Last week's Supreme Court decision in Brunner v. Ohio Republican Party is a disastrous ruling masquerading as a populist victory. Sure, the Court stopped the Ohio Republican Party from booting almost 200,000 eligible voters off the voting rolls, but in reaching their decision, the Court pointed to two decisions that echo a single theme: Americans are not welcome in court.
Groups and individuals essentially need permission to access federal courts, what in legal speak is called a private right of action. That permission is usually granted by individual pieces of legislation, but the Court has ruled that unless Congress specifically embeds a legislative permission slip, you have no case, and no access to court. Of course, the landmark civil rights laws like the Civil Rights Act of 1964 were passed long before the Court told Congress that its laws were unenforceable without a private right of action.
In booting the Republican Party, the Court pointed to only two decisions: Gonzaga v. Doe and Alexander v. Sandoval.
In Gonzaga (536 U. S. 273,) the Court ruled that a student couldn't sue the Gonzaga University, which had freely bandied about the student's private educational records without permission. A jury decided that Gonzaga violated the Family Education Rights and Privacy Act (FERPA), and awarded the student $1.15 million in damages. The Supreme Court reversed the jury decision, ruling that students couldn't ask courts to defend their rights under FERPA. So if your school decides to post reports card in the common area, your only recourse is to ask the Attorney General for help.
In Sandoval (532 U. S. 275,) the Court banned people from using Title VI of the Civil Rights Act of 1964 to defend their rights unless they could prove that they were specifically and intentionally discriminated against. To see how this plays out in practice, we can look at Camden, New Jersey, home to over 100 toxic waste sites and the eighth highest cancer rate in the nation. The city's residents, who are predominantly black and Latino, convinced a federal district court to stop the St. Lawrence Cement Company from installing another polluting factory in their community. But in the wake of the Sandoval decision, the community was forced to prove not just that hosting yet another polluter would have a discriminatory effect, but that the St. Lawrence Cement Company had specifically discriminated against them because of their race. Never mind that the predominantly white neighboring communities were left alone by the polluters.
These two decisions set an absurdly high bar that keeps Americans from defending their rights. Bringing it all together, Republicans were arguing that the Help America Vote Act (HAVA) gave them a permission slip to bring their case against Secretary of State Brunner. The Republicans lost. Does that mean Democrats should celebrate? Not so fast.
Rewind four years to a case called Sandusky v. Blackwell, when Democrats made the exact same argument against then-Secretary of State Ken Blackwell, a Republican. Unlike this year's Republicans who were trying to force new voters from the rolls, the Democrats were objecting to the Secretary of State's instructions that made it extraordinarily difficult for Ohioans to cast provisional ballots. The district court determined that "Mr. Blackwell would not have brought his directives into compliance with the federal Help America Vote Act if not for the lawsuit." When the case reached the Sixth Circuit, Democrats insisted that they could ask the court to enforce HAVA. Just as it did this year, the Sixth Circuit agreed that both parties could air their complaint against the government in court.
A right-wing block on the Supreme Court doesn't want Democrats, Republicans, or Americans of any stripe enforcing their rights in court. This time, the bad ruling hurt the Republicans. There's no telling who will be hurt next time.
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