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Supreme Court ruling may affect Wisconsin suit

By: dmc-admin//October 20, 2008//

Supreme Court ruling may affect Wisconsin suit

By: dmc-admin//October 20, 2008//

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The U.S. Supreme Court on Oct. 17 lifted an injunction which ordered the Ohio Secretary of State to comply with the federal Help America Vote Act of 2002 (HAVA).

The order may affect a similar suit pending in Wisconsin state court, brought by Attorney General J.B. Van Hollen, seeking to force the Government Accountability Board (GAB) to comply with the law.

Lester A. Pines, an attorney with Cullen Weston Pines & Bach LLP, in Madison, who represents the GAB, filed a motion to dismiss the suit the same day, citing the per curiam opinion for support.

However, James R. Troupis, an attorney with Michael Best & Friedrich LLP, represents the Republican Party of Wisconsin [which intervened in the case as a plaintiff], and believes the Ohio case is distinguishable.

Troupis stated that the Supreme Court’s holding was predictable, because the Supreme Court has adopted very narrow view of federal jurisdiction when it is not explicitly granted by statute.

The Wisconsin case, in contrast to the Ohio one, was brought in state court, under the state’s mandamus statute. As a result, Troupis said he believed the Ohio case is distinguishable.

The Supreme Court did not reach any ultimate holding in the Ohio case because of the procedural posture of the case -– the lower court issued a temporary injunction rather than final decision. However, it found an insufficient likelihood that Congress conferred a private right of action under the law, and concluded that the injunction should not have issued.

The per curiam order states, “We express no opinion on the question whether HAVA is being properly implemented. Respondents, however, are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce Section 303 in an action brought by a private litigant to justify the issuance of a TRO.”

The Sixth Circuit’s order, which the Supreme Court reversed, had directed Ohio to either provide a list of mismatches [between voter registrations and the state’s driver’s license files] to election officials or give them an easy way to search a state database.

Although the Wisconsin suit has been brought by the Attorney General, rather than a private party [the Ohio action was brought by the Ohio Republican Party], Pines said he believes the result should be the same.

“There’s no question that the statute does not give the attorney general of this state or any other state authority to enforce the law,” Pines said. “That rests with the United States Department of Justice.”

Pines also said that the Wisconsin Republican Party, which joined the action as an intervening plaintiff, should be dismissed as well.

Pines noted that the statute requires each state to set up administrative proceedings for private parties to bring complaints, an exclusive remedy that Pines said the Republican Party did not use.

Calling the Supreme Court order predictable, Pines argued that the only individual right that a party may enforce under the statute is the right to cast a provisional ballot.

However, Kevin St. John, a spokesman for Van Hollen, said he believes the Ohio case is distinguishable, and does not affect the Wisconsin case at all.

Under Chapter 5 of the Wisconsin statutes, the attorney general has authority to enforce all state election laws.

According to St. John, the state has incorporated HAVA, and therefore, Van Hollen is enforcing a state law in state court, making the Ohio case distinguishable.

St. John argued that it is no different than the federal law that required states to implement a drinking age of 21 to receive federal funds, but which necessarily relies on state officials to enforce the state laws that comport with the federal mandate.

Pines, however, contends that the substance of the Ohio and Wisconsin lawsuits are identical, and that, like the Ohio Republican Party, Van Hollen is merely seeking to enforce Section 303.

Pine called Van Hollen’s argument that he is only enforcing state law “curious, at best.” Pines contends the state has merely taken steps to comply with federal law, but has not incorporated it.

Richard L. Hasen, a professor at Loyola Law School-Los Angeles, and a nationally recognized expert in election law, agrees with Pines.

“The court said that it appears that Section 303 — to the extent it requires matching — provides no private right to sue, but leaves it up to the U.S. DOJ to bring suit,” Hasen said.

The fact that Van Hollen is a state AG, rather than a private citizen, doesn’t make much difference, Hasen said.

Addressing Van Hollen’s argument that he is merely enforcing state law that incorporates HAVA, Hasen acknowledged that the Ohio opinion does not directly speak to that issue, but he said he thinks it unlikely that Van Hollen will get the relief he seeks before the election.

Even though the Ohio opinion does not speak directly to Van Hollen’s argument, Hasen said courts are wary of litigation brought so late before an election, citing Purcell v. Gonzalez, 127 S.Ct. 5 (2006), in which the Supreme Court vacated an injunction to enjoin operation of voter identification procedures just weeks before an election.

However, another election law specialist, Daniel P. Takaji, of The Ohio State University Law School, disagrees that the Ohio opinion bars Van Hollen’s suit.

Takaji has filed an amicus curiae brief in the Wisconsin case, and opposes Van Hollen’s position on the merits.

But he does not believe the Supreme Court’s opinion is dispositive on the procedural issue of whether Van Hollen can bring suit.

“Whether a state Attorney General can bring suit in state court to enforce HAVA is a different question from whether a private party can bring suit in federal court,” Takaji said, even though the merits question is quite similar.

That is a question that should be determined by Wisconsin law, rather than federal law, Takaji said, although he declined to express any opinion on that issue. However, Takaji said he believed the Republican Party can’t bring suit, regardless of whether it is in federal or state court.

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