Posted on October 16, 2012 at 12:27 pm by Lyle Denniston
(Final update, 1:26 pm. Note that the Ohio secretary of state has now issued a directive to implement weekend voting. Thanks to Rick Hasen of Election Law Blog for the link.)
Without noted dissent, the Supreme Court at midday Tuesday turned aside a plea by state officials in Ohio to allow them to close down voting opportunities on the final three days before election day on November 6. The ruling was a significant victory for President Obama and for Democrats, especially since they claimed that the shuttering of voting offices on the Saturday, Sunday, and Monday before election day would be likely to affect low-income and minority voters — many of whom may be expected to vote Democratic.
The Court acted in a one-sentence order that contained no explanation. The action, though, left intact a lower-court order that required voting officials in the crucial electoral state to open the polls on that final weekend to all voters, if they open them to any voters. Ohio officials wanted to allow voting then only by members of the military and their families, on the theory that they might be called away suddenly on military duty. While it is up to each county’s election officials to decide whether to be open for voting on those days, many if not most — and, crucially, major cities — are expected to do so rather than shut out military voters altogether. Under the lower-court order, all voters must be treated the same for early voting.
Ohio adopted pre-election day voting after a fiasco at the 2004 elections, when long lines kept voters waiting until early morning hours, and caused at least some voters to give up without casting ballots. Previously, Ohio had allowed early voting to occur on the final weekend, but this year, Ohio officials decided that they needed to close down at 6 p.m. on Friday, November 2, in order to make final preparations for election day.
Although the reasons officials gave for this decision were neutral about how voters might cast their ballots on those days, Democrats charged that the Republican officials were targeting voters who would be most likely to vote Democratic, and who would want to vote on the eve of the election, because they could not get off work at other times allowed for early voting, and thus might not get a chance to vote at all. In more recent elections, some twenty percent of the voters in Ohio cast ballots in advance of election day. This year, when early voting began recently, polling places experienced large crowds, especially in the state’s largest cities.
The Ohio officials took the dispute on to the Supreme Court after the Sixth Circuit Court, based in Cincinnati, had upheld a district judge’s order requiring that all voters be treated equally for purposes of early voting. The Circuit Court found that the impact of the final weekend closing would fall hardest on lower-income and less educated individuals. Giving military voters the sole opportunity to vote on those days, the Circuit Court concluded, was a form of discrimination because the state had not justified treating military voters more favorably than any other voters.
In the state’s plea to the Justices, officials asked that the lower-court decision be put on hold — thus allowing the closing of those weekend days’ voting — until the Supreme Court could consider a planned appeal on the issue. As an alternative, the state’s officers asked the Justices to summarily overrule the lower court order, without further briefing or oral argument. They had filed their application with Justice Elena Kagan, who acts on emergency matters for the Sixth Circuit, which includes Ohio. Rather than acting on her own, Kagan referred the issue to the full Court, which issued the order Tuesday denying the stay application.
The brief order was not a ruling on the constitutionality of the Ohio officials’ plan to deny most voters access to polling places on that final weekend. It amounted only to a simple refusal to give the state permission to go ahead with the closing. Ohio officials remain free to pursue their appeal on the merits of the change, but that, in any event, would not be acted upon by the Justices until well after election day this year.
The Court’s action also cannot be interpreted as a decision to give Democrats a temporary victory in this dispute. Neither side had argued the partisan impact of the planned poll-closing, even though that was obviously in the background of this controversy. Democrats and Republicans, alike, had fought hard in this dispute not only to establish legal principles, but also to help achieve partisan goals, but that aspect was not before the Court.