UPDATE 6:10 p.m. Justice Elena Kagan turned down without comment a separate request by Ohio’s legislature for the same kind of order postponing some of the early voting options. The legislature has been allowed into the controversy only as a “friend of the court,” not as a full party. Kagan chose to act on that request without referring it to her colleagues. Meanwhile, Ohio Secretary of State Jon Husted has issued this new directive on when early voting will be allowed.
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With just sixteen hours before polling stations were to open in Ohio, the Supreme Court on Monday afternoon blocked voters from beginning tomorrow to cast their ballots in this year’s general election. By a vote of five to four, the Justices put on hold a federal judge’s order providing new opportunities for voting before election day, beyond what state leaders wanted.
The order will remain in effect until the Court acts on an appeal by state officials. If that is denied, then the order lapses. It is unclear when that scenario will unfold. The state’s petition has not yet been filed formally.
The practical effect of the order will mean that, at the least, early voting will not be allowed this week — a period that supporters of early balloting have called “Golden Week.” That permits voters to register and cast their ballots on the same day.
Depending upon the timing of the state’s filing of a petition for review and the Court’s action on it, Monday’s order may also mean that early voting will not be permitted on most Sundays between now and election day, November 4, and will not be permitted during evening hours — that is, after 5 p.m.
Early voting during “Golden Week,” on Sundays, and in evening hours are the opportunities that civil rights groups have said are most important to black and low-income voters and the homeless. State officials, however, contended that those arrangements would raise the risk of voter fraud, and would cost too much for county election boards to implement.
Monday’s order had the support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito,, Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas, although their votes were not noted in the order. It would have taken five votes to support such an order.
Dissenting were Justices Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. They would have denied the request of the Ohio attorney general and secretary of state to postpone the decision in favor of more early voting, a ruling early this month by U.S. District Judge Peter C. Economus of Columbus.
The judge’s order had been upheld by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, but that ruling no longer controls the case now that it has moved to the Supreme Court. A plea by state officials and the Ohio legislature for the Sixth Circuit Court to reconsider the case en banc is no longer necessary to block the early voting.
The Supreme Court could have hurried along the process of reviewing the case. Ohio officials had suggested that the Court might treat their request for a delay as a formal petition for review, and to grant it. The Court did not do that. It left it to the state to file a new petition, as such, and when that is done, the Court would choose whether to review it.
Even if the state moves quickly to file a petition, and even if the Court grants review and gives it very rapid review, those actions may not come in time to save for this year the early voting opportunities that civil rights groups had sought and that Judge Economus had granted.
As a result of the Court’s new order, Ohioans will have twenty-eight instead of thirty-five days on which they may cast their ballots early for the general election. The legislature had ordered that reduction from a 2005 law’s provisions. The bar to most Sunday and evening early voting was imposed by Secretary of State John Husted. Both he and the state attorney general, Michael DeWine, are Republicans.
It is generally assumed — and often borne out by actual vote counting — that black, lower-income and homeless voters are the ones who most often take advantage of early voting, because they have less opportunity to do so on election day. Sunday voting is said to be very important to black voters, who are organized in groups to go to the polls for early voting after Sunday church services — the so-called “Souls to the Polls” campaign. That is the group of voters that tends to vote most often for Democratic candidates.
One of the arguments that Ohio officials have made, and made again to the Supreme Court, is that Ohio is out in front of most states in the number of early voting days it allows, and that should be sufficient. The expansion of early voting in Ohio was adopted by the state legislature nine years ago in the wake of major problems of delay at the polls in the 2004 elections.
The case as it is now unfolding before the Supreme Court involves major constitutional issues, especially on how far the Fourteenth Amendment’s guarantee of legal equality applies to early voting opportunities, and how courts are to apply Section 2 of the 1965 Voting Rights Act. Section 2 has become newly important to challengers of voting restrictions since the Supreme Court last year struck down a key part of the 1965 Act, the part that triggers federal government veto power over changes in state election laws that may be racially discriminatory.
In a series of court battles in recent years, restrictions on early voting opportunities and requirements for voter IDs have emerged most prominently.
The Supreme Court may next face a case from Wisconsin focusing on the voter ID question. The U.S. Court of Appeals for the Seventh Circuit has allowed that ID requirement to be in effect for this year’s election.
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