The Supreme Court a short time ago vacated a temporary restraining order issued by a federal district judge in that big Ohio voting rights case. The TRO had required the Ohio Secretary of State to identify mismatches between information on new voter registration forms and state DMV records and provide those mismatches to county election officials.
As we’ve been reporting this week, the GOP brought the lawsuit as part of its strategic effort to disqualify voters in swing states. Once the mismatches are identified, the process of trying to disqualifyvoters can begin. By one estimate, one-third of the voters who registered this year in Ohio might have such mismatches, some 200,000 voters. Mismatches include things like … typos.
The district court initially sided with the GOP, a three-judge appeals panel overturned the district court, then the entire 6th Circuit Court of Appeals took up the case and upheld the district court.
On one level it’s surprising anytime the Supreme Court takes up any one case simply because they don’t step in very often, especially in election cases (with notorious exceptions), especially on an issue that has not been previously heavily litigated. But it’s less surprising how the court came down here.
It didn’t address the merits of the case per se (although in some ways the court’s ruling goes straight to the merits). Rather, it found that the GOP was unlikely to prevail on the issue of whether the Help America Vote Act (the law at issue here) allows private citizens or groups to sue to enforce the law. If the law doesn’t create a so-called private right of action, the GOP has no standing to sue in the first place. Likelihood of prevailing on the merits is a key criteria for taking the extraordinary step of granting a TRO. Since the justices thought the GOP would ultimately lose on that argument, they vacated the TRO.
Now, I’ll be curious to see where the GOP goes from here. There’s not enough time to pursue this case on the merits before the election. So as a practical matter it may kill the case in Ohio entirely. But perhaps more importantly, it puts a stop to the GOP or any other private party gumming up the works over the next 18 days by filing similar cases in courts across the country.
Late Update: As I intimated above, the court’s decision on private right of action was not surprising. TPM Reader GS explains why:
Thanks for the quick update on the Supreme Court decision.
It’s always surprising when the Supreme Court takes what seems to be a position favorable to Democrats on voting issues. But it’s worth keeping in mind that while the immediate consequences of the decision are good for Ohio Democrats, the long-term consequences may be different. Any time the Supreme Court curtails standing or limits private rights of action, they are limiting the ability of private people, such as civil rights litigants, to enforce legislation. There may be some value to limiting these rights in election cases, given that these issues in particular could be particularly vulnerable to political (i.e. Dem v. Repub.) lawsuits. But as a general matter, the 25-year erosion of standing and private right of action has had pretty negative results for civil rights litigants.
For example, in 2001, the Court, in a 5-4 decision written by Scalia, decided that there is no private right of action in Title VI disparate impact cases. The case, Alexander v. Sandoval, involved the right to drivers’ license examinations in one’s native language; plaintiffs argued that the failure to accommodate non-English speakers resulted in disparate-impact discrimination based on national origin. The Alabama district court and the 11th Circuit, no paragons of progressive thought, ruled for the plaintiffs; the Supreme Court reversed, saying that the relevant section of the Civil Rights Act did not provide for a private right of action. This means that the only way to enforce this type of civil rights violation is through action by the Department of Justice. Maybe this is somewhat tolerable when there is a Democratic administration interested in enforcing civil rights. But it’s useless in a Republican admininstration devoted to setting those rights back.
So: no matter how glad we may be about Brunner case, we might want to stay worried about the principle of the case overall.