Constitution Check: Is there a right to vote before election day?

Lyle Denniston, the National Constitution Center's adviser on constitutional literacy,  looks at the Supreme Court's decision to postpone some early voting in Ohio, and what the court could consider on the issue in the near future.

THE STATEMENTS AT ISSUE:

“This was an important ruling for protecting all Ohioans’ rights through their elected representatives to determine the state’s voting schedule rather than have the federal courts determine the schedule for them.”

—Excerpt from a statement Monday by Ohio Attorney General Michael DeWine after the Supreme Court had blocked a federal judge’s ruling that would have allowed voters in the state to start casting their ballots today for this year’s general election.

“While today’s order is not a final ruling on the merits, it will deprive many Ohioans of the opportunity to vote in the upcoming election as this case continues to make its way through the courts.”

– Excerpt from a statement Monday by Dale E. Ho, director of the Voting Rights Project of the American Civil Liberties Union, reacting to the Supreme Court’s action.

WE CHECKED THE CONSTITUTION, AND…

The answers that the Constitution provides to questions about its meaning can depend upon how the questions are asked. Does the Constitution guarantee a right to cast an absentee ballot before election day? The answer is no, according to the Supreme Court. But does the Constitution guarantee a right to vote before election day, if that is the only way some voters can take part as a practical matter? The answer is maybe, and the Supreme Court could decide that issue during this year’s election cycle, although it has no binding duty to do so.

Suppose that the issue is approached differently. Does the Constitution give the states the sole power to decide when and how its citizens get to vote? The answer is no, according to the Supreme Court, because the Constitution does provide some limits. But does the Constitution give the courts the last word on that? The answer is almost certainly yes, and that is why the fate of early voting now rests with the Supreme Court, if it chooses to settle it.

It used to be, of course, that Americans went to the polls on the day of the general election, and that was the same day across the land. People were allowed to vote early, if they had an excuse for not being able to go to the polls on election day: for example, they were aged, or disabled, or were going to be unavoidably out of town that day. The kind of excuses that would be acceptable were up to the states.

But, now, not all voting ahead of election day is done only by an absentee ballot, dropped in the mail. Today, it is sometimes permissible to cast an early vote in person, without an excuse. In recent years, Ohio has been a case study for that approach, and it is thus fitting that the Supreme Court has just stepped into the center of an early-voting controversy in a dispute from Ohio.

Ohio’s permission for early voting can be viewed as either a generous gesture by the state, or as something it simply had to do. That’s because Ohio had what is widely viewed as a disastrous day with voting in the general election of 2004. The lines at polling places were so long, and voting machines were so unreliable or simply unavailable, that some people had to wait in line 12 hours or so, and some simply went home without voting because they could not or would not wait.

The legislature reacted in 2005 by creating “no-excuse early voting,” with a polling place open in each county for 35 days before the actual election day. That and other features of early voting were used in the next four elections. It is estimated that, in the 2012 election, nearly one out of three Ohioans who voted did so early.

Before the Supreme Court in recent days has been a test case asking these constitutional questions: Is there a right to early voting, if that is the only way some groups of voters – such as African Americans, the poor, and the homeless – can manage to vote? Does closing down some of that opportunity deny legal equality under the Fourteenth Amendment? What is the constitutional standard for judging the impact of restrictions on early voting? Who gets to decide on the need for early voting, and when and how it can occur?

Two federal courts – a federal judge in Columbus, and a federal appeals court in Cincinnati – had ruled that officials of the state and its legislature had violated the Constitution (and, also, the Voting Rights Act of 1965) by imposing new restrictions on early voting. Depending upon which side’s papers filed in the Supreme Court one found most persuasive, those lower court rulings were either ordinary applications of past Supreme Court rulings, or were bold expansions of rights to early voting with deep intrusions into state powers.

The Supreme Court has not yet answered the questions, and will not do so until state officials file a fresh new appeal, and the court agrees to rule on it (if it does agree). In the meantime, though, by a split 5-to-4 decision on Monday, the Justices stopped the lower court requirement that early voting start as early as today, and blocked requirements that such voting be allowed on most Sundays and in evening hours, between now and election day.

As a practical matter, that probably will turn out to mean that those requirements will not be put back into effect for this year’s balloting, even if the state files a new appeal quickly and the court acts on it with unusual speed. Time may run out before a decision could be made during this election season.

The court has not overturned the lower court order that opened up those added voting opportunities, but it did postpone that for the time being. If it is going to overturn that decision, it presumably will have to agree to decide to review the questions, and that could mean that the country may have an answer – at least for a future election cycle.