In a stunning opinion, the Sixth Circuit just concluded in Ohio State Conference of the National Association for the Advancement of Colored People v. Husted (PDF) that the State has held illegal elections from 1803 until 2005 that unconstitutionally burdened the right of Ohioans to vote.
So let's set aside the snark for a moment. What did the court say?
In 2005, the Republican-controlled Ohio legislature enacted a series of election changes in House Bill 234. It developed no-fault early voting and allowed for early in-person voting at least 35 days before the election. Because voters must register at least 30 days before an election, there was a five-day period in which a voter could register to vote and vote on the same day.
In 2014, the Republican-controlled Ohio legislature enacted additional changes via Senate Bill 238, including moving the first day of early voting to the day after the close of voter registration--essentially, 28 days of early-voting. (Additionally, the governor had instituted standardized early in-person voting hours across counties, the focus of additional litigation.)
So prior to 2005, Ohio had zero days of early in-person voting; until 2014, it was 35 days; and the legislature amended that to 28 days.
That, the Sixth Circuit says, is unconstitutional.
It concludes that this cutback "significantly burdened" African American, lower-income, and homeless voters, so the law was subject to heightened scrutiny.
On what basis? The court notes that African Americans, lower-income individuals, and the homeless are distrustful of voting by mail; the complexities of voting by mail complicate efforts from these affected groups; and that lower-income voters' reliance on public transportation and wage-based jobs would create difficulties in voting in the 28-day period instead of the 35-day period.
So, it logically follows, that must mean that Ohio's decision to have zero early voting days from 1803 until 2005 was also unconstitutional. Those reasons, after all, certainly have applied for centuries to the same groups (with perhaps concessions to the nature of "public transportation" in the early nineteenth century).
Strictly speaking, I suppose, the Equal Protection Clause wasn't enacted until 1868, and the Supreme Court's opinion in William v. Rhodes subjecting election laws to some kind of Equal Protection analysis didn't come down until 1968.
But the court also notes that these groups "disproportionately have used in past elections the EIP voting times that . . . SB 238 eliminated, and that the number of individuals who have previously voted during these periods was not insignificant."
The court's opinion is cagey as to the fact that Group X used Procedure Y frequently. If we eliminate Procedure Y, what happens to the votes of Group X? Presumably, some of that group would find other opportunities to vote. But the court explains why the existing alternatives are insufficient for the reasons articulated (as would have been the case from 1803 to 2005).
And what if Group Y actually uses those other opportunities? It then explains, "the district court properly held that whether voters might adjust to vote during a different time in EIP voting such that overall turnout might not be affected 'is not determinative of the Equal Protection analysis.'" (Slip op. at 19.) Which is a pretty broad claim--one the court uses citing a few scraps from footnotes, concurrences, and dissents to justify. And, in fact, these scraps stand for a very different proposition--one need not "absolute certainty in predicting how many voters would be prevented from voting by laws that impose burdens on the right to vote," but that's quite a different claim than saying that one need not show any effect on voter turnout.
To say it's not determinative is one thing. But if it turns out that voter turnout is unaffected--or is, at best, highly speculative--what, precisely, is the burden? That would suggest, I think, that the burden is slight. That is, if the regulation has no discernible effect on turnout, it's very hard to say that the burden is "significant." The kinds of burdens that rise to the level of "severe" are the kinds that essentially prohibit ballot access, starting with Williams v. Rhodes and moving onward. This is a how hot was it problem--except the court expressly finds that how hot doesn't matter, which is a very different claim from saying that the precision of determining the heat does not matter.
And this portion of the opinion concludes with one of the most grotesque misreadings of Bush v. Gore I've seen. In footnote 4, it explains, "Moreover, while Bush v. Gore did involve disparate treatment, rather than burdens on the fundamental right to vote, we nonetheless find its motivating principle instructive in the present case given that the Equal Protection Clause can be triggered by either disparate treatment or burdens. That is, '[h]aving once granted the right to vote on equal terms"--such as expanding early voting opportunities--'the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another'--for example, by making it substantially harder for certain groups to vote than others. Bush v. Gore, 531 U.S. at 104-05."
If Bush v. Gore stands for any broader proposition beyond the Florida election in 2000, it is not for this.
The per curiam opinion expressed concern that county election boards, and the Florida judiciary, were arbitrarily changing the "value" of a "one person's vote" by instituting different recount procedures. So set aside the fact that it's dealing with a "vote"--that is, a ballot cast, and not with pre-election day opportunities. Even a broad interpretation of Bush v. Gore might apply it to those situations.
Instead, the fundamental problem in Bush v. Gore is the "later . . . treatment" in the context of that very election. Voters went to the polls in Florida in 2000 with Procedure A in place; after the election, Procedure B was instituted. That, to the per curiam majority, was the fundamental problem (whether one agrees or not).
For the Sixth Circuit to extend this principle to all changes ever made to any election system is a sweepingly broad interpretation of Bush v. Gore, one that I don't think can find any real support in the text of the opinion.
But really, this opinion stands for the broader proposition that once a State enacts a voting law, it is almost impossible to amend it in a way that places any change in burden on the people who took advantage of the process in that law.
It might be that SB 238 is a great law, or a terrible law. It might be that this law empowers a lot of voters who'd have no opportunity to vote, or it has no effect on turnout. I don't know. And that's my problem--I can't tell from this record. From the demands of the Court's Equal Protection Clause jurisprudence, I'd probably let the law stand. And the court tortures the law because of the utter lack of meaningful facts that support some kind of finding of burden.
The opinion goes on to some interesting Voting Rights Act Section 2 challenges (an entirely different and, I think, even more complicated analysis) and evaluates the executive order, but I wanted to focus on this narrow slice of the opinion--the slice that cannot possibly mean what it says to anyone in legal practice. As Rick Hasen notes, "If 28 days is unconstitutional and a voting rights violation, what does this say about places like New York, which offer no early voting?"
Or, as I wonder, what about the first 200 years of Ohio's history?