Another OH Voting Rights Loss: Divided 6th Cir. Mostly Rejects Order Easing Absentee/Provisional Balloting

Over an impassioned dissent recounting the disparate racial effects of its decision, a 6th Circuit panel has voted 2-1 to mostly reject a district court order rejecting some Ohio voting rules which make it harder for voters voting absentee or with provisional ballots. The dissent accuses the majority of condoning racist laws that make it harder for people of color to vote.

No one paying attention will fail to notice that the majority opinion was written by two white, Republican appointed judges, while the dissent was written by 94 year-old Damon Keith, an African-American judge appointed by Jimmy Carter.

I expect that we will see a petition for review before the entire Sixth Circuit in this case, which is a more likely path to reversal than before a 4-4 Supreme Court.


From Judge Boggs’ majority opinion:

In 2014, Ohio enacted Senate Bills 205 and 216. Among other changes to Ohio election law, they (1) required county boards of elections to reject the ballots of absentee voters and provisional voters whose identification envelopes or affirmation forms, respectively, contain an address or birthdate that does not perfectly match voting records; (2) reduced the number of post-election days for absentee voters to cure identification-envelope errors, and provisional voters to present valid identification, from ten to seven; and (3) limited the ways in which poll workers can assist in-person voters. The district court held that all three provisions impose an undue burden on the right to vote and disparately impact minority voters.

We affirm the plaintiffs’ undue-burden claim only as it relates to the requirement imposed by Senate Bill 205 that in-person and mail-in absentee voters complete the address and birthdate fields on the identification envelope with technical precision. We reverse the district court’s finding that the other provisions create an undue burden. We also reverse the district court’s finding that the provisions disparately impact minority voters. We affirm the district court’s other holdings.

And near the end of the majority opinion there’s this:

We deeply respect the dissent’s recounting of important parts of the racial history of our country and the struggle for voting rights, and we agree that this history may always be appropriately borne in mind. However, that history does not without more determine the outcome of today’s litigation over voting practices and methods. The legal standards we must follow are set out in the cases we discuss concerning the standards embodied in the Fourteenth Amendment and Section 2 of the Voting Rights Act. With respect to the dissent’s discussion regarding factual findings, this opinion does not quarrel with the district court over its recitation of the record or of any credibility determinations made by the district court. Rather, our holding is that the district court’s legal conclusions from that record are in certain parts erroneous, as set forth in this opinion, and in light of other parts of the record that the court did not consider.

The lengthy dissent by Judge Keith begins:

Democracies die behind closed doors. Detroit Free Press v. Ashcroft, 303 F.3d 681, 683 (6th Cir. 2002). By denying the most vulnerable the right to vote, the Majority shuts minorities out of our political process. Rather than honor the men and women whose murdered lives opened the doors of our democracy and secured our right to vote, the Majority has abandoned this court’s standard of review in order to conceal the votes of the most defenseless behind the dangerous veneers of factual findings lacking support and legal standards lacking precedent. I am deeply saddened and distraught by the court’s deliberate decision to reverse the progress of history. I dissent.

In complete abandonment of the clearly erroneous standard of review, the Majority displaces several of the district court’s well-reasoned and supported factual findings. The Majority’s decision to gut the factual findings of the district court and to advance legal standards without precedent in order to shut the most vulnerable out of the political process must be subjected to the natural antiseptic of sunlight. The unfettered right to vote is the bedrock of a free and democratic society—without it, such a society cannot stand. This right is fundamental. It is the most valuable right a person possesses, because without it, all other rights are meaningless. As history has shown time and time again, laymen and jurists alike have actively  worked to deny the right to vote to minorities, in both obvious and obscure ways. The Voting Rights Act (“VRA”),1 sought to right this wrong by allowing all citizens—unrestrained—to exercise their right to vote regardless of race. While the VRA and Equal Protection Clause sought to bring this nation forward, closer to a society free of racial discrimination, today the Majority’s opinion takes us several steps back. Because the Majority has completely ignored the applicable standard of review and has instead engaged in its own fact finding and reweighing of the evidence in complete disregard for the clearly erroneous standard of review, because the Majority has created a legal standard in contradiction to existing case law based on a concurring opinion and dictum, and because the Majority has dishonored the struggle for the right of the most vulnerable to vote, I dissent. I would instead affirm the district court in full.

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