In a case that might very quickly reach the Supreme Court, the state of Ohio has filed its Sixth Circuit merits brief in support of its emergency appeal of a federal district court’s preliminary injunction against an Ohio statute and related secretary of state directive that together provide expansive opportunities and uniform statewide hours for early absentee voting for this November’s elections.
Here’s some brief background:
On the recommendation of a bipartisan body that represents all of Ohio’s county boards of elections, the Ohio legislature in February enacted a statute that changed the start of Ohio’s early absentee voting from five weeks before the election to four weeks before the election and that eliminated a one-week overlap with the close of the registration period. The Ohio secretary of state then established uniform times for early in-person absentee voting, including on two Saturdays and one Sunday. (Ohio voters can also vote early absentee by mail.)
Despite the fact that Ohio has the ninth most expansive early-voting schedule in the country, federal district judge Peter Economus ruled that the new rules violate equal-protection guarantees and section 2 of the Voting Rights Act. Ohio forcefully argues that Economus wrongly applied disparate-impact analysis to the equal-protection question and, by comparing Ohio’s new rules to its old rules (rather than to an objectively reasonable benchmark), wrongly applied “retrogression” analysis to the section 2 question. Last Friday, a Sixth Circuit motions panel, consisting entirely of Democratic appointees, denied Ohio’s request for a stay of the injunction.
Liberal election-law expert Rick Hasen has also expressed his serious doubts about Economus’s reasoning, including:
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.
For some odd reason, there seems to be lots of attention focused on the Seventh Circuit’s supposedly changing the election rules in Wisconsin at the last minute—even though the Seventh Circuit was simply allowing Wisconsin’s voter ID law to take effect—and very little on Economus’s very late interference with Ohio’s rules.