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Federal court enjoins voting changes

Secretary of State Jon Husted

SCOTT PIEPHO
Legal News Reporter

Published: October 1, 2014

Federal District Court Judge Peter Economus handed down a preliminary injunction in a case challenging changes to Ohio voting rules. The injunction restores 35 days of early in-person voting including evening hours and voting hours on an additional Sunday. The court also enjoined Secretary of State Jon Husted from preventing individual boards of election from adopting additional early in-person voting hours.

In the 2012 election, Ohio provided 35 days of early in-person voting (in addition to early mail-in voting which was not directly challenged in the lawsuit.) Because a citizen can vote upon registering 30 days prior to an election, the 35-day period included a “Golden Week” during which a voter could register and cast a ballot on the same day.

In November of 2013, the Ohio General Assembly passed Senate Bill 238 which allows ballots to be available for early in-person voting “beginning on the first day after the close of voter registration before the election.” This reduced the early in-person voting period to 28 days, eliminating the Golden Week.

In addition, Secretary Husted issued a directive setting uniform hours across the state for early in-person voting. That directive eliminated voting on the Sunday and Monday preceding the election and does not include evening hours.

The Ohio State Conference of the NAACP and other plaintiffs sued alleging that the changes violate the Equal Protection Clause of the 14th Amendment and Section 2 of the Voting Rights of 1965. The bulk of the opinion evaluated the likelihood that plaintiffs would succeed on the merits of the suit, a key factor in deciding whether to issue an injunction.

In the Equal Protection analysis, Judge Economus decided over the defendants’ objection that the case should be subject to heightened scrutiny. The court declared that “[h]aving decided to enact a broad scheme of [early in-person]/absentee voting, Ohio and Secretary Husted may not capriciously change or implement that system in a manner that disproportionately burdens the right to vote of certain groups of voters.”

Under the resultant “flexible standard” a court weighs “the character and magnitude” of the burden on voting against “the precise interests forwarded by the State as justifications for burden imposed by its rule.” The court found that the voting changes imposed by Senate Bill 238 burden the voting of African American communities both by reducing the overall time available for early in-person voting and by eliminating the “golden week.”

The court credited the plaintiffs’ evidence that “tens of thousands of voters have utilized Golden Week voting opportunities during past elections,” and the expert testimony “that African American voters in Ohio tend to utilize [early in-person] voting at a greater rate than white voters.”

Similarly, the court found that because of the number of voters who used Golden Week to “register or update their registration and vote,” eliminating that week also places a burden on voting for low income and homeless voters. The court also found the Secretary of State’s directive burdens voting rights of African American and lower-income voters by eliminating evening hours all and voting on but one Sunday, given the higher likelihood that such voters have transportation difficulties or inflexible work schedules.

Section 2 of the Voting Rights Act provides that “No voting qualification or prerequisite to voting or standard, practice or procedure” can discriminate on the basis of race. Case law holds that a court should examine the context in which the state imposes a qualification or restriction to help determine whether the effect is discriminatory.

The court found that the changes in procedures violate Section 2. The court found that the changes burden African-American voters more than white voters and do so because of disadvantages and obstacles African-American voters face that are the result of past discrimination.

The court concluded that “despite the fact that individual voters may simply choose to vote at other times during the current early-voting period, the socioeconomic and other factors identified by the plaintiffs coupled with the reductions to [early in-person] voting . . . result in fewer voting opportunities for African-Americans than other groups of voters.”

Secretary of State Husted issued a statement promising to appeal. “My overarching principle for Ohio’s long-debated voting schedule is that all voters, no matter where they live, should have the same opportunity to vote . . . Today’s ruling kicks the door open to having different rules for voting in each of Ohio’s 88 counties, which is not fair and uniform and was not even acceptable to this court or the plaintiffs previously. We must appeal this ruling, because we can’t simultaneously treat people the same and differently.”


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