Must-Read Ned Foley Post on Husted Early Voting Decision, Military Voting Case, and Pa Voter ID Case

Ned Foley has a must-read post, Analyzing a “Voting Wars” Trifecta.

Here’s a taste on each of the three areas Ned covers.

On Husted’s uniform voting requirement: “But one can reasonably question whether Husted’s new directive upholds the standard of fair-minded, nonpartisan election administration that Husted has repeatedly professed that he wishes to follow. The uniformity that Husted has now required precludes any in-person voting on Saturdays and Sunday during the five-week period that Ohio’s statutory law provides for early voting. Is that a position that a nonpartisan Director of Elections, who is neither Republican nor Democrat, would take?”

On Democrats’ suit involving early voting period and the military: “In my judgment, the better position is that even though the Anderson/Burdick/Crawford test is not the same as the “rational basis” test, the State ought to be credited with whatever policy justifications can be offered to justify a non-exclusionary regulation of the voting process. Perhaps it is the fact that I served as Ohio’s State Solicitor for two years (while on leave from Ohio State’s law school), but I don’t think federal constitutional law should trip up a State just because the State used an arguably faulty legislative process for adopting a substantive rule that would be undeniably valid using a different legislative process. Instead, except when strict scrutiny properly applies, the respect that States as sovereign governments in our federalist system deserve requires (in my view) that they should be given the benefit of the doubt, so that their legislation is sustained under federal constitutional law whenever there is a reasonable policy argument available to sustain it.”

On yesterday’s decision on Pa’s voter id. challenge: “I think the court there was justified in refusing to invalidate the law in its entirety, just as the U.S. Supreme Court was justified in Crawford in refusing to invalidate Indiana’s voter ID law in its entirety. The simple point is that the photo ID requirement in both cases is not a burden for the many voters who already possess the required photo ID, and as to these voters there is no reason to prohibit election officials from applying the requirement to present that form of ID when they vote. To be sure, there may be no great necessity in the State’s insistence that these voters show a photo ID, rather than some other form (like a bank statement or utility bill), but given the absence of a burden as to these voters, the State should be permitted to have its way. After all, the obligation to show a photo ID might have some minimally deterrent effect against ineligible voting, and given no harm to voters who already have this form of ID, the balance tips in the State’s favor. (As a policy matter, I would prefer an alternative voter ID requirement, but suboptimal policy does not render a law unconstitutional.)”

Read Ned!

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