What is it with judges issuing opinions late on Fridays?
A three judge panel of the Sixth Circuit has just issued this order denying Ohio’s request to put on hold a district court order requiring Ohio to restore early voting days (including “Golden Week”) which the Republican legislature tried to cut.
For those who have noted that all the judges who just allowed Wisconsin’s voter id law to go into effect were Republican-appointed, it is worth noting that all the judges in the Sixth Circuit today were Democrat-appointed.
Part of the Sixth Circuit’s reason for rejecting Ohio’s argument that the restoration of early voting is not required by either the Constitution or the Voting Rights Act section 2 is that it says Ohio did not cite any legal authority supporting its argument, while the plaintiffs cited Sixth Circuit authority which helped them.
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.]