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  

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