Supreme Court Sides With Democrats on Ohio Voter Eligibility

By William Branigin and Mary Pat Flaherty
Washington Post Staff Writers
Friday, October 17, 2008; 2:21 PM

The Supreme Court today sided with Ohio's Democratic secretary of state in a dispute with the Republican Party over voter registration, lifting a lower court's order that Democrats said could have disenfranchised thousands of voters in a crucial battleground state ahead of next month's elections.

In a brief unsigned opinion, the justices vacated a temporary restraining order that directed Jennifer Brunner to update the Statewide Voter Registration Database by today to comply with a section of the 2002 Help America Vote Act (HAVA). The law sets requirements for verifying voter eligibility.

The Ohio Republican Party wanted Brunner, who as secretary of state is Ohio's top elections official, to provide county election boards with lists of newly registered voters whose driver's license or Social Security numbers on registration forms did not match records in state databases. The GOP argued that the county boards needed the lists to prevent vote fraud.

Brunner contended that the temporary restraining order, entered by a federal court in Ohio on Oct. 9, could have disenfranchised voters "because of federal government red tape, misstated technical information or glitches in databases" beyond their control. Of 666,000 voters who have registered in Ohio since Jan. 1, about 200,000 have mismatches and could have been forced to cast provisional ballots instead of regular ones, Brunner said. In that event, their provisional ballots would have been tallied only if the discrepancies were cleared up shortly after Nov. 4.

Because of the Democrats' voter-registration efforts this year, those registrants with mismatches are considered likely to include a large number of potential Democratic voters.

Brunner also argued that the U.S. District Court had no jurisdiction to impose the restraining order.

The Supreme Court said in today's opinion that it has "no opinion on whether HAVA is being properly implemented." But it said the Republican Party appeared unlikely to prevail on the question of whether the law allows private litigants such as the Ohio GOP to file suit to enforce its provisions.

Republicans stepped up their attacks on Brunner in response to the decision.

"This decision was made on a technicality, not on the merits of the case," Ohio Republican Party Chairman Bob Bennett said in a statement. "The justices did not disagree with our argument that Jennifer Brunner has failed to comply with federal election law. They merely said we don't have a right to bring a private challenge against her under this particular provision."

Bennett charged that Brunner "has fought every effort to validate hundreds of thousands of questionable registrations" and has failed to set up an adequate verification system.

"The Supreme Court's ruling has not changed that, and we continue to believe Secretary Brunner is neglecting her basic duty under the law to prevent fraud from corrupting Ohio's election system," he said. "We are again calling on the secretary of state to comply with federal law by providing clear instructions to election administrators on how to handle questionable voter registration forms."

Bennett accused Brunner of "actively working to conceal fraudulent activity in this election."

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