Posted: October 11, 2012

Ohio Early Voting Rules at the Supreme Court: The Possibility of a Nonpartisan Decision

Ohio’s Secretary of State, Jon Husted, has gone straight to the U.S. Supreme Court, bypassing the full U.S. Court of Appeals for the Sixth Circuit, in seeking to nullify the preliminary injunction to stop the effect of the state’s new early voting rules. The injunction was ordered by a federal district judge and affirmed by a three-judge panel of the Sixth Circuit.

Justice Kagan, as Circuit Justice for the Sixth Circuit, has set a deadline of 7:00 pm Friday (October 12) for the Obama campaign to respond to Husted’s Supreme Court filing. Justice Kagan could grant or deny a stay of the preliminary injunction herself, but she is more likely to refer Husted’s request to the whole Supreme Court, which would have the authority to overturn any decision she made on her own.

I will wait until seeing the Obama campaign’s response before reaching any conclusion on whether the Court should, or should not, grant Husted’s request to block the district court’s injunction (and even then I might remain undecided, a luxury the Court itself does not have). Here I wish only to observe one potential consequence of Husted’s decision to take the case directly to the Supreme Court, rather than seeking review by the full Sixth Circuit.

Whether the Supreme Court grants or denies Husted’s request, there is the possibility of all nine Justices—five Republican appointees and four Democratic ones—agreeing on the outcome. Such unanimity, whichever side prevails, would be far more preferable from a nonpartisan perspective than if the five Republican appointees side with Husted, a Republican, and the four Democratic appointees in dissent express their agreement with the Obama campaign’s position.

Had Husted taken the case to the full Sixth Circuit, however, there was virtually no chance that he could have secured a victory there without provoking a partisan split among those appellate judges. The majority opinion of the three-judge panel that had ruled against him was written by a Democratic appointee, and Husted could anticipate other Democratic appointees on the full Sixth Circuit lining up to support their colleague. Therefore, to win before the full Sixth Circuit, he would have needed the Republican appointees on that court to outvote their Democratic colleagues, who would have vehemently dissented.

That intense partisan divide would have replicated the one that occurred in 2008 when the Ohio Republican Party sued Jennifer Brunner, then Secretary of State and a Democrat, over the state’s voter registration database. In that case, however, the Supreme Court managed to maintain unanimity in ruling in favor of Brunner, granting her request to nullify a temporary injunction that had been entered against her. Husted, accordingly, can hope that the Court will be similarly unanimous in voiding the order currently in force against him. If he does obtain a unanimous Supreme Court victory, then by bypassing the full Sixth Circuit he will have helped the federal judiciary to avoid all the ugliness that an intensely partisan split decision in that court would have produced.

It is not inconceivable that the four Democratic appointees on the Supreme Court would join their five colleagues in ruling against the Obama campaign in this case. Previously, I’ve discussed analytic vulnerabilities in the Equal Protection claim upon which the Obama campaign’s lawsuit is predicated. It is true, of course, that the district court and all three judges on the Sixth Circuit panel ruled in the Obama campaign’s favor, but the district court’s treatment of the Equal Protection claim had its own analytic perplexities, and one judge on the Sixth Circuit panel pointedly distanced herself from the Equal Protection reasoning of the majority opinion (as I've noted). Thus, it is possible that the four Democratic appointees on the Supreme Court will decide that the Obama campaign’s Equal Protection claim is untenable, and for that reason would be willing to join in an order nullifying the injunction against Husted and the Ohio early voting rules he is administering.

It is also possible, conversely, that the five Republican appointees on the Supreme Court will join with their four colleagues to conclude unanimously that, regardless of which side has the better of the argument on the merits of the Equal Protection claim, it is not worth it for the Court to intervene at this point to block the injunction ordered by the district court and approved by the three-judge panel. After the panel ruled, but before Husted bypassed the full Sixth Circuit, I explained why a judge who is dubious about the merits of the Obama campaign’s Equal Protection claim might still be willing to let the injunction remain in place just for this year’s election—or, to be technical, might decline to exercise discretionary authority to review the validity of the district court’s temporary injunction. That explanation applies just as much to the Supreme Court as it did to the full Sixth Circuit, if not more so, since the discretionary nature of the Supreme Court’s jurisdiction is widely understood (among attorneys at least) to mean that the Court often declines to review lower court decisions that it considers erroneous. “The Supreme Court is not a court of error” is a refrain attorneys often hear.

Thus, it is plausible that all nine Justices will decide to deny Husted’s request, just as it is plausible that all nine will decide to grant it. The case could go either way, in other words, and my main point here is that—for sake of the system as whole—it would be far better, whichever way it goes, that it go that way unanimously rather than by a 5-4 ruling. If Chief Justice Roberts crosses party lines, as he did in the health care case, to vote with the four Democratic appointees, leaving his four Republican colleagues in vitriolic dissent, I suppose that would be better than a straight party-line divide. But it still would leave one with the uneasy sense that judicial decisions in election-related lawsuits are too much at the mercy of each judge’s partisan background.

In 2008, I advocated the idea of a structurally nonpartisan three-member “amicus court”—one Democrat, one Republican, and the third chosen by the first two—that would issue opinions in high-profile election cases in advance of the Supreme Court (or whatever court actually had the authority to adjudicate the particular case). The “amicus court” could then submit its reasoning to the Supreme Court in the form of an amicus (friend-of-the-court) brief. The virtue of a court that is structured to be evenly balanced between both sides in its nonpartisanship—designed this way specifically for hotly disputed election cases that pit Democrats and Republicans fighting fiercely over the rules of the voting process—is that, because of the mechanism by which the court’s judges are selected, the court’s decision has the greatest possible chance of being accepted by either side as fair and impartial. This virtue applies, most importantly, regardless of which side the court’s ruling favors. 

As I contemplate what the Supreme Court might do in Husted v. Obama for America (as the case is captioned there), I find myself thinking that I would trust whatever ruling an “amicus court”—structured in the way I have described—would reach. Alas, however, there is no such “amicus court” assembled this year to assist the Supreme Court with this case. In its absence, the next best thing is a unanimous decision from the Supreme Court because, whichever way it goes, such unanimity is another means by which to obtain an inherently nonpartisan outcome to a high-stakes election dispute.

[NOTE: This commentary was prepared before the Sixth Circuit's decision today in the seperate litigation over Ohio's rules for the counting of provisional ballots.  An initial read of that decision does not, in my judgment, affect any of points made above concerning the desirability of unanimity in the Supreme Court regarding the early voting case.]

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