Today Ohio filed this petition with Justice Kagan, Circuit Justice for the Sixth Circuit, asking for the Court to grant emergency relief to negate an order from a federal district court, recently affirmed by the 6th Circuit, requiring Ohio to give Ohio counties the power to restore three days of early voting in the event these counties give the right to military voters. Ohio SOS Husted’s press release announcing his decision is here.
A few observations:
1. I expected that Husted would try first with an en banc panel of the Sixth Circuit, where I thought he would have a pretty good chance of getting a reversal. Why did he go straight to the Supreme Court? The answer may be as simple as timing. He may have figured that if he won before the en banc Sixth Circuit, the Obama campaign would have gone to the Supreme Court, and so he would rather save the time of the extended review. If that’s the case, it does lose the benefit that comes from being a winning party going into the Supreme Court against a party seeking emergency relief. Perhaps Husted cares more about finality here than winning? Or maybe there’s a larger strategic choice here. I pegged two cases as most likely to come to the Supreme Court before the election. This is one of the cases. The other is also from Ohio, and it is the SEIU case, which was the wrong precinct poll worker error case I recently wrote about for Slate. Both raise related issues about the scope of equal protection rights for voters after Bush v. Gore. Perhaps Husted thought he’d benefit by getting this case there first. I’m not sure.
2. Justice Kagan has already asked for a response from the Obama campaign by 7 pm Friday. This will give the Justices and their clerks a weekend to begin working on what to do. I think it very likely that Justice Kagan will refer the matter to the Court. If they act, they will act to reverse, but I’m not sure what they will do. Interestingly, Ohio’s brief does not even mention or cite Bush v. Gore, but I bet the Obama campaign’s brief will do so. This would be an opportunity for the Court to explain a bit about what Bush v. Gore means, something the Court has not done—it has never cited the case since it was decided in December 2000. The Court may be reluctant to get involved again in such an issue. On the other hand, there is a lot which is controversial and unconvincing about the opinions in this case. It would not surprise me if there were at least four of the conservative Justices on the Court who will be bothered by what the lower courts did here in light of existing precedent that they will want to get involved. Unlike my gut which told me that the Sixth Circuit en banc would be likely to reverse (had it gotten the case), again, I’m not sure what happens here.
3. Time is short. If the Court is going to act, I expect we will get an opinion some time next week. This week the Court is hearing the affirmative action case, and the Court is back after the tense end of the last term. Interpersonal dynamics among the Justices during this period must be interesting to say the least.