October 24, 2008
The Supreme Court and the Ohio Voting caseBy Eileen McDevitt and Larrey Anderson
Why didn't the US Supreme Court uphold the order directing the Ohio Secretary of State to check for voter fraud? Conservative Justices are holding fast to the application of the doctrine of separation of powers.
The decision issued by the U.S. Supreme Court in Brunner v. Ohio Republican Party is short but not uncomplicated. The U.S. Supreme Court has issued a per curiam decision that there is no "private right" for standing to sue under 42 U.S.C. §1983 unless Congress explicitly creates that right. At least this is the rule when it is applied to conservatives. Will the rule be the same for liberals?
The courts are basically an invitation only dance -- that invitation is named "standing." The Constitution (federal or state), Bill of Rights, and/or laws created by the legislative branch (federal or state) set out which citizen has the right to sue and for what reasons.[i] For example, if you hit me, I can sue you civilly to collect any monetary damages (doctor and hospital bills), which may occur as the result of you hitting me; but I cannot sue you criminally. The state has reserved all rights (remember that word "standing") to litigate criminal acts[ii].
What the U.S. Supreme Court said in Brunner is that the Help America Vote Act (HAVA) did not contain any language that created an individual right for a citizen to sue a Secretary of State who fails to comply with the provisions or laws contained within HAVA Section 303: Computerized Statewide Voter Registration List Requirements and Requirements For Voters Who Register By Mail.
How is it that liberal and conservative Justices came to agree that this was a simple and straightforward decision that needed no review of the law or the facts in this matter?
The Help America Vote Act is a lengthy document that outlines actions to be taken by the states in federal elections to ensure greater voter access, implement universal voting guidelines, and provide state access to federal funds to be used to improve voting procedures. In order to acquire the federal funding offered through this Act, a state had to agree to implement the laws and provisions set forth in HAVA.[iii]
The part of Section 303 of HAVA, [iv] pertinent to the Brunner decision, addresses the requirement for a statewide-computerized voter registration list. A Secretary of State is mandated to create and maintain a statewide voter registration list and make that list available to local election officials. Additionally, a subsection of Section 303(a)(5) requires a Secretary of State to verify voter registration information, in particular:
US District Court for the Southern District of Ohio on October 9, 2008 determined that there was no dispute that Secretary of State Jennifer Brunner was mandated to comply with the above provision. Additionally, it was not disputed that the Secretary of State's Office had created a systems manual. The manual provided that Brunner would systemically send county election boards information of mismatches, identifying where the Bureau of Motor Vehicles (BMV) records and voter registration information did not match.
Secretary Brunner had failed to send the county election boards information of these mismatches during time she has been in office, contrary to the prior Secretary of State's directives and actions.
Secretary Brunner placed affidavits before the U.S. District Court in support of her argument that the county election boards have access to the State Wide Voter Registration Database (Voter Database) and could easily make their own determinations of voter registration irregularities in their assessments of voter fraud. However, in court chambers, it was admitted that neither the Secretary of State nor local boards could effectively use the Voter Database to determine whether or not there were mismatched records:
The district court further noted that ACORN had admitted to the to the Cuyahoga County election officials on Tuesday, October 7, 2008, that ACORN cannot eliminate fraud from its operations. ACORN has turned in at least 65,000 voter registration cards to the Cuyahoga County Board of Elections in the last year.
US District Judge Smith determined that Brunner's failure to provide useable information to county boards served to render HAVA's provisions meaningless. With unverified registrations being filed by ACORN in counties across Ohio, Judge Smith found that the votes cast by qualified voters would be irreparably harmed by the votes cast by unqualified voters.
The district court entered an Order on October 9, 2008 and a Temporary Restraining Order on October 10, 2008, both directing Brunner to comply with the federal HAVA laws. She was ordered to check with the BMV and Social Security for mismatches, to create a database of mismatches, and to create a means by which local county boards could have access to the mismatch information.
In the district court, Brunner had asserted that the Ohio Republican Party did not have standing to bring a lawsuit against the Ohio Secretary of State's Office. The district court found that the Ohio Republicans had a right to bring a cause of action under 42 U.S.C. §1983.[vi]
This decision was not without precedent. In 2004 the Sixth Circuit Court of Appeals had ruled in favor of the Ohio Democratic Party in Sandusky County Democratic Party v. Blackwell, 387 F.3d 565 (6th Cir. 2004). The court found that there was an individual right ("standing") to sue to enforce HAVA laws. The Sandusky case dealt with the issue of provisional ballots. The circuit court determined that the HAVA language giving each individual a right to a provisional vote supported a §1983 cause of action -- "standing" for individuals to file a suit.[vii]
The Sixth Circuit Court of Appeals affirmed the district court's Brunner decision.[viii]
On appeal to the Sixth Circuit, the Secretary of State argued that there is a distinction in Sandusky that should result in a different decision for the Ohio Republican Party's claim that it had standing to bring a lawsuit against Secretary Brunner. Unlike a stated individual right for a provisional vote in Sandusky, the mandatory requirement that the Secretary of State's Office match and verify voter registration does not identify a particular individual or express group of individuals.
The Sixth Circuit Court of Appeals decision discusses at length Secretary Brunner's argument that the Ohio Republicans did not have standing to sue the Secretary of State under HAVA. The focus of the discussion is the U.S. Supreme Court decision in Gonzaga University et al. v. Doe. [ix]
Gonzaga was a 7 to 2 decision.[x] The Court reviewed prior Title 42 §1983 decisions determining when an individual could bring a §1983 action.
The prior "notion," that an individual seeking to bring a §1983 action had merely to make a showing that he or she fell within a general zone of interest intended to be protected under federal statute, was soundly rejected by the Supreme Court in Gonzaga. The Court held instead that a plaintiff must prove that the language and structure of the federal statue clearly shows that Congress intended to create an individual remedy:
In reaching its decision in Gonzaga the U.S. Supreme Court took the prior standard for §1983 actions[xi] and melded it with the standard for implied right of actions cases,[xii] creating a two prong test for the determination of whether there is individual standing to sue:
1) Congress must have intended to create a federal right for the plaintiff and
2) The federal statute must manifest an intent "to create not just a private right but also a private remedy."
In other words, to determine whether a private individual has standing to sue when he or she believes a federal statue has been violated, a court must examine the entire statue and determine (1) whether or not Congress has spelled out a right and (2) whether or not the statue provides or discusses a remedy.
In rendering its judgment in Gonzaga, the majority found that the federal statute in question did not identify a particular individual right. Rather, the statute addressed institutional policy and practice; did not have any language that created express rights; and, finally, the statute provided for administrative procedures for violations.
It was with this background that Brunner came before the U.S. Supreme Court. Chief Justice Roberts had represented Gonzaga University in the Gonzaga case and Justices Kennedy, Thomas, Breyer and Souter had supported the decision in Gonzaga.[xiii]
Brunner involves a federal statute that does not have language creating individual rights, is directed to the Secretary of State, provides for enactment of state grievance procedures, and authorizes the Attorney General to take criminal action for violations. There is nothing that serves to distinguish Brunner from Gonzaga.
In summary, before the U.S. Supreme Court decision in Gonzaga it was possible for an individual to get into the dance (have "standing") without an invitation if a majority of the justices liked the looks of the case ("falls within a general zone of interest.") The decision in Gonzaga served to restrict the dance to an invitation only event. If Congress didn't write into legislation an express invitation, the Supreme Court has said the individual cannot attend.
Does a per curiam decision mean that the Court is in agreement?
Is access to federal courts and individual causes of action under federal statues limited to federal statutes where Congress has expressed an explicit intent to grant an individual remedy?
We generally recognize this as the separation of powers. The conservatives on the Court are holding to this principle even when it denies access for claims made by the Republican Party.
HAVA is not the only federal law where the "text and structure of a statute provide(s) no indication that Congress intends to create new individual rights." Will the "right" test be unanimously applied when a liberal special interest group seeks to address a perceived grievance ... without an invitation from Congress to the dance?
Eileen McDevitt is a retired lawyer. Larrey Anderson is a philosopher and writer. Both can be reached at ldandersonbooks.com.
[i] There are also administrative and municipal laws that may be enacted; but this article's focus is on the impact of the Brunner decision and not a discussion of the separation of powers or of the delegation of powers.
[ii] Again, this is not a legal treatise, so there is no discussion of private attorney general actions allowed in some states.
[iii] HAVA does not provide for an individual remedy under its funding provisions. In other words, if a state accepts the federal money provided in HAVA, the act does not contain language that provides for an individual to sue to enforce any violations of HAVA by the state.
[v] Brunner had put into evidence (affidavits) that the Voter Database was working, but the issue was whether the cross correlation, the verification of accuracy, was both functional and accessible. It was not. One of Brunner's later assertions was that this had been disabled by the prior Secretary of State. I have not located any documentation as to why, in the last two years, Brunner had not repaired or reactivated that part of the Voter Database program.
[vi] A § 1983 claim is, for lack of a better definition, a catchall statue that allows individual people to sue for violations of federal laws. To have standing for a §1983 claim, one must satisfy two elements: "1) the deprivation of a right secured by the Constitution or laws of the United States and 2) the deprivation was caused by a person acting under color of state law."
Following is the district court's finding regarding Ohio Republican's standing for a §1983 claim: "Based upon this information, it is clear to the Court that Defendant is not in compliance with HAVA, which requires matching for the purpose of verifying the identity of the voter before counting that person's vote. As Plaintiffs have argued, the State is not verifying the voter registration information for entries when there is a mismatch, and the county boards of elections are not able to investigate the mismatches to determine voter eligibility because they have no effective way to identify or isolate the mismatches from the rest of the pile. Under this system, HAVA's matching and verification requirements serve no identifiable purpose and are rendered meaningless. Though not every mismatch uncovered by the matching system will reflect voter fraud, there is a possibility that some mismatches will reflect voter fraud. Therefore, the verification process contemplated by HAVA is necessary. Plaintiffs have therefore demonstrated a likelihood of success on the merits that Defendant is not conducting the matching and verification process in accordance with HAVA."
[vii]The lawsuit brought by the Democrat Party was not reviewed by the U.S. Supreme
After the per curium decision in Brunner, it is questionable whether Sandusky County
[viii] The Circuit Court's second in a three part refutation of Secretary Brunner's factually based objections follows:
"The Secretary also argues that running such a program at this stage could create other problems for the election. Here, too, her argument raises more questions than it answers because she again never explains why this is so, much less supports her position with affidavits from someone who would know. The past practices of the Secretary's office -- in providing the kind of information to the county boards before -- again suggest that she can mitigate these risks in the same ways she mitigated them before. And if for some reason that is not the case, she has not explained why the TRO does not require relatively modest adjustments to the program -- one of which would filter the data to identify mismatched records and one of which would capture the mismatches for each of the 88 counties in the State. As for risks to the database when it comes to other uses of the system during the election, it is not clear why running a report or copy of the database before making these adjustments would not compartmentalize, and thereby eliminate, any risks to the SWVRD [State Wide Voter Registration Database.] But if all of these things are exceedingly difficult for the Secretary, or worse if they would create a meaningful risk of harm to other parts of the database at this stage in the year, she needs to explain why rather than allowing her attorneys to speculate why. The record on all of this is ear-splittingly silent -- all the more conspicuously so given that it is the key risk of harm identified on the Secretary's side of the case and it is the one risk that must be balanced against the risk (come October 25) of allowing potentially fraudulent votes to be forever counted."
[x] It was authored by Justice Rehnquist, with Justices O'Connor, Scalia, Kennedy, and Thomas joining in Rehnquist's opinion and Justice Breyer writing a separate concurring opinion in which Justice Souter agreed. Justice Stevens filed a dissenting opinion, in which Justice Ginsburg joined.
[xi] "Section 1983 provides a remedy only for the deprivation of ‘rights, privileges, or immunities secured by the Constitution and laws' of the United States. Accordingly, it is rights, not the broader or vaguer ‘benefits' or ‘interests,' that may be enforced under the authority of that section."
[xii] "(S)tatute is enforceable under implied right only where Congress ‘explicitly conferred a right directly on a class of persons that included the plaintiff in the case.'"