:23 am

Per the polls and the reaction to the debate, it seems the ‘Acorn’ topic is not one that matters much. Like the Ayers nonsense, it fell flat when McCain tried to make something of it.

JG,

For the first time, because of changes in my voting district, I will be voting by mail. I don’t like it. It seems problematic to me.

I like showing up at at my local polling place, showing my ID, slipping my vote into the box, getting my chocolate chip cookie and sticker, and then going about my day.. proudly sporting said sticker…which proves I voted, and in turn, reminds others to do the same.

I am considering making a local ‘stink’ about it, so I’m wondering…other than the problems you cite,how well does this ‘vote by mail’ work in Oregon?

#27 Comment By ronit On October 16, 2008 @ 12:35 am

Voting by mail is the way of the future. No lines, no opportunity for voter intimidation, no worries about people going to the wrong precinct… it is an excellent idea.

#28 Comment By Dick Swart On October 16, 2008 @ 12:59 am

As your man in Oregon, I can tell you from years of experience the mail method is simple and painless. Each registered voter will receive at his residence or mailing address, before the ballots are received, two thick booklets.

The first booklet will contain details of the initiatives on the ballot – state constitutional amendments, county and local bond issues and other yea/nay proposals. The booklets are well done with factual descriptions of the issues, their effects to procedure and budget, and extensive pro/con statements on each item. Each statement has been identified as to the poster and the fact that it is a paid announcement. It is possible to have a clear picture of the issue from the data (assuming you can read).

The second booklet will contain bios of candidates and paid statements pro and con. In National and State elections, the populace has already been saturated by the time this booklet arrives.

Then comes the ballot with instructions on how to fill-out (#2 pencil and etc) and how to return in the enclosed two envelopes:
a green privacy envelope to sealed by the voter and signed, and an outer addressed envelope to be mailed (voter supplies the stamp) or taken to a designated county or city office.

Voter turnout for candidates and issues has been higher than the previous turn up at the polling place, stand in line, duck under the curtain, and turn the knobs and throw the switch system.

And the costs are much less and there are no charges of voter fraud. Of course, Oregon is the Canada of the US.

#29 Comment By JG On October 16, 2008 @ 1:14 am

I absolutely find the mail-in ballot to be a great thing. Less voter fraud, less potential for “I don’t understand the ballot” mistakes because you can take your time to study it. The problems I note above are not unique to Oregon and happen in states with in-person voting – it just means you’re on the rolls in 3 counties potentially…but they are working on that as well. You can now check your registration status online.

Voter turnout went up dramatically with the mail system. There are drop-sites all over the place (election offices, wal-mart’s, you name it) or you can mail it in. If your ballot doesn’t show, they can re-mail it until a certain date or you can go by the office and cast a replacement ballot. Here is a link to an info page about the mail-in ballot system. I get that there is a certain feeling of civic pride in casting the ballot, but Oregonians have voting parties and other such things to get together and talk about issues and vote with the community feel. You can also track the counties where returns are high or low and target GOTV efforts.

I hope that more states go to it soon – it is one of the best ways I’ve seen to increase participation and access.

#30 Comment By Whitney Wilson ’90 On October 16, 2008 @ 8:02 am

I know this makes me a dinosaur, but like Soph Mom, I like going to the polling place to vote. It generates a sense of community and purpose. Voting my mail loses that.

#31 Comment By PTC On October 17, 2008 @ 6:58 am

Soph mom- Voting at a booth could involve long lines and intimidation. Look at Georgia. AA make up about 28% of population there, but they are 37% of the early vote. Voting by mail, and voting early, ensures that there will not be fraud on election day by tricks such as false information on polling places, under funding of some districts to create long lines… etc. Far more devastating to a fair vote than the casting of illegal ballots, is the poor availability of polling stations and long lines that occur in poorer neighborhoods do to a lack of funding and manipulation.

I hope this Eph judge knows what he is doing. He is setting up about 200,000 Ohioans for regional ballots subject to challenges… that could create a real mess.

#32 Comment By JG On October 17, 2008 @ 10:49 am

SM, WW, and others – it is a cost-benefit analysis. Is it worth more for the handful of seasoned voters to get their feel-good moments or is it better to have broad access to the fundamental right of a democracy. I hate to put it like that, but the only argument I’ve ever heard against mail-in ballots is that it makes people feel good. The arguments for the system are numerous (a few are listed above). I think those of us who like the feeling (me included) need to find another way to feel that involvement.

#33 Comment By Soph Mom On October 17, 2008 @ 11:21 am

Thanks for the feedback, everyone. If it really results in a better, more reliable system, then I’m all for it.

However, it doesn’t ‘feel’ that way. Just the fact that you don’t need to show ID, seems problematic. It could also be more vulnerable to fraud in a number of different ways. But then again, the fewer hands on the ballot, the easier it would be to trace any wrongdoing. Although the US Postal service…

Anyway… no cookie, I guess. Although, I did notice there was a sticker in my packet.

#34 Comment By Dick Swart On October 17, 2008 @ 11:40 am

Back to ACORN for a sec:

What;s the difference between a squirrel with an acorn and Sarah Palin?

http://1956ephs.blogspot.com/2008/10/and-difference-is.html

#35 Comment By Soph Mom On October 17, 2008 @ 11:50 am

Dick,

LOL…what a cute squirrel! And most probably, more deserving of acorns, than Sarah is of votes.

#36 Comment By PTC On October 17, 2008 @ 3:28 pm

http://ap.google.com/article/ALeqM5h5P2f-dgLBCzuRdaaWR2BTYBb81AD93SBAJO0

Looks like the USSC disagreed with the Eph Judge.

#37 Comment By PTC On October 17, 2008 @ 3:37 pm

Timeline of the voter registration investigation:

October 7, 2008: The Ohio GOP sued Brunner in Federal Court saying a list of voters whose information didn’t match should be provided to county elections boards.

October 9, 2008: U.S. District Court grants a temporary order, saying Brunner must give counties the list of names with mismatched information. Brunner appeals this.

October 10, 2008: A three-judge panel placed on hold the lower court’s order. The Ohio GOP asks for the full 6th Circuit to review the case.

October 14, 2008: The full 6th U.S. Circuit Court of Appeals ruled with the Ohio GOP. It ordered Brunner to set up a system that provides mismatched names.

October 16, 2008: Brunner appealed decision to U.S. Supreme Court.

October 17, 2008: U.S. Supreme Court rules in favor of Ohio Secretary of State Brunner.

Does anyone have the SCOTUS ruling? I would be interested to see on what grounds… what rights they felt were being violated by the Ohio Court, and why?

#38 Comment By Rory On October 17, 2008 @ 3:47 pm

i believe it was because republicans didn’t have grounds to file as plaintiffs.

#39 Comment By Whitney Wilson ’90 On October 17, 2008 @ 3:48 pm

Here is the link to the opinion, and the text:

http://www.supremecourtus.gov/opinions/08pdf/08A332.pdf

On October 9, 2008, the United States District Court for the Southern District of Ohio entered a temporary re-straining order (TRO) directing Jennifer Brunner, theOhio Secretary of State, to update Ohio’s Statewide VoterRegistration Database (SWVRD) to comply with Section303 of the Help America Vote Act of 2002 (HAVA), 116 Stat. 1708, 42 U. S. C. §15483(a)(5)(B)(i).* The United States Court of Appeals for the Sixth Circuit denied the Secretary’s motion to vacate the TRO. The Secretary has filed an application to stay the TRO with JUSTICE STEVENS as Circuit Justice for the Sixth Circuit, and he has referred the matter to the Court. The Secretary ar-gues both that the District Court had no jurisdiction to enter the TRO and that its ruling on the merits was erro-neous. 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 Courtto enforce Section 303 in an action brought by a private litigant to justify the issuance of a TRO. See Gonzaga Univ. v. Doe, 536 U. S. 273, 283 (2002); Alexander v. Sandoval, 532 U. S. 275, 286 (2001). We therefore grantthe application for a stay and vacate the TRO.
——————
*Title 42 U. S. C. §15483(a)(5)(B)(i) (2000 ed., Supp. V) states, in relevant part:
“The chief State election official and the official responsible for theState motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registrationsystem with information in the database of the motor vehicle authorityto the extent required to enable each such official to verify the accuracyof the information provided on applications for voter registration.”
2
BRUNNER v. OHIO REPUBLICAN PARTY Per Curiam

It is so ordered.

#40 Comment By Whitney Wilson ’90 On October 17, 2008 @ 3:53 pm

I think Rory is essentially correct. In order to get a TRO (temporary restraining order, which is issued on an emergency basis without a full trial/discovery period) – in this case obligating the Ohio Sec. of State to do something – the plaintiff has to show that they is a strong likelihood that they would ultimately prevail on the merits. Here, the Supremes said that the plaintiff’s were not likely enough to prevail in showing that they – as private parties – were entitled to bring the case at all.

#41 Comment By Ronit On October 17, 2008 @ 4:03 pm

The Supreme Court ruled in favor of Brunner? Ha! Cry, wingnuts, cry!

#42 Comment By Whitney Wilson ’90 On October 17, 2008 @ 4:14 pm

Ronit,

The Supremes didn’t say she was right, they only said that the plaintiff’s might not have the right to bring the suit in the first place. That issue would have to be resolved on a “normal” litigation timeframe, which in this instance will mean well after the election.

I know you are happy about this outcome, and it may be the correct one, but I hope this will end the idea that only Republican office holders try to affect elections while carrying out their official duties.

#43 Comment By Dick Swart On October 17, 2008 @ 4:30 pm

#44 Comment By PTC On October 17, 2008 @ 4:54 pm

lol… good one dick!

The SCOTUS ruled that Republicans are bat nuts crazy white old men, hence the droolers cannot show that there is a strong likelihood that they would ultimately prevail on the merits.

Diapers! lol.

#45 Comment By Soph Mom On October 17, 2008 @ 5:03 pm

“Stop! In the name of love truth…”

Well, this Acorn (story) appears to be sprouting.

#46 Comment By Soph Mom On October 17, 2008 @ 5:19 pm

“I know you are happy about this outcome, and it may be the correct one, but I hope this will end the idea that only Republican office holders try to affect elections while carrying out their official duties.

Whitney, can you explain what you mean by this?

Granted, I don’t have a thorough understanding of the Acorn story, or it’s possible outcome, but accusing it of “affect(ing) elections” at this point, seems a stretch. Did I miss something somewhere?

#47 Comment By Ronit On October 17, 2008 @ 5:55 pm

Whitney – I am sure you are right that wrongdoing is not a monopoly of Republicans alone, but I don’t see how you can suggest that it is clear or indisputable that Brunner has been trying to inappropriately affect an election.

#48 Comment By PTC On October 17, 2008 @ 6:23 pm

Ronit- The fact is, the Republicans were looking at challenging up to 200,000 new voters in Ohio… it seems pretty clear who was trying to inappropraitely affect the election!

Whitney- Any thoughts on the current RNC funded and approved robo calls that claim obama is a terrorist?

#49 Comment By Whitney Wilson ’90 On October 17, 2008 @ 6:27 pm

Ronit, I don’t think Brunner is “inappropriately” trying to affect an election. All I am saying about Brunner’s actions is that the decision she has made (that she does not have to – and will not – take the action that the Republicans asked her to) is perceived to have (and may indeed have) an effect on the election. As it turns out, the course of action she is taking is (again) widely thought to benefit Democratic candidates (whether or not that is true). I suspect she is doing what she thinks is legally and morally correct (and it may very well be), but it has the effect of (potentially) allowing ineligible voters to vote in the election (or making it easier for them to do so).

Soph Mom, what I was very inartfully trying to say is that I have read a lot of commentary suggesting that Republican officeholders (such as Kenneth Blackwell) use the powers of their offices in ways to benefit Republicans without acknowledging that Democratic officeholders do the same thing.

#50 Comment By Ken Thomas ’93 On October 17, 2008 @ 6:37 pm

One issue here (in the materials Lowell directly linked to) is the potential burden of providing these “matches,” at this time, puts upon the Ohio SoS’s office. To put it another way, why file this suit now– and not months ago? The Court has reason to be suspicious that the reason is not substantive, but disruptive– especially when filed in the few days before an election.

(N.B. Brunner has been quite active in investigating/pursuing election fraud in Ohio, so this could be potentially views as payback and/or an attempt to weigh Brunner down. On the partisan points, I believe Brunner is going after Clinton/Dems for tactics in the ’08 primary, so this doesn’t necessarily fall on clear partisan boundaries).

#51 Comment By Ronit On October 17, 2008 @ 6:59 pm

As it turns out, the course of action she is taking is (again) widely thought to benefit Democratic candidates (whether or not that is true). I suspect she is doing what she thinks is legally and morally correct (and it may very well be), but it has the effect of (potentially) allowing ineligible voters to vote in the election (or making it easier for them to do so).

Was going to say something in response to this, but I think this statement is too well-hedged to mean anything.

#52 Comment By Whitney Wilson ’90 On October 17, 2008 @ 7:08 pm

In re-reading it Ronit, you’re right.

My point is that I have no reason to think that Brunner is not acting in good faith. But I also think she understands that her actions will benefit the Democrats.

#53 Comment By PTC On October 17, 2008 @ 7:21 pm

I cannot beleive these robo calls. They are slander. And they are coming directly from McCain/Palin. You may find my language over the top, but that is the point. There is only so much we should stand for from a politcal party before we say enough. The Republicans are caliming that the nominee of a party, a sitting US Senator, is a terrorist and unamerican. It is wrong. Any decent natured American should be outraged by these attacks, and hit them back as hard as they are hitting.

#54 Comment By rory On October 17, 2008 @ 7:49 pm

the arguments re: Blackwell and others like him are that they are not acting in good faith, but rather wholly for political gain. no need to rehash them, except to say that the republican acorn obsession was the beginning of the attorney firing scandal….