As a number of bloggers have reported, (including, separately, Professors Rick Hasen and Derek Muller) a generous pro-voter convenience decision has just come out of the 6th Circuit Court of Appeals. The court found that by eliminating a five-day period where voters could do same-day-registration and early voting all in one go, the State of Ohio had unjustifiably curtailed the opportunity for poor and minority voters to cast ballots. The reason why some analysts of the decision (including legal scholars from the Left) aren’t enthusiastic about the decision is that they find their credulity strained by the argument that voting rights are badly injured when a 35-day early voting period is reduced to a 28-day early voting period. The decision in Ohio State Conference of the NAACP v. Husted, et al. (pdf helpfully provided by Rick Hasen’s election law blog) is receiving criticism because of a perception that the court is going crazy and ruling that even the most inconsequential, incidental or de minimus injuries to voters rights are unacceptable.
As Derek Muller pointed out in his blog, Ohio didn’t even have early voting until 2005, and (from his perspective) the court is getting into a high dudgeon over a frankly inconsequential reduction. Are Ohioans walking through broken glass to vote? Are they having to cut through minefields and no-man’s land? – they’ve got a month to cast their ballots. Luxury! Why, when I was a lad, we had to struggle uphill through towering snowdrifts to vote, and we only had voting on Election Day!
As a general principle of election law, voters are not “owed” early voting opportunities. Early voting (at least traditionally) has been regarded as a convenience that the State offers to voters more for the sake of the State’s own administrative ease and benefit than because of any inalienable right inherent in citizenship. One is not endowed with the right to cast a ballot prior to Election Day. There are a number of states that offer either no in-person early voting whatsoever, or offer much less early voting than Ohio.
And generally in the past, civil rights arguments against a lack of early voting (say, based on the 14th Amendment, the Voting Rights Act, or on other theories) go exactly nowhere, given that the States have broad authority to conduct their elections pursuant to state laws.