U.S. Supreme Court blocks restored early voting in Ohio

The “Felonious Five” of the U.S. Supreme Court voted to block the 6th Circuit Court of Appeals order providing for the resumption of early voting in Ohio beginning on Tuesday. Lyle Denniston of SCOTUSblog reports, Early voting in Ohio blocked:

With just sixteen hours before polling stations were to open in Ohio, the Supreme Court on Monday afternoon blocked voters from beginning tomorrow to cast their ballots in this year’s general election.  By a vote of five to four, the Justices put on hold a federal judge’s order providing new opportunities for voting before election day, beyond what state leaders wanted.

The order will remain in effect until the Court acts on an appeal by state officials.  If that is denied, then the order lapses.  It is unclear when that scenario will unfold.  The state’s petition has not yet been filed formally.

The judge’s order had been upheld by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, but that ruling no longer controls the case now that it has moved to the Supreme Court.  A plea by state officials and the Ohio legislature for the Sixth Circuit Court to reconsider the case en banc is no longer necessary to block the early voting.

The practical effect of the order will mean that, at the least, early voting will not be allowed this week — a period that supporters of early balloting have called “Golden Week.” That permits voters to register and cast their ballots on the same day.

Depending upon the timing of the state’s filing of a petition for review and the Court’s action on it, Monday’s order may also mean that early voting will not be permitted on most Sundays between now and election day, November 4, and will not be permitted during evening hours — that is, after 5 p.m.

Early voting during “Golden Week,” on coming Sundays, and in evening hours are the opportunities that civil rights groups have said are most important to black and low-income voters and the homeless.  State officials, however, contended that those arrangements would raise the risk of voter fraud, and would cost too much for county election boards to implement.

Monday’s order had the support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito,, Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas, although their votes were not noted in the order.  It would have taken five votes to support such an order.

Dissenting were Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.  They would have denied the request of the Ohio attorney general and secretary of state to postpone the decision in favor of more early voting by U.S. District Judge Peter C. Economus of Columbus.

The Supreme Court could have hurried along the process of reviewing the case.  Ohio officials had suggested that the Court might treat their request for a delay as a formal petition for review, and to grant it.  The Court did not do that.  It left it to the state to file a new petition, as such, and when that is done, the Court would choose whether to review it.

Even if the state moves quickly to file a petition, and even if the Court grants review and gives it very rapid review, those actions may not come in time to save the early voting opportunities that civil rights groups had sought and that Judge Economus had granted.

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The case as it is now unfolding before the Supreme Court involves major constitutional issues, especially on how far the Fourteenth Amendment’s guarantee of legal equality applies to early voting opportunities, and how courts are to apply Section 2 of the 1965 Voting Rights Act.   Section 2 has become newly important to challengers of voting restrictions since the Supreme Court last year struck down a key part of the 1965 Act, Section 5.

The Supreme Court may next face a case from Wisconsin focusing on the voter ID question.

Rick Hasen at Election Law Blog provides a useful summary of the election challenges in Court this week. The Election Law Litigation Week Ahead:

As soon as today:  The Supreme Court could rule in the Ohio early voting suit and challengers to the Wisconsin voter id law could seek emergency relief in the Supreme Court after the 7th Circuit sitting en banc divided 5-5 over stopping early rollout of the law

Today: A three judge court considers whether Democrats need to name a replacement candidate for Chad Taylor on the ballot for the #KSSEN United States Senate race in Kansas.

Tomorrow: The DC Circuit sitting en banc considers the constitutionality of the ban on campaign contributions by federal contractors.

Thursday: The MS Supreme Court considers whether a lower court was right to throw out Chris McDaniel’s election challenge against Thad Cochran in the #MSSEN Republican primary as untimely.

UPDATE: Also, the Arkansas Supreme Court considers the state’s voter id law.

Coming this week? A ruling from the 4th Circuit appeal in the North Carolina voting case and a ruling on the Texas voter id law?