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Ohio Early Voting Case: A Potential Precedent-Setter

Today’s federal district court ruling in the Ohio early voting lawsuit will set a major precedent of nationwide significance if its novel legal theory is sustained on appeal. The key to understanding today’s decision is to compare Ohio, a state that has a relatively extensive early voting period—although less than before—with a state that lacks early voting altogether, like Pennsylvania or Michigan or New York. Nothing in today’s decision indicates the court’s belief that New York is violating federal law, either the Constitution or the Voting Rights Act, because it has failed to provide any early voting. It appears, moreover, that the court would take this position regarding New York even if there were clear evidence that African-American voters would disproportionally take advantage of early voting as an option in New York and thus the lack of early voting there has a disproportionally adverse impact on African-Americans in New York. The judge’s theory of the Ohio case, instead, rests on the fact that Ohio previously was more generous in its provision of early voting than it currently is and that this cutback, even to an amount of early voting much larger than the none that New York provides, is unlawful discrimination under both the Equal Protection Clause of the Constitution and section 2 of the Voting Rights Act. It is a bold and innovative proposition that will be tested on appeal.

There is a provision of federal law that bars cutbacks in voting opportunities that disproportionally affect African-Americans. That provision, section 5 of the Voting Rights Act, is not involved in the Ohio case. That is because section 5, as written by Congress, had only limited geographic coverage (mostly, although not exclusively, the states of the old Confederacy). Ohio was never covered by section 5 of the Voting Rights Act. But, more significantly, in Shelby County v. Holder (2013), the U.S. Supreme Court invalidated as being based on outdated data the coverage formula that Congress adopted. It has been suggested that Congress should revise the coverage formula, even making it fully national in scope, so that Ohio along with other states would be subject to the anti-retrogression principle of the VRA’s section 5. Congress, however, has not acted on that suggestion.

Thus, the core legal issue in the Ohio early voting lawsuit is whether the Equal Protection Clause of the U.S. Constitution or section 2 of the Voting Rights Act, both of which already have fully nationwide applicability and thus cover Ohio, can be interpreted to contain the same kind of anti-retrogression principle that previously was thought the special province of the VRA’s section 5. 

The court devotes much more attention to Equal Protection, so let’s start there. The first thing to note is that the court makes no finding of intentional race discrimination on Ohio’s part. That’s important for two interrelated reasons. First, if there were such intentional race discrimination, it would be clearly unconstitutional, violating the Fifteenth Amendment as well as Equal Protection, and an injunction would be a necessary and proper remedy to purge that unconstitutionality from the state’s voting system. Second, and this is the converse of the first proposition, laws that have a racially differential impact but not a racially discriminatory purpose are not unconstitutional under either Equal Protection or the Fifteenth Amendment. A racially discriminatory burden may violate section 2 of the Voting Rights Act without proof of a racially discriminatory intent. But according to longstanding and well-settled U.S. Supreme Court precedent, there is no successful claim of unconstitutional racial discrimination without proof of a racially discriminatory intent either written into the law itself or shown in the circumstances of the law’s enactment.

There are other forms of unconstitutional discrimination under the Equal Protection Clause besides race discrimination, and thus it is necessary to consider alternative ways of analyzing Ohio’s cutback in early voting. The primary precedent on which the federal court relied for its ruling is Bush v. Gore. In that case, the unconstitutional discrimination was between (a) those voters whose “hanging chads” would have been counted pursuant to the Florida Supreme Court’s insufficiently precise recount procedures and (b) those voters whose “hanging chads” would have been rejected despite being identical to the “hanging chads” counted elsewhere. Seven Justices of the U.S. Supreme Court saw that discriminatory treatment of identical chads as “arbitrary” and thus unconstitutional (although two of the Justices disagreed with the other five about what remedy to order for this unconstitutionality in the specific circumstances of the 2000 presidential election).

In today’s Ohio early voting decision, the federal court invoked the “no arbitrary differential treatment” principle of Bush v. Gore as the main justification for its ruling. The court wrote (page 60): “despite the expansiveness of Ohio’s voting system, the weakness of the offered justifications supporting [the cutbacks in early voting] render them essentially arbitrary action when viewed against the burdens they impose on groups of voters.” Then, two sentences later, the court “summarized” its own Equal Protection “conclusions”: Ohio’s cutbacks in early voting “arbitrarily make it harder for certain groups of citizens to vote.”

There are, however, some analytic difficulties with the court’s reliance on Bush v. Gore. First, the Supreme Court in Bush v. Gore spoke of the “disparate treatment” of the identical chads being “arbitrary.” It is not clear what the federal district court sees as the disparate treatment in Ohio’s cutback of early voting. Disparate effect is not the same as disparate treatment; the Supreme Court repeatedly has made that clear. Thus, the fact that Ohio’s cutbacks in early voting disproportionally burden African-American and low-income voters does not mean Ohio law engages in disparate treatment of these voters. Rather, all Ohio voters are subjected to the more limited availability of early voting; it’s just that this more limited availability has
a disproportionately adverse effect on some.

The other big question is what counts as “arbitrary.” Bush v. Gore itself is extremely unclear on this point, an irony given the Supreme Court’s concern in that case about the imprecision of Florida’s recount rules. Thus, one must consider whether Ohio’s decision to cutback early voting could be considered “arbitrary” in a
constitutionally relevant sense. But here’s where the whole question of rollback as a factor in constitutional
analysis comes into play. Is it “arbitrary” that Pennsylvania, Michigan, and New York (among other states) do
not offer any early voting, even if constituents in those states have lobbied for it? What if “cost” is the reason
that those states offer for refusing to provide early voting—the same reason that Ohio has offered for its cutbacks? Is that an “arbitrary” reason under the Equal Protection Clause?

Bush v. Gore itself was not an anti-rollback case. The arbitrariness there was that Florida essentially offered no reason whatsoever for treating identical hanging chads differently in a statewide recount, not that the reason offered was inadequate. It seems a stretch of the Bush v. Gore “no arbitrariness” principle to say that it either (a) compels all states to offer enough early voting, including those states (like Pennsylvania, Michigan, and New York) that have never provided it, or (b) prevents Ohio from adjusting its period of early voting to end up with an amount that remains more generous than many states.

The U.S. Court of Appeals for the Sixth Circuit, which encompasses Ohio, did decide in 2012 a different anti-rollback case invoking Bush v. Gore. That case, brought by President Obama’s reelection campaign, also involved early voting in Ohio. But it specifically concerned disparate treatment between military and non-military voters under a statutory enactment that was procedurally convoluted and bizarre in its adoption, and
where the justification for the different treatment of military and nonmilitary voters was lacking. That case, despite superficial similarities, is not much of a precedent for either of the two propositions identified above: again, either (a) that Pennsylvania, Michigan, and New York also must provide ample early voting if African-Americans and low-income voters in those states are disproportionally disadvantaged by the absence of it, or (b) that Ohio is not entitled to experiment with the amount of early voting that best balances its competing
policy considerations, including costs.

The same considerations affect the analysis of the claim under section 2 of the Voting Rights Act. Would Ohio have violated section 2 of the Voting Rights Act if, like its neighbors Michigan and Pennsylvania, it had never offered early voting in the first place? If not, is Ohio permitted to adjust the duration of its early voting?

Admittedly, figuring out when a state’s voting rules violate section 2 is a very tricky matter, one about which neither Congress nor the Supreme Court has given clear guidance. Many existing voting practices could be said to impose disproportionally disadvantageous conditions on minority voters. For example, based on the kind of evidence introduced in this Ohio case, the basic decision to hold Election Day on a Tuesday rather than a Sunday is likely to have a discriminatory effect on African-American voters, given the cultural circumstances that favor “Souls to the Polls” within the community. Does this mean that a state like New Jersey or Virginia violates section 2 of the Voting Rights Act when it holds a nonfederal election on a Tuesday rather than a Sunday? If New Jersey decided to experiment with Sunday instead of Tuesday for its next gubernatorial election in 2017, but then decided to switch to Saturday for 2021, would this switch violate section 2 based on a showing that Sunday is generally a better day than Saturday for African-American voters, and more so than for nonminority voters, because of the “Souls to the Polls” phenomenon?

To ask these questions is not to answer them. It is simply to point out that, with today’s Ohio early voting decision, we are entering unchartered waters of voting rights jurisprudence.  Which brings me back to the point with which I began: today’s decision, if affirmed on appeal, will be a major new precedent with large and potentially longstanding repercussions nationwide for a long time to come.


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


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