Posted: September 7, 2012

Michael Kang Responds to Foley on Obama for America Non-Retrogression Principle

Ned Foley’s post yesterday about Obama for America v. Husted discusses an important point about the sequence of legislative enactments as central to the district court’s ruling but, I think, ultimately gets the reason wrong about why the sequence of enactments matters. Admittedly, the district court opinion can be read in more than one way, but I’d like to offer what I think is a stronger interpretation of the district court’s position. In the interest of full disclosure, I should say up front that I consult with the Obama campaign on election law matters, but I was not involved at all with the litigation and briefing for the case.

As Ned points out, the Ohio legislature surely could have enacted the policy that the government now defends if it had done so in the first instance. For example, before early voting was established in Ohio years ago, it would’ve been constitutional for the legislature to differentiate between early voting by UOCAVA and non-UOCAVA on any of a number of grounds, particularly if there was even de minimis legislative deliberation. It obviously matters to the district court that the differential treatment here of UOCAVA and non-UOCAVA voters resulted from a particular sequence of events---six years of early voting up to election day for everyone, followed by contraction of early voting for only non-UOCAVA voters through what Ned describes rightly as “a convoluted series of legislative enactments.”

But I think Ned gets wrong why this sequence matters to the district court in the case. It’s not about what would be an admittedly tenuous principle that certain voting rights once granted can’t be withdrawn on differential basis. I don’t think the district court opinion requires that interpretation.

Instead, the sequence of events should matter because it reveals the weakness of the government interests in support of contracting early voting for non-UOCAVA voters. The fact that uniform early voting was initially enacted and worked well for so long (the record of which the district court repeatedly refers) undercuts the government’s arguments about the costs of early voting that it supposedly seeks to avoid by curtailing it only for non-UOCAVA voters. And even this fact wouldn’t be important if there was deliberate legislative consideration to change the policy. However, here there was literally no deliberate legislative consideration about differential treatment of UOCAVA and non-UOCAVA voters. There was only a random, arbitrary process that the government admits was incredibly unusual and defied rational plan, even as it implicates sensitive political rights.

So, this is a case that can be cabined, and should be cabined, to very particular facts that may justify judicial intervention without opening the door for courts to second-guess legislatures in anything but a similarly exceptional case. Looking ahead, it’s quite unlikely that the 6^th Cir. endorses a broad ruling that rights once granted can’t be withdrawn, or requiring legislatures to justify changes of position, but here the sequence of events suggests the arbitrariness of the government action and undercuts the strength of government interests in any sort of constitutional balancing.

In short, the sequence of events is very relevant in an evidentiary sense, rather than as a matter of new principle. For the 6^th Circuit, this understanding might matter a lot on appeal, because it means the sequence marks the case factually as particularly troubling, though not necessarily in need of a revolutionary turn in constitutional law to address the wrong.