Obama for America, et al. v. Jon Husted, et al.

United States Court of Appeals for the Sixth Circuit
File Name: 12a0356p.06 (2012)

ELI5:

Rule of Law:

A state election law that provides different in-person early voting opportunities for different classes of otherwise similarly situated voters violates the Equal Protection Clause if the state's justifications for the disparate treatment are not sufficiently weighty to justify the burden imposed on the disadvantaged class's right to vote.

Facts:

In 2005, following significant problems with long lines at polling places in the 2004 election, Ohio established no-fault in-person early voting, which allowed any registered voter to cast a ballot through the Monday before Election Day.
In the 2008 and 2010 elections, a large number of Ohioans utilized early voting, with data suggesting these voters were disproportionately African-American, women, older, and of lower income.
A significant percentage of these early in-person votes were cast during evening hours, on weekends, or during the final three days before the election.
Through a complex series of legislative acts and a subsequent referendum (H.B. 194, H.B. 224, S.B. 295), Ohio law was altered ahead of the November 2012 election.
The new statutory scheme ended in-person early voting for non-military voters at 6:00 p.m. on the Friday before the election.
Under the same scheme, military and overseas voters remained eligible to cast in-person early ballots through the weekend and up to the close of polls on Election Day.
Ohio Secretary of State Jon Husted issued Directive 2012-35, instructing local boards of elections to adhere to these differing deadlines and eliminating the boards' discretion to offer weekend or evening voting hours for non-military voters.

Procedural Posture:

Obama for America, the Democratic National Committee, and the Ohio Democratic Party (Plaintiffs) sued Ohio Secretary of State Jon Husted and Attorney General Mike DeWine in the U.S. District Court for the Southern District of Ohio.
Plaintiffs filed a motion for a preliminary injunction to prevent the enforcement of Ohio Rev. Code § 3509.03, which set different in-person early voting deadlines for military and non-military voters.
Numerous military service associations were granted permission to intervene in the case on behalf of the State.
Following a hearing, the district court granted the Plaintiffs' motion for a preliminary injunction, concluding the statute likely violated the Equal Protection Clause.
The State of Ohio and the Intervenors (Appellants) appealed the district court's order granting the preliminary injunction to the U.S. Court of Appeals for the Sixth Circuit.

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Issue:

Does an Ohio law that permits military and overseas voters to cast in-person early ballots during the final three days before an election, while prohibiting all other voters from doing so, violate the Equal Protection Clause of the Fourteenth Amendment?

Opinions:

Majority - Clay, J.

Yes. An Ohio law that permits military and overseas voters to cast in-person early ballots during the final three days before an election, while prohibiting all other voters from doing so, violates the Equal Protection Clause. The court applies the Anderson-Burdick balancing test, which requires weighing the character and magnitude of the injury to voting rights against the state's justifications. The state's two primary justifications—alleviating administrative burdens on local election boards and accommodating the unique needs of military personnel—are not sufficiently weighty. The state provided no evidence that boards could not handle the workload, especially since they had successfully done so in past presidential elections. While accommodating military voters is a laudable goal, it does not justify reducing voting opportunities for all other citizens. With respect to in-person voting, non-military voters are similarly situated to military voters, and the state has offered no satisfactory reason for the disparate treatment.

Concurring in part and dissenting in part - White, J.

Yes. The law violates the Equal Protection Clause, but the analysis should focus on voter reliance. The key burden is not that voters are absolutely precluded from voting, but that the state made an 'eleventh-hour' change to a remedial voting system that a substantial number of voters had come to depend on since its creation in 2005 to alleviate long polling lines. This burden on voters who relied on after-hours and weekend voting outweighs the state's legitimate but weakly supported interests in uniformity and administrative ease. The remedy, however, should have been to remand the case to give the Ohio legislature a finite period to cure the constitutional defect before the injunction took effect.

Analysis:

This decision solidifies the application of the flexible Anderson-Burdick balancing test to equal protection challenges involving disparate treatment among classes of voters, rejecting a more deferential rational basis review. The ruling establishes that a state cannot justify burdening the franchise of one group of voters as a means to accommodate another, even if the accommodation is for a laudable purpose like supporting military service members. The case serves as a check on legislatures that might create special voting privileges for favored groups while restricting them for others, reinforcing the principle that similarly situated voters must be treated alike in their access to the ballot.

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