Following the woes Ohio experienced in the 2004 election, the state legislature established "no fault" absentee voting and early, in-person (EIP) voting. In 2013, Ohio passed a statute decreasing the number of EIP days to 28, down from 35. The decrease in EIP days was an attempt to close a loophole: EIP voting and the voting registration deadline overlapped during a period subsequently called "Golden Week," meaning voters could register and vote at the same time. Election officials claimed that the reduction in EIP days, and the closing of this gap, was necessary to verify the identities of new voters, as state law requires that a voter's identity be confirmed before his or her ballot can be counted.
The NAACP, League of Women Voters, and several African American churches filed an equal protection challenge and a request for an injunction after the changes were made. The lawsuit also challenged the lack of statewide standards for EIP voting times: Not only was there no standard for how long EIP polling places could be open, but there was no standard for when they were open; for non-presidential elections, there were no evening hours at all and only one Sunday available. Particularly concerning was the fact that many African-Americans organized outings to polling places after church the Sunday before Election Day, but not every EIP polling place was open on Sundays.
Expert Testimony
Much of the factual analysis in Judge Peter C. Economus' opinion came from experts in sociology, statistics, and election law. The court accepted the opinions of the plaintiffs' experts, concluding not only that African Americans rely on EIP voting more than whites, but that they experienced significantly increased disparities in merely getting to a polling place to vote.
Equal Protection
Because a grant of an injunction requires assessing the chance of success on the merits, the court went into the equal protection analysis. Shortening the EIP period from 35 to 28 days, the court said, is a significant burden that could impact thousands of voters. Similarly, eliminating Golden Week had the potential to burden thousands of voters -- especially poorer individuals without access to transportation. Providing only one Sunday for EIP voting impacting the "Souls to Polls" programs, where churches organized buses to take parishioners to EIP polling places after church.
Ohio justified the new restrictions by citing fraud prevention and the need to cut costs. The state it claimed that it was too expensive to maintain so many EIP polling places and to go through the additional burden of verifying voter registrations made the same day the person voted. The court wasn't convinced by the fraud angle; fraud could just as easily be accomplished by fraudulently registering one day before the registration period ended and then casting an EIP ballot. Nor was the court convinced that cost-cutting was enough to justify the restrictions -- but only because there was no evidence regarding the costs of a 28-day EIP period compared to a 35-day period.
Finding the state's justifications "relatively hollow," Economus found an equal protection violation, ordered that the new law not be enforced, and that evening voting hours be adopted in the two weeks leading up to the election. Economus also prevented individual Boards of Election from establishing their own hours.
Related Resources:
- Federal Judge Blocks Ohio Early-Voting Law (The Wall Street Journal)
- The Texas Two-Step and the Voting Rights Act (Constitution Daily)
- Studies Show: Ginsburg Was Correct in Voting Rights Act Dissent (FindLaw's U.S. Supreme Court Blog)
- 10th Cir. Hears Arguments in Kansas Voting Rights Case (FindLaw's U.S. Tenth Circuit Blog)
