Obama Campaign Wins Lawsuit To Restore Early Voting For All Ohio Voters
A clear victory for the Obama campaign in an Ohio Court, but will it stand on appeal?
Earlier this month, I noted that the Obama campaign had filed a lawsuit challenging a recent change in Ohio election law that ended early voting on the Friday before Election Day for all voters except military voters, who could vote up until the day before. At the time, the Romney campaign and many on the right falsely represented that the Obama campaign was trying to take away voting rights from members of the military when, in reality, they were only seeking to restore the law to what it had been and end an unwarranted privilege for members of the military. Indeed, as I noted, Ohio was the only state in the Union to give that kind of an early voting preference to military voters. Today, a Federal Judge in Columbua has ruled in favor of the Obama campaign and ordered the State of Ohio to restore early voting for all eligible Ohio voters:
A federal judge today ruled that Ohioans should be allowed to vote in-person on the final three days prior to Election Day.
U.S. District Court Judge Peter C. Economus, granted a preliminary injunction and set the new deadline for in-person voting on Monday, Nov. 5.
“On balance, the right of Ohio voters to vote in person during the last three days prior to Election Day — a right previously conferred to all voters by the state — outweighs the state’s interest in setting the 6 p.m. Friday deadline,” Economus wrote. “The burden on Ohio voters’ right to participate in the national and statewide election is great, as evidenced by the statistical analysis offered by Plaintiffs and not disputed by Defendants.”
Republican lawmakers last year voted to end in-person early voting on the three days prior to Election Day. County elections officials have argued that they need those days to get their poll books updated.
The judge said he expects Secretary of State Jon Husted will issue a directive to maintain a consistent schedule on those three days. Husted, in his effort to standardize voting hours across all 88 counties, had previously ordered that county election boards were not to hold any in-person early voting hours on weekends.
“Plaintiffs will suffer irreparable injury if in-person early voting is not restored the last three days before Election Day, and there is no definitive evidence before the Court that elections boards will be tremendously burdened,” the judge wrote.
Economus, an appointee of former Democratic President Bill Clinton, wrote that giving all Ohioans the same chance to vote early as active military members “places all Ohio voters on equal standing.”
Citing the U.S. Supreme Court decision in Bush v. Gore in 2000, Economus said the “Court stresses that where the state has authorized in-person early voting through the Monday before Election Day for all voters, ‘the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.’
“Here, that is precisely what the state has done.”
As I noted when I first wrote about this matter, the Obama campaign’s argument was, essentially, that the change in the law that gave a preference to military voters was a violation of the Equal Protection Clause because it gave those voters a benefit, the ability to vote early for three additional days, that was denied to the voters of Ohio as a whole and that there was no rational basis for this differential treatment. The State of Ohio, by contrast, argued that the differential treatment was permitted, if not required by the Uniform Overseas Citizens Absentee Voting Act (UOCAVA), the law that governs the treatment of absentee voting by deployed members of the military. As said at the time, the argument that the state was making didn’t make much sense to me unless it was applied only to deployed members of the military and not also to Ohio residents who happen to be in the military and in Ohio at the time of the election. In that second case, there’s no rational reason for saying that military voters can vote up until the day before the election, and the rest of the state’s voters could not. I’m not really much of an election law expert, though, so I’m unable to say if the Obama campaign’s argument stands up to legal muster. In his opinion today, though, Judge Economus, who was appointed by Bill Clinton in 1995 and is now on Senior Status with the Court, essentially agreed in toto with the Obama campaign’s equal protection argument:
Defendants do not counter Plaintiffs’ assertion that restricting in-person early voting significantly impacts thousands of Ohio voters or that it impacts certain segments of the population more than others. Instead, Defendants argue first that the State’s action is justified to address the needs of Ohio elections boards as they prepare for Election Day, and, secondly, that the State is justified in severing the electorate into two groups—UOCAVA and non-UOCAVA—to serve the particular needs of the military and, albeit to a lesser extent, overseas voters.
From the onset of this litigation, Defendants have pointed to special concerns for the military—concerns all parties share—and the military’s need to maintain additional access to in-person early voting. But for UOCAVA voters, what is left is, potentially, one day: Monday. Defendants have presented no evidence to sustain the inference that in-person early voting on Monday—one day—will burden county boards of elections to the extent that the injury to Plaintiffs is justified. Moreover, Defendants undercut the virtue of their support of military voters by failing to protect any significant measure of UOCAVA voting. Unless a serviceperson is “suddenly deployed” at exactly the right time—enabling in-person voting on Monday—he or she will likely be unable to vote, depending on the local elections board’s “discretion.” That the State cannot justify its interest in foreclosing Ohio voters for one day emphasizes the arbitrary nature of its action.
Finally, this Court notes that restoring in-person early voting to all Ohio voters through the Monday before Election Day does not deprive UOCAVA voters from early voting. Instead, and more importantly, it places all Ohio voters on equal standing. The only hindrance to UOCAVA early voting is the Secretary of State’s failure to set uniform hours at elections boards during the last three days before Election Day. On balance, the right of Ohio voters to vote in person during the last three days prior to Election Day—a right previously conferred to all voters by the State—outweighs the State’s interest in setting the 6 p.m. Friday deadline. The burden on Ohio voters’ right to participate in the national and statewide election is great, as evidenced by the statistical analysis offered by Plaintiffs and not disputed by Defendants. Moreover, the State fails to articulate a precise, compelling interest in establishing the 6 p.m. Friday deadline as applied to non-UOCAVA voters and has failed to evidence any commitment to the “exception” it rhetorically extended to UOCAVA voters. Therefore, the State’s interests are insufficiently weighty to justify the injury to Plaintiffs.
The Court then rules:
IT IS FURTHER ORDERED that in-person early voting IS RESTOREDon the three days immediately preceding Election Day for all eligible Ohio voters. And specifically, for the purposes of the 2012 General Election, this Order restores in-person early voting to all eligible Ohio voters on Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. This Court anticipates that Defendant Secretary of State will direct all Ohio elections boards to maintain a specific, consistent schedule on those three days, in keeping with his earlier directive that only by doing so can he ensure that Ohio’s election process is “uniform, accessible for all, fair, and secure.'”
I’ve thought from the beginning, this is the part of the case that I’ve always found troubling. It’s difficult to say whether or not a Judge really does have the authority to re-write a state law in this manner, especially since the state legislature had specifically changed state law to remove precisely what it is the Judge is ordering here. Ordinarily, when a Court finds that a state law violates the Equal Protection Clause, the relief granted involves issuing an injunction preventing the state from engaging in the unequal treatment. In this case, that would ordinarily mean an Order barring the State of Ohio from giving military voters three extra days of early voting. For rather obvious political reasons, though, the Obama campaign specifically did not ask for that form of relief in its pleadings. Filing a lawsuit to take voting rights away from military voters, which is what the Romney campaign falsely accused them of doing, would have been politically poisonous in plenty of places outside of Ohio, including swing states like Virginia and North Carolina which have large contingents of military voters, veterans, and families who have members in the military. The relief granted may be the most difficult part of this case on appeal, though, because there is a very real question as to whether or not the Judge actually has the authority to do what he did here.
The remedy granted, however, may only be one of the problems that this ruling faces on appeal, as election law blogger Rick Hasan explains:
There are reasonable arguments over whether the Court picked the right level of scrutiny to apply, and whether the judge applied the scrutiny he said he was applying. Further, there is a major debate about what Bush v. Gore requires, and the Sixth Circuit may have to go en banc to resolve the meaning of the case: does it in fact require (1) equal treatment of all voters in terms of opportunities to vote; and (2) a kind of “non-retrogression” principle, whereby the state may not remove a method of easier voting once it has used it in a past election?
This could get very ugly very quickly. This is certainly not the last word, unless SOS Husted chooses not to appeal.
It seems rather unlikely that he will do that, to be honest. At the same time, though, there are some very short timetables at play here that make an appeal somewhat irrelevant, at least as far as the 2012 election is concerned. Ohio’s early voting law allows for 30 days of early voting, which means that it must start on October 7, 2012 since the election is on November 6th. There’s simply no way that the Court of Appeals is going to be able to rule on the merits of this case before either of those days. Ohio could ask the Court of Appeals to enjoin enforcement of the Order while the appeal is pending, but the time periods involve make it questionable that the Court would grant such relief at what would essentially be the last minute. However, as Hasan notes, the Sixth Circuit has been contentiously divided on election law issues for several years now, so it’s hard to predict what they’d do in this case.
Legal issues aside, though, this is a clear victory for the Obama campaign as well as advocates of greater access to voting. It comes on the heels of yesterday’s ruling striking down the Texas Voter ID law so, that does give one side of the political divide something to celebrate. As a policy matter, I think Husted would be wise to decline to enjoin the ruling and allow the Order to stand at least for the General Election. After that, the appeal can proceed forward and the ultimate fate of this law decided. What he’ll do in that regard is up to him, obviously.
Here’s the opinion: