“Ohio Early Voting in the Supreme Court”

Important Ned Foley analysis.  Two snippets:

Plaintiffs complain that only one Sunday of early voting is available, and that the only evening hours available are on Election Day itself. As a matter of policy, I concur with their complaint. If it were up to me, I’d provide two weeks of early voting, including two Sundays (as well as two Saturdays) and ample evening hours throughout the fortnight. But I’m not Election Czar of Ohio, or anywhere else, and can I really say that the amount of early voting that Ohio provides is constitutionally inadequate to redress the disenfranchising effect of overcrowding at the polls on Election Day, as occurred in 2004? I think not. As it stands, all Ohio voters have the option of voting on a Sunday, or voting in the evening on Election Day, or voting on either of two Saturdays, or voting on a weekday during regular business hours throughout the four weeks of early voting, or voting by mail during that same four-week period.   It’s not the optimal schedule in my view, but it’s hard to see how any Ohio voter is disenfranchised by this particular menu of voting options.

AND

My colleague Dan Tokaji sees Ohio’s current early voting schedule as not a product of bipartisanship, but instead one party’s imposition of its own preferences through its control of the state’s legislature (and secretary of state’s office).   But I think that analysis gives insufficient attention that the role that the bipartisan Ohio Association of Election Officials (OAEO) played in the development of Ohio’s current early voting schedule. Like Dan, I deplore manipulation of voting rules by a political party in power in an effort to perpetuate that power against the wishes of the electorate. But unless and until we adopt institutional reforms that remove the power to adopt voting rules from partisan legislatures and administrators and instead place that power in nonpartisan bodies (as I’ve discussed elsewhere), then federal constitutional law will need to be sensitive about when conventional partisan legislatures and administrators have crossed the line into excessive partisan manipulation of voting rules. Over the last decade, Ohio’s legislature and secretary of state undoubtedly have crossed that line on other occasions. But given OAEO’s role in the development of Ohio’s current early voting schedule, I have a hard time seeing that Ohio crossed that line of excessive partisanship in this particular context.

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