[UPDATE: On Monday, September 12, Ohio Democrats filed their reply to the state’s brief opposing their effort to block the Sixth Circuit’s ruling and reinstate “Golden Week.”]
Emphasizing that Ohio actually offers its citizens a longer window in which to vote than most states, today state officials urged the Justices to turn down a plea by Ohio Democrats to preserve “Golden Week” – a five-day stretch during the state’s early voting period during which voters can both register to vote and vote on the same day. Democrats had argued that a 2013 law that abolished Golden Week violated the Constitution because it would discriminate against African Americans, who were more likely to take advantage of the early voting opportunities. A federal district court agreed, but a federal appeals court overturned that ruling on August 23. Nine days later, Ohio Democrats asked the Supreme Court to block the appeals court’s decision and reinstate Golden Week for the November 2016 general election.
Today the state responded, in a filing that pushed back against the suggestion by Democrats that the elimination of Golden Week would disproportionately burden African Americans. Ohio residents, the state contended, have “many options” to vote. Most residents, the state explained, vote either on Election Day itself or by mail. “Absentee in-person voting,” the state observed, “remains the least-used option.”
“If anything,” the state continued, its “current calendar accommodates African Americans more than” most states do – for example, by making early voting available on two different Sundays – a day when predominantly African-American churches often conduct “souls to the polls” campaigns to encourage their members to vote.
The proof that the law does not disproportionately burden African Americans is, the state argued, in the pudding: “During the 2014 election with the Early-Voting Law’s changes, African Americans and whites registered and voted at the statistically same rates.” And the state downplayed the possibility that eliminating Golden Week would result in long lines, citing a 2012 study which “found that voters waited, on average, ten minutes. And, of course, those who want to eliminate any risk of an Election Day line can vote by mail at any time.”
By contrast, the state argued, putting the law on hold would cause Ohio and its residents irreparable harm by blocking “the intent of the elected representatives of the people” and “short circuit[ing] the democratic process.” Reinstating Golden Week could also create voter confusion, the state suggested, because the appeals court’s ruling “was widely reported as allowing Ohio to implement the Early-Voting Law for the 2016 election.”
The state also cited practical concerns as another reason to reject the Democrats’ request to restore Golden Week. In the days leading up to elections, it lamented, election boards are already overburdened; increasing early voting opportunities would impose additional costs and raise the risk of voter fraud. Moreover, the state alleged, allowing residents to cast their votes too early “increases the chances that voters will lack” the information that they need to make informed choices.
The state sharply rejected the Democrats’ contention that it is simply too late to proceed without Golden Week. In an earlier challenge to the 2013 law, the Court intervened to halt a lower-court ruling that would have blocked the law’s implementation “on the day before—indeed, on the afternoon before—a court-imposed schedule was to begin.”
Justice Elena Kagan is responsible for emergency appeals from the geographic region that includes Ohio. Although she could act on the Democrats’ request herself, she is more likely to refer it to the whole Court for a vote. There is no official timetable for a ruling; however, because Golden Week would, if restored, begin in mid-October, a decision is expected soon.