The U.S. District Court for the Southern District of Ohio in a 120-page opinion has held that the deep cuts to Ohio’s early voting days signed into law by Gov. John Kasich (R) are “unconstitutional and…accordingly unenforceable.” Think Progress reports, BREAKING: Major Court Ruling Restores Early Voting Days In Ohio:
Judge Michael Watson sided with the Ohio Democratic Party, which had sued the state for sharply curtailing the number of early voting days. Since President Obama won reelection in 2012, Ohio’s Republican lawmakers and Secretary of State have voted to eliminate the days and times of early voting that were most convenient for those working full time: the weekend before election day, weekday evenings, and what’s known as “Golden Week,” the time about a month before election day when the registration period and the early voting period overlap.
These cuts, the judge wrote, “results in less opportunity for African Americans to participate in the political process than other voters.”
The court ordered the Republican governor and Secretary of State to once again allow voters to begin casting ballots 35 days before November’s presidential election. Republicans may appeal Tuesday’s ruling to the Sixth Circuit Court of Appeals.
But of course … the Columbus Dispatch reports “A DeWine spokesman said the decision — which sided with the state on many issues — will be appealed.”
Multiple studies have found that voters of color disproportionately rely on early voting, especially weekend days, and especially the “Golden Week” of same-day registration. Tens of thousands of people voted during “Golden Week” in 2012 alone, more than enough to sway an election in the tightly contested swing state.
“Many voters of color have inflexible work schedules that make coming to their polling place on a single Tuesday in November very difficult,” Mike Brickner, the Senior Policy Director for the ACLU of Ohio, told ThinkProgress. “Because of the historic and systemic oppression of African Americans in our voting system, many choose to take advantage of early in-person voting. In that community, mailing in your ballot is not favored choice, because it doesn’t feel as though it will really be counted.” Judge Watson agreed, saying in his ruling that “the record reflects that African Americans are distrustful of voting by mail.”
A bipartisan presidential commission also found that early voting helps reduce long lines and chaos on election day, something that has been a particular problem in recent Ohio elections. Judge Watson noted in his ruling that the state’s early voting cuts “will likely result in longer lines at the polls, thereby increasing the burdens for those who must wait in those lines and deterring voting.”
Attorneys for the state defended the cuts by arguing that even Ohio’s reduced number of voting days was more generous than many other states, some of which offer no early voting at all. But his ruling, the District Court judge rejected that argument, saying that the plaintiffs proved the rollback of options in Ohio hurt voters of color.
In 2014, the ACLU also sued state for cutting early voting. Though the U.S. Supreme Court refused to block the law from going into effect in that year’s midterm elections, Brickner and other voting rights advocates did force the state to restore some weekend voting days. Today’s ruling goes further, restoring the “Golden Week” in which voters could register and vote in a single trip to the Board of Elections.
Rick Hasen adds at Election Law Blog, Breaking: In Major Decision, Federal Court Blocks Cutback in Ohio Registration/Early Voting “Golden Week”:
[A] federal district court has held that the Ohio legislature’s elimination of “Golden Week,” a week in which Ohio voters could both register to vote and cast an early ballot at the same location, violates both the 14th amendment of the Constitution and section 2 of the Voting Rights Act.
This is a big victory for Marc Elias and the Democrats which brought this suit (over much handwringing by some in the voting rights community). Democrats have relied heavily on Golden Week in the past and fought the Ohio Legislature (dominated by Republicans) to keep it. The theories accepted by the trial court are sure to be controversial, and it is not clear how they will fare in the 6th Circuit. However, the Sixth Circuit has among the most pro-voting rights views of both constitutional and voting rights theories (see the discussions around pages 21 and 31 here). The case could well go en banc to the Sixth Circuit, especially because of a potentially likely 4-4 split at the Supreme Court, leaving the Sixth Circuit as likely the last word on the meaning of the Constitution and the Voting Rights Act in the area covered by the Sixth Circuit for this election.
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While the court accepted the attack on the elimination of Golden Week, it rejected plaintiffs’ other challenges, such as those as to the number of early voting sites per county and availability of DRE voting machines. The court rejected these other challenges, finding there was either no burden or the minimal burden was justified.
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On the Voting Rights Act Section 2 claim (the issue that has come up in NC, WI, TX and here), the Court follows Sixth Circuit precedent on how to measure the burden, and also makes clear (1) that what other states do should be irrelevant to the analysis and (2) the “non-retrgoression” standard of Section 5 should not be imported into Section 2. In other words, in deciding whether Golden Week’s cutback violates the VRA, it doesn’t matter if places like New York have much more restrictive voting, and just because Ohio offered more in the past does not mean it can never cut back on its voting rules. Both of these points have been hotly debated in the cases and commentary. On the elimination of Golden Week, the Court piggybacks its constitutional analysis to find a burden on African-American voters which is not justified.
Rick Hasen comments on the election law challenges headed to the U.S. Supreme Court with a short bench:
When you combine this case, the North Carolina voting case (currently on fast track appeal to the 4th Circuit) and the Texas voter ID appeal (heard today by an en banc court in the 5th Circuit), along with two additional challenges to Wisconsin’s voter ID law (which was upheld by the 7th Circuit, after a 5-5 split over whether to take that case en banc), there is sorely a need for clarification of the scope of Section 2 when it comes to the “new vote denial” cases. Yet the Scalia-less and Garland-less Court may not be in a position to take these cases now, in that they may split 4-4 on their resolution. It just shows a cost of the vacancy right now.
One more reason why the unprecedented Tea-Publican blockade of Judge Merrick Garland in the U.S. Senate needs to come to an end now. We do not need another disputed election like 2000 with Bush v. Gore. These election law challenges need to be resolved before voting begins in the general election.