[EL] 6th Circuit Ohio early voting case/more news

[Rick Hasen]

    Breaking News: 6th Circuit Says Ohio Must Keep Extra Early Voting
    Days if Open for Any Voters, Now Updated with Analysis
    <http://electionlawblog.org/?p=41187>

Posted on October 5, 2012 12:20 pm <http://electionlawblog.org/?p=41187> 
by Rick Hasen <http://electionlawblog.org/?author=3>

You can find the opinion in OFA v. Husted at this link 
<http://electionlawblog.org/wp-content/uploads/Document20.pdf>.

A three judge panel of the Sixth Circuit has held that Ohio violated the 
rights of Ohio voters when it withdrew early voting days for the weekend 
before the election for all voters /except/ for military and other 
overseas voters. I am surprised by this decision (by two Democratic 
appointed judges and a Republican-appointed senior judge from Kentucky 
sitting by designation) and it may not survive further review en banc in 
the Sixth Circuit or at the Supreme Court, should Ohio choose to appeal. 
Further, the court's remedy creates a potential new equal protection 
problem for the state, by allowing different counties to adopt different 
uniform standards---though the Secretary of State could well impose 
uniformity.

Here's the nub of the issue.  There is no constitutional right to early 
voting, and if someone sued a state to say that the Constitution's equal 
protection clause requires early voting, that claim would be laughed out 
of court. Further, there's old Supreme Court authority (/McDonald/) 
which says that a state can offer absentee ballots only to some 
residents, but not to all residents, so long as it has a legitimate 
reasons for drawing the lines as it did.  In this case, the Obama 
campaign argued that even if there is no general constitutional right to 
early voting, and even if distinctions can be drawn among different 
classes of voters for some purposes, Ohio's decision to withdraw early 
voting for all but military voters lacked rationality.  The district 
court agreed, and I expressed skepticism 
<http://electionlawblog.org/?p=39463> about the court's ruling, which 
relied in part upon a non-retrogression idea (once you expand early 
voting you cannot contract it) and an argument against discriminating 
against non-military voters, an argument in tension with /McDonald./

The court's majority opinion's reasoning is somewhat muddled, but it 
does seem to rely on both of these arguments in the district court 
opinion. The opinion seems to say that while a state could at some point 
withdraw early voting it had once provided, it has to show a good 
reason. The state here did not prove that it had a good reason---there 
was no good administrative reason to bar counties which wanted to from 
offering early voting if the counties want to, and while there would be 
ample reasons to favor military voters who are overseas, no good reason 
to help only military voters about to ship out to allow them to vote 
while denying other voters facing an imminent need to leave the state 
the same opportunity. Further, the majority said that there was good 
evidence that many people would be seriously burdened by not being able 
to vote on election day, and this would skew toward women, minorities 
and others. Finally, the majority said it did not read the district 
court as requiring the state to provide early voting those last three 
days---only that if a county affords the last period of early voting to 
military voters, it must give it to all.

Judge White, concurring in part and dissenting in part, disagreed with 
part of the reasoning and with the remedy. On the reasoning, Judge White 
said that the evidence did not actually demonstrate that removing those 
last early voting days would be a big burden on voters---only 
inconvenient, and usually inconvenience would not be enough.  But Judge 
White said that in this particular case, there was reason to tip the 
scales toward plaintiffs: "The key distinguishing factor here is that 
Ohio voters were granted the statutory right to in-person absentee 
voting through the close of business hours on the Monday before election 
day, and the election boards of the largest counties broadly embraced 
and facilitated that right, in response to the unacceptably burdensome 
situation at many Ohio
polling sites during the 2004 election where, in some counties, voters 
were required to stand in line for long hours and until late at night."  
On the remedy, Judge White would require the state to provide the early 
voting period across the state in all counties.

I think there is a fairly good chance this ruling gets appealed.  First 
DeWine is going to want to push this issue, as are Republicans generally 
because it presents an opportunity to continue to argue that the Obama 
campaign is taking steps against military voters (a charge I believe is 
bogus).  The next step of the appeal is to the Sixth Circuit as a 
whole.  As I've explained in this blog post 
<http://electionlawblog.org/?p=39463> and this recent Slate piece 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2012/10/ohio_voter_laws_the_battle_over_disenfranchisement_you_haven_t_heard_about_.html>, 
the Sixth Circuit has divided bitterly on election law disputes 
recently, and there are more Republican-appointed judges than Democratic 
ones. The step after that, of course, is the U.S. Supreme Court.

And so while I stand to be surprised again, I'm still expecting a 
reversal should Ohio appeal.

Finally, I should point out that the remedy is very problematic.  If 
some counties have extra early voting and others do not, that itself 
could create an equal protection violation. Further, if we are going to 
require Jon Husted, the Republican Secretary of State to break the tie, 
in the past he has sided with the Republican members of county boards to 
deny extended early voting.  After criticism, he imposed uniform rules 
(but without weekend voting which Democrats wanted).  We will see if he 
imposes extra early voting across the state if this ruling holds.

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Posted in election administration <http://electionlawblog.org/?cat=18>, 
The Voting Wars <http://electionlawblog.org/?cat=60>, voting 
<http://electionlawblog.org/?cat=31> | Comments Off


    "Kansas: Group starts collecting signatures for
    sure-to-not-reach-the-ballot Secretary of State recall"
    <http://electionlawblog.org/?p=41183>

Posted on October 5, 2012 11:00 am <http://electionlawblog.org/?p=41183> 
by Rick Hasen <http://electionlawblog.org/?author=3>

This item 
<http://recallelections.blogspot.com/2012/09/kansas-group-starts-collecting.html> 
appears at the Recall Elections Blog.

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Posted in recall elections <http://electionlawblog.org/?cat=11> | 
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    "Judge: Some Ads Targeting `White House' Subject to FEC Reporting"
    <http://electionlawblog.org/?p=41180>

Posted on October 5, 2012 10:10 am <http://electionlawblog.org/?p=41180> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Bloomberg BNA Breaking News: "A federal judge in Alexandria, Va., ruled 
Oct. 5 that political ads referring to "the administration" and "the 
White House" and criticizing Obama administration policies are subject 
to campaign finance disclosure rules (Hispanic Leadership Fund v. FEC, 
E.D. Va., No. 12-893, 10/5/12)."

UPDATE: Here's a CLC press release 
<http://www.campaignlegalcenter.org/index.php?option=com_content&view=article&id=1913:october-5-2012-court-rejects-another-disclosure-challenge-siding-with-campaign-legal-center-again&catid=63:legal-center-press-releases&Itemid=61>and 
theopinion 
<http://www.campaignlegalcenter.org/images/Hispanic_Leadership_Fund_Memorandum_Opinion_10-5-12.pdf>.

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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    Colorado SOS Gessler Says Left Unconcerned About Voter Fraud
    <http://electionlawblog.org/?p=41176>

Posted on October 5, 2012 10:03 am <http://electionlawblog.org/?p=41176> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Only in the U.S. could we have partisan election officialslike this. 
<http://www.denverpost.com/politics/ci_21702894/secretary-state-scott-gessler-left-doesnt-care-about>

Meanwhile 
<http://www.denverpost.com/politics/ci_21702885/da-investigating-firm-voter-registration-violations>in 
Colorado, "Eighteenth Judicial District Attorney Carol Chambers has 
launched an investigation into a firm hired by the Colorado Republican 
Party to register voters, which has since been fired, a watchdog group 
has learned."

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Posted in The Voting Wars <http://electionlawblog.org/?cat=60> | 
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    Check Out the Revamped NYT Webpage on Independent Spending
    <http://electionlawblog.org/?p=41173>

Posted on October 5, 2012 9:59 am <http://electionlawblog.org/?p=41173> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Here 
<http://elections.nytimes.com/2012/campaign-finance/independent-expenditures/week/2012-10-01>.

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Posted in campaign finance <http://electionlawblog.org/?cat=10> | 
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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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