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Supreme Court Stays Out of 2008 Election (At Least For Now)
by David Gans, Director of the Constitutional Accountability Center's Human Rights, Civil Rights, and Citizenship Program
For years, conservative Justices on the Supreme Court have invented obstacle after obstacle to bar civil rights plaintiffs from the courthouse door. One such requirement – known as the requirement of a private right of action – demands that the plaintiff prove that Congress intended to create a right enforceable in federal court. Without a private right of action, it does not matter that the government flagrantly violated the law; the point of the rule is to prevent a court from considering the merits of the law suit at all.
This rule does not sit easily with our constitutional text, history, and traditions. Both those who framed our original Constitution and the Reconstruction Amendments sought to give individuals harmed by the government a right of access to courts to remedy their mistreatment. But if we are to have the rule, at the very least it must be consistently applied.
That was the lesson of an unsigned Supreme Court ruling today in Brunner v. Ohio Republican Party, which threw out the Ohio Republican Party’s suit demanding that election officials, on the eve of the election, update their system for identifying voter fraud. Somehow, the plaintiffs had managed to convince a bitterly-divided Sixth Circuit split along party lines to order the update, despite a manifest failure to show that Congress had intended to create a private right of action to enforce the statute on which the Republican Party relied. The Supreme Court’s cases require a plaintiff to point to “rights-creating” language in the relevant statute, and the provision had none. Today, the Supreme Court quickly and unanimously rebuked the Sixth Circuit for failing to follow these precedents.
This was a wise decision that may indicate the entire Court is reluctant to again inject itself into presidential politics. We are on the eve of a historic Presidential election. Election officials need to put all their resources into ensuring that all Americans legally registered to vote have the opportunity to cast a ballot either for Barack Obama or John McCain, especially in a state like Ohio which may decide the election. The right to vote is at the core of our Constitution – the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendment broadly secure it. Election officials should not be swamped with last-minute litigation over administrative minutiae that threatens to derail them from securing the Constitution’s commitment to democracy.
We’ve already seen what happens when political parties turn to the courts, instead of the voters, to win presidential elections. Let’s not repeat that mistake again.