[EL] Re Relying in Part on Bush v. Gore, Obama Campaign Pushes for Ohio Early Voting in Supreme Court

[Derek Muller]

What intrigues me, I think, almost more than the citations to *Bush v.
Gore*are the citations to
*Harper*. It was, in some ways, slightly remarkable that *Harper* was
(apart from the one person, one vote cases) one of the few citations in *Bush
v. Gore*. And, it strikes me as a slightly (but, admittedly, not entirely)
incongruous analog in most of these voting rights cases. And, it strikes me
as precisely the kind of case that (and this is speculation) a majority of
the Supreme Court might prefer to cabin (and, indeed, was, at the very
least, distinguished in *Crawford*). Unless someone has a more benign view
of what the Supreme Court might have to say about *Harper* in its future....

Best,

Derek

Derek T. Muller

Associate Professor of Law

Pepperdine University School of Law

24255 Pacific Coast Hwy.

Malibu, CA 90263

+1 310-506-7058

SSRN Author Page: http://ssrn.com/author=464341

---------- Forwarded message ----------
From: Rick Hasen <rhasen at law.uci.edu>
Date: Fri, Oct 12, 2012 at 5:55 PM
Subject: [EL] more news 10/12/12
To: "law-election at UCI.edu" <law-election at uci.edu>
  Relying in Part on Bush v. Gore, Obama Campaign Pushes for Ohio Early
Voting in Supreme Court <http://electionlawblog.org/?p=41599>
Posted on October 12, 2012 5:43 pm
<http://electionlawblog.org/?p=41599> by Rick
Hasen <http://electionlawblog.org/?author=3>

Via SCOTUSBlog,<http://www.scotusblog.com/2012/10/last-weekend-voting-urged/>comes
a link to the Obama
opposition<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/10/12A338-Democrats-response.pdf>to
the State
of Ohio’s emergency
application<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/10/Ohio-voting-applic-12A338.pdf>to
Justice Kagan (and presumably the Supreme Court) to put on hold the
Sixth Circuit’s recent order requiring Ohio county election officials to
offer early voting to everyone on the last three days before the election
if it is offered to military voters.  Ohio had early voting in 2008 but got
rid of it this year, except for certain military and overeas voters. A
federal district court held that U.S. constitutional equal protection
principles required the extension of early voting to all, a ruling somewhat
modified by the Sixth Circuit.  (More on these rulings
here<http://electionlawblog.org/?p=41350>and
here <http://electionlawblog.org/?p=41187>.)

SCOTUSBlog also reports on the amicus briefs: “The Democrats picked up the
support for their side in this dispute by a group of Democratic state
senators (their* amicus* brief is
here<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/10/12A338-Ohio-Senate-amicus-brief.pdf>),
while the state’s leaders picked up the support of 15 other states (their*amicus
* brief here<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/10/12A338-15-states-amicus-brief.pdf>).
In addition, the state also gained support from military and veterans’
organizations, who had also taken part in the lower court proceedings
(their *amicus* brief is
here<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/10/12A338-military-groups-amicus.pdf>
.)”

Of all the filed briefs, only the Obama campaign brief even mentions *Bush
v. Gore*, though I think it is hard to see how the equal protection
holdings of the lower courts could be justified without that case.  In
part, here is what the brief says on the relevance of this case—one which
the Supreme Court has never cited for any purpose since it was decided in
December 2000:

The Constitution safeguards not only the abstract right to vote, but also
the integrity of the electoral process: “The right to vote is protected in
more than the initial allocation of the franchise.” Bush v. Gore, 531 U.S.
at 104. “Equal protection applies as well to the *manner of its exercise.*”
Id. (emphasis added). Every “citizen has a constitutionally protected right
to participate in elections on an equal basis with other citizens in the
jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972); see Harper v.
Va. State Bd. of Elections, 383 U.S. 663, 665-70 (1966)…

Where, as here, the challenged restriction is *not* evenhanded, that
disparate treatment itself requires justification. See, e.g., Harper, 383
U.S. at 667-70. Put differently, the decision of the State to turn away
some voters and not others from an open polling place itself imposes a
burden on the exercise of the franchise. See Bush v. Gore, 531 U.S. at 104
(emphasizing the “equal weight accorded to each vote and the equal dignity
owed to each voter”). “Having once granted the right to vote on equal
terms, the State may not, by later *arbitrary and disparate* treatment,
value one person’s vote over that of another.” Bush v. Gore, 531 U.S. at
104-05 (emphasis added). Accordingly, the restriction presently before the
Court cannot be sustained absent a relevant, legitimate justification. See
Crawford, 553 U.S. at 189-90; Burdick, 504 U.S. at 434….

The Court is unlikely to reverse the decision below because it is correct.
The Equal Protection Clause prohibits states from providing differential
access to the ballot box on arbitrary terms. Yet that is precisely what is
threatened by the statute under review. On October 2, 2012, 35 days before
Election Day, polling places opened across Ohio for all voters.7 But absent
the district court’s injunction, on the final three days before Election
Day, those polling places will close for some—but not all—voters. That
selective access to voting, unique to Ohio, has no justification. Rather,
it is the consequence of a muddled legislative process marked by
incoherence and confusion.

This arbitrary and irrational discrimination between voters violates the
Equal Protection Clause. In light of Ohio’s troubled history of election
administration, the State made the decision to expand the period in which
voters may cast their ballots in person. Having done so, the State may not
arbitrarily exclude some voters, but not others, from the polling place on
any day during the voting period. Bush v. Gore, 531 U.S. 98, 104-05 (2000).

Reading *Bush v. Gore* broadly to contain this nonretrogression principle
is sure to be controversial. The question is whether it is controversial
enough to prompt the Court’s intervention is hard to say.  The 15 states
raising a federalism issue—and I believe each of those states signing this
brief has a Republican attorney general—signals both the partisan and
ideological stakes in this case.

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