On Wednesday, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit upheld a district court order granting a preliminary injunction against Ohio’s new election rules. At issue are rules that, among other things, established uniform early voting rules across the state, cut back Ohio’s expansive early in-person voting period (from 35 to 28 days before the election), and limited early voting on weekends. Even after these changes, Ohio has one of the most expansive early voting periods in the country, and allows no-excuse absentee voting. No matter.
In Ohio State Conference of the NAACP v. Husted, the Sixth Circuit panel concluded that the plaintiffs would be likely to prevail in arguing that the changes to Ohio election laws violate Section 2 of the Voting Rights Act and the Equal Protection Clause of the 14th Amendment. The thrust of the opinion suggests that once a state expands voting periods, it cannot cut them back if it can be shown that such changes may disproportionately hurt an identifiable group. The effect is to turn the VRA and equal protection clause into a ratchet: States don’t have to allow for early in-person voting or weekend voting, but once they do, they can never go back.
University of California at Irvine law professor Rick Hasen, a prominent progressive election law scholar, comments:
Like the district court, this (very liberal) panel of 6th Circuit judges reads both the Equal Protection Clause of the U.S. Constitution as well as Section 2 of the Voting Rights Act very broadly to hold it illegal for Ohio to move from 35 to 28 days of early voting, to eliminate a Sunday of voting used by African-American churches for “Souls to the Polls” drives, and to eliminate “Golden Week,” in which a new (or moving) voter can both register to vote and vote early at the same time. The court barely mentioned the fact that every voter in Ohio has received a no-excuse absentee ballot application as well. . . .
As Hasen notes, the court’s theory is “expansive” and there was “scant evidence” in the record that Ohio’s changes constitute much of a burden to voters. As for whether the courts approach would prevent states from ever restricting voting times once they had been expanded, Hasen writes:
On the retrogression point, the court says that retrogression is relevant to a section 2 totality of the circumstances analysis. I think this is right—it is one factor that can be considered. Where the opinion is more controversial is on the question of what plaintiffs have to show to show that minority voters have meaningfully less opportunity than other voters to participate in the political process and to elect representatives of their choice. . This is an issue which is dividing the lower courts, from the capacious reading of section 2 in Frank v. Walker, the federal case striking down Wisconsin’s voter id law, to the much narrower reading of section 2 in North Carolina Conference of the NAACP v. McCrory, the federal case rejecting a preliminary injunction for cutbacks in early voting and other changes in North Carolina.
Although Hasen may have some sympathy for the Sixth Circuit’s approach here, he is skeptical that a majority of the Supreme Court would agree. Indeed, it’s not even clear that the full Sixth Circuit, sitting en banc, would endorse this conclusion. We may yet see, as Ohio Secretary of State Jon Husted announced his intention to seek en banc review.
At Excess of Democracy, Pepperdine law professor Derek Muller offers a less sympathetic take on the Sixth Circuit’s decision:
prior to 2005, Ohio had zero days of early in-person voting; until 2014, it was 35 days; and the legislature amended that to 28 days.
That, the Sixth Circuit says, is unconstitutional.
It concludes that this cutback “significantly burdened” African American, lower-income, and homeless voters, so the law was subject to heightened scrutiny.
On what basis? The court notes that African Americas, lower-income individuals, and the homeless are distrustful of voting by mail; the complexities of voting by mail complicate efforts from these affected groups; and that lower-income voters’ reliance on public transportation and wage-based jobs would create difficulties in voting in the 28-day period instead of the 35-day period.
So, it logically follows, that must mean that Ohio’s decision to have zero early voting days from 1803 until 2005 was also unconstitutional. Those reasons, after all, certainly have applied for centuries to the same groups (with perhaps concessions to the nature of “public transportation” in the early nineteenth century).
Muller also attacks the panel’s “grotesque misreading” of Bush v. Gore.
the fundamental problem in Bush v. Gore is the “later . . . treatment” in the context of that very election. Voters went to the polls in Florida in 2000 with Procedure A in place; after the election, Procedure B was instituted. That, to the per curiam majority, was the fundamental problem (whether one agrees or not).
For the Sixth Circuit to extend this principle to all changes ever made to any election system is a sweepingly broad interpretation of Bush v. Gore, one that I don’t think can find any real support in the text of the opinion.
But really, this opinion stands for the broader proposition that once a State enacts a voting law, it is almost impossible to amend it in a way that places any change in burden on the people who took advantage of the process in that law.
It might be that SB 238 is a great law, or a terrible law. It might be that this law empowers a lot of voters who’d have no opportunity to vote, or it has no effect on turnout. I don’t know. And that’s my problem–I can’t tell from this record. From the demands of the Court’s Equal Protection Clause jurisprudence, I’d probably let the law stand. And the court tortures the law because of the utter lack of meaningful facts that support some kind of finding of burden.
Whether or not the full Sixth Circuit hears this case en banc, and whether or not this controversy is resolved before the November elections, I suspect this is not the last we have heard of this case, and I would not be surprised were it to eventually end up before the Supreme Court (where, incidentally, the Sixth Circuit has not had the best track record of late).
UPDATE: More at SCOTUSBlog here.