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Free & Fair

Two Big Cases Ready for Major Appellate Rulings

In the next week or two, the U.S. Court of Appeals for the Sixth Circuit will decide two Ohio election cases with both practical and jurisprudential importance. One concerns the rollback of early voting during the last three days before Election Day (November 6 this year). The other involves the invalidation of a ballot cast by a valid voter in the correct polling location, but to whom the poll worker erroneously gives the incorrect ballot for the voter's specific precinct.

Both cases present claims based on the Fourteenth Amendment to the U.S. Constitution, and both expose the current uncertainty of how the Fourteenth Amendment applies to voting rules, particularly in the aftermath of Bush v. Gore. The Ohio government lost both cases in the federal district court, but is seeking to reverse those two rulings on appeal. The Secretary of State, Jon Husted, declined to appeal the main portion of the provisional voting case, but the Attorney General, Mike DeWine, appealed on behalf of the State of Ohio as an independent litigating entity.

Unless one looks at the law solely through a partisan lens, it is not preordained that the State should win—or should lose—both cases. (The district court judges in both cases are Democratic nominees, and Ohio’s Secretary of State and Attorney General are both elected Republicans.) There are significant distinctions between the two cases that might cause the State to deservedly win one but lose the other. Unrelated to the merits, moreover, different three-judge panels of the Sixth Circuit are hearing the two cases, and thus there is a chance that a difference in the outcome might be attributable to the identity of the particular judges on the two panels (a consequence that would be regrettable but, alas, not unrealistic).

The early voting case, brought by the Obama campaign, challenges Ohio’s convoluted legislative and administrative processes that have resulted in a regime that forecloses early voting on the Saturday, Sunday, and Monday immediately before Election Day—except for a designated category of military and foreign-domiciled voters, who may be able to engage in early voting during those three days if their local elections board permits them to do so. The Obama campaign claims that this preferential treatment of some voters over others violates the Fourteenth Amendment's Equal Protection Clause. The district court agreed and ordered reinstatement of these three days of early voting for all the State’s voters. (For more details, see Steve Huefner's analysis.)

The strongest argument on behalf of the Obama campaign is that an unusual combination of three factors collectively cause an Equal Protection violation, whereas the absence of any one of these factors might change the outcome of the Equal Protection analysis. The first factor is the bizarre and arguably capricious legislative process that gave rise to the differential treatment between two groups of voters; the Ohio legislature didn’t seem to want to give three extra days of early voting to military and foreign-domiciled voters, but apparently stumbled into this preferential treatment as a result of a legislative mistake (with the Secretary of State actually creating the preferential treatment as the most sensible way to undo the unintentional legislative error). The second factor is the revocation of voting opportunities that previously existed and were enjoyed by those who took advantage of them; the record reveals no strong need for the State to take away these valued voting opportunities, as their availability in the presidential election four years ago caused no noted problems in the administration of the voting process. The third factor is the contingent and potentially nonexistent benefit of the special accommodation for military and foreign-domiciled voters, given the fact that local officials must agree to make this accommodation available, and none or few may do so; there is not much strength to the justification of the preferential treatment when it is so speculative in this way.

When you put all these factors together, you can come up with the conclusion (as the district court did) that the State’s basis for treating two groups of voters differently was insufficient to sustain the differential treatment.

But when you analyze each of these factors in isolation, as I have in one or two previous posts, you can easily reach the conclusion that the Equal Protection Clause is not violated just because military and foreign-domiciled voters receive a modest increment in the number of days available for casting a ballot that is not generally available to regular voters. First, there is precedent for judging the state’s early voting rules according to the best argument that can be made on their behalf, regardless of whether the State blundered into the situation of adopting the rules that it did. Second, the revocation of previously available opportunities may make no difference if a State was not obligated to grant those opportunities in the first place, and the State has simply returned to a situation it was entitled to be in initially. Third, letting local officials decide whether to give an extra three days to military and foreign-domiciled voters undoubtedly makes that special benefit less valuable to those who might take advantage of it (compared to a mandatory requirement that local officials must make these three days of early voting available to these voters), but if the government is entitled to give more robust extra protections to military and overseas voters—as Congress repeatedly has done—then much more modest extra protections for these same voters is not inherently unconstitutional vis-à-vis the ordinary voters who don’t receive the same benefits.

If each of these three factors by itself is insufficient to render unconstitutional Ohio’s modest benefit for military and overseas voters, then why should these three factors in combination invalidate the same benefit?

It might be tempting for a judge to think that, by relying on the combination of factors, a ruling of unconstitutionality in this case can be limited to its rather bizarre set of facts and thus won’t make much of a precedent. (Michael Kang has urged the Sixth Circuit to look at the case in this way.) But it was this same sort of thinking that led to the much-criticized Equal Protection ruling in Bush v. Gore. That case involved not just the problem of different counties using different standards for so-called hanging and dimpled chads, as well as at least one county changing its own standard back and forth during the recount, but several additional defects: some counties included overvotes as part of their recount, but the plan for recounts in other counties did not; the statewide recount plan apparently permitted both partial and completed recounts to be included in the final result; and there were no standards for the training and supervision of recount teams. The majority opinion in Bush v. Gore seemed to be saying that it was only because all of these unusual factors were present in a single case that the recount underway was unconstitutional. The narrowness of the decision, however, caused many to condemn it as unprincipled.

If Equal Protection law applied to the voting process is vague and uncertain, and if judges are free to rule however they wish depending upon what combination of specific facts strikes them as unfair, then there is a serious danger that judges will only invoke Equal Protection when their own personal partisan dispositions motivate them to find the government’s conduct objectionable. The rap on the Supreme Court majority in Bush v. Gore, deserved or not, is that they manufactured an Equal Protection violation out of the particular facts in front of them because they wanted Bush to win. If Democrats on the Sixth Circuit do the same in Ohio’s early voting case, emphasizing that their decision is limited to peculiar set of circumstances in the particular case, will it be because they want Obama to win? If one was troubled by the apparently idiosyncratic nature of the Equal Protection ruling in Bush v. Gore—not knowing the principle upon which it was based, or how far that principle extends to other cases not exactly identical to the one before the Court at the time—then one ought to be equally troubled by the prospect of a Sixth Circuit decision that is similarly idiosyncratic and “cabined” to the uniquely peculiar circumstances of the Ohio early voting case. Conversely, if one wants to unleash federal judges to find Equal Protection violations in whatever unique circumstances strike them as inappropriate, then one must embrace the “limited to present circumstances” aspect of Bush v. Gore as entirely appropriate and be prepared that this judicial methodology can continue to be used by Republican judges to favor Republican candidates just as much as it can be used by Democratic judges to favor Democratic ones.

For these reasons, if I were a judge on the Sixth Circuit panel assigned to the early voting case, I would be inclined to reject the temptation to affirm the district court’s injunction on the ground that a unique combination of factors justifies a finding of unconstitutionality here that is unlikely to serve as a precedent for any other situation. I say “inclined” because it would matter to me what my other colleagues on the panel thought. If two other judges with Republican backgrounds were prepared to affirm the district court’s injunction, I might well go along on the ground that the affirmance could not be considered a partisan move. But if only Democratic judges were prepared to affirm based on a “limited to the present circumstances” rationale, I would be nervous that partisan sentiments (even if unconscious) were motivating the ad hoc quality of the ruling.

To be clear, I do not like Ohio’s cutback in early voting from what it was in 2008. As I have written previously, a fair and nonpartisan system of early voting for Ohio this year would include at least one Sunday, even if not November 4. (It is worth observing, as I learned from my colleague Dan Tokaji, that Wisconsin’s nonpartisan Government Accountability Board eliminated early voting during the last few days before November 6, in order to enable local officials to prepare better for Election Day—a fact that goes a long way to undercutting the argument that to deny early voting on November 4 is necessarily an inherently partisan maneuver.) I must acknowledge, moreover, that there is still a chance that the absence of early voting in Ohio on November 3, 4 & 5 might make a difference in the outcome of this year’s presidential election, assuming the race tightens from where it is now and Democratic voters who would have cast ballots on those three days do not bother to find an acceptable alternative (either by mail, or a different early voting day, or on Election Day itself). Still, none of these policy objections to Ohio’s cutback in early voting is the same as saying that it deserves to be declared unconstitutional by the federal judiciary.

The provisional voting case is another matter. Here the poll worker’s mistake has caused the outright disenfranchisement of an eligible and registered voter who has done precisely what the government has asked the voter to do: to go to the voter’s correct polling place. This outright disenfranchisement of a valid voter at the hands of a government official, far from a modest cutback in an otherwise rather generous menu of voting options, is a denial of the right to vote that would seem to call for a federal court injunction pursuant to the Fourteenth Amendment. Since the 1960s, the U.S. Supreme Court has held that the right to vote, being fundamental, is protected by the Fourteenth Amendment against “invidious” and “arbitrary” infringements by state governments. Telling a voter that her ballot won’t count because, although she showed up at the right polling place and is entirely eligible to participate in this year’s presidential election, she was given the wrong ballot because the poll worker made a mistake as to which “precinct” her address is in—that severe injustice is appropriately labeled as “invidious” or “arbitrary” and condemned as unconstitutional.

To be sure, not every error by a government official that causes a valid voter’s ballot to be uncountable is capable of being remedied by the federal judiciary’s invocation of the Fourteenth Amendment. For example, as the State pointed out in its Sixth Circuit reply brief (at page 20), if a government official causes a valid voter’s absentee ballot to be postmarked after the deadline required by state law, that ballot cannot count even though the fault lies with the official rather than the voter. Imagine a situation in which a voter asks the official what the deadline is, and the official gives the voter the wrong information, and we know this from a “smoking gun” email from the official to the voter. The law requires that the ballot be postmarked by the day before Election Day, but the official erroneously tells the voter that it is okay if the ballot is postmarked on Election Day. This is egregious official error that results in the disenfranchisement of an eligible voter, but nonetheless is not capable of a federal court remedy. The reason is that the deadline is important: no one is entitled to cast a ballot after the polls close, and a ballot postmarked on Election Day might have been cast after the polls closed at 7:30pm.

What explains the difference between the disenfranchisement-due-to-missed-deadline example and the actual provisional voting case? The answer, I think, lies in the judgment that the government does not have a good enough reason to disqualify a ballot that was cast in the correct polling location on the ground that it was a wrong “precinct” ballot. The State claims that its division of voters into “precincts” is important, and historically this may have been true. When each “precinct” is a distinct geographical neighborhood, and voters vote according to the precinct in which they reside, with each precinct having its own distinct polling place—well, then government would be on solid ground claiming that, for a ballot to count, it must be cast in the correct precinct. But when the government itself consolidates several so-called “precincts” into a single polling location, the distinctiveness of each “precinct” loses much of its significance. It cannot be that important that a voter cast her ballot in Precinct A rather than Precinct B when the two precincts share the same polling place. The geographic separateness of the two precincts is obviously not enough to have them vote in different polling places. Therefore, if the voter goes to the correct polling place and is a valid voter, then it cannot be a sufficient reason to disqualify the voter’s ballot that the voter didn’t vote in the correct geographically separate “precinct”—at least not when the government officials at the polling location were the ones who made the mistake of giving the voter the ballot corresponding to the incorrect “precinct” for the voter’s address.

In this situation, the “precinct” requirement cannot rise to the same level of importance as the postmark deadline for absentee ballots. The deadline really matters, and that is why a ballot postmarked after the deadline cannot count even if government error is responsible for missed deadline. But the division of voters into technically different “precincts” is largely irrelevant insofar as several precincts share the same polling place. When the voter arrives at the correct polling location, the voter has satisfied the legitimate geographic concerns that the State may have regarding voters casting ballots in the right place. If the State has a desire to subdivide voters geographically even more than the boundaries that separate one polling place from another, then it should be up to the government officials to get it right with respect to this further subdivision. But if the government’s workers cannot figure out this additional level of geographic subdivision when a voter shows up at the right polling place, then the government should not be permitted to disqualify the voter’s ballot because of the government’s own error with respect to this geographically arcane—and inconsequential—matter.

This point, moreover, explains why the federal court can require the counting of a “wrong precinct” ballot only with respect to the items on the ballot for which the voter, based on her address, is entitled to vote. If there are indeed any “down-ballot” items that are precinct-specific, then the voter’s ballot cannot count for those items, notwithstanding the poll worker error. Such precinct-specific “down-ballot” items are like the postmark deadline: they actually matter and must be enforced, even at the cost of disenfranchisement. (By erroneously giving the voter the “wrong precinct” ballot, the poll workers might have deprived the voter from precinct-specific items on the “correct precinct” ballot that the voter should have received.) But for any item on the ballot for which the specific precinct of the voter is irrelevant—from President and U.S. Senator and other statewide races on down to county commissioner and the like—there is no geographically compelling reason to disqualify a ballot of a valid voter who showed up at the correct polling place, especially when the poll workers there could not figure out which precinct was the correct one for the particular voter.

The same point also explains why the plaintiffs in the provisional voting case overreach insofar as they argue that a ballot should count even if the voter goes to the wrong polling place. Yes, government error sometimes may cause the voter to go to and cast a ballot at the wrong polling place. But being at the correct polling place, like postmarking an absentee ballot by the established deadline, is a requirement that actually matters. Therefore, the government is entitled to enforce the requirement even though the error of its own officials contributed to the voter’s failure to comply with the requirement. (The same point extends, too, to rules for signing a provisional ballot envelope. Poll worker error may cause a voter to fail to sign or otherwise improperly fill out a provisional ballot envelope, but if the missing information is necessary to establish or verify the voter’s eligibility—as a signature may well be—then the missing information is like the missed deadline for postmarking absentee ballots.)

Thus, if I were a judge on the Sixth Circuit, I would rule unconstitutional the disqualification of ballots cast by valid voters in the correct polling location, if the reason for the disqualification is that the poll workers erroneously gave the voter the wrong ballot for the voter’s assigned precinct. To write an opinion explaining this ruling, I would need to address some doctrinal matters of Fourteenth Amendment law that I haven’t heretofore addressed in this essay. For example, I would need to explain that the Fourteenth Amendment’s Due Process Clause, rather than Equal Protection, probably provides a firmer foundation for this ruling (since the State’s provisional voting law does not explicitly discriminate among “wrong precinct” ballots to be rejected), although the constitutional infirmity can also be understood as an Equal Protection violation (since the State, for ballot-counting purposes, is explicitly distinguishing between two types of ballots cast by valid voters at the correct polling location: (1) those that were subject to poll worker error and thus were “wrong precinct” ballots, and (2) those that were handled correctly by poll workers and thus were “correct precinct” ballots). I would explain also that it is no obstacle to this Fourteenth Amendment ruling that the poll workers are negligent, not willful, in giving voters “wrong precinct” ballots: it is the State’s intentional disqualification of these ballots without adequate justification when they are cast by valid voters in the correct polling place that gives rise to the Fourteenth Amendment violation. And I would need to explain that the conclusion of unconstitutionality follows from an application of the Anderson/Burdick/Crawford analysis that the U.S. Supreme Court has said that the federal judiciary should use to evaluate a state’s voting rules. But, bottom line, in applying that analysis, my ultimate judgment would rest on the conclusion that enforcement of precinct-based voting is not sufficient reason to disenfranchise a voter when several precincts share the same polling location and the voter goes to vote at that correct location but the poll workers make a mistake as to which precinct the voter belongs. Reaching this conclusion, moreover, would not invite (as the State contends) more ballot-counting litigation after Election Day, since this conclusion established in advance of Election Day would provide the appropriate ballot-counting rule for local election officials to apply afterwards.

What if my colleagues on the panel disagreed with this conclusion? Would I not potentially defer to their views, as I suggested I would do in the early voting case? No, here I would anticipate that my convictions are firm enough that I would stick to my conclusion regardless of a contrary position reached by my fellow judges—although, of course, I would always keep open the possibility of being persuaded by something that I had not yet thought of. Yes, I recognize that my distinction between (a) the missed postmarked deadline and (b) the correct-polling-location-but-wrong-precinct case, is not as objectively obvious as 2+2=4. Still, I think it is intellectually and jurisprudentially sound, rooted in the realities of what actually matters in the voting process, and objective enough to be a principled application of Fourteenth Amendment law as developed through the Anderson/Burdick/Crawford line of cases (as well as related ones, like Bush v. Gore itself). Of course, I could not guarantee that my fellow judges would see the case in the same way that I do, but I would be confident enough that my reasoning was principled and not partisan such that, if necessary, I would dissent from a contrary conclusion reached by my colleagues.

I am not a judge, of course, and all of us who are not Sixth Circuit judges will need to await the actual rulings in these two cases. The presidential election in Ohio may end up not to be close enough where either ruling, either way, makes a practical difference. But if it does end up that only about 1000 votes separate the two candidates apart from about 10,000 right-location-wrong-precinct ballots, then I hope that the election is decided as a result of counting rather than disqualifying these ballots cast by concededly eligible and registered voters. Better that the winner be declared as a result of the enfranchisement, rather than disenfranchisement, of these voters, when casting a “correct precinct” ballot is so trivial once these valid voters have arrived at the correct polling place (and the poll workers are unable to give these voters a “correct precinct” ballot). A victory based on the persnickety disqualification of these ballots, and thus the unwarranted disenfranchisement of these voters, does not seem worthy of being considered either democratic or honorable.

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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