Ned Foley on Ohio Litigation – and the Problem of "Persnickety Disqualification"

[Image courtesy of courtnewsohio]

As pre-election dominoes continue to fall – including in Wisconsin and Pennsylvania, where voter ID won’t be and might be in effect in November – the number of pending cases with impact on Election Day begins to dwindle.

One of the states where the courts could end up playing the biggest role is Ohio, where two cases on early voting and “wrong precinct” provisional ballots are likely to result in federal appeals court decisions in the next few weeks. Fortunately, one of the nation’s leading election law scholars – Ned Foley of Ohio State’s Moritz College of Law – has been following those cases closely and on Sunday posted his analysis of the issues facing the court. It’s lengthy and worth reading in its entirely, but I was especially interested in his discussion of OFA v. Husted involving early voting the weekend before Election Day, the outcome of which he says is not “preordained” either way.

In short, Ned suggests that if you take all of the factors involved as a whole, the Obama campaign should win, while if you examine the factors separately it would seem to favor the state:

The strongest argument on behalf of the Obama campaign is that an unusual combination of three factors collectively cause an Equal Protection violation, whereas the absence of any one of these factors might change the outcome of the Equal Protection analysis. The first factor is the bizarre and arguably capricious legislative process that gave rise to the differential treatment between two groups of voters; the Ohio legislature didn’t seem to want to give three extra days of early voting to military and foreign-domiciled voters, but apparently stumbled into this preferential treatment as a result of a legislative mistake (with the Secretary of State actually creating the preferential treatment as the most sensible way to undo the unintentional legislative error). The second factor is the revocation of voting opportunities that previously existed and were enjoyed by those who took advantage of them; the record reveals no strong need for the State to take away these valued voting opportunities, as their availability in the presidential election four years ago caused no noted problems in the administration of the voting process. The third factor is the contingent and potentially nonexistent benefit of the special accommodation for military and foreign-domiciled voters, given the fact that local officials must agree to make this accommodation available, and none or few may do so; there is not much strength to the justification of the preferential treatment when it is so speculative in this way.

When you put all these factors together, you can come up with the conclusion (as the district court did) that the State’s basis for treating two groups of voters differently was insufficient to sustain the differential treatment.

But when you analyze each of these factors in isolation, as I have in one or two previous posts, you can easily reach the conclusion that the Equal Protection Clause is not violated just because military and foreign-domiciled voters receive a modest increment in the number of days available for casting a ballot that is not generally available to regular voters. First, there is precedent for judging the state’s early voting rules according to the best argument that can be made on their behalf, regardless of whether the State blundered into the situation of adopting the rules that it did. Second, the revocation of previously available opportunities may make no difference if a State was not obligated to grant those opportunities in the first place, and the State has simply returned to a situation it was entitled to be in initially. Third, letting local officials decide whether to give an extra three days to military and foreign-domiciled voters undoubtedly makes that special benefit less valuable to those who might take advantage of it (compared to a mandatory requirement that local officials must make these three days of early voting available to these voters), but if the government is entitled to give more robust extra protections to military and overseas voters–as Congress repeatedly has done–then much more modest extra protections for these same voters is not inherently unconstitutional vis-à-vis the ordinary voters who don’t receive the same benefits.

If each of these three factors by itself is insufficient to render unconstitutional Ohio’s modest benefit for military and overseas voters, then why should these three factors in combination invalidate the same benefit? [emphasis added]

It is, quite simply, a tough call for the appeals court – and could explain why the Secretary of State initially hesitated to establish a schedule for early voting in response to the district court’s order.

The concern, of course, is that these close legal calls will end up affecting the outcome. Ned makes the point (and invents my new favorite phrase) in discussing the fate of “wrong precinct” provisional voters:

… I hope that the election is decided as a result of counting rather than disqualifying these ballots cast by concededly eligible and registered voters. Better that the winner be declared as a result of the enfranchisement, rather than disenfranchisement, of these voters, when casting a “correct precinct” ballot is so trivial once these valid voters have arrived at the correct polling place (and the poll workers are unable to give these voters a “correct precinct” ballot). A victory based on the persnickety disqualification of these ballots, and thus the unwarranted disenfranchisement of these voters, does not seem worthy of being considered either democratic or honorable. [emphasis added]

That, in a nutshell, is the problem – arcane (and completely valid) legal arguments could end up hurting real (and equally valid) voters. It’s a problem that I’m sure the appeals court hopes to avoid. Kudos to Ned for yet another deep and penetrating look at the issues in the Buckeye State.

Rest assured, however, that I will now be looking for opportunities to use “persnickety disqualification” (the phrase, not the action) in my work over the next 5 weeks.