Will early voting rules in Ohio produce the next Bush v. Gore?

September 4

Thursday morning, in Ohio State Conference of the NAACP v. Husted, a federal district court in Ohio enjoined enforcement of new election rules that curtailed the early voting period in Ohio, concluding that the changes violated Section 2 of the Voting Rights Act and principles of equal protection. The Ohio rules cut back the early voting period from 35 days before the election to 28 days and, in an effort to ensure uniform voting rules throughout the state, eliminated night voting and voting on the Sunday before election day.  These changes, the court concluded, were unconstitutional and in violation of the VRA.

Rick Hasen has some early analysis of the decision. His post begins:

This is a significant case, which could potentially make it to the Supreme Court. It expands voting rights in a broad way, and makes it difficult for a state like Ohio to cut back on any expansions of voting rights that it puts in place. The big question is where the stopping point is in a decision like this, and how to justify calling it unconstitutional for a state like Ohio to make a modest cutback in early voting while allowing many other states to offer no early voting at all.

He further adds that while this decision could be upheld by the U.S. Court of Appeals for the Sixth Circuit, it is doubtful that this ruling would survive Supreme Court review (if it ever gets that far).  I agree.  A particularly troubling aspect of the ruling is the implicit suggestion that once voting times have been expanded or voting has been made easier, such changes may not be undone.  This is particularly so because, as Hasen notes, the changes here are relatively minor.  I find it hard to believe a majority of the Supreme Court would conclude that either the Constitution or the VRA creates this sort of one-way ratchet in election law.

A particular difficulty in evaluating these sorts of claims, however, is that all such analysis occurs with clear knowledge of who wins and who loses from any change, and we can expect partisans of each party to press their advantage.  That is, neither party has a principled position on what ideal voting rules would look like.  Is early voting a good idea? The answer you get is likely to depend on what assumptions are made about who is more likely to turn out.

Each party seeks rules that make it more likely that its own voters are more likely to go to the polls, and (unlike in prior times) they now have the data to hone their approach. Particularly where, as here, the relevant changes are relatively small, I have a hard time crediting the argument that there are larger principles at stake, and an even harder time accepting that (absent evidence of impermissible motivation, such as racial animus) that these sorts of changes are unconstitutional.

UPDATE: According to the Cleveland Plain Dealer, Ohio Secretary of State Jon Husted has already announced his plans to appeal the ruling.

From Husted’s statement:

“During the 2012 election and beyond, this same judge said we had to implement fair and uniform days and hours’ of operation for elections in Ohio. Now he seems to say counties can set their own days and hours of operation.

“Today’s ruling kicks the door open to having different rules for voting in each of Ohio’s 88 counties, which is not fair and uniform and was not even acceptable to this court or the plaintiffs previously.

“We must appeal this ruling, because we can’t simultaneously treat people the same and differently.”

Here’s the contrasting view from an ACLU of Ohio release:

“This ruling will safeguard the vote for thousands of Ohioans during the midterm election,” said Dale Ho, director of the ACLU’s Voting Rights Project. “If these cuts had been allowed to remain in place, many voters would have lost a critical opportunity to participate in our democratic process this November. This is a huge victory for Ohio voters and for all those who believe in protecting the integrity of our elections.” . . .

“Early voting opportunities are vital to Ohioans who have inflexible work schedules, childcare duties or other responsibilities that make it impossible to get to the Board of Elections during regular business hours. This ruling means voters will not see their access to the ballot compromised during the upcoming election. This is great news, and we look forward to the full trial and when these measures are fully struck down once and for all,” said ACLU of Ohio Managing Attorney Freda Levenson.

 

Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.
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