One Person’s Delay, Another’s Due Process: Ohio Early Voting Case Reaches Supreme Court


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Yesterday, Ohio’s Secretary of State (SoS) asked the U.S. Supreme Court for an emergency stay of the recent 6th Circuit decision allowing counties to offer early voting the weekend before Election Day.

I won’t go into the merits of the decision again, having discussed them here and here, but I do want to take a look at some of the reaction to the SoS’ application to the Court. The Nation‘s Ari Berman accuses the SoS of “subverting voting rights,” and I saw numerous email and Twitter messages yesterday accusing Ohio (and the state GOP) of trying to disenfranchise voters by creating confusion through delay of the final implementation of early voting in the Buckeye State.

I beg to differ.

Pre-election litigation and the uncertainty it creates is a real problem for the field of election administration – a point I’ve made over and over again here on the blog. But until there is some kind of rule or process – agreed upon by all potential parties – to limit such challenges, lawsuits to clarify election procedures are fair game for both sides in any dispute. This is especially true when – as in the Ohio early voting case – the state is trying to defend a state law that was overturned following a challenge by an outside party (in this case, the Obama campaign). Opening the courtroom doors to plaintiffs necessarily includes allowing defendants to see a case through to its conclusion.

Moreover, it appears that the SoS’ stay application to the Supreme Court might have been made with timely resolution in mind. ElectionLawBlog’s Rick Hasen analyzes the stay:

I expected that [the SoS] would try first with an en banc panel of the Sixth Circuit, where I thought he would have a pretty good chance of getting a reversal. Why did he go straight to the Supreme Court? The answer may be as simple as timing. He may have figured that if he won before the en banc Sixth Circuit, the Obama campaign would have gone to the Supreme Court, and so he would rather save the time of the extended review. If that’s the case, it does lose the benefit that comes from being a winning party going into the Supreme Court against a party seeking emergency relief. Perhaps [the SoS] cares more about finality here than winning? Or maybe there’s a larger strategic choice here. I pegged two cases as most likely to come to the Supreme Court before the election. This is one of the cases. The other is also from Ohio, and it is the SEIU case, which was the wrong precinct poll worker error case I recently wrote about for Slate. Both raise related issues about the scope of equal protection rights for voters after Bush v. Gore. Perhaps [the SoS] thought he’d benefit by getting this case there first. I’m not sure. (emphasis added, links omitted)

When a leading legal expert can see at least two merits-related reasons for the stay, that suggests the SoS has some goal in mind other than simply delaying a just result.

It’s obvious that many people don’t agree with the SoS in this case; but I think it’s dangerous to suggest that we should somehow truncate legal proceedings once we get the right result – especially since there is such a difference of opinion about what is the right result.

I’ll leave you with an excerpt from my favorite scene from one of my favorite productions, A Man for All Seasons:

William Roper: So, now you give the Devil the benefit of law!

Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

William Roper: Yes, I’d cut down every law in England to do that!

Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake! (emphasis added)

I have no doubt that many people in the current debate see their opponents as the Devil,
but I for one prefer not to see the laws laid flat.

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