Ohio SecState Jennifer Brunner Viciously Smacked Down By 6th Circuit

6th Circuit reverses on TRO; requires Ohio Secretary of State Jennifer Brunner to do her job:

At a minimum, [HAVA] requires the Secretary of State, together with the head of Ohio’s Bureau of Motor Vehicles (“BMV”), to agree to “match” information in BMV’s database with information in the Statewide Voter Registration Database (“SWVRD”). No one disputes that the purpose of this matching is “to enable [officials] to verify the accuracy of the information provided on applications for voter registration.” Id.

And no one disputes that the Secretary of State has put together an SWVRD System Manual, which is designed to implement these obligations.

According to Brunner’s own manual:

According to the Secretary of State’s manual, that office at one point implemented §15483(a)(5)(B)(i) in this way: first, if there was not a match between the Secretary’s and BMV’s records, the Secretary would send the county boards of elections a message indicating that the voter’s registration record cannot be “confirmed”; second, after that happened, the Secretary required unconfirmed voter records to be updated and resent to the Secretary for another effort to validate them with the BMV records.

That Jennifer Brunner stopped doing her job, as described in her department’s own manual and at one time performed by her, is indisputable:

The apparent “tum[ing] off’ of this voter-registration-verification process, or at least the discovery that it had been turned off, prompted this dispute. For reasons that the record does not reveal and at a time the record does not reveal, the Secretary of State apparently chose to deactivate at least part of the process, if not all of the process, described in section 15.4 of her manual. In particular, she concedes that at some point she stopped communicating with the county boards about mismatches and stopped renewing validation requests with the BMV after obtaining a mismatch.

Perhaps it was after Barack Obama’s vote of confidence – or maybe it’s how she earned that appreciation:

“Well, I tell you what, it helps in Ohio that we’ve got Democrats in charge of the machines,” Barack Obama said on Sept. 3.

In any event, her failure to do her job caused a temporary restraining order to be issued:

This dispute and several others apparently grew out of the Secretary’s August order to allow simultaneous registration and voting for six days in Ohio in late September and early October. In resolving today’s dispute, the district court on October 10,2008, entered a temporary restraining order (“TRO”) directing the Secretary to ensure that “HAVA’s matching requirements are not rendered meaningless” and to do so either by providing lists of mismatches to the county boards of elections or by providing the county boards of election with amethod to search the SWVRD so that they “can isolate and review the mismatches and take appropriate action.”

That Temporary Restraining Order was reversed, and now has been reversed again so that she is required to do her job, as described in her own manual; to check to see that voter registrations are legitimate and share that information.  The court addresses Brunner’s previous request to stay the TRO:

There are three problems with the Secretary’s request to stay the district court’s TRO. In the first place, her interpretation of 5 15483(a)(5)(B)(i) is not convincing. The key likelihood-of-success inquiry is this: does the provision permit the Secretary only to identify matches on the database (and effectively keep them to herself or, as plaintiffs put it, “throw them in the trash,”Resp. to Emergency Mot. at 12), or does it require her also to verify the registration mismatches either by doing the verification herself or in cooperation with the county boards of election? So far as this record is concerned, the Secretary has given no tenable explanation why her current interpretation of the statute, as opposed to the office’s prior implementation of the law, remotely furthers the anti-fraud objective of the law.

That’s going to leave a mark.  But not nearly as much as this will:

The Secretary also argues that running such a program at this stage could create other problems for the election. Here, too, her argument raises more questions than it answers because she again never explains why this is so, much less supports her position with affidavits from someone who would know. The past practices of the Secretary’s office in providing this kind of information to the county boards before-again suggest that she can mitigate these risks in the same ways she mitigated them before. And if for some reason that is not the case, she has not explained why the TRO does not require relatively modest adjustments to the program-one of which would filter the data to identify mismatched records and one of which would capture the mismatches for each of the 88 counties in the State. As for risks to the database when it comes to other uses of the system during the election, it is not clear why running a report or copy of the database before making these adjustments would not compartmentalize, and thereby eliminate, any risks to the SWVRD. But if all of these things are exceedingly difficult for the Secretary, or worse if they would create a meaningful risk of harm to other parts of the database at this stage in the year, she needs to explain why rather than allowing her attorneys to speculate why. The record on all of this is ear-splittingly silent-all the more conspicuously so given that it is the key risk of harm identified on the Secretary’s side of the case and it is the one risk that must be balanced against the risk (come October 25) of allowing potentially fraudulent votes to be forever counted.

And this lawsuit isn’t just gameplaying before an election. It’s likely to go to the Supreme Court. Brunner was far out of bounds and this needs to be resolved:

In enacting the matching-and-verification requirements, Congress did not merely express an aspiration that state officials would cooperate in sharing information; it mandated that they “shall enter into an agreement to match information” for the purpose of “enabl[ing] [the officials] to verify the accuracy of the information provided on applications for voter registration.” 42 U.S.C. 5 15483(a)(S)(B)(i) (emphasis added). The statute thus imposes binding, enforceable duties on the Secretary that do not “strain judicial competence.”

The smackdown continues in Julia Smith Gibbons’ concurring opinion:

As the Secretary notes, she requested an evidentiary hearing before the district court, which the court denied. This is a typical ruling in situations involving the issuance of a temporary restraining order; permitting an evidentiary hearing would be atypical. The parties did, however, have the opportunity to submit affidavits and make arguments to the district court. As far as I can tell, the Secretary submitted no affidavits relating to harm to her in carrying out her duties or the public interest.’ And her counsel’s oral arguments to the district court did not emphasize the harm point to any great degree. When questioned about how long compliance with plaintiffs’ requested relief would take, counsel said vaguely that it could take several days or “may take longer.’” He noted no problems with carrying out the election otherwise as a result of reprogramming to provide the relief sought. The district court’s reading of the situation was that the parties might well be able to agree to a consent decree. Although that did not occur, obviously, the Secretary’s position in the district court gave no hint that ordering the requested reprogramming would impede the electoral process.

Before this court, however, the Secretary blasts the district court’s action, saying it acted “recklessly” and that its “cavalier attempt to micromanage Ohio officials’ administration of this election is breathtaking.” She complains strenuously about creation of disorder and offers speculation about “hidden dangers” of reprogramming, without any evidence or even proffer of what the dangers might be from anyone who knows anything about the database. And she raises the point, not discussed at argument in the district court, that it is simply too late for court intervention.

I believe she was counting on the idea that it was too late.

The panel majority, while professing disapproval of the district court’s failure to engage in fact finding, adopts the Secretary’s assertions in her brief on appeal without scrutiny, thus by indirection accepting them as facts. This adoption directly leads to a conclusion that the district court abused its discretion in the balancing of harms, a conclusion that is unsupported by anything that transpired in the district court.

The district court was faced with a situation in which the harms to plaintiffs seemed great, and the harms to the Secretary amounted to some programming of uncertain magnitude. Based on the Secretary’s representations in the district court, the only public harm at issue was that asserted by the plaintiffs. There was no suggestion and certainly no evidence that granting the plaintiffs’ request might disrupt the electoral process or harm the public in any way.

The dissenters Moore, Martin, Daughtry, Cole, Clay are all Democratic appointees.  Martin was appointed by Carter, the rest by Clinton.  Only one dissenter, White, was appointed by a Republican – GW Bush.  Interestingly, Martin complains that Batchelder did not recuse herself.

What I want to highlight is something legitimately troubling, especially compared to what Judge Griffin found so “troubling” in his panel dissent.

What I find troubling is the fact that Judge Batchelder did not recuse herself from voting for rehearing this case en banc, while her husband stands for reelection this year as a state representative in Ohio, whose election will no doubt be substantially altered by the way the en banc majority ultimately decides this case. At stake here is the public’s confidence not only in the outcome of its elections, but also in the impartiality of its judges who must, &om time to time, review the procedures which govern those elections.

Sounds like Batchelder should have; if the parties were reversed I’d certainly think so.  But I find it equally interesting that none of these judges wondered why Brunner suddenly stopped checking the registrations in the first place, and when.  Allahpundit notes that Ohio Republicans exult and lower the boom:

“Her delay in providing this matching system leaves little time for election officials to act on questionable registrations,” Ohio GOP Chairman Bob Bennett said Tuesday night. “Once again, [SoS] Jennifer Brunner has wasted valuable taxpayer dollars only to have her partisan agenda rejected by a court of law. Her shameful actions to disenfranchise Republican absentee voters, block the transparency of early voting and refuse the proper verification of newly registered voters have rightfully damaged her credibility as a nonpartisan election administrator. She is destroying the public trust in Ohio’s elections system.”

Here’s the decision – I OCR’d it so it can be copied and pasted.  Enjoy!

Added: Ha!  Michelle Malkin says, “Thug thizzlin’ just got a wee bit harder.” Indeed.