A Bittersweet Victory for Voters

Written by Rebecca Zietlow on October 23rd, 2008

Every four years, Ohioans experience a new surge of interest in election law.  This year’s litigation has taken an ironic turn.  The Republican Party has run into a roadblock – the barriers to civil rights litigation erected by Republican nominees on the United States Supreme Court.

Two weeks ago, the Ohio Republican Party filed a lawsuit against Jennifer Brunner, the Democratic Ohio Secretary of State.  The suit asked a United States District Court to find that the Help America Vote Act (HAVA) requires the Secretary to compare the list of 600,000 newly registered voters against other government databases, and to investigate the voters whose names and addresses did not precisely match other government records.  If they had prevailed, the right to vote of an estimated 200,000 Ohio voters could have been challenged, and there would have been a real risk of chaos on election day.

The District Court ruled against the Secretary despite the fact that the Republican Party failed to show any evidence of voter fraud, and despite the fact that another federal statute, the National Voter Registration Act (also known as the “Motor Voter” Act), prohibits the removal of voters based on computer matching.  A 6th Circuit panel overturned the District Court, but in a highly unusual procedural move, a divided 6th Circuit issued an en banc opinion upholding the District Court’s order.  Written by Bush “43” appointee, Judge Jeffrey Sutton, the panel opinion was, to be kind, surprising.

Prior to his appointment to the federal bench, Sutton established his legal reputation as an advocate for restricting Congress’ power to enact civil rights legislation and make civil rights enforceable against state officials.  One of Sutton’s most important victories was in the case of Alexander v. Sandoval, a case in which the Court gutted the ability of private individuals to enforce their federal rights by imposing a highly restrictive test for determining whether a federal statute creates a private right of action, thereby making the requirements set forth in the statute enforceable by private citizens against the government.  Combined with the subsequent case of Gonzaga v. Doe, the Court’s Sandoval ruling has had a devastating impact on civil rights and other public interest litigation.

Sandoval and Gonzaga pose an insurmountable barrier for any private individual, including the Ohio Republican Party, wishing to enforce the provisions of a statute like HAVA, which governs the Secretary of State’s implementation of a variety of voter registration requirements.  Yet, in his opinion, Sutton inconceivably glossed over the private right of action issue, stating “perhaps when a statute effectively benefits everyone but no one in particular, a right of action still may exist.”  Perhaps that would have been the case had Sutton not prevailed in his role as counsel for the State of Alabama in Sandoval . . . perhaps someday in the future when we have another Supreme Court . . . perhaps when a snowball no longer melts in hell! Perhaps, indeed.

Millions of recipients of public benefits, those concerned about the environment, victims of civil rights violations and others who have suffered from states’ violations of federal law would be better off if Judge Sutton had been right.  But, thanks in large part to Sutton’s efforts as a private attorney, his Sixth Circuit en banc opinion was clearly wrong.  Secretary Brunner appealed to the United States Supreme Court, which issued a 2-page per curiam opinion vacating the 6th Circuit en banc ruling on the ground that – surprise – there was no likelihood that the plaintiffs would prevail since the holdings of Sandoval and Gonzaga precluded them from having a private right of action to enforce the requirements of HAVA.  Thus, the party that appointed the judges that closed the doors of the federal courts to civil rights litigants had those same doors slammed in their face — truly a bittersweet victory for Ohio voters.


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