September 05, 2014

A Court Decision On "Voting Rights" That Begs The Fundamental Question

Over at the Volokh Conspiracy, Jonathan H. Adler notes the decision of a federal district court judge in Ohio State Conference of the NAACP v. Husted which effectively ruled that it is an unconstitutional violation of Section 2 of the Voting Rights Act and principles of equal protection for the state of Ohio to cut the number of days available for early voting, change the hours during which early voting occurs, and end early voting prior to the final Sunday before an election – despite the fact that this was an effort to regularize practices across the state in response to the same judge’s ruling different practices in different counties was also a constitutional violation.

Adler makes the following observation.

A particularly troubling aspect of the ruling is the implicit suggestion that once voting times have been expanded or voting has been made easier, such changes may not be undone. This is particularly so because [. . .] the changes here are relatively minor. I find it hard to believe a majority of the Supreme Court would conclude that either the Constitution or the VRA creates this sort of one-way ratchet in election law.

A particular difficulty in evaluating these sorts of claims, however, is that all such analysis occurs with clear knowledge of who wins and who loses from any change, and we can expect partisans of each party to press their advantage. That is, neither party has a principled position on what ideal voting rules would look like. Is early voting a good idea? The answer you get is likely to depend on what assumptions are made about who is more likely to turn out.

Each party seeks rules that make it more likely that its own voters are more likely to go to the polls, and (unlike in prior times) they now have the data to hone their approach. Particularly where, as here, the relevant changes are relatively small, I have a hard time crediting the argument that there are larger principles at stake, and an even harder time accepting that (absent evidence of impermissible motivation, such as racial animus) that these sorts of changes are unconstitutional.

But to me this ruling raises a bigger question – how does the decision to scale back early voting practices constitute a violation of anyone’s legal or constitutional rights. Under the US Constitution, federal elections are set for the first Tuesday after the first Monday of November. Similar provisions exist under state constitutions. Where dates are not constitutionally established, they are established by statute. It would seem, then, that one only has a right to vote on those particular days and that any privilege granted to vote at an earlier date does not constitute a right. How, then, does the narrowing of that privilege constitute a violation of any vested right (legal or constitutional) on the part of any voter? Only the most extreme judicial activism can construct such a right. Indeed, given that there are a number of states that choose not to offer early voting at all, how can one argue that the absolute elimination of early voting in a state where it exists (much less minor changes that cut the days and hours for early voting) is somehow impermissible?

It is to be hoped that the circuit court overturns this botched decision – or that the Supreme Court does so. Otherwise we will be stuck with another precedent that says that only changes in the direction deemed “progress” by the Left are legitimate, and that “evolving” standards and practices may never be permitted to move in a conservative direction.

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