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Stay Denied, Ohio Files Merits Brief in Early Voting Limits Appeal

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By William Peacock, Esq. on September 16, 2014 6:24 PM

It has been a rough month for Ohio's election laws. First, a district court blocked the state's attempt to pull back early voting days, including the state's "Golden Week," where individuals could register and vote on the same day. Then, the state's stupid law that criminalized making false statements in elections predictably fell at the hands of the Sixth Circuit.

On Friday, the Sixth Circuit denied a stay pending appeal in the Golden Week case and today, the state filed its merits brief in its appeal, arguing that judges shouldn't order last minute changes in the way elections are run.

The Case (Short Version)

Ohio tried to pull back on early in-person (EIP) voting because it overlapped with a week of voter registration, creating the "Golden Week," a logistical nightmare. Because state law requires verifying identities of voters before a vote can be counted, the state claimed that allowing registration and voting on the same day was costly and difficult.

However, cutting Golden Week had the potential to impact thousands of voters, and providing only one Sunday for EIP voting would likely hurt the "Souls to Polls" programs in which churches take their parishioners to vote.

District Court Judge Peter C. Economus ruled in favor of the voters, crediting evidence that the pull-back on days would disproportionately harm African American voters, while labeling the state's justifications "relatively hollow."

Stay Denied

On Friday, a Sixth Circuit panel denied a stay pending appeal, noting: "Defendants do not cite legal authority to substantiate these claims. In contrast, Plaintiffs have cited numerous Sixth Circuit cases to argue that the district court correctly held that they are likely to prevail on their Voting Rights Act and Equal Protection Clause claims."

The opinion, posted by the ever-informative Election Law Blog, also notes that while Ohio does point out some possible issues with the district court's legal conclusions, a strong showing of a likelihood of success on the merits is required. Furthermore, the state failed to show irreparable harm. While it will cost additional time and money to keep the polls open during "Golden Week," the state didn't argue that it was beyond its means to do so.

Merits Brief

ELB also has the state's merits brief, filed yesterday. In the brief, the state emphasizes that the changes were the byproduct of a report prepared by bipartisan organization (half Republican, half Democrat).

The brief also notes that, even with the cut-down to 28 days, Ohio has the ninth most expansive early voting schedule in the nation. The median number of days in all states is 11. Seventeen states offer no early in-person voting at all. Ohio is one of only eight states to offer Sunday voting. And, of course, there is always absentee voting -- absentee ballot applications were mailed to nearly every registered voter this year.

And finally, Ohio argues that the district court completely ignored a presumption against last-minute injunctions in election cases. ("As a general rule, last-minute injunctions changing election procedures are strongly disfavored.")

The brief also states that Ohio is "willing to waive oral argument to resolve this case as expeditiously as possible," as "early voting for the November 2014 election [is] looming."

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