Yesterday, the Supreme Court stayed an Ohio district court’s preliminary injunction that would have allowed early in-person (EIP) voting in Ohio to start today. A Sixth Circuit panel upheld the injunction in a lengthy opinion last week, which we covered here. Although Justice Kagan had denied the State of Ohio’ application to intervene as a party in the matter on her own, she referred Secretary of State Husted’s application for a stay to the entire Court, which in turn granted the request 5-4. Justice Kagan herself, along with Justices Ginsburg, Breyer, and Sotomayor, would have denied the stay.
The practical upshots of the stay are: (1) The case has essentially passed from the Sixth Circuit up to the Supreme Court, and Ohio’s application for an en banc rehearing by the Sixth Circuit is no longer necessary. (2) Secretary Husted may now petition the Court for a writ of certiorari (possibly resulting in a Supreme Court decision on the merits of the underlying suit). This could lead to a potential showdown over the Fourteenth Amendment’s interaction with changes to voting laws, as well as the proper interpretation of § 2 of the Voting Rights Act of 1965. (3) According to Secretary Husted’s new directive, issued after the stay, Ohio’s EIP voting will not begin until next week. As a result, there will be no period of simultaneous registration and voting (called the “Golden Week”), and the only Sunday EIP voting option will be November 2. Of course, we will monitor Ohio’s petition for certiorari and any developments in the case, including any expedited review by the Supreme Court.
