The Sixth Circuit Court of Appeals yesterday upheld the district court’s ruling in in NAACP v. Husted, which stopped new restrictions on early voting from taking effect. This decision is good news for Ohio voters. It faithfully applies existing law to the evidence admitted in the district court, maintaining the established period for same day registration and early voting. The federal courts have done their job by safeguarding voters against partisan manipulation of election rules. This comment explains why the ruling is correct and why Ohio’s call to stay the existing court order should be rejected, especially now that same day registration and early voting are just about to begin. NAACP v. Husted concerns a state law passed earlier this year eliminating Ohio’s limited window for same day registration and early voting, commonly referred to as “Golden Week.”* During this week (September 30-October 6 this year), voters can simultaneously register and cast their ballots in person. Tens of thousands of voters voted in this period the past two presidential elections, with thousands using the opportunity for same day registration and early voting. The evidence presented in the lower court showed that African American, low-income, and homeless voters were more likely to use this voting opportunity. The Sixth Circuit affirmed the district court’s preliminary injunction, based on its conclusion that the NAACP and other plaintiffs had shown likely violations of both the Constitution and the Voting Rights Act.
Two aspects of yesterday’s ruling that have been lost in some of the early reaction. The first is thatcontext matters. Yesterday’s ruling was not written against a blank slate. It instead comes after a now-lengthy litany of voting restrictions imposed by the Ohio legislature and state election officials over the past decade. Space doesn’t permit me to recount them all here, but they include restrictions on early voting and provisional voting that were enjoined during the 2012 election season. Yesterday’s decision from the Sixth Circuit, like that of the district court, is informed by this recent history. Ohio comes to court with dirtier hands than just about any other state over the last decade.
Context matters in another, even more important way. The Sixth Circuit, like the district court, carefully scrutinized the evidence regarding who actually uses early voting during this period and what the likely effects of its elimination would be. As the panel made abundantly clear, the legal question is not whether, in the abstract, voters have a “right” to early voting 35 days before the election. It is instead whether, in the context of Ohio’s current election system, the elimination of same day registration and early voting violates the Equal Protection Clause and Voting Rights Act.