A divided panel of the 6th Circuit has reversed a trial court ruling and allowed the Ohio Legislature to eliminate “Golden Week,” a week in which a new or moving voter who needs to reregister could both register to vote and cast an early ballot. The trial court had found that the elimination of this period, despite an extensive period of early voting (29 days) and the availability of no-excuse absentee voting across the state, violated both the equal protection clause of the U.S. Constitution and Section 2 of the Voting Rights Act. The 6th Circuit majority held that Ohio’s early voting period was generous, that the current period was the result of a settlement of an earlier case between the state and the ACLU which resulted in an additional Sunday voting period, and that plaintiffs’ theory in this case, if accepted, which would create a “one way ratchet” that would prevent states from ever cutting back on voting expansions even if they have a good reason to do so. The majority celebrated the ability to states to set election rules for themselves, and said that under the Supreme Court’s Crawford case, the state did not have to show much by way of state interests in preventing voter fraud and supporting voter confidence to allow it to take the step of eliminating Golden Week.

The dissent believed the trial court’s factual finding that the elimination of Golden Week burdened voters, especially minority voters, was entitled to deference, and that the federal roles have a more important role in assuring the fundamental right to vote. To the dissent, the trial court through a 10 day trial fully followed the fact-intensive nature of the Section 2 inquiry under the Voting Rights Act and found the law burdened minority voters impermissibly.

I have been very skeptical of this litigation, mostly for the reasons given by the majority in the outset of this opinion. Ohio’s early voting/no excuse absentee balloting period is exceedingly generous. And while I might support Golden Week as good policy, I worry when courts are used in this way to prevent every cutback in voting, especially after voting rights proponents had settled a suit with Ohio on favorable terms (very favorable given that the legal theory advanced, especially under Equal Protection, seemed rather weak). I also have worried, and worry, that cases like this make bad law when there are more serious voting cutbacks, although this opinion is written in such a way that major damage appears to have been avoided.

So what happens next? The plaintiffs could accept this or go to the 6th Circuit en banc or to the Supreme Court. I am not enough of a nose-counter of 6th Circuit judges to know how the case would come out, but I’d point out that the 6th Circuit in the analogous context of Bush v. Gore-type claims to equal treatment of voters has been the most pro-voter in the country. So I’m not sure how things would fare there.  The Supreme Court, with its 4-4 ideological split, seems to work against plaintiffs now (as it works against North Carolina in the NC voting case). Where will plaintiffs get a fifth vote to restore early voting?  Hard to see even Kennedy buying into the expansive voting theory in this case, especially given the strong majority opinion in the 6th Circuit.

So it seems to be the 6th Circuit en banc or bust here.

[This post has been updated.]