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Last year, I wrote about a federal court challenge to Illinois’ same-day registration law that resulted in an injunction because of concerns it would result in voters in larger counties having more opportunities to vote than those in smaller counties. That injunction was eventually stayed, and last week the U.S. Court of Appeals for the Seventh Circuit overturned the injunction and sent the case back to the lower court. Courthouse News has more:
The Seventh Circuit on Friday found no evidence that allowing same-day voter registration in large Illinois counties discriminates against voters in small counties, and vacated a preliminary injunction won by a Republican congressional candidate.
Republican Illinois congressional candidate and Tea Party leader Patrick Harlan sued the Illinois State Board of Elections in 2016, claiming a state law guaranteeing same-day registration for high-population counties only benefits urban Democrats.
Illinois requires counties with a population of over 100,000 allow citizens to register when voting, but smaller counties don’t have to – and none do because of the cost and logistics involved. Only 20 Illinois counties out of 102 allow same-day registration, but these counties account for 84 percent of the state’s population.
Harlan’s complaint claims the mandate for high-population counties discriminates against the Republican Party and violates the 14th Amendment since urban areas tend to vote for Democrats.
U.S. District Judge Samuel Der-Yeghiayan granted Harlan a preliminary injunction in late September last year, less than two months before Election Day, finding that the current scheme discriminated against rural voters.
But the Seventh Circuit sided with the state election’s board and issued a stay reinstating same-day voter registration for the November election.
The appeals court found that evidence of harm to voters in smaller counties was lacking:
On Friday, the Chicago-based appeals court issued its final opinion, again ruling for the state and finding little support for Der-Yeghiayan’s determination that Harlan made a showing of likely success on the merits of his claim.
Harlan’s case rests on research by University of Georgia political scientist M.V. Hood, but the panel said Hood’s testimony “comes nowhere close to demonstrating that Illinois voters would suffer any harm at all – let alone irreparable harm” under the law allowing same-day registration.
“Hood never said, however, which groups of voters – older, younger, rural, urban, ethnic, etc. – are statistically more or less likely to benefit from the same-day option. Hood also provided no information on the question whether Election-Day registration in Illinois’s 20 more heavily populated counties is more likely to increase voter participation than centralized Election-Day registration in the smaller counties. Hood also failed to take early voting into account,” Chief Judge Diane Wood said, writing for the three-judge panel.
In addition, the court noted that Harlan did not file a single affidavit from a small county resident who claims they would have voted had they been allowed to register on a past Election Day.
“Even though P.A. 98-1171 does not force quite as many options on the smaller counties as it does on the 20 largest counties, it permits every county to adopt the default same-day rules, and it provides realistic same-day options even in the smaller places,” Wood said. “This, coupled with the lack of any data about which groups are disadvantaged and how, dooms the injunction.”
This is an important development, not just in Illinois but for other states as well. One key objection to many state election reforms like same-day registration or expanded non-precinct place voting is that it will create burdens for smaller counties, who usually lack financial and other resources compared to their larger counterparts – but there are also often concerns that treating counties differently will also create inequalities. The Seventh Circuit’s finding that “one size need not fit all” – i.e., there must be actual evidence of harm in cases such as these as opposed to a presumption that harm results from non-uniform rules – raises the possibility that absent such evidence, states can consider different voting rules for different communities going forward.
The case still has to go back to the court that blocked the reform in the first place, so it isn’t over yet – but this case is definitely worth watching for what it might mean in Illinois and nationwide as states approach the 2018 election and beyond. Stay tuned …