US SUPREME COURT ISSUES FIRST RULING RE OHIO ELECTION; WHAT FEELS LIKE VICTORY MAY NOT BE, IN THE END
All is not exactly as a surface reading makes it seem.
The first US Supreme Court ruling on Ohio for Election 2008 was released today: a two-page stay order issued as a per curiam opinion (speaking for the entire court) of the US Supreme Court. At bottom it preserves the status quo in Ohio, and hands victory to Brunner and relief for those fearing 100,000 to 600,000 purged voters. But, this status quo is both good and bad.
First the bad: Since it only regards an interim Temporary Restraining Order (TRO), at bottom the Supreme Court just wants to "wait and see" what the election results in Ohio are. They have an "option," you might say.
So, are we still happy that an alleged "dirty" voter registration list won't be purged and cleansed? If so, let's consider this case in light of other election law cases before the US Supreme Court this year.
A stay does not mean that the Supreme Court won't have another opinion in the end and change its mind on the merits. In reviewing the Temporary Restraining Order requiring the "cleanup" of Ohio Voter Registration lists, the Court is using the very high standard needed for an injunction prior to a full fledged trial with evidence: Whether or not the party asking for the injunction is likely to win on the merits, in granting the stay, the US Supreme Court is just saying, if anything, that it's a close debate, and not a clear cut issue. That's not saying much, and it certainly doesn't mean final victory for Brunner.
This opinion was the result of an emergency motion for stay filed by Brunner with Justice Stevens, who most likely is the author of the opinion for the court today in Ohio Republican Party v Brunner.
On its face, it's a victory for Brunner, and last minute "HAVA matches" or purges need not go forward. But, at the same time, it preserves the Republicans' 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.
The US Supreme Court's other precedents on election law in the last year have been bizarre. In one, regarding a state voter ID rule, the Supreme Court balanced the mere FEAR of voter fraud against the ACTUAL evidence of real disfranchisement caused to real people by voter ID laws, which studies show at any given time something like two to nine percent of the population can't find or doesn't have ID on them.
Perhaps, once you know that legally the mere fear of voter fraud is balanced against (and thus can justify) real disfranchisement, you will have some insight into why voter fraud fears are being whipped up so vociferously around the country (as opposed to insider election fraud fears, which are still ignored or suppressed).
This stay order, rather than ending the process here, means that the allegedly totally defective Ohio voter registration list will be used in Ohio in 2008, and after the election is over, Republicans get to take their best shot at tossing out certain cherry-picked classes or precincts of votes they FEAR have the most voter fraud, or perhaps have the entire state of Ohio thrown out. If you think the US Supreme Court incapable of terminating elections and throwing out votes, you've forgotten the most famous US Supreme Court case of all time: Bush v. Gore.
Even if this particular case is not the vehicle, Secretary of State Brunner presently says she has eight lawsuits against her and expects twelve by Election Day. Thus, there are certainly other candidates waiting in line right now for US Supreme Court review regarding Ohio, one of which already has a published 6th Circuit opinion completed.
Again, today's stay 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. It preserves the status quo, but the Republicans are poised to challenge the Ohio election and have votes thrown out as illegal votes wherever possible.
Perhaps more elections are decided under cloak of legality than under cloak of secrecy. Stay tuned -- and sign up for my listserv below if you want to get all the coverage on those who, for better or for worse, get the final word on elections: judges, and the legal system.
Paul Lehto
Juris Doctor
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