02 November 2004

Justice Stevens appears to have a finely nuanced grasp of civil procedure. And that is a very, very good thing. In a Chambers opinion (scanned PDF) overnight, in his capacity as Circuit Justice for the Sixth Circuit, Justice Stevens denied a motion for truly extraordinary relief.

The allegations of abuse made by the plaintiffs are undoubtedly serious—the threat of voter intimidation is not new to our electoral system—but on the record before me it is impossible to determine with any certainty the ultimate validity of the plaintiffs' claims.

Practical considerations, such as the difficulty of digesting all of the relevant filings and cases, and the challenge of properly reviewing all of the parties' submissions as a full court in the limited timeframe [sic] available, weigh heavily against granting the extraordinary type of relief requested here. Moreover, I have faith that the elected officials and numerous election volunteers on the ground will carry out their responsibilities in a way that will enable qualified voters to cast their ballots.

Spencer, et al., v. Pugh, et al., No. 04A360 (Nov. 2, 2004) (Stevens, J., in chambers) (emphasis added). Although it might seem like this is simply an abrogation of authority—after all, he had the authority, in these circumstances, to either grant the relief or deny it on the merits—this is actually a subtle exercise of discretion that throws the ball right back in the right court. Just as in Cheney a few short months ago, although with less venom, Justice Stevens points out that the lawyering below didn't create a sufficient record—and that there remained substantial evidentiary work to do before the matter is ripe for a proper judicial decision.

In the end, the problem is the system, not the particular behavior in a state adjacent to the original home of the Ku Klux Klan. Justice Stevens's decision returns the burden to act to those to whom it is entrusted—the election judges, not the Article III judges. Hopefully, now they will. On the other hand, I don't approve of the purported Republican plan. Their efforts would have been far, far better devoted to ensuring proper counting; but that presumes that the objective was a fair and accurate count. That the Democrats aren't a whole helluva lot better is beside the point. Then again, we should remember who used to be the mayor of the largest city in Ohio.