Greetings, Court fans!
The first Supreme Court battle over the 2004 election has officially come and gone in Spencer v. Pugh, 04A360, and Summit County Democratic Central & Executive Committee, 04A364, and for all practical purposes it has gone the Republicans’ way.
As the Ohioans in the audience are surely tired of hearing, Ohio is perhaps the battleground state this year, and Ohio Republicans have planned to send people to the polls in an effort, they say, to guard against voter fraud. They are using an Ohio law that permits any person to challenge a voter by alleging that he or she is not a U.S. citizen, is not old enough to vote or has not lived in the county for 30 days. Voters who are successfully challenged would have the right under federal law to cast a provisional ballot, but those would not be counted on election day.
Two suits in different Ohio federal courts sought to block that effort, alleging that the Republicans intended to send thousands of challengers to the polls to mount indiscriminate voter challenges in predominantly African-American neighborhoods, intimidate voters and cause inordinate delays. Both district courts held that the state’s interest in preventing fraud did not justify the burden the numerous challengers would place on voters’ rights, and granted partial relief — not blocking the Republicans’ plans entirely but requiring challengers to stay out of polling places or remain there only as witnesses. The Ohio Secretary of State did not appeal the court’s ruling, but some Republican voters (who had intervened in the district court proceedings) did. The Sixth Circuit granted their motion for an emergency stay of the district courts’ orders. The plaintiffs, in turn, applied to Justice Stevens as Circuit Justice to vacate the stay.
In his opinion, issued very early this morning, Justice Stevens declined to vacate the stay “for prudential reasons.” He noted, having reviewed the lower court opinions, “[t]hat reasonable judges can disagree about the issues” and that while the plaintiffs’ allegations were serious, “on the record before me it is impossible to determine with any certainty the ultimate validity of the plaintiffs’ claims.” The difficulty of digesting all the parties’ submissions in the limited timeframe weighed heavily against granting the relief requested by the plaintiffs. To provide the parties with a prompt decision, Justice Stevens simply denied the applications without referring them to the full Court. So the Sixth Circuit’s stay is still in place, and presumably the poll-watchers are in place (Ohio voters, be sure to say hello).
At the end of his opinion, Justice Stevens stated that “I have faith that the elected officials and numerous election volunteers on the ground will carry out their responsibilities in a way that will enable qualified voters to cast their ballots.” On that note, if you haven’t done so already, get out and vote!
Ken & Kim
From the Appellate Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400