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.