[EL] another Ohio ruling

Wed Sep 14 06:59:29 PDT 2016

Damon Keith continues to speak the truth.

On Tue, Sep 13, 2016 at 3:27 PM, Rick Hasen <rhasen at law.uci.edu> wrote:

> Another OH Voting Rights Loss: Divided 6th Cir. Mostly Rejects Order
> Easing Absentee/Provisional Balloting
> <http://electionlawblog.org/?p=86484>
>
> Posted on September 13, 2016 3:24 pm <http://electionlawblog.org/?p=86484>
>  by *Rick Hasen* <http://electionlawblog.org/?author=3>
>
> Over an impassioned dissent recounting the disparate racial effects of its
> decision, a 6th Circuit panel has voted 2-1 to mostly reject
> <https://t.co/WKFwktAUh4>a district court order rejecting some Ohio
> voting rules which make it harder for voters voting absentee or with
> provisional ballots. The dissent accuses the majority of condoning racist
> laws that make it harder for people of color to vote.
>
> No one paying attention will fail to notice that the majority opinion was
> written by two white, Republican appointed judges, while the dissent was
> written by 94 year-old Damon Keith, an African-American judge appointed by
> Jimmy Carter.
>
> I expect that we will see a petition for review before the entire Sixth
> Circuit in this case, which is a more likely path to reversal than before a
> 4-4 Supreme Court.
>
>
>
> From Judge Boggs’ majority opinion:
>
> *In 2014, Ohio enacted Senate Bills 205 and 216. Among other changes to
> Ohio election law, they (1) required county boards of elections to reject
> the ballots of absentee voters and provisional voters whose identification
> envelopes or affirmation forms, respectively, contain an address or
> birthdate that does not perfectly match voting records; (2) reduced the
> number of post-election days for absentee voters to cure
> identification-envelope errors, and provisional voters to present valid
> identification, from ten to seven; and (3) limited the ways in which poll
> workers can assist in-person voters. The district court held that all
> three provisions impose an undue burden on the right to vote and
> disparately impact minority voters.*
>
> *We affirm the plaintiffs’ undue-burden claim only as it relates to the
> requirement imposed by Senate Bill 205 that in-person and mail-in absentee
> voters complete the address and birthdate fields on the identification
> envelope with technical precision. We reverse the district court’s finding
> that the other provisions create an undue burden. We also reverse the
> district court’s finding that the provisions disparately impact minority
> voters. We affirm the district court’s other holdings.*
>
> And near the end of the majority opinion there’s this:
>
> *We deeply respect the dissent’s recounting of important parts of the
> racial history of our country and the struggle for voting rights, and we
> agree that this history may always be appropriately borne in mind. However,
> that history does not without more determine the outcome of today’s
> litigation over voting practices and methods. The legal standards we
> must follow are set out in the cases we discuss concerning the standards
> embodied in the Fourteenth Amendment and Section 2 of the Voting Rights
> Act. With respect to the dissent’s discussion regarding factual findings,
> this opinion does not quarrel with the district court over its
> recitation of the record or of any credibility determinations made by the
> district court. Rather, our holding is that the district court’s legal
> conclusions from that record are in certain parts erroneous, as set forth
> in this opinion, and in light of other parts of the record that the court
> did not consider.*
>
> The lengthy dissent by Judge Keith begins:
>
> *Democracies die behind closed doors. Detroit Free Press v. Ashcroft, 303
> F.3d 681, 683 (6th Cir. 2002). By denying the most vulnerable the right to
> vote, the Majority shuts minorities out of our political process. Rather
> than honor the men and women whose murdered lives opened the doors of our
> democracy and secured our right to vote, the Majority has abandoned this
> court’s standard of review in order to conceal the votes of the most
> defenseless behind the dangerous veneers of factual findings lacking
> support and legal standards lacking precedent. I am deeply saddened and
> distraught by the court’s deliberate decision to reverse the progress of
> history. I dissent.*
>
> *In complete abandonment of the clearly erroneous standard of review, the
> Majority displaces several of the district court’s well-reasoned and
> supported factual findings. The Majority’s decision to gut the factual
> findings of the district court and to advance legal standards without
> precedent in order to shut the most vulnerable out of the political process
> must be subjected to the natural antiseptic of sunlight. The unfettered
> right to vote is the bedrock of a free and democratic society—without it,
> such a society cannot stand. This right is fundamental. It is the most
> valuable right a person possesses, because without it, all other rights
> are meaningless. As history has shown time and time again, laymen and
> jurists alike have actively  worked to deny the right to vote to
> minorities, in both obvious and obscure ways. The Voting Rights Act
> (“VRA”),1 sought to right this wrong by allowing all
> citizens—unrestrained—to exercise their right to vote regardless of race.
> While the VRA and Equal Protection Clause sought to bring this nation
> forward, closer to a society free of racial discrimination, today
> the Majority’s opinion takes us several steps back. Because the Majority
> has completely ignored the applicable standard of review and has instead
> engaged in its own fact finding and reweighing of the evidence in complete
> disregard for the clearly erroneous standard of review, because
> the Majority has created a legal standard in contradiction to existing case
> law based on a concurring opinion and dictum, and because the Majority has
> dishonored the struggle for the right of the most vulnerable to vote, I
> dissent. I would instead affirm the district court in full.*
>
> [image: hare]
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D86484&title=Another%20OH%20Voting%20Rights%20Loss%3A%20Divided%206th%20Cir.%20Mostly%20Rejects%20Order%20Easing%20Absentee%2FProvisional%20Balloting&description=>
>
> Posted in absentee ballots <http://electionlawblog.org/?cat=53>, election
> administration <http://electionlawblog.org/?cat=18>, The Voting Wars
> <http://electionlawblog.org/?cat=60>
>
>
>
>
>
> --
>
> 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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-- 
Henry Weinstein
Writer, Teacher
cell phone 323-445-7006
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