The Supreme Court decided not to reinstate same-day registration in Ohio, which could disproportionately disenfranchise minority voters.
By Kate Wheeling
People fill out paper ballots while voting at Halloran Skating Rink during the 2012 presidential election in Cleveland, Ohio. (Photo: Brendan Smialowski/AFP/Getty Images)
On Tuesday, the Supreme Court decided not to reinstate Ohio’s “Golden Week,” a period in which Ohio residents could register to vote and cast their ballots on the same day. It’s just the latest in a string of contentious voting rights issues in the Buckeye State.
The Golden Week came into effect after the 2004 presidential election, when excessively long lines on Election Day disenfranchised Ohio voters. As Mother Jonesexplained in 2005:
It turns out the Franklin County Board of Elections had reduced the number of voting machines in urban precincts — which held more African American voters and were likely to favor John Kerry — and increased the number of machines in white suburban precincts, which tended to favor the president. As a result, as many as 15,000 voters in Franklin County left without casting ballots, the Washington Post estimated.
In response, the state instituted, among other reforms, a 35-day early voting period. Since the last day to register to vote in Ohio came 30 days before the elections, voters had a five-day window where they could simultaneously register and vote before the general registration deadline.
In 2008, more than 60,000 Ohio residents voted during the Golden Week; that number climbed to over 80,000 during the 2012 election, according to Cleveland.com. Despite the fact that same-day registration was widely used, the Ohio legislature voted to eliminate the Golden Week in 2014 — Secretary of State Jon Husted followed this up with a directive to cut voting hours on evenings and most Sundays — ostensibly to reduce voter fraud, save some money, and make the state’s election system more uniform.
But state Democrats claimed the Republican Party was simply suppressing votes. “Voters shouldn’t have to tip toe around a set of rules specifically tailored to throw out their ballots when exercising their most basic right as citizens. Explicitly or implicitly, this bill disenfranchises those among us who have historically been most disenfranchised,” Representative Dan Ramos told Cleveland.com at the time.
Meanwhile, Ohio Republicans accused state Democrats of playing politics. “We think they’re stoking these things for political gain. We think there’s an effort here to rally the Democratic base in a year that they otherwise wouldn’t be rallying,” Alex Triantafilou, chairman of Ohio’s Hamilton County Republican Party, told the New York Times.
The American Civil Liberties Union challenged the law, arguing that it disproportionately affected minority voters. The Brennan Center for Justice reported earlier this year on the court proceedings:
Expert and anecdotal evidence showed a disproportionate number of [Golden Week voters] were African Americans. One expert presented strong statistical support that black voters were 3.5 times more likely than white voters to vote during Golden Week in 2008 and five times more likely in 2012. Additional evidence showed that in 2008, more than 19 percent of African Americans voted early, compared to only 6.2 percent of white voters. In 2012, the ratio was similar, 19 to 9 percent.
The ACLU settled with Husted in 2015 and managed to reinstate most of the early evening and weekend voting opportunities across all of the counties in the state—except for the Golden Week.
Then, earlier this year, a federal judge struck down the 2014 law as unconstitutional. That decision was quickly reversed, however, by an appeals court in August, which concluded that federal courts should not become “entangled … in the minutiae of state election processes.”
The appeals court disagreed with the notion that the elimination of the Golden Week unfairly targeted minority populations. “[W]hile the challenged regulation may slightly diminish the convenience of registration and voting, it applies even-handedly to all voters,” Judge David W. McKeague wrote in the majority opinion, “and, despite the change, Ohio continues to provide generous, reasonable, and accessible voting options to all Ohioans.”
Many of the Golden Week voters lack transportation and flexibility in their schedules, some advocates have pointed out. They also move addresses more frequently than the average person, and thus have to update their registrations more often, argues Freda Levenson, legal director at the ACLU of Ohio. “It’s more than just a mere convenience,” she says. “In some cases its the difference between someone being able to vote and not able to vote.”
In an emergency application to the Supreme Court, the state’s Democratic Party requested a stay from our nation’s highest court to put the appeals court’s decision on hold until after the 2016 election.
“There’s going to be significant numbers of people whose votes are jeopardized.”
The application argued that eliminating the Golden Week actually did little to reduce voter fraud — an exceedingly rare event. Levenson called voter fraud prevention a red herring. “The amount of voting activity that is restricted in order to prevent a vanishingly rare risk of fraud is very disproportionate,” she explains. “We’re depriving masses of people from the opportunity to vote to prevent a hypothetical or scarce problem.”
“If anything, the elimination of Golden Week will made fraud easier,” the emergency application argued. Aside from the fact that in-person voter impersonation is inherently more difficult than impersonation by mail, Golden Week registrants are set aside and verified before they are counted. But now, if an impersonator registers before the deadline, and then casts their ballot on the first day of early voting, their vote will not be segregated, and could slip through before their fraudulent behavior is identified, according to the application.
Still, there were no dissenting opinions when the Supreme Court declined to restore the state’s Golden Week.State officials claim that Ohio still beats all the states without early voting, where residents have to show up on election day to cast their ballots; officials told the New York Times that the state has the tenth-longest early voting period in the United States.
But the hundreds of thousands of Ohioans who have had their registrations canceled for failure to vote might disagree. The ACLU of Ohio is in the midst of another legal battle with Husted over the purge of infrequent voters from voter rolls.
The state is required to keep voter rolls accurate by removing voters who have moved or passed away, for example, so the state can legally remove names from voter rolls under certain circumstances. But the program uses failure to vote as a proxy for moving, which the ACLU argues amounts to kicking citizens off of voter rolls for not voting—a violation of the National Voter Registration Act. “If you don’t vote with sufficient frequency, the Secretary of State has a program that will cancel your registration,” Levenson says. “It’s horrifying.”
“We’ve encountered people who have said, ‘Every year I considered voting but there’s no candidate that I’m enthusiastic about, and there’s no box to check for none of the above, so I express my view by not voting.’ That’s their view of the election. They’re entitled to do that,” Levenson says.
The program requires that citizens confirm their registration and their address to remain on voter rolls, but many Ohioans don’t know they’re no longer registered until they show up to vote; by then—especially now that there is no Golden Week—it’s too late. Levenson argues that there are several other databases the secretary of state can cross-reference to confirm that voters are alive and well in their registered addresses, such as post office records of change of address forms, Bureau of Motor Vehicle information, and death records.
A federal district judge ruled against the ACLU in the initial lawsuit against the purge procedures, but the organization appealed and is awaiting a decision from the U.S. Court of Appeals for the Sixth Circuit. The stakes are high for the upcoming presidential election. “There’s going to be significant numbers of people whose votes are jeopardized,” Leveson says. “We estimate there will be about 70,000 people who were rolled off that are going to come to the polls to vote in this important election this November.”