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.