A federal judge ruled Tuesday that Ohio’s cutbacks to early voting are unconstitutional and violate the Voting Rights Act because they give African-Americans “less opportunity to participate in the political process compared to other voters” in past elections.
In 2014, Ohio’s Republican-controlled legislature eliminated in-person early voting on the weekends and during weekdays after 5pm. It also passed a law that ended “Golden Week,” a period of time in which Ohioans could both register and vote on the same day. Golden Week was created in 2005 as a response to the hours-long lines of the 2004 presidential election, when tens of thousands of would-be voters left their polling places in frustration without casting their ballots.
Judge Michael H. Watson -- who was appointed by President George W. Bush -- ruled that "the elimination of the extra days for [early in-person] voting provided by Golden Week will disproportionately burden African Americans," citing expert and anecdotal evidence. He added that being forced to vote on another day or on Election Day would simply result in longer lines.
“African Americans will disproportionately bear this burden, because … they have greater time and resource limitations that may prevent them from waiting in line on Election Day and are less likely to vote absentee,” he wrote.
“The opportunity for [same-day registration] during Golden Week alleviated the costs to voters of having to register and vote at separate times,” Watson added. “Indeed, it may be more difficult for voters with time, resource, transportation, and childcare restraints to make two separate trips to register and vote, and Golden Week allowed individuals to do both at once.”
In April 2015, the American Civil Liberties Union and NAACP reached a deal to settle a previous lawsuit against Ohio Secretary of State Jon Husted (R). The deal restored one day of Sunday voting and more evening hours on weekdays, but Golden Week was not reinstated.
Soon after, the Ohio Democratic Party and Ohio voters filed a new lawsuit against the state, arguing that the early voting cutbacks and other restrictions on voting disproportionately burdened racial minorities and young people, because the state legislature knew that those groups are more likely to take advantage of the early voting period.
The plaintiffs' representative was Marc Elias, a Democratic campaign finance and voting rights lawyer who also represents presidential candidate Hillary Clinton’s campaign. Elias, bankrolled in part by the billionaire philanthropist George Soros, is involved in other lawsuits over voting restrictions passed by legislatures in Wisconsin, Arizona, Virginia and North Carolina.
While Republicans say cutbacks to early voting and the elimination of same-day registration in states like Ohio and North Carolina are meant to prevent voter fraud, the court noted that “actual instances of voter fraud during Golden Week are extremely rare.”
It’s difficult for plaintiffs to prove that legislative actions meant to damage Democrats’ chances and those meant to restrict racial minorities' access to the polls are one and the same. The court avoided making that determination.
“It requires too much speculation to find that the historical background of the challenged decisions or the sequence of events preceding the state action show a racial motivation,” Watson wrote. “Indeed, Plaintiffs seem to argue more that it was Democratic successes in 2008, rather than racial bias, that prompted the General Assembly and Secretary Husted to take the challenged actions.”
In a statement, Husted praised other parts of the judge’s ruling that upheld state policies regarding the number of electronic voting machines and early voting locations in each county, as well as changes to the state’s absentee vote-by-mail program.
“While I am pleased the court has upheld existing law on nearly every issue, it is disappointing that a federal judge would again change the election rules after the current laws were upheld in the same federal district court by a settlement agreement we reached with the NAACP and the ACLU,” Husted said. “This point is further amplified when you consider that, for nearly 200 years, Ohioans voted for only one day. If it was constitutional for lawmakers to expand the voting period to 35 days, it must also be constitutional for the same legislative body to amend the timeframe to 28 days, a timeframe that remains one of the most generous in the nation.”
The state said it would appeal the ruling to the 6th U.S. Circuit Court of Appeals on Tuesday. Since another federal court upheld North Carolina’s cutbacks to early voting and elimination of same-day registration, the Supreme Court could eventually take up one of these cases if the 6th Circuit upholds Watson's ruling.
The Supreme Court’s conservative wing displayed skepticism about federal voting rights legislation when it struck down a key section of the landmark Voting Rights Act in 2013, so there are high stakes for the lawsuits in Ohio, North Carolina and elsewhere.
The Voting Rights Act provision required states and localities with a history of voting discrimination to get federal permission to change their voting laws. The VRA still bars voting procedures that discriminate against racial minorities under Section 2 -- the provision at issue in the Ohio suit -- but the strength of that section hasn’t since been tested at the Supreme Court.