Court’s term begins with 5-4 order in controversial case

Opinion by Michael Mestitz
Oct. 2, 2014, 11:38 p.m.

This week, some Ohio voters were preparing to vote early for this November’s election in an attempt to avoid what civil rights groups called in a court filing the “unprecedented chaos” of 2004, when long lines and limited capacity at polling centers allegedly left thousands of voters disenfranchised. On Monday, however, the Supreme Court issued a one-paragraph order to prevent early voting from taking place until the Court is able to decide whether or not it wants to hear the case of Ohio officials arguing that allowing one fewer week of early voting does not violate the rights of minority voters.

The Court’s order still leaves 28 days of early voting in Ohio, which the state officials point out is more generous than 41 states and the District of Columbia, but eliminates the so-called “Golden Week,” in which voters are able to register and vote on the same day. The NAACP and the ACLU contend that same-day registration and voting are used disproportionately by minority and low-income voters. The Court’s order also allows Ohio’s attorney general and governor to go forward with a policy that would prevent early voters from voting after 5 p.m. prior to election day and limit the availability of early voting on the weekends leading up to the election.

This order comes after the NAACP and ACLU were successful in blocking the Republican legislature’s new voting policies, which the Court’s order allows to take effect. Civil rights groups succeeded before a District Court Judge in enjoining the implementation of the new rules, and a unanimous panel of Democratic judges on the Sixth Circuit Court of Appeals. There, the judges determined that the organizations would likely succeed on their argument that once a state allows certain early voting periods, allowing the state to cut back those protections runs afoul of the Voting Rights Act and the 14th Amendment.

The decision to issue the stay brings the Court back into contentious political waters even at the very the start of its 2014 term, which has its first day of argument on October 6. Although the order is unsigned, all of the four justices traditionally considered to make up the “liberal” wing of the court — Justices Ginsburg, Breyer, Sotomayor and Kagan — dissented from the order to stay the case, meaning that they would have let the ruling of the lower court stand. The “conservative” justices, including Anthony Kennedy, who is often the deciding vote on close legal questions, voted to in favor of the stay. The voting rights question and the 5-4 split along ideological lines recalls the very controversial 2013 decision in Shelby County v. Holder, in which the Court overruled a key provision of the Voting Rights Act.

Ohio’s governor and attorney general — both Republicans — have argued that using Ohio’s old early-voting practices as a benchmark, rather than holding it to an objective standard, violates the Court’s holding in Shelby County that Section 5 of the Voting Rights Act was unconstitutional because it relied on historical data that was 40 years old, and was therefore an unfair burden on certain states that didn’t address a present need. Although this stay doesn’t express an opinion on the merits of the case, it suggests that the Court is at least interested in hearing more argument on this point. With similar cases winding their way through the courts in Wisconsin and North Carolina, the Court will almost certainly have the chance.

What’s the broader takeaway from the order, poised at the brink of a new Supreme Court term? Election law expert Rick Hasen has a great piece in Slate noting that the Ohio order is a continuation of what he calls “the voting wars”: a pattern of increasing attempts in the past decade or so to influence electoral law through both statutory restrictions (such as voter ID laws) and litigation strategies. The Ohio order, and other cases in Texas, Wisconsin and North Carolina, provide the opportunity for the Court to answer some high-stakes questions about the minimum level of protection offered by Section 2 of the Voting Rights Act and by the United States Constitution itself. The order is not a decision on the substance of the law — Ohio will now have to petition the Court to ask the Court to hear the case in full. Still, the fact that five justices granted to order to stay before the Sixth Circuit had decided whether it wanted to rehear the case en banc, and before the petition for the Court to hear the case was even filed, sends a strong message that a majority of justices may be skeptical about the expansive arguments about voter protection that were advanced in the courts below.

The 5-4 split on the order not only heralds an important debate on the voting question, but may be a concerning start to the term. Chief Justice John Roberts, like many of the most effective and lauded Chiefs before him, has attempted to build consensus between Justices and avoid closely split decisions. SCOTUSblog, one of the major commentators on the Court, noted that last year’s term had a “relative dearth” of 5-4 decisions, comprising 14 percent of total opinions. In contrast, fully two-thirds (66 percent) of the decisions last term were unanimous, 9-0 opinions, a proportion well above the Court’s five-year average. This 5-4 order doesn’t necessarily foreshadow a rash of 5-4 opinions on the merits of cases to come, but it is a tough symbolic start: It highlights the contentious, rather than the concordant, at the start of an important new term.

Michael Mestitz is the President of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s Managing Editors. Contact them at [email protected] and [email protected].

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