Ohio’s attempt to reduce the number of days voters may cast an early ballot is unconstitutional and violates the Constitution and the Voting Rights Act (VRA), according to a decision handed down Thursday by a federal court in that state. Though the decision has a difficult road to travel before Ohio voters can be certain that it will stand — it will appeal to the Sixth Circuit, which has a conservative majority, and ultimately to the same Supreme Court that struck down a key provision of the VRA — Judge Peter Economus’ decision may be the strongest voting rights decision handed down since the justices’ attack on the VRA. Or, at least, it may be the strongest decision in the sense that it calls for a very strong shield to be erected around the right to vote. If his reasoning is ultimately upheld by a higher court, that would be a serious blow to efforts by many state lawmakers to enact laws restricting the franchise.
Much of Judge Economus’ opinion is devoted to explaining how limits on early voting disproportionately impact African-American voters. Many black churches, for example, conduct “Souls to the Polls” events that encourage churchgoers to vote after attending Sunday services — as an Ohio NAACP leader explained, “Sunday was a focal point also because many churches already provide transportation to take people to church, and carpools are also arranged so that everyone is together” — yet the new restrictions on early voting limit these churchgoers’ opportunities to vote on Sunday. Additionally, the new early voting schedule eliminates “Golden Week,” a period when voters can register and vote on the same day. The same NAACP leader testified that African-Americans are especially likely to take advantage of this period because “people in the African-American community in [his community] move frequently, especially since the 2008 recession.”
Empirical data also demonstrates that black voters are more likely to take advantage of early voting. Indeed, according to University of Florida Research Professor Daniel Smith, an expert witness who testified in this case, the rate of early voting in areas that are entirely African-American is more than twice the rate in areas that are entirely white. Additionally, Smith explained that “there is strong empirical evidence in Ohio that a greater proportion of blacks not only cast [early] ballots than whites but do so on early voting days that have been eliminated by” the new voting schedule.
This data matters because, under one of the provisions of the Voting Rights Act that was not struck down by the Roberts Court, “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Moreover, as a precedent cited by Judge Economus explains, this provision of the VRA “does not require proof of discriminatory intent. Instead, a plaintiff need show only that the challenged action or requirement has a discriminatory effect on members of a protected group[.]”
The VRA prohibits laws that abridges black people’s right to vote. Restricting early voting abridges black people’s right to vote. Therefore it violates the VRA. Q.E.D.
Yet, while this is the strongest argument presented by Economus’ opinion, that doesn’t mean that it will be upheld on appeal. For one thing, as Sean Trende, a political analyst for the news site Real Clear Politics explained in expert testimony on behalf of the state, “’Ohio maintains one of the most expansive systems of early voting in the country,’ with an early-voting period twice the national median.” Though reducing the number of early voting days in Ohio reduces the opportunities for African-Americans to vote from its previous baseline, it is far from guaranteed that a Supreme Court which has been hostile to the Voting Rights Act in the recent past will hold that Ohio is required to maintain its prior baseline.
Indeed, just last month a George W. Bush-appointed judge in North Carolina refused to suspend cuts to early voting in that state, arguing that it was “speculative” to assume that black voters will not shift their voting patterns to other days when voting is allowed. This argument could resonate with a conservative Supreme Court.
Nevertheless, it this decision stands it will be a very important victory for voting rights. Among other things, as Attorney General Eric Holder noted in a press conference Thursday afternoon, Economus’ decision uses some of the “same legal reasoning that underlies the Department’s pending challenges to voting measures” to states like Texas and North Carolina, where lawmakers and state officials are aggressively taking advantage of the Supreme Court’s decision to strike down much of the VRA.