Imagine for a moment that you’re a justice on a district court, and you're confronted with this puzzle -- let's call it State v County -- of early voting laws:
- The State wants uniform early voting hours (the expression "voting hours" includes days) from county to county, so that each county gives citizens exactly the same opportunity to vote as the next. If a citizen in one county has two days to vote, and a citizen in another has 30 days, they reason, the former could claim a lack of equal protection of the law.
- The County, which is largely urban, wants the right to extend early voting hours (and days) beyond state regulations, claiming the unique challenges of a city (such as overcrowded polling places) mean that statewide hours actually put its citizens at a disadvantage, and diminish the value of their votes.
This isn't a current court case, but it could be soon. Despite the reams of voting rights cases currently before the courts, there’s no consensus on which of these two alternatives is accepted, fair, or constitutional.
The number of early voting days, particularly in urban counties, is at the forefront of the current crop of voting rights disputes because of its growing impact: In 2008, three out of every 10 Americans, in 32 states, voted early in the presidential election. More will likely do so this time around. Colorado, North Carolina, Florida, and Nevada all cast more than half their votes early four years ago. County-by-county regulation of voting hours was fine when there was only one day to vote. But with early voting already beginning in some states, the variance could grow very, very large.
Ohio and Florida, swing states where voting disputes are as dependable as death and taxes, have in this election season both tried to regulate, and for some counties, restrict early voting times. In Ohio, Secretary of State Jon Husted issued a directive this August to apply uniform voting hours across all of the state's counties. Counties had previously been able to set their own hours, which, a spokesperson at Husted’s office told me, led to concerns about widely variant opportunities to vote. In many places, bipartisan county election boards – two Democrats and two Republicans – were unable to come to internal agreements about hours. The Secretary of State, under the old system, would have broken that tie.
Instead, all Ohio counties now have identical hours. In some cases, that means fewer days for early voting than before. In others, more. Mike McClellan, the spokesperson for Husted, says the Secretary aimed to provide a compromise that aggregated the interests of counties large and small. The early voting saga in Ohio has been long, vitriolic, and is culminating in a handful of lawsuits. Abby Rapoport in the American Prospect offers a thorough, cynical analysis of those events.
Statewide voting hours laws are highly political. Early voting heavily favors Democrats. In 2008, counting only votes cast on Election Day, McCain would have won in Florida, Colorado, Iowa and North Carolina. Voting rights advocates argue Republican state governments are trying to prevent urban dwellers – or in other words, minorities and Democrats – from voting. But the degree of rancor involved in these voting rights fights obscures a very real and apolitical question: whether different counties should be able to set different voting hours.
In Ohio, on the weekend before the last presidential Election Day alone, 88,000 people voted across the state. To put that number in context, Obama only beat McCain in Ohio by about 200,000 votes. This year, thanks to the Husted directive, it’s possible that virtually no Ohioans will vote early that weekend.
The lawsuit that will decide when Ohio city-dwellers get to cast their early votes is a weird one. Here’s what happened: in 2008, many Ohio residents were able to vote on the weekend before Election Day. Husted’s directive eliminated that weekend for all voters but military voters and Ohioans who live abroad. The Obama campaign sued, and a federal district court ordered Husted to reopen that weekend of voting for all. (He hasn't; the case is now being reviewed by a higher court.)
You could spend all day reading about the logic and legal precedent used by the court to overturn Husted’s directive, starting with Ned Foley’s post that outlines the overlapping philosophies of Equal Protection and “non-retrogression” analysis. What’s clear is that the specificity of the situation – it’s very much about the differing treatment of military voters and the rest of the voting population – means this case won’t change how states and counties set hours.
Even liberal law professors acknowledge the difficulties of granting urban counties exceptions to a statewide directive. If a court ruled that an urban county deserved an exception to the rule, it would open up a very complicated line of reasoning: Which counties deserve more voting hours? How long do the lines have to be? It’s a question of degree, and one that courts would be reluctant to weigh in on.
But one reason that courts traditionally do intervene in state voting procedures is discrimination against minorities. Owing to histories of racial discrimination and disenfranchisement, hundreds of counties across the United States must have changes to voting procedure approved by federal courts under Section 5 of the Voting Rights Act. Below, a map of those districts in 2008, which is still mostly valid:
Florida has five counties whose voting regulations are subject to federal review under Section 5. One of these is Hillsborough County, which includes Tampa and recently hosted the Republican National Convention. As in Ohio, weekend voting was approved by the county but has been taken away by the state. Last year, the state legislature passed a controversial package of voting rights legislation, House Bill 1355, which combined registration requirements, provisional ballot rules, and restricted voting hours. Baylor Jensen, who works at the Florida chapter of the ACLU, says it is known to voting rights groups as the "voter suppression act." Parts of it have already been overturned.
But not the provision standardizing and in some places restricting the number of days for early voting. After a panel found that reducing early voting days from as many as 14 to eight would discourage minority voting, Attorney General Eric Holder said he would approve a solution whereby each of those counties kept polling stations open for the maximum number of hours, reallocating weekend hours to weekday mornings and evenings. The ACLU says more hours are not enough, and that eliminating weekend hours will have a "retrogressive effect" on the minority vote.
Retrogression is the standard that courts and the Justice Department apply to such changes in voting law. A law has a retrogressive effect if it "diminishes the ability" of a racial group "to elect their preferred candidates of choice." In Florida, for now, the state law hasn’t been found to violate that standard. Analysis of the upcoming election could provide fodder to change that, but the ACLU hopes it will be resolved sooner: "The rug is about to be pulled out from under the rights of minorities, especially black voters," Howard Simon, the group's executive director, told the Associated Press on the occasion of Holder’s decision.
In Ohio, “retrogression” was invoked in the district court’s ruling on Obama for America v Husted, but not with regards to race. This is unusual: it’s usually a principle confined to racial discrimination in troubled districts reviewed under the Voting Rights Act. Basically, the court said, the issue was that once the vote had been extended to all voters (on weekends in 2008 and other elections) it was not fair to retract it for some voters.
The idea of retrogression in Ohio was not connected to a proven disparate effect on black voters if weekend voting is taken away. But race will be an important issue if voting rights activists want to prove that urban counties should be able to set their own early voting schedules. The U.S. legal system is unlikely to go out of its way to give special treatment to busy urbanites, but it has historically done a good job revoking laws that have a disparate impact on minorities. Early voting has been found to significantly increase minority turnout, particularly on weekends -- many black congregations hire buses to take voters to polling stations after church. Florida and Ohio have been accused of mandating restrictive uniform voting hours to suppress the black vote. The most damning words came from within the Republican party: “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban -- read African-American -- voter-turnout machine,” Doug Preisse, the GOP chairman in Franklin County, told the Columbus Dispatch.
Plenty of people see that remark as further proof that state Republican officials are rolling back early voting to suppress the black vote. A study by professors from Dartmouth and the University of Florida found that the changes to early voting policy in Florida would “disproportionately affect” "Democratic, African American, Hispanic, younger and first-time voters" [PDF]. A number of law professors believe uniform early voting laws are intended to suppress the minority vote.
But activists have taken issue with the content, more than the concept, of a statewide directive. They’re not arguing against standardization (thought they may dispute its benefits) – they argue against the lack of weekend hours that standardization has required. But 35 days of early voting – particularly for the people who manage the process on weekends – would be perverse (and costly) in rural Vinton Co., Ohio, which has barely more than 12,000 people. Conversely, would it be fair if a Cleveland resident had four times as many days to vote as one in Cincinnati? It looks like early voting poses challenges for which the legal system isn’t prepared – states and counties are going to need to rethink the way they run elections.
Top image: Larry Downing/Reuters