Posted: March 18, 2008
Federal Court Extension of Polling Hours: Problem, Proposal, Example
Editor's Note: This comment is the first installment of a 3-part analysis of the circumstances in which federal courts are, and are not, justified in extending polling hours on Election Day. The analysis is prompted by the federal court order applicable to 20 Cleveland precincts in Ohio’s March 4 primary, but it endeavors to develop general principles that would govern any future request for a similar order.
This first part explains why orders of this kind are problematic and thus worthy of inquiry. The second part will propose a “working rule of equity” for deciding these cases. The final installment will apply this working rule to the March 4 election as an illustrative example.
The federal court extension of polling hours in 20 Cleveland precincts on March 4, which was criticized by Ohio’s Secretary of State (as well as local election officials) as unjustified and inappropriately selective in scope, raises important questions:
- What circumstances justify federal court intervention on Election Day to provide more voting opportunities for some citizens than the state officials themselves would permit?
- If a federal court order is warranted, what sort of form and scope should that order take?
These questions are important because the remedy can be worse than the problem it is designed to redress.
A Potential Violation of Bush v. Gore
An unqualified extension of polling hours permits anyone who would have been entitled to vote during regularly scheduled hours to do so during the extended period. It does not matter whether the voter attempted to cast a ballot during regular hours. Thus, even if problems prevented others from voting, this unqualified extension grants a windfall voting opportunity to individuals who suffered no problem.
If this extra chance to vote is provided to some portion of the electorate, but not others, there arises an Equal Protection concern. An unqualified extension of polling hours in some precincts, but not others, presents this concern. In the no-extension precincts, citizens do not get an extra chance to cast a ballot.
But these citizens are no different than the ones who do get the windfall opportunity. Both groups were entitled to vote in the same election during regularly scheduled hours, but did not attempt to do so. Neither group suffered an injury that needs to be remedied. Yet one group, just because of the particular precinct in which they happen to reside, gets an extra chance to vote in the election, whereas the other group does not.
Equality with respect to voting opportunities is obviously a paramount principle in a democracy. The principle animates U.S. Supreme Court precedents from Reynolds v. Sims through Bush v. Gore.
Indeed, all nine Justices in Bush v. Gore were sensitive to the denial of equal voting opportunities based solely on which particular locality within the electorate as a whole a voter happened to reside. Moreover, both the majority and dissents in Bush v. Gore expressed concern that a judicial attempt to redress a perceived electoral inequality might itself deny equality of voting rights to equally situated citizens. (The majority saw this problem with the Florida Supreme Court’s authorized procedures for the evaluation of equivalently hanging chads, whereas the dissents perceived this defect in the majority opinion’s decision to preclude any further recount.)
Thus, the unqualified extension of polling hours in some precincts but not others presents a potential violation of the Equal Protection principle underlying Bush v. Gore. One need not say definitively whether a particular federal court order would itself violate Equal Protection. It is enough to observe that, precisely because there are powerful Equal Protection concerns with any unqualified extension of polling hours to select precincts, federal district courts should be especially cautious before entering any such decrees. For the same reason, it is worth considering in advance of the November election what acute circumstances arising on Election Day might possibly justify a federal decree of this nature.
Bob Bauer suggests that there is nothing wrong with a federal court being overly generous in permitting people to vote. But there is something wrong when a federal court is selectively generous in its awarding of extra voting opportunities. There can be too much of a good thing, when it is not equally distributed among those equally entitled to it.
“No extra hours for any voter who did not attempt to cast a ballot during regular hours” is a pronouncement that provides evenhanded treatment of similarly situated citizens. It is presumptively fairer than extra hours for only some of these same citizens. Thus, it is appropriate to inquire as to what could justify departure from this democratic evenhandedness.
Part 2 of this 3-part analysis will undertake this inquiry.
Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile