This has been quite a week in the election litigation world. One decision after another has come out from various courts in ongoing cases in Ohio, Kansas, and North Carolina over the rules governing voting and candidates in the upcoming November general election. Whether they will affect the outcome of contested races remains to be seen.
On Tuesday, the U.S. Supreme Court issued a one-paragraph order in a 5-to-4 decision in Husted v. NAACP, staying a preliminary injunction that a federal district court judge had issued against Ohio’s change in election rules “pending the timely filing and disposition of a petition for a writ of certiorari.” That change had reduced the time allowed for early voting from 35 to 28 days and had eliminated the time known as “Golden Week,” when an Ohio resident could register and vote simultaneously (same-day registration).
Despite the fact that most states forbid same-day registration, that many states don’t have early voting at all, and that even at 28 days, Ohio provides far more days to vote early than other states that also allow early voting, a federal district court found that these changes violated equal protection and were discriminatory under Section Two of the Voting Rights Act.
This injunction was completely unjustified under applicable law. The idea that allowing only 28 days of early voting versus 35, or that not allowing same-day registration is somehow discriminatory or unconstitutional, makes no sense. As former Voting Section lawyer Christian Adams says, “left-wing legal groups are advancing a theory of the Voting Rights Act which has never been before considered meritorious.”
Except that a federal district court judge in this case (a Clinton appointee) found it to be “meritorious,” as did a three-judge panel of the Sixth Circuit Court of Appeals, which had upheld the injunction. Fortunately, the Supreme Court dissolved the injunction, although Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application for a stay of the injunction.
In Kansas, to no one’s great surprise, a local judge on Wednesday again gave the Kansas Democratic Party exactly what it wanted: The court dismissed a writ of mandamus that a Democratic voter had filed seeking to have the party replace U.S. Senate candidate Chad Taylor. Taylor sought to remove his name from the ballot after polling data showed that he was lagging far behind “independent” candidate (former Democrat) Greg Orman in the race against incumbent Republican senator Pat Roberts.
Taylor decided (or was convinced) to withdraw from the race because he was splitting the vote with Orman, making it more likely that Roberts would win. In an order entered on September 18, the Kansas Supreme Court allowed him to do it. As I explained in a prior NRO post, the voter was asking the court to order the Democratic party to comply with a Kansas law that requires a political party to name a replacement for a nominee when a vacancy occurs. The Kansas Supreme Court transferred his writ to a lower court, which decided that the Democratic voter did not have standing to bring this claim and that even if he did, the court would rule against him.
Why? Well, the court evidently adopted a Clintonesque approach to legal interpretation, arguing that the word “shall” in the Kansas statute, as in a candidate vacancy “shall be filled by the party committee,” does not really mean shall. The court did not believe there was any evidence to “impute to the legislature ‘a desire to make mandatory, rather than permissive,’ the word “shall.’” So Greg Orman will be the only other candidate listed on the ballot besides Roberts.
Finally, in North Carolina, the Fourth Circuit Court of Appeals handed down another quasi-bizarre opinion on Wednesday. As outlined in Corner this post, the Justice Department and various liberal advocacy groups had lost their bid to get an injunction against a North Carolina election law that:
‐implemented a voter-ID requirement;
‐reduced early voting from 17 to 10 days;
‐eliminated same-day registration;
‐does not allow the counting of provisional ballots cast outside a voter’s regular precinct;
‐banned the preregistration of 16- and 17-year olds;
‐and expanded poll observers and the ability to challenge ineligible voters.
The private plaintiffs appealed this decision without the participation of the Justice Department.
A three-judge panel of the Fourth Circuit led by Obama appointee James Wynn, in a 2-to-1 decision, held that the lower court judge “abused his discretion” when he refused to enjoin the elimination of same-day registration and the prohibition on counting out-of-precinct ballots. However, the Fourth Circuit panel refused to grant an injunction against the other parts of the law, including the rollout of the voter-ID requirement that is not effective until 2016.
The Fourth Circuit decided that the plaintiffs were likely to succeed in their claim that not allowing same-day registration, which most states do not allow, is discriminatory and violates Section Two of the Voting Rights Act. So, it also ruled, does not counting ballots cast outside of a voter’s assigned precinct.
The latter is also unusual — most states do not count such ballots. The dissenting judge on the panel, Diana Gribbon Motz, a Clinton appointee, pointed out the inappropriateness of an injunction “requiring the State to revert to abandoned election procedures for which the State maintains it has not, and is not, prepared.”
If North Carolina submits an emergency appeal to the U.S. Supreme Court, it is possible that the state could be successful in convincing the Court to dissolve the Fourth Circuit’s injunction given the Court’s order in the Ohio case, which stayed the injunction issued against Ohio’s elimination of same-day registration.
The bottom line is that when 39 states do not allow same-day registration, and 17 states do not have any early voting period at all, it is a real stretch to claim that not allowing these measures is somehow unconstitutional or discriminatory. All of the groups bringing these lawsuits are trying to use the courts to change election rules, as opposed to doing it through the legislative process.
— Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation. Along with John Fund, he is the co-author of Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk and Obama’s Enforcer: Eric Holder’s Justice Department.