Earlier tonight we told you
about a lawsuit filed by the McCain campaign that seeks to ensure that military ballots not received until after the election are counted in Virginia. Election law expert Rick Hasen writes on his blog
that he's now had a chance to look more closely at the suit, and here's his take:
I think there's a strong argument that because of the long delay the suit could well be barred by laches.
More fundamentally, the suit under UOCAVA may be barred for the same reason the Ohio mismatch case failed at the Supreme Court-- there's no private right of action: 42 USC Sec. 1973ff-4 Enforcement: The Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as may be necessary to carry out this subchapter." The McCain campaign likely doesn't have standing to bring this suit; only DOJ does (and don't count them out!).
So it's by no means clear that the suit will even be heard on its merits. But we're likely to hear more on this...