Law Professor Calls Supreme Court’s Voting Rights Restrictions ‘Purely Partisan’

The justices issued a 5-4 ruling on Monday allowing new early voting restrictions in Ohio to take effect before voting in November's midterm election begins.

The justices issued a 5-4 ruling on Monday allowing new early voting restrictions in Ohio to take effect before voting in November's midterm election begins. WikiMedia Commons

The Supreme Court on Monday granted an emergency request by Ohio state officials to block a lower court order expanding early voting in the state—a move that some legal scholars find disturbing in its apparent partisanship.

The Roberts Court released the one-page order after a flurry of legal activity related to early voting restrictions enacted by Ohio’s Republican legislature this year. Those limits remove the first week of Ohio’s 35-day early voting period and eliminated the only week that permitted same-day registration and voting, a process most often used by minority voters.

The American Civil Liberties Union filed suit against the state challenging the early voting restrictions on behalf of the Ohio chapters of the National Association for the Advancement of Colored People (NAACP) and League of Women Voters and several African-American churches arguing the new restrictions are unconstitutional.

A federal district court judge in Columbus agreed and struck down those restrictions and last week a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed that ruling and ordered the officials for the State of Ohio to allow voting to begin this Tuesday.

But on Thursday, Ohio Secretary of State Jon Husted and Attorney General Mike DeWine filed an emergency request with the Roberts Court to intervene and reverse or delay federal court orders restoring what is known as “Golden Week,” a week-long window in which people could both register to vote and cast a ballot in Ohio.

Those decisions, attorneys for the State of Ohio argue, improperly created a “right to vote early” and intrude into the state’s rights to manage its elections. Supreme Court Justice Elena Kagan, who oversees appeals from the Sixth Circuit, ordered the parties to brief the Court by Saturday.

The order was issued without an accompanying opinion or explanation, and reflected the ideological breakdown of the Court with the four liberal justices stating they would not have denied the request for a stay.

The order staying the voting restrictions came the day after the justices met for their first formal conference for the new term and just one day before polling stations were set to open in Ohio to allow voters to cast ballots in November’s general election.

“This is a case that is just partisan all the way down,” Eric Segall, a Georgia State University law professor, said in an interview with Rewire. 

Segall is the author of Supreme Myths: Why the Supreme Court and Its Justices are Not Judges, and co-author of Supreme Secrecy, to be published next year by Stanford University Press.

“It’s five Republicans getting their way over four Democrats on a Republican-Democratic issue overturning a lower court opinion that affirmed a very detailed district court order that is very factual. It’s really sad, I think,” Segall said.

Supporters of early voting detailed in court filings the history of “the debacle of 2004,” when some voters stood in line for more than 12 hours, and many never got to vote. The early voting methods put in place to resolve those events were “a necessary remedy to address the state’s demonstrated inability in 2004 to conduct the entirety of an election on a single day,” advocates argued.

But attorneys for the State of Ohio argued both the lower court and court of appeals got the case wrong by creating a new “right to early voting” and by unconstitutionally interfering in the state’s power to oversee its own elections.

Monday’s decision by the Roberts Court is not a ruling on the merits of Ohio’s early voting restrictions, nor does it have the impact of another Supreme Court election case, the infamous 2000 decision in Bush v. Gore. As Segall explained, the limited nature of Monday’s ruling does not make it less political.

“If the Court was going to stop the changes, it had to do so now,” said Segall, noting the lower courts had ordered the restrictions lifted in time for voting to begin this week. “But the magnitude of the intrusion doesn’t change the nature of the intrusion and the nature of this intrusion is purely partisan.”

“A stay is only supposed to be for the most dire emergency situations. This wasn’t that,” he added.

The immediate effect of Monday’s decision means early voting in Ohio will be delayed at least one week, possibly more. Monday’s order also leaves in limbo expanded days and hours for voting, including voting on the Saturday and Sunday two weeks before Election Day and from 5 to 7 p.m. on weekdays during the two weeks prior to Election Day.

“Thousands of Ohioans rely on early voting. For many, it is their only chance to cast a ballot during an election,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement following the Supreme Court’s order. “While today’s order is not a final ruling on the merits, it will deprive many Ohioans of the opportunity to vote in the upcoming election as this case continues to make its way through the courts.”

Ohio’s voting rights case is not the only time the Roberts Court has been accused of partisanship in its decisions to grant or deny emergency requests for relief.

The Court refused last year to grant advocates’ request to intervene in a dispute over a requirement that all abortion providers in Texas maintain hospital admitting privileges. Similar to the Ohio voting rights case, a lower court ruled the Texas requirement unconstitutional following a trial, issuing detailed findings of fact to support its conclusion that the admitting privileges requirement unduly burdened abortion rights.

Unlike the Ohio voting rights case, where both the district court and lower appeals court were in agreement on the problems with Ohio’s early voting restrictions, in the Texas admitting privileges case the Fifth Circuit Court of Appeals in an emergency order reversed the lower court ruling and ordered the requirement go into effect immediately.

Abortion clinics across the state were forced to close, leaving patients to drive hundreds of miles to access care.

The Roberts Court, in a 5-4 decision, refused to grant advocates’ emergency request to stay the Fifth Circuit decision ordering the abortion restrictions to go into effect. Those restrictions remain in effect today.

“Where the justices feel strongly, they will do what they want, unconstrained by law,” Segall said.

Monday’s order had the support of Chief Justice John G. Roberts Jr., and Justices Samuel A. Alito Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.