Is the Supreme Court About To Swing Another Presidential Election?
If the court cuts early voting in Ohio, it could be a difference maker in the Buckeye State.
Photo by Paul J. Richards/AFP/Getty Images.
Update, Oct. 16, 2:45 p.m.: Without any noted dissent, the Supreme Court has rejected Ohio’s application for an emergency stay—thus ensuring that the three days of early voting on the weekend before Election Day, taken away by the Ohio Legislature but restored by a federal district court and affirmed by the 6th Circuit, will go forward. What explains the court’s ruling, especially given the shaky constitutional reasoning I describe below?
First, it is always a high burden to get emergency relief from the court. The justices may not have believed that any legal error here was worth correcting. What was at issue—whether 100,000 people voted on those days or chose another day (or cast an absentee ballot)—was perhaps not worth gearing up the machinery for a potentially difficult constitutional issue. More to the point, the court’s conservatives, who would be most likely to disagree with the lower courts’ reasoning, may have decided that there was not enough at stake about those last three days of early voting for the court to issue an opinion divided on ideological lines about voting in a state which could well be pivotal in the presidential election. A divided ruling would have thrust the court to the center of the election.
The original Oct. 15 article is below:
The Supreme Court will soon decide whether to reverse a federal court ruling requiring the state of Ohio to let its counties decide whether to permit early voting during the weekend before Election Day. With the presidential race tight in Ohio, and the presidency potentially turning on the state’s electoral votes, the court’s decision could help determine who will win the White House. While the Obama campaign has a strong policy argument for the extension of early voting to include this final weekend, its constitutional claim is a major stretch.
In 2008, more than 100,000 voters—many poor, women, less educated, and minorities—cast ballots in Ohio during the weekend before Election Day. Voting in Ohio in 2008 was a great success compared with 2004, when long lines, especially in urban areas such as Cleveland, were common and discouraged people from voting. Early voting relieved the stress of Election Day.
But the Ohio legislature, dominated by Republicans, cut back on the last weekend of early voting for 2012. Florida’s Republican legislature did the same thing, likely out of a belief that this late period of early voting helps Democrats. Especially helpful to Democrats were “Souls to the Polls” programs to bus African-American churchgoers from Sunday services to vote. Indeed, Doug Preisse, chair of the Franklin County Republican Party and elections board member who voted against weekend hours for early voting, explained his reasoning in an email to the Columbus Dispatch. “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine. … Let’s be fair and reasonable.”
When Ohio trimmed the time for early voting, it did so through a complicated set of legislative maneuvers that left only military and other overseas voters with the right to vote on that last weekend. This different treatment provided an opening for the Obama campaign to challenge the cutback: Why should the state take away the right to vote on this last day of voting for everyone except for military and overseas voters? The campaign claimed a violation of the constitutional guarantee of “equal protection” under the laws and said the state needed to restore the last weekend of early voting for all voters.
In making the claim, the campaign has relied upon language from the Supreme Court in Bush v. Gore, which ended the disputed 2000 presidential election campaign: “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” The Supreme Court in Bush held that equal protection was violated through Florida’s different and shifting standards for counting disputed ballots.
Still, the Obama campaign’s legal claim in the Ohio case is bold, and it seems to go further than the courts have typically gone before. The Supreme Court long ago held that it did not violate equal protection to offer absentee ballots to some voters but not others. The court usually applies a flexible balancing test to judge challenges to regular election laws: Only severe burdens on the right to vote get strict scrutiny, while lesser burdens don’t require a great justification by the state. And the court has never extended Bush v. Gore to varying rules for casting absentee or early ballots—indeed the court has not even cited Bush since it was decided.
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.