In the 2004 general election, voters in Ohio, especially those in predominantly African American precincts, experienced excessively long wait times at the polls. In an effort to remedy the long wait times and resulting disenfranchisement, Ohio expanded access to the polls in 2005, creating 35 days of absentee and early in-person voting that included a five day period called “Golden Week” during which prospective voters could both register and vote on the same day. In 2013, the Ohio legislature enacted S.B. 238 to eliminate Golden Week; in so doing, the legislature eliminated a practice enacted to protect the right to vote that had been disproportionately used by African Americans to enjoy equal political opportunities.

In May 2015, the Ohio Democratic Party filed suit challenging the elimination of Golden Week and other voting restrictions under the Fourteenth Amendment and Section 2 of the VRA. The U.S. District Court for the Southern District of Ohio found that S.B. 238’s elimination of Golden Week violated the Equal Protection Clause and the VRA. Ohio subsequently appealed to the U.S. Court of Appeals for the Sixth Circuit.

On July 18, 2016, Constitutional Accountability Center filed a friend-of-the-court brief in the Sixth Circuit supporting the law’s challengers and arguing that Section 2 of the VRA, which enforces the Fifteenth Amendment’s prohibition on racial discrimination in voting, provides that government may not impose arbitrary and discriminatory barriers that make it harder for racial minorities to exercise their constitutionally guaranteed right to vote. As we demonstrate, Ohio’s elimination of Golden Week and its opportunities for same-day registration imposes a discriminatory burden on racial minorities for reasons that are wholly tenuous; accordingly, S.B. 238 violates the basic rule of voter equality enshrined in the Constitution and the Voting Rights Act.

The Sixth Circuit heard oral argument in the case on August 2, 2016.

On August 23, 2016, the Sixth Circuit, by a 2-1 vote, reversed the decision of the lower court and upheld S.B. 238, allowing for the elimination of Golden Week. According to the Court of Appeals, “[p]roper deference to state legislative authority require[d] that Ohio’s election process be allowed to proceed unhindered by the federal courts.” As a result of the court’s decision, it will be harder for racial minorities to vote in the upcoming election.