A 6th Circuit Slapdown for GOP on all counts, but one Slapdown for Transparency too

[Land Shark]

Early Voting in Ohio UPHELD, PollingPlace OBSERVERS for early Voting Slapped Down

Count 2 wins for SOS Brunner, but 1 win and 1 loss for Democracy

About an hour hour ago, (thanks to DUs Breaking News for the link) the NYT reported that the 6th Circuit Federal Court of appeals denied the Ohio GOPs appeal on all counts.

However, the trial court had granted in part and denied in part, and in one other part didn't reach the issue... It UPHELD Sec. of State Brunner's early voting, including same day registration for early voting in a victory for democracy, but it also struck down the trial court's allowance of polling place observers for early voting, upholding Brunner's policy but constituting a reversal of a win for democracy in the lower court's ruling.

The GOP's lawsuit was concerning a disputed early voting window that allows Ohio voters to register and cast a ballot on the same day. At the very least, the GOP wanted those ballots segregated, but that request was also denied. Since segregation wasn't truly needed, score one for democracy.

But the 3 judge 6th Circuit Court of Appeals panel also slammed election transparency in the next breath -- while also defeating the GOPs request.

While the lower court didn't reach all the issues decided by the 5th Circuit panel, the part the lower court Granted seemed to me to be an unqualified good thing, and a reasonable request well-founded in law.

Sadly, the 6th Circuit panel REVERSED the trial court's TRO that required, (against SOS Brunner's express policy that denied this right) polling place observers be allowed to observe early voting.

The trial court had ordered poll observers to be allowed in the name of election integrity (basically) and specifically alluded to the fact that in no way did observers burden the right to vote, it only inconvenienced (at best) the state, and increased the chance of a fraud-FREE election.

But the Court of Appeals claimed this pro-transparency lower court ruling sought and won by the GOP was an "abuse of discretion." Unbelievable.

The New York Times Summary on this Issue:

The appeals court also gave Brunner a second victory, rejecting a GOP challenge to her advisory that county boards of elections weren't required to allow poll observers during early voting.

A federal judge in Columbus issued a temporary restraining order against Brunner's instructions Monday. But the appeals court overturned that ruling, saying the district court had abused its discretion in granting the order.

http://www.nytimes.com/aponline/washington/AP-Ohio-Early-Voting.html?_r=1&oref=slogin

Two Big Victories for Brunner, but one clear Defeat for Democracy,

Same day registration and voting, with proper ID, is ok and practiced this year in 9 states, even on Election day itself. But wherever there is voting, its hard to justify denying the right of the parties to observe it, just like on election day.

More ominously, the unequal treatment of early voters vs Election Day voters, and the refusal of the 6th Circuit to segregate the ballots, sets up an opportunity for the US Supreme Court, citing Bush v. Gore, to void out the Ohio results -- if they go a certain way the US Supremes don't like. On the other hand, of course the GOP won't appeal and the Supremes won't hear the case, and this scenario won't happen.

You'll probably hear more from me on this, but OPTION is the election law concept for 2008. The US Supreme Court has a whole series of options that it can exercise, or NOT exercise, in order to knock out the electoral college votes of specific states.

Here's one way they can kill Ohio, if Obama wins. If you doubt that the US Supremes won't terminate an election, you've forgotten Florida 2000 and Bush v. Gore, terminating the election during the recount. If you think a political decision can't be made to not allow electors to be seated, you've forgotten the Dem objections to OHio in 2004. If you think the Republicans can't play the same game, but with their strict rule of Bush v. Gore and a friendly Supreme Court on their side, and knock out a state's votes or electoral college delegates, my friend, you're sleeping through history and election law and all the news these last 8 years.

As I wrote in the book "Loser Take All" (Mark Crispin Miller, ed.) there's also an easy California scenario as well. I don't get a penny of royalties for the book, so read the book. I'm going to ask the publishers if i can distribute copies of my own work or not. You can ask if you'd like a copy, then I'll send, if I can. But if you can afford the book, please buy it. No money to me.

More later.

On edit: HINT: IF the US Supreme Court decides NOT to hear a case, that's not "staying out of politics" at all -- that's saying "we're ok with the status quo" -- and can be just as momentous as taking a case and deciding a Bush v. Gore

[midnight]

1. Hi Landshark..... So glad to hear from you about concerning the

election issues. Van Hollen A.G of Wisconsin is having his office calender looked at because of his direct tie in with McCain. Van Hollen is Co-chairman of Wis. Rep. party, and after a number of GOP meetings he filed a law suite to sue the Gov. Accountability Board. It is an odd case because the Attorney General also has two cases that he is working on for Gov. Accountability Board. Attorney Lester Pines was hired by Dem. Gov. Jim Doyle to look into this matter. Initially Pines states to sue a client is a conflict of interest. Attorney General says he wants a flawed data base to decide if votes from two groups are abusing the system, the deceased, and the felons. Things have been put on hold by judge until next month.

I would love to read what you wrote in "Loser Take All". Let me know if your able to distribute. When I feel like having a Halloween scare I'll read it. I only wish I could forget these last eight years compliments of Katherine Harris, and that friendly Supreme Court.

[Peace Patriot]

2. Hey, Landshark, I know you're busy with vital work, but could you re-state this

situation more clearly. I'm confused about what Brunner advocated, what the GOP attacked, what the lower court ruled and what the appeals court ruled, overruled or didn't rule on.

The one thing that seems pretty clear to me is that the GOP challenged early voting (right?) that Brunner was implementing, and the trial court and the appeals court both upheld early voting. (Right?)

But the other points are more confusing. Did Brunner advocate poll watchers for early voting, or not? Why wouldn't she want poll watchers? That was a GOP position (pro-poll watcher?, i.e., so they could challenge lots of Dem votes, intimidate, riot if necessary, to knock down the Dem totals)? And I'm confused on the segregating the early vote thing? GOP wanted it? Brunner didn't? Appeals court agreed with Brunner? Early votes should NOT be segregated, right? (--the pro-democracy position?)

Thanks for this post, and for all your work! Clarify only if you have time.

:patriot:

[Land Shark]

4. here's the nutshell

1. Brunner would not allow observers during early voting. Trial court reversed, saying necessary to election integrity (w/o using that term, precisely). 6th Circuit reversed, agreeing with Brunner, finding trial court's order that observers be allowed was an "abuse of discretion."

2. Brunner is running early voting, including same day registration, thru October 6, starting today Sept. 30. GOP challenged it. GOP shut down and Brunner's policy upheld.

3. Related to early voting, GOP wanted ballots segregated, as a backup position, in case there were problems with those votes. REquest denied. Brunner position upheld.

So, I agree with brunner, and the court, on 2 and 3 above, but not on 1. If there's going to be casting of votes, there ought to be observers.

[Peace Patriot]

5. Thank you, LandShark! And thank you for all your work!

:grouphug:

[Wilms]

3. Thanks LS.

Please help me to better understand the one ruling that didn't go as well as you would have liked.

[farmbo]

6. "Transparency?" No way... the GOP wanted "observers" so they could cage-challenge

You wrote:
'Sadly, the 6th Circuit panel REVERSED the trial court's TRO that required, (against SOS Brunner's express policy that denied this right) polling place observers be allowed to observe early voting.'

Actually, the 6th Circuit upheld SOS Brunner's position. The GOP "observers" were going to be paid lawyers there to intimidate minorities and check all democratic voters against their caging lists.

A Great Legal victory for Brunner's beleaguered legal team!

Keep up the good work!

:beer:

[Land Shark]

7. one can spin "observers" as nasty challengers, BUT

the fact is, it would HAVE to allow observers from all parties, not just one, so there would also be Democratic Party observers there to protect voters from unlawful challenges. That's how I got involved, as an attorney, at a polling place in 2004 -- to make sure the law was followed. ANd it wouldn't take many at all, there are very few early voting sites per county....

One can't, from a democracy perspective, celebrate the lack of observers/challengers/whatever during voting, because what's left is the government determining its own power and composition (as is the very nature of elections) without any observation over time... One can, as a fan of Brunner, celebrate this win, but it blinds us to the weakness. Though it was a GOP suit, it doesn't mean everything they say is wrong. In fact, they may strategically put in a good claim, just to have it struck down in knee jerk fashion. Perhaps that happened here, leading to the Supreme Court problem alluded to above.

In fact, the ONLY way to create a reliable election result, is to have people that distrust (and therefore, occasionally challenge) each other, watching each other like hawks. Distrust then leads to accuracy, just as the adversarial interests of the bank teller and the customer, each trying to catch errors in the other (or at least the customer is) is more accurate than any machine.

the 6th Circuit order removes the checks and balances on elections, and substitutes trust. But our system is based on checks and balances.

Abusive challengers exist, race-based challenges exist. But laws exist to stop or prosecute that. And trained Dem observers would prevent it.

[Land Shark]

8. Note: Above NYT link no longer goes to same story

and my search on words "appeals court also gave Brunner a second victory" returned the result "did not match any documents" "since 1851". I'll see if I can find a new link. This was originally posted on DU in breaking news now it's moved location, or is gone.

on edit: yahoo picked up what appears to me to be the exact same text at
http://news.yahoo.com/s/ap/20080930/ap_on_el_pr/ohio_early_voting_21

[Land Shark]

9. Here's the language the court used to deny observers under Voting Rights Act claim

Even assuming arguendo that Plaintiffs’ interpretation of Ohio law is correct and that observers should be permitted, we believe that Plaintiffs have little likelihood of success on the merits of a VRA claim based on these allegations. We are aware of no case—and none was cited in the Plaintiffs’ motion—in which a VRA claim has succeeded based on allegations that state-law authorized observers were unlawfully excluded from a polling facility. Given the absence of any authority for a successful VRA claim based on facts similar to those alleged by the Plaintiffs, we conclude that this claim would have little likelihood of success on the merits. Because we believe this factor is dispositive, we need not address the other three factors for determining whether to grant a TRO or preliminary injunction. See, e.g., Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir.), cert. denied, 534 U.S. 951 (2001).

So, the court first said, well, we can only rule under federal law. Then they said the Voting Rights ACt was the only federal law cited that might support observers, then said they knew of no support under the VRA for poll observers. But there is language suggestive of observers, at least, in the VRA. I don't think this issue was briefed well, but i've not finished reading all the briefs (and below there were several amicus briefs as well)

[OakCliffDem]

10. Kick