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September 04, 2014 3:04 PM Battle Over Early Voting Continues

By Ed Kilgore

You certainly have to credit Ohio Secretary of State Jon Husted for persistance. He keeps trying to curtail early voting in Ohio, and keeps getting rebuffed by U.S. District Court Judge Peter Economus, as reported by the AP:

A federal judge on Thursday temporarily blocked an Ohio law that scales back early voting, ordering the state’s elections chief to set additional voting times just ahead of the fall election.
The ruling from U.S. District Judge Peter Economus comes in a lawsuit filed by civil rights groups, several predominantly black churches and others challenging two early voting measures in the perennial presidential battleground state.
One is a directive from Republican Secretary of State Jon Husted that established uniform early voting times and restricted weekend and evening hours. Another is a GOP-backed law that eliminates golden week, when people could both register to vote and cast ballots. Without those days, early voting would typically start 28 or 29 days before Election Day instead of the prior 35-day window.

You may recall that the same judge stopped early voting restrictions by the same Secretary of State just prior to the 2012 elections. In that case, though, 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.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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