Commentary

06.20.14

Early Voting – Is the Fight Over?

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Obama for America v. Husted, filed in 2012 and decided on June 11, 2014, challenged an Ohio statute and a set of directives issued by the Ohio Secretary of State on the ground that the provisions together violated the Equal Protection Clause of the Fourteenth Amendment. The suit alleged that the provisions discriminated between two classes of voters: on one hand, Americans serving in the military and those living overseas (together referred to as “UOCAVA voters”), and on the other, all other voters (“non-UOCAVA voters”), because the scheme allowed only UOCAVA voters, but no one else, to vote in person on the Saturday, Sunday, and Monday before Election day.

The Court held that the provisions violated the Constitution, and ordered that the three days preceding “all future elections” must hence forth be available for all eligible voters. While the court declined to mandate the hours that polling places must be open on those days, it did order the Secretary of State to set hours that would be “suitable and uniform.” The Court added its observation that voter turnout is lower in a non-presidential year. This suggests that the Court’s admonition that the hours be “uniform” refers to uniformity across the state, from county to county, and not consistency from election to election.

On June 17, the Secretary of State complied and issued a directive establishing the hours that polls are to be open for early in-person voting during the three days proceeding elections. This November, because it will be a gubernatorial general election, the hours are Saturday, November 1, 8 a.m. – 4 p.m.; Sunday, November 2, 1 p.m. – 5 p.m.; and Monday, November 3, 8 a.m. – 2 p.m. (The directive sets different hours for other types of elections, e.g. presidential general elections, regular municipal elections, primary elections, etc.)

Although our case, NAACP v. Husted, filed on May 1, 2014, also seeks early in-person voting on the weekend before Election Day, and overlapped with Obama for America in that respect, it is different in several respects and is significantly broader. We challenge additional provisions in Ohio law; we are suing on behalf of other classes of voters; and we seek additional relief. We challenge a set of 2014 cuts to voting opportunities by Ohio and the Secretary of State that eliminated Golden Week as well as evening and Sunday early in-person voting hours. We contend that these cuts violate the Fourteenth Amendment Rights of lower-income voters and African-American voters who overwhelmingly rely on the early voting period, especially evening and Sunday hours, and Golden Week, compared to other voters. We also assert a violation of the Voting Rights Act because of the impact of these cutbacks specifically upon African-American voters. The remedy that we seek (that goes beyond what was decreed in Obama for America) is: the reinstatement of Golden Week, the reestablishment of evening hours, and the opportunity for early in-person voting on more than one Sunday.

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