In a stunning opinion, the Sixth Circuit just concluded in Ohio State Conference of the National Association for the Advancement of Colored People v. Husted (PDF) that the State has held illegal elections from 1803 until 2005 that unconstitutionally burdened the right of Ohioans to vote. So let’s set aside the snark for a moment. What did the court say? In 2005, the Republican-controlled Ohio legislature enacted a series of election changes in House Bill 234. It developed no-fault early voting and allowed for early in-person voting at least 35 days before the election. Because voters must register at least 30 days before an election, there was a five-day period in which a voter could register to vote and vote on the same day. In 2014, the Republican-controlled Ohio legislature enacted additional changes via Senate Bill 238, including moving the first day of early voting to the day after the close of voter registration–essentially, 28 days of early-voting. (Additionally, the governor had instituted standardized early in-person voting hours across counties, the focus of additional litigation.) So prior to 2005, Ohio had zero days of early in-person voting; until 2014, it was 35 days; and the legislature amended that to 28 days. That, the Sixth Circuit says, is unconstitutional.
It concludes that this cutback “significantly burdened” African American, lower-income, and homeless voters, so the law was subject to heightened scrutiny.
On what basis? The court notes that African Americas, lower-income individuals, and the homeless are distrustful of voting by mail; the complexities of voting by mail complicate efforts from these affected groups; and that lower-income voters’ reliance on public transportation and wage-based jobs would create difficulties in voting in the 28-day period instead of the 35-day period.
So, it logically follows, that must mean that Ohio’s decision to have zero early voting days from 1803 until 2005 was also unconstitutional. Those reasons, after all, certainly have applied for centuries to the same groups (with perhaps concessions to the nature of “public transportation” in the early nineteenth century).
Strictly speaking, I suppose, the Equal Protection Clause wasn’t enacted until 1868, and the Supreme Court’s opinion in William v. Rhodes subjecting election laws to some kind of Equal Protection analysis didn’t come down until 1968.
But the court also notes that these groups “disproportionately have used in past elections the EIP voting times that . . . SB 238 eliminated, and that the number of individuals who have previously voted during these periods was not insignificant.”