Tuesday, October 21, 2008

Back to Ohio

My latest FindLaw column praises the Supreme Court for its per curiam in Brunner v. Ohio Republican Party. The Court acted in a principled way, I say, by applying the very restrictive law on implied rights of actions for private parties to sue to enforce Acts of Congress. For the most part, that restrictive doctrine has been the brainchild of conservatives, and so it is nice to see the Court applying it even-handedly against the Republicans.

Here I want to say a word about the merits of the underlying lawsuit, which I describe in the column. (If you haven't read the column, you'll find the rest of this post hard to follow, so go read the column!) After all, the Supreme Court's ruling that private parties can't sue to enforce a particular provision of the Help America Vote Act (HAVA) does not mean that the Ohio Secretary of State isn't under a duty to comply with HAVA.

Here's the puzzle: The Motor Voter law says that state election officials can't systematically purge voter rolls within 90 days of an election, but HAVA says the relevant state official should compare new registrations with motor vehicle records. Meanwhile, the voting registration deadline in many states is less than 90 days before an election. How to reconcile HAVA and Motor Voter?

Ohio Secretary of State Brunner says that her duty to compare voter registrations with motor vehicle records doesn't include a duty to share the results with county-level election officials, but the Republicans argue that this makes the comparison pointless. That seems overstated. The comparison could serve an in terrorem effect. People who know that their registrations will be checked against motor vehicle records could worry that, as a result, deliberate falsehoods in their registrations will be found and possibly prosecuted. That in turn could encourage honesty in registrations.

Still, the Republicans have a point that the purpose of the contested provision of HAVA does seem to be actually to catch ineligible voters before they vote. Given that HAVA was a compromise, and given that Republicans wanted this provision to prevent what they regard as voter-level fraud, it does seem plausible to suppose that state officials are supposed to do something with the registrations that don't match motor vehicle records before the election. I suppose one could say that giving mismatched names back to county election officials for removal does not count as a "program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters," and is thus not forbidden by Motor Voter. One would have to argue that this would not be "removing" names but simply failing to add them. Still, that is a strained reading of Motor Voter.

Another possibility is that HAVA partially repeals Motor Voter by implication, but standard canons of statutory construction disfavor repeal by implication.

Bottom Line: It is by no means clear what the duty of state officials like Secretary Brunner is under HAVA. If this were a federal law imposing a duty on federal officials, it might be appropriate to give those federal officials deference under Chevron. However, while the notion of federal law conferring discretion on state-level officicals is not unheard-of, Chevron itself does not directly apply. Therefore, Secretary Brunner may as a practical matter have discretion to decide how to comply with HAVA (because no one can sue to tell her otherwise), but if a case ever reaches the federal courts in which her judgment is challenged, she may not get any deference.

Posted by Mike Dorf


jim fischer said...

Your findlaw column suggests that states are obligated to count provisional ballots. My understanding is that there is no such requirement, but no cases have addressed the point, so I suppose there is room for debate. Given the Court's decision in Brunner what remedies does a voter have if his or her provisional vote is not counted. Brunner suggests, doesn't it, that there is no private right of action to contest the election official's decision not to count the provisional ballot. Given the partisan make up of election officials in the country, Brunner may turn out to be a two-edged sword.

Paul said...

Brunner only suggests that the issue of a private right of action is too questionable to survive the "reasonable likelihood to win" standard of a TRO. It may be that a private right of action will be found should the ORP continue the suit.

Michael C. Dorf said...

In response to jim fischer: Section 302(a) of HAVA sets out the right of voters to cast provisional ballots. Because this provision uses language that focuses on individuals, courts would be more likely to find that it confers a right that is enforceable via a private right of action.

Paul is right, of course, that technically last week's case only decides the "likelihood" issue, but this issue is a pure issue of law, and so absent further guidance from the S Ct, I'd be very surprised to see a lower court finding that, after full consideration, there is a private right of action.

egarber said...

I've got a stupid question:

Suppose a state official did indeed clearly violate the statute. Who would have proper standing to bring suit? How would that work? Would it be a federal monitor?

I should know this but alas, I'm not a lawyer :)

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