Yesterday's divided Sixth Circuit decision voiding the district court's TRO against Ohio Secretary of State Jennifer Brunner prompted a strongly worded dissent by Judge Griffin.
Defendant Ohio Secretary of State Jennifer Brunner's lack of concern for the integrity of the election process is astounding and deeply disturbing. Also troubling is the majority's rush to issue the present order in violation of the practices of our court. Although a petition for initial en banc hearing is pending and will be decided tomorrow by our active judges, Jude Moore along with visiting Judge Bright, have decided to ignore the en banc petition and issue their order. I respectfully dissent regarding the merits of their decision and object to the procedure.Judge Griffin then attached of the opinion and order by District Court Judge George Smith.In the normal course of review, we will grant a stay of a temporary restraining order only if the district court abuses its discretion. . . . Here, defendant Brunner has failed to demonstrate that the district judge abused his discretion, and, thus, the emergency motion for a stay should be denied.
The majority assumes, and I agree, that plaintiffs possess standing to bring this 42 U.S.C. § 1983 action alleging a violation of the Help America Vote Act (HAVA). . . . Defendant Brunner claims compliance with HAVA, but the district court found that the system as currently structured is unable to effectively identify the mismatches of potential voters to the county boards of elections. The court determined that the "Verification of voter registration information" required by HAVA was not executed because "there is no effective way for irregularities to be reviewed." Without implementation, there is no compliance. In order to remedy this violation, "Defendant represented that it could take two or three days of programming work before the State would have the ability to search for mismatches in the same way it has the ability to search other fields such as name, address, social security, date of birth, precinct number . . . ." The district court's TRO requiring defendant to take two or three days to make the identification system effective and in compliance with HAVA is certainly not an abuse of discretion.
Allegations of procedural irregularities on the Sixth Circuit are something we've heard before. An en banc ruling could issue as early as today. Stay tuned.
All Related Posts (on one page) | Some Related Posts:
- Recusal Row in Ohio Republican Party v. Brunner:
- Thoughts on Brunner v. Ohio Republican Party:
- Ohio SoS Seeks Emergency Stay from Justice Stevens:...
- ACORN's Registration Quotas & Their Consequences:
- Will Sixth Circuit Ohio Election Decision Be Overturned En Banc?
- Fraudulent Registrations No Threat:
- Sixth Circuit Sides with Ohio SoS; Vacates Injunction:
- Is Voter Registration Fraud Unavoidable?
"The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them." --Jacob M. Howard (1868)
I'd hate to attend a 6th Circuit Judicial Conference. The luncheon must turn into a big food fight.
If the states were running their state level elections completely separate from elections for federal office, you might have a point. Congress passes plenty of laws without even a hint of enumerated power to justify them, but this isn't one of those laws.
Bush v. Gore makes clear that the federal judiciary is obligated to control the manner in which state officials (including judges) administer state laws. So as to make sure, if for no other reason, the rest of the won't laugh at us again. No.?
That would be the mother of all penumbras.
The "manner" of holding elections for Senators and Representatives has always meant the manner of choosing, i.e., by either voice or by ballot. This never gave Congress any authority to regulate qualifications of voters to vote.
“The qualification of electors and the manner of holding or conducting elections are as distinct from each other as light and darkness.” --John A. Bingham
What is a Republican government? Hint: It isn't a monarchy. For a central authority to dictate who may vote and under what conditions within a member republic is not republicanism but merely tyranny.
As for en banc review: I'm having a little trouble seeing how this would work under Sixth Circuit IOP. Of course, initial hearing on the merits en banc is possible (and, if possible given the time, perhaps preferable). But this opinion involves a motion for stay of a district court decision, which was referred to a motions panel. I can't think of any prior situation in which a motion bypassed a motions panel and went directly to the full court, nor do I see any procedure that can put the motion (as distinct from the full appeal) before the en banc court. Any thoughts?
See U.S. Const., amends XV s.2, XIX para.2, XXIV s.2, XXVI s.2.
See also U.S. Const., amend XIV, s.5.
Thanks for coming out. You'll get 'em next time.
1) Under Doe v Gonzaga Univ and related cases, section 1983 does not create a private right of action except for statutes that unambiguously confer an individual right that Congress intended to be privately enforceable. It's quite a stretch to find congressional enactment of an individual right here. And while the Supreme Court (in Bush v Gore) recognized that individual voters have a constitutional right not to have votes counted in an irrational manner, it's a humongous stretch to believe that purported underenforcement of one particular antifraud measure (matching these two lists) violates that Constitutional right.
2) Moreover, under Heckler v. Chaney and Lujan v. Def Wildlife, there's an argument that individuals don't have standing to pursue an underenforcement claim here. The interest in having accurate voter rolls is one that is shared among all citizens. It's not clear that the plaintiff here -- the Republican party -- has a sufficiently concrete and individualized interest, either on its own account or as third-party representative of its members, to allow jurisdiction.
Try and keep up, k?
James Madison, Jr. said, “The right of suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the [Federal] Legislature.”
And that's the law, like it or lump it. We do not operate our Republic based on the interpretation of the Constitution of random people on the internet.
I'd suggest learning some coping skills.
Wonderful. You've made your point. While I'm sure your seances with Bingham have been the source of much personal illumination as well as innumerable blog posts, most of us on a legal blog tend to deal with the law as applied, not with idiosyncratic interpretations of what we wish the law was based on cherry picked quotes. I personally believe that incorporation should have been done through the PorI clause of the 14th, not SDP. That, and waiting in a long line with the rest of the common folk, will get me into the Supreme Court.
James Madison, Jr. said, “The right of suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the [Federal] Legislature.”
And all that was said long before the amendments I cited you. Or are those amendments not really part of the constitution? Be sure to put on your tin foil hat on election day, the feds may try to transmit secret obama waves to your brain that will force you to vote for him, and support Islamo-abortion-supporting-gay-marriages.
Wow, that was well said. You have won the thread.
The Civil Rights Bill of 1866 was an attempt to enforce the P&I's of new black citizens, and it was feared the supreme court would strike it down under the same argument used in Barron. If you listen to so-called legal blogers one would think the 14th was passed to overturn Barron!! LMAO
I come to argue law as law, not law under fictional tales.
Usurpation of what? Your right to claim bizarre theories of Constitutional interpretation and expect anyone to take you seriously?
Dead people don't interpret anything -- it is the province of the living only.
Your only claim here is that you possess special insight to interpretation that, if those writers were alive, would be concordant with their views.
Unanimous House Judiciary Report #22, January 30, 1871:
No, they didn't. They took original expected application seriously. No one takes original intent seriously.
Then clearly, you misunderstand what 'original intent' means. Legislative intent is inferred through many means, but the words of, for example, a cherry picked sponsor of the legislation is not enough to understand 'legislative intent'.
'Original intent' as understood to be the 'intent of the founders' ha been dead since the late 1970s, early 1980s at the latest, except for the following:
1. As a popular rallying cry divorced from actual legal reasoning.
2. As a shorthand to refer to other originalist methods of Constitutional interpretation that do have validity.
In short, there is nothing intellectually wrong with originalism per se (although thee can be debates about whether, normatively, it is preferable). But original intent as you seem to view it is dead.
Anyway, the point is moot, because your cherrypicked quotes are meaningless in the real world. It's like the nutters who end up arguing they don't really owe any income tax- good luck with that.
Everything I posted goes to the heart of original meaning of the words.
Good luck with defending the existence of the Easter Bunny when challenged to prove the Bunny actually exists.
The Guarantee Clause is a dead end--it has nothing to do with the inquiry. In Luther v. Borden, the Supreme Court stated that the Guarantee Clause cannot be judicially enforced and that any dispute arising under it is political in nature, to be resolved by the other branches. You cannot go to federal court and claim that a state has not provided you a republican form of government; you have to go to Congress or the President.
Has Congress ever passed any legislation or done anything else based on its power under the Guarantee Clause? I don't think so, but I'd love to find out that it has. Not HAVA, though.
HAVA, instead, gains its authority from state-bribing: the states get money to update their election infrastructure and in return have to follow certain rules. That's, what, the General Welfare Clause? At any rate, it's uncontroversially constitutional. If Ohio did not want to play by the rules, it could opt out of the federal funding. (The same scheme allows Congress to set a national minimum drinking age of 21 by denying highway funds to states that set it lower.)
Above were mentioned South Carolina v. Katzenbach and Oregon v. Mitchell. Katzenbach was a VRA of 1965 case. The statute was said to be based on the 15th Amendment, which certainly gives Congress power to regulate the states. In Mitchell, the federal law was struck down and the states were left free to set their own voting ages for state office, so I don't know why it was mentioned where it was.
Wrong. Mitchell held that Congress could set a voting age for federal elections, but not state elections. So, it perfectly supported the proposition that Congress can regulate elections handled by the states, such as the upcoming election at issue in the case cited in this post.
But I don't think HAVA has much in common with those laws, and furthermore the § 1983 issue puts the current case on a totally different footing.
HAVA brings no compulsion for comparing voter registration to federal registry--but if a state choses to make such a match, it must then act on the findings.
Griffin's dissent is absurd--he puts the ephemeral "concern for the integrity of the election process" over the actual law. Let's hope that the circuit acts on the law and not on partisan compunction.
So 15 member of congress who were involved in the adoption, one who wrote significant passages even, are not qualified to interpret their own work? Also, didn't the judiciary interpret law all the time in determining proposed acts of congress were constitutional or not?
I'll take the word of 15 men who were involved in the actual writing and adoption of some law or amendment over what 5 "thinks" they meant 100 years later.
David M. Nieporent also muttered: "If we care what Bingham said, Bingham explicitly said that the 14th was designed and intended to incorporate the BoR."
Can you point us to the exact words he used that said the 14th was designed to incorporate the the BOR's to act against state citizens within their own state of residence?
I'd hate to attend a 6th Circuit Judicial Conference. The luncheon must turn into a big food fight.
Take a look at the University of Michigan AA case sometime. It is really bad here, but that case was third world type bad.
Nobody (besides you) claims to interpret the constitution by the rubric of how dead people, had they theoretically been alive today to be appraised of the case or controversy, would apply the law. That is not, and has never been, the method by which the Constitution is applied.
I understand that you disagree, as do many other reasonable people. Where you part company with reasonable people, however, is the claim that those with whom you disagree have no claim at all (e.g. no jurisprudence known to mankind).
Oren thrives on the "frivolous."
Now, since you seem to want to play the quoting game, I will oblige your request:
A more appropriate statement of a Constitution that is a pact with the future probably cannot be found.
Huh? It was always fully understood the Fifth Amendment's life, liberty and property and due process was a direct import of article 39 of the Magna Carta and the common law controlled the meaning.
When Bingham was asked what he meant by the words "due process" he replied: "I reply to the gentleman, the courts have settled that long ago, and the gentleman can go and read their decisions."
He went on a half dozen times to say no state may deny to any person life, liberty and property without due process were the words of the Magna Carta, Article 39.
Because the language was identical to the Fifth Amendment and settled to be the words of the Magna Carta, there was little point in being more specific.
The word "liberty" always was fully understood to mean personal liberty as opposed to civil liberty. The writ of habeas corpus always protected ones personal liberty and not ones civil liberty. Did anyone ever file an habeas corpus to be relieved of some burden of a civil law? NOOOOO!!!!
The above is my own personal opinion. I am positive others would agree with my first proposition and pin the nastiness on the conservative wing. So be it.
Where the cases get interesting is when the Circuit splits on the North/South axis rather than the ideological axis. Sometimes a judge from Kentucky or Tennessee has more in common with and will agree with his or her fellow Kentuckians or Tennesseans than a Michiganer or Ohioan coming from the same political bent.