[author: Aaron Kase]
The United States Supreme Court on Oct. 16 refused to overturn a lower court decision blocking an attempt by the state of Ohio to keep up to 100,000 people from the polls this November.
The court declined to issue an emergency stay to a decision that the polls had to stay open to everybody, or nobody, the weekend before election day. “The application for stay presented to Justice Kagan and by her referred to the Court is denied,” the court said in a one-sentence order without further explanation.
Ohio normally allows early voting, but wanted to stop the practice on the weekend before Nov. 6 in order to keep African-American churchgoers from voting en masse following Sunday services. A local Republican operative explained the move to a newspaper, stating, “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine.”
Up to 20 percent of state residents take advantage of the early voting options, including a disproportionate amount of low income and minority voters. Ohio was roundly criticized in 2004 for long lines and bungled election procedures, and the early voting was put in place,in part, to relieve pressure on polling stations on election day itself.
This year, however, the state wanted to continue to let members of the military vote the weekend before the election, while blocking everybody else. When the federal government sued the state earlier this year over the practice, Republican campaign commercials falsely claimed that the Obama administration was trying to disenfranchise Ohio’s soldiers. In reality, the administration sued to ensure that the rest of the state’s residents had the same access to the ballot box that the soldiers enjoyed.
A district court, and then the 6th U.S. Circuit Court of Appeals in Cincinnati ruled that Ohio could not allow military members to vote but block everyone else — in effect, that the same rules must apply to everybody. In theory, local election boards could close their doors to everybody on the weekend of Nov. 3 through Nov. 5, but Ohio’s secretary of state issued a directive that they all remain open to everyone.
Richard L. Hasen
The equal protection suit brought by the Obama administration was actually shaky on constitutional grounds, writes law professor and election expert Richard L. Hasen, but it passed muster in several courts nevertheless. “The Obama campaign concedes that there’s no general right to cast an early ballot and agrees that the state could discriminate in favor of military voters when it came to the rules for casting overseas ballots given the additional burdens faced by these voters,” Hasen writes.
Yet through somewhat twisted legal arguments, the disenfranchisement plan was blocked, and rather than interfering, the Supreme Court just decided to let the lower ruling stand for now. “It is always a high burden to get emergency relief from the court,” Hasen notes. “The justices may not have believed that any legal error here was worth correcting.”
Furthermore, he notes, if the court had issued a stay and the the final vote had been close, the entire presidential election could have hinged on the decision, since Ohio is considered an important swing state. That role is not one the court would relish, ever since its highly controversial Bush v. Gore ruling in 2000 that ended vote recounts in Florida and handed the White House to George W. Bush.
Ohio could still apply to the Supreme Court for a full hearing on their election procedures, but it could not take place until next year at the earliest, long after November’s elections.