Ohio

The Supreme Court and the Right to Vote

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by Daniel P. Tokaji

“[T]he political franchise of voting . . . . is regarded as a fundamental political right, because [it is] preservative of all rights….”

– Yick Wo v. Hopkins (1886)

For over 130 years, the U.S. Supreme Court has said that the right to vote fundamental. The idea is that voting for candidates who represent our views is the primary means through which we protect our interests, whatever they might be. While the Court has often repeated this constitutional principle, it hasn’t always honored it.  In fact, at the very moment that the Court first declared the right to vote fundamental, African Americans were being systematically and brutally excluded from voting throughout the states of the former confederacy.  As a result, all their other rights – including education, employment – were denied.

Contemporary threats to the right to vote are much less egregious than the racist exclusionary practices that predominated in the late 19th Century and persisted through most of the 20th Century, but today’s threats are nonetheless real. Recent events raise serious questions about the currently short-staffed Supreme Court’s capacity to protect the right to vote against 21st Century threats.  The vacancy created by Justice Scalia’s death has now existed for over seven months and counting.  The split arising from this vacancy compromises the Court’s ability serve as a bulwark against denial of the right to vote.

Recent developments in a voting rights case from two swing states, North Carolina and Ohio, are especially troubling. North Carolina enacted an omnibus voting bill shortly after the Supreme Court’s decision in Shelby County v. Holder (2013), which freed it from the strictures of preclearance under Section 5 of the Voting Rights Act.  Although Section 5 wasn’t used to stop vote denial as often as is commonly supposed (p. 79), there’s no doubt that Shelby County led directly to North Carolina’s 2013 voting restrictions.

North Carolina’s law was especially sweeping, imposing voter ID, limiting early voting, eliminating same-day registration, restricting the counting of provisional ballots, and abolishing pre-registration for 16- and 17-year olds. Despite substantial evidence that African Americans would be especially hard hit by North Carolina’s new restrictions, the district court in NC NAACP v. McCrory denied relief.  Its very lengthy opinion missed the forest through the trees, examining each voting restriction separately, while downplaying their cumulative effect on black voters as well as evidence of the legislature’s racially discriminatory intent.

The Fourth Circuit Court of Appeals reversed the district court, finding that North Carolina’s voting restrictions “targeted African Americans with almost surgical precision.”  The court cited evidence that North Carolina’s Republican leadership specifically asked for racial data on the usage of particular voting practices, then adopted a law restricting those means used predominantly by African Americans.  Based on this and other evidence, the Fourth Circuit concluded that this law was motivated by discriminatory intent.

While racially discriminatory intent is hard to prove, the Fourth Circuit’s conclusion that North Carolina’s legislature had acted with such intent was amply justified by the evidence. To be sure, the ultimate reason for North Carolina’s Republican legislature adopting this law was partisan.  As in other states, North Carolina’s African Americans vote overwhelmingly Democratic, providing a strong motivation for the Republican majority to make it harder for them to vote.  The Fourth Circuit correctly reasoned that racial and partisan motivations aren’t mutually exclusive – to the contrary, they are mutually reinforcing.  That’s especially true in North Carolina, where being African American is a better predictor of voting Democratic than being registered as a Democrat.

In these circumstances, it should come as no surprise that the Supreme Court denied North Carolina’s motion to stay the Fourth Circuit order, especially given the state’s tardy filing of its motion. What was surprising is that there was a 4-4 tie, with the four conservative justices voting to reinstate the restrictions (Chief Justice Roberts, Justice Kennedy, Thomas, and Alito). Those justices dissented from the denial of a stay, even though it’s hard to imagine a broader and deeper package of voting restrictions or, at least in 2016, one with a more evident racial discriminatory purpose than that of North Carolina.

Given the split in the North Carolina case, there was no real hope that the Court would intervene in Ohio Democratic Party v. Husted.  That case challenged Ohio’s elimination of “Golden Week,” the five-day period for same-day registration and early voting.  African Americans disproportionately relied on this window, leading the federal district court to conclude that it violated Section 2 of the Voting Rights Act.  Although this restriction was less onerous than those adopted in North Carolina, Ohio’s anti-fraud justification was especially flimsy.  It defied both credulity and the evidence to argue, as did Ohio, that there was a significant risk of fraud with ballots cast thirty days before election day.

Ohio’s pretextual justification suggested that, as in North Carolina, the Republican-dominated legislature’s real goal was to gain partisan advantage by restricting a means of voting disproportionately used by African Americans. The highly respected district judge ruled against Ohio, doing exactly what the law requires by carefully sifting through the evidence on both sides. The fact that the district judge was appointed by George W. Bush and formerly served as Chief Counsel to Republican Governor George Voinivich adds credibility to his studied conclusion that Ohio’s voting restrictions violated both the Fourteenth Amendment and the Voting Rights Act.

The Sixth Circuit nevertheless reversed, beginning its opinion with an ideological statement of opposition to judicial intervention in voting disputes:  “This case presents yet another appeal …asking the federal courts to become entangled, as overseers and micromanagers, in the minutiae of state election processes.”  The court’s reasoning on the Voting Rights Act claim is even more troubling.  Remarkably, it found that plaintiffs had failed to prove the requisite disparate impact on African Americans, even though they were heavy users of the voting opportunity that the state eliminated. Though the Sixth Circuit opinion isn’t a model of clarity, it seems to suggest that a racial minority group is foreclosed from prevailing if its overall turnout is equal to that of the majority group, emphasizing that “the statistical evidence shows that African Americans’ participation was at least equal to that of white voters.”  This suggests that a racial group should always lose if their overall turnout equals that of the majority.  The proper threshold question is whether the challenged law eliminates opportunities that African Americans predominantly use, as I’ve explained in this article (pp. 473-80).

Despite the problems with the Sixth Circuit’s reasoning, there was practically no hope of the Supreme Court staying its order. There was no reported dissent from the Court’s denial of a stay, but that says little or nothing about what would have happened if the Court had a full complement of justices.  The same is true of the Sixth Circuit’s most recent decision in NEOCH v. Husted, mostly rejecting a challenge to procedures used for provisional voting, absentee voting, and voter assistance.   Although there are similar problems with the Sixth Circuit’s analysis of the Voting Rights Act claim in that case, seeking Supreme Court review would be similarly futile.

These cases create serious doubts about whether the Supreme Court, as presently constituted, can be trusted to protect the fundamental right to vote. As a practical matter, it means that federal appellate courts now enjoy a great deal of power, as Rick Hasen has noted.  Divisive voting issues are very likely to split the Court in half, meaning that the lower court’s ruling will be affirmed.  And this is to say nothing of looming controversies over partisan gerrymandering and campaign finance, also likely to divide the current Court in half.

Sadly, it is a virtual certainty that the Court will remain understaffed for the remainder of the current election season, with several voting cases still pending and more likely to come up. As long as this seat remains open, there will be a 4-4 split on several important issues, but none are more important. The fundamental right to vote, and therefore all of our rights, are at stake.

The Sixth Circuit’s Distinction between Absentee and Provisional Ballots: Why?

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This comment originally appeared as a guest post at Rick Hasen’s Election Law Blog.

One thing I don’t understand about the majority opinion in yesterday’s NEOCH decision is the distinction that the majority draws between absentee and provisional ballots for the purpose of applying Anderson-Burdick balancing to the invalidation of ballots for a voter’s clerical error in writing the voter’s birthdate or address on the envelope in which the ballot (absentee or provisional) is submitted.

The majority finds an Equal Protection violation under Anderson-Burdick for the invalidation of ABSENTEE ballots for this type of clerical error, but rejects the equivalent Equal Protection claim with respect to the invalidation of PROVISIONAL ballots for the identical type of clerical error.  This disparate disenfranchisement of comparably situated voters (by the Sixth Circuit majority) itself invites Equal Protection inquiry under a Bush v. Gore type of analysis.

What does the Sixth Circuit majority say to justify this distinction?  Not much; it doesn’t really address the comparison of absentee and provisional ballots directly, but rather just analyzes each separately in turn under its application of the Anderson-Burdick balancing test.

The majority seems to think that process of verifying provisional ballots, to make sure that the provisional voter is registered and authentic (ID matches, so that the person casting the ballot is really the person entitled to cast it) justifies disqualifying a provisional ballot if the voter accidently writes the wrong information for the voter’s birthdate or address—for example, accidently writing the current date rather than one’s birthdate.  The relevant sentence of the majority’s opinion, on page 22, is this:  “Ohio’s important interests in provisional-voter registration and identification eclipse the small burden of accurately completing the two fields—a burden that actually impacts just a few hundred voters each election, an impact wholly in their own control.”

But then the very next sentence is: “However, we agree with the district court that Ohio has made no such justification for mandating technical precision in the address and birthdate fields of the absentee-ballot identification envelope.”  Ohio’s defense was the same in both contexts: the need to make sure that the person submitting the absentee ballot was in fact registered and authentically the person in whose name the ballot is being cast.  But here the majority rejects the defense as theoretical and speculative, not grounded in actual evidence of a problem.  As the majority puts it, “some level of specificity is necessary to convert that abstraction into a definite interest for a court to weigh.”  (Id.)  But why wasn’t that point equally applicable to the same defense regarding provisional ballots?

It is as if the majority opinion believes that provisional ballots are inherently more suspicious than absentee ballots, enough so that an innocent clerical mistake is enough grounds to toss the ballot out, thereby disenfranchising the voter.  But this position makes no sense to me.  The constitutional claim in the case, as the Sixth Circuit majority itself defines it, concerns the invalidation of the ballot solely because of the clerical error regarding the birthdate—the mistaken writing of the current date, for example (as I discussed in a previous post on this case before it reached the Sixth Circuit).  But if this is the sole reason for rejecting the provisional ballot, then the election officials already know that the provisional voter’s registration status has been confirmed, and that the provisional voter’s required ID number (driver’s license or last 4 digits of SSN) has dispelled doubt about the voter’s authenticity.  In this situation, there is no need to disqualify the ballot just because of the inconsequential clerical error regarding the birthdate.  As the majority acknowledges elsewhere regarding ABSENTEE ballots, the state’s justification for “requiring mail-in voters to complete the address and birthdate fields” as information that potentially aids election officials in the verification process is not an adequate justification “to reject ballots containing technical errors” when those errors do not defeat the ability of officials to verify the ballot in question (slip op. at 24; emphasis in original).  The very same point applies equally to provisional ballots, but the Sixth Circuit majority just seemed to miss it in that context.

There is some language in the Sixth Circuit’s majority opinion that suggests that it might make a difference to the Anderson-Burdick balancing that numerically fewer provisional ballots are rejected each election because of these clerical errors than absentee ballots 620 provisional ballots, compared to 1712 absentee ballots, in 2014 & 2015 (slip op. at 21).  But that numerical difference would seem irrelevant under the way that the Crawford “plurality” — the Justice Stevens opinion — understood Anderson-Burdick balancing (in contrast to Justice Scalia’s alternative approach in his Crawford concurrence), and the Sixth Circuit majority acknowledges the Stevens opinion in Crawford to be “controlling”.  In this regard, the Sixth Circuit majority refers to the Anderson-Burdick claims before it as “facial challenge[s]” (slip op. at  21), but I had understood the Anderson-Burdick claims in this case – in contrast to Crawford itself – to be as-applied challenges on behalf of the subset of voters represented by the plaintiffs (the homeless and other specifically disadvantaged groups).

This leads me to wonder whether, even after yesterday’s decision, there is still the possibility of a valid AS-APPLIED challenge on behalf of any provisional voter whose ballot is rejected solely because of a clerical error regarding a birthdate or address—and that the upshot of the decision is that the equivalent rule regarding absentee ballots is facially invalid, and thus absentee voters do not need to seek an as-applied remedy for this kind of disenfranchisement, whereas provisional voters still do.  Even so, I still don’t understand the basis for the Sixth Circuit majority’s distinguishing between absentee and provisional voters, even for purposes of the kind of claims that the majority characterized as equivalent “facial challenge[s].”  But at least that would not rule out the possibility of protecting provisional voters from disenfranchisement solely because of a clerical error that the Sixth Circuit majority itself defines as inconsequential to verifying the voter’s eligibility and identity.

I welcome hearing from others about their thoughts on how best to understand the Sixth Circuit’s distinction between provisional and absentee ballots with regard to rejecting them for clerical errors.

When Should a Voter’s “Clerical Error” Invalidate a Ballot?

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Not when the state already has enough information to verify the ballot’s validity.

Roland Gilbert accidently wrote the current date, instead of his birthdate, when filling out the form on the envelope for submitting his absentee ballot in Ohio’s 2014 general election (which included a gubernatorial race). It’s a mistake that all, or at least most of us, have made at one time or another in our lives when filling out forms. Is it a mistake that should disqualify Roland Gilbert’s absentee ballot from being counted?

As a policy matter, I certainly think not. Moreover, this policy position recently has been adopted by the American Law Institute, a prominent nonpartisan organization most famous for its Model Penal Code, Uniform Commercial Code, Restatements of Law covering a wide variety of fields (like contracts, torts, and property law), and other law-improvement projects. In its new Principles of Law project concerning Election Administration, the ALI takes the position that an absentee ballot should not be invalidated if the identity of the absentee voter can be verified and the voter is registered and eligible to cast the ballot. (Full disclosure: together with my Election Law @ Moritz colleague Steve Huefner, I serve as Reporter to the ALI project that developed this and related principles.)

With respect to Roland Gilbert, there was no dispute that he was a registered and eligible voter. Nor was there any dispute that the absentee ballot in question had been cast by him. As required by a separate provision of Ohio law, he had supplied identification information for his absentee ballot (driver’s license number, or SSN, or the like), and this information sufficed to verify his identity—and his ballot’s authenticity. Yet his ballot was rejected—and thus Roland Gilbert disenfranchised—apparently for the sole reason that he mistakenly wrote the current date instead of his birthdate on his absentee ballot envelope.

This disenfranchisement seems wrong and undemocratic, disturbingly so. But is it unconstitutional? That legal issue is at the heart of the pending case, NEOCH v. Husted, in which federal district court Judge Algenon Marbley recently ruled that this disenfranchisement does violate the equal protection clause of the federal Constitution. Ohio’s Secretary of State Jon Husted has since appealed the case to the Sixth Circuit federal appellate court.

The Applicable Constitutional Analysis

To determine whether a state violates equal protection in the administration of its voting laws, the U.S. Supreme Court has devised what has come to be called the “Anderson-Burdick” balancing test. As I discussed in a recent essay on another pending federal court case involving Ohio’s voting laws, the one involving the state’s repeal of so-called “Golden Week” (when eligible citizens could both register to vote and cast their ballots during the same trip to an early voting location), the first task under the Anderson-Burdick balancing test is to identify the allegedly objectionable way in which the state is differentiating between two groups of voters. In the Golden Week case itself, this seemed impossible to do, since even after the repeal of Golden Week, Ohio was offering the same amount of voting opportunities to all eligible voters: 23 days of early voting, no-excuse absentee voting, and traditional Election Day voting. As I explained using an analogy to government-provided Shakespeare in the Park, the fact that in previous years the government used to provide five weeks of summer theater whereas now the government provides only four weeks does not cause a differentiation among would-be theater-goers that would raise an equal protection question. As long as the currently available four weeks are equally available to any person who would like to attend, there can be no equal protection objection to the shorter length of this government-provided benefit.

By contrast, in the NEOCH case, there is no doubt that Ohio is differentiating between two groups of voters: (a) those who correctly complete their birthdate on their absentee ballot envelopes and (b) those who do not. Thus, it is entirely appropriate to scrutinize this differential treatment of voters under the Anderson-Burdick balancing test. Although the justices of the U.S. Supreme Court have not been entirely clear—or in agreement among themselves—on exactly how Anderson-Burdick balancing is supposed to work, it essentially involves a comparative weighing of (i) the burdens imposed on the voters who suffer the differentially adverse treatment and (ii) the state’s justifications for imposing this adverse treatment on the negatively affected group of voters.

The most directly relevant precedent from the U.S. Supreme Court is Crawford v. Marion County Election Board, where the justices applied Anderson-Burdick balancing to Indiana’s voter ID law. There, the nine justices divided into three groups, of three justices each. The three most liberal justices on the Court at the time (Souter, Ginsburg, and Breyer) would have invalidated the Indiana law in its entirety as being unduly burdensome in relation to its potential benefits. The three most conservative justices (Scalia, Thomas, and Alito) would have upheld the law in its entirety as being minimally burdensome on the state’s voters considered as a whole. The outcome of the case was controlled by the three justices in the middle (Stevens, Kennedy, and Chief Justice Roberts), who refused to invalidate Indiana’s ID requirement completely, but explicitly left open the possibility that the ID requirement would be invalid as applied to those voters for whom it actually operated as a barrier to participation in an election.

The problem in the case, as these three centrist justices carefully explained, was that the plaintiffs were attempting to obtain an across-the-board injunction, which would have prevented Indiana from enforcing its ID rule even with respect to voters who already possessed the required ID or easily could obtain one (and thus for whom the rule imposed no consequential burden). Moreover, the plaintiffs had failed to identify any individual Indiana voter who actually would be disenfranchised as a consequence of the ID rule’s enforcement.   Thus, the centrists concluded: “Finally we note that petitioners have not demonstrated that the proper remedy—even assuming an unjustified burden on some voters—would be to invalidate the entire statute.”

The reasoning of the centrists in Crawford is instructive for the pending NEOCH case. It is plainly acceptable for Ohio to ask absentee voters to supply their birthdate, as Judge Marbley’s opinion acknowledges. Having this information can help confirm a voter’s eligibility and identity, thereby increasing the government’s confidence concerning a ballot’s validity, and asking a voter to supply it imposes only a trivial burden. (To be sure, as Judge Marbley also observed, there are low-literacy or otherwise impaired voters who cannot fill out an absentee ballot on their own, but under Ohio and federal law they are entitled to assistance in completing their absentee ballot envelope, and thus asking them to include their birthdate is not unduly burdensome even as to these voters.)

But invalidating a ballot, and thus disenfranchising the voter, because of an inadvertent error—like the one Roland Gilbert made, accidently putting the current date, instead of his birthdate—is an entirely other matter. Here, in contrast to Crawford, there is proof of a specific individual voter who suffers a severe burden: disenfranchisement itself, the loss of the right to participate on equal terms with other eligible voters in the election. And what is the state’s justification for this disenfranchisement? In Roland Gilbert’s case, and others like it, there isn’t any. Indeed, it is the existence and enforceability of a voter ID requirement that makes this so.

Ohio is able to ascertain Roland Gilbert’s identity and eligibility because of the ID information that is also required on the absentee ballot envelope. There is no dispute about the accuracy or validity of this information. In this circumstance, confirmation of Ronald Gilbert’s birthdate on his absentee ballot envelope is superfluous, and voiding his ballot because of an inadvertent error concerning this unnecessary extra information serves no valid government purpose. Only in a Kafkaesque bureaucracy, where government functionaries take pleasure in declaring “Gotcha” when they trip up citizens in the enforcement of their administrative regulations, would invalidation of a ballot solely for this kind of innocent mistake seem reasonable.

Thus, under Anderson-Burdick balancing it seems entirely appropriate to order—as Judge Marbley did—that Ohio not disqualify any absentee ballot because of the absentee voter’s failure to provide the voter’s correct birthdate when other available identification information provided on the absentee ballot envelope suffices to establish the voter’s eligibility and the ballot’s authenticity. Were I the judge in the case, I might have tried to frame the injunction against the state even more explicitly than Judge Marbley did to make clear that its scope was limited to those voters for whom an accurate birthdate was indeed superfluous. It is possible to imagine circumstances in which an accurate birthdate would be necessary to authenticate a ballot. Suppose, for example, that two individuals named “John Smith” reside at the same address, perhaps a father and son. They might have indistinguishable signatures, and the identification information provided with the returned absentee ballot—a utility bill, for example—might be insufficient to determine which John Smith was the one who cast the returned ballot. (Maybe one John Smith at that address already has cast another ballot, and it is important not to permit any individual to cast a second ballot in the same election.) In this instance, an accurate birthdate on the returned absentee ballot envelope might enable the government to determine that it was the father, not the son, who cast the ballot (and if it had been the son, not the father, who was the one who already cast the previous ballot, then this ballot now identified as from the father would be valid and eligible to be counted).

As I read Judge Marbley’s order in light of the rest of his opinion, it seems clear enough that it would not bar disqualification of an absentee ballot for lack of an accurate birthdate in those instances, like this hypothetical example, where the birthdate is indeed necessary to verify the ballot’s validity. Instead, Judge Marbley’s order essentially is limited to those other instances, like Roland Gilbert’s, where an accurate birthdate is unnecessary to validate the ballot. So limited, the order permits Ohio both to collect birthdate information in the first place and to rely upon this information in those situations when it is necessary to verify a voter’s identity.

In this respect, Judge Marbley’s order is consistent with post-Crawford developments concerning the constitutionality of voter ID laws. For example, in litigation over Wisconsin’s version of a voter ID requirement, the U.S. Court of Appeals for Seventh Circuit (like the Supreme Court in Crawford itself) refused to invalidate the ID requirement in its entirety. But in a subsequent opinion by Judge Easterbrook, the Seventh Circuit signaled that Wisconsin’s ID law would be invalid as to individual voters who, despite good faith efforts, were unable to obtain the required ID and therefore would be disenfranchised:

Instead of saying that inconvenience for some voters means that no one needs photo ID, plaintiffs contend that high hurdles for some persons eligible to vote entitle those particular persons to relief. Plaintiffs’ approach is potentially sound if even a single person eligible to vote is unable to get acceptable photo ID with reasonable effort. The right to vote is personal and is not defeated by the fact that 99% of other people can secure the necessary credentials easily. Plaintiffs now accept the propriety of requiring photo ID from persons who already have or can get it with reasonable effort, while endeavoring to protect the voting rights of those who encounter high hurdles. [Page 4; emphasis added.]

By the same logic, Judge Marbley’s order protects Roland Gilbert and other individual voters just like him, for whom Ohio’s birthdate requirement imposed an inappropriately disenfranchising burden, even as it imposes no such burden on most other voters.

Judge Marbley’s order is also consistent with a previous appellate decision in an earlier round of the same NEOCH litigation (696 F.3d 580). Back in 2012, the U.S. Court of Appeals for the Sixth Circuit considered the requirement in Ohio law that voters, when casting a provisional ballot, accurately supply on their provisional ballot envelope their name, their signature, and one of several acceptable pieces of identification information (driver’s license number, SSN, and so forth).   In the context of a preliminary injunction proceeding, when consideration of the relevant constitutional claim was tentative and not definitive, the Sixth Circuit surmised that demanding that provisional voters accurately supply these three pieces of information would not be unduly burdensome under Anderson-Burdick balancing. But that pronouncement is easily distinguishable: those three pieces of information are in most instances necessary to verify a provisional voter’s eligibility. Without the voter’s name, election officials simply do not know who the voter is. Without some sort of identification information (like a driver’s license or Social Security number), election officials ordinarily cannot confirm the authenticity of the voter’s identify. And unless a provisional voter has a religious objection to signing the provisional ballot envelope (in which case the signature requirement is waived upon an alternative demonstration’s of the voter’s authenticity), the absence of a signature is an indication of the voter’s unwillingness to attest to the voter’s own eligibility. Thus, none of these three pieces of information are superfluous in the way that an accurate birthdate often can be. Invalidating a provisional ballot for failure to accurately supply any of those three pieces of information would be justifiable in a way that invalidating an absentee (or provisional) ballot for failure to accurately supply a superfluous birthdate amounts to nothing more than the gratuitous disenfranchisement of an eligible voter who has cast a ballot in good faith.

Provisional ballots and address information

There is more to the pending NEOCH case than just the disqualification of absentee ballots because of inadvertent mistakes in supplying one’s birthdate. Like the earlier round of litigation in NEOCH, this round also involves provisional ballots as well as absentee ballots. Under current Ohio law, provisional ballots along with absentee ballots are being disqualified when a provisional voter inadvertently writes the current date instead of the voter’s birthdate on the provisional ballot envelope. According to the same Anderson-Burdick balancing, the same conclusion should apply: the federal judiciary should prohibit Ohio from disqualifying that provisional ballot when the provisional voter accurately supplied other identification information sufficient to verify the voter’s eligibility.

The pending NEOCH case also involves the disqualification of ballots, both absentee and provisional, for inaccurate address information. For example, when filling out an absentee or provisional ballot envelope, a voter mistakenly might transpose digits of the voter’s zip code, writing 42309 accidently instead of 43209. Obviously, a voter’s address is important for determining a voter’s eligibility. In our residence-based system of elections, where which legislative representative one votes for (as well as which municipal offices) depends on where a voter lives, election officials must be able to determine where a voter lives in order to verify the eligibility of a voter’s ballot. Even so, it does not follow that the government should be entitled to disqualify a voter’s absentee or provisional ballot automatically just because the voter made a clerical error concerning the voter’s address when completing the envelope in which the ballot is submitted.

In this context, it is important to remember that the pending litigation concerns voters who already have registered at least 30 days in advance of Election Day, as they are required to do under Ohio law, and when registering have supplied their address. Neither an absentee nor a provisional ballot can count if the voter is not previously registered. Invalidating an absentee or provisional ballot because the voter was not registered, or properly registered, is entirely appropriate and constitutional. Thus, invalidating an absentee or provisional ballot just because of an inadvertent clerical mistake on the absentee or provisional ballot envelope itself is, by definition, disenfranchising a voter whose proper registration status is not in dispute.

For all properly registered voters, the government already has on file the voter’s address. Thus, when examining an absentee or provisional ballot envelope, the only relevant question is whether the government has adequate information to link the ballot to a properly registered voter who purportedly cast it. If the envelope contains the name and signature of a properly registered voter, as well as a key piece of identification information (like a driver’s license or Social Security number), and if those three pieces of information match what is on file in the government’s voter registration database, then the government has established a positive link between the ballot and properly registered voter who cast it. If there is no reason to believe that an inadvertent error concerning completing the voter’s address on the envelope undermines that positive link, then there is no reason to disqualify the properly registered voter’s ballot just because of that inadvertent error.

This would be the case, for example, when a voter has made a simple transposition of digits in the voter’s zip code or made some other minor error, like writing “123 Park Avenue” instead of “123 Park Place”. If the rest of the address is correct—and the voter’s name, signature, and identification information all match what’s in the government’s registration database for that voter—then election officials have no reason to doubt the validity of the voter or the authenticity of the ballot. In this situation, it is obvious that a routine and innocent clerical error has occurred. Under Anderson-Burdick balancing, as explained by both the Crawford centrists and Judge Easterbrook, this particular voter should not be disenfranchised just because of the clerical error. When the government knows it has an authentic ballot from a valid voter, the government should not be disqualifying the ballot according to some “Gotcha” theory of clerical perfection. The right to vote on equal terms with other eligible citizens is too important for that kind of bureaucratic mentality.

To be sure, there may be instances in which inaccurate information concerning a voter’s address on an absentee or provisional ballot envelope might undermine the government’s confidence that it has an authentic ballot from a valid voter.  (The government legitimately asks voters to include their address on their absentee or provisional ballot envelope, even though the government already has a registered voter’s address on file, as part of its overall efforts to increase the accuracy of its ballot authentication processes, just as it does by asking voters to include their birthdates. Even if this extra information is not always necessary, sometimes it is useful, and there is nothing wrong in asking for it. Ohio also uses addresses on provisional ballot envelopes to create new valid registrations for provisional voters whose previous registration status the government cannot verify, thereby enabling these voters to cast countable ballots in future elections.)

If the address on the envelope looks nothing like the address on file in the voter registration database, then the government might have reason to doubt the ballot’s eligibility. In that situation, the government might be justified in calling upon the voter to clarify the discrepancy before the ballot is definitively entitled to be counted. But in those situations in which it is readily apparent that a discrepancy concerning the properly registered voter’s address is nothing more than a routine, innocent clerical error—which in no way undermines the government’s confidence that the ballot in question was cast by a voter entitled under state law to cast that very ballot—then the government is not justified to require anything further from the voter before proceeding to count that valid vote. To demand anything more from the voter in this instance would be an inherently unjustified burden, and thus one that necessarily flunks Anderson-Burdick balancing.

Simply put, in this situation, the government already has enough information to validate the ballot. To make the voter do anything more is overkill. For this reason, the voter should not be required to correct the obvious clerical error in order for the ballot to count. Accordingly, for this set of circumstances, it is appropriate for the federal courts to require (as Judge Marbley had done) that the state count the properly registered voter’s authentic ballot.

(Under Ohio law, a voter’s change of address may sometimes present a confusing situation for both the voter and the poll worker. If a previously registered voter has moved residences within the same county, but has failed to update the voter’s registration with the new address—as the voter is now able to do online—then the voter is supposed to cast a provisional ballot at the precinct appropriate for the voter’s new address, and that provisional ballot should count once the voter’s new address is verified. If the voter accidently puts the voter’s old address on the provisional ballot envelope, instead of the new address, there will be a mismatch between what the voter should have supplied and what the voter did supply.   If election officials can figure out what happened without additional information, and thereby determine that the voter actually cast a ballot in the correct precinct for the voter’s new address, then the officials should go ahead and count the ballot as properly cast. But this may be one of those instances in which election officials need additional information from a voter in order to corroborate the change of address, in which case the government would be entitled to disqualify the ballot if the additional corroborating information was not forthcoming.)

Other issues in the NEOCH case

When an absentee or provisional voter is legitimately required to supply additional information in order to validate the voter’s ballot, there is the question of how much time the voter should have to supply this information. In Ohio, voters previously were permitted ten days for this purpose. Now they have only seven. One of the issues in the pending NEOCH case is whether this shortening of the so-called “cure” period violates either equal protection or the Voting Rights Act.

This particular issue, it seems to me, is more like the curtailment of early voting that caused the elimination of Golden Week. Whether it is good or bad policy to cut the cure period from ten to seven days, it is not obvious to me that this cutback triggers Anderson-Burdick balancing. All voters now receive seven days. Where is the differential treatment among different groups of voters? That some voters would like, or would especially benefit from having, three extra days means that the shorter period imposes a “disparate impact” but under equal protection law that does not mean that the law subjects these voters to differential treatment—and it is only differential treatment, not disparate impact, that triggers equal protection scrutiny (whether under Anderson-Burdick, rational basis review, or any other level of judicial review). To invoke another basic analogy, suppose the government used to provide free transit for anybody on municipal buses from July 1 to July 10, but now provides this free transit only from July 1 to July 7. Yes, it is a cutback, but as long as the current free service is available to anyone who wants to ride the bus, it does not seem to be a differential treatment among would-be riders, even if there are some citizens who would prefer to ride the free bus during the extra three days no longer available.

But however the cutback of the cure period should be analyzed under Anderson-Burdick balancing, and however some other ancillary issues in the pending NEOCH case should be handled, it should be clear from the discussion above that that there are serious constitutional questions at stake. At issue is the potential disenfranchisement of properly registered voters who have cast their ballots, in circumstances where the government has no reason to doubt these voters or their ballots.   As Judge Easterbrook has observed, even if the voters and ballots that fall into this particular category are a tiny faction of all the voters and ballots in an election, the right to vote belongs to each eligible individual, who is entitled to protection from improper disenfranchisement. The federal courts are capable of tailoring injunctions carefully, so that a state law may be enforced in those many circumstances—indeed most of them—where it causes no improper disenfranchising effect, while at the same time the federal court’s injunctive relief safeguards those relatively few voters who need protection from disenfranchisement caused by the unnecessarily excessive enforcement of an otherwise unobjectionable state law.

When all is said and done, the upshot of the pending NEOCH case should be clear: Roland Gilbert and other voters just like him should be protected from being disenfranchised solely because they made a simple and understandable error when filling out their birthdate or address on their absentee or provisional ballot envelope.

A Tale of Two Swing States

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Pennsylvania should prepare itself for the kind of “voting wars” litigation that Ohio has experienced in recent years, including a claim that the state’s current opportunities to cast a ballot impose a disproportionate burden on the state’s African-American voters.

Since 2004, Ohio has been at the epicenter of the so-called “voting wars” because of the pivotal role the state played in George W. Bush’s reelection victory over John Kerry. Given the possibility that a presidential election might again hinge upon which candidate prevails in the state, over the last dozen years both Democrats and Republicans have pursued litigation in an effort to adjust Ohio’s voting rules in ways that the parties perceive to be favorable to their candidates. On the topic of provisional voting alone, there has been at least one major lawsuit actively litigated in every federal election year since it became clear that a close presidential election—like Bush-Kerry itself—might turn on which of Ohio’s disputable provisional ballots end up being counted.

Pennsylvania, by contrast, has largely escaped the intensity of electoral litigation to which Ohio has been subjected. To be sure, when Pennsylvania adopted a new voter identification law in 2012, it provoked lawsuits and, indeed, was invalidated by the state’s judiciary. Also, fears about the reliability of Pennsylvania’s voting machines in 2008 prompted the NAACP to seek, and a federal court to grant, an emergency injunction requiring the state to supply precincts with backup paper ballots. Still, for the most part, Pennsylvania’s voting procedures have not been subjected to nearly the same degree of judicial scrutiny as have Ohio’s during the past decade.

Now we have a report from Dave Wasserman at the 538 website that Pennsylvania is most likely to be the state that tips the Electoral College for the winning candidate. I’m sure Ohio would be happy to share the spotlight that comes from having this “swingiest” of swing-state status. But is Pennsylvania ready for it? One advantage of all the litigation that Ohio has experienced over the last decade is that its electoral system has been tested. Sure, there are new problems that could emerge in Ohio this November, but many of the ambiguities concerning how to count certain categories of ballots in particular circumstances have been clarified through judicial resolution. Because Pennsylvania has not been put through the same type of clarifying process, there potentially will be more available grounds for disputation if the presidential election there is close enough and, as 538 warns, the White House hangs in the balance.

Are Currently Available Voting Procedures Discriminatory?

One issue that is presently under litigation in Ohio, and which Pennsylvania has not yet faced, is whether the state’s current rules concerning the opportunities available for registering to vote and casting a ballot either discriminate on the basis of race or otherwise deny citizens the equal protection of the laws. In Ohio, the current law is that voters must register 30 days in advance of Election Day and, having done so, then may cast a ballot in one of three ways: first, under a regime of “no excuse” absentee voting, all registered voters may choose to cast an absentee ballot and deliver it by mail (or, if they prefer, drop it off at their local board of elections); second, under a regime of early in-person voting that begins 27 days before Election Day (on October 12 in 2016), all registered voters may choose to go to a designated early voting center in their county on any of the 23 days in which this early voting is available; and third, under a regime of traditional neighborhood-based precinct voting, all registered voters may choose to cast their ballot on Election Day itself at the polling place for their local precinct. In Pennsylvania, current law also requires that voters register 30 days in advance, and all registered voters also may cast their ballots on Election Day at a traditional neighborhood polling place for their particular precinct, but Pennsylvania currently does not offer any in-person early voting, and Pennsylvania also restricts absentee voting to those voters who satisfy a limited list of justified reasons for being unable to vote at their local precinct on Election Day (like military service, disability, and business travel).

Ohio’s current law is being challenged as racially discriminatory and a violation of equal protection because it is less expansive in its provisions than a previous Ohio law, under which early voting started 35 days before Election Day and, as a result, provided a five-day period—dubbed “Golden Week”—in which it was possible to register to vote and cast an early in-person ballot at the same place at the same time.   In a recent ruling after a trial on the merits of these claims, however, the federal court found that Ohio’s change in its law was not motivated by racial discrimination. [See opinion at 115.] Therefore, under longstanding constitutional doctrine, which requires a racially discriminatory intent to prevail, it is impossible to claim that Ohio’s law is unconstitutional race discrimination. [See Washington v. Davis, 426 U.S. 229 (1976).] Laws that are racially discriminatory in effect, but not intent, may violate federal statutory laws, and we will consider whether Ohio’s voting rules have a racially discriminatory effect that violates the federal Voting Rights Act. In the absence of a racially discriminatory intent, however, the presence of a racially discriminatory effect does not violate either the Fourteenth or Fifteenth Amendment. [See Rogers v. Lodge, 458 U.S. 613 (1982) (applying the rule of Washington v. Davis to voting cases).]

Equal Protection Analysis

             Before turning to the Voting Rights Act, we should consider a separate equal protection challenge to Ohio’s current voting, one not based on a claim of race discrimination. Under jurisprudence dating back to the 1960s, the differential treatment of citizens with respect to the opportunity to vote calls for special judicial scrutiny given the fundamental importance of voting in a democracy. Thus, as the Supreme Court held in the canonical case of Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), the imposition of a poll tax violates the Constitution’s equal protection clause insofar as it conditions the right to vote on having the financial resources to pay the tax. The Supreme Court applied this line of equal protection cases most recently in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), which involved Indiana’s voter identification law.

The plaintiffs in the pending Ohio case, which include the Ohio Democratic Party in the lead, have invoked this line of cases—known to lawyers as Anderson-Burdick after two intermediate cases in the line—to argue that Ohio’s current rules for registration and voting violate the Constitution’s equal protection clause. But it is difficult to see how this could be so. Ohio’s current rules requiring registration 30 days in advance of Election Day and providing three alternative methods of casting a ballot (again, no-excuse absentee voting, 23 available days of in-person early voting starting on October 12, and traditional precinct-based Election Day voting) apply equally to all citizens.

The plaintiffs say that Ohio’s elimination of Golden Week imposes a burden on those citizens who in the future would like to take advantage of the opportunity to register and vote at the same place at the same time. Whether or not it is appropriate to characterize the elimination of this convenience as a burden, it is hard to understand it as differentiating among voters and thus denying equal protection to any. No new voters get to take advantage of Golden Week any more. All are required to register 30 days in advance and then separately decide which of the three ways they would like to cast their ballots.

It is the most rudimentary requirement of equal protection jurisprudence that in order for the government to be found to be violating equal protection the government must be treating some persons differently than others.   This was true in the poll tax case: those who paid the poll tax were permitted by Virginia to vote; those who did not pay the poll tax were disenfranchised. Analytically, a similar differentiation among citizens existed in the Indiana voter ID case: those with proper ID were treated by the law differently—more favorably—than those without the proper ID. But no such differentiation among citizens appears to exist in the pending litigation over Ohio’s current rules for casting a ballot. Again, the same three ways of casting a ballot apply equally to all. An equal protection challenge to these current rules would seem to fail in this most basic respect: in terms of its availability of early voting, Ohio is not presently engaging in any differential treatment at all among its would-be voters.

To be sure, there may be some potential new Ohio voters who would find Golden Week to be an attractive option.   Of course, any potential new voter would prefer having that option added to other available options, without the loss of those other alternatives. Who would not prefer more choices to fewer?

Yes, but some would-be new voters really would like to take advantage of the extra convenience of simultaneous registration and voting that Golden Week offered. They have an especially strong preference for that form of convenience. Doesn’t the absence of Golden Week deny them equal protection? No. In providing its rules concerning voter registration and the casting of ballots, Ohio law is treating them just the same as other would-be voters. It is providing equal opportunity to all (although obviously not equally as generous as if the options also included Golden Week).

Consider this analogy. Suppose each summer the government offers Shakespeare in the Park. If the government charged the state-subsidized price of $5 per ticket, that would be a government rule that differentiated among individuals in terms of access to this government benefit. That differential treatment would trigger judicial scrutiny under equal protection analysis, although it likely would easily pass muster insofar as access to Shakespeare (while desirable) is not fundamental to democracy. Likewise, if the government required college students to show a valid student ID in order to take advantage of free admission to Shakespeare in the Park for all college students. This ID requirement would differentiate among those having and those not having the ID necessary to obtain free admission.

Suppose that for the summer of 2016 the government decides to offer four weeks of Shakespeare in the Park, starting Monday, August 1. Suppose, however, that there are some individuals who really wish the government would offer an additional week—the last week in July. Maybe these individuals are out of town on vacation the entire month of August and therefore cannot take advantage of Shakespeare in the Park if it is only in August, without an extra week in July. Even so, the government’s decision to limit Shakespeare in the Park to just four weeks in August would not be a denial of equal protection to these individuals. Rather, everyone would be entitled to attend Shakespeare in the Park on equal terms during the four weeks in August that the government provides it.

This equal treatment would be the same even if in previous summers the government operated five weeks of Shakespeare in the Park, with the last week of July included along with four weeks in August. And it would also be true even if in those previous summers one reason why some individuals really liked to attend Shakespeare in the Park during that last week in July, rather than in August, was because it so happened that during that week ArtsFest was also taking place in the same park. Thus, previously arts lovers could take advantage of the opportunity to view the ArtsFest exhibits on the same trip to the park that they watched Shakespeare. Limiting Shakespeare in the Park to four weeks in August, as planned for the upcoming summer, makes this “doubleheader” no longer possible. Even so, limiting Shakespeare in the Park to four weeks in August is not a denial of equal protection to anyone. Everyone still is entitled to attend Shakespeare in the Park during the four weeks of August, and everyone now must make two separate trips to the park if they want to see both ArtsFest and Shakespeare. In limiting Shakespeare in the Park to four weeks rather than five for upcoming summers, the government has not engaged in any differential treatment of individuals that would trigger even minimal “rational basis” judicial review for purposes of the Constitution’s equal protection analysis.

Voting is not Shakespeare in the Park, but the same analytic point applies. At a minimum, there needs to be differential treatment of individuals in order to trigger judicial review under equal protection analysis.   But Ohio’s decision to limit in-person early voting to four weeks rather than five, thereby eliminating simultaneous registration and voting, is not a differential treatment of anyone.

In the pending lawsuit, the federal district judge failed to consider this basic point. Instead, the judge jumped right into judicial scrutiny under so-called Anderson-Burdick balancing. But Anderson-Burdick balancing is part of equal protection analysis, and thus it requires differential treatment of individuals in the first place. (As Rick Hasen already has observed, the federal judge in the Ohio case also oddly conflated Anderson-Burdick balancing with the question of whether Ohio’s currently law has the effect, without the intent, of disproportionately disadvantaging African-American voters; in doing so, the judge apparently contravened the aforementioned longstanding doctrine that racially discriminatory effects in the absence of racially discriminatory intent are not unconstitutional under either the Fourteenth or Fifteenth Amendments.)

To my knowledge, consistent with this basic equal protection point, the U.S. Supreme Court has never applied the Anderson-Burdick inquiry in any circumstance that did not involve differential treatment of individuals with respect to the operation of the electoral process. As already indicated, both Harper (poll tax) and Crawford (voter ID)—the first and latest word respectively from the Court in this line of cases—involved the requisite differential treatment of individuals with respect to the entitlement to cast a ballot. Anderson involved a filing deadline for candidates to get on the ballot, thereby differentiating among candidates who did and did not meet the deadline. Burdick involved a prohibition against write-in candidates, and thus could be viewed either as a differentiation among candidates or a differentiation among the voters who wanted to cast ballots for them. In limiting a voter’s choice among candidates, the state law in Burdick also can be viewed as implicating distinctive Free Speech interests that are not at play in Ohio’s rule concerning the number of weeks available for in-person early voting, or in the current lack of overlap between early voting and the registration deadline.

In two cases from the 1970s, before both Anderson and Burdick, the Supreme Court considered the constitutionality of laws that imposed early deadlines on the right to vote.   In Dunn v. Blumstein, 405 U.S. 330 (1972), the Court invalidated a Tennessee law that, although providing for a 30-day registration deadline (like Ohio), required anyone attempting to register to have lived in Tennessee for a year. Then, a year later, in Rockefeller v. Rosario, 410 U.S. 752 (1973), the Court sustained a New York statute that required voters to affiliate with a political party 30 days in advance of a general election in order to be able to vote in the first party primary following that general election. (The current version of this New York law drew a lot of criticism this year insofar as it required independents to declare a party affiliation many months before New York’s hotly contested presidential primary between Hillary Clinton and Bernie Sanders.) Both of these laws can been seen as differentiating between those individuals who satisfy the applicable deadline and those who do not, and thus both of these Supreme Court decisions are consistent with basic Equal Protection analysis. In Dunn, the Court explicitly made this point:

Durational residence laws . . . divide residents into two classes, old residents and new residents, and discriminate against the latter to the extent of totally denying them the opportunity to vote. The constitutional question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits a State to discriminate in this way among its citizens.

405 U.S. at 334-35. In Rockefeller, moreover, the Court there observed that New York’s party-affiliation deadline

did not absolutely disenfranchise the class to which the petitioners belong—newly registered voters who were eligible to enroll in a party before the previous general election. Rather, the statute merely imposed a time deadline on their enrollment, which they had to meet in order to participate in the next primary.

410 U.S. at 757.

In this respect, the 30-day registration deadline in Ohio’s current law—considered by itself—can also be viewed as differentiating between those who meet and do not meet this deadline. But there is little doubt that this 30-day registration deadline would easily pass constitutional muster, given the Court’s precedents. See Marston v. Lewis, 410 U.S. 679 (1973) (rejecting an equal protection challenge to a 50-day registration deadline); Burson v. Fortson, 410 U.S. 686 (1973) (same).  In any event, it is not Ohio’s 30-day registration deadline about which plaintiffs complain in the current litigation; instead, it is Ohio’s current provision of early voting for a period of time that is not long enough to overlap with the time in which the registration window is still open. Yet the challenged aspect of Ohio’s current law, unlike the registration deadline itself, does not differentiate between anyone: it simply makes early voting available for the specified period of 23 days. One might try to say that this aspect of Ohio’s law differentiates between those who do and do not take advantage of this rather extensive period of early voting, but that would be like saying that the government’s decision to provide four weeks of Shakespeare in the Park differentiates between those who do and do not take advantage of this rather extensive theater opportunity.

To say that the government treats persons differently just by offering everyone an ample amount of Shakespeare would be to undermine a basic analytic precept of equal protection jurisprudence. Indeed, to provide something to everyone who shows up to receive it during the time when it is available would seem to satisfy the essence of equal treatment. (If one needs another example to confirm this fundamental point, imagine a municipal swimming pool at which anyone may swim during the time in which it is open between Memorial Day weekend and Labor Day weekend.   Is the city that invites everyone to swim during these available times really denying equal treatment to someone who would prefer to swim at the municipal pool before it opens on Memorial Day weekend?) Insofar as the pending Ohio case involves an equal protection challenge to the availability of early voting in the state, the same point would seem true. Thus, by jumping immediately to Anderson-Burdick, the federal district court in the pending Ohio case seems vulnerable to reversal on the basic ground that Anderson-Burdick does not apply since the case does not involve a differential treatment of would-be voters.

Voting Rights Act Analysis

To my mind, the Voting Rights Act issue in the pending Ohio case is more difficult to think through. That is because section two of the VRA, as revised by Congress in 1982, does not require the existence of differential treatment among voters on the basis of race, but instead imposes liability on a state whose uniform treatment of voters nevertheless results in black voters facing greater obstacles to casting a ballot than white voters. The exact text of section two, as amended, is as follows: “No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” (Emphasis added.) It might have been possible to interpret the phrase “denial or abridgement” narrowly to encompass only outright governmental impediments to the act of casting a ballot. But that possibility has been superseded by decades of Supreme Court jurisprudence, subsequently accepted by Congress in its revisions of the VRA, which apply this “results in . . . abridgement” language to the dilution of African-American voting power as a consequence of the particular way in which legislative districts are drawn during decennial reapportionments. Those district lines are not impediments to casting a ballot; nonetheless they can cause African-American voters to suffer inferior electoral opportunities compared to white voters.

Think, too, of this example: a particular town is residentially segregated, and the town’s only polling place is on the white side of town very far from the neighborhood where black voters live. There is no doubt that the government’s location of this sole polling place close to white voters and far from black voters, even if not motivated by intentional race discrimination, would be a “practice” that “results in . . . abridgement” of the right to vote based on race—or at least a court could so conclude after considering “the totality of circumstances,” as required by additional explicit language in the statute. Indeed, even Justices Thomas and Scalia, the two members of the Supreme Court who adopted the most restrictive interpretation of this language in the VRA, explicitly acknowledged that it would apply to this example: “the section thus covers all manner of registration requirements, the practices surrounding registration (including the selection of times and places where registration takes place and the selection of registrars), the locations of polling places, the times polls are open, the use of paper ballots as opposed to voting machines, and other similar aspects of the voting process that might be manipulated to deny any citizen the right to cast a ballot and have it properly counted.” Holder v. Hall, 512 U.S. 874, 922 (1994) (Thomas, with Scalia, concurring in the judgment).

Note, too, that for the purpose of section two of the VRA, it matters not whether the location of the town’s sole polling place in a white neighborhood (and far removed from where black voters live) is a newly adopted “practice” or instead a longstanding one.   Either way, this practice violates VRA’s section two if the totality of the circumstances demonstrates that the polling place’s location “results in” black voters having more difficulty in casting a ballot than white voters (as would clearly seem to be the case from the rudimentary facts of this example). In this respect, section two of the VRA differs from the Act’s section five, which focuses on whether a change in a state’s voting practices causes a deterioration in the electoral opportunities of racial minorities compared to what those opportunities were prior to the change. Section five has been rendered inoperable by the Supreme Court’s decision in Shelby County v. Holder (2013), and in any event section five would not have applied to Ohio or Pennsylvania because neither state was among the “covered jurisdictions” governed by that particular provision of the VRA. Therefore, in considering whether the current voting practices in Ohio or Pennsylvania violate the VRA, only section two matters, and under section two what is relevant is not the state’s current practices compared to its previous ones, but instead whether the state’s current practices cause minority voters to face greater difficulty in casting a ballot than white voters. Section two’s focus on the present and future, rather than the past, however, means that a practice is not immunized from section two liability just because the practice is longstanding. “It’s been that way forever,” in other words, would be no defense in a section two lawsuit brought against a town with a single polling place in a white neighborhood far from where the town’s black voters live.

But the applicability of section two to “the location of polling places, the times polls are open, . . . and similar aspects of the voting process,” as Justices Thomas and Scalia put it, inevitably raises difficult line-drawing questions. Some states keep the polls open for twelve hours on Election Day, usually from 7 am to 7 pm. But other states are willing to keep the polls open for fourteen or even fifteen hours, from 6am to either 8 or 9 pm. Suppose it could be shown that in a state with only twelve hours of voting on Election Day black voters disproportionately face greater difficulties in getting to the polls than white voters—the principal reason being that black voters disproportionately have work or family constraints that prevent them from having the flexibility to get to the polls within the twelve-hour window—while having the extra two or three hours that other states provide would be an especially great benefit to minority voters. On the basis of this evidence, would the legal conclusion follow that a state with only twelve hours of voting on Election Day violates the VRA? Or would twelve hours be deemed enough, even if it were shown that African-American voters would especially benefit from having fourteen or fifteen hours? Congress presumably did not think it was requiring states to provide more than twelve hours of voting on Election Day when it amended the VRA in 1982 to incorporate the “results” test in section two, but it may be that regardless of congressional intent the 1982 amendment has that legal consequence.

What about the fact that Election Day is on Tuesday, not Saturday or Sunday? Suppose it also could be shown that holding Election Day on Tuesday, rather than Saturday or Sunday, disproportionately burdens black voters more than whites—because, again, blacks on the whole have less flexibility than whites in their weekly schedules. Would that mean that holding Election Day on Tuesday, rather than Saturday or Sunday, is a “practice” that “results in” abridging voting rights “on account of race,” as provided in VRA’s section two? It is hard to believe that Congress meant to make holding elections on Tuesdays vulnerable to a VRA challenge under the results test of section two, especially as Congress itself has set Tuesday as Election Day for federal elections. But it is also hard to identify a principled basis for protecting Tuesday-as-Election-Day from a finding of liability under the results test in VRA’s section two, at least if the evidence shows that holding elections on Tuesdays in fact has a disproportionately adverse impact on African-American voters.

These line-drawing questions seem very pertinent to evaluating the claim that Ohio’s current rules regarding voter registration and the casting of ballots violate VRA’s section two. The federal district court said that they do, because Ohio’s current rules entail an elimination of Golden Week, a practice that African-Americans disproportionately took advantage of when it existed. But recognizing the need to consider Ohio’s rules under section two rather than section five, the federal court also said that it was not applying the “retrogression” analysis applicable to section five claims. [See opinion at 97.] Yet it is difficult to square these two statements from the district court. If the court truly was not employing section five’s “retrogression” inquiry, then it should not matter that Ohio law previously contained Golden Week. What matters, instead, under section two is whether the current set of rules and practices “results in” African-American voters having less opportunity to cast a ballot than white voters.

Citing a since-vacated appellate opinion, the federal district judge (op. at 98) in the pending Ohio case asserted that the elimination of Golden Week was relevant to determining whether currently blacks have equal opportunities to vote as whites. But this assertion seems to be an analytic error. To see this point, consider again the analogy to the government’s provision of Shakespeare in the Park during four weeks in the summer. Suppose the question is whether blacks have equal opportunities to see Shakespeare during those four weeks as whites. For this purpose, the timing of this theater is the only relevant issue (not cost of the tickets, or the location of the particular park relative to where blacks and whites live, etc.) Suppose we have reason to think blacks on the whole are equally able to attend theater during the month of August as whites. In other words, there is no reason why blacks would face greater difficulty attending Shakespeare in the Park during these four weeks in August than whites would.  If this were the case, then we would say the government’s timing of its Shakespeare in the Park does not “result in” blacks having less opportunity to attend this theater than whites.

This conclusion would not change, it is important to recognize, just because blacks might have preferred more than whites would have for the government to offer its Shakespeare in the Park during the last week of July. And on this point it matters not whether the government did nor did not offer Shakespeare in the Park in July previously. (Suppose Ohio had not eliminated Golden Week, but blacks disproportionately would have utilized an additional second week of Golden Week; the fact that Ohio never provided that extra desirable week of simultaneous registration and voting would not cause the provision of one week of Golden Week to result in blacks having greater barriers to voting than whites during the single week of Golden Week.) Even if in previous summers the government provided a fifth week of Shakespeare in the Park during the last week of July, and even if blacks more than whites attended Shakespeare in the Park during this last week of July—and even if they did so because blacks more than whites enjoyed the possibility of seeing Shakespeare on the same trip to the park as viewing Artsfest—it does not follow that blacks have less opportunity than whites to attend Shakespeare in the Park in the upcoming summer when the government is now offering it only during four weeks in August. If it is still true that it is no more difficult for blacks than for whites to go to the park during these four weeks in August, then it does not become more difficult just because blacks more than whites found it preferable to see Shakespeare at the same time as Artsfest. Only on a retrogression analysis would the provision of four weeks of Shakespeare in the Park, rather than the previously available five weeks, become a discriminatory burden on black theater-goers. For the same reason, because VRA’s section 2 does not involve the retrogression analysis that belongs to section 5, the relevant inquiry is whether Ohio’s current provision of 23 days of in-person early voting makes it more difficult for blacks to vote than for whites to vote—not whether blacks more than whites would take advantage of an in-person early voting period that started even earlier.

With this analytical point now clarified, how does Ohio’s current law fare under section 2 analysis? According to US Census data, in 2014 voter turnout among Ohio’s black citizens (40.7%) was actually a little bit higher than among the state’s white citizens (40.2%, for “non-Hispanic whites” as the relevant comparison of majority-race voters). The 2014 election was held after Golden Week had been eliminated, and thus this data suggests that under Ohio’s current rules and practices for voter registration and the casting of ballots the state’s African-American citizens do not suffer disproportionate obstacles in the ability to vote compared to the state’s white citizens. In the previous sentence, the most important word is “suggests” because, as political scientists have observed, there are significant limitations to the US Census methodology that generates this data. Nonetheless, unless there is better data to rebut what the US Census numbers at least superficially suggest (and it is important to remember that plaintiffs bear the burden of proving wrongful “results” in a section two lawsuit), it presumptively appears that blacks citizens in Ohio have an equally effective ability to register and, using one of the state’s three available methods, to cast a vote as white citizens in Ohio. To be sure, African-American voters as a group might disfavor one of Ohio’s available methods of voting. (The district court found that blacks in Ohio tend to distrust absentee voting.) Likewise, African-American voters as a group might prefer a longer period of early voting, or might like to have the convenience of being able to simultaneously register and vote. But under the regime as it currently exists, Ohio’s black citizens do not appear to confront disproportionate obstacles to the casting of ballots that are not confronted by Ohio’s white citizens.

Yet if Ohio’s current regime violates section two of the VRA, as the federal district court ruled, then what of Pennsylvania’s current regime? The federal judge said that in evaluating Ohio’s regime under section two it is irrelevant what the voting rules and practices of other states may be. Not quite. Whatever legal principle leads to a conclusion that Ohio violates section two must also apply to all other states. After all, unlike section five of the VRA, section two governs all fifty states. Thus, if Ohio law violates section two, then we can ask whether according to the same interpretation of section two Pennsylvania law also violates section two?

Based on the conclusion of the federal judge in the Ohio case, Pennsylvania’s existing regime would seem to be extremely vulnerable. As we have seen, Pennsylvania provides much less opportunity to cast a ballot than Ohio: Pennsylvania lacks “no excuse” absentee voting and also lacks any in-person early voting. In other words, Pennsylvania voters without a valid reason for voting absentee are confined to casting a ballot on Election Day (and must have registered 30 days in advance to do so). The fact that this severely limited set of voting options is longstanding “practice” in Pennsylvania would be no defense to a section two challenge to that practice. Rather, the question would be whether this practice of severely limited options “results in” Pennsylvania’s African-American voters facing disproportionately greater difficulties in casting a ballot than the state’s white voters. In this regard, it is worth observing that the same US Census data for the 2014 election shows voter turnout for Pennsylvania’s black citizens to be only 37.1%, significantly lower than the 42.1% turnout rate for Pennsylvania’s white citizens.

Thus, it would seem that Pennsylvania should be even more vulnerable to a section two lawsuit than Ohio. If one resists this conclusion on the ground that Pennsylvania provides enough voting opportunities for both its black and white citizens—it keeps its polls open on Election Day for thirteen hours, from 7 am to 8 pm—then it becomes difficult to see how Ohio could be violating the same section two by providing so much more voting opportunities than Pennsylvania. If one then points out that Ohio used to provide even more voting opportunities than it currently does, including offering the much-desired Golden Week—then it seems like the analysis has converted to a “retrogression” inquiry despite protestations to the contrary. If blacks have no greater difficulty voting than whites do under current Ohio law, but blacks utilized the even more convenient aspects of Ohio’s previous regime at higher rates than whites did, a finding of liability because of this change in Ohio’s law would fit the theory of section five, not the jurisprudence of section two.

The Value of a Retrogression Inquiry

To say that the distinctive retrogression analysis properly belonging to section five should not be smuggled into section two “results” jurisprudence—despite the obvious temptation to do so after the neutering of section five in Shelby County—is not to deny the importance of an anti-backsliding principle in voting rights law. Indeed, one can see the argument of extending section five’s retrogression analysis nationwide, so that it covers northern states like Ohio as well as southern ones like North Carolina.   But as frustrating as it is to wait for Congress to fix the coverage formula applicable to section five in the aftermath of Shelby County, it is seems inappropriate as an exercise of statutory interpretation to convert section two, which was always intended to be distinct from section five, into the functional equivalent of a nationally applicable anti-backsliding rule. (In a current research project, I am pursuing whether the Due Process Clause of the Fourteenth Amendment, which in a wide variety of non-voting contexts is understood to prevent the government from improperly undermining legitimate settled expectations and reliance interests, might be interpreted as encompassing an anti-backsliding principle in electoral contexts and thus could do some of the work of the incapacitated section five.)

But as important as an anti-backsliding principle is to voting rights, it is also necessary to recognize that it comes with costs. If it becomes too difficult for a state to undo an experiment in electoral reform, states will be reluctant to experiment in the first place. States without any early voting will be advised by their attorneys that if they choose to adopt some early voting they may be stuck with whatever amount they initially provide, so perhaps they better think twice before adopting it.

There are legitimate reasons why a state might not want to offer more than two weeks of early voting. One of the presidential debates this year is scheduled for October 19. A state might think that it is much better if voters cast their ballots after they have seen all the debates, and that voters should not cast their ballots “too early” based on incomplete or outdated information compared to what is known on Election Day itself. A state that expanded its available days of early voting from zero to two weeks, but no more, would be seen as embracing a reasonable balance between making voting more convenient and having the election capture the electorate’s collective opinion at a particular moment in time.

(The American Law Institute, at its annual meeting on May 16 this year, approved a set of principles for early and absentee voting that recognized, among other relevant considerations, the “information gap” among voters that potentially increases as the period of early voting lengthens. This “information gap” was a factor in the ALI’s deliberations on what to recommend as a minimum amount of in-person early voting for those states choosing to establish an early voting regime. The ALI settled upon a recommendation that early voting begin no later than ten days before Election Day, rather than adopting a recommendation that early voting necessarily should begin even earlier in October than that, in recognition that some states legitimately might wish to avoid the “information gap” associated with a longer period of early voting. Full disclosure: together with my Moritz colleague Steve Huefner, I serve as reporter for this ALI project.)

If a state experimented with a month of early voting, but subsequently decided that two weeks was a better balance of the competing considerations, a state should not be unduly hindered from making this kind of adjustment to its election laws. To be sure, as section five required before Shelby County, if a state has a history of racial discrimination in voting and the state decreases its early voting period from four weeks to two, the state should be required to justify this cutback in nondiscriminatory terms, and the federal judiciary should make sure that any nondiscriminatory reason that the state asserts is not mere pretext. But in principle a state’s decision to hold two rather than four weeks of early voting can be understood in racially neutral terms, and no state that experiments with a longer period of early voting should be forever barred from deciding that a two-week period would be better.

In any event, that kind of point would be relevant to the application of a retrogression analysis. But for the reasons elaborated, retrogression analysis is not germane to the evaluation of Ohio’s change in its early voting rules. What matters, instead, is a proper application of the section two “results” analysis.

For an interesting comparison on how section five and section two apply differently to the same reduction in early voting, one can examine the two decisions concerning Florida’s changes in early voting in advance of the 2012 election. As a consequence of new legislation, Florida’s early-voting period shrank from a maximum of twelve days to a maximum of eight, although the legislation also provided other changes that newly guaranteed three weekend days of early voting, including one Sunday of early voting, and potentially retained the same number of total hours of early voting compressed into a fewer number of days. In Florida v. United States, a three-judge district court (which included Supreme Court nominee Judge Merrick Garland) ruled that under section five Florida had failed to demonstrate that its changes to early voting were not retrogressive. By contrast, in a separate lawsuit presenting a section two challenge to the same legislative changes in early voting, Brown v. Detzner, a federal district judge in Florida ruled that plaintiffs had failed to establish that the changes resulted in the state’s black voters having less opportunity to cast a ballot than the state’s white voters. It is hard to square the federal court decision in Brown v. Detzner, the Florida section two case, with the recent ruling in Ohio.

What Next?

As the Ohio case moves from the district to the circuit court, this much seems clear: the status of section two analysis is extremely fluid given the line-drawing difficulties involved. On appeal, the Ohio case could go either way. But if the district court is affirmed, meaning that current Ohio law does violate section two, then Pennsylvania should beware. For the Ohio ruling on appeal to be principled, it necessarily would mean that Pennsylvania is at significant risk of also violating section two. With Pennsylvania coming into the spotlight as the most likely Electoral College “tipping state,” litigation over Pennsylvania’s voting procedures presumably would follow quickly.

A Comparison of North Carolina and Ohio (and Wisconsin)

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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.