Bush asks Justice to intervene in Ohio voter registration complaint overturned by SCOTUS

Last Friday, Bush asked Justice to intervene in behalf of a Republican Congressman’s complaint about newly registered voters in Ohio, according to this item:

Bush Friday asked Attorney General Michael Mukasey to review the matter, after House Minority Leader John Boehner, R-Ohio, urged the president to seek a Justice Department probe.

In his letter to Bush, Boehner insisted:

Unless action is taken by the Department immediately, thousands, if not tens or hundreds of thousands of names whose information has not been verified through the HAVA procedures mandated by Congress will remain on the voter rolls during the November 4 election; and there is a significant risk if not a certainty, that unlawful votes will be cast and counted. Given the Election Day is less than two weeks away, immediate action by the Department is not only warranted, but also crucial.

Recall that SCOTUS on 17 Oct. 2008 vacated two lower court rulings, as reported by the NYTimes,

The court said it expressed “no opinion on the question whether HAVA is being properly implemented.” But it said that Congress had probably not intended to allow private litigants like political parties to sue to enforce the part of the law concerning databases.

The decision also means that the Ohio Republican Party will not be able to make public-information requests to get the data so that poll workers can raise voter challenges.

Edward B. Foley, a law professor at Ohio State, said the Supreme Court’s action in letting state authorities handle matters in the face of a late challenge was consistent with a general premise of election law. “Federal court intervention is a last resort, even if it’s not at the last minute,” Professor Foley said.

The Republican effort to undermine voting rights was redirected to the Republican dominated Ohio State Supreme Court, using other arguments. However,

…the Ohio Supreme Court never got a chance to rule on whether [Secretary of State Jennifer] Brunner had to release the information of 200,000 newly registered voters whose listed Social Security and driver’s license numbers don’t match data in other government databases.

Ohio GOP Chairman Bob Bennett said he asked that the suit be withdrawn "in the interest of negotiating a solution out of court" with Attorney General Nancy Rogers, a Democrat. But settlements usually occur when both sides have leverage to nudge opponents away from their strongest positions.

"It was a good faith effort to try to show the attorney general and secretary of state that we were serious," Ohio Republican Party Deputy Chairman Kevin DeWine said Friday about the decision to withdraw the suit. "We don’t think that it made sense for there to be a continuing legal battle at the same time we were trying to negotiate out of court."

It was a bit shtupid-like for them to back out before they had reached a settlement. "Brunner never viewed the talks between the attorney general and the GOP as a negotiation — and she didn’t negotiate."

In any event, the White House regarded its actions last Friday as a routine referral to a federal agency on behalf of a member of Congress, according to the Wash Post. Jon Greenbaum of the Lawyers’ Committee for Civil Rights Under Law told the Post:

This is taking the politicization of this to a new level, and the last thing we need is for the elections officials and voters of Ohio to be put in a chaotic situation in the last days before the election.

Steven Rosenfeld, writing on this matter, notes that the Obama campaign has written to Mukasey for the fourth time advising that the involvement of Justice in local elections process at this late date would only add to the damage already done by inserting itself into the Republican party accusations vis-a-vis ACORN. He goes on to say that the timing of the Bush move corresponded with a final decision taken by Brunner:

Soon after the Supreme Court ruling, several Republican House members started lobbying the Justice Department to intervene. At the same time, Brunner issued new directives — which have the force of law — telling Ohio’s 88 county election boards they count not bar anyone from voting because of ‘no-match’ voter registration issues.

The White House then asked the Justice Department to intervene after Brunner’s latest directives.

Does the SCOTUS ruling have any bearing on what Justice can do if they actually decide to accomodate the Republican party in Ohio at this point? If the ACORN matter is anything to go by, probably none. But it seems like it should.

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