2014

A Comparison of North Carolina and Ohio (and Wisconsin)

by

Main points: (1) Ohio’s elimination of Golden Week has some differences than NC’s elimination of same-day registration throughout all of early voting; and (2) NC’s reversion to a rule disqualifying out-of-precinct ballots has an outright disenfranchising effect lacking in Ohio’s case, but present in Wisconsin’s.

Of the three election administration cases that have made it to the U.S. Supreme Court in the past couple of weeks—Ohio’s, Wisconsin’s, and North Carolina’s—I find North Carolina’s the most difficult.  I can see the Court granting a stay, as it did in the Ohio case, because the Fourth Circuit made a late change in North Carolina’s voting procedures.  Indeed, the Fourth Circuit’s October 1 ruling, which reversed the district court’s denial of a preliminary injunction, came almost a month after the Ohio preliminary injunction, entered on September 4.  Given the Supreme Court’s previous admonition against such last-minute judicial disruption to a state’s voting procedures, the Fourth Circuit’s October 1 order would appear particularly vulnerable, and indeed Judge Motz (a Clinton appointee) dissented from the Fourth Circuit’s ruling essentially because of this timing concern.

Like Judge Motz, however, I think the underlying merits of the case may be much trickier than the timing issue alone would suggest.  The underlying merits, at least has the case has developed to this point in its preliminary injunction posture, primarily concern the application of section 2 of the Voting Rights Act to recent changes in a state’s voting procedures.  The two rule changes that the Fourth Circuit preliminarily enjoined were (1) the elimination of “same day registration” during North Carolina’s early voting period and (2) the reinstatement of a requirement that a provisional ballot be cast in the voter’s correct precinct in order for any vote on the ballot to count.

The first rule change makes the North Carolina case appear, at least superficially, similar to the Ohio case.  Ohio eliminated “Golden Week,” a five-day period at the beginning of early voting in the state during which it had been possible to register and vote at the same time.  Despite this superficial similarity, however, there are factual differences that ultimately may prove important on the merits.  Ohio’s “Golden Week” was an anomaly in the context of that state’s overall early voting process; during the bulk of early voting pre-registration had been required.  Moreover, this anomaly had been the result of an accidental legislative oversight: the five-day overlap between the end of registration and the availability of absentee ballots had existed when absentee voting in Ohio had been a very limited, excuse-based system; then, when Ohio moved to no-excuse absentee voting and decided to permit in-person absentee voting (which the world calls “early voting”), Ohio suddenly realized that it had inadvertently created a “Golden Week” during which was possible to register and in-person absentee vote, without an excuse, at the same time.  By contrast, North Carolina had made a deliberate policy choice to permit same-day registration throughout its early voting period.  Thus, Ohio’s subsequent legislative decision to jettison an inadvertent anomaly, so that its entire early voting period is consistent with the state’s overall policy goals concerning registration and early voting, is arguably a very different kind of statutory correction than North Carolina’s decision to reverse course on the entirety of its same-day registration policy.

There is also the issue of partisanship.  As I discussed previously, Ohio’s new early voting rules are derived largely from a recommendation of the bipartisan Ohio Association of Election Officials.  Although my Moritz colleague Dan Tokaji sees the structure of OAEO as flawed insofar as it over-represents low-population rural counties and under-represents high-population urban counties, it nonetheless is a bipartisan body that negates the charge that Ohio’s new rules are a thoroughly partisan manipulation of the electoral process designed to rig the rules in one party’s favor.  By contrast, I did not see any evidence in the North Carolina case to inoculate that state from the charge of blatant partisanship in manipulation of the voting rules.

The second rule change in North Carolina, concerning out-of-precinct ballots, presents the risk of outright disenfranchisement not associated with an elimination of same-day registration.  Under the new North Carolina rules, any ballot cast in the wrong precinct will not count.  Period.  There is no way for the voter to validate any portion of that ballot, even with respect to statewide or countywide offices for which all precincts are eligible to participate in the election.  Thus, a voter who mistakenly is told to vote a provisional ballot in the wrong precinct—it happens—will be disenfranchised with no remedy under state law.  By contrast, a voter who registers in advance of the registration deadline will be able to vote a ballot that counts, either during early voting or on Election Day.  Thus, the consequence of North Carolina’s rule change concerning out-of-precinct ballots is much more severe to any of the adjustments to early voting, either in North Carolina or Ohio.  In this respect, the disenfranchising consequence of the new disqualification of out-of-precinct ballots in North Carolina makes that case more like the Wisconsin one concerning the addition of a new stringent voter identification requirement.

This fact alone does not make the new disqualification of out-of-precinct ballots in North Carolina a violation of section 2 of the Voting Rights Act—just like a new voter ID rule does not automatically violate section 2.  But insofar as the new rule causes a disproportionate disenfranchisement of minority voters, the stakes are obviously much higher and directly implicate the primary concerns of the Voting Rights Act.  The North Carolina case thus raises a key question about the proper interpretation of section 2.   What more (if anything), beyond the discriminatory effect of disenfranchising more minority than nonminority voters, must a plaintiff show in order to prevail on a section two “vote denial” claim?

North Carolina is hardly the only state that disqualifies out-of-precinct provisional ballots.  Florida also does, as does Ohio (except to the extent constrained by Sixth Circuit precedent concerning “right church, wrong pew” ballots cast in the correct multi-precinct polling location).  But, unlike North Carolina, neither Florida nor Ohio enacted a law that permitted the counting of out-of-precinct ballots before reverting back to a practice of disqualifying them.  Assuming that Florida’s and Ohio’s rules disproportionally disenfranchise minority voters as much as North Carolina’s, are they equally unlawful under section 2 as North Carolina’s?  Or is the reversionary rule change a relevant factor in calculating liability under section two?  If so, then does not section 2—at least to that extent incorporate a kind of anti-retrogression principle—despite protests to the contrary?

These are vexing questions for which there are no obvious answers, which is why I find the North Carolina case particularly difficult on the merits.  It raises, to my mind, profoundly important questions about the proper interpretation of section 2, a hugely significant statute to our national identity as a democracy committed to equal voting rights.   It may be surprising that such an iconic statute about to celebrate its fiftieth birthday lacks a clear standard for determining liability under its most important provision.  Yet that is the situation today.  It will be necessary for the Supreme Court to clarify the standard, either in the North Carolina case or one like it.

But the time for that clarification is still down the road a bit.  Not now, during the flurry of these emergency stay petitions.  Meanwhile, like many others, I will watch the development of the records in the pending cases, including North Carolina’s, as well as the development of the briefing on the merits of what that clarifying standard should be.  Maybe any state that disqualifies out-of-precincts ballots violates section two if that disqualification causes disproportional disenfranchisement of minority voters, and it does not matter whether this disqualification rule is a new, old, or reversionary law?  Maybe this kind of discriminatory disenfranchisement violates section 2 only when it is the consequence of new or reversionary laws, but longstanding unchanged rules are somehow protected from section 2 liability, at least absent some showing of racially discriminatory intent?   Or maybe liability hinges in part on the extent to which a state has been a bad actor in the past, so that North Carolina’s history of racial discrimination will condemn current practices for which there is no showing of intentional discrimination?  If so, then the same disproportional disenfranchisement of minority voters may be permissible under section two in a northern state, like Massachusetts or Michigan, which lacks the same segregationist history as a southern state, like Florida or North Carolina.  Although this interpretative approach would seem to run counter to the Court’s recent decision in Shelby County, perhaps it is an option available under section 2 even though it was not under sections 4 and 5.

North Carolina might end up being decided as a special case insofar as it involves a package of rule changes that should be evaluated as a package rather than as a series of separate changes.  The “totality of circumstances” inquiry that Congress explicitly built into section 2 would seem to permit, and perhaps even require, that sort of analysis.  But at this juncture, I wish to leave my own thinking on this case as undecided and tentative, while watching how it and the others unfold.

Changing Voting Rules After Ballots Are Cast

by

To disqualify absentee ballots already cast based on a judicial change in the applicable rules for counting those ballots violates a Due Process principle articulated in Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978), among other precedents.

Wisconsin’s voter ID litigation is now in the U.S. Supreme Court, on an emergency application to vacate a stay granted by the Seventh Circuit.  The application presents powerful arguments on the “equities” of the current Wisconsin situation, as did the five-judge dissent in the Seventh Circuit (one short of the number necessary to overturn the circuit panel’s ruling).  It is worth noting also that the five dissenters were a bipartisan group in terms of their appointments to the bench.  Judge Rovner, one of the dissenters was appointed by President George H.W. Bush, and Judge Posner, another dissenter, appointed by President Reagan; the other three dissenters were appointed by Democrats.

The main “equity” present in the Wisconsin case, which was absent in the recent Ohio case—where the Supreme Court itself stayed a preliminary injunction that barred a state’s enforcement of voting rules—is the serious risk of actual disenfranchisement.  Wisconsin voters who lack the required ID quite likely will be unable to obtain one before Election Day, and prior to the Seventh Circuit’s stay had been told by the state’s election officials that they would not need one for the upcoming November election.  The evidence indicates that Wisconsin’s administrative infrastructure lacks the capacity in just one month to provide the necessary ID for all the registered voters without one.  Those facts present a strong reason not to reinstate the previously blocked ID requirement at this point.    Why the Seventh Circuit waited until September to stay an injunction entered in April is not adequately explained or justified and, in my judgment, affects the balance of the equities in the case.

By contrast, in Ohio, for reasons I’ve discussed previously, eligible voters did not face a serious risk of actual disenfranchisement as a result of that state’s legislative changes in its voting rules.  True, Ohio voters faced more inconvenience as a result of those changes (fewer days and hours for early voting, as well as the loss of the so-called “Golden Week,” when it was possible to register and vote at the same time).  But not the kind of outright disenfranchisement that Wisconsin voters without the required ID face.  (Rick Hasen also makes this point.)  The court-ordered September alteration of voting procedures in Ohio was not warranted by the balance of relevant considerations.  Thus, the same “equitable” considerations that called for letting Ohio implement its new rules without judicial interference in September calls for keeping in place the April injunction applicable to Wisconsin without September unsettling by the Seventh Circuit.

There is one more crucial point about the Wisconsin case that has not yet been fully developed.  As a factual matter, the emergency stay application observes that absentee ballots have been already been cast based on a rule in place (per the April injunction) that the new voter ID requirement did not apply.  The Seventh Circuit’s reinstatement of the ID requirement now makes those absentee ballots void and uncountable unless the voters come forth with the required ID—a requirement not in effect at the time when they cast those ballots.  Indeed, the instructions that these absentee voters received with their ballot did not alert them to the need to provide the required ID.  The stay application says that to disenfranchise these absentee voters “after the fact” based on a change in the rules since they cast those ballots would be “unconscionable” (page 14)—unconscionability being a potent “equitable” factor.

But it would be more than unconscionable.  It would be unconstitutional.  The Due Process Clause of the Fourteenth Amendment has been properly interpreted to bar changes in the rules for counting ballots after they have been cast.  The leading case, from the First Circuit, is Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978).  It, too, involved absentee ballots.  Rhode Island election officials had made absentee ballots available to voters.  After the ballots had been cast, the state supreme court ruled that these voters should not have received those ballots.  (It was a primary election, and the state court said absentee ballots were available only in general elections.) Too late, said the First Circuit.  It violates Due Process to give voters ballots telling them they will count if cast and then, after they are cast, say “surprise” they won’t count after all.

This principle, which has been applied in subsequent cases—see, for example, Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995)—seems directly applicable to the current Wisconsin situation.  The affected Wisconsin absentee voters cast their ballots with one set of rules in force at the time.    These voters had a reasonable expectation that their ballots would count as cast if they complied with those rules then in force.  To change the rules for counting ballots after they have been cast seems to be one of the most dangerous practices in the administration of an electoral democracy—which is precisely why such a rule-change has been held to violate Due Process.

I did not see a citation to these Due Process precedents in the Wisconsin emergency stay application, or an explicit reference to Due Process or the Constitution.  Only to the idea of unconscionability.  But an even stronger reason to vacate the stay granted by the Seventh Circuit is that this stay, given the specific facts applicable to the absentee voters, would itself violate the Due Process principle articulated in Griffin v. Burns and similar cases.

An Ominous Supreme Court Decision

by

By Daniel P. Tokaji

Anyone who cares about the right to vote should be very concerned by yesterday’s 5-4 U.S. Supreme Court decision in Husted v. NAACP . The one-paragraph stay order effectively stops same day registration in Ohio, which was to start today, and reduces the early voting period. The evidence showed that these voting opportunities were heavily used by African American and poor voters, who will be disproportionately burdened by the cuts. Even more disconcerting, however, are the implications of yesterday’s decision for the future of the right to vote.

In layman’s terms, here’s what happened: Ohio got caught with its hand in the cookie jar, and the Supreme Court let them eat the cookies. The state’s Republican legislature eliminated voting opportunities used mostly by Democratic-leaning voters, offering flimsy justifications for the changes. Conscientiously applying existing precedent, the lower courts blocked these voting restrictions, but the five most conservative justices on the Supreme Court allowed them to take effect, without explanation.

The Supreme Court’s action is unprecedented. I can’t think of any other case in which the Court has put the brakes on voting the day before it was to begin. The order is disruptive, changing the rules around which voters, candidates, parties, and election officials have budgeted and planned for weeks. The order is also unnecessary. Contrary to the state’s claim, there was no “emergency” from following the voting rules which had been in place for multiple election cycles.

The only silver lining in yesterday’s ruling is that the Supreme Court didn’t issue an opinion on the merits. It didn’t decide the NAACP’s claims that Ohio’s voting restrictions violate the Constitution and Voting Rights Act. That, however, should give small comfort to voting rights advocates.

Even before this case, the conservative majority on the Supreme Court has shown that it is no friend to voting rights. The most recent indication was last year’s decision in Shelby County v. Holder, striking down a key component of the Voting Rights Act. Unfortunate as that decision was, yesterday’s ruling may portend something even worse.

It’s still possible that the Supreme Court will decide the Ohio case on the merits. If it does, further cutbacks to voting rights – under the Constitution and the Voting Rights Act – are likely. On this point, I quite agree with Rick Hasen (despite our disagreement on the merits in Husted v. NAACP). Even if the Court doesn’t rule take the Ohio case, it could decide a case coming out of North Carolina, Texas, Wisconsin, or some other state. Voting rights advocates should be concerned, and surely are, about the prospect of Supreme Court review in any of these cases.

Back in 2008, when the Supreme Court upheld Indiana’s voter ID law in Crawford v. Marion County Election Board, I said: “it could have been worse.” Although I disagreed with the outcome of that case, the balancing test articulated by a majority of justices in that case was reasonable, allowing the burdens of voting restrictions to be weighed against the benefits to the states. Lower courts have used that standard to stop the worst instances of partisan manipulation of voting rules, in Ohio and elsewhere. Yesterday’s ruling is reason to fear that the Supreme Court may tighten the screws on the lower courts, making it more difficult for them to protect the right to vote.

In other words, it could get worse.

 

* Disclosure: I served as counsel for plaintiffs in Project Vote v. Madison County Board of Elections, which resulted in a court order keeping the window for same day registration and early voting open in the 2008 election. I am not involved in the current litigation.

Why the Supreme Court Shouldn’t Intervene in Ohio

by

By Daniel P. Tokaji

Briefing is now complete in the U.S. Supreme Court on Ohio’s emergency motion to stay the district court injunction restoring the rules regarding same day registration and early voting that existed before legislation enacted earlier this year (SB 238). In a previous post, I explained why the district court and Sixth Circuit panel’s rulings were faithful applications of legal precedent requiring close attention to the context in which restrictions on voting are enacted. This post explains why it would be unwise and disruptive for the Supreme Court to change the rules now – now literally on the eve of an election — responding to comments that my colleague Ned Foley posted yesterday.

I start with an issue to which the State’s and plaintiffs’ briefs properly devote considerable attention: the balance of equities. Here, the parties mostly agree on what’s happened, though they characterize it quite differently.

SB 238 eliminated same day registration and early voting during “Golden Week,” the period beginning 35 days before the election – this coming Tuesday – and ending the following Monday. The district court’s injunction, issued on September 4, restored same day registration and early voting during this period. Social science research, including evidence introduced in this case, shows that same day registration is associated with increases in participation. The injunction also restores weekday evening and Sunday early voting but, in my view, its preservation of the narrow but important window for same day registration and early voting is most significant.

Although the state characterizes the preliminary injunction as “last minute,” it’s been over three weeks since the district court’s order restored the rules for same day registration and early voting that had existed for multiple election cycles before this year. Tellingly, when the Sixth Circuit denied a stay on September 12, the State didn’t ask for a stay from the Supreme Court. Why not, if the situation were really so urgent? There’s no good explanation in the State’s briefing. The fact that the state didn’t seek an immediate stay from the Court two weeks ago belies its claim that there’s a genuine emergency now.

Most significant, the State can’t show that any harm would flow from allowing Ohio citizens to register and vote starting 35 days before the election, as they’ve been doing for years. The lower courts found that there would be a minimal burden on Ohio counties from following the same rules that had been in place since 2005. And the record doesn’t support the State’s claim needs more than the month it has to prevent fraud by early voters.

The only real crisis would occur if the Court actually granted the relief the State seeks. That really would change the rules on the eve of an election – exactly what the Court counseled against in Purcell v. Gonzalez. Everyone, from election officials to the parties to voters, is now expecting that same day registration and early voting will begin tomorrow. It would throw a monkey-wrench into everyone’s plan’s to change them at this late date.

Turning to the merits, the parties’ real difference is over the strength of the evidence supporting their constitutional and statutory claims. Professor Foley’s comment focuses primarily on the constitutional merits. I think it’s fair to say that he and I generally agree on the proper role of federal courts in adjudicating constitutional claims regarding the right to vote. As a matter of theory, we think that courts should guard against the excessive partisan manipulation. We disagree, however, over whether the constitutional line was crossed in this case.

As a formal matter, the Ohio legislature’s decision was a paragon of partisanship. It was enacted on a party-line vote, with Republicans supporting the restrictions on same day registration and early voting and Democrats opposing them. The fact that restrictions on voting were adopted on party-line vote doesn’t necessarily make them unconstitutional. But it does give good reason to question the legislature’s motives – to wonder whether the stated reasons are really pretextual, and thus to take a hard look at the evidence regarding benefits and burdens. As my earlier post explained, the existing standards under both the Equal Protection Clause and Section 2 of the Voting Rights Act allows just this sort of contextual inquiry.

In suggesting that Ohio’s new restrictions on early voting aren’t really as partisan as they appear, Professor Foley relies on the recommendations of the Ohio Association of Election Officials (OEAO). I’m glad that he mentions these recommendations, on which the State leans heavily, because they’re a good example of why context matters – and why it’s sometimes wise to be suspicious of groups touting themselves as “bipartisan.” While it’s literally true that its membership and board encompass Democrats and Republicans, as well as counties of different sizes, that doesn’t mean that this entity is structured so as to give equal regard to the interest of both parties’ voters.

The OEAO represents the interests of election officials, not voters. But even as an indication of election officials’ views, its position should be taken with a large grain of salt. For representation in the OEAO are on the basis of county, not on the basis of population. Thus, the OEAO would violate the principle of one person, one vote if it were a public entity. The OEAO’s position may represent a majority of county election officials; but it doesn’t necessarily represent the views of election officials whose counties encompass the majority of voters. And it’s those larger counties – which, not coincidentally, encompass most of the state’s Democratic-leaning voters – that same day registration and early voting are most important.

The OAEO recommendations thus aren’t much of a fig leaf for the State to hide behind. Of course, the OEAO is a private group that’s entitled to structure its membership and voting privileges as it pleases. And its executive director is a skilled lobbyist for whom I personally I have high regard. But it would be a mistake to think that the OEAO’s recommendations vitiate the partisan character of SB 238.

Professor Foley’s other main point on the merits is that a voting practice that’s constitutional in one state shouldn’t be deemed unconstitutional in another. Not necessarily. As he and I have jointly written in co-authored previous work, each state’s distinctive election administration rules and practices may be thought of as a sort of “ecosystem.” The effect of a new voting rule in one state — like restrictions on early voting – may not be the same as its effect in another state. Context matters, including both history and who’s burdened by a particular rule change.

The legal standards that exist under both the Constitution and the Voting Rights Act recognize this reality. The Equal Protection Clause test requires courts to weight the “character and magnitude” of the burden on voting against the precise interests put forward by the state. Those burdens and benefits may well vary from state to state, depending on how they affect the ecology of their election systems. Section 2 of the VRA requires courts to consider the “totality of circumstances,” including the social and historical context. Just as at-large elections may be illegal in some counties but not others, restrictions on early voting may be illegal in some states but not others.

Neither the Equal Protection Clause nor the Section 2 test provide bright line rules, so it should come as no surprise that reasonable minds sometimes differ on the application of the law to the facts – as Professor Foley and I do. But that’s not good reason for the Supreme Court granting review, much less for its issuing an immediate stay when voting is about to begin.

The Supreme Court certainly has the power to change existing law. It could replace the contextual tests that exist under both the Equal Protection Clause and Section 2 with bright-line rules. This resembles the debate in Crawford v. Marion County Elections Board, between the lead opinion authored by Justice Stevens which articulated a contextual balancing test, and the concurrence of Justice Scalia which argued for more of a bright-line rule. A majority of justices in Crawford favored a contextual balancing test, although they disagreed on how that test applied in that case.

As my earlier post explained, I think the existing legal standards are appropriate, allowing courts to consider circumstantial evidence of partisan manipulation. But even if one disagrees, that’s not a good reason for the Court to issue an emergency stay. The Court is entitled to change the law, just as it has the power to stay a lower court’s order, but it would be a mistake to do so on the eve of voting.

* Disclosure: I served as counsel for plaintiffs in Project Vote v. Madison County Board of Elections, which resulted in a court order keeping the window for same day registration and early voting open in the 2008 election. I am not involved in the current litigation.

Ohio Early Voting in the Supreme Court

by

Some thoughts on the legal issues involved.

In reading the Sixth Circuit opinion in Ohio’s early voting case now before the Supreme Court, I get the sense that the Sixth Circuit believes that the exact same set of early voting opportunities would be constitutionally permissible in other states, just not in Ohio. Indeed, the Sixth Circuit went so far as to say “the same law may impose a significant burden in one state and only a minimal burden in another.” (Slip. op. at 25.)

This view is perplexing. What is it about Ohio that makes its relatively generous provision of early voting opportunities unconstitutional, even though they would be constitutionally permissible elsewhere? In their Supreme Court brief, the civil rights plaintiffs stress Ohio’s horrible experience on Election Day in 2004. Because of the atrociously long lines at the polls on Election Day in Ohio in 2004, the plaintiffs assert that “the default Election Day-only system was no longer a constitutional option for Ohio.” (Page 32-33.)

I entirely accept the premise of plaintiffs’ argument. But I don’t think their conclusion follows. Yes, I’ll taken as given that because of what happened in 2004 in Ohio it would be unconstitutional for Ohio to limit voting solely to Election Day. But does that mean that the amount of early voting that Ohio now has provided does not suffice?

Plaintiffs complain that only one Sunday of early voting is available, and that the only evening hours available are on Election Day itself. As a matter of policy, I concur with their complaint. If it were up to me, I’d provide two weeks of early voting, including two Sundays (as well as two Saturdays) and ample evening hours throughout the fortnight. But I’m not Election Czar of Ohio, or anywhere else, and can I really say that the amount of early voting that Ohio provides is constitutionally inadequate to redress the disenfranchising effect of overcrowding at the polls on Election Day, as occurred in 2004? I think not. As it stands, all Ohio voters have the option of voting on a Sunday, or voting in the evening on Election Day, or voting on either of two Saturdays, or voting on a weekday during regular business hours throughout the four weeks of early voting, or voting by mail during that same four-week period.   It’s not the optimal schedule in my view, but it’s hard to see how any Ohio voter is disenfranchised by this particular menu of voting options.

In their Supreme Court brief, plaintiffs place great emphasis on the fact that before this year Ohio provided an even more generous early voting schedule than the current schedule. But it is difficult to see how this is relevant to the constitutional analysis. If Ohio cut back from three Sundays to two, would that be unconstitutional? Or from four Sundays to three? Rather it would seem that the better mode of analysis under the U.S. Constitution is that as long as Ohio (or any state) ends up with a constitutionally adequate amount of early voting, it does not matter whether it gets there by adjusting upward or revising downward.

To appreciate this point, let’s consider how Ohio (or another state) might end up reducing its amount of early voting in a way that would not be nefarious. Ohio currently has a Constitutional Modernization Commission, which is designed to be inherently bipartisan. It has six Democrats and six Republicans from the state’s legislature, as well as twenty citizen members chosen by these twelve legislative members. The Commission is currently considering various reforms of Ohio’s electoral procedures. Suppose that in an effort to get beyond the “voting wars” of the past decade, this bipartisan Commission adopted the same early voting schedule that Ohio currently has. Would it be unconstitutional solely because it is less generous than what Ohio had previously?

Again, Ohio’s current early voting schedule is not what I would consider optimal from a policy perspective. Were I a member of the Commission, I would push for more Sunday and evening hours. But as a member of an inherently bipartisan Commission, I would recognize that I could not insist that my policy preferences prevail. Bipartisan compromise would be necessary. If the Commission’s bipartisan compromise ended up in the same place as Ohio’s current schedule, would that bipartisan compromise violate the U.S. Constitution just because it provided less early voting than previously—and even though it gave all Ohio’s voters enough opportunities to cast a ballot?

I raise this question because one could argue that something like this is in fact what happened in Ohio. In addition to its bipartisan Constitution Modernization Commission, Ohio has a bipartisan Association of Election Officials. This Association has an equal number of Democrats and Republicans on its governing board. This Association came up with a recommended early voting schedule that essentially was adopted as Ohio’s current schedule.

As a policy matter, one can criticize the Association’s recommended schedule. It caters too much to the interests of the election officials themselves, and not enough to the interests of the voters they serve. It should have been more generous in its provisions for Sunday and evening hours. Indeed, given its bipartisan nature, I’m surprised that the Association ended up with the recommendation that it did. The compromise seems more one-sided than what I thought would have developed.

But a suboptimal bipartisan compromise is not necessarily unconstitutional. The federal judiciary does not exist to give either party a victory it could not achieve in the normal give-and-take of democratic politics. Thus, if a bipartisan compromise on the amount of early voting in Ohio does not fall short of providing the amount necessary to give all the state’s eligible voters a genuine opportunity to cast a ballot, the federal judiciary should not invalidate that bipartisan compromise as unconstitutional just because it seems to some a bad bipartisan deal.

My colleague Dan Tokaji sees Ohio’s current early voting schedule as not a product of bipartisanship, but instead one party’s imposition of its own preferences through its control of the state’s legislature (and secretary of state’s office).   But I think that analysis gives insufficient attention that the role that the bipartisan Ohio Association of Election Officials (OAEO) played in the development of Ohio’s current early voting schedule. Like Dan, I deplore manipulation of voting rules by a political party in power in an effort to perpetuate that power against the wishes of the electorate. But unless and until we adopt institutional reforms that remove the power to adopt voting rules from partisan legislatures and administrators and instead place that power in nonpartisan bodies (as I’ve discussed elsewhere), then federal constitutional law will need to be sensitive about when conventional partisan legislatures and administrators have crossed the line into excessive partisan manipulation of voting rules. Over the last decade, Ohio’s legislature and secretary of state undoubtedly have crossed that line on other occasions. But given OAEO’s role in the development of Ohio’s current early voting schedule, I have a hard time seeing that Ohio crossed that line of excessive partisanship in this particular context.

The plaintiffs complain about not only the cutback in Sunday and evening hours, but also the elimination of so-called “Golden Week,” when at the beginning of early voting it had been possible to both register and vote at the same time. But it is difficult, too, to see the ending of Golden Week as unconstitutional. Eliminating Golden Week does not change Ohio’s voter registration deadline. One still needs to register 30 days before Election Day. It is just that now there is no longer a five-day window from 35 to 30 days before Election Day when one can register and vote simultaneously. Thus, the consequence is that if one registers during this five-day period, one must separately vote during one of the various times Ohio has made available for voting. No doubt separating registration from voting in this way puts a greater burden on voters than simultaneous registration-and-voting. But it has never been unconstitutional to require registration in advance of voting. This was true when voting was confined to a single Election Day, and it would seem equally true when voting has been expanded in the way that it has in Ohio’s early voting schedule.

Again, plaintiffs seem to depend on an “anti-rollback” theory in claiming that Ohio’s elimination of Golden Week is unconstitutional. In this view, simultaneous registration-and-voting is not constitutionally required, but once it is provided, it cannot be taken away, at least not in Ohio. But I do not see how this “anti-rollback” argument can be linked to Ohio’s mistakes of 2004. Whether or not Ohio provides five days at the beginning of early voting during which simultaneous registration-and-voting is possible does not determine whether Ohio has provided enough early voting opportunities to avoid the disenfranchising effect of overcrowding at the polls on Election Day. One could have a Golden Week, but still have overcrowding on Election Day (for example, if simultaneous registration-and-voting were available only during limited hours in Golden Week, and the rest of the early voting schedule were minimal, with no Sundays available). Likewise, one could eliminate simultaneous registration-and-voting during Golden Week and still avoid any risk of overcrowding on Election Day, because four Sundays of early voting are available, along with ample evening hours. Ohio’s decision to eliminate Golden Week, which was an accidental byproduct of moving to “no excuse” absentee voting, should not be considered unconstitutional as long as Ohio provides adequate opportunities to both register and vote, even if separately, for all its eligible citizens.

Although I have discussed only the constitutional issue in the case, plaintiffs also present a claim under section two of the Voting Rights Act. In their Supreme Court brief, they say that this section 2 claim does not depend on the kind of retrogression inquiry that existed under Section 5 before Shelby County. If this disavowal is correct, it would seem that their section 2 claim has far-reaching implications that they are not prepared to acknowledge.

Let’s assume for the moment that the kind of comparison that the Sixth Circuit undertook of how current law affects different racial groups is the correct analysis under section 2. Let’s stipulate further that the lack of Golden Week disproportionately makes it more difficult for blacks than for whites to cast ballots. If that is the case, it would seem that the lack of a comparable Golden Week in many other states would be disproportionately burdensome on the African-American voters in those states. It does not take sophisticated social science to know that African-Americans in Pennsylvania, Michigan, and elsewhere suffer disproportionately from poverty and other conditions that would make the ability to register and vote at the same time especially attractive. If not having the opportunity to register and vote at the same time violates section 2 of the Voting Rights Act in Ohio, it would seem also to violate section 2 in Pennsylvania and Michigan—unless one employs an anti-retrogression principle (which plaintiffs disavow) to distinguish Ohio from these neighboring states.

Pennsylvania and Michigan require registration in advance of voting. That’s a rule that can be analyzed under section 2. These states need not have to have that rule. (Other states that permit same day registration don’t.) If this rule imposes a disproportionate burden on minority voters, and that’s enough to trigger liability under section 2, then Pennsylvania and Michigan (among many other states) should be vulnerable to section 2 liability for requiring registration in advance of voting. But if the disproportionate burden of an advance registration requirement is not enough to trigger liability under section 2, then what is?

The plaintiffs talk of a “racialized” political environment in Ohio. Certainly, some of the comments individuals have made about early voting in Ohio have been deplorable and unconscionable. But there has never been a finding, or even a claim, that Ohio eliminated Golden Week in order to discriminate against African-Americans. And without additional evidence, it seems unlikely that Ohio’s politics are more racially divisive than Michigan’s or Pennsylvania’s.

Plaintiffs say that the “totality of the circumstances” inquiry under section 2 produces the “unique” conclusion that Ohio violates the Voting Rights Act for not having simultaneous registration-and-voting. But a “totality of the circumstances” inquiry still needs to depend on principled reasoning, so that like cases are treated alike under the rule of law. If plaintiffs can offer no principled basis for distinguishing Ohio from neighboring Pennsylvania and Michigan under the Voting Rights Act—or disavow an anti-retrogression reason for distinguishing Ohio from these neighbors—then it would be inappropriate to single out Ohio for liability.

Finally, a brief word about the “equities” in the context of the emergency stay application in the Supreme Court. Whatever happens now, Ohio’s voting process for this year has been disrupted. No doubt Ohio could comply with the district court’s preliminary injunction requiring more early voting than what Ohio’s current law would provide. But suppose that, for the reasons analyzed here, after the 2014 election is over, Ohio would prevail in the defense of its current law against both the constitutional and Voting Rights Act claims brought by plaintiffs. Then, the first federal election in which Ohio’s new law would take effect would be the presidential election of 2016. That seems highly undesirable from an administrative perspective. Thus, if Ohio is likely to prevail on the merits of the case, then the equities would seem in favor of giving Ohio a chance to implement its new law this year, rather than for the first time (in a federal election) in 2016.

Context and Pretext: Why the Courts Were Right to Halt Ohio’s Latest Voting Restrictions

by

By Daniel P. Tokaji

The Sixth Circuit Court of Appeals yesterday upheld the district court’s ruling in in NAACP v. Husted, which stopped new restrictions on early voting from taking effect. This decision is good news for Ohio voters. It faithfully applies existing law to the evidence admitted in the district court, maintaining the established period for same day registration and early voting. The federal courts have done their job by safeguarding voters against partisan manipulation of election rules. This comment explains why the ruling is correct and why Ohio’s call to stay the existing court order should be rejected, especially now that same day registration and early voting are just about to begin.

NAACP v. Husted concerns a state law passed earlier this year eliminating Ohio’s limited window for same day registration and early voting, commonly referred to as “Golden Week.”* During this week (September 30-October 6 this year), voters can simultaneously register and cast their ballots in person. Tens of thousands of voters voted in this period the past two presidential elections, with thousands using the opportunity for same day registration and early voting. The evidence presented in the lower court showed that African American, low-income, and homeless voters were more likely to use this voting opportunity. The Sixth Circuit affirmed the district court’s preliminary injunction, based on its conclusion that the NAACP and other plaintiffs had shown likely violations of both the Constitution and the Voting Rights Act.

Two aspects of yesterday’s ruling have been lost in some of the early reaction. The first is that context matters. Yesterday’s ruling was not written against a blank slate. It instead comes after a now-lengthy litany of voting restrictions imposed by the Ohio legislature and state election officials over the past decade. Space doesn’t permit me to recount them all here, but they include restrictions on early voting and provisional voting that were enjoined during the 2012 election season. Yesterday’s decision from the Sixth Circuit, like that of the district court, is informed by this recent history. Ohio comes to court with dirtier hands than just about any other state over the last decade.

Context matters in another, even more important way. The Sixth Circuit, like the district court, carefully scrutinized the evidence regarding who actually uses early voting during this period and what the likely effects of its elimination would be. As the panel made abundantly clear, the legal question is not whether, in the abstract, voters have a “right” to early voting 35 days before the election. It is instead whether, in the context of Ohio’s current election system, the elimination of same day registration and early voting violates the Equal Protection Clause and Voting Rights Act.

The importance of context is a point that every good lawyer and judge understands, but is sometimes lost on us law professors. We academics love to debate abstract principles. But in the real world, cases hinge at least as much on the facts as on the law. And context matters a great deal.

That is especially true of election administration litigation. Contextual evidence is key to the legal test that the Supreme Court and the Sixth Circuit apply in equal protection challenges to voting rules. That test, now commonly referred to as the Anderson-Burdick standard, requires that the “character and magnitude” of the burden on voting be weighed against the “precise interests” put forward by the state. This test was embraced by a majority of Supreme Court justices in the Crawford v. Marion County Election Board case, which upheld Indiana’s voter ID law against a facial challenge.

The language of the constitutional test warrants careful attention. Courts are supposed to assess not only the magnitude of the burden on individual voters, but also its character – including whether or not its discriminatory. The test thus requires courts to consider which demographic groups will bear the burden of the voting rule being challenged. The Sixth Circuit engaged in this analysis two years ago in Obama for America v. Husted and Northeast Ohio Coalition for the Homeless v. Husted, in striking down Ohio’s restrictions on early voting and provisional voting. The district court and Sixth Circuit did in the same in NAACP v. Husted. Although the law that is neutral on its face, the courts found it to have discriminatory effects. Based on an assessment of the expert evidence, they found that closing the window for same day registration and early voting would disproportionately burden African American, poor, and homeless voters

Context also matters for the NAACP’s other claim, under Section 2 of the Voting Rights Act. The text of that statute prohibits voting rules that “result[]” in the denial or abridgement of the vote on account of race. The statute also says that courts are supposed to consider the “totality of circumstances” in making this determination. As the Supreme Court held in Thornburg v. Gingles, a seminal Voting Rights Act case quoted in yesterday’s ruling: “The essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Although the precise quantum of evidence required to prevail on Section 2 vote denial claims is less well established, this too is a context-specific test.

The district court and the Sixth Circuit did exactly what the law requires in NAACP v. Husted, scrutinizing the evidence regarding Ohio’s latest restrictions on early voting in the context of the state’s history. That record was voluminous, including expert testimony from respected social scientists documenting that African Americans are disproportionately heavy users of early voting during the period in question. The expert testimony also addressed evidence of race discrimination, such as a statement from the Chair of Franklin County’s Republican Party, cited by the district court, that “we shouldn’t contort the voting process to accommodate the urban—read African– American—voter turnout machine.” That is circumstantial evidence of intentional race discrimination, more than what’s required under Section 2’s results-based test.

It’s tempting to skim or skip the portions of a judicial decision describing the evidence and assessing the expert testimony. But the evidence matters a lot in this type of case. It reveals the effects of a law, including who’s likely to be hurt by it, as well as the real reasons for its enactment. And in this case, it reveals reasons to be suspicious – especially when a state legislature dominated by one party passes laws closing off opportunities used mostly by voters who tend to favor the other party. One doesn’t have to be a conspiracy theorist to believe that Ohio’s recent early voting restrictions might, just maybe, be motivated by a desire to gain partisan advantage.

This brings me to the second important point overlooked in the immediate reaction to the Sixth Circuit’s ruling. The record developed in the district court provided strong reason to believe that the state’s stated justifications for the new restrictions were pretextual. The state claimed that it needed to eliminate Golden Week – which ends a month before Election Day – to prevent fraud. Huh? This is a silly argument, one that doesn’t pass the straight-face test. Ohio counties have a full month after this period ends to verify the eligibility of applicants. Although the state’s anti-fraud argument isn’t plausible, the fact that it dared to make such an argument speaks volumes about the real motivations for this law.

Ohio’s other main argument for eliminating same day registration and early voting was to save money. This, of course, is an argument that might be tried for almost any voting limitation. But based on the evidence that was presented to the district court and the findings that court made, the Sixth Circuit properly found that this rationale didn’t withstand carefully scrutiny either. The irony here is that the argument would have the most force with respect to large, urban counties like Cuyahoga County (Cleveland area) – but these are the counties that, in general, like early voting the most because it takes pressure off the polls on Election Day. And as the Sixth Circuit pointed out, all counties are required to be open during this period anyways, so it’s dubious whether there would be much of a burden at all.

So if fraud prevention and saving money weren’t the real reasons for Ohio’s new voting restrictions, what were the real reasons? I doubt that anyone who’s closely followed the Ohio legislature’s actions in recent years is genuinely stumped by that question. For as in prior years, a legislature dominated by one party has adopted new rules impeding means of voting used mostly by voters likely to favor the other party. Does anyone really believe that Ohio’s Republican-dominated legislature would have restricted same day registration and early voting if Republicans rather than Democrats were the heaviest users?

To be sure, the Sixth Circuit’s ruling doesn’t expressly say that partisan manipulation was at the heart of Ohio’s law. But reading between the lines of yesterday’s opinion, like previous court decisions invalidating other Ohio voter restrictions, it’s evident this is what was really driving the court. Both the Equal Protection Clause and Voting Rights Act tests allow courts to consider circumstantial evidence of partisan manipulation. In curbing the most egregious instances, federal courts – which are more insulated from partisan politics than other institutions – are fulfilling their proper role in our democratic process.

Of course, the applicable legal standards don’t require a finding of intentional partisan manipulation. And I don’t think they should. Do we really want to make federal judges accuse state legislators of being partisan hacks before invalidating unwarranted restrictions on voting? Instead, the existing legal standards help courts ferret out laws whose real purpose and effect is to help the party in power by making it harder for certain groups of citizens to vote. That’s what the Ohio legislature was doing here – and, in fact, has repeatedly tried to do over the last decade.

Unfortunately, Ohio hasn’t given up yet. The Attorney General and Secretary of State filed “emergency” petitions for review with the full (en banc) Sixth Circuit and the U.S. Supreme Court. They seek an “immediate” stay of the injunction – by which they presumably mean the preliminary injunction the district court issued on September 4. This argument is genuinely puzzling, and the “emergency” is entirely of their own imagination. The reality is that yesterday’s decision simply preserves the state of affairs that has existed for almost three weeks, since the district court’s injunction. Although the petition repeatedly refers to this as a “last-minute” change, Ohio counties have known for a while now that they’d have to provide the opportunity for same day registration and early voting starting on September 30. And of course, the early voting rules kept in place are the same ones used in Ohio for many years.

Most damning to Ohio’s stay argument is the fact that, when the Sixth Circuit panel denied a stay of the district court’s order on September 12 – two weeks ago – the state did nothing. If the situation were really so dire, why didn’t the state immediately seek review of the panel’s stay denial, either from the en banc Sixth Circuit or the Supreme Court? The rules in place after yesterday’s Sixth Circuit decision are precisely the same as those in place before yesterday: early voting in Ohio begins on September 30.

The state’s real concern, I’m sure, is with the legal precedent established by yesterday’s ruling. The state is certainly entitled to ask for further review of the legal questions in due course. For reasons set forth above, I think such review should be denied. But even if one disagrees, that’s a poor reason for staying the district court’s injunction. With early voting scheduled to begin just three working days from now, it would be extremely disruptive to call it off now as the State requests. Such an order would really be a last-minute change in the election rules, of the very type that courts generally should avoid, as the State’s petition admonishes.

I’m a lawyer, not a soothsayer, so I won’t try to predict what either the en banc Sixth Circuit or the Supreme Court will do. My goal here is instead to dispel some misconceptions about yesterday’s opinion, which is neither as sweeping nor as dramatic as one might be led to believe from the State’s petition, and to explain why staying the district court order would be a big mistake. The Sixth Circuit ruling doesn’t say that all states have to offer early voting 35 days before the election. Nor did the court say that Ohio was violating the Constitution before it adopted no-excuse absentee voting in 2005. Instead, yesterday’s decision applies existing precedent requiring courts to consider evidence regarding the context in which new voting restrictions are enacted and whether the state’s stated rationales are pretextual.

* Disclosure: I served as counsel for plaintiffs in Project Vote v. Madison County Board of Elections, which resulted in a court order keeping the window for same day registration and early voting open in the 2008 election. I am not involved in the current litigation.

Election Law @ Moritz is 10 Years Old!

by

Back in 2004, those of us who worked on election law here at Ohio State realized that Ohio might play a pivotal role in the upcoming presidential election. (It did, but for the sake of the nation not as pivotally as it might have.) We also knew that 2004 would be the first presidential election after passage of the Help America Vote Act, with all its new rules on voter registration databases, voter identification, and provisional ballots. We thought it might be useful if, as a team, we tried to get up to speed on the new terrain of “election administration law,” which had been a sleepy field in terms of scholarship before 2000. We had a sense that teamwork would enable us to produce various forms of useful scholarship that we could not accomplish working separately.

We are proud of what we have accomplished in the past decade and gratified by the recognition it has received. From Registration to Recounts proved to be valuable in its “ecosystem” approach to studying election administration. Our McCain v. Obama simulation has inspired similar “election law war gaming” at William & Mary, and we remain delighted to continue partnering with others in our field where combining resources serves the greater good—just an extension of the teamwork idea on a wider scale! Most recently, we tackled the topic of campaign finance in The New Soft Money, thanks to the innovative sleuthing of Renata Strause, our superb Fellow for 2013-2014.

Throughout the decade, we have been particularly pleased to provide our Major Pending Cases database, which focuses on litigation concerning election administration. Our team members from the Moritz Law Library built and have maintained this resource, which is a generous commitment of great time and effort in the spirit of public service. From all the feedback we have received over the years on how valuable the database is, we are delighted that our initial instinct has been confirmed: the public deserves access to an organized compendium of documents filed in litigation over the voting process—access that is not behind any paywall.

Electoral democracy is a quintessentially public process, and if there is to be litigation over the procedures of electoral democracy, as it seems now that there inevitably must be, then the electorate itself must be able to monitor that litigation. This monitoring enables voters, and coalitions of voters, of all political stripes and persuasions to form judgments about the various efforts to affect the voting process through lawsuits. It also enables journalists and researchers, whether university-based or otherwise, to contribute to public analysis of the electoral system, based on the information generated in the crucible of adversary litigation. It is with these objectives in mind that we look forward to continuing to provide, and indeed improving upon, this public service over the next decade and indefinitely into the foreseeable future.

What we did not anticipate ten years ago was the degree to which litigation over election administration has intensified from cycle to cycle, rather than subsiding. With lawsuits over voter ID raging in Texas, Wisconsin, and North Carolina, and lawsuits over early voting in Ohio and (again) North Carolina, and indeed seemingly the entire voting process in North Carolina on trial, it sometimes is hard for even pros to follow all that is going on. Members of the public need all the assistance we, and others, can offer in an effort to understand what’s going on and its significance.

North Carolina is a particularly interesting example when thinking about the last decade. Ten years ago, when all eyes were focused on Ohio and its election administration problems, many folks may have missed that North Carolina had a statewide election for the state’s superintendent for public instruction that got caught up in litigation over provisional ballots and was not finally resolved until the state’s legislature repudiated the state supreme court’s ruling on August 25, 2005. Although no federal lawsuit was pursued challenging this legislative nullification of a judicial decree, it is easy to imagine that there might have been one, based on the principle that it violates Due Process to change the rules for counting ballots after they have been cast. (See Roe v. Alabama, the Eleventh Circuit decision concerning Alabama’s 1994 Chief Justice election.)

With all the current election administration litigation pending in North Carolina, one must consider the possibility that this year’s U.S. Senate election could end up like the 2004 superintendent of public instruction’s race. Leading forecasters have it in the tossup category, and one of the key races for potentially determining which party controls the Senate. The current condition of the “voting wars” in the state, combined with the 2004 track record, suggests that litigation over the outcome of the Senate race might be much more ferocious than the fight over Minnesota’s 2008 Senate seat (in which Al Franken ultimately defeated Norm Coleman). Although the Minnesota dispute took eight months to resolve, the dispute ultimately stayed within the state, and never made it all the way to the U.S. Senate. Given that the 2004 superintendent of public instruction dispute was incapable of being settled in state court, and went to the state’s legislature for further proceedings, it would seem that a North Carolina fight over a U.S. Senate seat would likewise not be confined to the judiciary. In this respect, it would more likely resemble the fight over New Hampshire’s 1974 election, which ended in a senatorial stalemate requiring a revote, or perhaps some of the Senate’s other contested elections in yesteryears.

Given the public interest and public importance of the U.S. Senate elections this year, Election Law @ Moritz will be focusing on the election administration rules in the states most likely to tip the balance of power in the Senate one way or the other. We will particularly track any litigation developments concerning election administration in these potentially pivotal states. Indeed, the hope about litigation about the voting process that occurs before the ballots are cast is that it will reduce the likelihood of litigating over the counting of those ballots afterwards, even in the event that the race is an extremely close one. From this perspective, maybe North Carolina is actually in the best shape, because there are so many election administration issues in that state subject to pending litigation. This thought seems counterintuitive, and we will just have to wait and see how it all plays out.

2014, our tenth anniversary, promises to be an interesting election year. We will continue endeavoring to do our part to aid public understanding of the process. We hope you will find our efforts useful.

Ohio Early Voting Case: A Potential Precedent-Setter

by

Today’s federal district court ruling in the Ohio early voting lawsuit will set a major precedent of nationwide significance if its novel legal theory is sustained on appeal.

Today’s federal district court ruling in the Ohio early voting lawsuit will set a major precedent of nationwide significance if its novel legal theory is sustained on appeal. The key to understanding today’s decision is to compare Ohio, a state that has a relatively extensive early voting period—although less than before—with a state that lacks early voting altogether, like Pennsylvania or Michigan or New York. Nothing in today’s decision indicates the court’s belief that New York is violating federal law, either the Constitution or the Voting Rights Act, because it has failed to provide any early voting. It appears, moreover, that the court would take this position regarding New York even if there were clear evidence that African-American voters would disproportionally take advantage of early voting as an option in New York and thus the lack of early voting there has a disproportionally adverse impact on African-Americans in New York. The judge’s theory of the Ohio case, instead, rests on the fact that Ohio previously was more generous in its provision of early voting than it currently is and that this cutback, even to an amount of early voting much larger than the none that New York provides, is unlawful discrimination under both the Equal Protection Clause of the Constitution and section 2 of the Voting Rights Act. It is a bold and innovative proposition that will be tested on appeal.

There is a provision of federal law that bars cutbacks in voting opportunities that disproportionally affect African-Americans. That provision, section 5 of the Voting Rights Act, is not involved in the Ohio case. That is because section 5, as written by Congress, had only limited geographic coverage (mostly, although not exclusively, the states of the old Confederacy). Ohio was never covered by section 5 of the Voting Rights Act. But, more significantly, in Shelby County v. Holder (2013), the U.S. Supreme Court invalidated as being based on outdated data the coverage formula that Congress adopted. It has been suggested that Congress should revise the coverage formula, even making it fully national in scope, so that Ohio along with other states would be subject to the anti-retrogression principle of the VRA’s section 5. Congress, however, has not acted on that suggestion.

Thus, the core legal issue in the Ohio early voting lawsuit is whether the Equal Protection Clause of the U.S. Constitution or section 2 of the Voting Rights Act, both of which already have fully nationwide applicability and thus cover Ohio, can be interpreted to contain the same kind of anti-retrogression principle that previously was thought the special province of the VRA’s section 5.

The court devotes much more attention to Equal Protection, so let’s start there. The first thing to note is that the court makes no finding of intentional race discrimination on Ohio’s part. That’s important for two interrelated reasons. First, if there were such intentional race discrimination, it would be clearly unconstitutional, violating the Fifteenth Amendment as well as Equal Protection, and an injunction would be a necessary and proper remedy to purge that unconstitutionality from the state’s voting system. Second, and this is the converse of the first proposition, laws that have a racially differential impact but not a racially discriminatory purpose are not unconstitutional under either Equal Protection or the Fifteenth Amendment. A racially discriminatory burden may violate section 2 of the Voting Rights Act without proof of a racially discriminatory intent. But according to longstanding and well-settled U.S. Supreme Court precedent, there is no successful claim of unconstitutional racial discrimination without proof of a racially discriminatory intent either written into the law itself or shown in the circumstances of the law’s enactment.

There are other forms of unconstitutional discrimination under the Equal Protection Clause besides race discrimination, and thus it is necessary to consider alternative ways of analyzing Ohio’s cutback in early voting. The primary precedent on which the federal court relied for its ruling is Bush v. Gore. In that case, the unconstitutional discrimination was between (a) those voters whose “hanging chads” would have been counted pursuant to the Florida Supreme Court’s insufficiently precise recount procedures and (b) those voters whose “hanging chads” would have been rejected despite being identical to the “hanging chads” counted elsewhere. Seven Justices of the U.S. Supreme Court saw that discriminatory treatment of identical chads as “arbitrary” and thus unconstitutional (although two of the Justices disagreed with the other five about what remedy to order for this unconstitutionality in the specific circumstances of the 2000 presidential election).

In today’s Ohio early voting decision, the federal court invoked the “no arbitrary differential treatment” principle of Bush v. Gore as the main justification for its ruling. The court wrote (page 60): “despite the expansiveness of Ohio’s voting system, the weakness of the offered justifications supporting [the cutbacks in early voting] render them essentially arbitrary action when viewed against the burdens they impose on groups of voters.” Then, two sentences later, the court “summarized” its own Equal Protection “conclusions”: Ohio’s cutbacks in early voting “arbitrarily make it harder for certain groups of citizens to vote.”

There are, however, some analytic difficulties with the court’s reliance on Bush v. Gore. First, the Supreme Court in Bush v. Gore spoke of the “disparate treatment” of the identical chads being “arbitrary.” It is not clear what the federal district court sees as the disparate treatment in Ohio’s cutback of early voting. Disparate effect is not the same as disparate treatment; the Supreme Court repeatedly has made that clear. Thus, the fact that Ohio’s cutbacks in early voting disproportionally burden African-American and low-income voters does not mean Ohio law engages in disparate treatment of these voters. Rather, all Ohio voters are subjected to the more limited availability of early voting; it’s just that this more limited availability has
a disproportionately adverse effect on some.

The other big question is what counts as “arbitrary.” Bush v. Gore itself is extremely unclear on this point, an irony given the Supreme Court’s concern in that case about the imprecision of Florida’s recount rules. Thus, one must consider whether Ohio’s decision to cutback early voting could be considered “arbitrary” in a
constitutionally relevant sense. But here’s where the whole question of rollback as a factor in constitutional
analysis comes into play. Is it “arbitrary” that Pennsylvania, Michigan, and New York (among other states) do
not offer any early voting, even if constituents in those states have lobbied for it? What if “cost” is the reason
that those states offer for refusing to provide early voting—the same reason that Ohio has offered for its cutbacks? Is that an “arbitrary” reason under the Equal Protection Clause?

Bush v. Gore itself was not an anti-rollback case. The arbitrariness there was that Florida essentially offered no reason whatsoever for treating identical hanging chads differently in a statewide recount, not that the reason offered was inadequate. It seems a stretch of the Bush v. Gore “no arbitrariness” principle to say that it either (a) compels all states to offer enough early voting, including those states (like Pennsylvania, Michigan, and New York) that have never provided it, or (b) prevents Ohio from adjusting its period of early voting to end up with an amount that remains more generous than many states.

The U.S. Court of Appeals for the Sixth Circuit, which encompasses Ohio, did decide in 2012 a different anti-rollback case invoking Bush v. Gore. That case, brought by President Obama’s reelection campaign, also involved early voting in Ohio. But it specifically concerned disparate treatment between military and non-military voters under a statutory enactment that was procedurally convoluted and bizarre in its adoption, and
where the justification for the different treatment of military and nonmilitary voters was lacking. That case, despite superficial similarities, is not much of a precedent for either of the two propositions identified above: again, either (a) that Pennsylvania, Michigan, and New York also must provide ample early voting if African-Americans and low-income voters in those states are disproportionally disadvantaged by the absence of it, or (b) that Ohio is not entitled to experiment with the amount of early voting that best balances its competing
policy considerations, including costs.

The same considerations affect the analysis of the claim under section 2 of the Voting Rights Act. Would Ohio have violated section 2 of the Voting Rights Act if, like its neighbors Michigan and Pennsylvania, it had never offered early voting in the first place? If not, is Ohio permitted to adjust the duration of its early voting?

Admittedly, figuring out when a state’s voting rules violate section 2 is a very tricky matter, one about which neither Congress nor the Supreme Court has given clear guidance. Many existing voting practices could be said to impose disproportionally disadvantageous conditions on minority voters. For example, based on the kind of evidence introduced in this Ohio case, the basic decision to hold Election Day on a Tuesday rather than a Sunday is likely to have a discriminatory effect on African-American voters, given the cultural circumstances that favor “Souls to the Polls” within the community. Does this mean that a state like New Jersey or Virginia violates section 2 of the Voting Rights Act when it holds a nonfederal election on a Tuesday rather than a Sunday? If New Jersey decided to experiment with Sunday instead of Tuesday for its next gubernatorial election in 2017, but then decided to switch to Saturday for 2021, would this switch violate section 2 based on a showing that Sunday is generally a better day than Saturday for African-American voters, and more so than for nonminority voters, because of the “Souls to the Polls” phenomenon?

To ask these questions is not to answer them. It is simply to point out that, with today’s Ohio early voting decision, we are entering unchartered waters of voting rights jurisprudence.  Which brings me back to the point with which I began: today’s decision, if affirmed on appeal, will be a major new precedent with large and potentially longstanding repercussions nationwide for a long time to come.

What’s the Matter with Kobach?

by

By Daniel P. Tokaji

By “Kobach,” I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

What the Case Is About

Kobach involves a narrow but important issue, left unresolved after the U.S. Supreme Court’s decision last year in Arizona v. Inter Tribal Council of Arizona. That case involved Arizona’s attempt to impose a proof-of-citizenship requirement for voter registration, an issue that has been percolating for many years.

Arizona law requires would-be voters to provide documents proving their citizenship when they register, documents that some eligible citizens don’t have. But the National Voter Registration Act (NVRA) requires states to “accept and use” the national voter registration form, commonly known as the “federal form.” And that form’s instructions don’t require documentary proof of citizenship. In Arizona, the Supreme Court said that states must register voters who used the federal form, even without these documents. But the Court allowed Arizona to ask the U.S. Election Assistance Commission (EAC) to add the state’s proof-of-citizenship requirement to the federal form.

That’s exactly what Arizona, along with Kansas, sought to do. But there’s a problem. The EAC had no sitting commissioners – hasn’t had any for years, in fact, due to gridlock in Congress. With no Commissioners to vote on the states’ requests, they went to federal court to force the commissioner-less EAC to incorporate their proof-of-citizenship requirements on the federal form’s instructions.

While the Supreme Court saidthat Arizona may ask the EAC to change the federal form, it didn’t say that the EAC must grant the state’s request. The central issue in Kobach is whether and when state requests to add proof-of-citizenship requirements to the federal form must be granted.

What the District Court Did

Arizona and Kansas won in the lower court. The district court in Kobach first directed the EAC to make a decision on Arizona’s and Kansas’ requests, even without commissioners. EAC’s staff – specifically its acting executive director – complied with this order but denied the requests, concluding that the federal form shouldn’t be modified to add the states’ citizenship requirements. The district court then concluded that the EAC (staff) was wrong to deny Arizona’s and Kansas’ requests and that the states’ proof-of-citizenship requirements must be added to the federal form instructions.

There are two problems with what the district court did in Kobach. One is that the EAC isn’t legally obligated to grant Arizona’s and Kansas’ requests. These states argue that the EAC had a “ministerial” duty to change the federal form to add their proof-of-citizenship requirements. In effect, they argue that the EAC has to rubber-stamp states’ requests. But that’s not what the relevant statute, the NVRA, says – nor is it what the Supreme Court said. The NVRA says that the federal form should only include information that is “necessary” to assess eligibility to vote. This is consistent with what the Supreme Court said in Arizona – that it would raise serious constitutional questions if states couldn’t obtain information “necessary” to assess voter qualifications.

In this case, the relevant qualification is citizenship. So the dispositive question is whether these two states’ proof-of-citizenship requirements are “necessary” to assess voter qualifications. The answer is that they’re not. The federal form already requires voter to swear or affirm, under penalty of perjury, that they are U.S. citizens. It’s also telling that Congress declined to add language authorizing states to impose additional proof-of-citizenship requirements when it enacted the NVRA, as the EAC notes in its brief (p. 35).

If we had an epidemic of noncitizens voting, then Arizona’s and Kansas’ arguments would be stronger. But there’s no such evidence in the record — which shows 196 noncitizens registered in Arizona and 21 who either registered or tried to register in Kansas, paltry numbers in states with 3.7 and 1.8 million registered voters respectively as of 2012. And there was no evidence on how many of the handful of noncitizens on the rolls used the federal form, as opposed to other means of registration. For all the concerns that Secretary of State Kobach has expressed about noncitizen voting, Arizona and Kansas’ brief is conspicuously fuzzy on this point. They claim there may be more (p. 57) . . . but can’t prove it.

It can’t be the case, moreover, that the EAC has to rubber stamp every state request to add new registration requirements, however unreasonable. If Arizona and Kansas can implement their proof-of-citizenship requirements, can states require government-issued photo ID to register? DNA? A criminal background check? A statement of mental competency from a licensed physician? All of these documents bear some relationship to state voter qualifications. But that doesn’t mean that states are justified in demanding them – much less that the EAC is required to accommodate state demands to include them with the federal form. Eligible citizens could easily slide down this slippery slope – and right off the voting rolls.

The other problem concerns the district court’s directive that the EAC act on Arizona’s and Kansas’ request even though the Commission had no commissioners. At the end of their brief (p. 59), the states argue that the EAC lacked the authority to make this decision because it had no sitting commissioners. I think Arizona and Kansas are right on this point, given that the Help America Vote Act requires at least three commissioners for the EAC to take action. (In fairness to the district court, it appears to have ordered EAC to act based on the DOJ’s representation that EAC staff had this power.) But without a quorum, the EAC lacked statutory authority to decide the states’ requests. Arizona and Kansas are right on this point – although it doesn’t follow that they should win.

What the Tenth Circuit Should Do

Where does all this leave us? This is the really difficult question presented by the Kobach case, on which the Tenth Circuit judges seem to have been focused, as Doug Chapin highlights. Kansas and Arizona say that the EAC had no choice but to modify the federal form as they asked – but they’re wrong on the law, as I’ve explained.

There are at least two viable options for the Tenth Circuit. One is to punt, by vacating the district court’s ruling and remanding with instructions to send the case back to the EAC. The agency still has no commissioners – but nominations have been announced so it’s possible there will be a quorum before too long. Even if the EAC gets new commissioners, however, we can expect them to stalemate along party lines. And then what? In Arizona, this controversy has already been going on for almost a decade. While I don’t agree with Arizona’s and Kansas’ legal position, they’ve waited long enough for a judicial ruling on whether the EAC must grant their requests. The old adage about justice delayed sometimes applies to states as well as individuals.

There was, moreover, a thorough airing of the facts and law in the district court, which was crystal clear on its view of the law – and would have been the same regardless of whether the EAC had commissioners. We don’t have to speculate. The district court explicitly said that its “decision would be the same if a full commission had voted 4-0 to deny the states’ requests.” Sending the case back to the district court for further EAC consideration would serve no purpose.

The other option is for the Tenth Circuit to decide the case on the merits. While the district court may have been wrong to order EAC staff to act on the states’ requests, it could have ordered the EAC – with or without commissioners – to modify the federal form if required by federal law. A footnote in the Supreme Court’s Arizona opinion mentions this possibility, saying: “If the EAC proves unable to act on a renewed request, Arizona would be free to seek a writ of mandamus to ‘compel agency action unlawfully withheld or unreasonably delayed.’” Although the Court reserved the question whether such relief should be granted, it would be transparently unfair to deny states a ruling and, if warranted, relief due to circumstances beyond their control – in this case, congressional gridlock that left the EAC commissioner-less.

Thus, the Tenth Circuit can and should decide the case on the merits, treating the district court’s order as one to “compel agency action withheld or unreasonably delayed.” There’s no point in sending it back to the district court, which left no doubt on what it would have done, with or without a quorum on the EAC. The lack of the quorum does mean that the EAC’s “decision,” which it had no authority to make, shouldn’t get any judicial deference. But the Tenth Circuit should reverse the district court, on the ground that Arizona isn’t entitled to the relief it seeks under any standard of review. Federal law doesn’t require the EAC to amend the federal form, because the states’ requirements aren’t “necessary” to show that registrants are qualified to vote.

In other words, Arizona and Kansas are right that the EAC lacked authority to make the decision it purported to make. But they’re wrong to argue that the EAC – with or without a quorum of commissioners – was obliged to add the proof-of-citizenship requirements they seek. Whatever one’s view on the merits, there’s no good reason for the Tenth Circuit to delay a ruling on that disputed question.

Tokaji Testimony for Senate DISCLOSE Hearing

by

By Daniel P. Tokaji

Professor Tokaji has submitted the following writing testimony for today’s hearing before the U.S. Senate Rules and Administration Committee on the proposed DISCLOSE Act.

Testimony of Professor Daniel P. Tokaji

Robert M. Duncan/Jones Day Designated Professor of Law

The Ohio State University, Moritz College of Law

U.S. Senate Committee on Rules and Administration

“The DISCLOSE Act (S. 2516) and the Need for Expanded Public Disclosure of Funds Raised or Spent to Influence Federal Elections”

July 23, 2014

Thank you for inviting me to appear before you today. My name is Daniel P. Tokaji, and I am the Robert M. Duncan/Jones Day Designated Professor of Law at The Ohio State University, Moritz College of Law. I am also a Senior Fellow with Election Law @ Moritz, a nonpartisan program devoted to providing accurate information, analysis, and commentary on election law and administration. This testimony is solely on my own behalf and does not necessarily represent the views of any entities with which I am affiliated.

My primary area of research and expertise is Election Law. I am co-author of the casebook Election Law: Cases and Materials (5th ed. 2012), author of the book Election Law in a Nutshell (2013), and former co-editor of Election Law Journal, the only peer-reviewed academic journal in the field. I have written numerous academic articles on various Election Law topics, including election administration, voting rights, and campaign finance. I am also the co-author, with Renata E.B. Strause, of The New Soft Money: Outside Spending in Congressional Elections (2014), published last month. A copy of that report is included with my written testimony.

I have been asked to describe the research contained in our New Soft Money report, particularly that which pertains to campaign finance disclosure. My testimony will address three points. First, it describes the goals and methodology of our report. Second, it briefly summarizes existing federal disclosure laws. Third, it discusses the key findings of our report pertaining to disclosure.

 

Goals and Methodology

The explosion of outside money in election campaigns is one of the most important recent developments in American democracy. Since the U.S. Supreme Court’s decision in Citizens United v. FEC (2010), there has been a rapid proliferation in the number of outside groups – those that are not formally affiliated with candidates or parties – coupled with a dramatic increase in how much these groups are spending to influence federal elections.

While there has been considerable attention to raw numbers, there had been much less in-depth analysis of the impact that all this money is having, prior to the report by Ms. Strause and me. The New Soft Money investigates and analyzes the effects of outside money on congressional elections and governance, by speaking with those who are in the best position to know.

Over the last year, with the generous support of the Open Society Foundations, we conducted in-depth interviews with forty-three key political players. Among our interviewees were fifteen former members of or candidates for Congress – Republicans, Democrats, and Independents – as well as campaign staff, legislative staff, and political operatives. Our report also includes a detailed analysis of the changes in federal law over the years, and the current legal and political landscape as revealed in FEC proceedings, the congressional record, and publicly available reports. We aimed to get a clear-eyed, real world perspective on how this new world of increased spending affects elections and governance today.

 

Federal Disclosure Law

It is no secret that the law of campaign finance is extraordinarily complex. Chapter I of our report provides a primer on federal campaign finance laws, including the relevant statutes and regulations as well as key constitutional decisions. My testimony will focus exclusively on the law governing disclosure.

Under the Federal Election Campaign Act (FECA), some but not all of the money raised and spent to influence federal election campaigns is reported to the Federal Election Commission (FEC) and made public. Groups that are considered “political committees” under federal law, 4 U.S.C.

The complexities of federal disclosure arise mainly with respect to individuals and groups that are not “political committees” under FECA. Those which spend more than $250 for express advocacy in a calendar year must disclose those expenditures, along with certain other information. 2 U.S.C.

In addition to FECA, Section 527 of the Internal Revenue Code imposes certain requirements on “political organizations,” groups whose primary purpose is to influence elections or appointments at the federal, state, or local level. 26 U.S.C.

Many groups spending money in connection with federal elections today are not – or at least claim that they are not – covered by federal disclosure requirements. Prominent among them are various nonprofit organizations, typically organized under Section 501(c) of the Internal Revenue Code. So long as their major purpose is not to influence federal elections, they are not considered “political committees” under FECA; and so long as their primary purpose is not to influence elections or appointments, they are not “political organizations” under Section 527. The rise of so-called “Dark Money,” the ultimate sources of which are not disclosed, is associated with groups that claim to fall outside these definitions.

 

Findings on Disclosure

Perhaps the most striking feature of our interviews with former elected officials, candidates, campaign staff, and others – across the political spectrum – is the widespread agreement on how increased outside spending has changed the political landscape. To be sure, there is disagreement over whether these changes are desirable and what if anything should be done about them. But there is general agreement on what is actually happening on the ground.

Groups engaged in outside spending may be divided into two categories: those which disclose their donors and those which do not. Political committees – including so-called Super PACs, contributions to which are unlimited – are required to disclose their donors. But some of these organizations receive money from other groups, including nonprofits, that do not disclose their donors. Thus, the ultimate source of much of the money now being spent to influence federal election campaigns is undisclosed.

Inadequate disclosure was a common complaint about the current system, which arose repeatedly in our interviews.

For many of those we interviewed, the ultimate value is accountability. Without adequate disclosure, accountability to the electorate is lacking. Because candidates are required to disclose contributions they receive, they and their donors are accountable in a way that many outside groups and their funders are not. While there is disagreement over what to do about this problem, there was widespread agreement among our interviewees that the lack of accountability arising from inadequate disclosure is a serious problem.

Another concern, expressed by some of our interviewees, is that the lack of disclosure opens the door to corruption. This is consistent with Supreme Court precedent, going back to Buckley v. Valeo (1976), which recognizes the prevention of both the appearance and reality of corruption as a justification for requiring disclosure of campaign-related contributions and expenditures.

Finally, we heard numerous complaints from our interviewees about the mechanics of disclosure. This system has been described as “byzantine” in prior testimony to this committee, and our interview subjects generally agreed.

Recent U.S. Supreme Court cases highlight the importance of having a well-functioning system of disclosure. As Chief Justice Roberts put it in his decision for the Supreme Court earlier this year in McCutcheon v. FEC: “With modern technology, disclosure now offers a particularly effective means of arming the voting public with information…. Because massive quantities of information can be accessed at the click of a mouse, disclosure is effective to a degree not possible at the time that Buckley or even McConnell [2003] was decided.” Yet our interviews reveal considerable frustration with how the disclosure system actually functions in practice, among those who are in the best position to know. They expressed the need for simplification and technological modernization of campaign finance disclosure. This is a rare point of bipartisan agreement in this deeply contested area of law.

Thank you for the opportunity to speak with you. I would be happy to answer any questions you have.