The U.S. Supreme Court Friday lifted an order that would have required the Ohio Secretary of State implement a system immediately to verify eligibility of thousands of voters to caste ballots.
The order came in response to an emergency stay request by Ohio Secretary of State Jennifer Brunner, who had been ordered by the full 6th U.S. Circuit Court of Appeals to begin implementing the system by Oct. 17, despite the potential that thousands of voters could have faced questions over their right to vote.
The high court order stayed the 6th Circuit’s temporary restraining order issued Oct. 14, but did not express an opinion on whether Ohio was properly administering the 2005 voter reform law, Help America Vote Act. Brunner v. Ohio Republican Party, No. 08A332.
Ohio’s bitterly partisan dispute over Brunner’s handling of voter registration applications spilled into the 6th Circuit this week with a 10-6 decision ordering election officials to set up a system to verify voter eligibility by Oct. 17.
The 6th Circuit had ordered Brunner to identify for 88 county election boards which voter registrations contained information that did not match in a check with Ohio driver’s license or Social Security records.
The suit, brought by the Ohio Republican Party has been up and down on appeals to the 6th Circuit twice in the past few weeks, and the entire court weighed in with Tuesday’s decision, Ohio Republican Party v. Brunner, No. 08-4322.
Judge Jeffrey Sutton wrote in the majority, “The problem with the current system [of cross-checking] is not that it is insufficiently user-friendly, but that it is effectively useless.”
The ruling included testy criticisms from dissenting judges, in a circuit known for its judges’ heated internal disagreements. Judge Karen Nelson Moore called the majority’s action “judicial activism in the extreme.”
Judge Boyce Martin added in a separate dissent, “In a case full of irony, we have a majority of this court inferring a private right of action – on the basis of, well, nothing – to create utter bedlam in the state’s election.” He added that it was “troubling” that another circuit judge, Alice Batchelder, “did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio.”
Batchelder’s husband, Bill Batchelder, is an incumbent Republican candidate and former state court judge in Ohio.
Judge Batchelder did not write a separate response to Martin’s criticism. The opinions generally split down the partisan divide of the political party of the president who appointed the judges. Among the 10 judges in the majority, nine were Republican appointees. Among the dissenters, five were Democrat appointees and the one Republican appointment, Judge Helene M. White, was originally nominated by President Bill Clinton but not confirmed until her renomination by President George W. Bush in April 2008 as part of a deal with Democrats.
The 6th Circuit has had two prior panels issue orders in just the past two weeks on the state’s election registration system and particularly its means of notifying election boards of mismatches between voter registration information and state driver’s license or Social Security databases.
On Friday, Oct. 10, a three-judge panel issued a 2-1 decision, written by Moore, that Brunner could not be mandated under 2005 election reforms to undertake the computer matching system less than a month before the election.
Then, four days later, Oct. 14, the full court voted 10-6 to overturn the panel and ordered a list of mismatches to be supplied to the local officials, a big job considering that Ohio has been the focus of intense voter registration. About 666,000 Ohioans have registered to vote since January, according to the Associated Press.
In last week’s opinion by Moore lifting the temporary restraining order, she said the federal court intrusion into the state procession would only cause confusion. She added that the current urgency for review rests with the Republicans, who waited too late in the election cycle to bring their claim. The Republican motion for en banc review so close to the election “is nothing more than a blatant attempt of ORP to overturn the duly authorized panel’s decision to stay the district court’s order” Moore said.
In one of seven separate opinions comprising the decision, Judge Julia Smith Gibbons, siding with the majority, criticized as “breathtaking” the secretary of state’s accusation that the trial judge’s restraining order instructing her to provide a list of mismatches on registration was a “cavalier attempt to micromanage Ohio officials’ administration of this election.”