NOTE: Updated 9:40 p.m. with link to one more brief

Ohio’s top election official has asked the Supreme Court to put on hold a federal judge’s order requiring steps to verify the voter registration rolls across the state, arguing that the order had “destabilized” the election situation just three weeks before voters go to the polls.  An application for stay (Brunner v. Ohio Republican Party, et al., 08A332) was filed Wednesday night with Justice John Paul Stevens, who handles emergency matters from the Sixth Circuit.  (An attached exhibit can be found here.)  The plea by Ohio authorities relies heavily upon thoe Supreme Court’s per curiam ruling two years ago in Purcell v. Gonzalez, found here, in arguing against court challenges to voting procedures close to election time.

The judge’s order imposes a Friday deadline for Ohio’s Secretary of State, Jennifer Brunner, to reprogram a statewide database after state Republicans complained that the state had failed to verify voter data as required by a federal law (the Help America Vote Act).  The en banc Sixth Circuit Court, in a 9-6 ruling Wednesday, refused to block that order.  (The Circuit Court’s opinions can be found here.)

Under the federal law, state officials are to verify information about who is registered by comparing a statewide registration database with data in the drivers’ license  files of the state voter vehicle agency.  If the files do not match, county election boards are to be notified in an attempt to get the records updated.

The Ohio Republican Party went to court, claiming that the Secretary of State had turned off this vote verification process.  The party, along with a state legislator who joined in, contended that Secretary Brunner had stopped checking with county boards when mismatches were found.  Their complaint contended that this would lead to voting by individuals who are not eligible.

The lawsuit was also prompted by the Secretary’s order in August allowing would-be voters to register and votge on the same day, for early voting in late September and early October.  A federal judge on Oct. 10 ordered the Secretary to take steps to meet the matching requirement, either by sending lists of mismatches to county election boards, or giving those boards a method to search the state database in order to act on the mismatches.   A three-judge panel that day lifted the order temporarily, but the en banc court removed that stay Wednesday.

In asking Justice Stevens, and potentially the full Supreme Court to step in, Secretary Brunner argued that the judge’s order requires her staff and 88 county election boards to divert their attention from preparing for the Nov. 4 election, to a large undertaking to refashion the statewide voter database.

The application contended that the order may encourage a flood of lawsuits across the nation, disrupting the election process and threatening to require many voters to cast provisional ballots, thus perhaps deterring them from voting.

Justice Stevens may act without asking state GOP officials to respond, or wait until there is a response.  He also has the option of sharing a decision with his Court colleagues, or acting alone.

UPDATE: Ohio Republicans urged Justice Stevens and the Court to deny any temporary postponement of the judge’s order, arguing that the merits of the dispute have not been decided and there is no basis for the Justices to interfere with a temporary restraining order.  The brief in opposition noted that the Secretary of State had not yet filed a petition for review with the Justices. And, it  pointed out that the Sixth Circuit has said explicitly that, if the Secretary was having trouble comply with the judge’s order, she could return to that judge to get the order revised.

The AFL-CIO and other labor groups sought permission to join in the Supreme Court stay review, arguing primarily that the Ohio GOP had no legal right to sue to challenge duties that federal law imposed on state officials without creating any private rights to be enforced.

UPDATE 9:40 p.m.  The final brief has now come in — the reply brief from the Secretary of State.   It is here.

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