Breaking: 6th Circuit Upholds Federal Court Order Extending Ohio Early Voting: Analysis

You can read the unanimous 46 page opinion at this link. This result is as expected after the same 6th Circuit panel refused an earlier stay request from Ohio.  Here are my thoughts on this opinion.

1. Like the district court, this (very liberal) panel of 6th Circuit judges reads both the Equal Protection Clause of the U.S. Constitution as well as Section 2 of the Voting Rights Act very broadly to hold it illegal for Ohio to move from 35 to 28 days of early voting, to eliminate a Sunday of voting used by African-American churches for “Souls to the Polls” drives, and to eliminate “Golden Week,” in which a new (or moving) voter can both register to vote and vote early at the same time.  The court barely mentioned the fact that every voter in Ohio has received a no-excuse absentee ballot application as well.

2. Both the Equal Protection and Voting Rights Act readings are expansive. On equal protection, the 6th Cir. panel uses the Burdick-Anderson balancing test (rather than rational basis).  I think this is the right test, but the part that is controversial is the court’s holding that the burden imposed on voters in the mild cutbacks in early voting is significant.  As I wrote in my analysis of the earlier district court order,  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.

3. The response of the panel to the point about other states is that what is burdensome in Ohio might not be burdensome elsewhere—one needs to look at the totality of the circumstances. But there seemed scant evidence in the record that this was a great burden, especially with the availability of no-excuse absentee balloting. (I discuss whether that is a good enough substitute in a new draft paper,  When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting.)

4. On the retrogression point, the court says that retrogression is relevant to a section 2 totality of the circumstances analysis.  I think this is right—it is one factor that can be considered.  Where the opinion is more controversial is on the question of what plaintiffs have to show to show that minority voters have meaningfully less opportunity than other voters to participate in the political process and to elect representatives of their choice.  . 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.

5. What happens next? There could be an attempt to go en banc in the 6th Circuit for for Ohio to go directly to the Supreme Court. With the press of time, it is not clear that Ohio is going to bother to try to change this for this election.  We will have to wait to hear what Ohio election officials think. But if and when this case gets to the Supreme Court, I expect 5 Justices could well adopt a much narrower definition of equal protection and the Voting Rights Act than offered here.

[This post has been updated.]


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