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Free & Fair

The “Equitable” Aspect of the Sixth Circuit’s Early Voting Decision

Four federal judges agree that for this year’s election Ohio may not deny the same opportunities for in-person early voting to non-military voters that the state grants to military voters. None have ruled the other way. The four are two appellate judges and two trial judges, one sitting by designation on the appeals court. Two are Democratic appointees and two Republican, although one of the latter—Judge Helene White—was originally nominated by President Clinton before being re-nominated by President Bush as part of a bipartisan compromise.

A similar spirit of bipartisanship should let Friday’s essentially unanimous appellate ruling stand. Although Ohio’s Republican Attorney General Mike DeWine might wish to ask the full Sixth Circuit appeals court to review the three-judge panel’s ruling—perhaps even more than Ohio’s Republican Secretary of State Jon Husted (who has distanced himself from more partisan moves when he sees them as contrary to sound practices of election administration)—the better course at this point is to acquiesce in the ruling and figure out how best to implement it. If DeWine does ask the full Sixth Circuit to nullify the panel’s ruling, even Republican-appointed judges who may be dubious about the merits of the ruling should see that a sharply divided reversal (which would be far from the judicial unanimity that has prevailed so far) would not be worth the distrust in the judiciary that such a reversal would fuel.

Although there was much discussion of Equal Protection (as a fundamental principle of federal constitutional law) in what the three judges wrote on Friday, the panel’s decision is best understood as an exercise of “equity” law, an ancient branch of Anglo-American jurisprudence that governs the issuance of court-ordered “injunctions,” which are decrees that require defendants to stop engaging in challenged practices. “Preliminary injunctions” are a distinct subset of a court’s “equitable” powers, designed specifically to be temporary measures to put the contesting parties in the fairest possible position during the time that the court deliberates about the ultimate merits of the matter under the law. Friday’s ruling affirmed the granting of a preliminary injunction against the state’s statutory provisions that had engendered the differential treatment of military and non-military voters during the last three days of early voting before Election Day (November 6), and this ruling can be seen as a judicial effort to figure out what is the most “equitable” temporary situation that should occur in the context of early voting in Ohio for this year’s presidential election, recognizing that the ultimate Equal Protection claim regarding the distinction between military and non-military voters applies to future elections as well and will be decided in due course following full judicial proceedings on the merits of that claim.

The temporary and “equitable” quality of Friday’s affirmance of the preliminary injunction is best captured by Judge White’s separate opinion in support of the district court’s decree. For her, the case in its current posture came down to the facts that (1) Ohio had such a poor history of conventional polling place voting on Election Day in 2004; (2) Ohio had adopted in-person early voting to alleviate overcrowding at the polls on Election Day; (3) Ohio had used the last three days of early voting successfully in 2008 to avoid long lines at the polls on Election Day; and (4) local boards of elections were prepared for a repeat of the successful procedures used in 2008, but not prepared for increased Election Day turnout that might result from the rollback of early voting opportunities available in 2008. Here’s how she explained her reasoning: “The key distinguishing feature here is that Ohio voters were granted [early voting] . . . in response to the unacceptably burdensome situation at many Ohio polling sites during the 2004 election” (page 27). To this she added, citing evidence in the record, “Ohio’s two largest counties . . . have not budgeted or planned for any increase in election-day voting caused by the elimination of weekend and after-hours voting.” Consequently, she believed the best interim solution is to leave early voting in place as it was practiced in 2008, while giving the state’s legislature the opportunity to develop a longer-term approach to early voting that would satisfy Equal Protection and avoid an unwarranted risk of polling place chaos.

It is worth observing how far removed these “key” components of Judge White’s reasoning are from the distinction between military and non-military voters that is at the heart of Equal Protection claim in the case. Her analysis might be vulnerable on this ground were the case at its ultimate conclusion, when it is time for a final adjudication of the Equal Protection claim. But in the context of deciding at “the eleventh hour” (as she put it) what the temporary, interim situation should be regarding this year’s voting, it was appropriate for her to focus on what might actually happen if the last three days of early voting are unavailable in the those localities where “significant numbers of voters . . . have come to depend on” them (page 26). “To [do] otherwise is to ignore reality,” she forcefully proclaimed (page 28).

Indeed, in repeatedly emphasizing that she would not let her decision “be divorced from reality,” Judge White acknowledged that her decision might be different—a “dissent”—if solely before her were an “abstract” Equal Protection issue. She distanced herself from the majority opinion’s Equal Protection analysis. In particular, she explicitly stated: “I cannot agree with the majority’s assertion that ‘Plaintiffs introduced extensive evidence that a significant number of Ohio voters will in fact be precluded from voting without the additional three days of in-person early voting’” (at page 25, quoting Maj. Op. at 12). As Judge White explained, it was simply too much to assert that voters would be “precluded” from voting absentee these three days; the evidence did not support that. Mail-in voting remains an option for all Ohio voters, as do the remaining available days of early voting (which started last Tuesday), in addition to Election Day itself. Thus, the majority overstated the burden that Ohio’s new early regime imposed on voters.

Still, the flaws of the majority’s opinion did not stop Judge White from independently affirming the district court’s preliminary injunction—precisely because it was a preliminary injunction rooted in the “facts” of election administration as practiced “on the ground in Ohio” (as she again put it, on page 24), with the urgent need to avoid last-minute changes as local election officials do their best to prepare for the presidential election (in which voting has now already started). For the same reason, other judges on the Sixth Circuit should decline any invitation for the full court of appeals to engage in “en banc” review. The majority opinion does no permanent damage to the development of Equal Protection law, once it is understood that the panel’s ruling is merely about the appropriateness of a temporary, interim order in the specific context of Ohio’s experience with election administration. There will be other occasions for the Sixth Circuit to address final judgments that rest on Equal Protection grounds, and in those contexts the appellate court can appropriately develop the law of Equal Protection as it applies to voting. Here and now, it is better for the full court to leave well enough alone—the old cliché is apt in this context—and allow Ohio’s Secretary of State and local election officials to get on with the pressing business of figuring out exactly how early voting will work this year during the last three days before November 6.

(To clarify, letting the panel decision stand is not the same is saying that it was correct, even Judge White's separate opinion.  There is a difference between thinking a panel decision incorrect, or dubious, and believing it should be subjected to full court "en banc" review.  One reason to let it stand is simply a matter of timing; each day brings us closer to November 6, and that fact alone is reason enough to stop further litigation over the last three days of early voting.  Another consideration, as I have indicated, is the consequences of the full Sixth Circuit being sharply divided if it were to take up "en banc" review; better to avoid that messy and counterproductive judicial division.  Finally, the fact that the panel's ruling can be seen as an exercise of equity power, rather than an Equal Protection precedent, is an additional basis for believing that "en banc" review is not imperative.)

The next move is the Secretary of State’s. According to the Sixth Circuit’s majority opinion, he could leave it to local boards to decide whether and to what extent to hold early voting on November 3, 4, and 5, as long as the same availability applies equally to military and non-military voters. If he does so, however, he will be in the position that he will need to break ties if the local boards split 2-2 along party lines on whether to make weekend early voting available (as they did earlier this year). In order to avoid having to break such ties, Husted issued a directive requiring uniform early voting hours across all 88 counties in the state. He could do so again, but he would still need to decide whether, or the extent to which, early voting should be uniformly open or uniformly closed during those three days.

In making this decision, and without setting hours of his own, Husted could take his cue from Judge White’s separate opinion. She made clear that she thought the district court’s preliminary injunction should be understood as requiring the restoration of early voting to what it had been in 2008. This understanding followed from her analysis (as warranted when “balancing the equities” at the heart of the preliminary injunction inquiry) of the “facts on the ground” concerning the preparation of the local boards for this year’s election in light of Ohio’s history of election administration in the past decade. Therefore, Husted could require all 88 counties to have this year the same schedule of early voting that they had in 2008 for the Friday, Saturday, and Sunday immediately before Election Day.

This directive would have the requisite uniformity: it would be treating all counties the same vis-à-vis the temporary need (in light of the preliminary injunction) to maintain consistency between this year and 2008, and it would treat military and non-military voters equally across the entire state. At the same time, built into this uniform directive would be an accommodation of different past local administrative practices: if some counties held fewer hours of early voting in 2008 during the last three days before Election Day than other counties did, then this directive would not require those “fewer hours” counties to do more than they did in 2008. Since the “key” component of Judge White’s reasoning was to protect the reasonable reliance of voters and local election boards for what had been available in 2008, especially in the state’s two largest counties, it would in no way contradict this reliance interest to permit all 88 counties to do this year whatever they did in 2008 regarding those last three days.

Going back to 2008 practices is obviously not what Ohio’s legislature wanted when it enacted its changes to the state’s early voting rules. But as is happening throughout the country in a variety of different contexts—like in Pennsylvania, with respect to its new voter ID law—state legislatures are learning that they cannot assume that their changes in the rules will have immediate effect for this year’s election, at least not when there are colorable constitutional challenges to the newly enacted rules. Whether or not this kind of “anti-retrogression” inquiry is an appropriate part of Equal Protection analysis to be applied in the final adjudication of these constitutional claims, judges are invoking this idea in the “balancing of the equities” that is the core of preliminary injunction analysis.

When deciding on the fly what should happen temporarily in the interim, while weighty constitutional claims are under litigation, the courts are indicating that the voting process this year should be as it has worked in the past, rather than what the new legislation calls for. That, in essence, is what Judge White said, as did the court in Pennsylvania (insofar as it refused to permit a ballot to be disqualified this year for lack of the newly required ID). That, too, is what should guide Secretary of State Husted concerning the administration of early voting in the remaining days between now and November 6.

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile

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