Jon Husted, Ohio’s Republican secretary of state, is going to the mat to impose cuts to early voting, and he's asking the U.S. Supreme Court to weigh in on his behalf. His office is framing its fight for the cuts – which already been found to discriminate against blacks and Hispanics – as a matter of “protecting states’ rights.”
Late Thursday, Husted and Attorney General Mike DeWine filed documents asking the nation's highest court for an emergency stay to reverse a ruling by a federal appeals court panel on Wednesday. The decision earlier in the week upheld an injunction blocking the cuts from taking effect during this fall's elections. Earlier on Thursday, Husted and DeWine filed a separate appeal for a rehearing of the case by the full appeals court.
The cuts are being challenged by a coalition of civil and voting rights groups led by the ACLU. A full trial on the cuts is scheduled for next year.
In an email to reporters announcing the Supreme Court brief, Matthew McClellan, a spokesman for Husted, portrayed the controversy as a battle over state sovereignty. “There are bigger issues at play that whether Ohioans vote over 35 or 28 days,” McClellan wrote. “[T]his is another step in protecting state’s rights.”
The brief itself makes that states’ rights argument, among others. “The Court has also noted that our constitutional structure requires Congress to include a clear statement if it intends to take away traditional state powers,” lawyers for Ohio wrote. “State law, of course, has long governed elections.”
"His decision to continue litigating just days before early voting is set to begin is irresponsible, outrageous, and a failure of his duty as Ohio’s chief elections officer."'
In February, Ohio’s Republican-controlled legislature cut the early voting period from 35 to 28 days, citing the need for uniformity across the state. The period that was cut was known as “Golden Week,” when Ohioans can register and vote on the same day. Same-day registration is among the most effective ways to bring new voters into the process, experts say. Days later, Husted issued a directive that ended Sunday voting and weekday voting past 5 p.m. Many African-American churches have in past years conducted “Souls to the Polls” drives on Sundays after services.
The cuts were originally blocked earlier this month by U.S. District Court Judge Peter Economus, who ruled that they violated the Voting Rights Act’s ban on racial discrimination, in part because minorities are more likely to take advantage of early voting and same-day registration.
Economus had earlier ordered Husted to restore early voting on the last three days before the election, after the secretary of state had tried to cut those days as well. The judge had also blocked Husted's efforts to cut those days in the leadup to the 2012 election. Husted appealed to the Supreme Court at that time, too. It declined to get involved.
If the Supreme Court — no friend of voting rights considering its recent record — decides to intervene this time, it could be bad news for minority voters. This potential case could even give the court a chance to narrow the scope of the Voting Rights Act (VRA) with respect to other restrictions like voter IDs. Despite the district court’s ruling, the case that the cuts violate the VRA is by no means open and shut.
Rick Hasen, a prominent election law scholar at the University of California, Irvine, who is often skeptical of voting restrictions, has called the cuts “not all that burdensome." He added that “If 28 days is unconstitutional and a voting rights violation, what does this say about places like New York, which offer no early voting?”
Not everyone agrees. Dan Tokaji, an election law expert at Ohio State University, wrote on Hasen's blog Thursday that the panel’s ruling upholding the injunction “faithfully applies existing law to the evidence admitted in the district court, maintaining the established period for same day registration and early voting.”
And State Sen. Nina Turner, a Democrat who is running against Husted this year, slammed the secretary of state’s decision to appeal to the Supreme Court.
“His decision to continue litigating just days before early voting is set to begin is irresponsible, outrageous, and a failure of his duty as Ohio’s chief elections officer,” Turner said in a statement.