Judge: Giving Ohioans Only 28 Days to Vote Unconstitutional

An overreach on the "disparate impact" standard.

Early-Voting1-570x4271

An Ohio judge has ruled that changes to the state’s voting rules disproportionately harm blacks and is therefore unconstitutional.

The Columbus Dispatch:

Judge Michael H. Watson of U.S. District Court in Columbus said the Republican-dominated Ohio legislature violated the federal constitution and Voting Rights Act in 2014 when it reduced the state’s early voting period from 35 to 28 days. The move also eliminated the so-called Golden Week in which eligible residents could register to vote and cast an absentee ballot at the same time.

Even though Ohio’s early voting period is among the most generous in the nation, the reduction disproportionately affected African Americans, Watson ruled.

The judge noted that blacks took advantage of Golden Week 3½ times as often as white voters in 2008, and more than 5 times as often in 2012.

“Based on this evidence, it is reasonable to conclude that the reduction in overall time to vote will burden the right to vote of African Americans, who use (early in-person) voting significantly more than other voters,” Watson said in a 120-page opinion.

The legislature’s stated justifications for the cutback — reducing fraud, trimming costs, avoiding voter confusion — were weak, said Watson, former chief counsel to Republican Gov. Bob Taft. Watson ordered Ohio Secretary of State Jon Husted and Attorney General Mike DeWine — the defendants in the case — to stop enforcing the shortened voting period.

A DeWine spokesman said the decision — which sided with the state on many issues — will be appealed to the 6th Circuit U.S. Court of Appeals.

Husted said in a release that “for nearly 200 years, Ohioans voted for only one day. If it was constitutional for lawmakers to expand the voting period to 35 days, it must also be constitutional for the same legislative body to amend the timeframe to 28 days, a timeframe that remains one of the most generous in the nation.”

Husted’s argument is not only compelling but obvious. Absent clear evidence of racially motivated targeting—and there is none here—states ought be free to experiment with early voting and absentee balloting rules.

Under Watson’s rationale, no state should dare experiment with expanded voting access lest tinkering back in the other direction be seen as having a disparate impact on minority voters. While I favor making voting much easier than it is, there’s a legitimate cost-benefit calculus at play. It’s quite possible that, having massively expanded access to early voting, the state found that a huge percentage of the increased turnout was confined to a few days before the election, with hardly anyone showing up the first week.  If the difference between being open 35 days and 28 days is a minuscule increase in turnout, then it’s reasonable for the state to cut back on the open hours even if the delta is mostly black voters.

Contra Watson,  ”trimming costs” is a real concern for many states given the stagnant economy. Cutting a week off of the expanded voting window would surely save a whole lot of money given the number of voting centers that would be open across a highly populous state.

Watson is, however, correct that “fraud” is a weak argument for cutting down in-person voting. The potential for fraud is almost entirely in the form of mail-in absentee balloting, which is extremely easy to abuse. There’s essentially no evidence of significant fraud in in-person voting; that’s not surprising, given the risk-reward calculus.

FILED UNDER: *FEATURED, Race and Politics, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. R.Dave says:

    Husted’s argument is not only compelling but obvious. Absent clear evidence of racially motivated targeting—and there is none here—states ought be free to experiment with early voting and absentee balloting rules. Under Watson’s rationale, no state should dare experiment with expanded voting access lest tinkering back in the other direction be seen as having a disparate impact on minority voters.

    I completely agree that Watson’s disparate impact analysis is misplaced here, and that states should certainly be free to experiment with early and absentee voting rules to find the right cost/benefit balance. However, I’m a bit baffled by your assertion that there’s no evidence of racially motivated targeting here. Do you honestly believe that a Republican legislature in a crucial swing state was not motivated by partisanship when it decided to eliminate a week of early voting in a Presidential election year – a week that was disproportionately utilized by a block of heavily Democratic voters? Sure, the ultimate ends may be partisan electoral gain, but the means being used is reducing black voter turnout. That seems pretty obviously “targeted” to me. Hence, I don’t think a disparate impact analysis is appropriate (or necessary), but only because his should be treated as straight-up deliberate racial targeting.

  2. Tyrell says:

    The logic is crazy. They cut 5 days off and this judge says it is racist. Yet they used to have just one day voting, and that apparently was not racist. Where do they get these judges ?
    Seems they can’t win for losing. Just go back to one day voting.
    Here is an idea: why doesn’t this judge offer to pay for the extra 5 days if that is what fills his gourd ?

  3. This is the second time in four years that a Federal Judge has ruled that changes in early voting laws were impermisible. It’s really quite an odd decision because there seems to be no disagreement with the idea that no state is obligated to allow early voting and, indeed, many do not. This court seems to be saying that once you allow it, you can’t change the law. That means, of course, that states now have the incentive to not adopt early voting at all.

  4. gVOR08 says:

    What @R.Dave: said. Here in Ohio Republicans have a solid history of ratfwcking with elections for partisan gain. There’s no reason to deny the obvious just because no one was dumb enough to give a speech on the floor saying, ‘We gotta keep the darkies from voting.’

  5. R. Dave says:

    @Doug Mataconis:

    This court seems to be saying that once you allow it, you can’t change the law.

    No, this court is saying that once you allow it, you can’t change the law in a way that will have a disparate impact on protected classes of voters. Of course what the court should be saying, is that once you allow it, you can’t change the law in a way that is specifically intended to have a disparate impact on protected classes of voters.

  6. Neil Hudelson says:

    It’s quite possible that, having massively expanded access to early voting, the state found that a huge percentage of the increased turnout was confined to a few days before the election, with hardly anyone showing up the first week.

    But is that what happened? It’s also quite possible that the legislator found that–as both the article and the judge states–too many black people and democrats were voting 30+ days out. I have a feeling that if the legislator had cut the voting period from 35 days to 28 days, and a statistical analysis showed that almost no one voted during that week, the racial/partisan motivation wouldn’t have been mentioned in the ruling.

    If the difference between being open 35 days and 28 days is a minuscule increase in turnout,

    From the article:

    The judge noted that blacks took advantage of Golden Week 3½ times as often as white voters in 2008, and more than 5 times as often in 2012.

    I know, I know, “more than 5 times as often” could mean “10 votes” if 2 white people had voted during that same period. Again, however, I would have to assume the judge would not be making hay over a few people.

  7. @R. Dave:

    Except, of course, that the Judge did not find actual evidence of any such intent. He found a disparate impact and inferred intent from that impact. The fact is that any change in the law would have had an impact on some group of people. And, again, the message a ruling like this sends to states is “Don’t adopt early voting.”

  8. Jack says:

    New York state only allows voting on one day. They must be the most racist sumbitches out there.

  9. Gustopher says:

    The “golden week”, where you could register and vote absentee on the same day, is the week that was cut, and the week that was used 3 1/2 times as often by African Americans. The state isn’t just cutting the number of days from 35 to 28 (which would, on the surface seem fine), but eliminating the overlap so new voters and voters that moved since the last election need to make multiple trips.

    If registration were allowed up to the Election Day, I would expect that there would be no disproportionate impact found, or that there would be an assumption that these early-bird African Americans would just show up for the first week of a shortened early voting.

    As it is, the state’s experiment with early voting showed that the previously existing system, with no same-day registration and voting, had a disproportionate impact on African-Americans — it provided the counter-example.

  10. R. Dave says:

    @Doug Mataconis: Yes, but we don’t have to pretend to be naive, Doug. As I said to James in my reply to his OP, do you honestly believe that a Republican legislature in a swing state was not motivated by partisan gain when they decided, in a Presidential election year, to eliminate a week of early voting heavily favored by Democratic voters? Please.

  11. Gustopher says:

    Also, no same-day registration likely impacts renters more than homeowners, which is probably a feature and not a bug.

  12. @R. Dave:

    See, you’ve already made up your mind that the legislature was acting with a racist intent. The law ought to demand more evidence than “this confirms my biases about the political party that controls the legislature.”

  13. MBunge says:

    The problem is this isn’t a policy with a disparate impact on African-Americans. It’s a disparate impact on Democrats. The Republicans aren’t stopping black people from voting. They’re trying to disrupt the established Democratic voter turnout machine in Ohio.

    I’m 100% in favor of making voting easier. I think Election Day should be a holiday and every state should have same day registration. But the judge here is either nakedly taking the Democrats side in a political dispute or he is engaging in identity politics by conflating African-Americans with Democrats.

    Mike

  14. Gustopher says:

    @MBunge: Democrats are not a protected class, but African-Americans are. The judge is not conflating African-Americans with Democrats, or engaging in identity politics, he is applying the law as written.

    Republicans could appeal to African-Americans and other minority groups, but they have chosen not to. That is, however, outside the scope of this case.

  15. Pch101 says:

    @Doug Mataconis:

    Except, of course, that the Judge did not find actual evidence of any such intent.

    How is that supposed to happen? Are you expecting the legislators to vote on this at a crossburning or to shout out racial epithets in their support of a change in the law?

    It’s pretty obvious that there is a national trend by the Republicans to reduce the odds that those who are less inclined to vote for them will vote at all. Let’s not be disingenuous about this.

  16. Gustopher says:

    @Doug Mataconis: since this is the second time in four years or so that a federal judge has ruled this way (I will take your word for that, I thought there were more of these cases), I have to wonder at what point we will be able to demonstrate that no early voting, and no same-day registration itself has a disproportionate impact on African-Americans and other protected classes, and get a requirement that states implement these.

    The experiments in early voting and same day registration are difficult to roll back precisely because they demonstrate the impact of the original system. We now have the data that demonstrates this.

    Ohio isn’t special. There is nothing about the African-Americans in Ohio that makes them more likely to vote with same-day registration than the African-Americans of the rest of this country.

  17. Gustopher says:

    @Doug Mataconis: Does the law require showing any bias at all? I thought disparate impact was enough.

  18. Tyrell says:

    I have been to an early voting site a few times. Once it was on a Saturday and very busy. The other time there were few people and the workers said it was a slow, boring day. We have to remember that the workers have to be paid, and there is a rental fee. So a week of this could cost a few thousand dollars at least. If there are just a handful of voters, that seems a waste. That money could go for something like math books for students. I hear from some kids that they don’t even have a math book. Or some playground equipment. Who can argue with that ?

  19. Neil Hudelson says:

    @Tyrell:

    Who can argue with that ?

    …well, voters, for one.

  20. MarkedMan says:

    This type of conversation boils down to:

    Side A: States should have the ability to adjust their voting schemes as they see fit. No intent to discriminate was proven.

    Side B: Gimme a break. Just because they can come up with some non-racial reason why they did this doesn’t mean we have to believe it. Enough Republicans in enough states have accidentally told the truth out loud that we don’t have to keep pretending. And the whole reason the law measures impact rather than intent is that these racist discussions tend to happen off the record.

    I’m a Side B man in this case, but won’t continue to argue because I just can’t see this going anywhere. People who want to believe that no matter the history you have to assume good intent unless bad is proven are going to argue along those lines. And people like me are going to continue to believe that denying justice because of lack of proof of intent is to ignore the obvious and it fools no one in the affected community.

    We are arguing about the principles we feel are important, not about the facts. The latter can be adjudicated, the former cannot.

  21. Han says:

    @Tyrell: Won’t someone think of the children?

  22. Han says:

    @Doug Mataconis:

    “this confirms my biases about the political party that controls the legislature.”

    It’s not bias if it’s true.

  23. HarvardLaw92 says:

    @Doug Mataconis:

    Since when do we require evidence of intent to nullify a statute under disparate impact? The fact that the disparate impact exists and is large enough to be material, in and of itself, is enough to justify the ruling.

    You’re venturing off into disparate treatment, which is not the same thing.

  24. Pch101 says:

    @MarkedMan:

    It’s long been a truism in American politics that higher turnout generally favors the Democrats, while reduced turnout favors the GOP. The easier that it is to vote, the more likely that it is that the Republicans will lose.

    Given that blacks are far more likely to vote Democratic, it’s easy enough to surmise that anything that reduces voter participation rates is likely to disproportionately impact blacks. It isn’t even necessary to gather specific data to guesstimate that this is a likely outcome, given the general trend.

  25. HarvardLaw92 says:

    @MBunge:

    But the judge here is either nakedly taking the Democrats side in a political dispute or he is engaging in identity politics by conflating African-Americans with Democrats.

    He’s doing neither. Clear evidence of the disparate impact of this policy change on African-Americans was demonstrated. The fact that they may be Democrats is tangential and immaterial.They could just as easily be Republicans, Libertarians, Communists, whatever …

    Race is a protected class, i.e. you generally can’t implement policy that disparately impacts one or more racial groups (even unintentionally) to an extent that is material. The questions to be answered here are: does a disparate impact exist, and, if so, what is the degree of that impact? From that information, a judge makes a decision about the policy under review. Everything else is viewer added issues.

  26. C. Clavin says:

    While I favor making voting much easier than it is, there’s a legitimate cost-benefit calculus at play.

    Well OK, sure…but that’s just a rationalization…everyone knows this was calculated effort (see what I did there?) to suppress Democratic voters.

  27. grumpy realist says:

    Given that it’s a heck of a lot easier to commit fraud via absentee ballots and we haven’t seen a peep out of the Republicritters about that, methinks the lady doth protesteth too much. It wouldn’t have anything to do with the fact that older white Americans are the ones most likely to vote by absentee ballot, would it?

    If it looks like a duck, quacks like a duck, and swims like a duck, we don’t go kiteflying off into the wild blue yonder saying “well, mebbe it’s a water-vole doing the breaststroke.”

  28. HarvardLaw92 says:

    @C. Clavin:

    When coupled with the purging of registered voters in OH simply on the basis of their not having voted in a certain number of prior elections, it does bring the suspected intent into a much clearer focus.

  29. Pch101 says:

    @grumpy realist:

    Voter fraud is extremely difficult because a single vote rarely makes any difference on the outcome. There is no practical way in most cases to cast enough fake votes to move an election result.

    The most effective way to achieve the goals of voter fraud is not through bogus voting, but by denying the vote and/or destroying ballots. I think that we can all see who is more inclined to engage in those practices.

  30. MBunge says:

    @Gustopher: The judge is not conflating African-Americans with Democrats, or engaging in identity politics, he is applying the law as written.

    Blacks are not genetically predisposed to early voting. Is there any reason at all that the “Golden Week” activities being harmed here couldn’t happen at a different time, within the new early voting guidelines?

    If this is going to be the law, why would any state introduce or expand early voting ever again if it means they will essentially give up the right to ever make any further change to the system?

    Mike

  31. HarvardLaw92 says:

    @MBunge:

    Is there any reason at all that the “Golden Week” activities being harmed here couldn’t happen at a different time, within the new early voting guidelines?

    Which brings the question of “why did they cancel that week, instead of some other week?” into specific relief.

  32. Pch101 says:

    @MBunge:

    I’ve already addressed your point. It helps to have an understanding of statistics.

    Making it more difficult to vote will predictably help Republicans. That’s why they keep doing it.

  33. MBunge says:

    @HarvardLaw92: Clear evidence of the disparate impact of this policy change on African-Americans was demonstrated.

    Except the disparate impact results from the disruption of organized Democratic GOTV efforts. Under this logic, Democrats could just start paying minorities 10 bucks to vote and if it increased minority voter turnout, no one could do anything about it.

    Mike

  34. R. Dave says:

    @Doug Mataconis:

    See, you’ve already made up your mind that the legislature was acting with a racist intent. The law ought to demand more evidence than “this confirms my biases about the political party that controls the legislature.”

    If you honestly think that confirmation bias is the only reason for suspecting that a Republican-controlled legislature would, in the current hyper-partisan climate, alter early-voting rules in a manner that clearly reduces Democratic turnout, then frankly, you’re a terrible political analyst.

  35. Tyrell says:

    @MBunge: I thought they were already doing that.

  36. Bob@Youngstown says:

    Regarding the expense of those “extra” days of voting that were cut.:

    In may only be in my county but the only voting booth for those “extra days” is/was at the county board of elections office, which is open and staffed regardless.
    From personal experience (because I have voted there and asked the question), no extra personnel were required to facilitate voting, the space was going to be heated and the lights on regardless.
    So from the standpoint of “experimenting” to conserve state funds (taxpayer dollars) it is a BS explanation.

  37. Gustopher says:

    @MBunge:

    Blacks are not genetically predisposed to early voting. Is there any reason at all that the “Golden Week” activities being harmed here couldn’t happen at a different time, within the new early voting guidelines?

    That would probably be a perfectly fine resolution of this case, and had the state of Ohio done so, I doubt the outcome of this case would be the same — there is a plausible case to be made that it would not affect a protected class, and there would be no evidence to prove otherwise.

    Unless we discovered (after the fact) that blacks were in fact predisposed (genetically or otherwise) to vote 5 weeks before an election, and not 4, and that the same day registration was not the factor. In that extremely unlikely case, there would be a compelling case to be made for the next elections to have that fifth week of early voting. But, it is extremely unlikely.

  38. An Interested Party says:

    Except the disparate impact results from the disruption of organized Democratic GOTV efforts. Under this logic, Democrats could just start paying minorities 10 bucks to vote and if it increased minority voter turnout, no one could do anything about it.

    It is no accident that most blacks vote for Democrats…perhaps if Republicans weren’t so hostile to ethnic minorities, more blacks would vote for Republicans…your “logic” is faulty, as giving people more time to vote is completely different from bribing people to vote a certain way…

  39. Bob@Youngstown says:

    Doug says:”states ought be free to experiment with early voting and absentee balloting rules.”

    State representative suggests that we have a movable single-day election day, and that we keep that date secret…. that should really depress the votes cast and save a bunch of money…

  40. Gustopher says:

    @MBunge: it is illegal to pay people to vote, so, your hypothetical is nonsense.

  41. HarvardLaw92 says:

    @MBunge:

    Again, it does not matter. A governmental policy was implemented and that policy has been demonstrated to have a material disparate impact on a protected class.

    That’s the entirety of the adjudication flowchart. Everything else (why it was implemented, what goals it hopes to achieve, etc.) do not matter. As I said above, those are viewer added issues.

  42. Tyrell says:

    @Gustopher: Yes, it is illegal to pay for votes. Politicians have other names for it.

  43. Jenos Idanian says:

    Rape laws have a disproportionate impact on men, and sex is a protected class.

    Prostitution laws have a disproportionate affect on women.

    Drinking age laws have a disproportionate impace on adults under 21. Age discrimination is against the law.

  44. steve s says:

    If you honestly think that confirmation bias is the only reason for suspecting that a Republican-controlled legislature would, in the current hyper-partisan climate, alter early-voting rules in a manner that clearly reduces Democratic turnout, then frankly, you’re a terrible political analyst.

    A lot of people have learned to skip Doug’s posts and just get to the comment section.

  45. An Interested Party says:

    It’s pretty sad that some people don’t even acknowledge there is a problem with making it harder for blacks to vote and then we get nonsense comparisons like those above…it’s not surprising that those who don’t see a problem and those who make silly comparisons are both aligned with the political party that wants to make it harder for blacks to vote…no wonder blacks don’t want to vote for politicians from that party…

  46. David M says:

    @Jenos Idanian:

    It’s totally a shock that you compare black people voting to crimes. Totally shocking.

  47. Tony W says:

    @Jenos Idanian:

    Drinking age laws have a disproportionate impace on adults under 21. Age discrimination is against the law.

    Mixed into your nonsense is a legitimate point. The constitution guarantees equal protection to all citizens, defined clearly as people born or naturalized in the United States. Age is not a consideration as to your citizenship status.

    But I don’t think that was your intent.

  48. HarvardLaw92 says:

    @Jenos Idanian:

    Neither age nor gender are suspect classes, and all of your examples implicate voluntary behaviors initiated by the allegedly injured parties.

  49. Neil Hudelson says:

    @Jenos Idanian:

    You should probably leave the law to lawyers. You can go back to…I’m going to go with “providing customer support for Comcast.” Yeah, that seems about right for your personality.

  50. @HarvardLaw92:

    That’s my point. The standard for nullifying a minor change in state law should be higher than a mere showing of disparate impact. Correlation does not equal causation, and yet that is essentially the basis for an entire subject area of Federal law. Personally, i find that problematic.

  51. @HarvardLaw92:

    That’s my point. The standard for nullifying a minor change in state law should be higher than a mere showing of disparate impact. Correlation does not equal causation, and yet that is essentially the basis for an entire subject area of Federal law. Personally, i find that problematic.

  52. @R. Dave:

    If all you have is evidence of a disparate impact on Democrats, that’s irrelevant since Democrats are not a protected class under Federal Law.

  53. HarvardLaw92 says:

    @Doug Mataconis:

    I wouldn’t necessarily disagree, but 52 U.S.C. 10301 isn’t vague in any way. The law says what it says.

  54. Jenos Idanian says:

    @HarvardLaw92: I wouldn’t necessarily disagree, but 52 U.S.C. 10301 isn’t vague in any way. The law says what it says.

    So what does it say, anyway?

    §10301. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

    (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2) of this title, as provided in subsection (b).

    (b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

    Yeah, I’m no lawyer. But it says “based on the totality of circumstances,” and as Doug noted, we have a correlation. It’d be nice if someone could offer even a theory of causation, but simply yelling over and over and over about the correlation doesn’t prove a damned thing.

  55. R. Dave says:

    @Doug Mataconis: Sure, but suppressing Democratic voter turnout is the ends, and the means is suppressing black voter turnout. While those ends may be permissible (from an Equal Protection standpoint at least), those means are not.

  56. Barry says:

    @Doug Mataconis: “See, you’ve already made up your mind that the legislature was acting with a racist intent. The law ought to demand more evidence than “this confirms my biases about the political party that controls the legislature.””

    Did you not notice the disparate impact?

  57. Barry says:

    @Tyrell: “If there are just a handful of voters, that seems a waste.”

    Bullsh*t. What would electing Gore in ’00 saved the USA? Trillions?

  58. Jenos Idanian says:

    @Barry: Maybe you aren’t aware of it, but there’s this notion that “correlation does not equal causation.” Since you can see the connection from A to Z here, can you share with the rest of the class just how you got from one to the other?

  59. Just 'nutha ig'rant cracker says:

    @Jenos Idanian:

    (Click)

  60. Tyrell says:

    @Gustopher: Then there should be a special voting time for college students: Sunday mornings at 2:00 am when they are leaving the bars, pizza joints, and midnight bowling.
    And for senior citizens: 6:00 am before they head to McDonald’s.
    They also must set up voting areas in airports so that travelers can vote while they are in the TSA lines.

  61. bill says:

    @Gustopher: it’s illegal to drive over the speed limit too- yet that doesn’t seem to prevent the daily occurrence of it. i remember growing up in the northeast and the union halls would open early so they could pass out free beers before rounding up the crowd and busing them to the polls. real bars couldn’t open until after the polls closed- but not these places!
    and the point is simple, $10 is cheap compared to the potential benefits.
    but seriously, this is just the liberal white guilt crowds underlying belief that blacks can’t do a damned thing like a “normal person”- and chronically need “just a little help” to get by.

    and try to remember, ny state gives you 1 day to vote-period. i thought that what’s good for ny is just the best for all of us?!