From Paul Lehto: SUPREME COURT ISSUES FIRST DECISION ON OHIO:
WHAT FEELS LIKE VICTORY NOW MAY NOT BE, IN THE END All is not exactly as a surface reading makes it seem. A US Supreme Court ruling on Election 2008 was released today: a 2-page stay order issued as a per curiam opinion (i.e., speaking for the entire court). At bottom it preserves the status quo in Ohio--but the status quo is both good and bad. This opinion was the result of a motion for stay filed by Ohio SoS Jennifer Brunner with Justice Stevens, who mostly like is the one who wrote the opinion for the court today. On its face, it is a victory for Brunner, in that last-minute "HAVA matches," or purges, need not go forward. At the same time, however, it preserves the Republican's core argument that voter fraud may so pollute the process as to require that precincts or classes of votes, perhaps even entire states, have their votes/elections tossed out. Rather than ending the process here, it means there may well be a full Supreme Court ruling either before or (more likely) right after the election; and there are other candidates waiting in line right now for SCOTUS review re: Ohio. The ruling's statement at the end, that the Republicans are not "sufficiently likely to prevail" on the merits to justify a TRO, is a HIGH standard to meet. It most certainly does not mean that the Court can't, or won't, later on agree with the Republicans. It merely means that the law and facts are not sufficiently clear that a court would be justified in issuing injunctive relief like a TRO at this juncture, just prior to the election. Paul Lehto Juris Doctor For folks wanting to be on legal-related election updates, be sure to sign up or request to be on my demanding democracy at <http://www.googlegroups.com>www.googlegroups.com (search on Demanding Democracy to get the home page and request to join) ---------- Forwarded message ---------- October 17, 2008 <http://electionlawblog.org/archives/011862.html>http://electionlawblog.org/archives/011862.html Breaking News: Supreme Court Stays Sixth Circuit Decision You can find the two page ruling <http://electionlawblog.org/archives/orp-sct.pdf>here. Justice Stevens referred the stay application to the Court, and the Court, without dissent, agreed that a stay was in order because the lower courts erred in concluding that the ORP is likely to prevail on its legal argument that section 303 of HAVA (the section requiring state chief election officials to perform matches of their data with motor vehicle department data) creates a private right of action. In other words, it looks like individuals cannot sue for violations of this aspect of HAVA; it would fall to the DOJ to bring such suit. What is the upshot of this ruling? It means that the Secretary need not provide the "no match" data to the county boards, and therefore the ORP won't be able to make its public information requests to get the data to raise voter challenges at the polls. I haven't thought enough about the private right of action question but I do think the Court reached the right result for a different reason. As I've <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=698201>long maintained, courts need to be aggressively asserting laches in election cases. If cases reasonably could have been brought earlier, but are brought just before the election, courts should be wary of entertaining such claims to interfere with the upcoming election. Posted by Rick Hasen at <http://electionlawblog.org/archives/011862.html>09:09 AM P.O. Box #1 Ishpeming, MI 49849 <mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED] 906-204-2333 --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to Mark Crispin Miller's "News From Underground" newsgroup. To unsubscribe, send a blank email to [EMAIL PROTECTED] OR go to http://groups.google.com/group/newsfromunderground and click on the "Unsubscribe or change membership" link in the yellow bar at the top of the page, then click the "Unsubscribe" button on the next page. For more News From Underground, visit http://markcrispinmiller.com -~----------~----~----~----~------~----~------~--~---
