Supreme Court Accidentally Protects Voters While Stripping Americans Of Their Rights

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.

Comments

[proreality]

The most disturbing thing about this court has been its "corporatist" agenda, it has taken every opportunity to subjugate the ability of individuals and protect the rights of corporations. At the heart of this is the Federalist Society, this organization is a blight on the American Judiciary. As with all other right wing contrivances it masquerades itself in pageanted American political speak to hide its insidious and disgusting agenda. Time and again this court has sought to set precedents that deny individual rights and provide for greater corporate power, it is called "Fascism" and it needs to stop being denied and shown for what it is. This goes to the heart of tort reform and the targeting of consumer advocates and legal advocacy groups.

[Cristóbal Joshua Alex - Huffpost Blogger]

Proreality, I think you are onto something. Check this out: http://www.huffingtonpost.com/cristobal-joshua-alex/the-rise-of-the-federalis_b_73410.html

[proreality]

Thank you for the link. In PBS's recent front-line episode on John McCain and Barrack Obama (oct 2008) it speaks about Obama's willingness to include Federalist Society members on the Harvard law review, much to the dismay of his fellow classmates. This is the first time in history either party has run 2 constitutional lawyers. Obama and Biden both taught constitutional law, I only pray that this reflects an intention to clean up the mess that has been made by GWB and the Republican party. The 10th amendment, (all rights not explicitly granted here in will revert back to the state's) is the issue, the problem is using that as cover to deny individual and civil rights, it is their way of not playing by the rules. The most telling aspect is in the linked article where the court says the congress over stepped its bounds, what? The legislature over stepped it's bounds by creating law? that is its sole purpose and function within our government. In matter of fact it is where a citizen must go to pass law's that override precedents set by the court, it overrides court rulings by passing laws, hence the civil rights act overturning, jim crow. This is how Republicans are able to turn reality on its head. I pray President Obama has wakened to this agenda and dispenses with this destructive ideology.