Supreme Court Allows Changes In Ohio Early Voting To Remain In Effect
The Supreme Court has issued a stay that will allow changes to Ohio's early voting law to remain in effect for this year's election. That was the correct decision.
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 October 6th:
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 eighty 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 thirty-five days and twenty-eight 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 thirty-five, or even twenty-eight, 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 fact-finding 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 Governor 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.
Hmmm…a Republican pundit thinks limiting voter access is the right decision.
Quelle suprise!!!
@C. Clavin:
(1) I am not a Republican
(2) As I said in the post, whether or not early voting is a good idea is a policy issue. That is the province of legislatures, not courts.
@Doug Mataconis:
Actions speak louder than your Voter ID.
Right…In this case a Republican Legislature intent on limiting voter access for a certain group of largely Democratic voters…and endorsed by Republican Justices.
This law won’t matter, but the GOP is going to live to regret making its obvious attacks on the ability for poorer people to vote an issue of ‘policy’. And it’s going to be pretty simple–one more two-term Democrat and Anthony Kennedy’s retirement, and then a simple ‘policy’ about the truthfulness of campaign ads will come to the Supreme Court, pass 5-4, and basically knock away 85% of what the GOP uses in its election.
Far more damaging than the desperate attempt to stop poor people from voting.
@C. Clavin:
Note the partisan division of the Court’s decision.
Let’s face it, limiting access to polls, especially of minority voters, has been the goal of Republicans for the past decade at least. Why?:
Are we really going to allow majoroty Republican legislatures the right to protect their majoritry through limiting access to the polls through racially discriminatory measures? SCOTUS seems to be saying yes. That said, I agree with Professor Hasan that this might not be the ideal case.
@C. Clavin:
What actions are you speaking of? His voting?
Nice essay, especiUnder 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.
@OzarkHillbilly:
His writing…not the least of which is to assuage the faults of the far-right with “Both Sides Do It” nonsense.
@Guarneri:
Right…because it’s easier to buy State Legislatures than the SCOTUS…although it’s clear who’s payroll at least 3 of the Justices are on.
@Guarneri:
@Doug Mataconis:
What a ridiculous thing to write. Poll taxes, school desegregation, voter suppression, mixed-race marriage, anti-sodomy laws, gay marriage, etc. etc. etc. were all “policy” issues and yet were all also decided in, and the province of, the courts. This bright line dividing so-called policy issues from the judicial branch exists only in your head. It certainly does not exist in the constitutional practice of this country, at least not since Marbury v. Madison.
Somehow the edit didn’t work.
The money line seems to be what printed. Hence you can get past the ruling into policy. It seems that it does stretch credulity to believe a full month is required to vote, and that rather than hurling invective one should look at the pros and cons of voter access vs proximity of candidate vetting to an actual election date, and administration- access vs managing a process including, yes, the potential for mischief. The way you guys are coming at it early voting should start six months, a year, who knows? how far in advance. There is no coherent guideline except “more” and fear of the boogeyman.
@Guarneri:
Exactly — UNLESS there is some reason for the courts to get involved. Which there is in this case. When the legislative branch acts in a manner contrary to constitutional requirements, then the courts may step in.
“The law, in its majestic equality, forbids both rich and poor alike to sleep under bridges, to beg in the streets, and to steal loaves of bread”. — Anatole France
@Guarneri:
Stop pretending this isn’t about limiting the vote.
The length of time for voting in Ohio was established.
Then Republicans wanted to reduce it in order to limit the vote of people who don’t typically vote for them.
The Republican members of SCOTUS said that’s a great idea.
Everything you typed is merely obfuscation.
Does Doug believe that same sex marriage is a legislative issue best left to the states? Because if he does, all the good things he’s written on SSM are wrong.
This is where is libertarian ideology is in conflict. If there is a constitutional right to vote, it ought to be at least unfettered as the right to marry. Would you have state legislatures saying you can marry on certain days or whatever limit a state legislatyre might want to impose?
@Rafer Janders:
Even under this ruling, Ohioans will have a month to vote, including the weekends immediately preceding the election.They can register and vote on the same day. Even under the evil racist conspiratorial Republican regime, it is easier to vote in Ohio than just about anywhere else. At what point do you have to start early voting in order not to be called a racist? Three months before? Six? Twelve?
We should probably separate the issues:
Is Ohio’s new policy legal? Yes, by pronouncement of SCOTUS.
Would a differently constituted SCOTUS properly decide differently. Probably.
Is 35 days necessary or better than 28? Open to debate.
What effect will this have on total turnout? Minority turnout? Open to debate.
Was the 35 day program relief for specific abuse by Republicans in the State of Ohio? Yes.
Are Governor Kasich and his administration a55holes whose only purpose is to suppress minority votes. Yes.
@Hal_10000:
The law in Ohio was 35 days.
Then that time frame was reduced by 20%.
Why the ruckus?
Because in 2004 Ohio had the longest lines in the country and 178,000 were left out in the voting cold. Bush won Ohio by 118,000 votes. It was the deciding state.
@stonetools:
The difference is that marriage equality is covered by the Equal Protection and Due Process clauses of the 14th Amendment.
There is no Constitutional right to early voting whether it’s for 35 days, 28 days, or whatever period a legislature may select. It is purely a policy issue, and the idea that a state legislature can never amend its election laws is utterly absurd.
@Doug Mataconis:
Fixed that for you….
All the “there is X number of states that don’t offer what Ohio offers” is an asinine argument. Who cares that North Dakota doesn’t offer the same voting policies as Ohio. In a country where different states have different demographics one should understand that it makes sense to apply policy that best fit said state. And correct me if I am wrong anyone, but until after 2010, changing policy to encourage more voting was not frowned upon by any political party.
For Doug or anyone else to not acknowledge that this policy is purely partisan backed by a partisan Supreme Court is insane. To feel that changing the voting rules that only affect a certain class of people as being a “purely policy issue” is a coward’s way out of what we all know to be the real intent behind the change. Where I am from, we call that “not keepin it 100”!
@Doug Mataconis:
Again, ridiculous, and a nonsense parsing of words, defining the issue down to an irrelevancy of “no Constitutional right to early voting.” There’s also no constitutional right to vote wearing pants, so according to this the states could, quite clearly, bar the door to anyone in trousers or jeans?
There is, quite clearly, a constitutional “right to vote” in general as outlned, most particularly, in the Fourteenth and Fifteenth Amendmens. There is simply no “policy issue” exception to the constitutional protections afforded to the franchise.
You know, when you have to rely on strawman arguments, it’s usually a sign that you don’t have much. No one is arguing that sates can “never amend” their election laws. What we are arguing, and as is clearly established by more than a century and a half of legislation and judicial review, is that states can’t anend their laws for the purpose, whether stated explicitly or designed implicity, for the purpose of burdening a particular segment of the population in order to make it harder for them to vote.
@C. Clavin:
And this is relevant … how? These lines didn’t form at early voting stations. They formed on election day. There has a been a huge surge in absentee and early voting in Ohio in the last few elections but that is heavily concentrated in the weeks right before an election. Again, I’m not seeing that the difference “evil racist election” and “fair balanced election” is seven days.
The fact that you only consider the one week reduction in your analysis out of ignorance strains credulity. All of the hand waving by pundits and lawmakers regarding 28 days vs 35 days is to distract from the cuts that were actually aimed at poor and minority voters. Would a change in the law that ONLY cut the early voting from 35 to 28 days disproportionately effect minority voters? Maybe slightly as many black churches had organized drives on the first Sunday of early voting, but that could be shifted to the following Sunday. However, as I pointed out in the other thread, evening and weekend voting was also cut. If you can’t see how cutting weekend and evening voting would disproportionally effect the ability of poorer people to vote you are either willfully ignorant or not paying attention. This change was clearly aimed at suppressing poor and minority votes and so should come under strict scrutiny.
@Hal_10000:
With that understood, why should there be any effort to decrease the number of days you can vote in Ohio? This has an adverse affect on long lines during election day.
Vote By Mail! In about 3 weeks I will receive my ballot in the mail. I will be able to mail it in or drop it off at one of the multiple drop boxes. The same applies to Washington and increasingly California.
@C. Clavin:
I still don’t see how early voting is particularly a conservative or liberal issue. In Canada, where even the Conservative Party is to the left of the Democrats on most things, early voting is 10 days before the election.
And no one, including the left most major party, the NDP, thinks that’s a problem.
@george:
In Canada your conservative party is not dedicated to, and has a sordid recent history of, the suppression of minority rights.
@george:
Well it’s not so much a liberal issue per se…the Republican issue is suppressing votes…in every single such case around the nation Republicans are behind it. One case is a singular event, two cases is a coincidence…every single case…well now, that’s an gol’ danged obsession.
It’s a liberal issue only to the extent of being interested in a functioning democracy and preventing the suppression of votes.
@Hal_10000:
Right…because early voting was limited.
Early voting works. Cutting the so-called Golden Week where you can register and vote at the same time, in addition to cutting popular days and hours for voting, is intended to do only one thing…dis-enfranchise those who already use those days…and help elect Republicans.
@Doug Mataconis:
No, that’s not a difference. The righ to vote is also covered by multiple Amendments, including the Fourteenth Amendment, which imposes a penalty upon states that deny or abridge “the right to vote at any [federal or state] election … to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, … except for participation in rebellion, or other crime”; the Fifteenth which provides that “[t]he right of citizens of the United States to vote” cannot be abridged by race; the Nineteenth, which says that the right to vote cannot be denied by gender; the Twenty-Fourth, providing that “the right of citizens of the United States to vote” in federal elections is not subject to a poll tax; and the Twenty-Sixth, which expands the franchise so that “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote” is not denied.
Really, what a stupid argument, to argue that “marriage equality is different, because it’s protected by the Constitution!” when the right to vote is addressed far more often and far more explicitly by that document than the right to marry. If you applied the “logic” that you’ve deployed here to marriage equality you’d have to deny that right because “there is no Constitutional right to gay marriage”….
@george: Middle class people have cars to drive to polling stations, can generally take an hour off to vote, and are presumed to lean Republican. Poor people have poor access to transportation, can’t readily leave work, may be used to taking the bus from church to the polls on the Sunday OH just cut off, and are presumed to lean Democratic.
I have received an unsolicited application for an absentee OH ballot. I regard absentee voting as leaving a better paper trail than in-person. Poor people distrust mail in ballots (there is history of officialdom suppressing their votes). Historically, absentee ballots lean Republican.
@Rafer Janders:
What Rafer said. Under Doug’s analysis, the states should be able to put ony limitations on marriage they want, up to and including what days people should marry. Hey, isn’t that a policy issue?
@gVOR08:
But that suggests a solution of having more polling stations (ie locally there’s one in every school district, 99% of the time within easy walking distance in a city), with extended hours (a 12 hour window) rather than extending early voting.
I get that the Republicans are trying to limit the vote. I don’t see how fighting them on early voting is a useful approach – if the stations are that hard to get to, an extra week isn’t going to make much difference.
@george:
“I get that the Republicans are trying to limit the vote.”
And in other methods of Republicans limiting the vote, Koch-funded entities are mailing out registration forms with incorrect information on them, including what is the deadline to register and where the completed forms are to be sent:
“The group behind the mailing is the sharply conservative, Koch brothers-backed Americans for Prosperity Foundation. AFP Deputy Director Donald Bryson quickly apologized for the error.
“It was a mistake,” Bryson said. “We’re not going to make any bones about it. We made mistakes in the mailer.”
There are other problems beside who received the mailer. It has factual mistakes as well. It gives voters the wrong deadline for registration and directs them to the wrong state agency to sign up. Bryson chalks that up to a possible “cutting and pasting” mistake. “
@george:
And the Republican legislatures block that too.
The Republicans try everything to limit minority voting. These voter supression schemes aren’t just “voter ID laws” or “early voting laws”. They are generally an entire package of laws aimed at limiting minority and Demmocratic voting.
A cycle or two ago my county in Ohio agreed to extended early hours, but moved the one location from the board of elections office downtown near the bus terminal to a suburban location.
@Ron Beasley: so does your state discriminate against those without mailboxes? this stuff is beyond laughable, i don’t recall ohio being a part of the democrat south that didn’t want blacks (let alone women) voting. but that never fails to rally the guilt ridden white folk who don’t think minorities are capable of voting on their own. and new york state doesn’t allow any early voting, yes- the uber liberal new york state.
@bill: Where do you live that people don’t have mailboxes? Try to be reasonable in your rants please. It’s difficult to keep up with the goalpost moves as it is without trying to filter out really stupid stuff.
@bill: While I am thinking about it, also where is it that you live that animus directed at minorities (of any sort) is limited to people of Southern extraction? I’ve lived on the left coast in a major city all of my life. We have lots of racists and bigots in my home town that aren’t Southern at all!
@Doug Mataconis: “I am not a Republican”
Bull f-ing sh*t.
@george: “But that suggests a solution of having more polling stations (ie locally there’s one in every school district, 99% of the time within easy walking distance in a city), with extended hours (a 12 hour window) rather than extending early voting.”
Which the GOP is not doing; from what I’ve heard, they’re more likely to cut the number.
“I get that the Republicans are trying to limit the vote. I don’t see how fighting them on early voting is a useful approach – if the stations are that hard to get to, an extra week isn’t going to make much difference.”
Actually, it does, if you have limitations on work, transportation and children.
On a previous thread it was suggested that if minorities don’t like their circumstances all they have to do is vote the bums out. Problem solved using conservative logic.