A judge threw out Attorney General J.B. Van Hollen’s lawsuit against the Government Accountability Board Thursday, causing both relief and frustration throughout Wisconsin politics.
Dane County Judge Maryann Sumi found no state or federal law was violated through the GAB’s decision, as HAVA leaves the enforcement of the act up to the discretion of the states and their legislature.
“The state through the Government Accountability Board has … determined, at least at this time, it will match databases only from Aug. 6, 2008, forward,” Sumi said. “That is exactly the type of discretionary decision-making the Government Accountability Board was created to do. It is exactly the kind of discretion HAVA left with the states.”
Van Hollen sued the GAB mid-September over their decision to crosscheck new voter registration starting from Aug. 6, 2008, onward rather than going back to Jan. 1, 2006, which was Wisconsin’s deadline for compliance with the Help America Vote Act of 2002.
Van Hollen sued, saying the GAB’s decision violated state law by not going back to January 2006.
The Legislature also adopted the “Compliance with Federal HAVA” provision that authorizes anyone who believes a violation has occurred to file a written complaint to the board, which will then be taken into account during trial.
Sumi ruled Van Hollen did not go through those necessary measures, and instead filed a lawsuit based on his authority as primary law enforcer of the state.
“The attorney general did not use the process established … and went directly to what he believed his powers were,” Sumi said. “However, that power does not give the attorney general power to enforce HAVA or the Wisconsin laws related to HAVA.”
The recent U.S. Supreme Court decision from Ohio also played a role in the judge’s decision.
On Oct. 17, the Court ruled neither private individuals nor those representing private individuals such as political parties can sue to enforce HAVA. This meant the Republican Party of Wisconsin no longer had standing to sue the GAB in this case.
“In the absence of any federal or state law requirement, conditioning the right to vote on a HAVA check or having people flagged to reregister at the polls, the court is without authority to create such a requirement,” Sumi said in her ruling. “To do so would be substituting the judge’s opinion as to who can vote and how and when for the eligibility criteria actually established by the Constitution and state law.”
Sumi granted the motions for dismissal from the GAB and Democratic Party of Wisconsin and dismissed the complaints from the Department of Justice and the RPW.
According to Lester Pines, attorney representing the GAB, this decision vindicated the entire GAB’s case and proves that Van Hollen and the RPW were completely mistaken in their reading of the law.
“Judge Sumi’s decision was exceptionally scholarly, well reasoned, well supported by law, and supported every position the GAB took in this case,” Pines said. “This proves that the citizens of this state have no reason to be concerned that election laws of this state and federal election laws are not being enforced properly.”
However, Kevin St. John, spokesperson for the DOJ, was disappointed with the ruling and stated the department does intend to appeal the case to a higher court.
“Our case involves numerous aspects of state law, and the attorney general is vested with authority to seek enforcement of that law,” St. John said. “Obviously, there are portions of today’s opinion that we disagree with and we have legal avenues to appeal that ruling.”
He added they hope to keep the case within the state courts because it is a state action, and even if it is not resolved before Nov. 4, the issue will not become moot because there will always be future elections.
Hours after the decision was made, Gov. Jim Doyle hosted a press conference at the state Capitol, voicing his approval for the judge’s decision.
“Wisconsin has a long, strong tradition of protecting our right to vote,” Doyle said. “With today’s decision, we can all move forward with a smooth and successful election. … Today’s decision is a very important step forward in this important and historic election.”
