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Supreme Court allows changes in Ohio early voting to remain in effect

When there is a significant burden on voters imposed for no good reason, or imposed for a partisan reason, then courts should shut down voting restrictions. The Ohio case did not involve significant burdens.

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    A sign outside the Franklin County Early Voting Center says 'Vote now,' on Oct. 17, 2012, in Columbus, Ohio. This county has had the biggest in-person turnout in the state for early voting. Ohio is a key swing state.
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Earlier this month, a federal district court judge in Ohio voided an Ohio law that amended the state’s early voting laws, principally by cutting back the number of days that early voting would be available from 35 to 28. As I noted at the time, the decision was troubling in many respects, not the least of them being what seemed like an overly expansive view of the provisions of Section 2 of the Voting Rights Act as it applies in this situation and a far too restrictive view of the right and ability of state legislatures to amend election laws, which is an area that the Constitution concedes almost entirely to the states. As part of his order in that case, the district court Judge ordered that early voting for the 2014 elections must comply with the old 35-day schedule, notwithstanding the fact that this law was no longer on the books. Last week, a panel of the Sixth Circuit Court of Appeals upheld this order, although it did not rule on the underlying merits of the case itself, and the state vowed to appeal that decision to the Supreme Court if necessary. Late yesterday, mere hours before early voting would have had to begin if the old 35 day rule were in effect, the Supreme Court put a stay on the district court order, meaning that early voting in Ohio will now begin on Monday, Oct 6:

WASHINGTON — The Supreme Court on Monday blocked an appeals court ruling that would have restored seven days of early voting in Ohio.

The Supreme Court’s order was three sentences long and contained no reasoning. But it disclosed an ideological split, with the court’s four more liberal members noting that they would have denied the request for a stay of the lower court’s order extending early voting. Dale Ho, a lawyer with the American Civil Liberties Union, said the court’s action “will deprive many Ohioans of the opportunity to vote in the upcoming election as this case continues to make its way through the courts.”

The ruling, which reflected a partisan breakdown in many court decisions nationwide on voting issues, saw the five Republican-appointed justices uphold the voting restrictions enacted by the state’s Republican-controlled Legislature in February. The new limits removed the first week of Ohio’s 35-day early voting period, in the process eliminating the only week that permitted same-day registration, a feature most often used by minorities.

Last Wednesday, a three-judge panel of the United States Court of Appeals for the Sixth Circuit, in Cincinnati,ordered officials in Ohio to let voters start casting ballots on Tuesday. The panel reasoned that cutting back on early voting at polling places placed a disproportionate burden on poor and black voters.

The panel said it was mindful that Ohio allows voting by mail throughout the contested period. “The presence of vote by mail undoubtedly ameliorates some of the burdens on voting,” Judge Karen Nelson Moore wrote for the panel. But she added that “African-Americans, lower-income individuals and the homeless are distrustful of the mail” or “would prefer to vote in person for unrelated reasons.”

State officials filed an emergency application with the Supreme Court on Thursday, asking the justices to block the order of the appeals court. They said that “Ohio is a national leader in making voting easy,” noting that it continues to offer early voting at polling places on 22 of the 28 days before Election Day.

Some 17 states offer no early voting, the state’s brief said, and the median number of days offered by those that do is 11. “All told, Ohio offers more early voting options than 41 other states and the District of Columbia,” the brief said.

Lyle Denniston offers more details on the case background:

The Supreme Court could have hurried along the process of reviewing the case. Ohio officials had suggested that the Court might treat their request for a delay as a formal petition for review, and to grant it. The Court did not do that. It left it to the state to file a new petition, as such, and when that is done, the Court would choose whether to review it.

Even if the state moves quickly to file a petition, and even if the Court grants review and gives it very rapid review, those actions may not come in time to save for this year the early voting opportunities that civil rights groups had sought and that Judge Economus had granted.

One of the arguments that Ohio officials have made, and made again to the Supreme Court, is that Ohio is out in front of most states in the number of early voting days it allows, and that should be sufficient.  The expansion of early voting in Ohio was adopted by the state legislature nine years ago in the wake of major problems of delay at the polls in the 2004 elections.

The case as it is now unfolding before the Supreme Court involves major constitutional issues, especially on how far the Fourteenth Amendment’s guarantee of legal equality applies to early voting opportunities, and how courts are to apply Section 2 of the 1965 Voting Rights Act.   Section 2 has become newly important to challengers of voting restrictions since the Supreme Court last year struck down a key part of the 1965 Act, the part that triggers federal government veto power over changes in state election laws that may be racially discriminatory.

Law professor and election law expert Rick Hasen, who expressed misgivings about the District Court opinion when it was handed down, argues that the Ohio case probably never should have been filed to begin with:

I think it was a mistake to bring this Ohio case. I am not convinced that it is a significant burden on voters to cut back a week off early voting including the last Sunday. Really, if 28 days is too little early voting, what does this say about New York, with NO period of early voting?  I do not buy the “context” argument about Ohio in part because these cutbacks are so minor.

I am worried this case will make bad law, and have bad effects in cases such as challenges to Wisconsin’s voter id law, Texas’s voter id law, and North Carolina’s omnibus bill making it harder to vote. I have argued that when there is a significant burden on voters imposed for no good reason, or imposed for a partisan reason, then courts should shut down voting restrictions. The Ohio case did not involve significant burdens, and the theories accepted by the district court and 6th Circuit panel were vast constitutional expansions of voting rights. As Ned Foley reminded us, not everything that is good policy is constitutionally required.

But now if the Supreme Court reads both the Equal Protection Clause and Section 2 of the Voting Rights Act very narrowly in the Ohio case, it is bad news all around and in cases where the changes matter more.

As Hasen would no doubt concede, we can’t necessarily determine how the Supreme Court may deal with those other, arguably more serious, cases based on the granting of a stay that didn’t include written opinions of any kind. It’s possible that one or two justices may be swayed by the facts of those cases in a way that they were not in this case. This is especially true since, as he points out and as I argued earlier this month, the “restrictions” allegedly put in place by the changes to Ohio’s early voting laws were not significant burdens on the right to vote. Not only did 80 percent of the original Ohio early voting period remain intact after the law was changed, but voters are still able to vote by absentee ballot if they cannot make it to the polls, and, of course, are still able to vote on Election Day. The suggestion that there is a significant enough difference between 35 days and 28 days that it requires intervention by a federal courts into an area traditionally, and constitutionally, left to the states quite simply strains credulity. Accepting that argument basically means accepting the idea that those states that already offer less than 35, or even 28, days of early voting are in violation of federal law, not to mention the 17 states that don’t offer any form of early voting at all. Given the fact that early voting is a relatively recent experiment that has been adopted by states, and that the evidence that it actually increases turnout is murky at best, this would be an utterly absurd result, and the district court’s ruling was an unwarranted intrusion into an area properly left to the states, absent clear evidence of a racially discriminatory intent, which was not found during the factfinding phase of the district court proceedings.

The question here, though, isn’t whether or not early voting is a good idea, or even whether it actually increases turnout. Those are both policy issues that are, by and large, irrelevant to the legal questions involved. Under the Constitution and, more generally, under the system of separation of powers that we have in this country, these types of policy issues are best left to the legislature and not to the courts, unless there is some reason for the courts to get involved to begin with. Direct evidence of discriminatory intent would be one of those reasons, of course, but that applies even outside of the racial context. For example, when Ohio first revised its early voting laws to eliminate voting during the weekend before the election for everyone except members of the military the law was properly voided because there was no rational basis for giving that kind of preference to members of the military. In this case, though, we’re speaking of a law that applies to everyone, so the idea that one group is more advantaged or disadvantaged is, at best, speculative. Given that, it was utterly improper for the district court to adopt the broad reading of federal law that it did and strike down a duly enacted modification of elections laws by the representatives of the people. Whether or not you think it was good policy for the State of Ohio to do this, there simply isn’t any credible argument that it ought to be something that is against federal law. And that’s why the Supreme Court was correct to place a stay on the court’s ruling until it can rule on the case.

As a practical matter, this decision is not likely to have any real impact in Ohio in the 2014 elections. Neither of the state’s Senate seats are up for re-election this year, and Gov. John Kaisch has taken such a large lead over his Democratic challenger that, in many respects, it seems that Democrats have essentially already conceded that race. Going forward, though, this case will ultimately end up before the Supreme Court, perhaps as early as this term, and as Hasen notes that decision could have significant implications for other voting rights cases making their way through the federal courts.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.

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