Today was to be the first day of Ohio’s “Golden Week,” a six-day overlap between the end of voter registration and the beginning of early voting for the November 4 General Election. But on Monday, the U.S. Supreme Court sided with Ohio’s Republican Secretary of State and allowed to go forward a plan that significantly reduced the number of days voters could cast early ballots.
The High Court granted a stay [PDF] of a U.S. Court of Appeals ruling that had tossed out the restrictive voting plan — put in place by Ohio’s Republican legislature and governor — without judging the merits. Justices Roberts, Alito, Kennedy, Scalia and Thomas — all chosen by Republican presidents — voted for the stay; the court’s four Democratically appointed members, Breyer, Ginsburg, Kagan and Sotomayor, noted they would have let the Appeals Court verdict stand.
A decade ago, Ohio drew national attention, as extremely long lines of voters, especially at polling places in minority-heavy districts, the uneven distribution of voting machines, and decisions to disallow large numbers of provisional ballots raised questions about whether the then-Secretary of State, Republican Ken Blackwell, had maneuvered to skew outcomes in the crucial swing state in favor of President George W. Bush over Democratic challenger John Kerry.
A series of political moves in the state in 2005 expanded the use of absentee ballots and also allowed for 35 early voting days, including the Golden Week and evening and weekend polling hours in the five weeks leading up to the general election. The provisions that allowed voters to register and vote the same day (the ballot counted only if the registration checked out) proved popular in African-American communities, as did weekend voting, especially on Sundays before Election Day, when many traditional black churches would organize “souls to the polls” voter drives.
Ohio’s GOP-dominated government moved to cut the number of early voting days to 28, eliminating the Golden Week, some Sunday voting, and limiting operating times of polling stations to reduce availability outside traditional working hours.
U.S. District Judge Peter C. Economus (later upheld by the 6th Circuit Court of Appeals) had ruled that the moves disproportionately affected African-American and lower-income voters, violating the Constitution and Section 2 of the Voting Rights Act.
Section 2 says that laws cannot burden minority voters in ways that prevent them from participating in the electoral process to the same extent as the majority. Because the state had cut back on early voting reforms that were more likely to be used by minority communities, the court voided Ohio’s 2014 restrictions.
Ohio Secretary of State Jon Husted rushed an appeal to the Supreme Court, saying that his state should not be judged against its own record, but by the broader standard of all state voting rules. Husted argued that Ohio had as many or more early voting days than 41 other states.
Husted is, himself, locked in a tight election battle with Democrat Nina Turner, an Ohio state senator. The Supreme Court’s siding with Husted actually has the potential to benefit the incumbent, along with Republicans in other tight battles for the U.S. House of Representatives and the Governor and Lt. Governor of the state.
“The same divided court that struck down key provisions of the Voting Rights Act has now made it immeasurably more difficult for working Ohioans, African Americans, and low income and homeless voters to cast their ballot,” said Turner. “Thanks to Secretary Husted's persistence, his efforts to restrict ballot access have finally been successful.”
Turner is probably right on the implications for Ohio voters over the next five weeks, but she also touches on a broader and perhaps more ominous message inside the Supreme Court’s three-line stay.
By allowing Husted’s challenge to the appeals court interpretation to live, the Justices have opened the door to a review of Section 2 protections by a court that already struck down Section 5 of the Voting Rights Act.
Section 5, often referred to as the “pre-clearance” provision, had protected citizens in states and districts with histories of discrimination by requiring those local governments to get approval from the Justice Department in advance of any changes to election rules. These parts of the country were subject to this pre-clearance because of a history of discrimination and a subsequent set of laws designed to remedy the imbalance.
If the Supreme Court applies their Section 5 logic to Section 2, there is a chance they will see the new restrictions placed on recent expansions of voter rights not as an unfair burden imposed on a protected class, but as a reworking of a law that broadly applies to the whole electorate.
As elections-law expert Rick Hasen told Steve Benen in the wake of the High Court’s ruling, “I am worried this case will make bad law, and have bad effects in cases such as challenges to Wisconsin’s voter ID law, Texas’s voter ID law, and North Carolina’s omnibus bill making it harder to vote.”
Hasen continued, “if the Supreme Court reads both the Equal Protection Clause and Section 2 of the Voting Rights Act very narrowly in the Ohio case, it is bad news all around and in cases where the changes matter more.”
That is not just idle speculation. Lower courts have recently allowed Wisconsin’s strict voter ID laws to go into force, giving an estimated 300,000 Badger State voters mere weeks to comply with a law that, even in its own language, had envisioned an eight-month rollout.
North Carolina, where voting restrictions are before the 4th Circuit Court, has a pivotal race for U.S. Senate. And Texas, with a high-profile Governor’s contest, is awaiting a court ruling on their ID law, which says a student ID is not valid for voting purposes, but a concealed weapons permit is.
But for Ohio, the implications are very much right now. It is unlikely a final decision on the appeal will come before November 4, so the Supreme Court essentially did two things it has argued since Bush v. Gore it never wanted to do: weigh in close to an election in a way that could influence the outcome, and create uncertainty about voting rules, which itself could suppress the vote. It is not, for now, Golden Week in Ohio; it may not be a golden time for voting rights in many other states, as well.