Today’s federal district court ruling in the Ohio early voting lawsuit will set a major precedent of nationwide significance if its novel legal theory is sustained on appeal. The key to understanding today’s decision is to compare Ohio, a state that has a relatively extensive early voting period—although less than before—with a state that lacks early voting altogether, like Pennsylvania or Michigan or New York. Nothing in today’s decision indicates the court’s belief that New York is violating federal law, either the Constitution or the Voting Rights Act, because it has failed to provide any early voting. It appears, moreover, that the court would take this position regarding New York even if there were clear evidence that African-American voters would disproportionally take advantage of early voting as an option in New York and thus the lack of early voting there has a disproportionally adverse impact on African-Americans in New York. The judge’s theory of the Ohio case, instead, rests on the fact that Ohio previously was more generous in its provision of early voting than it currently is and that this cutback, even to an amount of early voting much larger than the none that New York provides, is unlawful discrimination under both the Equal Protection Clause of the Constitution and section 2 of the Voting Rights Act. It is a bold and innovative proposition that will be tested on appeal.
There is a provision of federal law that bars cutbacks in voting opportunities that disproportionally affect African-Americans. That provision, section 5 of the Voting Rights Act, is not involved in the Ohio case. That is because section 5, as written by Congress, had only limited geographic coverage (mostly, although not exclusively, the states of the old Confederacy). Ohio was never covered by section 5 of the Voting Rights Act. But, more significantly, in Shelby County v. Holder (2013), the U.S. Supreme Court invalidated as being based on outdated data the coverage formula that Congress adopted. It has been suggested that Congress should revise the coverage formula, even making it fully national in scope, so that Ohio along with other states would be subject to the anti-retrogression principle of the VRA’s section 5. Congress, however, has not acted on that suggestion.
Thus, the core legal issue in the Ohio early voting lawsuit is whether the Equal Protection Clause of the U.S. Constitution or section 2 of the Voting Rights Act, both of which already have fully nationwide applicability and thus cover Ohio, can be interpreted to contain the same kind of anti-retrogression principle that previously was thought the special province of the VRA’s section 5.