This seems to be a weekend for ups and downs. Yesterday, Ed discussed the fact that the Wisconsin voter-ID law had been reinstated by the 7th Circuit Court and would most likely be in place for the mid-term elections. But a different story played out on Friday with their counterparts in the 6th Circuit Court. They were asked by the state of Ohio to intervene and issue a stay on a lower court order which restored early voting. (Previously passed legislation had sought to cut the early voting calendar.)
Unlike the Wisconsin decision, the court decided to pass.
A three judge panel of the Sixth Circuit has just issued this order denying Ohio’s request to put on hold a district court order requiring Ohio to restore early voting days (including “Golden Week”) which the Republican legislature tried to cut.
For those who have noted that all the judges who just allowed Wisconsin’s voter id law to go into effect were Republican-appointed, it is worth noting that all the judges in the Sixth Circuit today were Democrat-appointed.
Part of the Sixth Circuit’s reason for rejecting Ohio’s argument that the restoration of early voting is not required by either the Constitution or the Voting Rights Act section 2 is that it says Ohio did not cite any legal authority supporting its argument, while the plaintiffs cited Sixth Circuit authority which helped them.
Rick Hasen, the author of the article above, provides some useful analysis of this situation. In it, among other observations, he asks what effect a court ruling against the early voting options would have on other states.
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?
I’ve asked a similar question before. Why is it that restrictions on early voting are a horrible Republican plot when they take place in swing states, but there is nothing unfair about the system in New York where everyone is given a grand total of 13 hours to get to the polls? (With the obvious exceptions of absentee and military ballots.) Where are the protests against New York’s laws? The cynical answer would be that Democrats currently win all of the statewide elections here, so why rock the boat?
Perhaps the best solution is to establish a system where each state retains the ability to determine which election system works best for them as enacted by their elected representatives. But apparently we can’t have that.