Supreme Court Rules Against GOP Voter Challenge into Ohio While Obama Campaign Calls for Investigation in FBI/McCain Links

This week is ending with a bang with the Supreme Court reversing a decision of the Sixth Circuit that ordered Ohio Secretary of State Jennifer Brunner to produce the list of mismatched voters — as many as 200,000. The Obama camp went on the offensive has called for the current special prosecutor to investigate the alleged coordination between the FBI investigation and the McCain campaign — a connection that has some obvious similarities to what occurred in 2006. The Rachel Maddow show last night to discuss the Obama call for an expanded investigation.

The Friday decision of the Court was in response to an emergency appeal with the U.S. Supreme Court. In unsigned opinion Friday blocked the Sixth Circuit’s order to Brunner to update the state’s voter registration database.

The Court’s rejection was based on a lack of standing for the GOP to seek such relief. There is also a question as to the basis for such an action at this stage under federal law. Ironically, in 2000, the Republicans (correctly in my view) objected to many challenges to Kathleen Harris on the grounds that she had inherent authority to make many of these decisions. This has been an area traditionally left to state election officials, though not completely left to their discretion. The GOP is relying heavily on the law passed after the 2000 debacle (“The Help America Vote Act”), but that language is untested in this respect.

The language states at Title 42 U. S. C. §15483(a)(5)(B)(i) (2000 ed., Supp. V) states, that:

“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.”

That does not create a private cause of action or even impose a mandatory duty to produce this type of list. The use of “shall” does suggest a mandatory duty, but the question is a mandatory duty to do what? It is to match the information “to the extent required to enable each . . . official to verify the accuracy of the information.” I believe that the GOP is correct in raising the issue and the failure for a better system of verification. However, she insists that she does not have time to implement the full system demanded by the lower courts in the time given and that se has taken such steps and that these mismatches are common after a large registration drive. She said that the state already matches registration information against data in the Bureau of Motor Vehicles system and the Social Security database, but that federal law provides no requirements regarding what to do if a mismatch is discovered. She has left it is up to counties to check the system for flagged registrations and investigate if not resolved on that level.

In the meantime, the Obama camp has called for an investigation into the possible coordination between the White House and the McCain campaign in the investigation of ACORN and voting fraud. In the past, we did not see such a rapid investigation and the leaking of that investigation is very troubling. The DOJ has guidelines and long-standing policies against prosecutions and public investigations shortly before an election — to avoid the very appearance in this case.

I helped cover the last two presidential elections as the CBS legal analyst and I was struck by how fast the FBI started and leaked this investigation. In 2004, many of us were floored that Kerry did not challenge in Ohio where there were enormous questions raised about the suppression of voters in democratic areas. Now, Ohio is again ground zero for such controversies.

I believe that there are grounds to expand the investigation of Special Prosecutor Nora Dannehy given the uncanny parallels between what is occurring now and what occurred in 2006. The same states are seeing some of the same people make the same claims at the very same time before the election. Some of the tactics strike me as classic voter suppression efforts such as the reported plan to use home foreclosure lists to challenge voters in Michigan or to challenge people in Montana for simple change of addresses.

There is no question that some of the allegations about ACORN are worthy of investigation. ACORN does have to answer what appears a lack of supervision and in the worst cases, a possible willful blindness.

However, so far, these are just a few media accounts of bizarre registrations like Mickey Mouse and youngsters. Such problems occur before any investigation and are usually left up to the state officials. What is lacking is any concrete evidence of massive voter fraud that, as john McCain suggested, threaten the very “fabric of democracy.” The thing that worries me the most is the leaking of an investigation and these challenges just before an election — creating a chilling effect on turn out.

For the Rachel Maddow segment, click here.

For the story on the call for a special prosecutor, click here.

For the full story on the Supreme Court decision, click here and here

20 thoughts on “Supreme Court Rules Against GOP Voter Challenge into Ohio While Obama Campaign Calls for Investigation in FBI/McCain Links”

  1. It’s still October, so why am I not surprised!

    ‘…Boehner has asked Mukasey to order Ohio Secretary of State Jennifer Brunner, a Democrat, to make it easier for county election officials to access the state list of mismatched voters. Brunner has argued that such a measure would require reprogramming computers and would create chaos before the election…’,0,7782859.story?track=rss

    Bush asks Justice Department to look into Ohio voter-registration dispute

    He does so at the behest of House GOP leader John Boehner. The partisan fight centers on discrepancies in state data.
    By Mary Pat Flaherty
    October 25, 2008
    Reporting from Washington — The White House has asked the Department of Justice to look into whether 200,000 new Ohio voters must reconfirm their registration information before Nov. 4, taking up an issue that Republicans and Democrats in the battleground state have been fighting over in court for weeks.

    The voter names are in dispute because their registration information conflicts with other official data.

    * Early-voting trends appear to favor Barack Obama
    Early-voting trends appear to favor…
    * Democrats see karma at work in Georgia race
    Democrats see karma at work in Georgia…

    McCain warns of unchecked Democratic majority in Washington
    Obama arrives in Hawaii to visit grandmother
    Michelle Obama fills in for husband on the trail

    The action comes a week after the U.S. Supreme Court dismissed a case brought by the Ohio Republican Party over the same issue. Republicans argue that the mismatches could signal fraudulent registrations; Democrats counter that eligible voters could be disqualified over minor discrepancies such as transposed numbers in an address.

    President Bush on Friday asked Atty. Gen. Michael B. Mukasey to review concerns over the voters raised by House Minority Leader John A. Boehner (R-Ohio).

    Boehner wrote to Bush on Friday, saying that if the voters remain on the rolls without added checks, “there is a significant risk, if not a certainty, that unlawful votes will be cast and counted.”

    Boehner has asked Mukasey to order Ohio Secretary of State Jennifer Brunner, a Democrat, to make it easier for county election officials to access the state list of mismatched voters. Brunner has argued that such a measure would require reprogramming computers and would create chaos before the election.

    White House Press Secretary Dana Perino characterized Bush’s referral of the matter to Justice as a routine step that would be taken for any such request from a congressional leader.

    The voters’ registrations have been at the heart of a dispute between the Ohio Republican Party and Brunner.

    Information for the new voters does not match state driver’s license or Social Security records. Federal law demands that states have a computerized database to check the records but leaves it to states to determine what constitutes a match and what to do with mismatches. Voters who have not resolved discrepancies by Nov. 4 could be forced to cast provisional ballots, which are counted only if their registration information can be cleared up.

    Also Friday, six former Justice Department lawyers urged Mukasey to ensure that voter registration investigations don’t disenfranchise eligible minorities, the Associated Press reported.

    The six attorneys, who formerly worked in the department’s Civil Rights Division, wrote the attorney general that Justice generally discourages voter-related investigations until after elections to ensure that inquiries don’t interfere with legitimate voters.

    The Justice Department had not received the letter as of Friday night.

    Flaherty writes for the Washington Post.

  2. Our blind squirrels found their nuts!

    The lawsuit of the Wisconsin state attorney general(Republican) has been dismissed. This quote is from our local news, Channel3000.

    “The lawsuit demanded the state Government Accountability Board order local clerks to check the names of everyone who has registered to vote since Jan. 1, 2006, with driver’s license and Social Security data as required by federal law and remove ineligible voters from the rolls.

    During Thursday’s hearing, attorneys for state election officials characterized Van Hollen’s lawsuit as an unprecedented power grab. Lester Pines, the attorney for the Government Accountability Board, told Sumi on Thursday morning that the checks are required under federal election law.

    Pines said that no one but the U.S. attorney general has power to enforce the federal law and that the state has passed legislation giving the board authority to run elections and not the state attorney general.

    He said Van Hollen has no authority to enforce that law and his lawsuit is a “breathtaking” assertion of power.

  3. It helps if one is able to frame ‘it’ ie putting ‘it’ in context
    – in order to make a point…

    Added to that, most of ‘us’ are not now, never were, or will be in the near future, from OH or the ‘midwest’, in general, for that matter.

    No offense.

    Some of the best people I know are from places where there’s no ocean.

    We’re as happy as they are to share ‘ours’ often – whenever we can!

    ‘The news was announced shortly before the latest lawsuit filed by a GOP fund-raiser against Democratic Secretary of State Jennifer Brunner was abruptly dropped in the Ohio Supreme Court. Republican members of Congress also have urged the U.S. attorney general to become involved…’

  4. This is an interesting update. A hacker targeted Brunner’s computer and: “Ms. Brunner’s office has reported “menacing” phone calls and e-mails as well as a suspicious package covered with threatening messages and containing an unidentified powder that was sent to her attention via the wrong government office building.” In the meantime the suit to OH supreme court was dropped.

  5. GOP criminal voter registration drive:

    I’m stunned that finally some action is being taken against criminal behavior by GOP voter registration drives. Mark Jocoby has been arrested!

    I am aware of no evidence that Acorn has committed any wrong doing (as compared to those defrauding ACORN). Acorn is required by law to turn in all registrations from their drives (including the suspicious ones). They have bent over backwards to flag suspicious registrations for the gov. and have worked closely with officials to go after workers that have turned in fraudulent ones.

    GOP drives across the country, on the other hand, have for years committed fraud and broken the law.

    From Think Progress about the arrest of GOP operative Mark Jacoby:
    “TPMmuckraker’s Zachary Roth notes, “Ironic that, for all the GOP-generated sturm und drang over ACORN in the last few weeks, it looks like it’s in fact a Republican firm against whom there’s actual evidence of systemic fraud.”

    Peace, JK

  6. “Although it would be a somewhat flawed technique, using the WSJ editorial page as a reverse barometer and accepting the opposite of their conclusions would leave one closer to truth and righteousness.”
    Doesn’t everybody? Where I come from, they say ‘Can’t there from here’. I tend to disagree.

    The opinion reads like the author was writing about our country, didn’t it?

    Thanks for responding.

  7. To Patty C:

    Here is an excerpt of TI’s page on Wikipedia:
    According to a report in the UK’s The Guardian newspaper,
    “TI’s Venezuela bureau is staffed by opponents of the Venezuelan government. The directors include Robert Bottome, the publisher of Veneconomia, a strident opposition journal, and Aurelio Concheso of the Centre for the Dissemination of Economic Knowledge, a conservative think tank funded by the US government. Concheso was previously a director of the employers’ organisation, Fedecamaras. The president of Fedecamaras, Pedro Carmona, led the failed 2002 coup and was briefly installed as Venezuela’s dictator.” [3]

    ExxonMobil, which has taken legal action against PDVSA in the UK, US, and the Netherlands to freeze PVDSA’s assets after it rejected PVDSA’s offer of compensation for newly nationalised oilfields in the Orinocco River region [4], has been a funder of TI [5].

    Peace, JK

  8. To Patty C:

    Although this is off the main topic of the post, here is a brief response to your request.

    The “curious association” you mention is not that curious. What should be considered curious, in my opinion, are the attempts to prevent Americans, whose lives are in danger, from having less expensive heating oil available while calling Chavez’s offer a cheap political stunt. Wouldn’t it be great if Bush’s administration would take some action to help America even as “a political stunt”? Also curious was the Bush regime’s flat rejection of Cuba’s offer (immediately after Katrina hit NO) to send their highly trained and internationally recognized hurricane rapid-response medical teams to help with the Katrina disaster.

    The editorial page of the WSJ (IMO) would be the last place to go for truth or opinion based on truth. Although the investigative journalism of the WSJ is generally good, their opinion page is almost universally recognized to be a dishonest right wing extremist propaganda organ for the worst subset of the Republican Party. Although it would be a somewhat flawed technique, using the WSJ editorial page as a reverse barometer and accepting the opposite of their conclusions would leave one closer to truth and righteousness.

    Transparency International (TI), along with (unfortunately) most NGO’s that rank corruption, freedom, democracy etc. are corrupt clandestine organs of ambition for the moneyed elite. The documentation of this is easily available. Although Wikipedia has numerous inaccuracies, there are footnoted examples on the TI page.

    Mr. Chávez’s comments regarding GWBush at the UN played into the hands of the right-wing machine but need to be taken in context. Bush had been routinely insulting, lying about and calling Chávez names for years prior to Chavez’s UN speech. Additionally Bush has been up to his “gills” plotting Chavez’s overthrow and assassination both before and since his temporarily successful violent coup in 2002 which involved kidnapping Chávez. In that context and in the context of Bush’s treacherous behavior in preventing and destroying democracy in Latin America (and worldwide), I don’t think Chávez’s comments were out of line. (I.e. Anyone who believed in the existence of the “Devil” as the source of evil would have to conclude that Bush was an agent.)

    I reject that Chávez is either anti-American or a tyrant. I think he would be a great ally to any US government that adhered to the ideals that we claim. It is hard to be complementary when someone is trying to kill you and convert your country into a client state. We currently have democracy and freedom only in the text of the Constitution and in laws consistent with it. As I’m sure you are aware, Bush, in front of many witnesses said “Quit throwing the Constitution in my face. It’s only a God damned piece of paper”. From Bush’s words and actions, I ask: Who is the tyrant?
    I have forgotten the exact number, but the hugely popular Chávez has won 9(?) free elections by larger margins than any US President in our history.

    The only accurate conclusion, stated or implied, in the WSJ excerpt you posted (IMO) was that Mr. Chávez chooses his partners well.

    Peace, JK

  9. JK,

    Please explain your stance. We would love to hear it – especially now.

    You have to admit Chavez, Cuba, Citizen’s Energy,
    Citgo, and ‘Cindy’ make for a curious association.

    From WSJ / Fall Nov 2006

    Dial Joe-4-Chávez
    Massachusetts Democrats love Venezuela’s strongman.

    Tuesday, November 28, 2006 12:01 A.M. EST

    Transparency International puts Venezuela second to last in the Hemisphere in its 2006 “corruption perception index.” And then there was that revealing rant against President Bush (“the devil”) at the United Nations in September. Even Mr. Delahunt criticized his Venezuelan buddy after that one.

    “…But Mr. Kennedy keeps on trucking. Last week in a telephone interview with the Washington Post, he defended his Chávez subsidy deal as “morally righteous,” arguing that the Citgo contribution to his nonprofit is only “one-half of one percent” of Citgo oil and product sales in the U.S.

    We dialed Joe-4-Oil ourselves to ask directly whether it is also “righteous” to assist an anti-American tyrant at the expense of the Venezuelan people. In between berating our reporter for daring to ask such a thing, Mr. Kennedy said that Mr. Chávez has done “so much more” for the poor than any previous government. As for democracy, he said there was “ample room for improvement in the ways that people get elected in Venezuela as well as in Florida.”
    Mr. Chávez chose his partner well.”

  10. Mespo,
    That was an interesting article, but I am sure that there are alot more of these so called “legal Memos” that subvert legislation of all kinds. Not to mention the Constitution. Remember, this is the same regime that thinks the President can order the torture of prisoners, and hold prisoners, even U.S. citizens, for years without any due process. And yet Bush wants to bring religion into the very fabric of government. Maybe he should actually read and practice the religous tenets that he wants the government to accept as the law of the land.

  11. Jonathan,
    I saw you on the Rachel Maddow show (yesterday or day before yesterday) discussing the investigation into ACORN and the ongoing corruption of the DOJ exhibited by its active interference in the election.

    I believe your description of the danger to democracy posed by the perception that the government is actively involved in corrupting elections is accurate (even understated).

    But I strongly disagree when you call such behavior a “Hugo Chavez” moment. As with Ahmadinejad the vast majority of the negative news items published or aired about him, are false, fabricated, or badly distorted.

    Please keep in mind that this demonization of Chavez by the US main stream media “propaganda machine” would occur for any leader of an oil producing nation that is not already a US (or other member of the “League of Democracy” subset of NATO) puppet willing to:
    1 Act in the interests of Big Oil Corps
    2. Keeps its oil sales pegged to the dollar,
    3. Act to suppress its people and eliminate democracy (and justice) for all but the tiny moneyed elite.

    It always surprises me when an intellectual that I admire and respect falls for obvious and easily checked distortions by the US government and its agents in the “Main Stream Media”.

    Peace, JK


  12. It’s very “precedential” act…?


    Playing ‘president’, instead of golf,
    has it’s own rewards

    -thumbing your nose at the Constitution – priceless!

  13. To all:

    Since we’re on the latest Repub outrage how about a comment on the recently disclosed Bush signing statement permitting government funding of overtly discriminatory religious organizations. No barrier between church and state here. Prof Turley’s colleague at GW Law, Ira Lupu, an expert in the field, has weighed in on the topic and for the Busheviks it isn’t pretty. Look for yourself:

  14. “Oct 13, 2008 … From Crooks and Liars comes this photo of John McCain cavorting with his friends over at ACORN, the very same evil socialist ACORN that …”

    John McCain is friends with people who want to destroy the very fabric of democracy? OMG, tell me that’s not true!

    In Ohio our state tourism motto is: Ohio, the Heart of it All. This needs to change–Ohio, the Cheatin’ Heart of it ALL.

    It is distrubing to: 1. see the power of the US govt. come down on voters. It can’t be an accident. It’s not like DOJ is looking into to obvious criminal activity by half the sitting govt. So how come they took the “go pills” on this one? and 2. it is confusing to voters to hear first one thing, then another, then plenty of lies, then you might be challenged, etc. The Democratic party needs to be in the face of DOJ WH lackies on this one. They further need to run ads telling voters, if someone tells you you can’t vote, you should vote on a different day, you’ll get arrested, you’ll get challenged (all things that have happened before and are being said now) then don’t believe it. Call this number–and the party should have a number set up to help any voter. Sure Republicans will jam the lines, just make sure there’s a lot of lines and reporters covering the answering of the lines, so if they do jam up it goes on national TV right away.

  15. Rafflaw:

    As they say, even a blind squirrel can find a nut if you give it enough time.


  16. Robert,
    that is interesting information about Connell. I will have to look closer at that cae. What has been preventing the attorneys from obtaining Connells deposition?

  17. Republican Voter Suppression and Vote Fraud… Ramping Up Again!

    The GOP continues to resist attempts to subpoena Michael Connell, a shady Republican computer operative who programmed the 2000 Bush-Cheney web site. Connell was also hired by former Ohio Secretary of State J. Kenneth Blackwell in 2004 to tabulate the Ohio vote count. Under Connell, Ohio’s vote totals were shunted to a computer bank in the same basement in Chattanooga, Tennessee, that housed the servers of the Republican National Committee. In the early hours of the morning after election day, vote totals mysteriously began shifting from Kerry to Bush, swinging the 2004 election. Connell’s cyber-security industry colleague Stephen Spoonamore, a Republican and former McCain supporter, has said that Connell may be able to shed light on vote count rigging in the 2008 vote count as well. Attorneys in the King-Lincoln- Bronzeville civil rights lawsuit have thus far been unable to secure Connell’s sworn testimony.

  18. Prof. T,
    I caught you on the Rachel Maddow show. Good Job. I agree that Ohio is a battleground again for the Republican party’s attempts to block the right to vote. I was surprised that the Supremes did the right thing in this case. They must not have gotten the memo that was sent to the FBI. This victory in Ohio should just be the beginning of the pre-emptive and quick response legal actions that may be necessary to keep the McCain/Bush forces from stealing the vote. I am not as sure that ACORN was as negiligent as you suggest, however. I read that most of the improper registrations were highlighted by ACORN when they were sent in. Isn’t that correct. Either way, I do agree that the numbers of bad registrations were very small and you are spot on that McCain’s hyperbole of the the “fabric of Democracy” being in jeopardy is ridiculous and especially interesting in light of Florida in 2000 and Ohio in 2004.

Comments are closed.