When the Supreme Court vacated the stay that had been issued in Ohio Republican Party v. Brunner last week, it did so based on the view that the Help America Vote Act of 2002 (HAVA) does not authorize a lawsuit by a private party. The stay had ordered the Ohio Secretary of State to comply with the requirement in HAVA to verify the accuracy of the information provided on voter registration applications. The Supreme Court took some pains to make clear it was not disputing the district court and the Sixth Circuit’s en banc legal conclusion that Brunner was violating HAVA in her refusal to take reasonable steps to implement this provision.
I agree with the Supreme Court’s analysis — private citizens have no statutory right to enforce HAVA. In fact, only the Attorney General of the United States is authorized by Section 401 to bring a civil action to enforce the statute. Which, of course, brings up the question: where in the world is Attorney General Michael Mukasey (and Acting Assistant Attorney General of Civil Rights Grace Becker) and why is the Department of Justice and its Civil Rights Division sitting on their hands and doing absolutely nothing to enforce HAVA?
Two federal courts, including the applicable court of appeals, have stated specifically that the law is being violated by a state official. If the Justice Department believes the courts are wrong and the Secretary of State is correct, then it has an obligation to issue a statement explaining why it believes that is true. If the Justice Department agrees with the courts, then it has an even more compelling obligation to fulfill its enforcement duties and immediately file suit. Not a lot of work would be required other than to ask the federal district court to reissue its TRO ordering the Secretary of State to comply with the law – all of the evidentiary findings have already been made and approved by the Sixth Circuit Court of Appeals. Unless a majority of the entire Sixth Circuit Court of Appeals change their minds on the law (which is pretty unlikely) we know how they would rule.
The complete silence of the Department is a sign of either utter incompetence or political cowardice or a combination of both. Only Mukasey and Becker know for sure.