A follow-up to this post from last week: The same very liberal panel of Sixth Circuit judges (Keith, Moore, and Clay) who refused to stay the district court’s injunction against Ohio’s uniform early-voting rules has now written a lengthy opinion affirming the injunction. I’ll again happily quote liberal election-law expert Rick Hasen:
1. Like the district court, this (very liberal) panel of 6th Circuit judges reads both the Equal Protection Clause of the U.S. Constitution as well as Section 2 of the Voting Rights Act very broadly to hold it illegal for Ohio to move from 35 to 28 days of early voting, to eliminate a Sunday of voting used by African-American churches for “Souls to the Polls” drives, and to eliminate “Golden Week,” in which a new (or moving) voter can both register to vote and vote early at the same time. The court barely mentioned the fact that every voter in Ohio has received a no-excuse absentee ballot application as well.
2. Both the Equal Protection and Voting Rights Act readings are expansive.… [T]he part that is controversial is the court’s holding that the burden imposed on voters in the mild cutbacks in early voting is significant…. 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.…
(Hasen makes additional points, which I invite you to read.)
We’ll soon see if Ohio seeks relief in the Supreme Court, where Hasen “expect[s] 5 Justices could well adopt a much narrower definition of equal protection and the Voting Rights Act” than that of the Sixth Circuit panel.