There will be a lot of stuff written, both pro and con, about what the United States Sixth Circuit Court of Appeals did in its en banc ruling affirming U.S. District Court Judge George Smith's temporary order in Ohio Republican Party v. Jennifer Brunner. The most interesting, though, comes in the dissent written by Judge Helene White. Here is her dissent:
HELENE N. WHITE, Circuit Judge, dissenting.
I am not prepared to challenge the motivations of the parties, the district court,or my colleagues. I dissent because I find the record made in the district court wholly inadequate to support the district court’s TRO. In a fraction of the time spent by all in pursuing, opposing and ruling on plaintiffs’ petitions, the district court could,and should, have conducted an evidentiary hearing enabling the parties to develop the factual predicates of their arguments.
The judges of this court have been forced to opt for one or the other version of the facts, or to defer to the district court’s conclusions, without record support. The affidavits and arguments submitted below are inadequate to establish either that defendant failed to comply with Help America Vote Act (HAVA), or that plaintiffs or the public will suffer irreparable harm unless defendant is compelled to develop a program that enables county election officials to avoid having to access voter verification information by checking a voter it seeks to verify in the database. I note that it appears that the county boards of elections are the entities responsible for entering the new voter registration information in the system in the first place. Nor does the record show that ineligible votes will actually be cast and counted for failure of defendant to create the software ordered by the court.
In sum, notwithstanding the exigencies involved, the court should have put plaintiffs to their proofs. I am aware of no case law that supports that a district court has authority, even in cases of emergency, to forego the development of an adequate factual record and grant relief based upon speculation, or that this court is obliged to defer to that speculation. To the extent the court’s decision was based on affidavits, they were insufficient to support the court’s conclusions. I am
unable to agree with the majority on this record that defendant has failed to comply with HAVA,or that plaintiffs or the public will suffer irreparable harm.
Apparently, judging from Judge White's dissent, Judge Smith issued his order without taking any evidence, but relying instead on affidavits and other information. So here we have a Federal Judge issuing an order that could jeopardize the votes of up to 200,000 Ohioans, and he doesn't take the time to conduct a hearing? What the hell is that about?
This is what we think that Republicans are trying to do: They generate news stories about supposed "fraudulent" schemes involving voting by demographic groups that lean Democratic and then use those news stories to justify Federal court action by Republican appointed judges. All without having to conduct evidentiary hearings.
If Barack Obama wins the presidency, which we think he will, the Democrats ought to think about passing a law that requires judges to actually hold evidentiary hearings before issuing rulings that could prevent people from voting. It seems to us that it is the least a judge could do.