In Ohio, A Stirring Defense of Early Voting That Leaves Everyone Unhappy

As a number of bloggers have reported,  (including, separately, Professors Rick Hasen and Derek Muller) a generous pro-voter convenience decision has just come out of the 6th Circuit Court of Appeals. The court found that by eliminating a five-day period where voters could do same-day-registration and early voting all in one go, the State of Ohio had unjustifiably curtailed the opportunity for poor and minority voters to cast ballots.

The reason why some analysts of the decision (including legal scholars from the Left) aren’t enthusiastic about the decision is that they find their credulity strained by the argument that voting rights are badly injured when a 35-day early voting period is reduced to a 28-day early voting period.

The decision in Ohio State Conference of the NAACP v. Husted, et al. (pdf helpfully provided by Rick Hasen’s election law blog) is receiving criticism because of a perception that the court is going crazy and ruling that even the most inconsequential, incidental or de minimus injuries to voters rights are unacceptable.

As Derek Muller pointed out in his blog, Ohio didn’t even have early voting until 2005, and (from his perspective) the court is getting into a high dudgeon over a frankly inconsequential reduction. Are Ohioans walking through broken glass to vote? Are they having to cut through minefields and no-man’s land? – they’ve got a month to cast their ballots.

Luxury! Why, when I was a lad, we had to struggle uphill through towering snowdrifts to vote, and we only had voting on Election Day!

As a general principle of election law, voters are not “owed” early voting opportunities. Early voting (at least traditionally) has been regarded as a convenience that the State offers to voters more for the sake of the State’s own administrative ease and benefit than because of any inalienable right inherent in citizenship. One is not endowed with the right to cast a ballot prior to Election Day. There are a number of states that offer either no in-person early voting whatsoever, or offer much less early voting than Ohio.

And generally in the past, civil rights arguments against a lack of early voting (say, based on the 14th Amendment, the Voting Rights Act, or on other theories) go exactly nowhere, given that the States have broad authority to conduct their elections pursuant to state laws.

But critics of the decision in Ohio State Conference of the NAACP v. Husted, et al. are being a little disingenuous. To the extent that the plaintiffs got an injunction against the State’s reduction of early voting, it wasn’t because they argued about the unfairness of a slightly shorter early voting period.

It was because the State was getting rid of in-situ same-day voter registration at the polls, a legislative remedy that had been adopted in 2005 in response to, as a remedy against, and as a corrective of the gross sins committed against Ohio voters by the organs of state government prior to the November 2004 election in Ohio.

The fight isn’t a quibble over a few days in the early voting schedule.

The fight is about the loss of same-day registration, which arguably signals a retrenchment and governmental backsliding into a tacit endorsement of the unconscionable tactics used against black voters in Cleveland in 2004.

The story has been better told by others elsewhere, but here’s a quick summary:

Recall that in advance of the November 2004 presidential election, by intentionally rationing polling places and election equipment to create artificial shortages, the then-Secretary of State of Ohio deliberately engineered abysmal voting conditions in Cuyahoga County (i.e., Cleveland). This tactic was successful, resulting in the collapse of the voting infrastructure in that county. The dysfunctional polling place conditions and general chaos that resulted discouraged black voters from voting).

Same-day registration is luxurious. It’s a luxury unavailable in most jurisdictions, including Texas. But same-day registration wasn’t enacted by the Ohio Legislature to pamper Ohio voters, or to coddle them with an extravagant privilege. It was enacted as a counterweight to the illegalities and political dirty tricks that predominate in the cutthroat atmosphere of a competitive swing state.

Other states didn’t enact same-day registration and expansive early voting after the November 2004 presidential election because other states weren’t as notoriously inclined to mistreat their minority voters.

Not surprisingly, attorneys for the State immediately filed a request with the U.S. Supreme Court for an emergency stay of the appellate court order. We shall see what happens next.

But really, Professors Hasen and Muller need to go back and actually read the appellate court’s decision, rather than casting aspersions by depicting Ohio voters as pampered softies who lounge in obscene splendor. That’s insulting to people who waited in line for 7 hours to vote after suffering numerous other political dirty tricks and indignities.

For those of you using web readers, here are the links I cited:

http://electionlawblog.org/?p=65853

http://excessofdemocracy.com/blog/2014/9/sixth-circuit-finds-ohio-has-held-illegal-elections-for-over-200-years

http://electionlawblog.org/wp-content/uploads/6th-early.pdf

http://harpers.org/archive/2005/08/none-dare-call-it-stolen/

http://moritzlaw.osu.edu/blogs/tokaji/2006/06/back-to-ohio-rolling-stone-piece.html

http://en.wikipedia.org/wiki/2004_United_States_election_voting_controversies