Context and Pretext: Why the Courts Were Right to Halt Ohio’s Latest Voting Restrictions


Daniel P. Tokaji

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Professor of Constitutional Law; Senior Fellow, Election Law @ Moritz
Posted on September 25, 2014, 10:00 pm

The Sixth Circuit Court of Appeals yesterday upheld the district court’s ruling in in NAACP v. Husted, which stopped new restrictions on early voting from taking effect. This decision is good news for Ohio voters. It faithfully applies existing law to the evidence admitted in the district court, maintaining the established period for same day registration and early voting. The federal courts have done their job by safeguarding voters against partisan manipulation of election rules. This comment explains why the ruling is correct and why Ohio’s call to stay the existing court order should be rejected, especially now that same day registration and early voting are just about to begin.

NAACP v. Husted concerns a state law passed earlier this year eliminating Ohio’s limited window for same day registration and early voting, commonly referred to as “Golden Week.”* During this week (September 30-October 6 this year), voters can simultaneously register and cast their ballots in person. Tens of thousands of voters voted in this period the past two presidential elections, with thousands using the opportunity for same day registration and early voting. The evidence presented in the lower court showed that African American, low-income, and homeless voters were more likely to use this voting opportunity. The Sixth Circuit affirmed the district court’s preliminary injunction, based on its conclusion that the NAACP and other plaintiffs had shown likely violations of both the Constitution and the Voting Rights Act.

Two aspects of yesterday’s ruling have been lost in some of the early reaction. The first is that context matters. Yesterday’s ruling was not written against a blank slate. It instead comes after a now-lengthy litany of voting restrictions imposed by the Ohio legislature and state election officials over the past decade. Space doesn’t permit me to recount them all here, but they include restrictions on early voting and provisional voting that were enjoined during the 2012 election season. Yesterday’s decision from the Sixth Circuit, like that of the district court, is informed by this recent history. Ohio comes to court with dirtier hands than just about any other state over the last decade.

Context matters in another, even more important way. The Sixth Circuit, like the district court, carefully scrutinized the evidence regarding who actually uses early voting during this period and what the likely effects of its elimination would be. As the panel made abundantly clear, the legal question is not whether, in the abstract, voters have a “right” to early voting 35 days before the election. It is instead whether, in the context of Ohio’s current election system, the elimination of same day registration and early voting violates the Equal Protection Clause and Voting Rights Act.

The importance of context is a point that every good lawyer and judge understands, but is sometimes lost on us law professors. We academics love to debate abstract principles. But in the real world, cases hinge at least as much on the facts as on the law. And context matters a great deal.

That is especially true of election administration litigation. Contextual evidence is key to the legal test that the Supreme Court and the Sixth Circuit apply in equal protection challenges to voting rules. That test, now commonly referred to as the Anderson-Burdick standard, requires that the “character and magnitude” of the burden on voting be weighed against the “precise interests” put forward by the state. This test was embraced by a majority of Supreme Court justices in the Crawford v. Marion County Election Board case, which upheld Indiana’s voter ID law against a facial challenge.

The language of the constitutional test warrants careful attention. Courts are supposed to assess not only the magnitude of the burden on individual voters, but also its character – including whether or not its discriminatory. The test thus requires courts to consider which demographic groups will bear the burden of the voting rule being challenged. The Sixth Circuit engaged in this analysis two years ago in Obama for America v. Husted and Northeast Ohio Coalition for the Homeless v. Husted, in striking down Ohio’s restrictions on early voting and provisional voting. The district court and Sixth Circuit did in the same in NAACP v. Husted. Although the law that is neutral on its face, the courts found it to have discriminatory effects. Based on an assessment of the expert evidence, they found that closing the window for same day registration and early voting would disproportionately burden African American, poor, and homeless voters

Context also matters for the NAACP’s other claim, under Section 2 of the Voting Rights Act. The text of that statute prohibits voting rules that “result[]” in the denial or abridgement of the vote on account of race. The statute also says that courts are supposed to consider the “totality of circumstances” in making this determination. As the Supreme Court held in Thornburg v. Gingles, a seminal Voting Rights Act case quoted in yesterday’s ruling: “The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Although the precise quantum of evidence required to prevail on Section 2 vote denial claims is less well established, this too is a context-specific test.

The district court and the Sixth Circuit did exactly what the law requires in NAACP v. Husted, scrutinizing the evidence regarding Ohio’s latest restrictions on early voting in the context of the state’s history. That record was voluminous, including expert testimony from respected social scientists documenting that African Americans are disproportionately heavy users of early voting during the period in question. The expert testimony also addressed evidence of race discrimination, such as a statement from the Chair of Franklin County’s Republican Party, cited by the district court, that “we shouldn't contort the voting process to accommodate the urban—read African– American—voter turnout machine.” That is circumstantial evidence of intentional race discrimination, more than what’s required under Section 2’s results-based test.

It’s tempting to skim or skip the portions of a judicial decision describing the evidence and assessing the expert testimony. But the evidence matters a lot in this type of case. It reveals the effects of a law, including who’s likely to be hurt by it, as well as the real reasons for its enactment. And in this case, it reveals reasons to be suspicious – especially when a state legislature dominated by one party passes laws closing off opportunities used mostly by voters who tend to favor the other party. One doesn’t have to be a conspiracy theorist to believe that Ohio’s recent early voting restrictions might, just maybe, be motivated by a desire to gain partisan advantage.

This brings me to the second important point overlooked in the immediate reaction to the Sixth Circuit’s ruling. The record developed in the district court provided strong reason to believe that the state’s stated justifications for the new restrictions were pretextual. The state claimed that it needed to eliminate Golden Week – which ends a month before Election Day – to prevent fraud. Huh? This is a silly argument, one that doesn’t pass the straight-face test. Ohio counties have a full month after this period ends to verify the eligibility of applicants. Although the state’s anti-fraud argument isn’t plausible, the fact that it dared to make such an argument speaks volumes about the real motivations for this law.

Ohio’s other main argument for eliminating same day registration and early voting was to save money. This, of course, is an argument that might be tried for almost any voting limitation. But based on the evidence that was presented to the district court and the findings that court made, the Sixth Circuit properly found that this rationale didn’t withstand carefully scrutiny either. The irony here is that the argument would have the most force with respect to large, urban counties like Cuyahoga County (Cleveland area) – but these are the counties that, in general, like early voting the most because it takes pressure off the polls on Election Day. And as the Sixth Circuit pointed out, all counties are required to be open during this period anyways, so it’s dubious whether there would be much of a burden at all.

So if fraud prevention and saving money weren’t the real reasons for Ohio’s new voting restrictions, what were the real reasons? I doubt that anyone who’s closely followed the Ohio legislature’s actions in recent years is genuinely stumped by that question. For as in prior years, a legislature dominated by one party has adopted new rules impeding means of voting used mostly by voters likely to favor the other party. Does anyone really believe that Ohio’s Republican-dominated legislature would have restricted same day registration and early voting if Republicans rather than Democrats were the heaviest users?

To be sure, the Sixth Circuit’s ruling doesn’t expressly say that partisan manipulation was at the heart of Ohio’s law. But reading between the lines of yesterday’s opinion, like previous court decisions invalidating other Ohio voter restrictions, it’s evident this is what was really driving the court. Both the Equal Protection Clause and Voting Rights Act tests allow courts to consider circumstantial evidence of partisan manipulation. In curbing the most egregious instances, federal courts – which are more insulated from partisan politics than other institutions – are fulfilling their proper role in our democratic process.

Of course, the applicable legal standards don’t require a finding of intentional partisan manipulation. And I don’t think they should. Do we really want to make federal judges accuse state legislators of being partisan hacks before invalidating unwarranted restrictions on voting? Instead, the existing legal standards help courts ferret out laws whose real purpose and effect is to help the party in power by making it harder for certain groups of citizens to vote. That’s what the Ohio legislature was doing here – and, in fact, has repeatedly tried to do over the last decade.

Unfortunately, Ohio hasn’t given up yet. The Attorney General and Secretary of State filed “emergency” petitions for review with the full (en banc) Sixth Circuit and the U.S. Supreme Court. They seek an “immediate” stay of the injunction – by which they presumably mean the preliminary injunction the district court issued on September 4. This argument is genuinely puzzling, and the “emergency” is entirely of their own imagination. The reality is that yesterday’s decision simply preserves the state of affairs that has existed for almost three weeks, since the district court’s injunction. Although the petition repeatedly refers to this as a “last-minute” change, Ohio counties have known for a while now that they’d have to provide the opportunity for same day registration and early voting starting on September 30. And of course, the early voting rules kept in place are the same ones used in Ohio for many years.

Most damning to Ohio’s stay argument is the fact that, when the Sixth Circuit panel denied a stay of the district court’s order on September 12 – two weeks ago – the state did nothing. If the situation were really so dire, why didn’t the state immediately seek review of the panel’s stay denial, either from the en banc Sixth Circuit or the Supreme Court? The rules in place after yesterday’s Sixth Circuit decision are precisely the same as those in place before yesterday: early voting in Ohio begins on September 30.

The state’s real concern, I’m sure, is with the legal precedent established by yesterday’s ruling. The state is certainly entitled to ask for further review of the legal questions in due course. For reasons set forth above, I think such review should be denied. But even if one disagrees, that’s a poor reason for staying the district court’s injunction. With early voting scheduled to begin just three working days from now, it would be extremely disruptive to call it off now as the State requests. Such an order would really be a last-minute change in the election rules, of the very type that courts generally should avoid, as the State’s petition admonishes.

I’m a lawyer, not a soothsayer, so I won’t try to predict what either the en banc Sixth Circuit or the Supreme Court will do. My goal here is instead to dispel some misconceptions about yesterday’s opinion, which is neither as sweeping nor as dramatic as one might be led to believe from the State’s petition, and to explain why staying the district court order would be a big mistake. The Sixth Circuit ruling doesn’t say that all states have to offer early voting 35 days before the election. Nor did the court say that Ohio was violating the Constitution before it adopted no-excuse absentee voting in 2005. Instead, yesterday’s decision applies existing precedent requiring courts to consider evidence regarding the context in which new voting restrictions are enacted and whether the state’s stated rationales are pretextual.

* Disclosure: I served as counsel for plaintiffs in Project Vote v. Madison County Board of Elections, which resulted in a court order keeping the window for same day registration and early voting open in the 2008 election. I am not involved in the current litigation.


Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile

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