海角大神

Earlier this month, a federal district court judge in Ohio聽voided an Ohio law that amended the state鈥檚 early voting laws,聽principally by cutting back the number of days that early voting would be available from 35 to 28. As I noted at the time,聽the decision was troubling in many respects,聽not the least of them being what seemed like an overly expansive view of the provisions of Section 2 of the Voting Rights Act as it applies in this situation and a far too restrictive view of the right and ability of state legislatures to amend election laws, which is an area that the Constitution concedes almost entirely to the states. As part of his order in that case, the district court Judge ordered that early voting for the 2014 elections must comply with the old 35-day schedule, notwithstanding the fact that this law was no longer on the books. Last week,聽a panel of the Sixth Circuit Court of Appeals upheld this order,聽although it did not rule on the underlying merits of the case itself, and聽the state vowed to appeal that decision聽to the Supreme Court if necessary. Late yesterday, mere hours before early voting would have had to begin if the old 35 day rule were in effect, the Supreme Court put a stay on the district court order, meaning that early voting in Ohio will now begin on Monday, Oct 6:

Lyle Denniston聽offers more details on the case background:

Law professor and election law expert Rick Hasen, who聽expressed misgivings about the District Court opinion聽when it was handed down, argues that聽the Ohio case probably never should have been filed to begin with:

As Hasen would no doubt concede, we can鈥檛 necessarily determine how the Supreme Court may deal with those other, arguably more serious, cases based on the granting of a stay that didn鈥檛 include written opinions of any kind. It鈥檚 possible that one or two justices may be swayed by the facts of those cases in a way that they were not in this case. This is especially true since, as he points out and as I argued earlier this month, the 鈥渞estrictions鈥� allegedly put in place by the changes to Ohio鈥檚 early voting laws were not significant burdens on the right to vote. Not only did 80 percent of the original Ohio early voting period remain intact after the law was changed, but voters are still able to vote by absentee ballot if they cannot make it to the polls, and, of course, are still able to vote on Election Day. The suggestion that there is a significant enough difference between 35 days and 28 days that it requires intervention by a federal courts into an area traditionally, and constitutionally, left to the states quite simply strains credulity. Accepting that argument basically means accepting the idea that those states that already offer less than 35, or even 28, days of early voting are in violation of federal law, not to mention the 17 states that don鈥檛 offer any form of early voting at all. Given the fact that early voting is a relatively recent experiment that has been adopted by states, and that聽the evidence that it actually increases turnout is murky at best,聽this would be an utterly absurd result, and the district court鈥檚 ruling was an unwarranted intrusion into an area properly left to the states, absent clear evidence of a racially discriminatory intent, which was not found during the factfinding phase of the district court proceedings.

The question here, though, isn鈥檛 whether or not early voting is a good idea, or even whether it actually increases turnout. Those are both policy issues that are, by and large, irrelevant to the legal questions involved. Under the Constitution and, more generally, under the system of separation of powers that we have in this country, these types of policy issues are best left to the legislature and not to the courts, unless there is some reason for the courts to get involved to begin with. Direct evidence of discriminatory intent would be one of those reasons, of course, but that applies even outside of the racial context. For example, when Ohio first revised its early voting laws to聽eliminate voting during the weekend before the election for everyone except members of the military聽the law was聽properly voided聽because there was no rational basis for giving that kind of preference to members of the military. In this case, though, we鈥檙e speaking of a law that applies to everyone, so the idea that one group is more advantaged or disadvantaged is, at best, speculative. Given that, it was utterly improper for the district court to adopt the broad reading of federal law that it did and strike down a duly enacted modification of elections laws by the representatives of the people. Whether or not you think it was good policy for the State of Ohio to do this, there simply isn鈥檛 any credible argument that it ought to be something that is against federal law. And that鈥檚 why the Supreme Court was correct to place a stay on the court鈥檚 ruling until it can rule on the case.

As a practical matter, this decision is not likely to have any real impact in Ohio in the 2014 elections. Neither of the state鈥檚 Senate seats are up for re-election this year, and聽Gov. John Kaisch has taken such a large lead over his Democratic challenger聽that, in many respects, it seems that Democrats have essentially already conceded that race. Going forward, though, this case will ultimately end up before the Supreme Court, perhaps as early as this term, and as Hasen notes that decision could have significant implications for other voting rights cases making their way through the federal courts.

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