[EL] Breaking: SCOTUS Stays OH early voting/more news

Mon Sep 29 13:33:18 PDT 2014

    Breaking: Supreme Court, 5-4, Blocks Extension of Early Voting in
    Ohio: Analysis <http://electionlawblog.org/?p=66036>

Posted onSeptember 29, 2014 1:05 pm 
<http://electionlawblog.org/?p=66036>byRick Hasen 
<http://electionlawblog.org/?author=3>

Via 
<http://www.scotusblog.com/2014/09/early-voting-in-ohio-blocked/> SCOTUSBlog 
<http://www.scotusblog.com/2014/09/early-voting-in-ohio-blocked/>comes 
this Supreme Court order 
<http://sblog.s3.amazonaws.com/wp-content/uploads/2014/09/Ohio-order-9-29-14.pdf> staying 
the district court's order preventing various cutbacks in early voting 
(including a cutback from 35 to 28 days, and elimination of one of the 
two early voting days on a Sunday, a day African-American churches had 
been using for "Souls to the Polls" voter drives). [It is not clear from 
earlier orders which Sunday might be eliminated.]

Although the order is "temporary" in the sense that it will be in place 
pending a ruling on a cert. petition ultimately to be filed by Ohio in 
the Supreme Court, that won't happen before this election, and so for 
this election the new shorter voting period is in effect---and not the 
old rules put back in place by the district court and affirmed by the 
6th Circuit.

That the Court divided 5-4 along liberal conservative lines is no 
surprise.  As Iwrote this morning in/Slate / 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may_reach_the_supreme_court_from_ohio_wisconsin_north.html>of 
the various election voting wars cases making their way up the the 
Supreme Court, "For the most part, it has been Democratic and more 
liberal judges who have issued opinions reading voting rights protection 
broadly, and it has been Republican and more conservative judges who 
have issued opinions reading the protections narrowly. There is every 
reason to expect the same pattern at the Supreme Court, with a 5--4 
conservative-liberal split on these questions."

And while the Court did not offer a reason for its order today, it is 
very likely that the conservative Supreme Court majority did not believe 
in the very expansive views <http://electionlawblog.org/?p=65853>of 
equal protection and section 2 of the Voting Rights Act endorsed by the 
very liberal district court judge and 6th Circuit panel below.

I think it was a mistake to bring this Ohio case. I am not convinced 
that it is a significant burden on voters to cut back a week off early 
voting including the last Sunday. Really, if 28 days is too little early 
voting, what does this say about New York, with NO period of early 
voting?  I do not buy the"context" 
<http://moritzlaw.osu.edu/election-law/article/?article=12915>argument 
about Ohio in part because these cutbacks are so minor.

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.I have 
argued<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2353068>that 
when there is a/significant/burden on voters imposed for no good reason, 
or imposed for a partisan reason, then courts should shut down voting 
restrictions. The Ohio case did not involve significant burdens, and the 
theories accepted by the district court and 6th Circuit panel were vast 
constitutional expansions of voting rights. AsNed Foley reminded us 
<http://moritzlaw.osu.edu/election-law/article/?article=12927>, not 
everything that is good policy is constitutionally required.

But now 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. As I 
concluded inthe Slate 
piece,<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/09/voting_restrictions_may_reach_the_supreme_court_from_ohio_wisconsin_north.html>we 
ignore these cases at our peril.

[This post has been updated.]

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>,voter id 
<http://electionlawblog.org/?cat=9>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>

    Ian Millhiser Connects Senate Blue Slip of Prof. Nourse to WI Voter
    ID and Scott Walker Reelection <http://electionlawblog.org/?p=66034>

Posted onSeptember 29, 2014 11:38 am 
<http://electionlawblog.org/?p=66034>byRick Hasen 
<http://electionlawblog.org/?author=3>

Connecting the dots. 
<http://thinkprogress.org/justice/2014/09/29/3572974/blue-slip-voter-id/>

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

    SOS Kobach, Accusing KS Democratic Party of Chutzpah, Rejects First
    Amendment Argument Not to Pick #KSSEN Candidate
    <http://electionlawblog.org/?p=66031>

Posted onSeptember 29, 2014 10:53 am 
<http://electionlawblog.org/?p=66031>byRick Hasen 
<http://electionlawblog.org/?author=3>

This 
brief,<http://electionlawblog.org/wp-content/uploads/kobach-reply.pdf>which 
it says was prepared in 3 hours time, argues that it is no big deal to 
force a party to choose a candidate to run in an election against its will.

Near the end of the brief, Kobach notes that the party ignored Kobach's 
demand for a replacement candidate, analogizing the party to the child 
"who kills his parents then complains of being orphaned," thedictionary 
definition of chutzpah <http://en.wikipedia.org/wiki/Chutzpah>.

This is probably one of the most partisan briefs I have seen from a 
state elections official, and that's saying a lot.

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Posted incampaigns <http://electionlawblog.org/?cat=59>

    "Arguments Set This Week In Arkansas Voter ID Case"
    <http://electionlawblog.org/?p=66027>

Posted onSeptember 29, 2014 8:43 am 
<http://electionlawblog.org/?p=66027>byRick Hasen 
<http://electionlawblog.org/?author=3>

AP <http://swtimes.com/news/arguments-set-week-arkansas-voter-id-case>: 
"Arkansas' highest court is set to take up a case this week that could 
decide whether the state's voters will be required to show photo 
identification at the polls in the November election. The state Supreme 
Court on Thursday is scheduled to hear oral arguments in the lawsuit 
over Arkansas' voter ID law, which took effect in January. With a U.S. 
Senate race that could determine which party controls that chamber, how 
the court rules could have national implications."

I have added this to my list ofElection Law litigation issues 
<http://electionlawblog.org/?p=66018>this week.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

    10th Circuit Sets Expedited Schedule in Citizens United's CO
    Disclosure Case <http://electionlawblog.org/?p=66024>

Posted onSeptember 29, 2014 8:39 am 
<http://electionlawblog.org/?p=66024>byRick Hasen 
<http://electionlawblog.org/?author=3>

Read the order 
<http://electionlawblog.org/wp-content/uploads/cu-10-order.pdf>.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

    Democrats File Brief Opposing Chad Taylor Replacement in #KSSEN Race
    <http://electionlawblog.org/?p=66022>

Posted onSeptember 29, 2014 8:32 am 
<http://electionlawblog.org/?p=66022>byRick Hasen 
<http://electionlawblog.org/?author=3>

You can read ithere 
<http://www.scribd.com/doc/241349914/Kansas-Democratic-Party-Opposition-to-Writ-of-Mandamus>.

I already explained why I think the Democrats arelikely to win this one. 
<http://electionlawblog.org/?p=65779>

In addition to the arguments I've laid out, the Democrats really hammer 
home the point that overseas ballots have already been sent out, that 
SOS Kobach repeatedly assured the Kansas Supreme Court that the deadline 
for finalizing the ballot has already passed, and that anyone who wants 
to vote for Chad Taylor or any other Democrat can do so---using a write 
in vote.

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Posted inUncategorized <http://electionlawblog.org/?cat=1>

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

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