Saturday, October 6, 2012
In its opinion yesterday in Obama for America v. Husted, the Sixth Circuit has affirmed the district judge's injunction against Ohio's new law that prevented some Ohio voters from casting in-person early ballots during the three days before the November 2012 election on the basis that the statute violates the Equal Protection Clause of the Fourteenth Amendment.
The Sixth Circuit opinion tracks the district judge's explanation of the confusing (and confused) statutory scheme that resulted in different allowances of early in-peson voting to military and overseas voters than to non-military voters. In its equal protection analysis, the Sixth Circuit panel noted that Ohio had both burdened the right to vote and had classified voters disparately. It examined Ohio's two asserted governmental interests - - - the burden on local boards of elections and the need to accommodate military voters and their families - - - and found that the State did not demonstrate they were “sufficiently weighty” interests to curtail voting. While the Sixth Circuit does not explicitly find that the interests were not being served by the means chosen, this usual prong of equal protection analysis is implicit in the analysis.
Importantly, the panel explicitly upheld the district judge's remedy:
The State argues that the district court’s remedy was overbroad because it could be read to affirmatively require the State to mandate early voting hours during the three- day period prior to the election. We do not read the district court’s order in this way. The order clearly restores the status quo ante, returning discretion to local boards of elections to allow all Ohio voters to vote during Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. Because Ohio Rev. Code § 3509.03 is unconstitutional to the extent that it prohibits non-military voters from voting during this period, the State is enjoined from preventing those voters from participating in early voting. But the State is not affirmatively required to order the boards to be open for early voting. Under the district court’s order, the boards have discretion, just as they had before the enactment of § 3509.03. The district court’s remedy was therefore appropriate.
It was on the question of remedy that Circuit Judge Helene White disagreed, suggesting that she would "remand the matter with instructions to give the Secretary and the General Assembly a short and finite period in which cure the constitutional defects."