Constitutional Law

Supreme Court Rejects Sixth Circuit Interpretation of Election Law

by Ian Millhiser, Public Policy Staff Attorney, National Senior Citizens Law Center

Earlier today, the Supreme Court effectively reversed a Sixth Circuit decision which required Ohio’s Secretary of State to implement new procedures which could purge thousands of voters from Ohio’s rolls.  The Sixth Circuit’s decision is a stunning piece of results-based judging, as the court not only divided entirely on ideological lines, it also flatly refused to apply a binding Supreme Court precedent to one particular plaintiff:  the Ohio Republican Party.  Yet, while it is completely inexcusable for the Sixth Circuit to exempt the Republican Party from following a binding precedent, that precedent has unfairly slammed the courthouse doors shut on numerous low-income Americans, so it is no surprise that the Republican Party did not want to be bound by it.

The case is Ohio Republican Party v. Brunner, and it concerned the Republican Party’s claim that Secretary Jennifer Brunner violated the Help America Vote Act (“HAVA”) by not implementing certain procedures to screen new voter registration forms for irregularities.  Last week, a district judge issued a temporary restraining order requiring Secretary Brunner to implement these procedures, but the TRO was soon stayed by a three-judge panel of the Sixth Circuit.

With the exception of Judge Helene White, a left-of-center judge appointed by President Bush as part of a compromise with the Senate, every single Reagan and Bush appointee voted to overrule the three-judge panel.  Judge White was joined by all five members of the court’s progressive wing in dissent.

Moreover, the en banc court’s majority opinion was written by Judge Jeffery Sutton, a G.W. Bush appointee and a former clerk to ultra-conservative Justice Antonin Scalia.  Judge Sutton also has a long history of activism against lawsuits by private individuals seeking to enforce federal laws.  Prior to his appointment to the bench, Sutton argued Alexander v. Sandoval before the Supreme Court, a key decision slamming the courthouse doors on victims of race discrimination.  In another case, Sutton personally argued for denying court access to children being deprived of Medicaid coverage.

So one would expect Judge Sutton to be intimately familiar with the Supreme Court’s decision in Gonzaga v. Doe, in which the Court drastically limited the ability to private individuals to enforce federal law.  In Gonzaga, the Supreme Court held that a state official who violates a federal statute may only be held accountable in a private lawsuit if the federal statute contains special “rights-creating language.”  Generally speaking, this means that the statute’s text should be “phrased in terms of the persons benefitted.”   Statutes which “focus on the person regulated rather than the individuals protected” generally are not understood to create individually enforceable rights.

With that in mind, take a look at the provision of HAVA which the Ohio Republican Party claims Secretary Brunner was violating:

The chief State election official and the official responsible for the State motor vehicle authority of a State shall enter into an agreement to match information in the database of the statewide voter registration system with information in the database of the motor vehicle authority to the extent required to enable each such official to verify the accuracy of the information provided on applications for voter registration.

Notice what’s missing here?  Any of the “rights-creating language” which the Supreme Court said was so essential in Gonzaga.  This HAVA provision is directed exclusively toward a state’s “chief . . . election official” and the head of its “motor vehicle authority.”  It focuses exclusively on the person regulated, not whoever might benefit from the law’s requirements.  In other words, because this HAVA provision contains no special rights-creating language, it cannot be the basis of a private lawsuit, and the Ohio Republican Party should have been tossed out of court.  Indeed, this was exactly the result urged by Judge Karen Nelson Moore’s dissenting opinion, but Judge Sutton simply refused to apply Gonzaga to the Ohio Republican Party, in part because the Party had no other way to get relief.

Lest there be any doubt, the Sixth Circuit has not historically been shy about using Gonzaga to slam the courthouse doors shut on private parties.  In Johnson v. City of Detroit, 446 F.3d 614 (6th Cir. 2006), for example, the court relied on Gonzaga to hold that a low-income mother whose child was poisoned by lead based paint in her public housing could not sue to enforce federal housing law. 

So why did the Sixth Circuit suddenly abandon its sweeping application of Gonzaga in the Ohio Republican Party’s lawsuit?  I suppose one can hope that the court’s conservative bloc had a sudden change of heart; that they realized it is wrong to refuse to enforce the law because of some technical requirement invented by Chief Justice Rehnquist in 2002, but this seems unlikely.  It is far more likely that a majority of the Sixth Circuit’s judges simply desired the same outcome as the plaintiff in Ohio Republican Party, and were willing to ignore the law in order to reach it.

Which brings me to one final point:  it is inexcusable for the Sixth Circuit to apply one standard to low-income mothers and children, and another, more favorable standard, to one of the nation’s two major parties.  If powerful interest groups benefit from special, more favorable laws, then the law itself means nothing.  That does not mean, however, that the Ohio Republican Party should have to comply with Gonzaga’s technical requirements.  It is wrong to deny Medicaid recipients the benefits Congress intended for them to receive; it is wrong to force public housing residents to endure dangerous conditions Congress sought to eliminate; and, if Congress truly did enact HAVA to benefit groups like the Republican Party, then it is wrong not to allow that Party to enforce HAVA in federal court.

The Sixth Circuit’s decision in Ohio Republican Party applies a shocking double standard, but that does not mean that the Supreme Court was right to effectively reverse this decision.  Gonzaga was wrong on the day it was decided, and it is wrong today.  The Supreme Court should have seized this opportunity to overturn Gonzaga.

Full post as published by ACS Blog on October 17, 2008 (boomark / email).