The Supreme Court Puts Ideology Aside in Deciding a Small But Important Ohio Election Case that Could Affect the 2008 Presidential Election

By MICHAEL C. DORF
Tuesday, Oct. 21, 2008

During his confirmation hearings for the Supreme Court, then-Judge and now-Chief Justice John Roberts likened the judicial role to that of an umpire calling balls and strikes. His personal and ideological views, he said, would not play a role in his decision-making.

The simile was and is inapt, however. In fact Supreme Court cases afford Justices many opportunities to make decisions based on value judgments. In just three terms, for example, Chief Justice Roberts has come down on the conservative side in cases involving abortion, free speech, gun control, and racial segregation. If he is an umpire, he has a strike zone that is markedly wider to the right.

Nonetheless, occasionally the Justices do remind us that while ideological factors undoubtedly enter their decision-making, active partisanship of the sort many observers perceived in Bush v. Gore is rare. A terse ruling last week in Brunner v. Ohio Republican Party-a case that could have important ramifications for the Presidential election-should serve as a reminder that the Supreme Court is, for all of its imperfections, capable of genuinely putting aside politics to apply the law.

The Underlying Dispute: Did Ohio's Secretary of State Violate the Post-Bush v. Gore Federal Voting Statute?

In the wake of Bush v. Gore, Congress enacted the Help America Vote Act (HAVA), a statute that, among other things, sets standards for federal elections. In important respects, HAVA lives up to its name: One of its provisions requires that states permit people whose eligibility to vote is questioned by election officials to cast provisional ballots, so that if these voters are later determined to be eligible (and if the outcome is sufficiently uncertain that provisional ballots could make a difference), they will not be unfairly deprived of their votes.

Another provision of HAVA is less about helping Americans vote than it is about preventing some people from voting. It obligates relevant state officials to match registered voter lists (typically kept at the county level) against motor vehicle records (typically kept statewide) "to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration." In the political realm, this provision is typically extolled by Republicans who worry about fraudulent voting, and derided by Democrats who worry that manufactured concerns about voter-level fraud have been used to suppress the votes of minorities and other core Democratic constituencies.

Ohio is a swing state that President Bush narrowly carried in 2004 amidst allegations of irregularities that disproportionately suppressed the votes of Democrats. Ohio's current Secretary of State is a Democrat, Jennifer Brunner. She was recently sued by the Ohio Republican Party and a Republican state representative in Ohio, who claimed that by failing to provide county election officials with lists of newly registered voters whose registration information did not match their motor vehicle information, she had violated HAVA.

Secretary Brunner in turn responded that HAVA does not specifically require her to provide lists to county officials; that doing so would be unduly burden her office; and that, in any event, another federal law-the National Voter Registration Act or "Motor Voter"-forbids systematic purging of voters from the rolls within 90 days of an election, so that there would be no point in providing this information to county election officials at this late date.

A federal district judge originally ruled in favor of the Ohio Republican Party, granting a temporary restraining order (TRO) against Secretary Brunner. However, a panel of the Sixth Circuit quickly reversed that decision, only to be reversed in turn by the full (en banc) Sixth Circuit.

Last week's en banc opinion in Ohio Republican Party v. Brunner rejected Secretary Brunner's reading of HAVA and also rejected the argument, advanced by the Secretary, that private parties could not sue to enforce HAVA. The en banc court said this was a close question, but that the district judge acted within his authority in finding a sufficient likelihood of success on the merits to grant the plaintiffs their TRO. (To gain the temporary relief of a TRO, a plaintiff must show only that he is likely to succeed in proving the allegations of the complaint, not that he actually will succeed in doing so, and that he will suffer irreparable injury absent the TRO.)

Faster than you can say "Bush v. Gore," the Supreme Court reversed the Sixth Circuit's en banc decision. It held that the legal standard governing who can sue to enforce statutes is simply too demanding for the plaintiffs to have established a likelihood of success on the merits. It was probable, instead, that they lacked the right to bring the case in the first place. As a consequence, the federal court suit was dismissed. Thus, it now appears that Secretary Brunner's decision not to flag discrepancies between voter registrations and motor vehicle records for county election officials will stand.

Had the Supreme Court not reversed the en banc Sixth Circuit ruling, thousands of newly registered Ohio voters might have been purged from the rolls. Because the Democrats have registered more new Ohio voters than have the Republicans, last week's ruling was no doubt welcome news to the Obama campaign and a disappointment to the McCain campaign. Should Senator Obama capture Ohio by a razor-thin margin, and should Ohio prove decisive in the Electoral College race, he will have the Supreme Court to thank on Inauguration Day.

The Evolution of the Doctrine of Implied Rights of Action: How the Law Turned Right

By contrast with 2000, however, the Supreme Court ruling in Brunner v. Ohio Republican Party cannot be characterized as partisan. Notably, the key line of cases on which the Supreme Court relied is the product of years of judicial conservatives' efforts to limit the ability of plaintiffs to sue to enforce federal statutes. This seemingly technical area of the law concerns what lawyers call a "cause of action," a "right of action," or in lay parlance, simply a right to sue.

Sometimes, when Congress enacts a law, it includes provisions specifying who can and who cannot sue to enforce the legal rights and duties the law creates. However, Congress does not always address this issue expressly. Some laws, for example, authorize enforcement by federal administrative agencies but are silent on the question of whether, in addition, private parties can sue other private parties or the government on the basis of the legal rights and duties these laws create.

What happens when a private party sues either another private party or the government, invoking a federal law that is silent on the question of whether it creates a private cause of action? Then the federal courts must decide whether the statute creates an "implied" right of action.

During the Warren Court era, the Supreme Court freely found implied rights of action. As the Court explained in the 1964 case of J.I. Case Co. v. Borak, "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose." Courts operating under this framework frequently found that private rights of action were an appropriate supplement to administrative action, even where Congress had not expressly authorized private rights of action.

More recently, however, the Supreme Court has taken a tougher line on implied rights of action. Judicial conservatives distrust the notion that there even exists any such thing as a "congressional purpose" that goes beyond a statute's text. Conservatives also tend to dislike lawsuits more generally. Thus, as the Court has turned to the right in the last forty years, it has enunciated a stricter standard for finding an implied right of action.

How strict? Consider the 2001 decision in Alexander v. Sandoval. There, the Court accepted that there is a private right of action to enforce Title VI of the 1964 Civil Rights Act, which bars certain forms of invidious discrimination by entities that receive federal funding. The Court also accepted (at least for the sake of argument) that the Department of Justice could, by regulation, bar not only intentional discrimination but also practices that have a discriminatory effect on protected groups. Nonetheless, Justice Scalia said for the Court in Sandoval that there was no private right of action to enforce the Justice Department's disparate impact regulation.

Why? Because, Justice Scalia claimed, the language of the Civil Rights Act did not create any individual right to be free of practices that have a discriminatory impact. In other words, rather than ask-as the Court would have asked in the 1960s-whether the Civil Rights Act's purposes would be advanced by an implied right of action, the Sandoval Court asked simply whether the statutory text manifested an intent to create a private right of action.

Application of that very conservative, text-focused test to the facts of Brunner v. Ohio Republican Party leads ineluctably to the conclusion that there is likewise no implied cause of action for private parties to enforce the provision of HAVA requiring that new voter registrations be checked against motor vehicle records. That aspect of HAVA may create a legal duty on state officials like Secretary Brunner, but it creates no correlative right for private parties.

To its credit, the Supreme Court reversed the Sixth Circuit en banc court, citing Sandoval on this point. The conservatives who had fashioned a test that makes it very hard for plaintiffs to bring civil rights lawsuits, were consistent enough to say that the test must be equally difficult for Republican plaintiffs to satisfy. Whether or not one agrees with that strict test, one should at least respect the Justices for applying it in a way that did not focus on the results-in this case a benefit to a Democratic Secretary of State and, more importantly, the Democratic Party.

The Relevance of the Ku Klux Klan Act: A Right to Sue for Violations of Constitutional and Statutory Rights, But Not to Sue Under Every Federal Statute

The plaintiffs did not simply rely on HAVA, however. Even if HAVA itself does not confer a private cause of action, the plaintiffs argued, the Ku Klux Klan Act, enacted in 1871 and codified in relevant part today as section 1983 of Title 42 of the U.S. Code, grants them a right to sue. Section 1983 is the general civil rights law that permits plaintiffs to sue government officials for violations of their federal constitutional and statutory rights.

However, the same conservative Justices who have narrowed the scope of implied rights of action over the last forty years have imposed roughly the same requirement under Section 1983: A plaintiff suing to enforce a federal statute must show not only that the statute has been violated, but that the statute conferred upon him a "right" that the defendant violated. Accordingly, a law that confers duties on government officials without using the language of rights for the beneficiaries of those duties, the Court has said, cannot be enforced by a Section 1983 action.

Recall that the Ohio plaintiffs could not rely directly on the provision of HAVA that they want to see enforced because it does not contain any rights-conferring language. Due to that very same omission, the Supreme Court said that these plaintiffs are also unlikely to succeed in a Section 1983 action. Therefore, the Court concluded that the district court was mistaken in granting the temporary restraining order, and the en banc Sixth Circuit court was mistaken in reinstating that order.

It is no doubt faint praise to laud the Supreme Court for having the intellectual honesty to apply its legal principles even-handedly, regardless of whether those principles favor Democrats or Republicans. At a minimum, justice is supposed to be blind. Still, given the lingering shadow that Bush v. Gore casts over the Supreme Court's objectivity in cases involving Presidential elections, even such minimal fairness is heartening.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.



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