Via SCOTUSBlog comes this Supreme Court order staying the district court’s order preventing various cutbacks in early voting (including a cutback from 35 to 28 days, and elimination of one of the two early voting days on a Sunday, a day African-American churches had been using for “Souls to the Polls” voter drives). [It is not clear from earlier orders which Sunday might be eliminated.]
Although the order is “temporary” in the sense that it will be in place pending a ruling on a cert. petition ultimately to be filed by Ohio in the Supreme Court, that won’t happen before this election, and so for this election the new shorter voting period is in effect—and not the old rules put back in place by the district court and affirmed by the 6th Circuit.
That the Court divided 5-4 along liberal conservative lines is no surprise. As I wrote this morning in Slate of the various election voting wars cases making their way up the the Supreme Court, “For the most part, it has been Democratic and more liberal judges who have issued opinions reading voting rights protection broadly, and it has been Republican and more conservative judges who have issued opinions reading the protections narrowly. There is every reason to expect the same pattern at the Supreme Court, with a 5–4 conservative-liberal split on these questions.”
And while the Court did not offer a reason for its order today, it is very likely that the conservative Supreme Court majority did not believe in the very expansive views of equal protection and section 2 of the Voting Rights Act endorsed by the very liberal district court judge and 6th Circuit panel below.
I think it was a mistake to bring this Ohio case. I am not convinced that it is a significant burden on voters to cut back a week off early voting including the last Sunday. Really, if 28 days is too little early voting, what does this say about New York, with NO period of early voting? I do not buy the “context” argument about Ohio in part because these cutbacks are so minor.
I am worried this case will make bad law, and have bad effects in cases such as challenges to Wisconsin’s voter id law, Texas’s voter id law, and North Carolina’s omnibus bill making it harder to vote. I have argued that when there is a significant burden on voters imposed for no good reason, or imposed for a partisan reason, then courts should shut down voting restrictions. The Ohio case did not involve significant burdens, and the theories accepted by the district court and 6th Circuit panel were vast constitutional expansions of voting rights. As Ned Foley reminded us, not everything that is good policy is constitutionally required.
But now if the Supreme Court reads both the Equal Protection Clause and Section 2 of the Voting Rights Act very narrowly in the Ohio case, it is bad news all around and in cases where the changes matter more. As I concluded in the Slate piece, we ignore these cases at our peril.
[This post has been updated.]