In reading the Sixth Circuit opinion in Ohio’s early voting case now before the Supreme Court, I get the sense that the Sixth Circuit believes that the exact same set of early voting opportunities would be constitutionally permissible in other states, just not in Ohio. Indeed, the Sixth Circuit went so far as to say “the same law may impose a significant burden in one state and only a minimal burden in another.” (Slip. op. at 25.) This view is perplexing. What is it about Ohio that makes its relatively generous provision of early voting opportunities unconstitutional, even though they would be constitutionally permissible elsewhere? In their Supreme Court brief, the civil rights plaintiffs stress Ohio’s horrible experience on Election Day in 2004. Because of the atrociously long lines at the polls on Election Day in Ohio in 2004, the plaintiffs assert that “the default Election Day-only system was no longer a constitutional option for Ohio.” (Page 32-33.)
I entirely accept the premise of plaintiffs’ argument. But I don’t think their conclusion follows. Yes, I’ll taken as given that because of what happened in 2004 in Ohio it would be unconstitutional for Ohio to limit voting solely to Election Day. But does that mean that the amount of early voting that Ohio now has provided does not suffice?
Plaintiffs complain that only one Sunday of early voting is available, and that the only evening hours available are on Election Day itself. As a matter of policy, I concur with their complaint. If it were up to me, I’d provide two weeks of early voting, including two Sundays (as well as two Saturdays) and ample evening hours throughout the fortnight. But I’m not Election Czar of Ohio, or anywhere else, and can I really say that the amount of early voting that Ohio provides is constitutionally inadequate to redress the disenfranchising effect of overcrowding at the polls on Election Day, as occurred in 2004? I think not. As it stands, all Ohio voters have the option of voting on a Sunday, or voting in the evening on Election Day, or voting on either of two Saturdays, or voting on a weekday during regular business hours throughout the four weeks of early voting, or voting by mail during that same four-week period. It’s not the optimal schedule in my view, but it’s hard to see how any Ohio voter is disenfranchised by this particular menu of voting options.