Ned Foley has written an interesting series of commetaries, the last Part appearing today, raising questions about a March 4 federal court Order in Cuyahoga County that extended polling hours in selected precincts to address a shortfall in ballot supplies.  He does not believe that the Order should have been issued; he sees in any poll extension a serious Equal Protection defect harmful to voters elsewhere denied similarly extended hours.  Foley has fashioned an equitable test for consideration in a small number of cases where such relief would be appropriate.  He means for this relief to be hard to get.

   [Note: the action was filed by the Obama for America campaign, which this firm and the undersigned represent.] 

   More will appear here in the future on the practical implications of the Foley test.  For the moment, the question that Foley touches upon but does not fully address is how much account to take of the conditions in which decisions such as this, to seek or order extended closing hours, must be made. He agrees that "To be sure, whenever a federal court is asked to extend polling hours, the need for a lightening quick decision does not give a judge the luxury of methodical deliberations. Perhaps in no other context is the aphorism 'hindsight is 20-20' so especially apt."  And while he defends the performance of the Secretary of State, he does agree that her office "did not offer sufficient guidance on what poll workers should do if precincts ran out of paper ballots." 

   Foley concludes, however, that the case for the specific Order was weak-- that it failed to protect against any significant disenfranchisement, that it was unfair to other voters offered no similar advantage.  He concedes that there might be in the background cause for concern; he concedes that time for decision is short; but he seems sure as well that both the decision to seek the order and the Court's issuance of it were mistaken.

   It may have turned out to have been largely ineffectual, just as Foley stated, but it is not clear why, when the time comes to decide these matters, a complicated legal test that gives more leeway to officials, less to voters, is a better operating framework.  This is Foley's test:  
 

Federal courts should not extend polling hours in some, rather than all, precincts voting in the same election unless either (a) irresponsible conduct by state  officials has caused voters in some precincts to be denied an opportunity to cast a ballot; or (b) state officials act irresponsibly in light of an unforeseeable but now  precipitous denial of equal voting opportunities; and all three of the following conditions apply:
 (c) the federal courts are unable to fashion a more narrowly tailored decree applicable only to those voters denied equal voting opportunities;
 (d) an extension of polling hours limited to specific precincts reduces, rather than increases, the overall inequality of voting opportunities among similarly  situated citizens within the electorate; and
 (e) it would be unreasonable for a candidate to object to the selective extension on the ground that its selectivity unfairly advantaged an opponent.

   This gives the Court a great deal to think about, in a short period of time, including the responsibility to determine whether an opposing candidate's complaints about unfair treatment were "reasonable".  Is the bias built into this "working rule of equity"--a bias toward inaction--really the one most suited to the circumstances, the one fairest to voters?

Bob Bauer