October 16, 2008
The Right to an Undiluted Vote
UPDATE, 10/17, 2:04 p.m. ET: The Supreme Court today in a short per curiam opinion granted the secretary of state's application for a stay and vacated the district court's TRO. The Court wrote, "Respondents . . . are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce [the HAVA] in an action brought by a private litigant to justify the issuance of a TRO." The Court expressed no opinion on whether the secretary of state properly implemented the HAVA.
Between the Court's decision last term in Crawford v. Marion County Election Board and the spate of litigation around voter registration and voting practices in the upcoming election, we're seeing the emergence of a new and powerful Right to an Undiluted Vote. This "right" belongs to those who are already properly registered to vote; it protects the strength of their vote against dilution by fraudulent and illegal voters, but also by fully eligible citizens who simply lack the proper i.d. (as in Crawford) or whose voter registration information doesn't match their motor vehicle information (because of changes in names and addresses, clerical errors, and the like). This right is so strong that it apparently hangs on bare and unsubstantiated claims of voter registration fraud (let alone allegations of the more serious voter fraud). Indeed, it is so strong that it may rival or even trump the more conventional Right to Vote. We shall see: The litigation in this election cycle seems primed to pit the Right to an Undiluted Vote directly against the Right to Vote in a way that will test the relative strength of each.
The latest case comes from Ohio, where the en banc Sixth Circuit in Ohio Republican Party v. Brunner just last week reinstated a district court's temporary restraining order requiring the secretary of state to provide all county boards of elections information on voter applicants whose voter registration information does not match their motor vehicle information. The plaintiff-appellee, the ORP, claimed that the secretary of state's procedure for comparing voter information in the state's voter registration database with information in the state's motor vehicle database, and for not reporting specific discrepancies to county election boards, violated the Help America Vote Act. (The ORP also claimed violations of Article II, Section 1, Clause 2 of the U.S. constitution; section 2 of the Voting Rights Act; the National Voter Registration Act; and the Equal Protection and Due Process clauses.) The ORP alleged that the secretary of state's process would lead to voter registration fraud and infringe upon properly registered voters' right to (an undiluted) vote. The case took on greater import when the secretary of state opened a week-long window in which Ohioans could register and vote (absentee) the same day.
But the ORP had no evidence of voter registration fraud resulting from the secretary of state's process. In fact, the district court could only draw on newspaper reports (here and here) of flaws with ACORN's mass registration drives for "specific examples" of irreparable harm to voters' undiluted votes. (The Sixth Circuit majority wrote, "The harm to the plaintiffs is evident from the nature of the claim they assert; they can hardly be required to show actual vote fraud to establish irreparable harm when the county election boards lack the means to detect any fraud that may exist.") But as the dissent pointed out, evidence from other states showed that mismatches resulted mostly from human error, not fraud, and, disturbingly, that mismatches more frequently bar non-white voters than white voters.
In short, ORP claimed a constitutional and statutory Right to an Undiluted Vote based on bare and unsubstantiated evidence of voter registration fraud. And it won (at least for now). But what happens when properly registered voters lose their votes (or get hassled out of their votes) because of a clerical error between the voter registration database and the motor vehicle database? Then we'll see how the Right to an Undiluted Vote fares against the more conventional Right to Vote.
We already have a glimpse of the answer: Crawford pitted those rights against each other in a different way, and the Right to an Undiluted Vote won. And so here's the ironic penultimate chapter in Brunner: the secretary of state's Application for a Stay of a Temporary Restraining Order to the U.S. Supreme Court (and the ORP's Opposition) goes to Justice Stevens (as Sixth Circuit justice), the author of the lead opinion in Crawford.
I'll post updates on the Con Law Prof Blog in this and related cases.
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