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Free & Fair

Analyzing a “Voting Wars” Trifecta

Yesterday was a big day in what Rick Hasen has aptly called The Voting Wars. There were three major developments.

First, in the wake of increasingly vociferous criticism from Democrats and civil rights organizations (and the New York Times editorial page), Ohio’s Republican Secretary of State, Jon Husted, issued a directive requiring all 88 counties in the state to offer in-person early voting for the same specified days and hours, thereby prohibiting any county from offering fewer or more times when in-person early voting would be available.

Second, a federal trial court in Ohio heard the Obama campaign’s challenge to the State’s early voting regime insofar as it permits military voters, but not others, to cast in-person ballots on the Monday immediately before Election Day. The Obama campaign’s lawsuit had assumed that in-person early voting would also be available for military voters, but not others, during the weekend immediately preceding Election Day; but Husted’s new directive appears to eliminate that possibility.  

Third, a Pennsylvania state trial court refused to invalidate the State’s new voter ID law in its entirety, leaving open the possibility that individual voters might be able to prevail in a constitutional challenge to the law if and when they are able to show that the law imposes a specifically disenfranchising burden on them.

Collectively, these three developments show just how unsettled the legal landscape remains concerning the voting process just a few short weeks before ballots will be cast. In Ohio, early voting begins on October 2—and in Iowa and Virginia (two other swing states in the presidential election) on September 27 and September 22, respectively.

Uniform Early Voting Hours

Husted’s directive is a welcome development in its elimination of variability among Ohio’s 88 counties in the opportunity to cast in-person early ballots. Prior to the directive, it appeared that the days and hours of in-person early voting might be fewer in the state’s major urban counties than in many suburban or rural ones. By correcting this disparity, Husted’s directive avoids a problem that could well have developed into an additional Equal Protection lawsuit, one with perhaps more promise than Obama’s current complaint concerning the disparity in early voting opportunities between military and non-military voters.

But one can reasonably question whether Husted’s new directive upholds the standard of fair-minded, nonpartisan election administration that Husted has repeatedly professed that he wishes to follow. The uniformity that Husted has now required precludes any in-person voting on Saturdays and Sunday during the five-week period that Ohio’s statutory law provides for early voting. Is that a position that a nonpartisan Director of Elections, who is neither Republican nor Democrat, would take?

To his credit, Husted requires early voting until 7pm during the last two weeks before Election Day (Mondays through Fridays, except the last Friday when state statutory law requires in-person early voting to end at 6pm), as well as until 9pm on Tuesday, October 9 (because state statutory law requires the local boards of election to be open to receive voter registration forms until that hour on that day). But I suspect there are some voters who work 9-5 on weekdays and need to get home to put dinner on the table, and so would much prefer to have the option of casting their ballot leisurely on Saturday or Sunday, rather than trying to fit it in at the end of a busy workday (and for whom the evening of Tuesday, October 9 might not be particularly convenient).

In response, Husted would say that absentee voting by mail remains available to anyone who can’t easily get to the in-person early voting location during the times it’s open. True, but absentee voting by mail is not an equivalent substitute for in-person early voting. The reason is that mailed ballots run a significantly higher risk of not being counted than in-person early ballots. Not only might the Postal Service fail to deliver them on time (it’s been known to happen in recent years, including in Ohio), but also the voter might make an error in filling out the absentee ballot envelope, or marking the absentee ballot itself, and be unable to take advantage of error-correction opportunities. When my wife asked me what’s the best way to vote if she wants to make sure that her ballot will count as she intends it, I recommended in-person early voting because it is much safer than either absentee voting by mail or in-person voting on Election Day itself. (Compared to in-person voting on Election Day, in-person early voting presents much less risk that the government workers involved in the ballot-casting process will commit an error that would cause the ballot of an eligible voter not to count. The evidence in Hunter v. Hamilton County Board of Elections confirms this point.)

Therefore, I surmise that in Ohio a genuinely nonpartisan Director of Elections, neither Republican nor Democrat, would make in-person early voting available on at least some weekend days—maybe not as many, or for as long, as the Democrats would like (because Democrats particularly want to take advantage of weekend voting), but at least some. This is true because Ohio has had weekend voting (in 2008 and 2010, among other years), and to take it away completely seems excessive. But the more important point is that neither I nor anyone else should have to guess about what a genuinely nonpartisan election administrator would do. We should have a genuinely nonpartisan election administrator in place whose decisions would be unimpeachably nonpartisan, whatever they might be.

Husted, an elected Republican, came to office saying that he wasn’t going to be partisan in the way that his predecessors Blackwell (another Republican) and Brunner (a Democrat) had been. I believe he sincerely meant it and has tried to live up to that ideal. Yet Brunner also came to office saying she wasn’t going to be partisan like Blackwell, but she ended up looking to many like a Democratic Party version of Blackwell. The partisan pressures of being an elected politician in that office may simply be too great to resist completely. When we look back on Husted’s performance this year, will some observers reasonably claim that he ended up more like Blackwell and Brunner than he intended? Ohio, like other states, would be better served if we didn’t have to worry about this risk of an elected politician, even subconsciously and only to some extent, letting party affiliation affect the discretionary policy decisions that the office must make.

Disparity between Military and Non-Military Voters

Having said that, I should note that my judgment, based on the evidence and argument presented in the Obama campaign’s current lawsuit against Husted over the unequal treatment of military and non-military voters, is that Husted should prevail in that case. The Obama campaign’s argument, as made plain in the court proceedings yesterday, is that the legislative process by which Ohio law now has arrived gives military voters extra in-person early voting opportunities unavailable to regular non-military voters renders this differentiation a violation of the federal Equal Protection Clause. The Obama campaign’s lead attorney, Bob Bauer (former White House counsel), repeatedly acknowledged to the court that Ohio, without violating the Fourteenth Amendment, could adopt the substance of its differentiation between military and non-military voters as long as it did so using a thoughtful, considered legislative process, which he claimed was lacking in this case.

I readily agree with Bauer that Ohio’s legislative process that resulted in the differentiation now before the court is extraordinarily convoluted, even bizarre, and so intricate that it is not worth attempting to explain in detail here. For the purpose of analyzing Bauer’s Equal Protection argument, I will assume that Ohio’s legislature never intended to give military voters the preference that now exists in the state’s early voting regime and that this preference resulted from legislative accident. (The State disputes this point, but which side is correct on this detail about the actual workings of the legislative process in this case is not germane to my Equal Protection analysis.)

Even if the current law was accidental in the way that Bauer argues, it does not follow that it violates the Fourteenth Amendment. The issue is whether the State’s lawyers, after the fact, are entitled to offer a reasonable justification for the differentiation in the substance of the law despite the assumption that the legislature itself never contemplated this reasonable justification (or indeed the particular differentiation itself). It is an important issue, and one that I believe is unsettled in the U.S. Supreme Court’s relevant precedents.

It is commonplace in federal constitutional law that, if so-called “rational basis” review applies, then the State’s lawyers are entitled to defend differential treatment in state law by whatever plausible justification they can think of, even if it is not what the legislature had in mind—but if, by contrast, so-called “strict scrutiny” applies, then legislation will be invalid if it was actually enacted because of an improper motive, although the same legislation would be sustained if it had been adopted with a valid motive. What is interesting and unsettled about this particular lawsuit is that neither “rational basis” nor “strict scrutiny” applies, but instead an intermediary form of review applicable to a certain category of election cases, and the Supreme Court has not made entirely clear whether only actual motives, and not lawyer-developed after-the-fact justifications, are available for consideration under this standard of review.

The intermediary standard of review has been developed by the Supreme Court in a series of election cases from Anderson v. Celebreze (1983) to Burdick v. Takushi (1992) to Crawford v. Marion County Election Board (2008). This standard applies when a State regulates the voting process in a way that does not entirely preclude an adult citizen from voting on the ground of ineligibility to participate in the process. If the state does adopt such a categorical exclusion from the franchise, then strict scrutiny does apply—as when New York provided that to vote in a school board election a resident of the school district must either own or rent real estate in the district or else be a parent or custodian of children in the public schools in the district. See Kramer v. Union Free School District No. 15, 395 U.S. 621 (1969).

Ohio’s early voting preference for military voters is obviously not a categorical exclusion of non-military voters from the franchise. Non-military voters still can vote on Election Day, or by mailed absentee ballots, or on most other days in which early voting is available. Therefore, the Anderson/Burdick/Crawford standard of review, and not strict scrutiny, applies.

The Anderson/Burdick/Crawford standard is not as lenient as the conventional “rational basis” test. There is a debate among U.S. Supreme Court justices about just how this Anderson/Burdick/Crawford standard works; that debate was evident in Crawford itself, where the nine justices split into three different groups on the point. But the particular details of that debate are not relevant here. The Obama campaign, again, accepts that the preference that Ohio has adopted for military voters would survive this standard of review if the legislature had actually wished to provide that preference based on a judgment that the special demands of military service warrant the extra opportunity for in-person early voting.

In my judgment, the better position is that even though the Anderson/Burdick/Crawford test is not the same as the “rational basis” test, the State ought to be credited with whatever policy justifications can be offered to justify a non-exclusionary regulation of the voting process. Perhaps it is the fact that I served as Ohio’s State Solicitor for two years (while on leave from Ohio State’s law school), but I don’t think federal constitutional law should trip up a State just because the State used an arguably faulty legislative process for adopting a substantive rule that would be undeniably valid using a different legislative process. Instead, except when strict scrutiny properly applies, the respect that States as sovereign governments in our federalist system deserve requires (in my view) that they should be given the benefit of the doubt, so that their legislation is sustained under federal constitutional law whenever there is a reasonable policy argument available to sustain it.

In this respect, I think an appropriate analogy can be made to Chief Justice Roberts’s decisive rationale for sustaining the constitutionality of the Affordable Care Act. It would have been easy for Roberts to trip up the statute on the ground that Congress could have passed the Individual Mandate provision (the obligation of individuals to obtain health insurance) as a tax, but that Congress failed to take advantage of this available route. As Roberts himself noted, the statute reads more naturally as a regulation than a tax. And the rather unseemly procedures that Congress had to use to get the law enacted—using so-called “reconciliation” for part but not all of the law in order to avoid a filibuster—might have been a basis for refusing to charitably read the law as a tax. Still, I believe that Roberts was correct to give Congress the benefit of the doubt: as long as the law was plausibly sustainable as a tax, it should be so sustained even if that were not the most natural reading—and even if the legislative process was especially messy.

The reason is that Congress, as the national legislature, deserves that its handiwork be seen in the best possible light by the federal judiciary when the constitutionality of that handiwork is at issue (and when strict scrutiny does not apply, as it did not in the health care case). The respect that the judiciary owes the legislature means that if there is a plausible justification that saves the constitutionality of the law, the judiciary should uphold that justification. Simply put, I believe that in our federalist constitutional system, the state legislatures deserve the same respect—no more, but no less—as the national legislature.

Facial and as-applied challenges to restrictive Voter ID laws

Similar reasoning underlies my analysis of yesterday’s ruling in the Pennsylvania voter ID case. I think the court there was justified in refusing to invalidate the law in its entirety, just as the U.S. Supreme Court was justified in Crawford in refusing to invalidate Indiana’s voter ID law in its entirety. The simple point is that the photo ID requirement in both cases is not a burden for the many voters who already possess the required photo ID, and as to these voters there is no reason to prohibit election officials from applying the requirement to present that form of ID when they vote. To be sure, there may be no great necessity in the State’s insistence that these voters show a photo ID, rather than some other form (like a bank statement or utility bill), but given the absence of a burden as to these voters, the State should be permitted to have its way. After all, the obligation to show a photo ID might have some minimally deterrent effect against ineligible voting, and given no harm to voters who already have this form of ID, the balance tips in the State’s favor. (As a policy matter, I would prefer an alternative voter ID requirement, but suboptimal policy does not render a law unconstitutional.)

I think also that the Pennsylvania trial court was correct, in its constitutional analysis, to emphasize the role that provisional voting plays in protecting from disenfranchisement even those voters who will be unable to acquire the kind of ID that will satisfy the new state law as enforced by the Secretary of State. As the court observed, the state statute provides that a voter’s provisional ballot must count if it is otherwise valid and if the voter submits a sworn statement of indigency, that inability to pay for underlying documents prevented the voter from obtaining the requisite form of ID. This element of the statute means that no voter should ever be disenfranchised for being too poor to acquire the necessary ID, and thus even as applied to indigent voters the statute may not be unconstitutionally burdensome. The trial court noted, too, that everyone lacking the required photo ID is entitled to a provisional ballot, and thus if there are other circumstances besides indigency that justify the lack of an ID in a particular instance—such as the voter made a good-faith attempt to obtain a required document, like an out-of-state birth certificate, but was unable to do so—then judicial review remains available under Pennsylvania law if state officials threaten to invalidate the provisional ballot in those particular circumstances.

(For these reasons, the New York Times editorial lamenting the Pennsylvania judge’s ruling was unwarranted and mistaken. The Times opined, without qualification, that as a result of yesterday’s ruling some voters “will try to vote and find their ballots rejected.” But there was no mention in the Times editorial about the safety-value of provisional voting or that the court explicitly left open the availability of “as-applied” challenges brought by any voter who genuinely faced personal disenfranchisement as a result of the law. These omissions do a great disservice the newpaper’s readers, giving them a false impression about the nature of the ruling and thus undermining their ability to form their own sound judgment on the decision based on what the Times has told them.)

The lesson of yesterday’s decision is that no Pennsylvania voter should give up trying to cast a ballot that counts even if they currently lack the required form of ID. If they have the financial means, they should do their best to obtain one. But if in the end they still don’t have one, and can’t vote absentee, then on Election Day they should vote a provisional ballot and do their best to have that ballot counted. It is far from certain that their provisional ballot ultimately will be discarded. Indeed, the best guess, from both Crawford and this new Pennsylvania decision, is that a state would be hard-pressed to throw out a provisional ballot simply for lack of a photo ID if a voter made a good-faith effort to acquire one. In other words, in this particular context, an “as-applied” constitutional challenge to the law likely would prevail. As a public service, the media should do its best to disseminate the important point about provisional voting, which thus far has been largely ignored in the reporting on this case.

Of course, there are downsides with the trial court’s reliance on provisional voting, even though it was correct to do so in the context of constitutional analysis. First of all, increased utilization of provisional voting threatens to put additional pressures on polling place operations on Election Day. Yes, as the court observed, the judiciary might be available for emergency lawsuits on Election Day if problems with the voting process arise. But, as a practical matter, these lawsuits often come too late to undo mistakes made by pollworkers. Thus, there is reason to be concerned that Pennsylvania’s pollworkers might not implement the rules of provisional voting properly, potentially leaving a voter disenfranchised who by law should not be.

Second, increased utilization of provisional voting makes it more likely that there will be post-voting litigation over the counting of these ballots. If a particular race is close enough, and it could be the presidential election, then lawyers on both sides will be making whatever arguments they can either to count or throw out these ballots (depending on which side of their argument better serves their client candidate at the particular moment). This kind of litigation has its drawbacks, including the potential loss of confidence among the citizenry as they see elections being won or lost in the courts, rather than in the polling booths.

Still, a State is constitutionally entitled to rely on provisional voting as a way to handle ballots that it reasonably believes deserve further investigation before being irretrievably commingled with the bulk of ballots cast on Election Day. Ballots that are not initially accompanied by a form of ID that most citizens already have are constitutionally permissible for States to put in the provisional category, subject to the voter’s ability to validate the ballot even without that form of ID on grounds of indigency or other extenuating circumstances. This reliance on provisional voting may well be undesirable policy for the two reasons I have articulated, but it is not automatically unconstitutional.

*** *** ***


In any event, all three of yesterday’s voting developments show that, twelve years after Bush v. Gore, much work still needs to be done to improve the voting process in the United States. Of course, there is virtually no more time to make these improvements for this year’s presidential election. Instead, we must hope that that when the dust settles on all the litigation that has already occurred over the voting process in advance of Election Day, the nation is left with a set of rules that pollworkers and election officials can implement with a minimal level of mistakes and, if necessary, the available procedures for post-voting litigation are able to correct any such mistakes that have potentially outcome-determinative consequences—and that these procedures can fix these mistakes in a way that both sides and the public can accept as a fair and impartial error-correction process.

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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