August 24, 2016

August 24, 2016 | Commentary on Elections

Conservatives Score Two Voting Law Wins in Ohio and Virginia - But Could Those Victories Be Short Lived?

There’s good news for those disappointed by bad recent decisions from federal courts on changes in early voting and same-day registration rules in Wisconsin and North Carolina. A three-judge panel of the Sixth Circuit has ruled that such changes are neither unconstitutional nor a violation of the Voting Rights Act.

On Aug. 23, in Ohio Democratic Party v. Husted, the Sixth Circuit held that the claim that Ohio’s elimination of a week of same-day registration and the reduction of early voting from 35 to 29 days was a violation of the law or unconstitutional was “an astonishing proposition.”

Ohio’s early voting laws

This Soros-financed lawsuit was brought by the Perkins Coie law firm. As the Sixth Circuit pointed out, “Ohio is a national leader when it comes to early voting opportunities” since it allows early in-person voting for 29 days before Election Day. This is “really quite generous,” since the Constitution “does not require any opportunities for early voting and as many as thirteen states offer just one day for voting: Election Day.” The plaintiffs also claimed that Ohio’s prior law, which provided 35 days of early voting and “created a six-day ‘Golden Week’ opportunity for same-day registration and voting — established a federal floor that Ohio may add to but never subtract from.” The Sixth Circuit vehemently disagreed.

Adopting the theory pushed by the Perkins Coie firm:

would create a ‘one-way ratchet’ that would discourage states from ever increasing early voting opportunities, lest they be prohibited by federal courts from later modifying their election procedures in response to changing circumstances.” In addition, Ohio’s changes in early voting and same-day registration apply “even-handedly to all voters, and, despite the change, Ohio continues to provide generous, reasonable, and accessible voting options to all Ohioans.

Unlike federal judges in Wisconsin and on the Fourth Circuit Court of Appeals, who have ruled that reductions in early voting and elimination of same-day registration are unconstitutional and violate the Voting Rights Act, the Sixth Circuit recognized that the:

issue is not whether some voter somewhere would benefit from six additional days of early voting or from the opportunity to register and vote at the same time. Rather, the issue is whether the challenged law results in a cognizable injury under the Constitution or the Voting Rights Act. We conclude that it does not.

In fact, the Sixth Circuit panel issued a warning that was obviously not followed by these other federal judges: “Proper deference to state legislative authority requires that Ohio’s election process be allowed to proceed unhindered by the federal courts.” Federal judicial remedies are “necessary where a state law impermissibly infringes the fundamental right to vote.” But changes in early voting or same day registration rules do not constitute any such “infringement” and thus “judicial restraint is in order.”

Furthermore, the district court’s ruling, which the Sixth Circuit reversed, had ruled against Ohio despite the fact that it accepted “the legitimacy of Ohio’s asserted interests (preventing fraud, decreasing costs, reducing administrative burdens, and enhancing voter confidence),” because it concluded that these changes placed a “modest (i.e., more than minimal but less than significant)” burden on African American voters.

But the court held that eliminating same-day registration and having 29 days to vote cannot be considered a burden, or “at most , minimally burdensome,” given the U.S. Supreme Court’s upholding of Indiana’s voter ID law in 2008 in Crawford v. Marion County Election Board. In Crawford, the Supreme Court “rejected an analogous challenge to an undeniably more burdensome law based on the sort of ‘burden of making a second trip to vote’ argument." The Court held that “first going to the Bureau of Motor Vehicles and then casting a ballot was ultimately no more ‘burdensome’ than the usual challenges of voting.”

What made this case even more bizarre was that the 29-day early voting period at issue was the result of a negotiated settlement between the state of Ohio and the NAACP, which had filed a lawsuit against the voting changes in 2014. That case was voluntarily dismissed by the NAACP after the U.S. Supreme Court stayed a ruling against Ohio and the state agreed to add “another Sunday of early in-person voting as well as additional evening hours.” Yet this lawsuit filed by Perkins Coie on behalf of the Ohio Democratic Party, the Democratic Party of Cuyahoga County, and the Montgomery County Democratic Party in essence claimed that the settlement that the NAACP had agreed to was racially discriminatory under the Voting Rights Act, as well unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.

The Sixth Circuit obviously disagreed, concluding that Ohio provides “abundant and convenient opportunities for all Ohioans to exercise their right to vote” that are “well within the constitutionally granted prerogative and authority of the Ohio Legislature to regulate state election processes.”

McAuliffe’s felon workaround

In Virginia, meanwhile, Gov. Terry McAuliffe (D) announced on Monday that he has issued clemency papers for almost 13,000 felons who had registered to vote after he issued an executive order in April that attempted to provide a blanket restoration for all felons in the state — over 206,000 of them. That executive order, as well as two more issued in May and June, was found to be beyond the governor’s executive power by the Virginia Supreme Court on July 22 and a violation of the state’s constitution.

The court disagreed with McAuliffe’s claim that his power was “absolute” and held that the governor’s clemency and pardon power can only be exercised on an individual, case-by-case basis. The court ordered the voter registrations of the 13,000 felons cancelled until such time as their “political rights have been lawfully restored.”

McAuliffe has apparently now restored those rights, although how much of an individualized review was actually conducted by his office is open to serious question given that his press announcement said that “individual restoration orders were printed with the Governor’s signature” (emphasis added). Thus, McAuliffe obviously did not individually sign the clemency papers of these felons. And could his staff really do an in-depth review of the felony records of 13,000 individuals in the four weeks between the Supreme Court’s July 22 decision and his press conference on Aug. 22? It is unclear whether the process McAuliffe has put in place meets the standard set out by the Virginia Supreme Court.

William Howell (R), the speaker of the Virginia House and a lead plaintiff in the successful lawsuit against McAuliffe, has said that he and other legislators will be reviewing McAuliffe’s new process to ensure it abides by the Virginia Supreme Court’s decision.

But what is not open to question is that Virginia is now a purple or swing state and that every additional vote that McAuliffe can get for his political party could make the difference in November. Virginia has had two statewide attorneys general races decided by less a thousand votes in the last decade. In 2013, Mark Herring (D) won by only 907 votes. In 2005, former Gov. Bob McDonnell (R) became attorney general by only 360 votes.

Even the Washington Post, which supports the Democratic ticket and applauded McAuliffe’s unconstitutional blanket restoration, recognized the “political dimension” of what McAuliffe was doing and that it could give “Democrats the crucial edge in a swing state.” Politics and possible election results should not be driving this issue. The only consideration should be what is best for the state and its citizens when it comes to determining how and when individuals who have committed serious crimes should get their civil rights restored no matter what affect that will have on election outcomes.

But McAuliffe apparently cares little about the propriety of possibly giving murderers, rapists, child molesters, and drug dealers back the right to vote, to sit in a jury box, and to hold public office, especially when they are not even being required to have paid restitution to their victims before being pardoned.

Politics, it seems, is always more important than what’s best for society and our communities.

Hans A. von Spakovsky is a Senior Legal Fellow at The Heritage Foundation. Along with John Fund, he is the coauthor of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk”  and “Obama’s Enforcer: Eric Holder’s Justice Department.” - See more at:

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

This piece first appeared on Conservative Review.