A unanimous panel of the United States Court of Appeals for the Sixth Circuit affirmed a lower court’s decision striking down Ohio’s recent law limiting early voting. Although the panel divided on its reasoning, all three judges concluded that the law has serious constitutional deficiencies. The majority opinion was written by Judge Eric Clay, a Clinton appointee, and joined by Judge Joseph Hood, a George H.W. Bush appointee.

As the facts of this case demonstrated, cutting off early voting will endanger many voters’ ability to cast a vote:

Plaintiffs introduced extensive evidence that a significant number of Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting. The district court credited statistical studies that estimated approximately 100,000 Ohio voters would choose to vote during the three-day period before Election Day, and that these voters are disproportionately “women, older, and of lower income and education attainment.” The district court concluded that the burden on Plaintiffs was “particularly high” because their members, supporters, and constituents represent a large percentage of those who participated in early voting in past elections. The State did not dispute the evidence presented by Plaintiffs, nor did it offer any evidence to contradict the district court’s findings of fact. Plaintiffs did not need to show that they were legally prohibited from voting, but only that “burdened voters have few alternate means of access to the ballot.”

The State argues that the burden on non-military voters is slight because they have “ample” other means to cast their ballots, including by requesting and mailing an absentee ballot, voting in person prior to the final weekend before Election Day, or on Election Day itself. However, the district court concluded that because early voters have disproportionately lower incomes and less education than election day voters, and because all evening and weekend voting hours prior to the final weekend were eliminated by Directive 2012-35, “thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person.”

If the state chooses to appeal this decision, it may appeal either to the full Sixth Circuit or to the Supreme Court. Currently, Republican appointed active judges outnumber Democratic appointees 10-6 on this court (although one of the Bush appointees is the product of a deal with Democratic senators), and the Sixth Circuit does have a record of handing down ideologically divided decisions in cases that could impact presidential elections. Judge Hood, the Bush appointee who joined today’s opinion, is a district court judge on temporary designation to the appeals court and would not join the full panel of judges should it be convened.

Nevertheless, there is one reason why the Sixth Circuit’s judges may stay their hand if the state asks for the case to be heard by a larger panel. In 2008, the court divided almost entirely on partisan lines to side with an Ohio Republican Party effort that could have prevented as many as 200,000 registered voters from having their votes counted. That decision was smacked down by the Supreme Court just three days later.

Disclosure: The author of this post clerked for Judge Clay in 2007–08

Conservative Justice Antonin Scalia routinely pretends that his approach to the law is merely to follow the clear language of the Constitution, and anyone who does not reach the same conclusions he does must be doing it wrong. In truth, however, Scalia’s rhetoric far more often just exposes how simplistic his vision of the Constitution truly is. Consider a speech he gave earlier this week at a conservative think tank:

Scalia calls himself a ‘‘textualist’’ and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.

So Scalia parts company with former colleagues who have come to believe capital punishment is unconstitutional. The framers of the Constitution didn’t think so and neither does he.

‘‘The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state,’’ Scalia said at the American Enterprise Institute.

This is the opposite of true, at least for someone who claims to take the text of the Constitution seriously. Take, for example, the death penalty. The Constitution prohibits “cruel and unusual punishments,” but it provides no other guidance on just how vicious a punishment must be to become “cruel” or how uncommon it must be to become “unusual.” Does the fact that the death penalty is increasingly rare in the United States meet the threshold of unconstitutionality? The Constitution doesn’t say.

Similarly, both abortion bans and bans on particular sex acts were held unconstitutional under the Fourteenth Amendment, the relevant part of which provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” What are the “privileges and immunities of citizens?” How much “process” are people “due”? Why is it a denial of the “equal protection of the laws” for the government to refuse to hire someone because of their race or gender, but not because they performed poorly in college or have an unimpressive resume? The text of the Constitution does not answer these questions.

Scalia’s answer is that rights protected in the Constitution must be understood exactly as they were understood at the time they were ratified, but there’s also nothing in the document itself which suggests that “unusual” punishments are those that were unusual 200 years ago and not those that are unusual now, or that the amount of “process” that people are “due” is the amount that they were given in the 1860s. Indeed, if anything, the Constitution’s text suggests the opposite. The framers were perfectly capable of being very precise about which rights they wanted to protect when they wanted to be — just read the Third Amendment for an example. When they chose, for example, to use words whose scope would naturally change over time — something that is common today may be unusual 50 years from today — that suggests that they wanted the scope of those rights to match that natural process.

Of course, the Constitution doesn’t always use flowing or ambiguous language and when it speaks precisely judges are wrong to read their own preferences into language that does not support their views. Unfortunately, Scalia is hardly a model of textual loyalty in such instances. Nor is he particularly loyal to his notion that the words of the Constitution should keep the meaning the founding generation would have understood them to have. The Constitution gives Congress power to “regulate commerce … among the several states.” And one of the ratifiers of the Constitution explained in the very first decision to interpret these words that there is “no sort of trade” that the words “regulate Commerce” do not apply to and that the power to “regulate” something “implies in its nature full power over the thing to be regulated.” Yet Scalia voted to strike down the Affordable Care Act, a law that regulates trade in health care.

No one who takes the text of the Constitution seriously can reach the decision he reached in that case.

The 1984 film Red Dawn is a classic in the genre of paranoid Cold War guns fantasy, where a group of armed high school students fend off an invading Soviet army and eventually “g[i]ve up their lives… so that this nation shall not perish from the earth.” Rep. Steve King (R-IA), however, seems to believe it is a manual for federal firearms policy:

King said during a debate last week in Orange City that the original purpose of the Second Amendment was not to assure hunting rights or allow people to provide for self-protection. The purpose was “to guard against tyranny because our Founding Fathers understood that if we did not have an armed populace, an armed tyrant could take over America,” King said.

When asked whether such a threat was legitimate in 2012, he said, “We don’t have that threat now because we have an armed populace, and we don’t have to worry about that because of an armed populace.” . . .

When asked if the “armed tyrant” was an outside threat or even the U.S. government, King said, “I don’t see it as our own federal government. I wouldn’t rule it out down the line in a generation or two. I wouldn’t say that’s not part of it. I don’t see it today, and I don’t anticipate that that’s the case.”

Watch it:

Setting aside King’s suggestion that invading armies have thus far steered clear of American soil because they fear reprisal from a ragtag band of civilian Wolverines, there are potentially serious policy implications to King’s interpretation of the Second Amendment. A foreign army would certainly deploy the tools of modern warfare if it chose to capture American soil, so a misfit band of patriotic teenagers would need to arm themselves with similar weapons in order to provide a meaningful deterrent to such forces.

Needless to say, this is not what the Second Amendment provides. As conservative Justice Scalia explained in District of Columbia v. Heller, “dangerous and unusual weapons” are not protected by the Constitution. More recently, a federal appeals court explained in an opinion by a George W. Bush-appointed judge that “[s]hort of bombs, missiles, and biochemical agents, we can conceive of few weapons that are more dangerous than machine guns,” and thus all of these weapons can be banned under the Second Amendment.

There are two major party candidates for president on the ballot this year. The first did nothing to tighten gun laws, even after a Member of Congress was shot in the head. And he continued to ignore the issue after several more high profile mass shootings. This candidate’s primary contribution to gun policy actually expanded gun owner’s rights by allowing them to bring loaded guns into national parks. The second candidate, by contrast, once signed a permanent ban on assault rifles.

Guess which candidate the nation’s job gun lobby decided to endorse yesterday:

The National Rifle Association on Thursday endorsed Mitt Romney minutes before the Republican presidential nominee prepared to speak to a loud crowd in the Shenandoah Valley full of NRA supporters. . . .

More than backing Mr. Romney, however, the NRA’s message was to oust President Obama at all costs.

“We stand on the edge of an Obama cliff of freedom,” said NRA Executive Director Wayne LaPierre, warning of “an anti-Second Amendment, anti-freedom rampage” if Mr. Obama is re-elected.

Seeing as it was President Obama who took no meaningful action in the face of several mass shootings and who moved federal law marginally in the NRA’s direction during his first term, it’s not at all clear what LaPierre is basing this statement on. Last year, however, LaPierre offered a conspiratorial explanation for why he thinks the president who has largely ignored the guns issue will suddenly emerge from his reelection cocoon as a crusader against guns: “The president will offer the Second Amendment lip service and hit the campaign trail saying he’s actually been good for the Second Amendment. But it’s a big fat stinking lie! . . . it’s all part of a massive Obama conspiracy to deceive voters and hide his true intentions to destroy the Second Amendment in our country.”

In other words, you know Obama will crack down on guns because he has done nothing to crack down on guns.

DENVER, Colorado — Republican lawyers have a plan for their candidates who lose on Election Day: send operatives to absentee voters’ homes and challenge their ballots.

Christine Svenson, a vice chair of the Republican National Lawyers Association, warned repeatedly about absentee voter fraud during a panel at the Colorado Conservative Political Action Conference on Thursday. To combat such fraud, Svenson recommended that campaigns gather the names of local absentee voters and search their addresses on Google to “make sure that those buildings are not crack houses, row houses, slumlord houses.” For the record, people who live in row houses or who have abusive landlords do not lose their right to vote. Neither do people unfortunate enough to live in the same building as a drug dealer.

At the end of the panel, Svenson was asked how to handle unfavorable election results. Her answer strongly suggested that Republicans should try to change the result of the election by challenging absentee ballots:

SVENSON: If an election doesn’t go your way, you’ve got an uphill battle. You’ve got to make sure that you get your operatives out on the streets the day after the election, researching. You’ve got to get the list of the individuals who selected absentee ballots, go to those homes, find out — you can even call them, by the way — get affidavits about whether or not they sent them in, but it really hinges around those absentee voters out there, if you can turn them around.

Watch it:

Although Svenson did not elaborate on what she meant by “turn them around,” her advice came after she advised campaigns to quest for fake absentee voters claiming to live in crack houses.

Svenson appeared on the panel alongside Colorado Secretary of State Scott Gessler, who has tried to purge thousands of voters in his state, and Catherine Engelbrecht, the founder of True the Vote, a Texas group that sends poll watchers to largely minority districts to challenge voters’ status.