On Monday, the Supreme Court returned from its summer vacation for the “Long Conference,” the day when the justices consider the backlog of petitions asking them to hear cases that built up while they were away for the summer. Yet, despite the fact that the justices typically face hundreds of petitions that they must consider during this conference, five of them still found time on Monday to make it harder for Ohio residents to cast a vote. In a 5-4 decision that divided entirely along partisan lines, the Court allowed cuts to Ohio’s early voting days to go into effect. Notably, this decision came down just 16 hours before polling places were set to open in that state.
Monday’s decision is not particularly surprising. Earlier this month, a federal trial judge halted changes to Ohio’s early voting procedures that cut the number of early voting days by a week, including one Sunday before election day. This decision was upheld by an unusually liberal panel of the United States Court of Appeals for the Sixth Circuit. All four of the judges who previously considered this case are well to the left of the Supreme Court’s five Republican members.
As Judge Peter Economus, the judge who initially suspended the voting changes, explained in his opinion, the reduction in early voting days were likely to disproportionately impact African American voters. Many black churches conduct “Souls to the Polls” events that encouraging churchgoers to vote after attending Sunday services, and removing an early voting day on a Sunday reduces the opportunities to conduct these events. Additionally Judge Economus discussed empirical evidence demonstrating 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 impact on African American voters matters because the Voting Rights Act provides that “[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.” Although the Supreme Court did not explain why it was reinstating the cuts to early voting in its order on Monday, the Court’s Republican members struck down another provision of the Voting Rights Act in 2013, so they do not have a record which suggests particular sympathy to this law’s goals.
As SCOTUSBlog’s Lyle Denniston points out, “[t]he practical effect of the [Court’s recent] order will mean at least early voting will not be allowed this week — a period that supporters of early balloting have called ‘Golden Week.’ That permits voters to register and cast their ballots on the same day.” It is possible, albeit unlikely, that the Court could issue a subsequent order that would have the effect of restoring some voting days closer to election day.