UPDATED: Today Justice Elena Kagan asked the state to file a response to the request by Ohio Democrats. The response is due on Thursday, September 8, by 3 p.m. Eastern.
One day after the Supreme Court rejected North Carolina’s request to allow the state to enforce parts of its controversial election law, including the requirement that all voters present a government-issued photo ID, in the November elections, the issue of voting rights once again returned to the Supreme Court in an emergency appeal. This time the request came from Democrats in Ohio, which is once again likely to be a battleground state in the upcoming elections. Yesterday they asked the Court to bring back the state’s “Golden Week” – a five-day early voting period during which voters can both register to vote and vote on the same day.
The state implemented Golden Week in the wake of the 2004 presidential elections, when many voters encountered long lines at the polls that resulted in waits of up to twelve hours to vote. Ohio Democrats say that Golden Week “made a major contribution in alleviating congested voting lines and encouraging turnout” – especially for African Americans, who may face more challenges, because of constraints on their time and resources, in voting on Election Day itself.
But in 2013, the Republican-controlled legislature enacted a law that reduced the number of early voting days from thirty-five to twenty-nine, which would eliminate Golden Week. Ohio Democrats challenged the law, arguing that it would disproportionately affect African Americans and therefore violated both the U.S. Constitution’s Equal Protection Clause – which requires states to refrain from treating individuals or groups of people in similar circumstances differently – and Section 2 of the Voting Rights Act, which bars “voting practices and procedures that discriminate on the basis of race.”
In May a federal district court agreed with the challengers and barred the state from enforcing the elimination of Golden Week. But a divided panel of the U.S. Court of Appeals for the Sixth Circuit reversed that ruling on August 23. Describing Ohio as a “national leader when it comes to early voting opportunities,” the court of appeals rejected the Democrats’ claims as an “astounding proposition.” Emphasizing that many states do not offer early voting at all, the court suggested that the challengers’ arguments would “create a ‘one-way rachet’” that would take away any incentive for states to allow early voting, “lest they be prohibited from federal courts from later” changing those opportunities. Eliminating Golden Week, the court of appeals concluded, would at most impose a “minimal” additional burden on African Americans, particularly when the state would still offer, “objectively viewed, a generous early voting schedule.”
Yesterday Ohio Democrats took their case to the Supreme Court, asking it to intervene and preserve Golden Week for the November elections. Golden Week, the Ohio Democrats told the Court, “has played an exceptional, historic role in promoting voter registration and turnout in the past two Presidential elections, especially in minority communities.” The decision by the court of appeals ignored that role, they continued, as well as the extent to which the heavy use of Golden Week by African Americans is “a direct legacy of Ohio’s history and discrimination and election maladministration.”
The Ohio Democrats added that it is too close to the start of Golden Week – which would have begun in mid-October – to shut it down now. This is particularly true, they contended, when the state could have asked (but did not) the court of appeals or the Supreme Court to block the district court’s ruling in June or July. As a result, plans for Golden Week went forward, and some election boards are still advertising a longer early voting period, including Golden Week. “Pulling the plug on Golden Week now,” the Democrats argued, “will result in precisely the kind of confusion and ‘conflicting orders’” that the Court’s election law precedents warn against. By contrast, the Democrats contended, the state will suffer no harm from allowing Golden Week to go forward as scheduled. For example, they said, there is no danger of voter fraud, because state officials would still have plenty of time (the rest of the early voting period) to verify a voter’s eligibility.
The Democrats’ request will go to Justice Elena Kagan, who is responsible for emergency appeals from the geographic region that includes Ohio. She can act on the appeal on her own or refer it to the full Court, as Chief Justice John Roberts did in the recent North Carolina case. In the short term (perhaps as soon as today), she could also ask the state to respond to the Democrats’ request.