Repubs file 'Emergency Petition for Rehearing' before full court...
By Ernest A. Canning on 9/26/2014, 7:48am PT  

Yes, Ohio Republicans are still barred from limiting the early voting period and still required to restore the days and hours they had, yet again, tried to cut off. At least they are barred, again, for now.

On Wednesday, a unanimous three-judge panel of the U.S. 6th Circuit Court of Appeal issued a 50-page ruling [PDF] in which it upheld a lower court's preliminary injunction from three weeks ago that prevented Ohio’s Republican Secretary of State John Husted from implementing a Feb. 19, 2014 GOP-engineered statute, and his own further Directive, which would have drastically reduced the number of early voting days and hours and eliminated same-day registration and voting during the first five days of a previously established 35-day period of early voting in the Buckeye State.

Reflecting the fact that he anticipated an adverse ruling, Ohio's Republican Attorney General Michael DeWine filed an Emergency Appeal for a Rehearing [PDF] by the full 6th Circuit, on the very same day the three-judge panel handed down their decision. His appeal presents essentially the same arguments that have now, repeatedly, been rejected by the courts, first in a 2012 case, Obama for America v. Husted, and now, again, in Ohio State Conference of the NAACP v. Husted...

They've been attempting this for years

As the appellate panel noted in its lengthy opinion, in 2005, following the fiasco that was the 2004 Presidential Election –- inordinately long lines, inadequate numbers of voting machines in African-American precincts and other obstacles that resulted in disenfranchisement and electoral chaos –- Ohio enacted significant reforms. They included "no-fault absentee voting [and] eliminating the requirement that Ohio voters had to provide an excuse for not being able to vote on Election Day in order to vote early." The reforms required each Board of Election (BOE) "to make absentee ballots available to voters…no later than 35 days before the election," with voters having the option to either cast early ballots by mail or in-person, and same-day registration during the first five days of that early voting period --- a five day window that has come to be known as "Golden Week."

From the standpoint of participatory democracy, the 2005 election reform, according to this latest 6th Circuit opinion, proved to be a smashing success:

[I]n 2008 "approximately 1.7 million Ohioans cast their ballots before election day, amounting to 20.7% of registered voters and 29.7% of the total votes cast". . . In 2010, approximately 1 million Ohioans voted early, and 17.8% of them chose to cast their ballots in person." [Citation]. In the 2012 election, roughly 32% of Ohioans voted early. [Citation]. Thousands of voters also registered or updated their registration and voted during Golden Week.

That success did not sit well with the would-be GOP oligarchs and their billionaire-funded backers, like the Koch Brothers, who prefer the privatized legislative process that takes place within the confines of an American Legislative Exchange Council (ALEC) legislative task force, where corporate lobbyists and Republican politicians can draft model legislation without the infuriating interference of democracy and a knowledgeable electorate.

As ALEC co-founder, Paul Weyrich, so chillingly observed during his 1980 remarks to a right-wing Christian audience (see video at right), their side does better when the number of citizens who vote goes down.

Thus, as explained by The Nation’s Ari Berman, in reference to the District Court’s preliminary injunction in this case, ever since the 2005 reforms, Ohio Republicans have repeatedly tried "to cut early voting and the federal courts keep striking the cuts down."

State Republicans, whether in the form of the legislature or their Republican Sec. of State in Ohio, keep attempting to make it harder to vote, and the federal court keeps ruling those attempts to be in violation of federal law. It has happened over and over again over the past several years.

The latest effort, as documented in the 6th Circuit panel's opinion, came by way of the Feb. 19, 2014 passage of SB 238, which sought to eliminate Golden Week altogether. Further reduction in access to the polls also came by way of a Feb. 25 directive from Secretary Husted. His order drastically reduced the availability of early voting, including the elimination of the Sunday and Monday before the election --- that despite an August 2012 preliminary injunction issued by the same U.S. District Court Judge, Peter Economus, which forced Husted to permit early voting during that period for the 2012 Presidential Election.

The U.S. Supreme Court summarily rejected Husted’s request for an emergency stay in 2012 of a near identical 6th Circuit ruling. So it is not all that surprising that the 6th Circuit upheld the new injunction issued this year by Judge Economus, sustaining both his factual findings and his legal conclusions.

Racially disparate impact

The 6th Circuit expressly sustained Economus' conclusion in the district court which found that, as the result of implementation of SB 238 and Husted’s directives, "African Americans will be disproportionately and negatively affected by the reductions in early voting." The court also noted that findings of "disparities in employment and in residential, transportation, and childcare options between African American and white voters significantly increased the cost of casting a vote for African American voters." Those disparities, the court notes, were "undisputed."

The 6th Circuit supported Judge Economus's conclusion that it was likely that the plaintiffs would prevail in establishing, at trial, that the changes in early voting sought --- yet again this year --- by the GOP, violated the Equal Protection rights of African American voters and Section 2 of the Voting Rights Act.

The panel also rejected the state's claim that expert testimony, as it related to the 2008 and 2012 elections, was "not probative" on the basis that those were Presidential Elections whereas 2014 entailed a mid-term. The appellate court didn't buy the argument:

Plaintiffs’ complaint does not limit its challenge to the 2014 midterm elections…SB 238 is the law in Ohio and will apply to all elections moving forward, and nothing in the record suggests that the restrictions on early voting in [Husted's] Directive 2014-17 will be limited to the 2014 election. In fact, Directive 2014-17 expressly applies to "Presidential General Elections."

Equal Protection and Section 2 of the Voting Rights Act

Citing its earlier decision in the 2012 Obama for America case, the 6th Circuit ruled that Judge Economus had properly applied what is known as the Anderson-Burdict test, which requires the courts, on a case-by-case basis, to measure a law's potential damage to voters' right to vote, against the specific claims made by the state as to why such additional burdens and restrictions are necessary. That same test, interestingly enough, was also applied by U.S. District Court Judge Lynn Adelman when he permanently enjoined Wisconsin’s Photo ID law.

Judge Adelman cited that test in his Wisconsin ruling, with reference to the U.S. Supreme Court's divided opinion in Crawford vs. Marion County Elections Board (2008). That was the case which upheld Indiana’s Republican Photo ID law against a legal challenge, charging that the Hoosier state's Photo ID law was unconstitutional "on its face". Six (6) of the nine (9) Justices, including Chief Justice Roberts and Justice Kennedy, all agreed that such laws must be evaluated under the Anderson-Burdict test. The confirmed use of that standard that led this site to suggest that Adelman's reasoning could spell the beginning of the end for GOP photo ID restrictions in any state where the evidence established that such restrictions unduly burdened the right to vote.

Unlike Crawford, the record before both Judge Adelman in the Wisconsin case and the record before the 6th Circuit in this Ohio case established a likelihood that both laws would impose severe burdens on the right to vote. That aspect of both Adelman's and the 6th Circuit's rulings, to the effect that both election laws are likely to violate both the Equal Protection Clause of the 14th Amendment of the U.S. Constitution and Section 2 of the federal Voting Rights Act, are manifestly at odds with the rationale applied by three GOP jurists* on a 7th Circuit panel who recently overturned Adelman's injunction in the Wisconsin Photo ID case. Those three 7th Circuit jurists utilized the reasoning that had been applied by only three (3) (Scalia, Thomas and Alito) of the nine (9) Justices who participated in the 2008 Crawford decision.

That 7th Circuit panel ruling in the WI case is now, like the OH case, also the subject of an Emergency Petition for Rehearing before that full court. In the WI case, the ACLU has argued that the injunction on the state's Photo ID law needs to be immediately reinstated to prevent "electoral chaos" that not only threatens to disenfranchise as many as 300,000 legally registered voters who lack the very specific type of state-issued Photo ID now required to vote in the Badger State, but has also resulted in the possible spoilage of absentee ballots already cast under rules that did not notify voters to submit a copy of their photo ID when returning their absentee ballot.

*Where the 7th Circuit panel in the Wisconsin Photo ID case was made up exclusively of judges nominated by Republican Presidents, in this case, the 6th Circuit panel included Senior Judge Damon J. Keith, a Carter nominee, and Judges Karen Nelson Moore and Eric L. Clay, Clinton nominees.

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UPDATE 9/29/2014: BREAKING: State of Ohio receives 5-4 ruling from U.S. Supreme Court that restores limits on early voting! Full details now here...

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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