The Obama campaign concedes that there’s no general right to cast an early ballot and agrees that the state could discriminate in favor of military voters when it came to the rules for casting overseas ballots given the additional burdens faced by these voters. Furthermore, Ohio’s attorney general points out that the state sent absentee ballot applications to all eligible voters in the state. This all seems to suggest that the burden on Ohio voters in losing the last three days is not severe.
Surprisingly, however, both a federal district court and the United States Court of Appeals for the 6th Circuit agreed with the Obama campaign that the selective cutback was unconstitutional. The district court seemed to endorse a “non-retrogression” principle: A state didn’t have to provide early voting, but once it did it could not take it away without good reason. The court said that Ohio officials had not proved they needed the last weekend to get ready for Election Day, as the state had claimed.
The district court also found that the state offered no good reason not to let all voters cast ballots if the state was already having the county election boards open the last weekend for the military and overseas voters. It ordered a restoration of early voting for that last weekend throughout the state.
The 6th Circuit majority agreed with the district court on both the non-retrogression and disparate treatment issues, and it relied heavily on equal protection principles from Bush v. Gore. But the 6th Circuit provided for a different remedy: it said it was up to each Ohio county to decide whether to be open at all on the last weekend, but a decision to be open meant a decision to be open for all voters. Although in theory this means some counties could decide to close their doors to all voters on this weekend, including military voters, the Ohio secretary of state has said he will require uniform early voting hours throughout the state if he loses.
The 6th Circuit’s Judge Helene White issued a concurring opinion, offering different reasons. She disagreed with the majority that the inconvenience of not having the polls open on the last weekend before Election Day imposed a severe burden on voters: After all, anyone could vote on Election Day, other early voting days, or through an absentee ballot. But she said that extra early voting was constitutionally required in this case because of Ohio’s poor performance in 2004, and evidence that early voting fixed the problem in 2008. If the polls were not open on that last weekend, Judge White reasoned, the burden could fall on poor and minority voters.
Judge White is no doubt right as a matter of policy—Ohio’s cutback of early voting could have a negative effect at the polls and was done for no good reason. Indeed, the Ohio legislature probably eliminated the last weekend of early voting for purely partisan reasons. The cutback on early voting makes it more likely that we will see problems on Election Day—including long lines and broken machines—which means even more election-related litigation.
As a matter of constitutional law, however, Judge White’s reasoning is the biggest stretch of all. The Obama campaign’s case was originally based on the disparate treatment of classes of voters. Now it has morphed into a kind of general constitutional right not to dismantle a (relatively) well-run election system. As much as I wish our Constitution provided such a guarantee, I’m skeptical that a majority of the Supreme Court will find one lurking there now.