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Election Law @ Moritz

Election Law @ Moritz


An Ominous Supreme Court Decision

Anyone who cares about the right to vote should be very concerned by yesterday’s 5-4 U.S. Supreme Court decision in Husted v. NAACP . The one-paragraph stay order effectively stops same day registration in Ohio, which was to start today, and reduces the early voting period. The evidence showed that these voting opportunities were heavily used by African American and poor voters, who will be disproportionately burdened by the cuts. Even more disconcerting, however, are the implications of yesterday’s decision for the future of the right to vote.

In layman’s terms, here’s what happened: Ohio got caught with its hand in the cookie jar, and the Supreme Court let them eat the cookies. The state’s Republican legislature eliminated voting opportunities used mostly by Democratic-leaning voters, offering flimsy justifications for the changes. Conscientiously applying existing precedent, the lower courts blocked these voting restrictions, but the five most conservative justices on the Supreme Court allowed them to take effect, without explanation.

The Supreme Court’s action is unprecedented. I can’t think of any other case in which the Court has put the brakes on voting the day before it was to begin. The order is disruptive, changing the rules around which voters, candidates, parties, and election officials have budgeted and planned for weeks. The order is also unnecessary. Contrary to the state’s claim, there was no “emergency” from following the voting rules which had been in place for multiple election cycles.

The only silver lining in yesterday’s ruling is that the Supreme Court didn’t issue an opinion on the merits. It didn’t decide the NAACP’s claims that Ohio’s voting restrictions violate the Constitution and Voting Rights Act. That, however, should give small comfort to voting rights advocates.

Even before this case, the conservative majority on the Supreme Court has shown that it is no friend to voting rights. The most recent indication was last year’s decision in Shelby County v. Holder, striking down a key component of the Voting Rights Act. Unfortunate as that decision was, yesterday’s ruling may portend something even worse.

It’s still possible that the Supreme Court will decide the Ohio case on the merits. If it does, further cutbacks to voting rights – under the Constitution and the Voting Rights Act – are likely. On this point, I quite agree with Rick Hasen (despite our disagreement on the merits in Husted v. NAACP). Even if the Court doesn’t rule take the Ohio case, it could decide a case coming out of North Carolina, Texas, Wisconsin, or some other state. Voting rights advocates should be concerned, and surely are, about the prospect of Supreme Court review in any of these cases.

Back in 2008, when the Supreme Court upheld Indiana’s voter ID law in Crawford v. Marion County Election Board, I said: “it could have been worse.” Although I disagreed with the outcome of that case, the balancing test articulated by a majority of justices in that case was reasonable, allowing the burdens of voting restrictions to be weighed against the benefits to the states. Lower courts have used that standard to stop the worst instances of partisan manipulation of voting rules, in Ohio and elsewhere. Yesterday’s ruling is reason to fear that the Supreme Court may tighten the screws on the lower courts, making it more difficult for them to protect the right to vote.

In other words, it could get worse.


* Disclosure: I served as counsel for plaintiffs in Project Vote v. Madison County Board of Elections, which resulted in a court order keeping the window for same day registration and early voting open in the 2008 election. I am not involved in the current litigation.

Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile


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