The United States Court of Appeals for the Sixth Circuit has set an expedited briefingschedule in the Obama campaign’s case over early voting in Ohio. The state’s brief is due this coming Monday (9/10), with Obama’s response a week later (9/17), and the state’s reply (if any) the Friday of that same week (9/21). As this appellate process gets underway, I wish to make one observation about an innovative and intriguing aspect of the federal district court’s unexpected order, issued last Friday. (In separate development, the district court has ordered Ohio’s Secretary of State Jon Husted to appear at a hearing next Thursday (9/20) to explain his response to the court’s Friday order.) The district court ruled that the state must restore for Ohio’s entire electorate the three days of early voting immediately preceding the traditional Election Day. These three days existed in 2008 and more recently, until taken away in 2011 by a convoluted series of legislative enactments (combined with some implementing directives from the Secretary of State). The district court did not base its ruling on the ground that these three days of early voting are constitutionally compelled. Rather, the court relied on the ground that the state had left open the possibility that these three days of early voting would be available only to military voters this year, and that the state did not have an adequate justification for differentiating among military and non-military voters in this way. (For further details on the court’s ruling, see my colleague Steve Huefner’s insightful analysis from the day of the district court decision.)
But critical to the district court’s conclusion was the fact that these three days had been taken away for non-military voters rather than added for military voters. In other words, the district court built into its constitutional analysis a kind of “non-retrogression” analysis that is usually reserved for statutory claims under section 5 of the Voting Rights Act, as Rick Hasen noted in his initial report of the decision. This case, however, was not a statutory case, since Ohio is not a jurisdiction subject to the non-retrogression requirement of the VRA’s section 5.
To see that non-retrogression was essential to the district court’s reasoning, one needs to consider only the hypothetical comparison in which the state decides to extend to military voters a benefit with respect to three extra days of early voting that previously had not been available to any voter. To set the baseline, therefore, suppose that at Time One for all voters the state offered five weeks of weekday early voting (but no weekends), coupled with no-excuse absentee voting, as well as the traditional Election Day, but no early voting on the Monday immediately before Election Day. There would be no doubt whatsoever that that situation would be constitutional. All voters would have ample opportunities to vote, much more than the longstanding tradition of just Election Day with absentee voting limited to those with a permissible excuse.