[EL] more Breaking news: Ohio

[Rick Hasen]

    Breaking: 6th Circuit Refuses to Stay Ohio Early Voting Order
    <http://electionlawblog.org/?p=65407>

Posted onSeptember 12, 2014 4:20 pm 
<http://electionlawblog.org/?p=65407>byRick Hasen 
<http://electionlawblog.org/?author=3>

What is it with judges issuing opinions late on Fridays?

A three judge panel of the Sixth Circuit has just issuedthis order 
<http://electionlawblog.org/wp-content/uploads/oh-6th.pdf>denying Ohio's 
request to put on hold a district court order requiring Ohio to restore 
early voting days (including "Golden Week") which the Republican 
legislature tried to cut.

For those who have noted that all the judges who just allowed 
Wisconsin's voter id law to go into effect were Republican-appointed, it 
is worth noting that all the judges in the Sixth Circuit today were 
Democrat-appointed.

Part of the Sixth Circuit's reason for rejecting Ohio's argument that 
the restoration of early voting is not required by either the 
Constitution or the Voting Rights Act section 2 is that it says Ohio did 
not cite any legal authority supporting its argument, while the 
plaintiffs cited Sixth Circuit authority which helped them.

Here is a bit ofmy analysis <http://electionlawblog.org/?p=64964>of the 
earlier district courtorder 
<http://electionlawblog.org/wp-content/uploads/072_order_granting_pi.pdf>:

    6. The main problem with the equal protection theory and the VRA
    section 2 theory is the same: Ohio's law is not all that burdensome,
    and in fact it provides many opportunities for voting (such as a
    still very long early voting period of 28 days and no excuse
    absentee balloting for a long period) which are not available in
    other states. If 28 days is unconstitutional and a voting rights
    violation, what does this say about places like New York, which
    offer no early voting?  Although the judge says he is not applying a
    "non-retrogression" standard such as that which used to exist under
    section 5 of the VRA, that appears to be what he is doing to at
    least some extent. The judge says the cutbacks are relevant in a
    totality of the circumstances approach to section 2 VRA applicability.

    7. Perhaps most surprisingly, the judge does not really give us a
    full test for determining when a vote denial case constitutes a
    violation of section 2 of the Voting Rights Act. This is an issue
    which is dividing the lower courts, from the capacious reading of
    section 2 in Frank v. Walker <http://electionlawblog.org/?p=64270>,
    the federal case striking down Wisconsin's voter id law, to the much
    narrower reading of section 2 in North Carolina Conference of
    the NAACP v. McCrory <http://electionlawblog.org/?p=64152>, the
    federal case rejecting a preliminary injunction for cutbacks in
    early voting and other changes in North Carolina. The judge simply
    throws up the section 2 "Zimmer factors" and has at it. The standard
    does not explain whether any and every voting rule which has a
    disparate impact on minority voters counts as a section 2 violation.
    And if section 2 is that broad, is it a constitutional exercise of
    Congress's power?

    8. In the end, it might be that the trial court's ruling will stand,
    because the Sixth Circuit has been reading equal protection
    principles from /Bush v. Gore/ quite broadly, and requiring Ohio to
    not retrogress in protections and benefits offered to voters.  (I
    analyzed these cases in The 2012 Voting Wars, Judicial Backstops,
    and the Resurrection of Bush v. Gore
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182857>, 81
    /George Washington Law Review/ 1865 (2013).) But the opinion issued
    today is quite undertheorized as a matter of law, and I am not sure
    that it will stand up to further scrutiny, at least if applied in
    other cases.

[This post has been updated.]

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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
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rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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