Ohio’s “Golden Week” of early voting – which Ohio Democrats love and Ohio Republicans hate – may make a comeback this fall.
When Ohio Secretary of State Jon Husted and his fellow Republicans in the Ohio General Assembly cut the number of early voting days in Ohio from 35 to 29 and restricted early voting hours, there was no doubt the issue would end up in federal court.
It was just a matter of which group would get to the federal courthouse first.
As it turned out, it was the American Civil Liberties Union (ACLU).
The ACLU, on behalf of the NAACP, the League of Women Voters of Ohio and a number of African-American churches, filed suit in U.S. District Court for the Southern District of Ohio Thursday asking the court to overturn the GOP bill – Senate Bill 238 – which cut Ohio’s early voting period from 35 days to 29 days – and a directive from Husted which set uniform early voting hours for all of Ohio’s 88 counties.
And, in a separate action, the Ohio Democratic Party and the Democratic National Committee went to federal court asking for a summary judgment to allow in-person early voting in the three days before the election. Husted had cut it to one day – the Saturday before the election, and only for limited hours.
Once again, Ohio election law could be decided by the federal courts.
Federal lawsuits tend to drag on for some time; and there is a possibility that the issue won’t be resolved before the early voting period for the November election goes into effect.
Cutting “Golden Week” infuriated Democrats, who accused Republicans in the legislature of trying to suppress the Democratic vote, particularly among African-American voters, who have tended to use it often.
Golden Week was the six-day period, between the start of the 35 day early voting period and the deadline for voter registration, where voters could show up at their county boards of elections, register to vote and cast their ballots at the same time. Republicans argued that it made it nearly impossible for election board officials to verify the names and addresses of persons who were casting such ballots.
So Senate Bill 238, which was signed into law by Ohio Gov. John Kasich and was set to go into effect for the November election, was passed to eliminate it.
Husted’s directive to boards of elections cut the early voting period even further by eliminating all Sunday voting, the Monday before elections and all evening voting hours.
“Together these cuts will impact thousands of low-income voters, elderly voters, student voters and African-American voters who turn to early in-person voting as their best option for casting a ballot,’’ said Sybil Edwards-McNabb, president of the Ohio Conference of the NAACP.
The Rev. Dale Snyder of Bethel African Methodist Episcopal Church in Columbus said in an ACLU press release that Husted’s directive destroys the “Souls to the Polls” programs that many churches have created to take voters to the polls after church on the Sunday before election day.
That has been a common practice in recent years, in Cincinnati and in most of the state’s large urban areas. And the overwhelming majority of those “Souls to the Polls” voters have been African-American; and they vote Democratic.
The Obama campaign relied on such tactics heavily in both 2008 and 2012; and in both elections, it was a factor in Obama winning Ohio’s electoral votes.
The groups who are party to the lawsuit estimate that, in 2012, 157,000 Ohioans cast ballots on the days that have been eliminated by Husted and the legislature.
Husted has repeatedly made the point that he made the changes in early voting hours on the recommendation of the bipartisan Ohio Association of Election Officials. The people who actually run the elections in Ohio’s counties, Husted argues, wanted this change so that they would not be constantly bogged down with staffing their offices at all hours of the day and night to accommodate a relative handful of voters.
“The ACLU is targeting the wrong state because by every objective measure Ohio has expansive opportunities to vote,’’ Husted’s press secretary, Matthew McClellan, said in a press release.
The ACLU, McClellan said, “would be better served to focus on states like New York or Delaware or Michigan or Kentucky where there’s no early voting at all.”
The lawsuit, as could be expected, has become an issue in Husted’s re-election campaign.
His Democratic opponent, State Sen. Nina Turner of Cleveland, put out a statement after the suit was filed lambasting Husted and the Republicans in the legislature.
“It is truly unfortunate that voting advocates must again turn to litigation to secure equal access to a basic right,’’ Turner said. “Early voting has been working in Ohio and no compelling reason has been presented to support rolling it back.”
Dan Tokaji, a professor of election law at The Ohio State University’s Moritz School of Law, said the ACLU lawsuit is based on two alleged violations of constitutional rights and an alleged violation of the federal Voting Rights Act.
In the case of the constitutional arguments, Tokaji said, the plaintiff would have to prove intentional discrimination against a class of voters, such as African-Americans. That will be hard to do, he said.
“No legislators are going to come out and say we did this to make it harder for blacks to vote,’’ Tokaji said. “There is no smoking gun.”
But on the Voting Rights Act violation, intent does not have to be proven – just that the result of the defendants’ actions resulted in discrimination.
“It remains to be seen, but on that point, they may have a strong case to make,’’ Tokaji said.
The ACLU lawsuit was assigned to U.S. District Court Judge Gregory L. Frost, who is based in Columbus. Husted and Ohio Attorney General Mike DeWine, whose job it is to defend Ohio law, were named as the defendants in the case.
There is, of course, no telling what Frost might do in this case; and whatever he does, it is likely to be appealed by the losing side.
But, in 2012, the federal courts blocked a law that would have done away with early voting on the final three days before the election. So there is some precedent here for the court to work with.
The federal court stepped in that 2012 case and overturned Ohio election law. And in 2011, U.S. District Court Judge Susan Dlott in Cincinnati ruled that provisional ballots that would not have counted under state law be counted in the close election for Juvenile Court Judge between Democrat Tracie Hunter and Republican John Williams. The provisionals were counted; and Hunter won the election after the case grinded its way through the federal courts for months and months.
Are we looking at another situation where Ohio election law is overturned by the federal courts? Only time will tell.