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Ohio Early Voting Blocked by U.S. Supreme Court

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By William Peacock, Esq. on September 29, 2014 7:02 PM

After a district court blocked Ohio's attempts to limit early voting opportunities, and after the Sixth Circuit refused to issue a stay pending appeal, the state was down to a Hail Mary petition in the last few minutes of the game.

With early voting set to commence, including the "Golden Week," which allows voters to register and vote on the same day (and is a logistical headache for the state, which has to verify those registrations on the spot), the U.S. Supreme Court stepped in Monday morning and voted 5-4 to issue a stay in the case, all but guaranteeing that the state will get its way this election, and early voting opportunities will be limited. (H/T to SCOTUSblog)

No Stay in the 6th Circuit

We talked about this case just a couple of weeks ago. Ohio cut down on the number of early voting days, especially during Golden Week and on Sundays, saying that it cost too much, especially with the state's voter identification verification requirement.

The NAACP and other challengers to the cutback argued that the removal of EIP (early in-person) voting days would disproportionately impact African-American voters.

U.S. District Judge Peter C. Economus ruled in favor of the voters, calling the state's justification "relatively hollow." The Sixth Circuit, in denying a stay, basically agreed, saying that while Ohio raised some interesting legal points, they failed to show irreparable harm (that the cost of the additional EIP days was beyond their means).

But 5 High Court Conservatives Grant a Stay

Monday, in a brief order, the U.S. Supreme Court granted a stay pending the "timely filing and disposition of a petition for writ of certiorari." The real-world effect is that Ohio gets its way for now -- by the time a petition and response are filed, considered and decided upon, the cut-back EIP days will have already passed.

The order notes that Justices Ginsburg, Breyer, Sotomayor, and Kagan would deny the application for a stay, which leaves the five conservative justices as the five notes necessary for a stay.

Though the order didn't say why the Court granted a stay, Ohio did make an interesting argument in its Sixth Circuit merits brief: The Sixth Circuit and the Supreme Court have stated that injunctions that change election rules at the last minute are disfavored. ("Court orders affecting elections... can themselves result in voter confusion.... As an election draws closer, that risk will increase." SEIU v. Husted 698 F.3d 341 (6th Cir. 2012) quoting Purcell v. Gonzalez, 549 U.S. 1 (2006))

By granting the stay, the Supreme Court ensures that there are no last-minute changes to Ohio's election rules.

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