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Ohio challenges early-voting mandate (UPDATED)

UPDATED Friday 5:11 p.m.  Justice Elena Kagan has called for a response to the state officials’ application (14A 336) by 5 p.m. Saturday.  She cited the uncertainty about when the Sixth Circuit would act on a pending plea by state officials for en banc rehearing, as well as timing issues.  Her order made no mention of the separate delay request by the state legislature (14A337), presumably because the Sixth Circuit did not rule on a separate appeal by the legislature, but treated the legislature as only an amicus in the state officials’ case.


Faced with a court order to allow voters in Ohio to start casting ballots next Tuesday for this year’s general election, state officials on Thursday asked the Supreme Court to temporarily block that requirement, and to consider taking on the dispute itself immediately.  A federal judge, with approval from the U.S. Court of Appeals for the Sixth Circuit, has told the state to provide thirty-five days of early-voting opportunity, seven more than state officials had planned.

The application (DeWine v. Ohio State Conference of the NAACP, 14A336) argued that the court order intrudes deeply into the state’s power to run elections, and does so based upon flawed readings of the Constitution and federal voting rights law.  The Ohio legislature also has filed its own plea for delay (14A337).

Ohio officials have sought review of this dispute before the en banc Sixth Circuit, but rushed to the Supreme Court with a plea for postponement of the early-voting order to get the Justices involved as quickly as possible.  Going beyond the request for delay, the state suggested, as an alternative, that the Court grant review of the case now to ensure that it gets settled swiftly.

The application is the first seeking to draw the Justices into this year’s spreading controversy, in several states, over changes in election law that challengers say are designed to narrow the right to vote, especially for minority voters.

“Similar suits are percolating throughout the country with conflicting outcomes,” the Ohio filing noted.  While their case was the first to get to the Court, they added, courts handling other cases have put them on a fast track.   That adds to the urgency of getting some basic legal rules sorted out to govern this year’s balloting, the filing argued.

Ohio complained that it was being forced to go further to allow early voting even though, it said, it has been a “national leader in making voting easy.”  Its allowance of twenty-eight days of early voting, it argued, is more accommodating than the provisions in almost all of the other states.

That state has been a continuing target of the widespread complaint, especially by advocates for minority and Democratic voters, that new restrictions on voting are leading to longer lines on election, with some having to wait up to twelve hours in the 2004 election to get into a polling booth, and with many not even getting to vote.

A series of changes in response to those complaints has resulted in heavy early voting in the state.  In the 2012 election, for example, it is estimated that some thirty-two percent of Ohioans voted in advance of election day.

Controversy returned to Ohio after the state legislature voted this year to delay early voting by cutting seven days off of a prior thirty-five-day early voting schedule.   Instead of allowing voters to register and then vote on the same day, in person or by absentee ballot, the new law delayed any balloting until the registration period had closed.  That eliminated what Ohio champions of early voting have called “Golden Week.”

After Senior U.S. District Court Judge Peter C. Economus of Columbus early this month ordered the state to reinstate the full thirty-five-day voting period, Ohio officials failed to get that court or the Sixth Circuit to postpone the requirement.  A three-judge panel of the Sixth Circuit then upheld the judge’s order, leading Ohio officials to seek reconsideration by the full Sixth Circuit.  That plea has not yet been decided.

The application argued that its early voting schedules are entirely neutral in their design, but yet Judge Economus had applied a rigorous equal protection guarantee without finding any evidence of an intent to discriminate against minority voters.

In addition, it contended that the judge had used Section 2 of the 1965 Voting Rights Act as a basis for court supervision of state election changes that was formerly required under the Act’s Section 5, which the Supreme Court has now found constitutionally deficient.

The application was filed with Justice Elena Kagan, who handles emergency matters from the Sixth Circuit, which includes Ohio.  She has the option of acting on her own, or sharing a decision with her colleagues.

It seems likely that the supporters of early voting will be asked to respond to the application before Justice Kagan or the Court acts.


Recommended Citation: Lyle Denniston, Ohio challenges early-voting mandate (UPDATED), SCOTUSblog (Sep. 25, 2014, 8:01 PM),