[EL] Ohio

[Rick Hasen]

    Breaking News: Supreme Court Rejects Ohio Emergency Staty on Early
    Voting <http://electionlawblog.org/?p=41784>

Posted on October 16, 2012 10:34 am 
<http://electionlawblog.org/?p=41784> by Rick Hasen 
<http://electionlawblog.org/?author=3>

Without any noted dissent (thus answering Ned Foley's prayers 
<http://moritzlaw.osu.edu/electionlaw/comments/index.php?ID=9867>), the 
Supreme Court has rejected Ohio's application for an emergency stay 
<http://sblog.s3.amazonaws.com/wp-content/uploads/2012/10/12A338-SCt-order-10-16-12.pdf>---thus 
insuring that the three days of early voting on the weekend before 
election day, taken away by the Ohio legislature but restored by a 
federal district court and affirmed by the 6th Circuit, will go forward.

What explains the Court's ruling, especially given the shaky 
constitutional reasoning <http://slate.me/QJEx8B>of the lower courts?

First, it is always a high burden to get emergency relief from the 
Court.  The Justices may not have believed that any legal error here was 
worth correcting.  Whether the 100,000 or so voters who voted on those 
last three days or had to shift to other days (or absentee ballots) was 
perhaps not worth gearing up the machinery for a potentially difficult 
constitutional issue.  The silence on the meaning of /Bush v. Gore/ thus 
continues at the Supreme Court.

More to the point, the Court conservatives, who would be most likely to 
disagree with the lower courts' reasoning, may have decided that there 
was not enough at stake about those last three days of early voting for 
the Court to issue an opinion divided on party/ideological lines about 
voting in a state which could well be pivotal in the presidential 
election. A divided ruling would have thrust the Court to the center of 
the election.

Still, this is quite a run in the courts for those fighting Republican 
legislative cutbacks on voting rights, at least in 2012.  And in that 
respect I have been surprised.

Early coverage from SCOTUSBlog 
<http://www.scotusblog.com/2012/10/ohio-rebuffed-on-early-voting/>, AP 
<http://hosted.ap.org/dynamic/stories/U/US_SUPREME_COURT_OHIO_EARLY_VOTING?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT>. 
More to come.

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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
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http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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