I have now had a chance to give an initial read the 71-page federal district court opinion in Ohio State Conference of the NAACP v. Husted. This is a significant case, which could potentially make it to the Supreme Court. It expands voting rights in a broad way, and makes it difficult for a state like Ohio to cut back on any expansions of voting rights that it puts in place. The big question is where the stopping point is in a decision like this, and how to justify calling it unconstitutional for a state like Ohio to make a modest cutback in early voting while allowing many other states to offer no early voting at all.
Here are my preliminary thoughts.
1. This is the latest in a series of cases challenging Ohio cutbacks in early voting. The challenges are before the same federal district court judge in Ohio, Peter Economus, as earlier challenges, including a challenge which led to the restoration of early voting during the 2012 election. Judge Economus tangled with Ohio SOS Husted before, leading to potential calls for Husted to be cited for contempt. It is therefore no surprise that Judge Economus sided against Husted again in this latest challenge.
2. The theory in the earlier Ohio early voting case (Obama for America v. Husted) is different than the theory in the current case. In the last case, the question was whether Ohio could cut back on early voting for all voters EXCEPT for certain military and overseas voters in the period just before the election. The district court, affirmed by the Sixth Circuit, said that these special rules for just a subset of voters violated equal protection. (I had thought the Supreme Court might get involved in this case, but the Court did not.)
3. This case does not raise issues of different voting rules for different classes of voters. In fact, the dispute here arises from the issue of uniformity. The Ohio legislature cut back from 35 to 28 days of early voting, in the process eliminating “Golden Week,” a week where new (or reregistering voters) could register to vote and vote early during the same period. In conjunction with rules establishing uniformity of early voting times established by SOS Husted, the new early voting times eliminated night voting as well as Sunday voting before election day. That day was used by some African-American churches for a “Souls to the Polls” voter drive event. All Ohio voters remain able to vote by mail without excuse, for the 30 days before the election. The NAACP and others argued that the cutbacks in early voting and the elimination of Golden Week violated both equal protection guarantees of the U.S. Constitution and Section 2 of the Voting Rights Act.
4. The judge found as a matter of fact (crediting expert reports of the plaintiffs’ especially that of U. Florida’s Dan Smith) that the cutbacks in early voting would disproportionately fall on African-Americans. The judge found that early voters, especially in the larger population areas of the state, included a large portion of the state’s share of African-American voters. The judge also found that African-American voters were distrustful of absentee balloting as an alternative to in person voting, and that absentee balloting was more burdensome (filling out the materials, postage, mailing, etc.)
5. The judge concluded that the cutbacks in early voting constituted an equal protection violation under the Sixth Circuit’s cases describing equal protection standards in elections and a violation of section 2 of the Voting Rights Act. Both of these holdings are legally controversial. It is possible that the Sixth Circuit (depending on the panel) could agree with these rulings, but that is not certain. if the Supreme Court considered these issues, I would expect a reversal, but it is not clear that the Supreme Court will choose to get involved in this case if Ohio tries to take it this far.
6. The main problem with the equal protection theory and the VRA section 2 theory is the same: Ohio’s law is not all that burdensome, and in fact it provides many opportunities for voting (such as a still very long early voting period of 28 days and no excuse absentee balloting for a long period) which are not available in other states. If 28 days is unconstitutional and a voting rights violation, what does this say about places like New York, which offer no early voting? Although the judge says he is not applying a “non-retrogression” standard such as that which used to exist under section 5 of the VRA, that appears to be what he is doing to at least some extent. The judge says the cutbacks are relevant in a totality of the circumstances approach to section 2 VRA applicability.
7. Perhaps most surprisingly, the judge does not really give us a full test for determining when a vote denial case constitutes a violation of section 2 of the Voting Rights Act. This is an issue which is dividing the lower courts, from the capacious reading of section 2 in Frank v. Walker, the federal case striking down Wisconsin’s voter id law, to the much narrower reading of section 2 in North Carolina Conference of the NAACP v. McCrory, the federal case rejecting a preliminary injunction for cutbacks in early voting and other changes in North Carolina. The judge simply throws up the section 2 “Zimmer factors” and has at it. The standard does not explain whether any and every voting rule which has a disparate impact on minority voters counts as a section 2 violation. And if section 2 is that broad, is it a constitutional exercise of Congress’s power?
8. In the end, it might be that the trial court’s ruling will stand, because the Sixth Circuit has been reading equal protection principles from Bush v. Gore quite broadly, and requiring Ohio to not retrogress in protections and benefits offered to voters. (I analyzed these cases in The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 George Washington Law Review 1865 (2013).) But the opinion issued today is quite undertheorized as a matter of law, and I am not sure that it will stand up to further scrutiny, at least if applied in other cases.
[This post has been updated.]