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Commentary

The Soundness of the Equal Protection Holding in the Ohio Early Voting Decision

 

As Ned Foley discusses in his recent commentary, two federal courts – a district court and the 6th Circuit (comprising two appellate judges and a district judge sitting by designation) – have ruled that Ohio may not grant in-person early voting on the last three days before the election only to military voters, while not also allowing early voting on these days to all other voters. Ned’s thoughts on the preliminary injunction aspect of the ruling are vitally important in understanding the procedural nature of the decision and the difficulty inherent in changing the rules of voting just before the election. But ultimately, I predict that neither the en banc 6th Circuit nor the Supreme Court will review this case because it was substantively sound on the merits. The court applied the correct level of scrutiny and continued a recent trend of courts understanding Equal Protection jurisprudence in the voting context to encompass a notion of “fairness” or “access” to individual voters.

The basic issue is that Ohio had passed a law that would allow in-person early voting for military voters through the Monday before the election, but cut off in-person early voting for all other voters on the Friday before the election. The rationale is that military voters might be deployed at the last minute and therefore need the extra three days for early voting.

The district court had issued a preliminary injunction barring enforcement of this statute, and on Friday, the 6th Circuit affirmed. The court held that Ohio did not have a sufficiently important reason to allow in-person voting for military voters on the last three days before the election but not for other voters.

There are good reasons for this case not go en banc, and for the Supreme Court to deny review should Ohio appeal. Beyond the fact that this decision involves a preliminary injunction and therefore simply maintains the status quo from 2008 as a matter of equity, the underlying substantive Equal Protection analysis is solid.

First, the 6th Circuit panel was correct in its choice of the level of scrutiny and its application to this case. The court spent considerable time discussing whether to apply the rational basis test from McDonald v. Board of Election Commissioners, a Supreme Court case from 1969, or the more stringent “balancing of the interests”/”severe burden” test from more recent cases. The court appropriately employed the more recent “Anderson-Burdick” test (so denoted from Anderson v. Celebrezze (1983) and Burdick v. Takushi (1992)). There is little need for a higher court to step in to extrapolate further on the standard by which to evaluate election regulations.

McDonald, the 1969 case involving the application of the lowest form of scrutiny – rational basis review – was about absentee balloting. The Ohio in-person early voting law also involves a mechanism for voters to cast a ballot before Election Day. But just because the laws are similar does not mean that the test from McDonald should necessarily apply. In subsequent decisions, the Supreme Court has carefully set out a test for analyzing laws involving election administration: if a law imposes a “severe” burden, the court must apply strict scrutiny review. But if the burdens on voters are less than “severe,” then the level of scrutiny is calibrated to the magnitude of the burden. In that instance the court must weigh the burdens that the law imposes with the state’s interests in using the law to regulate the election. The key inquiry will often be whether the law is appropriately tailored to achieve the state’s interests. The Court has used this “Anderson-Burdick” test for all sorts of election regulations, from ballot access challenges to political party nominating procedures to voter ID laws. McDonald, by contrast, came down well before the continued application and extrapolation of this test. Indeed, as the 6th Circuit pointed out, in the past decade two other circuits have construed absentee balloting laws under the Anderson-Burdick test. There is therefore no need for the en banc court or the Supreme Court to step in to resolve any confusion about the appropriate level of scrutiny: the correct test is the Anderson-Burdick balancing test, calibrated to the level of burden a law imposes on voters. Moreover, using rational basis makes little sense for challenges to laws that impact voting, as the right to vote is one of the most fundamental rights inherent our democracy and is therefore deserving of a heightened standard. Applying rational basis review would contribute to a disturbing trend of treating the right to vote as less than fundamental.


In addition, even though the 6th Circuit ruled that the early voting law did not impose a severe burden, it appropriately weighed the burdens on voters with the state’s interests and found that the state could not prevail. The “heightened” level of scrutiny for “less than severe” burdens has to mean something – and courts have understood it to be stricter than rational basis. It is a kind of intermediate scrutiny. A state, therefore, must have a sufficiently important interest to vindicate, and the law must be tailored to achieve that interest. A state can normally win under this lower level of scrutiny because a state has a need to enact reasonable regulations so that it may run its elections smoothly. But a decision that a law does not impose a “severe” burden cannot be a rubberstamp on the state’s law, especially because the Supreme Court has indicated that a state must justify even less-than-severe burdens. The problem for Ohio was that the law was not adequately tailored to any state interest in running a smooth election.

The only interests the state asserted were assisting military voters and easing the burden on local election boards. But limiting early voting only to military voters achieves neither goal. Giving military voters the opportunity for early voting just before the election helps them regardless of whether the state also allows early voting for other voters. Further, as the court explained, once a locality decides to allow early voting in the three days before the election to military voters, there is very little additional burden to offering the same access to all other voters – especially because granting early voting to everyone would help to alleviate the massive Election Day problems that occurred at the polls in 2004. Therefore, the court’s application of the Anderson-Burdick standard to reject the state’s arguments raises little concern. Indeed, in its appellate brief Ohio spent considerable time arguing against the application of the Anderson-Burdick test and provided very little analysis of why it should win even under this test, suggesting that the key inquiry is the appropriate level of scrutiny. Both the district court and the 6th Circuit agreed that Anderson-Burdick is the correct test, and an argument to revert back to rational basis review for election regulations lacks merit.

Second, there appears to be a trend in this year’s election law cases in favor of “fairness” or “access” when a law directly burdens voters. We saw this in the Pennsylvania Supreme Court’s voter ID decision, the Wisconsin voter ID cases, and here. The underlying principle seems to be fair and equal access when a legislature directly burdens voters. This is different from when the burden is indirect and is more about regulating the process of the election. Thus, the decision upholding a purge of voter rolls in Florida does not present a direct burden on eligible voters themselves (it does not say some voters or others may or may not cast a ballot on Election Day); it instead targets (at least in theory) already-ineligible voters and attempts to remove them from the voting rolls. Admittedly, the line between direct and indirect burdens may be hard to draw. But if we look at who precisely the law targets, we see courts this year looking more skeptically at laws that directly impact the ability of otherwise-eligible voters to cast a ballot – especially when the law targets certain voters but not others, the crux of an Equal Protection challenge. This is a positive development. If I am correct about this trend, then the en banc 6th Circuit or the Supreme Court will see no need to step in, because the panel’s decision simply continues this jurisprudence, precluding the state from implementing a law that imposes direct burdens on a certain subset of voters. Further, a reversal leads to the headline “court limits the ability of some voters to vote,” which the courts in general would probably like to avoid. This is different from the headline about voter purges, because the headline there is “court allows state to clean up its voter rolls” – usually a laudable goal.

Finally, courts in general should be loath to inject themselves into partisan issues unless absolutely needed. A reversal en banc or at the Supreme Court will look partisan – especially because the plaintiff to this litigation is Obama For America, the campaign of one of the presidential candidates. That is, even if ideology does not motivate a reversal, it would likely appear ideological to the public, especially as both courts to consider this case so far are in agreement. Courts, however, are often concerned about their institutional role. Moreover, the Judges on the 6th Circuit are probably weary of the perception of their role during both the 2004 and 2008 elections, when they decided several high-profile election cases, and the Supreme Court is similarly concerned about its institutional standing (which explains, to many, Chief Justice Roberts’ vote in the health care case last Term). If that is true, the Judges may not want to embroil themselves in what is obviously a partisan dispute, especially when the original 6th Circuit panel included Judges of different ideologies, the court agreed with the district court, and the opinions were well thought-out.

In sum, in addition to the interim and equitable features of the preliminary injunction ruling as a reason for denying further review, the 6th Circuit was correct on the substantive merits of the Equal Protection claim, particularly on the proper analytical test and its application to these facts. For these reasons, Friday’s decision should be the last word on in-person early voting in Ohio for the 2012 election.

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