WASHINGTON — The Supreme Court on Monday blocked an appeals court ruling that would have restored seven days of early voting in Ohio.
The Supreme Court’s order was three sentences long and contained no reasoning. But it disclosed an ideological split, with the court’s four more liberal members noting that they would have denied the request for a stay of the lower court’s order extending early voting.
Dale Ho, a lawyer with the American Civil Liberties Union, said the court’s action “will deprive many Ohioans of the opportunity to vote in the upcoming election as this case continues to make its way through the courts.”
The ruling, which reflected a partisan breakdown in many court decisions nationwide on voting issues, saw the five Republican-appointed justices uphold the voting restrictions enacted by the state’s Republican-controlled Legislature in February. The new limits removed the first week of Ohio’s 35-day early voting period, in the process eliminating the only week that permitted same-day registration, a feature most often used by minorities.
Last Wednesday, a three-judge panel of the 6th U.S. Circuit Court of Appeals, in Cincinnati, ordered officials in Ohio to let voters start casting ballots on Tuesday. The panel reasoned that cutting back on early voting at polling places placed a disproportionate burden on poor and black voters.
The panel said it was mindful that Ohio allows voting by mail throughout the contested period. “The presence of vote by mail undoubtedly ameliorates some of the burdens on voting,” Judge Karen Nelson Moore wrote for the panel. But she added that “African-Americans, lower-income individuals and the homeless are distrustful of the mail” or “would prefer to vote in person for unrelated reasons.”
State officials filed an emergency application with the Supreme Court on Thursday, asking the justices to block the order of the appeals court. They said that “Ohio is a national leader in making voting easy,” noting that it continues to offer early voting at polling places on 22 of the 28 days before Election Day.
Some 17 states offer no early voting, the state’s brief said, and the median number of days offered by those that do is 11. “All told, Ohio offers more early voting options than 41 other states and the District of Columbia,” the brief said.
The appeals court’s basic error, the brief said, was measuring opportunities to vote against what Ohio used to allow as opposed to an objective general benchmark. “This old-to-new comparison,” the brief said, was imported from Section 5 of the Voting Rights Act, which required federal approval of changes to voting procedures in states with a history of racial discrimination.
The Supreme Court effectively eliminated Section 5 last year in Shelby County v. Holder. The parts of the Voting Rights Act that remain intact call for a different inquiry, one focused on whether adequate opportunities to vote remain, the brief said