[EL] OH voting decision; more news

[Rick Hasen]

    Breaking: In Major Decision, Federal Court Blocks Cutback in Ohio
    Registration/Early Voting “Golden Week”
    <http://electionlawblog.org/?p=83051>

Posted onMay 24, 2016 10:04 am 
<http://electionlawblog.org/?p=83051>byRick Hasen 
<http://electionlawblog.org/?author=3>

In a 120-page opinion, 
<https://www.dropbox.com/s/17hmegq809tmuxb/Final%20Order%20-%20Ohio.pdf?dl=0>a 
federal district court has held that the Ohio legislature’s elimination 
of “Golden Week,” a week in which Ohio voters could both register to 
vote and cast an early ballot at the same location, violates both the 
14th amendment of the Constitution and section 2 of the Voting Rights 
Act. This is a big victory for Marc Elias and the Democrats which 
brought this suit (over muchhandwringing 
<https://electionlawblog.org/?p=73441>by some in the voting rights 
community).  Democrats have relied heavily on Golden Week in the past 
and fought the Ohio Legislature (dominated by Republicans) to keep it. 
The theories accepted by the trial court are sure to be controversial, 
and it is not clear how they will fare in the 6th Circuit. However, the 
Sixth Circuit has among the most pro-voting rights views of both 
constitutional and voting rights theories (see the discussions around 
pages 21 and 31here) 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2545676>. The case 
could well go en banc to the Sixth Circuit, especially because of a 
potentially likely 4-4 split at the Supreme Court, leaving the Sixth 
Circuit as likely the last word on the meaning of the Constitution and 
the Voting Rights Act in the area covered by the Sixth Circuit for this 
election.

When you combine this case, the North Carolina voting case (currently on 
fast track appeal to the 4th Circuit) and the Texas voter id appeal 
(heard today by an en banc court in the 5th Circuit), along with two 
additional challenges to Wisconsin’s voter id law (which was upheld by 
the 7th Circuit, after a 5-5 split over whether to take that case en 
banc), there is sorely a need for clarification of the scope of Section 
2 when it comes to the“new vote denial 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2622172>” cases. Yet 
the Scalia-less and Garland-less Court may not be in a position to take 
these cases now, in that they may split 4-4 on their resolution. It just 
shows a cost of the vacancy right now.

While the court accepted the attack on the elimination of Golden Week, 
it rejected plaintiffs’ other challenges, such as those as to the number 
of early voting sites per county and availability of DRE voting 
machines. The court rejected these other challenges, finding there was 
either no burden or the minimal burden was justified.

One interesting question is why the court focuses so heavily on the 
impact of these Ohio laws on African-American voters during the part of 
its analysis applying the Anderson/Burdick balancing test.  All of this 
seems more germane to the Voting Rights Act arguments.

On the Voting Rights Act section 2 claim (the issue that has come up in 
NC, WI, TX and here), the Court follows Sixth Circuit precedent on how 
to measure the burden, and also makes clear (1) that what other states 
do should be irrelevant to the analysis and (2) the “non-retrgoression” 
standard of Section 5 should not be imported into Section 2.  In other 
words, in deciding whether Golden Week’s cutback violates the VRA, it 
doesn’t matter if places like New York have much more restrictive 
voting, and just because Ohio offered more in the past does not mean it 
can never cut back on its voting rules. Both of these points have been 
hotly debated in the cases and commentary. On the elimination of Golden 
Week, the Court piggybacks its constitutional analysis to find a burden 
on African-American voters which is not justified.

And now a bit more on the judge’s ruling today.

 1. The judge found that the elimination of golden week was a minor and
    not a major burden on voting, but the court found a disparate
    impact. “The elimination of the extra days for EIP voting provided
    by Golden Week willdisproportionately burden African Americans, as
    expert and anecdotal evidence reflects that African Americans vote
    EIP, and specifically EIP during Golden Week, at a significantly
    higher rate than other voters….Moreover, to the extent the voters
    who would have voted during Golden Week choose to vote on other
    early voting days or on Election Day, that will likely result in
    longer lines at the polls, therebyincreasingthe burdens for those
    who must waitinthose lines and deterring voting.”
 2. Further, “The opportunity for SDR during Golden Week alleviated the
    costs to voters of having to register and vote at separate times.
    Indeed, it may be more difficult for voters with time, resource,
    transportation, and childcare restraints to make two separate trips
    to register and vote, and Golden Week allowed individuals to do both
    at once.”
 3. “In so finding, the Court, as in N.A.A.C.P.v.Husted, is mindful of
    the numerous opportunities to cast a ballot in Ohio, including vote
    by mail, in person on Election Day, and on other EIP voting days.
    Similar to N.A.A. C.P.v.Husted, however.the Court finds that while
    these opportunities mitigate some of the burdens imposed by S.B.
    238, the record reflects that they do not eliminate or significantly
    decrease those burdens. Specifically, the anecdotal evidence
    suggests that voting by mail is nota viable alternative toEIPvoting
    for many African Americans. First, the record reflects that African
    Americans are distrustful of voting by mail.”
 4. On the state’s interests in imposing the “modest” burden: “Having
    found that S.B. 238 imposesamodest burden on the right to vote of
    African AmericansinOhio, the Court must apply the Anderson/Burdick
    standard to weigh that burden against the precise interests offered
    by Defendants as justifications for that burden….First, while the
    record includes general opinion evidence that Golden Week increases
    the opportunity for voter fraud,seeTr. Trans. 112,ECFNo. 104
    (Damschroder); Tr. Trans. 253,ECFNo. 103 (Ward); DX 15 at 15 (Hood
    Rep.), actual instances of voter fraud during Golden Week are
    extremely rare.” “Defendants’ cost justification also fails to
    outweigh the burden imposed by S.B. 238. First, cost savings from
    the elimination of Golden Week are minimal.” After rejecting an
    “administrative burden argument, the court concluded: “Finally,
    Defendants have adduced insufficient evidence in support of their
    final justification for S.B. 238-increasing voter confidence and
    preventing voter confusion-citing only two elections officials’
    concerns that voters could become confused about deadlines for
    registration as a result of Golden Week.See, e.g.,Tr. Trans.
    98,ECFNo. 102 (Munroe). Defendants adduced insufficient evidence of
    actual voter confusion to substantiate those concerns.”
 5. The court rejected a one location per county rule for early voting
    as a constitutional violation (I’m quite critical of Ohio’s
    justification for this as explained in When is Uniformity of People,
    Not Counties, Appropriate in Election Administration? The Cases of
    Early and Sunday Voting”
    <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2497192>,
    2015/University of Chicago Legal Forum/193 (2015)).
 6. On the Voting Rights Act section 2 claim, the court concludes:
    “Having considered all of the Senate Factors and the totality of the
    circumstances, the Court agrees with the reasoninginN.A.A.
    C.P.v.HustedIand N.A.A.C.P.v.HustedIfand concludes that S.B. 238
    interacts with the historical and social conditions facing African
    AmericansinOhio to reduce their opportunity to participateinOhio’s
    political process relative to other groups of voters and that
    Plaintiffs have succeeded on a§ 2 claim.N.A.A.C.P. v. Husted II,768
    F.3d at 556-57 (“African Americans’ lower-socioeconomic status in
    turn plays a key role in explaining why the disproportionate impact
    of SB 238 and Directive 2014-17 burdens African Americans’ voting
    opportunities.”);N.A.A.C.P. v. HustedI,43F.Supp. 3d at 849-50
    (finding the plaintiffs showed a strong likelihood of success on
    their § 2 claim).”
 7. The court rejected a finding that Ohio engaged in intentional racial
    discrimination in eliminating Golden Week, obliquely wading into
    the“race or party
    <http://requires%20too%20much%20speculation%20to%20find%20that%20the%20historical%20background%20of%20the%20challenged%20decisions%20or%20the%20sequence%20of%20events%20preceding%20the%20state%20action%20show%20a%20racial%20motivation.%20indeed%2C%20plaintiffs%20seem%20to%20argue%20more%20that%20it%20was%20democratic%20successes%20in%202008%2C%20rather%20than%20racial%20bias%2C%20that%20prompted%20the%20general%20assembly%20and%20secretary%20husted%20to%20take%20the%20challenged%20actions./>”
    question: “It requires too much speculation to find that the
    historical background of the challenged decisions or the sequence of
    events preceding the state action show a racial motivation. Indeed,
    Plaintiffs seem to argue more that it
    was/Democratic/successesin2008, rather than/racial/bias, that
    prompted the General Assembly and Secretary Husted to take the
    challenged actions.”
 8. The court rejected a number of other claims, including the “partisan
    fencing” claim, which is a way to raise the race or party question a
    bit more directly.

[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>,Voting Rights Act 
<http://electionlawblog.org/?cat=15>


    Sounds Like Texas Voter ID En Banc 5th Circuit Argument Too Close To
    Call <http://electionlawblog.org/?p=83049>

Posted onMay 24, 2016 9:31 am 
<http://electionlawblog.org/?p=83049>byRick Hasen 
<http://electionlawblog.org/?author=3>

According toJason Steed, 
<https://twitter.com/5thCircAppeals/status/735135915182460928>who 
attended the argument.

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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>


    “Wisconsin’s state legislative districts are a big Republican
    gerrymander” <http://electionlawblog.org/?p=83047>

Posted onMay 24, 2016 9:19 am 
<http://electionlawblog.org/?p=83047>byRick Hasen 
<http://electionlawblog.org/?author=3>

Following up onthis post <http://electionlawblog.org/?p=83029>linking 
totheir SSRN paper 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2783144>, Jon 
Krasno, Daniel Magleby, Michael D. McDonald, Shawn Donahue and Robin 
Best have writtenthis piece 
<https://www.washingtonpost.com/news/monkey-cage/wp/2016/05/24/wisconsins-state-legislative-districts-are-a-big-republican-gerrymander/>for 
the Monkey Cage.

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Posted inredistricting <http://electionlawblog.org/?cat=6>


    “Voter Registration is All About Residency (and Domicile)”
    <http://electionlawblog.org/?p=83045>

Posted onMay 24, 2016 8:48 am 
<http://electionlawblog.org/?p=83045>byRick Hasen 
<http://electionlawblog.org/?author=3>

The the lead story in this month’s issue ofNCSL’s The Canvass. 
<http://www.ncsl.org/research/elections-and-campaigns/the-canvass-may-2016.aspx>

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,residency 
<http://electionlawblog.org/?cat=38>


    “Why the Virginia GOP Can’t Thwart McAuliffe on Voting Rights”
    <http://electionlawblog.org/?p=83041>

Posted onMay 24, 2016 7:06 am 
<http://electionlawblog.org/?p=83041>byRick Hasen 
<http://electionlawblog.org/?author=3>

Andrew Cohen 
<https://www.themarshallproject.org/2016/05/24/why-the-virginia-gop-can-t-thwart-mcauliffe-on-voting-rights#.4IrAN0FPa>for 
the Marshall Project:

    Those who object to the restoration of these voting rights, Howard
    told us, are conflating Gov. McAuliffe’s duty to individually
    communicate his reasons for a pardon with his more expansive
    authority to restore voting rights to those already pardoned. From
    Howard:

    *Whatever limit, if any, Article V, Section 12, might be thought to
    place on the Governor’s actions as to remissions, grants, and
    commutations, it places none whatever on his decision to remove
    political disabilities. Such decisions lies within his discretion.
    He clearly has authority, under the Constitution, to remove
    disabilities from classes of people, as well as to act in individual
    cases.*

    The professor also answered another important question to keep in
    mind as this lawsuit proceeds. The men and women to whom Gov.
    McAuliffe has restored voting rights cannot have those rights taken
    away by a subsequent governor who disagrees with the current
    governor’s views on disenfranchisement. Nor can this group of
    Virginia citizens have their voting rights taken away by lawmakers.
    More from Howard:

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Posted infelon voting <http://electionlawblog.org/?cat=66>


    “Wall Street Lobbyists Decide Against Pushing Trump for Specifics —
    for Now” <http://electionlawblog.org/?p=83039>

Posted onMay 24, 2016 7:03 am 
<http://electionlawblog.org/?p=83039>byRick Hasen 
<http://electionlawblog.org/?author=3>

Bloomberg reports. 
<http://www.bloomberg.com/politics/articles/2016-05-24/wall-street-lobbyists-decide-against-pushing-trump-for-specifics-for-now?cmpid=BBD052416_POL&utm_medium=email&utm_source=newsletter&utm_campaign=>

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,campaigns 
<http://electionlawblog.org/?cat=59>,lobbying 
<http://electionlawblog.org/?cat=28>


    Quote of the Day—Voter Suppression Edition
    <http://electionlawblog.org/?p=83037>

Posted onMay 24, 2016 7:02 am 
<http://electionlawblog.org/?p=83037>byRick Hasen 
<http://electionlawblog.org/?author=3>

“These people are stuck and stuck hard.”

Judge James P 
<http://www.postcrescent.com/story/news/politics/elections/2016/05/23/dmv-official-testifies-voter-id-trial/84794772/>eterson, 
quoted by Gannett, presiding over Wisconsin voter id trial, expressing 
“serious concern about voters who heave found themselves in a Catch-22 
in getting IDs needed to vote because they lack birth certificates or 
other key documents.”

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Posted inelection administration 
<http://electionlawblog.org/?cat=18>,The Voting Wars 
<http://electionlawblog.org/?cat=60>


    “Champion free speech by preventing IRS abuse: Column”
    <http://electionlawblog.org/?p=83035>

Posted onMay 24, 2016 7:00 am 
<http://electionlawblog.org/?p=83035>byRick Hasen 
<http://electionlawblog.org/?author=3>

Brad Smith 
<http://www.usatoday.com/story/opinion/2016/05/23/irs-collection-non-profit-donor-lists-political-persecution-peter-roskam-column/84586686/>in 
USA Today.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,tax law 
and election law <http://electionlawblog.org/?cat=22>


    “Judge Merrick Garland and the rise of super-PACs”
    <http://electionlawblog.org/?p=83033>

Posted onMay 24, 2016 6:58 am 
<http://electionlawblog.org/?p=83033>byRick Hasen 
<http://electionlawblog.org/?author=3>

Steve Weissman 
<http://thehill.com/blogs/congress-blog/politics/280539-judge-merrick-garland-and-the-rise-of-super-pacs>in 
The Hill:

    As the White House pursues its public campaign to persuade the
    Senate to consider Garland’s nomination, it should ask him to
    explain to senators and the public why he joined the SpeechNow
    opinion and what he thinks now of the results. Democratic
    presidential candidates, who may have to make their own decision by
    November about whether to support his nomination, should make
    similar requests. Americans deserve to know more about how this
    Supreme Court nominee thinks about one of the central issues for the
    2016 election and American democracy.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>,Supreme 
Court <http://electionlawblog.org/?cat=29>


    “Five Years Later, Voter ID Suit Still Moving Forward”
    <http://electionlawblog.org/?p=83031>

Posted onMay 24, 2016 6:50 am 
<http://electionlawblog.org/?p=83031>byRick Hasen 
<http://electionlawblog.org/?author=3>

Texas Tribune curtain raiser 
<https://www.texastribune.org/2016/05/24/appeals-court-dissect-texas-voter-id-law-again/>on 
Texas voter id en banc hearing this morning before the 5th circuit.

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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>


-- 
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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