Without any noted dissent (thus answering Ned Foley’s prayers), the Supreme Court has rejected Ohio’s application for an emergency stay—thus insuring that the three days of early voting on the weekend before election day, taken away by the Ohio legislature but restored by a federal district court and affirmed by the 6th Circuit, will go forward.
What explains the Court’s ruling, especially given the shaky constitutional reasoning of the lower courts?
First, it is always a high burden to get emergency relief from the Court. The Justices may not have believed that any legal error here was worth correcting. Whether the 100,000 or so voters who voted on those last three days or had to shift to other days (or absentee ballots) was perhaps not worth gearing up the machinery for a potentially difficult constitutional issue. The silence on the meaning of Bush v. Gore thus continues at the Supreme Court.
More to the point, the Court conservatives, who would be most likely to disagree with the lower courts’ reasoning, may have decided that there was not enough at stake about those last three days of early voting for the Court to issue an opinion divided on party/ideological lines about voting in a state which could well be pivotal in the presidential election. A divided ruling would have thrust the Court to the center of the election.
Still, this is quite a run in the courts for those fighting Republican legislative cutbacks on voting rights, at least in 2012. And in that respect I have been surprised.
UPDATE: Husted has issued a directive with uniform early voting hours for the last three days.
Saturday, November 3, 2012 – 8:00 a.m. to 2:00 p.m.
Sunday, November 4, 2012 – 1:00 p.m. to 5:00 p.m.
Monday, November 5, 2012 – 8:00 a.m. to 2:00 p.m.
What time does Church end on Sunday in Ohio?