Friday, September 26, 2014

Sixth Circuit Rules Ohio's New Voting Scheme Likely to Violate Equal Protection

With quick dispatch, the Sixth Circuit has issued its unanimous  opinion in Ohio State Conference of the NAACP v. Husted, affirming District Judge Peter Economus's decision earlier this month issuing a preliminary injunction enjoining the Ohio legislature's amendments to the election code that limited early in-person voting.

The Sixth Circuit rejected Ohio Secretary of State Husted's claim that the district judge's extensive findings of fact were clearly erroneous.  Likewise, the Sixth Circuit rejected the argument that the district judge should have applied rational basis scrutiny in the equal protection claim, holding that the district judge was correct in applying the "flexible Anderson-Burdick" test, articulated as

A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs’ rights.”

Burdick v. Takushi, 504 U.S. 428, 434 (1992).  The Sixth Circuit moreover found that the district judge applied the test correctly. The opinion specifically discussed Ohio's asserted  justifications - - - preventing voter fraud, containing costs, and uniformity - - - and found that Ohio did not demonstrate that these interests outweighed the burdens on voters.

In the last third of the opinion, the court analyzed the Section 2, Voting Rights claim  (Voting Rights Act of 1965, 42 U.S.C. § 1973), again agreeing with the district judge.

This means that the Sixth Circuit validated the district judge's order requiring early voting provisions that become effective in just a few days, on September 30.

Ohio has already filed an application to the United States Supreme Court for a stay.  As Sixth Circuit Justice, Justice Kagan may rule on the application or refer it to the full Court.


Current Affairs, Elections and Voting, Equal Protection, Federalism, Opinion Analysis | Permalink

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There is no theoretical justification for treating an "election law" any differently than any other government act burdening the fundamental (for equal protection purposes) right to vote. Burdick made no attempt to justify its "balancing" test. After mouthing the usual platitudes ("It is beyond cavil that 'voting is of the most fundamental significance under our constitutional structure.'"), the Burdick court simply asserted that it would "tie the hands" of government if election codes were subjected to strict scrutiny. Why should one of the most fundamental of constitutional rights receive diminished protection simply because the government finds it inconvenient to regulate it correctly? Of course, I am shouting into the hurricane to question the Supreme Court's disregard for voting rights (for non-corporate persons), given the present Court's approval of disenfrancisement of the poor, the non-white, and the non-wealthy elderly. The tatterted shawl of "reasoning" the justices draw across their outcome-determined judging should be torn aside and vilified by the scholarly community.

Posted by: Jeffrey G. Purvis | Sep 27, 2014 1:15:53 PM

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