October 22, 2008
In 2002, the federal government enacted the Help America Vote
Act. The law, designed to prevent election fraud, set standards for
voter eligibility, and its importance is obvious given the recent
ACORN vote-fraud scandal. But thanks to a Supreme Court order
issued Friday, Ohio's Democratic secretary of state, Jennifer
Brunner, doesn't have to follow it.
The Republican party sued to force Brunner to comply with Section 303 of HAVA. This section requires state election officials to "verify the accuracy of the information provided on applications for voter registration" by comparing it to other databases such as drivers'-license or Social Security records. The secretary has freely admitted that she is not complying with the law -- she analyzed the data and found 200,000 mismatches, but has not forwarded the information to county election officials.
After a district court order issued a Temporary Restraining Order forcing her to comply, the secretary of state appealed to a three-judge panel of the Sixth Circuit Court of Appeals, which overturned the district court. However, on October 14, the full Sixth Circuit overturned its own panel and once again ordered Brunner to comply. She filed an emergency appeal with the U.S. Supreme Court, which vacated the TRO. The Court expressed no opinion on whether Brunner was following Section 303 -- it threw the case out on the grounds that the Republican party didn't have the right to sue to force compliance.
Once you work your way through all the legal language in the briefs and orders, Brunner's defense basically boils down to two arguments. The first is that the HAVA statute does not create any private right of action (that is, the right of a private entity like the Republican party to sue her). In fact, only the United States attorney general is specifically authorized in the statute to enforce its provisions.
What is amusing is that this very issue came up in 2004, when the Democratic party filed the first lawsuits under HAVA -- against then-Ohio secretary of state Ken Blackwell, a Republican. It was an effort to force the state to count provisional ballots from individuals who voted outside their assigned precincts. Of course, the Democratic party was arguing then what the Republican party is now -- that a private right of action for HAVA exists.
A federal district-court judge agreed with the Democrats. On
appeal to the Sixth Circuit, the Civil Rights Division of the
Department of Justice (where I was working at the time) filed a
brief arguing that there was no private right of action. The
liberal civil-right community attacked the brief, and in my
confirmation battle for a seat on the Federal Election Commission,
my critics cited it as a reason I should not be confirmed.
Just a week before the 2004 election, the Sixth Circuit held that states are not required to count provisional ballots cast outside of assigned precincts. However, the court also held that there is a private right of action under HAVA.
So in 2008, when the Ohio Republican party took advantage of the precedent set by the Ohio Democratic party, the Democratic secretary of state echoed the arguments of the former Republican secretary of state. Can we expect to see protests by the civil-rights community to criticize her stance? Or to apoligize for its past criticisms? Don't hold your breath.
Brunner's second argument is essentially that she is just too busy, and that it will cause massive disruption to her election preparations, to comply with federal law. Of course, some might say that making sure voter registrations are accurate is an essential part of preparing for an election. She also claims that the state was carrying out the verification process, but was stopped by her predecessor. Of course, she was elected in 2006, so even if that is true (and there is some doubt about that), it is obviously no excuse. She could have easily done that when she took office.
You might ask, Where has the U.S. Department of Justice been in all of this? After all, they are supposed to be enforcing HAVA. Why didn't they sue the Ohio secretary of state themselves? Why haven't they sued the Wisconsin Board of Elections, which is also not complying with Section 303? (The Wisconsin state attorney general was forced to file such a suit, a suit that may now be in jeopardy due to the Supreme Court's holding.) Only Michael Mukasey knows whether DOJ will finally starting enforcing the law and search for ACORNs in Buckeye country, or allow potential fraud to go completely uninvestigated.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.