Even early voting drew lines in 2008.

Photographer: Chris Hondros/Getty Images

States Can Make Voting Harder as Long as It's Fair

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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When a state has made it easier to vote, can it reverse course and make it harder? The simplest answer is that it can -- provided the effects don’t disproportionately hurt racial minorities. But the devil is in the details, as a divided federal appeals court proved this week when it upheld Ohio’s rollback of its “Golden Week,” in which voters could register and vote at the same time.

Two judges thought Ohio’s otherwise expansive voting opportunities made the revocation of Golden Week no problem. A third thought the Ohio legislature’s decision imposed a disparate burden on black voters, and was unlawful. Both positions were right. Behold the difficulty of applying voting rights law fairly and rationally in the age of subtle discrimination.

The history behind the case extends back to before the 2004 election. Ohio then allowed its residents to vote up to 35 days before an election -- if they had a reason they couldn’t vote on election day. Voter registration was allowed up to 30 days before an election. That created a five-day overlap in which a person could register and vote at the same time, which came to be referred to as the Golden Week.

On Election Day 2004, you may recall, Ohio faced disastrous voter delays. To prevent the hours-long lines from forming again, the state changed its rules to allow early voting for any reason. But there remained disagreement about the length of early voting. After a series of laws and referendums, the state legislature passed a bill in February 2014 that officially established the first day of early voting as the day after voter registration ended. That was the official elimination of the Golden Week.

The National Association for the Advancement of Colored People and other groups sued. In the process, the U.S. Court of Appeals for the 6th Circuit upheld a preliminary injunction against the law, a strong indication that it might be struck down. But before the case reached a final disposition, the NAACP reached a settlement with state officials that accepted the elimination of Golden Week but added an extra Sunday of in-person voting as well as extended evening voting hours.

But a settlement by one set of parties doesn’t prohibit everyone else from suing. The Ohio Democratic Party and a few county party organizations subsequently brought suit claiming that eliminating Golden Week violates the Voting Rights Act because blacks disproportionately registered and voted during that week.

A federal district court agreed with the Ohio Democrats and ordered the Golden Week reinstated. The court said the burden imposed on black voters was “modest,” which is defined as “more than minimal but less than significant.” But even a modest disproportionate burden violates the Voting Rights Act. And the court said that the benefits in cost-savings to the state didn’t justify the burden.

This time a divided 6th Circuit panel reversed the district court, allowing the state to eliminate the Golden Week. Judge David McKeague, appointed to the district court by George H.W. Bush and to the court of appeals by George W. Bush, wrote the controlling opinion, joined by another George W. Bush appointee, Judge Richard Griffin. (The 2014 panel that upheld the preliminary injunction was made up of all Democratic nominees.)

McKeague reasoned that Ohio is a national leader in providing voting opportunities. Almost a third of states don’t allow early voting, he noted. What’s more, McKeague argued, the current voting arrangement isn’t just the product of Republican dominance. It’s the result of the settlement adopted by the state and the NAACP after the 2014 litigation.

The strongest part of McKeague’s argument is that the Voting Rights Act shouldn’t be used as a one-way ratchet, allowing states to make voting easier but never allowing them to reverse course. That’s logical. But it doesn’t follow that states should be allowed to reverse rules when the effect is racially disproportionate.

Beyond this position, McKeague expressed a more general distaste for lawsuits “asking the federal courts to become entangled, as overseers and micromanagers, in the minutiae of state election processes.”

This sounds like a defensible argument for judicial restraint. But it actually isn’t. The reason the judiciary must review state election processes is that Congress required it in the Voting Rights Act. Indeed, Congress wants even more oversight of state elections than the federal judiciary is willing to allow. In 2013, an activist, conservative U.S. Supreme Court majority, in Shelby County v. Holder, struck down the section of the Voting Rights Act that required many jurisdictions to get approval from the Department of Justice before making changes to their voting practices.

In her dissent in the Ohio case, Judge Jane Branstetter Stranch, a Barack Obama appointee, went out of her way to explain that it was especially necessary for courts to scrutinize state election rules after the Supreme Court’s Shelby County decision. She pointed out that contemporary discriminators, unlike those in the past, “do not trumpet their intentions -- or do not do so publicly.”

Turning to the evidence, Stranch explained that, according to data weighted heavily by the district court, black voters used Golden Week more than white voters in 2008 and 2012. An expert who looked at 100 percent homogeneous black census blocks found that the rate in 2008 was 3.514 times higher than that for 100 percent white blocks. In 2012, the usage rate was 5.186 times higher for homogeneous black census blocks.

Admittedly this statistical analysis is suggestive rather than absolute. Not all blacks or whites live in homogeneous census blocks. But finding evidence of racial disparate impact requires some statistical creativity, and the district court was probably justified in relying on this evidence.

The upshot is that the Voting Rights Act shouldn’t be interpreted to write in stone all laws that make it easier to vote, but it’s nevertheless necessary for courts to look hard at changes to make sure they aren’t discriminatory. That isn’t judicial activism. It’s sensitivity to the command of Congress -- in defense of the most sacred right that a democracy has.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net