Appeals Court Upholds Ruling Restoring Early Voting For All Ohio Voters
Another legal victory for the Obama campaign in Ohio.
Just about a month after a Federal District Court Judge ruled that Ohio’s law giving military voters and their families three additional days to participate in early voting unavailable to other Ohio voters was unconstitutional. The ruling came in a lawsuit filed by the Obama campaign and other groups against a law passed earlier this year that changed Ohio law to eliminate early voting after the Friday before an election unless the voter was a member of the military or their family member. The Romney campaign claimed that this lawsuit was an effort by the Obama camp to deny voting rights to members of the military, a claim which was totally false given the fact that the lawsuit’s purpose was to extend early voting hours for all Ohio citizens. I also noted at the time that Ohio was the only state in the country that granted this type of early voting privilege for members of the military. In his ruling the Federal Court Judge had entered an injunction requiring the State of Ohio to grant early voting up until the day before the election for all Ohio voters. The state appealed that decision to the Sixth Circuit Court of Appeals and, late yesterday, that Court upheld the District Court’s ruling and ruled against the State of Ohio:
Saying that Ohio voters would be “irreparably injured” by the Republican decision to eliminate the last three days of early in-person voting, the 6th U.S. Circuit Court of Appeals yesterday sided with the Obama campaign and Ohio Democrats to allow local elections boards to stay open.
However, the court is not requiring that the polls be open on the Saturday, Sunday and Monday before Election Day. Instead, that decision is left up to individual county elections boards, each of which is divided 2-2 between Republicans and Democrats.
That could shine a spotlight on Republican Secretary of State Jon Husted, who is required to break tie votes among the elections boards.
Husted said he will not decide until at least next week how to proceed legally and provide guidance to Ohio elections boards.In the summer, Republican members of several big-county boards refused to go along with extended voting hours supported by Democratic members, leading Husted to fulfill an earlier pledge to break ties in favor of keeping normal business hours. That led to a pattern of extra voting hours in GOP-dominated counties but restricted hours in more-Democratic counties.
Yesterday’s ruling has implications for the presidential campaign because studies have shown that Democrats, particularly black voters, prefer voting early in person — as opposed to through the mail.
“With today’s decision by the 6th Circuit Court of Appeals, Ohio joins Wisconsin, Florida, New Hampshire and Pennsylvania as states that turned back restrictions on voter access and limitations on voter participation,” the Obama campaign said in a written statement. “As a result of this decision, every voter, including military, veterans and overseas voters alongside all Ohioans, will have the same opportunity to vote early through the weekend and Monday before the election.”
Republican legislators passed a law last year to cut off early voting on the Friday before Election Day, arguing that elections boards needed time to update their poll books.
Democrats sued, arguing that because active military voters and their families could vote on those days, it was unconstitutional to eliminate those days for everyone else. Democrats estimate that 93,000 people voted on those days in 2008.
“The state has proposed no interest which would justify reducing the opportunity to vote by a considerable segment of the voting population,” the appellate judges said. “The public interest … favors permitting as many qualified voters to vote as possible.”
The appeals court upheld a late-September ruling by U.S. District Court Judge Peter C. Economus.
State attorneys argued that the unique challenges facing those in the active military justifies giving them an additional opportunity to vote, a position backed by a variety of military groups. The appeals court disagreed, saying nonmilitary voters should be treated the same.
“There is no reason to provide these voters with fewer opportunities to vote than military voters, particularly when there is no evidence that local boards of elections will be unable to cope with more early voters,” the court declared yesterday. “While we readily acknowledge the need to provide military voters more time to vote, we see no corresponding justification for giving others less time.”
As I’ve noted in my previous posts on this law, the arguments of the two sides are coming at this issue from completely different directions. The Obama campaign and its co-Plaintiffs argue that granting three extra days of early voting only to members of a certain class, in this case members of the military and their families, is a violation of the Equal Protection Clause of the 14th Amendment. The State of Ohio argues that members of the military are a special class entitled to differential treatment pursuant to the Uniform Overseas Citizens Absentee Voting Act (UOCAVA), the law that governs the treatment of absentee voting by deployed members of the military. The problem with Ohio’s argument, though, is that UOCAVA typically only applies to deployed members of the military, not members of the military who are stationed in the state where they are registered to vote. Additionally, UOCAVA sets up procedures under which members of the military vote via absentee ballot and says absolutely nothing about early voting. In his ruling the District Court Judge found the state’s argument unconvincing and held that the restriction of early voting to only one class of voters could not be justified under the Equal Protection Clause.
In their opinion yesterday, the Court of Appeals essentially agreed with the lower court’s ruling:
Providing more time for military and overseas voters to cast their ballots in person is not a response to the problem of these voters being absent, because absent voters obviously cannot cast ballots in person. Rather, the State argues that these voters need more time to vote early because they could be called away from the jurisdiction in an emergency with little notice. (See R. 35-8, Defs.’ Ex. 7; R. 35-10, Defs.’ Ex. 9.) We acknowledge the difficult circumstances of members of the military and their families,who constantly face the possibility of a sudden and unexpected deployment, and we admire their dedication and sacrifice. For that reason, Ohio’s commitment to providing as many opportunities as possible for service members and their families to vote earlyis laudable. However, the State has offered no justification for not providing similarly situated voters those same opportunities. See S.S. v. E. Ky. Univ., 532 F.3d 445, 457 (6th Cir. 2008) (“In essence, a State must ‘treat similarly situated individuals in a similar manner.'” (quoting Buchanan v. City of Bolivar, 99 F.3d 1352, 1360 (6th Cir. 1996)).
The State asserts that military and overseas voters are not similarly situated to other Ohio voters for equal protection purposes. “The Equal Protection Clause does not forbid classifications. It simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (emphasis added); see also TriHealth, Inc. v. Bd. of Comm’rs, 430 F.3d 783, 790 (6th Cir. 2005) (finding that two groups of hospitals were not similarly situated for equal protection purposes because “they differ[ed] in several material respects”). In many respects, absent military and overseas voters are not similarly situated to other Ohio voters. Typically, their absence from the country is the factor that makes them distinct, and this is reflected in the exceptions and special accommodations afforded to these voters under federal and state law.
With respect to in-person early voting, however, there is no relevant distinction between the two groups. The State argues that military voters need extra early voting time because they could be suddenly deployed. But any voter could be suddenly called away and prevented from voting on Election Day. At any time, personal contingencies like medical emergencies or sudden business trips could arise, and police officers, firefighters and other first responders could be suddenly called to serve at a moment’s notice. There is no reason to provide these voters with fewer opportunities to vote than military voters, particularly when there is no evidence that local boards of elections will be unable to cope with more early voters. While we readily acknowledge the need to provide military voters more time to vote, we see no corresponding justification for giving others less time.
The Court also upheld the lower court’s remedy:
The order clearly restores the status quo ante, returning discretion to local boards of elections to allow all Ohio voters to vote during Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. Because Ohio Rev. Code § 3509.03 is unconstitutional to the extent that it prohibits non-military voters from voting during this period, the State is enjoined from preventing those voters from participating in early voting. But the State is not affirmatively required to order the boards to be open for early voting. Under the district court’s order, the boards have discretion, just as they had before the enactment of § 3509.03. The district court’s remedy was therefore appropriate.
As noted, the three judge panel was split 2-1, but the split was not on the whole decision. Instead, Circuit Judge White agreed with the Court’s ruling on the merits of the case but argued that the remedy was inappropriate. Instead, she would have sent the case back to the Secretary of State with instructions to remedy the Constitutional defect. The problem with that, of course, is that remedying the defect could easily be accomplished by ending early voting on the weekend before the election for military voters. Then, everyone would be similarly situated. For rather obvious political reasons, this is not the remedy that the Plaintiff’s requested.
As he was with the District Court’s ruling election law blogger Rick Hasen is skeptical of this ruling, and specifically the remedy:
I think there is a fairly good chance this ruling gets appealed. First DeWine is going to want to push this issue, as are Republicans generally because it presents an opportunity to continue to argue that the Obama campaign is taking steps against military voters (a charge I believe is bogus). The next step of the appeal is to the Sixth Circuit as a whole. As I’ve explained in this blog post and this recent Slate piece, the Sixth Circuit has divided bitterly on election law disputes recently, and there are more Republican-appointed judges than Democratic ones. The step after that, of course, is the U.S. Supreme Court.
And so while I stand to be surprised again, I’m still expecting a reversal should Ohio appeal.
Finally, I should point out that the remedy is very problematic. If some counties have extra early voting and others do not, that itself could create an equal protection violation. Further, if we are going to require Jon Husted, the Republican Secretary of State to break the tie, in the past he has sided with the Republican members of county boards to deny extended early voting. After criticism, he imposed uniform rules (but without weekend voting which Democrats wanted). We will see if he imposes extra early voting across the state if this ruling holds.
Of course, any appeal to the full Sixth Circuit or the Supreme Court is going to have to be expedited. Rather than a full ruling on the merits, we’re likely to only see a ruling on the propriety of the Preliminary Injunction itself. For rather obvious reasons, that will have to happen some time well before the last weekend before Election Day so that those counties in Ohio that wish to offer that option to their citizens. For the moment, though, this is another victory for the Obama campaign on this issue. As I’ve said, I think they’re right on the ultimate issue, the problem comes in the injunction that the Courts have issued twice now.
Here’s a copy of the opinion:
They are indeed coming at it from different perspectives. On the hand, Democrats who want Ohioans to vote. On the other hand, Republicans, who only white Ohioans to vote.
The GOP has regressed to the days of Jim Crow and the silence from supposedly rational Republicans like James Joyner is deafening.
James Crow, Esq.
Legal arguments aside, it is quite clear what the rightwing is trying to do here and everywhere else they’ve intentionally worked to make it harder for some people (the poor, minorities, college students, etc.) to exercise their Constitutionally guaranteed franchise and it’s disgusting and unacceptably undemocratic.
Eventually all these voter supression laws will be overturned. These are really nothing more than ann attempt to re-impose Jim Crow voter supression, gussied up in nuetral language and a hypocritical concern with the voting process. .
When you start your revisionist history rhetoric, just remember that Jim Crow originated in the democratic camp of politics, like so many restrictive policies have. Keeping the people down is a life skill of dems, whether it is restricting their rights, being condescending to their human worth, or killing them with kindness (benefits making them dependent) just in order to woo them over as a long term constituency. They are now working on the Hispanic vote that way. It’s all about skin color with the dems — using it as a wedge and a tool to increase their party’s power. It’s basically subliminal pandering.
@jan: The stupid, it burns.
(I can’t decide if the comment is more wrong or offensive…maybe equal parts both.)
@jan: Hey Jan, check this out, and no, it’s not pandering, it’s people getting out the vote. .http://www.aclu.org/voting-rights/take-your-souls-polls-voting-early-ohio “After record voter turnouts in the 2008 election, 34 states have introduced legislation to limit voting. In Ohio, H.B. 194 seeks to cut the state’s early voting period by more than half, and to prohibit voting on the last Sunday before Election Day.
Opponents of the law worry that if it goes into effect, H.B. 194 will make it difficult for many in Ohio to vote, particularly those African-Americans who got to the polls with the help of their churches.”
You’re a dishonest woman with no intellectual integrity. Not just wrong, but creepily so. Ewww.
I honestly don’t get people like you. You’ve just seen three solid days of honesty on the part of left-leaning commenters here. To a man or woman we called the debate honestly. Is there no part of you that thinks, “Maybe I could be honest. Maybe I could show some integrity.”
You and the rest of your crew are regularly corrected, always shown up as wrong or dishonest. But you never change. The next days it’s the same old lies and nonsense. And here’s what I don’t get: why would you spend so much effort on lies that are instantly exposed? It’s not like you’ve snuck under the radar somehow. The universal opinion here is that you are utterly dishonest. So what is the point? Why keep lying to people who know you’re lying? Is this the only way you can get attention?
And beyond that, why keep lying, period? How do you even know what you stand for or what you want?
The proper response is to simply point and laugh. Anyone who has to point to the 19th century to demagogue their opponents deserves both mockery and pity.
Look, either one believes in Democracy or one most certainly does not.
If voting rights are central to Democracy, the right of the citizenry to vote must be safeguarded as an existential-level matter. Thus, should there be error, it should always be extended to inclusion, rather than exclusion.
As there are admittedly few cases of voter-ID fraud, there is no reason to cram voter-ID – in fact, there is every reason to take our time and get it right.
My guess is that after November, the voter-ID enthusiasm will remarkably disappear, until the next go-round where the wrong people might vote.
PS – Jan, truly one of your more awesome posts. Really, I’m in awe.
Dems always like to cast voter ID as ‘limiting’ voting, which then fits nicely into their drama of voter suppression.
Other people, a ‘majority,’ refer to it, though, as being sure a legitimately eligible person (D/R/I) casts their vote in this country — requirements which other less sophisticated countries already have in place.
It’s all how one wants to shine a light on something. The act of even acquiring a picture ID is being made easier and easier, free in some states, in order to neutralize the false claims of the left. Obtaining proof of identification then elevates citizens further into being able to access more services and opportunities, already available to those possessing an ID. It’s part of a larger, fairer effort to bring all of society out of the dark ages of perpetual pity-parties laid on them by the left, disabling them from becoming stronger and more self-reliant.
Actually, many social progressive practices remind me of parent’s who chain their teens to bed posts (for their own good) so they won’t go out, hurt themselves, or do crazy things. In the Voter ID controversy, the social progressive keeps people chained to their poverty, ignorance, their own resourcefulness, because if such people wise up, become more independent, they may no longer be susceptible to the siren sounds of the dem party saying “Don’t help yourselves..just look to us for help.”
I’m not sure I’ve ever seen you answer the following simple question. Would you still support the voter ID laws even if they disproportionally keep minorities from voting? Is that an acceptable outcome for you?
I talked to an old friend in Ohio about this a few days ago during an online discussion about voter ID. His elderly mother wants to vote, but has no ID. A Republican suggested that her son simply help her, like any good son. My friend had looked into it. He would have to rent a wheelchair equipped van, $300, and take a day off work, roughly $300. That’s $600 out of pocket simply so his mom can do something she has a constitutional right to do. At the moment, that is a pretty substantial un-budgeted expense for him, and he is not poor, as millions of Americans are.
He’s a good guy who works hard and plays by the rules, just as his mom did all her life. Why do these folks have to jump through hoops and do a double backflip to exercise their rights in tea party America?
why would you spend so much effort on lies that are instantly exposed?
What lies have been exposed?
Michael, the theme here and by the left, is to call anyone who disagrees with the majority of posts here a ‘liar.’
On the national front, if one wanted to splice together a montage of what Obama and his operatives (Cutler, Axelrod, Plouffe) went out and said the day after the debates, it would be nothing but a string of calling Romney out on his lies. Apparently, right after the debates, the Romney team was out mingling with reporters because they were overjoyed with Romney being able to finally override Obama’s distortions, relating his own policies/ideas/values in his own words. The Obama team, though, waited a full 20 minutes or longer, trying to piece together what their next line of defensive attack would be. Calling Romney a liar was what they came up with, and now have expanded on.
You guys follow suit in your ‘liar’ chant. It’s all about pasting nasty labels on the other guy to get the best of the argument. If liar doesn’t work, then try racist. If that doesn’t push enough buttons, go on to adjectives like ‘greedy, rich, wall-street types’ — anything or everything that will paint a negative picture of another without really getting into the realm of ideas or serious policy matters. Your remarks basically go for the pin-prick of emotion, sensationalism, grinding away at another in a personal vein, rather than staying above the fray and talking issues. And, when your philosophical opponent doesn’t capitulate or back off, it becomes time to rail against their integrity, likability, and so on.
You see, Michael, I don’t hate President Obama, personally. I am against him because of his policies and I don’t like where this country is going under them. But, you and others personally, viscerally hate most republicans and the candidates/presidents representing their politics. I don’t hate you, either. But, I vehemently think you are out of touch and out to lunch, as to most of your political beliefs, and I say so, sometimes with analogies which only adds to the surge of red checks below my comments.
Finally, I don’t view this blog as a popularity contest. I also realize that few, if any, hearts or minds are changed by what I say. But, it’s like dealing with an old drain…every once in a while you put an auger down, attempting to clear out some of the sludge narrowing the opening, and hope for the best.
Actually, his advisors were busy walking back some of the more egregiously false statements he had made during the debate.
Would you still support the voter ID laws even if they disproportionally keep minorities from voting? Is that an acceptable outcome for you?
If that were the proven case, I would support waiting for a voter ID law to be implemented until this disproportionate minority obtained their proper ID. Getting such an ID to this demographic should be actively pursued, in a timely manner, as well.
David, I don’t understand why the left takes the posture that voter ID laws have such malicious intent behind them, such as wanting to take a voting right away from people. It cleans up the roosters, nothing else, acting more like an immunization shot, which staves off disease, it works to discourage and/or thwart fraudulent voters from even attempting to taint an election result. And, similar to immunizations, just because we have low to none reportable incidents of certain diseases, the populace is still given these shots. It’s mandated for school enrollment. So it goes for voter fraud. Even though the argument has been by the left, that the incidence of voter fraud has been low, this acts as a safeguard to keep it that way.
Well, you said that Obamacare had been sold as “free health care” that is a lie.
@jan: Poor ‘Jan’… Poor thing! I feel so, so, so, very sorry for her, and for people who think like her! Awe, Bless her little heart… Lets all pray for little Jan, She REALLY needs our prayers… Hang in there Jan!
I have heard Mitt Romney say multiple times, in interviews and excerpts on the stump, prior to the debate, that he supported the pre-existing policy as well as having no problems with young adults staying on their parent’s HC policies. This has been stated to the chagrin of some conservatives. But, much like Romney has not backed away from his involvement with the MA HC policies, he has been consistent about these statements as well.
Your TPM excerpt is simply kind of a gossipy rumor being put out there, much like your baseless allegations about all the ‘lies.’ Fact-check your own guy’s statements, for once. They are not all that accurate.
Actually it was on on the record statement made by a senior Romney advisor. He was surrounded by cameras and microphones when he said it. How does that equate to a “gossipy rumor”?
Are you denying you said Obamacare was sold as free health care?
Don’t feed the Jan Troll.
It’s a total waste of time as she is smarter than you and knows not to believe what her candidate and his surrogates actually say on camera.
I don’t know how just justifies this in her mind, but I’m guessing mirrors.
She’s psychotic, I think.
I know, I know…..don’t feed the Jan-troll. But it is just too hard to let ignorance stand unchallenged. Ever heard of Dixiecrats, Jan?? How about Strom Thurmond (started out as a Democrat). Time to go back to school.
The reason we have come to call you a liar is that… well.. you continuously lie.
In the past you have *repeated* statements like the president said the US in unexceptional, Obama book jacket bio said he was born in Kenya, the president has repeatedly apologized for the US, etc. Likewise the prexisting condition thing (here’s an NRP report and CNN) backing up the TMP story. All of your claims are demonstratively false. Not difference of opinion false, but completely without basis.
A number of us have pointed this out (with links) and your reaction has been to repeat these claims multiple times.
The first time could be a mistake. The second time an oversight. But after two times (with corrections) it’s flat out lying.
I agree with this ruling. Call me biased, I really do not care. Voting is a right given to us by the Constitution, and anything that guarantees equal voting rights to everyone, is always the correct ruling.
What really bothers me is the fact that all this uproar over this by the partisans here. That some how this is a biased ruling, based on democrats infatuation of race or insert “X” talking point.
Also, where is the outrage over the voter registration fraud perpetrated by republicans?
Or is this sort of corruption a thing of the past as it’s a republican problem now? I mean we heard about Acorn for a long long time, but, now, crickets.
(Just to make it clear, this wasn’t a jab at our hosts here at OtB(more so the partisan commentators), as I can not expect everything to be covered here. But, having said that, I would think that something like this would be more important to talk about compared to things like, I dunno, pumpkin coffee?)
In the past you have *repeated* statements like the president said the US in unexceptional, Obama book jacket bio said he was born in Kenya, the president has repeatedly apologized for the US, etc.
How many months ago was that ‘unexceptional’ remark made, mattb? Like a pit bull, though, you will hang on to a grievance, exploit it, and then use it at every turn in the road. I guess when there is little else to rebut, that’s all one can do.
Regarding the ‘unexceptional’ comment…you’re right. The president didn’t use that exact word, “unexceptional,” in any speech. However, in ones like the Cairo Speech, there were nuances in his wording that were interpreted as such by many, and considered below par in how he represented this country’s best interests. And these takeaways, from that speech, as well as tidbits and formalities, in his official capacity as POTUS to other nations, have been criticized and looked at as underwhelming and an implication that this country was unexceptional and on the same level as everyone else. Here is one non-MSM opinion piece which goes into the same conjecture that Obama’s leadership has decreased the U.S.’s stature around the world.
Romney has experienced the same negative nuance translation, by the left, such as was in the recent 47% ad, which then has been repeated to mean that Romney was calling that 47% lazy, or on the dole. That word ‘lazy’ was never used by him. But, his usage of” victims, entitlement, dependence” all added up to mean ‘lazy,’ to many, and have been repeated on blogs and in the news media, taking on the connotation of ‘lazy’ as if he actually said it.
As for the Kenya reference, Obama’s own literary agent published Kenya as being his birth place, without any comments/objections/demands for retraction from Obama to remove it, until 16 years later. With any other sitting president this would be subject to a headline or two. But, the MSM took care of that, and relegated it to obscurity in the circular filing cabinet. However. it’s simply a fact that from 1991 to 2007 this verbiage was part and parcel of an Obama publication. Why? I don’t know, and no other judgement was rendered by me except to post the dichotomy of birthplace that remained so long unchallenged.
“I know, I know…..don’t feed the Jan-troll. But it is just too hard to let ignorance stand unchallenged. Ever heard of Dixiecrats, Jan?? How about Strom Thurmond (started out as a Democrat). Time to go back to school.”
Strom Thurmond was the only democrat to change parties, becoming a republican. All the other democrats, forming the Dixicrats, remained democrats. Why don’t you go back to school and take a refresher course?
Look pal, Jan’s “unexceptional” lie was months ago. It’s been etch-a-sketched, and it’s very poor form for you to mention it.
I guess we should not be surprised that Jan is obsessed with bigotry in the Democratic party half a century ago and not at all interested in bigotry in the GOP today.
It’s been clearly shown that your statement is not true. Care to retract it, or are you sticking with the lie?
The phrase willfully ignorant seems best to describe this.
If this statement is true, you could brush up on your history of voting rights in the US and re-consider.
I guess we should not be surprised that Jan is obsessed with bigotry in the Democratic party half a century ago and not at all interested in bigotry in the GOP today.
Much of the bigotry that is discussed today, such as the Jim Crow Laws or Black Codes, arose from the bigotry fanned and promulgated by the democrats of yesterday. Just think what this country would be like today if the dems had not implemented the types of segregation practices derived from Jim Crow, or the violence against AAs by the KKK, another manifestation of democrats! Senator Robert Byrd comes to mind as being the poster boy of the Klan. George Wallace, Lester Maddox, J. Wm Fulbright, Sam Ervin & Al Gore Sr. (both opposed the Civil Rights Act), Harry Truman & Hugo Black (both KKK members, the latter held a lifetime membership) are just a few notable democrats engaging in stepping on or reining in Black rights throughout U.S. history. If you want to delve into the democrat’s sordid racial past, here is a comprehensively detailed link.
The supposed ‘bigotry’ that is now superimposed on the republicans is really a sham, as so much of the GOP platform deals with equality, encouraging and promoting people by their character and skills, rather than the color of their skin — a MLK premise that has been dismissed and totally distorted by the social progressive agenda that wants to keep affirmative action in place forever, supporting, in some cases, a reverse discrimination among races. This kind of racial ruse is really disgraceful and disingenuous, in that it is driven by a false kind of empathy/white liberal guilt which actually keeps races apart, igniting continuing resentments and prejudices among the melting pot of people comprising this country.
You are convieniently ignore several decades of U.S. history beginning around the time fo the civil rights movement. But then we all know that intellectual honesty is not a card that is in your deck.
An Jan, regarding your link – don’t you know that “The Democrat Party” is a tell?
Yes, by yesterday’s southern Democrats, who are today’s Republicans…tell me, if the Democrats are supposedly so racist, why do so many black people vote for them? Are these black people stupid? Pray tell…