Breaking News: Sixth Circuit Issues Three Opinions on Ohio Voter ID Appeal

Here are the three opinions: majority opinion (Judge Gibbons); concurring opinion (Judge McKeague); concurrence and dissent (Judge Tarnow) [note: corrected link].
Most of the 20-page majority opinion considers the authority of the Attorney General to appeal when the Secretary of State did not wish to appeal. It is only on page 15 when the court gets to the merits. In a nutshell, the majority sees two reasons why those challenging the law are unlikely to succeed on the merits. (1) Plaintiffs may not have standing (a point Judge McKeague highlights in the separate concurring opinion, noting that plaintiffs cannot point to anyone in particular who would be disenfranchised by the law) and (2) given a directive that has been issued by Ohio clearing up certain ambiguities and potential disparate treatment of voter id requirements across the state, there does not appear to be a likely constitutional violation. The judges stressed that Ohio was willing to work with plaintiffs to make sure that no one would be disenfranchised by the new law.
The dissenting judge (perhaps not coincidentally, a district judge sitting by designation) thought that the Sixth Circuit had an obligation to defer to the district court’s factual findings. In making this point, the dissenting judge relied upon the Supreme Court’s recent Purcell opinion. The majority too relied upon Purcell, this time for the point that last minute changes by courts in election rules may contribute to voter confusion. (This is the reading of Purcell I expected and feared.)
The plaintiffs had said they planned to appeal this reversal of the TRO to the Supreme Court. My prediction is that the Supreme Court will decline to reverse the Sixth Circuit.
Still left to be determined is how to treat absentee ballots that have come in that do not comply with the voter id law and were sent while the TRO was still valid. A footnote provides: “After full adjudication of the merits, if the Secretary prevails and the voter requirements are deemed enforceable, the district court and the parties will have to address how these ballots should be handled to comport with due process and equal protection concerns.”
Much more on this case over at Moritz.

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