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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Free & Fair

Unjustified Federal Court Extension of Polling Hours

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March 5, 2008

Late—very late—yesterday, the Obama campaign sought and received an order from a federal court to extend polling hours in certain precincts in Cuyahoga County for 1.5 hours beyond their regularly scheduled closing time (of 7:30pm). Both the request and the granting of it are troubling developments, not just for the rest of this now-extended primary campaign, but also for the general election in November.

Voters who can’t get to the polls

Federal courts exist to remedy violations of federal law. It is exceedingly difficult to find a violation of federal law that would have been the predicate for this federal court extension of polling hours. Indeed, even accepting the truth of the factual allegations in the Obama campaign’s request for this order, no violation of federal law is apparent.

The Obama campaign asserted that bad weather was making it impossible for some voters to get to the polls before the regularly scheduled closing time. No doubt that was true. But it does not follow from this fact that federal law requires that the state or local governments permit those who arrived after closing time to vote.

If my car breaks down on the way to the polls, preventing me from getting there by closing time, I can’t vote. But that is my bad luck. Even though my right to vote is protected from unconstitutional disenfranchisement by state or local government, there has been no such improper government conduct just because my car breaks down. I have no federal right to an extension of polling hours because of my misfortune.

The same point applies to an ice or snow storm that prevents a lot of voters from getting to the polls before closing time. To be sure, it might be good public policy for state law to extend polling hours under such circumstances, or to permit state or local officials to exercise administrative discretion to do so. But state law does not violate the federal Constitution or any other provision of federal law, including the Voting Rights Act, if it insists on sticking to the regularly scheduled closing time despite the adverse weather conditions.

Perhaps if weather conditions prevent some polling places in a state from opening at all on Election Day, whereas other polling places with mild weather elsewhere in the state are able to operate normally, it might violate Equal Protection if the state fails to make available some alternative voting opportunity for those who are supposed to cast ballots in the precincts that never open. That Equal Protection proposition is a plausible, but by no means certain, one in light of the U.S. Supreme Court’s Equal Protection ruling in Bush v. Gore, as I’ve discussed at length elsewhere (also here).

But the situation in which a polling place never opens on Election Day—or even one in which the polling place ceases operations in the middle of the day because of severe weather—is a far cry from the situation in which the polling place remains open for business entirely as scheduled, but it is the individual voters who are unable to get there within the scheduled time. There has been no denial of an equal voting opportunity to them. They are, regrettably, just unable to take advantage of that equal opportunity.

A ballot shortage for voters already at the polls

The Obama campaign made another claim. They asserted that some precincts were running out of ballots, and that the severe weather was preventing election officials from getting to these polling places with a new supply. This allegation comes closer to claiming that the severe weather was causing the government itself to shut down the voting process, thereby denying the opportunity to cast a ballot to voters who were able to make it the polls within the scheduled hours.

But the Obama campaign is careful not to overstate its claim. It does not say that a voter waiting for a ballot at closing time would be denied the opportunity to vote. Nor could it make this claim, given the explicit requirement of state law that anyone already “waiting in line to cast their ballots” at 7:30pm must be permitted to do so (Revised Code § 3501.32), although no new persons are permitted to enter the line after that time.

Consequently, if any precinct had been unable to receive a new supply of ballots before closing time because of the bad weather, with the consequence that there were no more ballots for those standing in line at 7:30pm, these voters would have been entitled under state law to wait until the new supply of ballots arrived, even though it was after closing time. There was no need for a federal court order to protect these voters.

Nor is there any allegation that ballots had already run out well in advance of closing time, with the consequence that some voters were unable to wait the length of time it would take for a new supply of ballots to arrive, leading to the further consequence that they left before closing time and therefore could not take advantage of this explicit provision of law that would entitle them to cast a ballot no matter how long it took for the new ballots to arrive. Instead, there is only this vague allegation: “Numbers are constantly dwindling causing delays and specific instances of people who were told they could not vote because of the shortages.” But even if some voters were told that their precinct had run out of ballots (and the Obama campaign doesn’t even quite say that), it does not follow that these individuals were unable to wait the time it took for the new ballots to arrive.

The Obama campaign’s very next sentence states: “In order to ensure that supplies arrive in order to enable voters to cast their vote, polling hours must be extended.” But that proposition is categorically false, given the explicit provision of state law quoted above.

Nor does it appear that the Obama campaign was concerned about a group of voters who had already left their polling places, because they could not wait any longer, but needed an opportunity to return between 7:30pm and 9:00pm. There is no mention of anyone in this situation. Moreover, the timing of the Obama campaign’s filing in federal court—at the end of the day—as well as what the campaign does say in its filing, suggests a concern for voters still in line at closing time but without ballots to cast. Yet this is precisely the group of voters who do not need any federal court order, because they are fully protected under state law for as long as it takes the missing ballots to arrive.

The federal court's order contains a hand-written notation that it "is based in part on the representation of counsel for plaintiff that they have information from poll workers and/or potential voters that the [specified] precincts ran out of ballots and that voter may have been deprived of an opportunity to vote as a result thereof." This language seems more definitive with respect to the existence of ballot shortges than in the Obama campaign's written request for the order, which may be the result of changing facts between the time of preparing the written document and the subsequent oral hearing before the judge. Even so, what remains missing is the crucial claim that affected voters were unable to wait for more ballots to arrive.

The federal court order is needed only for those individuals who are not in line at the time the polls close. But these are individuals who have not suffered any violation of federal law—especially if they were not at the polls earlier in the day but unable to vote because of a ballot shortage back then. Insofar as the Obama campaign was attempting to keep the polls open for individuals who had not yet arrived during the scheduled hours, it has no valid legal basis for this effort. And it was inappropriate for the federal court to grant an order for the benefit of these individuals.

The implications for November

Unfortunately, it is a fairly common campaign tactic to try to find a sympathetic judge to keep the polls open a little while longer, in the hope that campaign workers can increase voter turnout favorable to the candidate and thereby perhaps make a difference in the outcome if the race is close. But it is a mischievous tactic, because it attempts to change the rules at the end of the game, in order to give one side an extra advantage because of the last-minute rule change. It is especially mischievous when judges go along with this tactic even though they have no valid legal basis for doing so.

If that is what occurred in this case, it would not be the first time in Cuyahoga County. On the contrary, in the November 2006 election, the Ohio Democratic Party went to federal court and obtained a similar extension of hours in 16 polling places, based on arguably modest delays in voting at those locations. In light of the success in obtaining this kind of court order in these two recent occasions, we can be sure that the Democratic Party will plan again to go to federal court in November 2008 in an effort to extend polling hours in Cleveland in the hopes of increasing turnout for their presidential candidate.

One might argue that there is no harm from even an invalid extension of polling hours by a federal court, as long as the court complies with the Help America Vote Act’s requirement that any ballots cast as a result of the court order be provisional. The provisional nature of these ballots means that they subsequently could be excluded from the vote count if a federal court of appeals, or the U.S. Supreme Court, ruled the order improper. But litigating over the validity of provisional ballots in the aftermath of Election Day is an unseemly—and publicly disconcerting—process. As I have discussed elsewhere, it would be preferable where possible to avoid disputes over whether to count provisional ballots. Discouraging federal judges from extending polling hours without a justifiable basis for doing so would seem to be one relatively easy way to avoid at least one category of disputable provisional ballots.

Indeed, given the likelihood of another federal court extension of polling hours in Cuyahoga County this coming November, it might be prudent for the Ohio Secretary of State, or perhaps the Ohio Republican Party, to file a declaratory judgment action in advance of Election Day, asking for a ruling that an extension would not be justified given the kind of facts alleged by the Obama campaign yesterday. That ruling could then be appealed to the U.S. Court of Appeals for the Sixth Circuit, which would have the opportunity in an orderly way to lay down some general principles to guide the federal district judges in Cuyahoga County. (Another procedural route to a Sixth Circuit decision might be for the Secretary of State, who was quoted in Gongwer as saying that yesterday’s order was unjustified, to argue that the Obama campaign’s complaint is not “moot” because it is “capable of repetition yet evading review,” and therefore she remains entitled to appeal yesterday’s order even though the primary itself is over.) An appellate decision of this kind would constrain what appears from yesterday to be overzealous federal court intervention in the operation of the state’s voting process.