This column by ACRU Policy Board member Hans von Spakovsky was published September 15, 2016 by The National Review.
Bad news for the Ohio Democratic party: On Tuesday, the U.S. Supreme Court issued a one-line order denying the party’s application for a stay in Ohio Democratic Party v. Husted — the eminently reasonable opinion recently issued by a panel of the Sixth Circuit Court of Appeals refusing to overturn changes in early voting and same-day registration rules enacted by the Ohio legislature.
For once, amid a recent rash of highly problematic opinions by federal courts on election issues including voter ID, early voting, and same-day registration, some common sense finally prevailed (although that may be simply because of a split vote on the Court; the order doesn’t say how the justices voted). All we know is that the attempt to get a stay failed after Justice Elena Kagan “referred” the request to the Court for consideration.
The decision that Democrats were attempting to stay in a George Soros–financed lawsuit was issued on August 23. It reversed a decision by a district-court judge that misapplied the law and misconstrued the facts. The Sixth Circuit held that reducing the number of early voting days from 35 to 29, and eliminating “Golden Week,” a six-day window in which Ohio residents could register and vote at the same time (same-day registration), was neither unconstitutional nor a violation of the Voting Rights Act.
In categorically rejecting claims made by the Ohio Democratic party that Ohio’s law violated the 14th Amendment, the Sixth Circuit commendably refused to follow the pattern of the federal courts that have ruled in favor of similar challenges to changes in early voting and same-day registration in other states. As the Sixth Circuit pointed out, even with “only” 29 days of early voting, Ohio is “a national leader when it comes to early voting opportunities.” This is “really quite generous” since the Constitution doesn’t require that any state give voters the ability to vote before Election Day. In fact, early voting is a relatively new development — Texas was the first state to allow early voting starting in the late 1980s and “as many as thirteen states offer just one day for voting: Election Day.”
Are we to believe that those 13 states are violating the Constitution, or that all of the states that did not have early voting for our entire history until the last three decades were violating the Constitution that entire time because they forced their voters to vote only on the Tuesday following the first Monday in November? In fact, it could be argued that allowing different periods of early voting in different states violates the Constitution, since Article II, Section 1 says, for example, that when it comes to presidential elections, while Congress may determine the “Time of chusing the [presidential] Electors,” that “Day shall be the same throughout the United States.”
Similarly, only about a dozen states allow same-day registration. Yet are we supposed to believe, as the district-court judge erroneously ruled (and as other judges have ruled in other cases), that not allowing same-day registration is unconstitutional or a violation of the Voting Rights Act? Again, that claim has no basis whatsoever in law, the Constitution, or the extensive history of how we administer elections in this country. And yet those are the types of rulings we get from federal judges in places such as Ohio and North Carolina.
Texas was the first state to allow early voting starting in the late 1980s.
As the Sixth Circuit said, Ohio’s changes apply “even-handedly to all voters, and, despite the change, Ohio continues to provide generous, reasonable, and accessible voting options to all Ohioans.” What the challengers to these changes are trying to do is establish “a federal floor that Ohio may add to but never subtract from.” Such a legal holding would “create a ‘one-way ratchet’ that would discourage states from ever increasing early voting opportunities, lest they be prohibited by federal courts from later modifying their election procedures in response to changing circumstances.”
The Sixth Circuit accepted that Ohio’s interest in making these changes — preventing fraud, decreasing costs, reducing administrative burdens, and enhancing voter confidence — were perfectly legitimate state interests. Changes in early voting and same-day voter registration rules do not infringe the “fundamental right to vote” and federal courts should exercise “judicial restraint.” However, exercising judicial restraint is something that other federal courts are certainly not doing on these issues.
Unfortunately, the split in the Supreme Court on these issues that led to the Ohio Democratic party not getting a stay in this Ohio case also led to North Carolina not getting a stay of an unjustified decision by a panel of the Fourth Circuit that threw out North Carolina’s voter-ID law, its elimination of same-day registration, and its reduction of early voting from 17 to ten days — just more evidence of how vitally important the issue is of who will be picked to fill the empty seat on the Supreme Court.
That decision will decide whether, as the dissent said in the recent Fifth Circuit decision that knocked out part of Texas’s voter-ID law, Veasey v. Abbott, we take “another step down the road of judicial supremacy by potentially subjecting virtually every voter regulation to litigation in federal court.” Such an outcome would “disable the working of the democratic process, which for all its imperfections, best represents ‘we the people.’”