The state Democratic party in Ohio and some of its county organizations and voters asked the Supreme Court on Thursday to reinstate five days of early voting in this year’s general election — the so-called “Golden Week” that had been heavily used by black and low-income voters, who tend to support Democratic candidates.
Enacted eight years ago, after a debacle that resulted in very long lines at voting places in the 2004 elections in Ohio, “Golden Week” was eliminated by the state legislature three years ago, and that action has been tied up in court challenges since then. Two years ago, on the very eve of the start of early voting, the Supreme Court split 5-to-4 in blocking it. That case, though, was settled before the Justices could rule on the validity of the early voting option.
In a close election in a battleground state such as Ohio, early voting can potentially affect outcomes. In the 2004 election, 60,000 voters — many of whom were black and had low incomes — cast ballots during Golden Week, and in 2012 the comparable figure was 80,000. President Obama won the state in both elections, with strong support among minorities.
The new Democratic plea to the Court argued that Republican officials in the state have been working since the 2012 election to arrow voting opportunities for those likely to support Democrats — including the elimination of Golden Week in 2013. In a split decision, the U.S. Court of Appeals for the Sixth Circuit rejected the Democratic challenge to the elimination of this voting option.
The application (16A223) was filed with Justice Elena Kagan, who acts on emergency legal matters from the Sixth Circuit area, which includes Ohio. She has the authority to act on her own, or to refer the issue to the full Court. If the Court, now with only eight members, has the issue referred to it by Kagan (which is likely) and if it divides as it did on the same voting provision two years ago, it very well might split 4-to-4 this time.
The difference this time is that there is more time for state election officials to adapt to restoration of the early voting span than there was two years ago when the Court had to act at nearly the last minute before early voting was to begin. In addition, the Justices this time are being asked to revive the practice rather than to block it. Whether those factors will make a difference is unclear at this point.
The Democratic application argued that the Sixth Circuit Court majority had wrongly blocked the restoration of the early voting days, overturning a federal trial judge’s ruling last May that the elimination of those opportunities was unconstitutional and violated the federal Voting Rights Act.
The Sixth Circuit ruling, the new application contended, would mean that Golden Week would have been eliminated “only five weeks before it was set to commence on October 4,” thus disrupting the plans that were going forward to carry out the trial judge’s May order in favor of the extra voting days.
The Sixth Circuit Court’s opinion said early voting was merely a matter of choice, and its elimination was not the result of an obstacle imposed by the state government. The majority of the panel said the trial judge’s order reinstating Golden Week was an example of how federal courts “become entangled, as overseers and micro-managers of the minutiae of state election processes.”
The Democratic challenges asserted that the Sixth Circuit Court majority had used the wrong legal analysis, and subjected the elimination of the early voting span to the most permissive form of review — “rational basis.” The result also conflicted with the reasoning used by other appeals courts on similar election procedures, the Democratic plea said.
Ohio previously had a 35-day period of early voting, with the first five days referred to as “Golden Week” because voters could register and vote at the same time. Registration closes 30 days before the election itself is held, and early voting can continue during that month for those who have succeeded in registering.
Justice Kagan is expected to seek a response from Ohio officials before she acts on the new application or refers it to the full Court.