UPDATED Sunday 11:48 a.m.   State officials filed a final brief on Sunday morning, replying to the challengers’ pleas to allow early voting to go ahead on Tuesday.  The state’s reply argued again that the challengers had created the time crunch by moving slowly to respond to changes that the state sought to implement in February.  The new filing also repeated arguments that lower courts had created a sweeping new right to early voting that will have an impact across the nation.  There is no proof, the document asserted, that Ohio’s changes would actually deny anyone the right to vote.  The filing of this document completes the process, thus enabling Justice Elena Kagan or the full Court to act at any time on whether to delay early voting.

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Arguing that early voting is necessary to continue to deal with the “unprecedented disaster” at the polls in Ohio in 2004, several civil rights advocacy groups urged the Supreme Court on Saturday to permit Ohioans to start casting their ballots next Tuesday for this year’s general election.  Allowing that would merely keep in place what the state has been doing for the past four elections, and would not affect any other state, the fifty-four-page brief contended.

Justice Elena Kagan is currently considering, and could share with her colleagues, pleas by state officials and the Ohio legislature to allow the state to cut back early in-person voting from thirty-five to twenty-eight days, to bar voting on most Sundays in the coming weeks, and to eliminate voting in the early evening on any day.   Those are the very opportunities, the advocacy groups said in their response, that tens of thousands of black and low-income voters have been able to use to cast their ballots.

A federal district court judge in Columbus and a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati recently struck down the changes that the legislature and state election officials have sought to put into effect this year.  The state seeks to have those rulings delayed until the Supreme Court can settle the constitutional and voting rights law issues at stake.

Supporters of early voting recounted in their Saturday filing the history of “the debacle of 2004,” when some voters stood in line for more than twelve hours, and some actually never got to vote.

The early voting methods that were put in place in 2005 to help cure that problem were not the result of “a magnanimous commitment to the broadest possible participation in self-government” by the state, the brief argued, but rather were “a necessary remedy to address the state’s demonstrated inability in 2004 to conduct the entirety of an election on a single day.”  State officials who now want help from the Supreme Court approach it “with dirty hands,” the filing asserted.

As the new case has unfolded in lower courts and now in the Supreme Court, the dispute is portrayed in vastly different ways by the legal combatants.

State officials have argued that the lower courts have created a new constitutional right to vote early, have punished Ohio for stepping out in front of the nation to allow early voting, have intruded deeply into the authority of states to manage elections, and have given sweeping new interpretations of the 1965 Voting Rights Act.

By contrast, the early-voting supporters have argued that the lower courts have simply applied binding Supreme Court precedents, have supported early voting with a court order that is closely tailored to the specific situation in Ohio, and have done no more than assure that the right to vote is a meaningful one for minority and poor voters.

While state officials have contended that it will be costly to implement early voting as mandated by the lower courts, and result in serious confusion to voters, the advocacy organizations have argued that four elections using the very methods now under challenge by the state have gone on with no difficulty and that county election boards are ready to do so again this year.

This case is the first to reach the Court in this year’s election cycle, but it is part of a spreading controversy across the country over efforts to cut back on voting opportunities that state officials say are necessary to deal with voter fraud, but that opponents say are merely targeted efforts to suppress the votes of those who customarily vote for Democratic candidates.

The Ohio advocacy groups, in their new brief, told the Court that the new efforts to roll back pre-election-day voting opportunities were aimed specifically at black and low-income voters.  The state’s planned measures, the brief said, amount to “targeted elimination of specific voting opportunities that lower-income and African-American Ohio voters have relied on for nearly a decade.”

Justice Kagan, as the member of the Court who handles emergency matters from the geographic area that is the Sixth Circuit, can act on her own on the Ohio applications, or she can opt to share the pleas with her colleagues.

With early voting now set to begin in Ohio three days from now, Justice Kagan or the Court could act at any time.  The options open to her or to the Court are to grant or deny postponement of the lower court rulings, or to move ahead with review by the Court without waiting for proceedings to finish in lower courts.

State officials and the legislature have requests pending at the Sixth Circuit Court to reconsider the three-judge panel’s decision before all members of that court.  If en banc review is denied by the Sixth Circuit, officials want it to impose a delay of early voting.

 

 

 

 

Posted in Featured, Cases in the Pipeline

Recommended Citation: Lyle Denniston, Court urged to let Ohioans vote early (UPDATED), SCOTUSblog (Sep. 27, 2014, 6:54 PM), https://www.scotusblog.com/2014/09/court-urged-to-let-ohioans-vote-early/