Justices toss lawsuit over new voters

Times Staff Writer

The Supreme Court came to the aid of the Democrats on Friday in the closely contested state of Ohio and threw out a lawsuit from the state’s Republican Party that sought to question tens of thousands of newly registered voters

The high court, in a brief and unanimous opinion, said the federal law that called for computer checks of new voters did not authorize private lawsuits to enforce it.

The ruling is a victory for Ohio Secretary of State Jennifer Brunner, a Democrat. She said her office had complied with the Help America Vote Act and had checked new voters against state records, including the Bureau of Motor Vehicles. The state sends a message to county election officials if a new registrant is already on the voter rolls elsewhere or if the information, such as a street address, does not match the records on file.


But Brunner fought a GOP demand to release a list of “mismatches” for all 88 counties in Ohio. She said she feared this could lead to chaos on election day if the GOP used the lists to mount last-minute challenges to new voters.

Ohio has seen more than 660,000 new registered voters this year. And for 200,000, the state had spotted a mismatch, she said. Most of these mistakes are due to faulty record-keeping, she added.

One such example came to light this week. Joseph Wurzelbacher, or “Joe the Plumber,” became a celebrated figure in the third debate between John McCain and Barack Obama. But several Ohio newspapers said his name is misspelled as “Worzelbacher” in the state’s voter files. That mismatch could have led to him being challenged at the polls if he were a newly registered voter. Such a voter could be required to cast a provisional ballot, which would be counted only if the registration was confirmed.

The Ohio lawsuit played out in the last two weeks against the backdrop of Republican charges that groups such as ACORN have turned in thousands of suspect registrations.

Reacting to the high court’s ruling, Ohio Republican Party Chairman Bob Bennett accused Brunner of “actively working to conceal fraudulent activity in this election. . . . Ohioans are right to be outraged and disgusted by her partisanship. The Democrats have proven once again they’d rather steal elections than win them fairly.”

He said the Supreme Court had ruled “on a technicality, not on the merits of the case.”

For her part, Brunner praised the court’s action and said it would “allow our bipartisan election officials to continue preparing for a successful November election. 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.”

Chris Redfern, chairman of the Ohio Democratic Party, said the high court’s decision ensures “a free, fair, open and honest election without the threat of widespread voter suppression by the GOP.”

Congress passed the Help America Vote Act in 2002 in the wake of the Florida fiasco that followed the presidential election of 2000. It required states to create a computerized database of all their voters, and said new registrants were to be checked against the state’s motor vehicle files or federal Social Security data.

Last month, the Ohio Republicans sued Brunner in federal court and said county election officials were entitled to see mismatch data on thousands of new voters who were about to cast absentee ballots.

U.S. District Judge George C. Smith agreed last week and ordered Brunner to supply the information. She balked and argued, among other things, that the state computer file of voters was set up by her predecessor, Republican Kenneth Blackwell, and it had not been programmed to turn out county-by-county reports.

A federal appeals court, in a 2-1 decision, sided with Brunner and vacated the judge’s order. But on Tuesday evening, the full U.S. 6th Circuit Court of Appeals in Cincinnati upheld the judge’s order in a 10-6 decision. All the judges in the majority except one were Republican appointees. All the dissenters were nominated by Democrats.

It was unclear what would have been done with the list of mismatches. The appellate judges said new voters would not have been knocked off the rolls because of mismatches, but it would have alerted officials to check further to make sure the voters were who they said they were.

Democrats and liberal activists said they feared the lists would enable Republicans to try to block voters from casting a regular ballot.

Brunner filed an emergency appeal to the Supreme Court, seeking to have the order lifted.

The court’s conservatives, led by Chief Justice John G. Roberts Jr., have been skeptical of the idea that federal laws give private people a right to sue the government for failing to comply. Lawyers for Ohio, defending Brunner, relied on that view in their appeal.

Although the U.S. Justice Department could try to enforce the federal voting law, they said, the law itself did not “create a private right of action” to sue the state.

The Supreme Court agreed in an unsigned opinion. “We express no opinion on the question whether HAVA is being properly implemented,” it said, but the court doubted the judge was authorized to enforce the law “in an action brought by a private litigant.”