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Justices Rules Against Ohio G.O.P. in Voting Case October 17, 2008

Posted by rogerhollander in Electoral Fraud, John McCain, U.S. Election 2008.
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by: Adam Liptak and Ian Urbina, The New York Times

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Ohio Secretary of State Jennifer Brunner attends a hearing in Columbus. (Photo: Kiichiro Sato/AP)

    Washington – The Supreme Court on Friday overturned a lower court’s order requiring state officials in Ohio to supply information that would have made it easier to challenge prospective voters. The decision was a setback for Ohio Republicans, who had sued to force the Ohio secretary of state, a Democrat, to provide information about database mismatches to county officials.

    The decision has the potential to affect as many as 200,000 of the 660,000 new voters who have been registered in Ohio since Jan. 1, according Social Security Administration and state election officials.

    The Supreme Court, in a brief, unsigned decision, said lower federal courts in Ohio should not have ordered the secretary of state, Jennifer Brunner, to turn over the information. The court acted just before a deadline requiring Ms. Brunner to act set by a federal judge in Columbus.

    A 2002 federal law, the Help America Vote Act, or HAVA, requires states to check voter registration applications against government databases like those for driver’s license records. Names that do not match are flagged. Ohio Republicans sought to require Ms. Brunner to provide information about mismatches to local officials.

    Those officials could use information to require voters to cast provisional ballots rather than regular ones. They could also allow partisan poll workers to challenge people on the lists. Given Democratic success in registering new voters this year, those actions would probably affect that party’s supporters disproportionately.

    The court said it expressed “no opinion on the question whether HAVA is being properly implemented.” But it said that Congress probably had not intended to allow private litigants like political parties to sue to enforce the part of the law concerning databases.

    Ms. Brunner welcomed Friday’s ruling from the Supreme Court.

    “Our nation’s highest court has protected the voting rights of all Ohioans, allowing our bipartisan elections officials to continue preparing for a successful November election,” Ms. Brunner said. “We filed this appeal to protect all Ohio voters from illegal challenges and barriers that unfairly silence the votes of some to the advantage of others.”

    Edward B. Foley, a law professor at Ohio State, said the Supreme Court’s action in letting state authorities handle matters in the face of a late challenge was consistent with a general premise of election law. “Federal court intervention is a last resort, even if it’s not at the last minute,” Professor Foley said.

    A federal judge in Columbus ordered Ms. Brunner to supply the information on Oct. 9, and the United States Court of Appeals for the Sixth Circuit, in Cincinnati, affirmed that decision on Tuesday by a vote of 10-to-6.

    The majority decision in the Sixth Circuit acknowledged that the question about whether private parties may sue under the 2002 law was a close one. But Judge Jeffrey S. Sutton said that question could be deferred, as what the Republican party sought was just information.

    No one argues, Judge Sutton wrote, “that a mismatch necessarily requires a voter to be removed from the rolls.” A mismatch may merely prompt further investigation, he said, one that may be satisfied with an explanation as simple as a recent address change.

    Voting experts and state election officials added that many voters were likely to be flagged erroneously because the databases used to check voter registrations were prone to errors. Most non-matches are the result of typographical errors by government officials, computer errors, use of nicknames or middle initials, not voter ineligibility, they said.

    In one audit of match failures in 2004 by New York City election officials, more than 80 percent of the failures were found to have resulted from errors by government officials; most of the remaining failures were because of immaterial discrepancies between the two records.

    Ms. Brunner had also argued that requiring so many voters to cast provisional ballots would raise tensions at the polls and worsen lines and confusion on Election Day in a year when she is expecting unprecedented turnout.

    The state Republican Party rejected those arguments.

    “Secretary Brunner has fought every effort to validate hundreds of thousands of questionable registrations,” said Ohio Republican Party Chairman Robert Bennett. “As far as I’m concerned, Secretary Brunner is actively working to conceal fraudulent activity in this election.”

    The Ohio Republican Party had said it wanted the list so that local election officials could clear up any discrepancies before Election Day and in cases where that was not possible, those voters should vote using a provision ballot. Provisional ballots in Ohio are held for 10 days before being counted while workers check eligibility, and they are often subject to partisan wrangling and legal fights.

    Friday’s decision also means that the Ohio Republican Party will not be able to make public information requests to get the data so that poll workers can raise voter challenges at the polls.

    In 2004, President George W. Bush won Ohio by a margin of about 118,000 votes. During that race, litigation over Republican plans to challenge about 35,000 voters went to Justice John Paul Stevens on the eve of the election. Justice Stevens said it was too close to the election to intervene, but he added that he expected both sides to act in good faith. The Republicans dropped plans for their challenges.

    Polling in the state shows Senator Barack Obama, the Democratic presidential nominee, with a slight lead on his Republican challenger, Senator John McCain.

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