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Victory for Voters in Ohio

Ohio is one of nine states with major ongoing litigation that could impact voting access before November.

  • Jennifer L. Clark
May 26, 2016

The battle over voting rights in the courts saw a victory this week when a federal trial court struck down an Ohio law elim­in­at­ing “Golden Week” — during which voters could register and cast a ballot all in one trip during the state’s early voting period — ruling it discrim­in­ates against African Amer­ic­ans.

Ohio is one of nine states with major ongo­ing litig­a­tion that could impact voting access before Novem­ber — and one of 17 states with new restrict­ive laws in place for the first in a pres­id­en­tial elec­tion in 2016. With Ohio likely to appeal the ruling, the fight will continue in the Buck­eye State.

We already know that early voting is a popu­lar reform that makes cast­ing a ballot more access­ible across the board. Most elec­tion offi­cials are also fans of early voting, because it leads to shorter lines on Elec­tion Day, as well as reduced stress on voting systems and poll work­ers. Same-day regis­tra­tion, in which voters have an oppor­tun­ity to both register to vote and cast a ballot, is like­wise popu­lar among voters and boosts parti­cip­a­tion rates.

While the bene­fits of such elec­tion reforms are well-estab­lished, the ques­tion at issue in the Ohio case, The Ohio Organ­iz­ing Collab­or­at­ive v. Husted, is whether the state discrim­in­ated against African-Amer­ican voters by elim­in­at­ing same-day regis­tra­tion and a week of early voting after creat­ing these oppor­tun­it­ies eight years earlier.

In the 2004 pres­id­en­tial elec­tion, Ohioans faced long lines and other elec­tion prob­lems, prompt­ing the state to enact a host of elec­tion reforms, includ­ing a substan­tial early voting period. Because the first week of early voting fell before the state’s regis­tra­tion dead­line, the legis­la­tion also created de facto same-day regis­tra­tion, earn­ing the “Golden Week” nick­name thanks to the oppor­tun­ity for one-stop regis­tra­tion and voting.

The Ohio legis­lature voted to elim­in­ate Golden Week after the 2012 elec­tion, however, ditch­ing same-day regis­tra­tion and redu­cing the number of early voting days. This lawsuit, and others filed in response to the law, argue that the cutbacks viol­ate the Consti­tu­tion and the Voting Rights Act, because both reforms were dispro­por­tion­ately used by black voters.

After a 10-day trial featur­ing a host of experts and witnesses on both sides, the trial court agreed with those chal­len­ging the law. The court noted that more than 60,000 citizens voted early during Golden Week in the 2008 pres­id­en­tial elec­tion, and over 80,000 did so in 2012. Expert and anec­dotal evid­ence showed a dispro­por­tion­ate number of them were African Amer­ic­ans. One expert presen­ted strong stat­ist­ical support that black voters were 3.5 times more likely than white voters to vote during Golden Week in 2008 and five times more likely in 2012. Addi­tional evid­ence showed that in 2008, more than 19 percent of African Amer­ic­ans voted early, compared to only 6.2 percent of white voters. In 2012, the ratio was similar, 19 to 9 percent.

On same-day regis­tra­tion, the court found that more than 10,000 people, dispro­por­tion­ately African Amer­ic­ans, registered and voted in one trip in each of the last two pres­id­en­tial elec­tions. Experts explained that same-day regis­tra­tion is partic­u­larly help­ful for voters with time, resource, and trans­port­a­tion constraints, and black Ohioans are more likely than white Ohioans to face such constraints. Same-day regis­tra­tion was also used heav­ily by voters who had recently moved and needed to update their address for voting purposes, and evid­ence presen­ted in court showed African Amer­ic­ans move with greater frequency than other Ohioans.

Because the state was unable to persuade the court that the burdens these cutbacks placed on the right to vote for black voters were justi­fied by state interests such as prevent­ing fraud (which experts test­i­fied was vanish­ingly rare) or cost savings (which were minimal), the court held that the law elim­in­at­ing Golden Week was uncon­sti­tu­tional. The court also held that the law viol­ates Section 2 of the Voting Rights Act, because the discrim­in­at­ory impact of the law could be traced to long­stand­ing discrim­in­a­tion against black voters in Ohio, and inter­ac­ted with such discrim­in­a­tion to make it harder for these voters to parti­cip­ate in the polit­ical process when compared to other Ohioans.

There are eight other pending court cases in which restric­tions on the right to vote are being chal­lenged. On the same day the Ohio opin­ion was issued, the full Fifth Circuit Court of Appeals heard oral argu­ment in a lawsuit chal­len­ging Texas’s strict photo ID law, which three federal courts have already held is discrim­in­at­ory against blacks and Lati­nos. A recent decision by a trial court in North Caro­lina on that state’s omni­bus restrict­ive elec­tion law has been appealed, and will be heard by the Fourth Circuit in June. Laws in Kansas, Wiscon­sin, and Virginia also face push­back in the courts.

These appel­late decisions are more import­ant than ever, because the Supreme Court is down to eight justices. To see what new restric­tions voters will face when they go to the polls this Novem­ber, keep an eye on the appel­late courts this summer.