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.