海角大神

Late last week, a federal judge blocked efforts by Ohio鈥檚 Republican governor and state legislature to decrease the number of days of early voting available in the Buckeye State, continuing a battle that began in the months before the 2012 Presidential election:

This isn鈥檛 the first time that Ohio鈥檚 early-voting laws have found their way into federal court. Prior to the 2012 election, the Ohio legislature passed into law a different bill, which ended early voting for most voters on the Friday before Election Day, but allowed members of the military to continue to vote early through the Monday before the election, as Ohio voters had done in the 2008 election. The Obama campaign and several other organizations filed a lawsuit against the law, arguing that the state was impermissibly giving a preference to a certain class of voters. That lawsuit ended up before Judge Economus, as well, and, in a pre-Labor Day 2012 decision, he ruled that the state could not limit the last three days of early voting to just a certain class of voters and ordered Ohio to reopen those days to all voters. That decision was upheld by the Sixth Circuit Court of Appeals聽and the Supreme Court declined to intervene in the matter.

The case before the court now involves new law that changes the schedule of early voting from what had been enacted in the wake of the 2004, primarily by restricting early-voting days on the weekends and at other times. The state argues that one of the primary reasons for this decision is the fact that many election clerks in Ohio鈥檚 counties had stated that participation in early voting on these days has been historically light and that the extra expenditure of resources involved in keeping offices open, even if nobody is coming in to vote, was a strain on their budget. Opponents of the law argued that the law primarily impacted minority voters, and obviously Judge Economus accepted their argument. Even if you are proponent of early voting, though, there is something about this decision that is troubling.

Rick Hasen finds the Courts ruling, which is going to be appealed, to be potentially huge in its impact, if it's allowed to stand:

Jonathan Adler, meanwhile, points out a troubling aspect of the decision:

Adler has a very good point here. The Constitution gives states broad authority under which to set the time, place, and manner of elections. To the extent that they are limited by federal law, it is when the Voting Rights Act comes into play and changes are enacted solely for the purpose of making it harder for certain ethnic groups to vote. There is no legal or constitutional requirement that states offer early voting, for example, and yet in this decision Judge聽Economus has seemingly come dangerously close to the point of creating just that kind of right, and thus upending the clear language of the Constitution when it comes to which level of government has the authority to regulate how elections are conducted. If it was impermissible for Ohio to enact a relatively de minimis change in its early-voting laws, for example, then what does that say about states that don鈥檛 allow in person early voting at all? If a legislative minority in one of these states loses a battle to enact an early-voting law and tries to take the matter to court, then how hard would it be for a judge who is willing to do so to apply the logic of this decision and rule that the state must enact early voting? While advocates for early voting, which has never been shown to actually increase turnout notwithstanding the arguments of its proponents, may find such an outcome to be a victory, it is hardly a good thing when federal courts are given the authority to rewrite the Constitution in this manner and take away from the states the authority that the Constitution gives them to regulate the time, place, and manner of elections.

Even if one believes early voting to be a good thing, and even if it were true that it did increase turnout, whether or not to implement it, and how to implement it, is something that the Constitution, properly, leaves to the states. To take Judge Economus鈥檚 decision at face value, one must accept without question the idea that there is some kind of compelling federal government interest in 35 days of early voting in Ohio rather than just 28 days. Well, if there鈥檚 a compelling interest for 35 days, then why not 42, or 49? Who gets to decide how long the early voting period gets to be, or where the early voting locations are located? The Constitution gives that power to the states in Article I, Section 4, and while the federal government does have some concurrent jurisdiction on the issue in federal elections, such as the grant to Congress to determine the time when presidential electors are chosen in Article II as well as 15th, 19th, 24th, and 26th Amendments, it has generally been held that the states have the predominant power in determining how their elections are conducted. Judge Economus turns that entire notion on its head and, inappropriately in my opinion, places federal judges in the role of determining the proper length of early voting. If judges can do that, then why couldn鈥檛 they order states that don鈥檛 allow early voting to provide it? Under the logic of the opinion, I鈥檓 not sure there鈥檚 really a difference, and that鈥檚 a problem.

Here鈥檚 the opinion: Ohio State Conference of the NAACP Et Al v. Hulsted.

Doug Mataconis appears on the Outside the Beltway blog at http://www.outsidethebeltway.com/.