| Three weeks to go until election day and the past several months have generally been good for the right to vote in the judiciary (at least for this election). Having said that three weeks is a long time. Right now there a handful of pending cases worth keeping an eye on. On the good side, laws restricting the right to vote (primarily voter ID laws) have been put on hold in Pennsylvania and in several states that require preclerance under the Voting Rights Act. Some of the Voting Rights Act cases may end up with arguments next spring in the Supreme Court, but for now the Justices are leaving the status quo intact. We may find out about the next batch of voting rights cases on the 26th. (My hunch is that they will be held to until November 10th to avoid making the Supreme Court a potential election issue.) Today the Supreme Court decided to hear Arizona v. Inter-Tribal Council. This case involves whether federal voter registration law preempts the attempt of Arizona to impose additional requirements, specifically proof of citizenship (as opposed to merely stating under oath that you meet all elibility requirements including citizenship). However, the Supreme Court has left intact the stay on enforcing the law for this election (which may lead to us winning the Arizona Senate seat). The big issue (maybe to be decided later this week) is whether a stay will be granted in either of the pending cases out of Ohio. The one that is ready to be decided involves the attempt to end early voting for everyone but military families (on the theory that a loved one might be called to active duty on Monday mornign and have to leave on Tueday and therefore they need to be eligible to vote that weekend just in case). The Sixth Circuit struck down the restriction and said everybody can vote that last weekend, but Ohio wants a stay. Espedited briefing on the stay is now done, and an order granting or denying the stay is expected any day. It is hard to see how Ohio meets the requirement for the stay as the harm on voters appears to exceed any negligible impact on Ohio since they will need to keep the early voting centers open and fully staffed to cover any military votes. However, the same was true in Florida in 2000. The other pending case involves the counting of provisional votes. The lower court has ruled that provisional votes cast in the wrong precinct must be counted if the reason for the vote being cast in the wrong precinct is the fault of the election authority. For example, the voter goes to a precinct and gives their address and the election judge says that the address is in that precinct but the voter is not on the roll (because actualy the address is in the next precinct) and tells the voter that they need to cast a provisional voter (instead of actually telling them they need to go to the next precinct.) No stay application has yet been filed with the Supreme Court. Any stay request from Ohio is technically pending in front of Justice Kagan (the Justice appointed to handle applications from the Sixth Circuit). However, the norm is to refer major cases to the entire court. Needless to say this election season is already becoming a little bit wacky as most major election litigation occurs after the votes are counted. This time, the battle over the rules for the election are being fought in advance. |
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