OCTOBER 09, 2014
The New York Times suggested Tuesday that recent election rulings will “sow confusion” in November. We’ll see. But the critical question is—if there is “confusion,” who is responsible?
The true source of the problem is late and meritless lower court rulings overturning valid state election laws. For example, in Ohio, a trial court judge ruled that reducing early voting from 35 days to 28 days violated the U.S. Constitution and federal voting laws. This unbelievable ruling, a mere two months before Election Day, was upheld by a three-judge appellate court on September 24. The Supreme Court issued an order staying those rulings a few days later. This stay was, in fact, the best way to avoid confusion in Ohio on Election Day.
Or consider the situation that is developing in North Carolina. On October 1, a little more than a month before Election Day, a divided three-judge appellate panel reversed a lower court ruling and reinstated same-day registration and out-of-precinct voting in North Carolina. The problem is that all of the poll workers had already been trained in the existing procedures. Worse, the software used to process same-day registration has been discontinued, and such registrations could only be processed by hand. As the dissenting judge pointed out:
Election day is less than five weeks away, and other deadlines loom even closer. In fact, for the many North Carolina voters that have already submitted absentee ballots, this election is already underway. The majority’s grant of injunctive relief requires boards of elections in North Carolina’s 100 counties to offer same-day registration during the early voting period and count out-of-precinct provisional ballots — practices for which neither the State nor the local boards have prepared. . . .
The majority suggests that the State exaggerates the burden imposed on it, and that resurrecting past practices is a simple matter. Perhaps. But the logistics of running an election seem to me far more complex than my colleagues suggest. Poll workers have been trained and polling centers have been equipped in reliance on the procedures that governed the most recent statewide primary. An injunction will render some of those procedures a nullity. Additionally, it is undisputed that the same-day registration system used in elections under the prior law was administered electronically through an application embedded within a comprehensive computer program. That application was disengaged after the enactment of SL 2013-381, and is now out of date. Reliable restoration of the application in time for the general election is apparently impossible. For this reason, the injunction will require the same-day registration process to be manually administered by each county board, risking delays, errors, and general confusion. Thus, while reverting to the old procedure may make for a simple order, it will require substantial effort to effectuate in practice.
Yesterday, the Supreme Court, in a 7-2 ruling, stayed that decision as well, probably for the very reasons given by the dissent. As was true in Ohio, a stay was the only way to ensure the orderly conduct of elections in North Carolina.
North Carolina is an interesting case for another reason. The plaintiffs there had challenged electoral reforms eliminating same-day registration and out-of-precinct voting, and reducing early voting from 17 to 10 days. Those who challenge such laws like to refer to them as attempts at “voter suppression,” a canard the New York Times is happy to repeat.
Yet, in the May 2014 primary, the first North Carolina election held under the new law, turnout actually went up across the board. While white turnout increased by 13.7%, African American turnout increased much faster, by a whopping 29.5%.
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