In a 120-page opinion, [new working link] a federal district court has held that the Ohio legislature’s elimination of “Golden Week,” a week in which Ohio voters could both register to vote and cast an early ballot at the same location, violates both the 14th amendment of the Constitution and section 2 of the Voting Rights Act. This is a big victory for Marc Elias and the Democrats which brought this suit (over much handwringing by some in the voting rights community). Democrats have relied heavily on Golden Week in the past and fought the Ohio Legislature (dominated by Republicans) to keep it. The theories accepted by the trial court are sure to be controversial, and it is not clear how they will fare in the 6th Circuit. However, the Sixth Circuit has among the most pro-voting rights views of both constitutional and voting rights theories (see the discussions around pages 21 and 31 here). The case could well go en banc to the Sixth Circuit, especially because of a potentially likely 4-4 split at the Supreme Court, leaving the Sixth Circuit as likely the last word on the meaning of the Constitution and the Voting Rights Act in the area covered by the Sixth Circuit for this election.

When you combine this case, the North Carolina voting case (currently on fast track appeal to the 4th Circuit) and the Texas voter id appeal (heard today by an en banc court in the 5th Circuit), along with two additional challenges to Wisconsin’s voter id law (which was upheld by the 7th Circuit, after a 5-5 split over whether to take that case en banc), there is sorely a need for clarification of the scope of Section 2 when it comes to the “new vote denial” cases. Yet the Scalia-less and Garland-less Court may not be in a position to take these cases now, in that they may split 4-4 on their resolution. It just shows a cost of the vacancy right now.

While the court accepted the attack on the elimination of Golden Week, it rejected plaintiffs’ other challenges, such as those as to the number of early voting sites per county and availability of DRE voting machines. The court rejected these other challenges, finding there was either no burden or the minimal burden was justified.

One interesting question is why the court focuses so heavily on the impact of these Ohio laws on African-American voters during the part of its analysis applying the Anderson/Burdick balancing test. All of this seems more germane to the Voting Rights Act arguments.

On the Voting Rights Act section 2 claim (the issue that has come up in NC, WI, TX and here), the Court follows Sixth Circuit precedent on how to measure the burden, and also makes clear (1) that what other states do should be irrelevant to the analysis and (2) the “non-retrgoression” standard of Section 5 should not be imported into Section 2. In other words, in deciding whether Golden Week’s cutback violates the VRA, it doesn’t matter if places like New York have much more restrictive voting, and just because Ohio offered more in the past does not mean it can never cut back on its voting rules. Both of these points have been hotly debated in the cases and commentary. On the elimination of Golden Week, the Court piggybacks its constitutional analysis to find a burden on African-American voters which is not justified.

And now a bit more on the judge’s ruling today.

The judge found that the elimination of golden week was a minor and not a major burden on voting, but the court found a disparate impact. “The elimination of the extra days for EIP voting provided by Golden Week will disproportionately burden African Americans, as expert and anecdotal evidence reflects that African Americans vote EIP, and specifically EIP during Golden Week, at a significantly higher rate than other voters …. Moreover, to the extent the voters who would have voted during Golden Week choose to vote on other early voting days or on Election Day, that will likely result in longer lines at the polls, thereby increasing the burdens for those who must wait in those lines and deterring voting.” Further, “The opportunity for SDR during Golden Week alleviated the costs to voters of having to register and vote at separate times. Indeed, it may be more difficult for voters with time, resource, transportation, and childcare restraints to make two separate trips to register and vote, and Golden Week allowed individuals to do both at once.” “In so finding, the Court, as in N.A.A.C.P. v. Husted, is mindful of the numerous opportunities to cast a ballot in Ohio, including vote by mail, in person on Election Day, and on other EIP voting days. Similar to N.A.A. C.P. v. Husted, however . the Court finds that while these opportunities mitigate some of the burdens imposed by S.B. 238, the record reflects that they do not eliminate or significantly decrease those burdens. Specifically, the anecdotal evidence suggests that voting by mail is not a viable alternative to EIP voting for many African Americans. First, the record reflects that African Americans are distrustful of voting by mail.” On the state’s interests in imposing the “modest” burden: “Having found that S.B. 238 imposes a modest burden on the right to vote of African Americans in Ohio, the Court must apply the Anderson/Burdick standard to weigh that burden against the precise interests offered by Defendants as justifications for that burden….First, while the record includes general opinion evidence that Golden Week increases the opportunity for voter fraud, see Tr. Trans. 112, ECF No. 104 (Damschroder); Tr. Trans. 253, ECF No. 103 (Ward); DX 15 at 15 (Hood Rep.), actual instances of voter fraud during Golden Week are extremely rare.” “Defendants’ cost justification also fails to outweigh the burden imposed by S.B. 238. First, cost savings from the elimination of Golden Week are minimal.” After rejecting an “administrative burden argument, the court concluded: “Finally, Defendants have adduced insufficient evidence in support of their final justification for S.B. 238-increasing voter confidence and preventing voter confusion-citing only two elections officials’ concerns that voters could become confused about deadlines for registration as a result of Golden Week. See, e.g., Tr. Trans. 98, ECF No. 102 (Munroe). Defendants adduced insufficient evidence of actual voter confusion to substantiate those concerns.” The court rejected a one location per county rule for early voting as a constitutional violation (I’m quite critical of Ohio’s justification for this as explained in When is Uniformity of People, Not Counties, Appropriate in Election Administration? The Cases of Early and Sunday Voting”, 2015University of Chicago Legal Forum 193 (2015)). On the Voting Rights Act section 2 claim, the court concludes: “Having considered all of the Senate Factors and the totality of the circumstances, the Court agrees with the reasoning in N.A.A. C.P. v. Husted I and N.A.A.C.P. v. Husted If and concludes that S.B. 238 interacts with the historical and social conditions facing African Americans in Ohio to reduce their opportunity to participate in Ohio’s political process relative to other groups of voters and that Plaintiffs have succeeded on a§ 2 claim. N.A.A.C.P. v. Husted II, 768 F.3d at 556-57 (“African Americans’ lower-socioeconomic status in turn plays a key role in explaining why the disproportionate impact of SB 238 and Directive 2014-17 burdens African Americans’ voting opportunities.”); N.A.A.C.P. v. Husted I, 43 F. Supp. 3d at 849-50 (finding the plaintiffs showed a strong likelihood of success on their § 2 claim).” The court rejected a finding that Ohio engaged in intentional racial discrimination in eliminating Golden Week, obliquely wading into the “race or party” question: “It requires too much speculation to find that the historical background of the challenged decisions or the sequence of events preceding the state action show a racial motivation. Indeed, Plaintiffs seem to argue more that it was Democratic successes in 2008, rather than racial bias, that prompted the General Assembly and Secretary Husted to take the challenged actions.” The court rejected a number of other claims, including the “partisan fencing” claim, which is a way to raise the race or party question a bit more directly.

[This post has been updated.]