Breaking News: 6th Circuit Says Ohio Must Keep Extra Early Voting Days if Open for Any Voters, Now Updated with Analysis

You can find the opinion in OFA v. Husted at this link.

A three judge panel of the Sixth Circuit has held that Ohio violated the rights of Ohio voters when it withdrew early voting days for the weekend before the election for all voters except for military and other overseas voters. I am surprised by this decision (by two Democratic appointed judges and a Republican-appointed senior judge from Kentucky sitting by designation) and it may not survive further review en banc in the Sixth Circuit or at the Supreme Court, should Ohio choose to appeal. [Clarification: Judge White was technically nominated by President Bush but she was originally nominated by President Clinton and cleared in a Senate compromise]. Further, the court’s remedy creates a potential new equal protection problem for the state, by allowing different counties to adopt different uniform standards—though the Secretary of State could well impose uniformity.

Here’s the nub of the issue.  There is no constitutional right to early voting, and if someone sued a state to say that the Constitution’s equal protection clause requires early voting, that claim would be laughed out of court. Further, there’s old Supreme Court authority (McDonald) which says that a state can offer absentee ballots only to some residents, but not to all residents, so long as it has a legitimate reasons for drawing the lines as it did.  In this case, the Obama campaign argued that even if there is no general constitutional right to early voting, and even if distinctions can be drawn among different classes of voters for some purposes, Ohio’s decision to withdraw early voting for all but military voters lacked rationality.  The district court agreed, and I expressed skepticism about the court’s ruling, which relied in part upon a non-retrogression idea (once you expand early voting you cannot contract it) and an argument against discriminating against non-military voters, an argument in tension with McDonald.

The court’s majority opinion’s reasoning is somewhat muddled, but it does seem to rely on both of these arguments in the district court opinion. The opinion seems to say that while a state could at some point withdraw early voting it had once provided, it has to show a good reason. The state here did not prove that it had a good reason—there was no good administrative reason to bar counties which wanted to from offering early voting if the counties want to, and while there would be ample reasons to favor military voters who are overseas, no good reason to help only military voters about to ship out to allow them to vote while denying other voters facing an imminent need to leave the state the same opportunity. Further, the majority said that there was good evidence that many people would be seriously burdened by not being able to vote on election day, and this would skew toward women, minorities and others. Finally, the majority said it did not read the district court as requiring the state to provide early voting those last three days—only that if a county affords the last period of early voting to military voters, it must give it to all.

Judge White, concurring in part and dissenting in part, disagreed with part of the reasoning and with the remedy. On the reasoning, Judge White said that the evidence did not actually demonstrate that removing those last early voting days would be a big burden on voters—only inconvenient, and usually inconvenience would not be enough.  But Judge White said that in this particular case, there was reason to tip the scales toward plaintiffs: “The key distinguishing factor here is that Ohio voters were granted the statutory right to in-person absentee voting through the close of business hours on the Monday before election day, and the election boards of the largest counties broadly embraced and facilitated that right, in response to the unacceptably burdensome situation at many Ohio
polling sites during the 2004 election where, in some counties, voters were required to stand in line for long hours and until late at night.”  On the remedy, Judge White would require the state to provide the early voting period across the state in all counties.

I think there is a fairly good chance this ruling gets appealed.  First DeWine is going to want to push this issue, as are Republicans generally because it presents an opportunity to continue to argue that the Obama campaign is taking steps against military voters (a charge I believe is bogus).  The next step of the appeal is to the Sixth Circuit as a whole.  As I’ve explained in this blog post and this recent Slate piece, the Sixth Circuit has divided bitterly on election law disputes recently, and there are more Republican-appointed judges than Democratic ones. The step after that, of course, is the U.S. Supreme Court.

And so while I stand to be surprised again, I’m still expecting a reversal should Ohio appeal.

Finally, I should point out that the remedy is very problematic.  If some counties have extra early voting and others do not, that itself could create an equal protection violation. Further, if we are going to require Jon Husted, the Republican Secretary of State to break the tie, in the past he has sided with the Republican members of county boards to deny extended early voting.  After criticism, he imposed uniform rules (but without weekend voting which Democrats wanted).  We will see if he imposes extra early voting across the state if this ruling holds.

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