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Yesterday, the 6th Circuit Court of Appeals upheld a lower court’s ruling expanding early voting hours in Ohio and ordering the state to set up a schedule implementing the longer hours.
There are lots of issues involved in the case, but one that will almost certainly end up being discussed elsewhere – including, perhaps, the U.S. Supreme Court – is the issue of “retrogression” under the Voting Rights Act. Retrogression occurs when protected minorities are made worse off than before by a change to election laws or procedures. The issue in Ohio – and Wisconsin, and North Carolina and potentially in other states – is how to define “before”. As Rick Hasen notes, the 6th Circuit defines it broadly:
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? Although the judge says he is not applying a “non-retrogression” standard such as that which used to exist under section 5 of the VRA, that appears to be what he is doing to at least some extent. The judge says the cutbacks are relevant in a totality of the circumstances approach to section 2 VRA applicability…
On the retrogression point, the court says that retrogression is relevant to a section 2 totality of the circumstances analysis. I think this is right–it is one factor that can be considered. Where the opinion is more controversial is on the question of what plaintiffs have to show to show that minority voters have meaningfully less opportunity than other voters to participate in the political process and to elect representatives of their choice. This is an issue which is dividing the lower courts, from the capacious reading of section 2 in Frank v. Walker, the federal case striking down Wisconsin’s voter id law, to the much narrower reading of section 2 in North Carolina Conference of the NAACP v. McCrory, the federal case rejecting a preliminary injunction for cutbacks in early voting and other changes in North Carolina.
As Derek Muller points out at Excess of Democracy, however, this broad reading could be read to suggest that Ohio has been in violation of the VRA for many, many years:
[P]rior to 2005, Ohio had zero days of early in-person voting; until 2014, it was 35 days; and the legislature amended that to 28 days.
That, the Sixth Circuit says, is unconstitutional.
It concludes that this cutback “significantly burdened” African American, lower-income, and homeless voters, so the law was subject to heightened scrutiny.
On what basis? The court notes that African Americas, lower-income individuals, and the homeless are distrustful of voting by mail; the complexities of voting by mail complicate efforts from these affected groups; and that lower-income voters’ reliance on public transportation and wage-based jobs would create difficulties in voting in the 28-day period instead of the 35-day period.
So, it logically follows, that must mean that Ohio’s decision to have zero early voting days from 1803 until 2005 was also unconstitutional…
[T]his opinion stands for the broader proposition that once a State enacts a voting law, it is almost impossible to amend it in a way that places any change in burden on the people who took advantage of the process in that law..
This is a very important point, and one which will become more important as the VRA (in particular, Section 2) is used as the basis for challenging election laws. The question, in short, is: what’s the baseline for comparison? Is it the most favorable set of laws ever enacted (as the Sixth Circuit seems to suggest) or is it the historical trend of laws in that state or locality (as Muller seems to suggest)? The answer to that question will say a lot about how much leeway states and localities have to make changes in their election laws – which will in turn harden legislative debates, especially if changes to election laws can never be amended or repealed without violating federal law.
It’s a very easy bet that this case plus the others currently lurching through federal court will eventually find their way to the U.S. Supreme Court.
Stay tuned …