Josh Douglas blogs.

I’m much more skeptical.  Josh says that the ruling maintains the status quo.  But the status quo, before the initial p.i., was no early voting these last three days.   If Josh means that it maintains the status quo after the trial court ruled, that’s not the status quo we usually focus on in preliminary injunction cases.

I also have a hard time squaring the equal protection defense here with a constitutional right to early voting.  The court says there isn’t one, yet it doesn’t hang its hat really on the different treatment of military and non-military voters.  And the concurring opinion even more forthrightly ties this to general equity concerns about what will be happening at the polls given the 2004 and 2008 history of Ohio than the legal theory advanced in the courts.  It looks really ad hoc.

To be clear, I think because of the problems Ohio has had in the past on Election Day, the extension of early voting made sense. And I think that the Ohio Legislature contracted early voting (except for military overseas voters) for partisan reasons.  But those facts alone don’t seem to be enough to show an equal protection violation.  And the case was not litigated on the theory endorsed by the concurrence: that Ohio’s sorry history requires the extension of early voting this time around.  That could have been a sound theory, had those facts been proven.

UPDATE:  Josh Douglas responds:

Thanks to Rick for giving me a chance to respond to his comments regarding my blog post.

First, by way of clarification, when I stated that the 6th Circuit’s decision “maintains the status quo,” I was referring to the status quo as it existed in Ohio for the 2008 and 2010 elections:  early voting for everyone.  The Ohio legislature tried to take away voting on the last three days before the election for everyone except military voters.  Requiring equal early voting opportunities for all voters reverts back to Ohio’s practice in the most recent elections, with which the local election officials obviously have familiarity.

Second, in response to Rick’s comment that “the court did not hang its hat on the different treatment of military and non-military voters,” I disagree.  In fact, the different treatment of military and non-military voters seems to be the crux of the majority’s analysis.  There is a lot of language in the 6th Circuit’s opinion that demonstrates its focus on the equal protection concern.  For example, the court (on page 13) notes that the state “has classified voters disparately and has burdened their right to vote.”  “Their” in that sentence refers one subset of those voters — non-military voters — who the state is classifying disparately.  Similarly, the court says (on page 15) that “Ohio’s statutory scheme is not generally applicable to all voters, nor is the State’s justification sufficiently ‘important’ to excuse the discriminatory burden it has placed on some but not all Ohio voters.”  It is statements like these, and the accompanying analysis, which suggests that the crux of the matter was the Equal Protection holding, and not a blanket recognition of a constitutional right to early voting for all voters.  As my original post on the Election Law @ Moritz blog indicates, I also think that the key question is which level of scrutiny to apply, and the state made virtually no argument that it could win if the court applied the heightened Anderson–Burdick test.  The state rested its argument on applying rational basis review.  Because the law is not sufficiently tailored to achieve the state’s interests, however, it is unlawful to treat military and non-military voters differently with respect to early voting opportunities.