Via SCOTUSBlog, comes a link to the Obama opposition to the State of Ohio’s emergency application to Justice Kagan (and presumably the Supreme Court) to put on hold the Sixth Circuit’s recent order requiring Ohio county election officials to offer early voting to everyone on the last three days before the election if it is offered to military voters. Ohio had early voting in 2008 but got rid of it this year, except for certain military and overeas voters. A federal district court held that U.S. constitutional equal protection principles required the extension of early voting to all, a ruling somewhat modified by the Sixth Circuit. (More on these rulings here and here.)
SCOTUSBlog also reports on the amicus briefs: “The Democrats picked up the support for their side in this dispute by a group of Democratic state senators (their amicus brief is here), while the state’s leaders picked up the support of 15 other states (their amicus brief here). In addition, the state also gained support from military and veterans’ organizations, who had also taken part in the lower court proceedings (their amicus brief is here.)”
Of all the filed briefs, only the Obama campaign brief even mentions Bush v. Gore, though I think it is hard to see how the equal protection holdings of the lower courts could be justified without that case. In part, here is what the brief says on the relevance of this case—one which the Supreme Court has never cited for any purpose since it was decided in December 2000:
The Constitution safeguards not only the abstract right to vote, but also the integrity of the electoral process: “The right to vote is protected in more than the initial allocation of the franchise.” Bush v. Gore, 531 U.S. at 104. “Equal protection applies as well to the manner of its exercise.” Id. (emphasis added). Every “citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972); see Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665-70 (1966)…
Where, as here, the challenged restriction is not evenhanded, that disparate treatment itself requires justification. See, e.g., Harper, 383 U.S. at 667-70. Put differently, the decision of the State to turn away some voters and not others from an open polling place itself imposes a burden on the exercise of the franchise. See Bush v. Gore, 531 U.S. at 104 (emphasizing the “equal weight accorded to each vote and the equal dignity owed to each voter”). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. at 104-05 (emphasis added). Accordingly, the restriction presently before the Court cannot be sustained absent a relevant, legitimate justification. See Crawford, 553 U.S. at 189-90; Burdick, 504 U.S. at 434….
The Court is unlikely to reverse the decision below because it is correct. The Equal Protection Clause prohibits states from providing differential access to the ballot box on arbitrary terms. Yet that is precisely what is threatened by the statute under review. On October 2, 2012, 35 days before Election Day, polling places opened across Ohio for all voters.7 But absent the district court’s injunction, on the final three days before Election Day, those polling places will close for some—but not all—voters. That selective access to voting, unique to Ohio, has no justification. Rather, it is the consequence of a muddled legislative process marked by incoherence and confusion.
This arbitrary and irrational discrimination between voters violates the Equal Protection Clause. In light of Ohio’s troubled history of election administration, the State made the decision to expand the period in which voters may cast their ballots in person. Having done so, the State may not arbitrarily exclude some voters, but not others, from the polling place on any day during the voting period. Bush v. Gore, 531 U.S. 98, 104-05 (2000).
Reading Bush v. Gore broadly to contain this nonretrogression principle is sure to be controversial. The question is whether it is controversial enough to prompt the Court’s intervention is hard to say. The 15 states raising a federalism issue—and I believe each of those states signing this brief has a Republican attorney general—signals both the partisan and ideological stakes in this case.