One More Time: Ohio Likely to Appeal Order Expanding Early Voting

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Yesterday, U.S. District Court Judge Peter Economus issued a preliminary injunction in the latest challenge to Ohio’s early voting rules. The fight in Ohio has been a long-running, seemingly never-ending struggle to define the days and times when early voting will be made available in the Buckeye State. This latest opinion has a number of notable aspects that are sure to keep it on the front burner of political news and the court dockets for quite some time.

First, a quick recap … the court:

1. found that the current 28-day window for early voting is too short and ordered the state to re-establish the 35-day window that includes a “Golden Week” during which voters can register and cast ballots on the same day;
2. ordered the Secretary of State to establish expanded dates and hours for early voting including the weekend before Election Day; and
3. allowed counties to establish additional early voting in addition to the statewide hours.

The court also placed “responsibility” on the state legislature to repeal the state laws that reduced the early voting dates and scheduled a status conference for December where progress on that responsibility will be on the agenda.

Ohio State’s Ned Foley has a typically thorough analysis of the case, focusing in large part on the court’s use of Bush v. Gore to scrutinize the law:

The primary precedent on which the federal court relied for its ruling is Bush v. Gore. In that case, the unconstitutional discrimination was between (a) those voters whose “hanging chads” would have been counted pursuant to the Florida Supreme Court’s insufficiently precise recount procedures and (b) those voters whose “hanging chads” would have been rejected despite being identical to the “hanging chads” counted elsewhere. Seven Justices of the U.S. Supreme Court saw that discriminatory treatment of identical chads as “arbitrary” and thus unconstitutional (although two of the Justices disagreed with the other five about what remedy to order for this unconstitutionality in the specific circumstances of the 2000 presidential election).

In today’s Ohio early voting decision, the federal court invoked the “no arbitrary differential treatment” principle of Bush v. Gore as the main justification for its ruling. The court wrote (page 60): “despite the expansiveness of Ohio’s voting system, the weakness of the offered justifications supporting [the cutbacks in early voting] render them essentially arbitrary action when viewed against the burdens they impose on groups of voters.” Then, two sentences later, the court “summarized” its own Equal Protection “conclusions”: Ohio’s cutbacks in early voting “arbitrarily make it harder for certain groups of citizens to vote.”

There are, however, some analytic difficulties with the court’s reliance on Bush v. Gore. First, the Supreme Court in Bush v. Gore spoke of the “disparate treatment” of the identical chads being “arbitrary.” It is not clear what the federal district court sees as the disparate treatment in Ohio’s cutback of early voting. Disparate effect is not the same as disparate treatment; the Supreme Court repeatedly has made that clear. Thus, the fact that Ohio’s cutbacks in early voting disproportionately burden African-American and low-income voters does not mean Ohio law engages in disparate treatment of these voters. Rather, all Ohio voters are subjected to the more limited availability of early voting; it’s just that this more limited availability has a disproportionately adverse effect on some.

The other big question is what counts as “arbitrary.” Bush v. Gore itself is extremely unclear on this point, an irony given the Supreme Court’s concern in that case about the imprecision of Florida’s recount rules. Thus, one must consider whether Ohio’s decision to cutback early voting could be considered “arbitrary” in a constitutionally relevant sense. But here’s where the whole question of rollback as a factor in constitutional analysis comes into play. Is it “arbitrary” that Pennsylvania, Michigan, and New York (among other states) do not offer any early voting, even if constituents in those states have lobbied for it? What if “cost” is the reason that those states offer for refusing to provide early voting–the same reason that Ohio has offered for its cutbacks? Is that an “arbitrary” reason under the Equal Protection Clause?

Over at Election Law Blog, UC-Irvine’s Rick Hasen also took a hard look at the case, and his big takeaway was the growing split across the nation on how to apply Section 2 of the Voting Rights Act to cases like this:

Perhaps most surprisingly, the judge does not really give us a full test for determining when a vote denial case constitutes a violation of section 2 of the Voting Rights Act. 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. The judge simply throws up the section 2 “Zimmer factors” and has at it. The standard does not explain whether any and every voting rule which has a disparate impact on minority voters counts as a section 2 violation. And if section 2 is that broad, is it a constitutional exercise of Congress’s power?

These are fascinating questions that need to be answered so election officials and legislators know how to proceed in fashioning and implementing election laws – and it looks like there will, once again, be an attempt to answer them on appeal. Here’s the statement of SoS Jon Husted on the case:

My overarching principle for Ohio’s long-debated voting schedule is that all voters, no matter where they live, should have the same opportunity to vote. That’s why I have set uniform voting hours for all 88 counties and why I sent absentee ballot applications to voters statewide, so there would be no disparity in access.

I have been consistent. This ruling is not.

During the 2012 election and beyond, this same judge said we had to implement fair and uniform days and hours’ of operation for elections in Ohio. Now he seems to say counties can set their own days and hours of operation.

Today’s ruling kicks the door open to having different rules for voting in each of Ohio’s 88 counties, which is not fair and uniform and was not even acceptable to this court or the plaintiffs previously.

We must appeal this ruling, because we can’t simultaneously treat people the same and differently.

This one is almost certainly going to the Sixth Circuit, and depending on the outcome, could find its way to the U.S. Supreme Court.

Stay tuned!