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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

September 4: The Unsteady Status of Voting Rights

There was good news today from a federal judge in Ohio who halted an effort by the GOP Secretary of State, Jon Husted, to cut back on early voting opportunities. This is the same judge and the same Secretary of State who battled in 2012 when Judge Peter Economus wouldn’t let Husted implement early voting restrictions just prior to the presidential election. But while the results are temporarily the same, the shift in the battleground over early voting may not be positive, as I noted today at Washington Monthly:

In [2012], the state had proposed special provisions to let certain voters (as cynics suggested, Republican-leaning voters like active military personnel) cast ballots early, so it was reasonably easy to label the changes as discriminatory violations of both equal protection requirements and the Voting Rights Act.
The new no-exemptions cutback in early voting is a different matter, and as Ari Berman notes at The Nation, Economus’ ruling enters some uncharted territory:

[T]he courts are split over how to interpret the remaining provisions of the Voting Rights Act in the wake of the Supreme Court gutting a key part of the law last June. This is the first time a court has struck down limits on early voting under Section 2 of the VRA. A Bush-appointed judge recently denied a preliminary injunction to block North Carolina’s cuts to early voting and the elimination of same-day registration, a lawsuit similar to the one in Ohio. A Wisconsin judged blocked the state’s voter ID law under Section 2, while a similar trial is currently underway in Texas.

Indeed, as Rick Hasen notes at Election Law Blog, it’s unclear whether the courts can insist on Ohio preserving its previous early voting rules when some states–most notably New York–don’t allow early voting at all. Barring an intervention by the Supreme Court–which no friend of voting rights should welcome–it appears we will get through the coming election with different standards for different states.
The problem could be resolved, of course, if there existed a Congress willing to (a) repair the Voting Rights Act that was largely disabled by the Supremes in their Shelby County decision last year; and/or (b) set minimum national standards to improve ballot access, as suggested by a bipartisan commission report the political world has already forgotten about.

Occasional wins in the courts aren’t enough absent a national re-commitment to voting rights, and an expectation that states and localities will treat participation in elections as a good thing to be actively encouraged.

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