Early voting 3 days before Nov. 6 election upheld by federal appeals court

10/5/2012

COLUMBUS — A Cincinnati appeals court today handed President Barack Obama’s re-election campaign another victory in its efforts to force Ohio to open its doors to in-person early voting during the three days immediately preceding the Nov. 6 election.

The ruling from the 6th U.S. Circuit Court of Appeals upheld a prior ruling that determined it was unconstitutional for lawmakers to allow in-person early voting by members of the military and their families while closing the doors to everyone else on those three days.

In the lower court ruling, U.S. District Court Judge Peter Economus said he anticipated Republican Secretary of State Jon Husted to issue a directive setting hours across the state for that Saturday, Sunday, and Monday to be consistent with his stated goal of maintaining uniformity.

“The burden on non-military Ohio voters’ ability to cast ballots, particularly when many of those voters will likely be unable to vote on Election Day or during the day at local boards of elections because of work schedules, outweighs any corresponding burden on the state, which has not shown that local boards will be unable to cope with three extra days of in-person early voting—as they have successfully done in past elections,’’ Judge Eric L. Clay, an appointee of Democratic President Bill Clinton, wrote for the 2-1 majority.

The court noted that about 1.7 million Ohioans voted early in the 2008 presidential election via mail or in person. That was nearly 30 percent of all votes cast in that election.

The lawsuit had been filed by Mr. Obama’s campaign, the Democratic National Committee, and the Ohio Democratic Party. Among the opponents of the lawsuit were a number of military groups who interpreted the action as an attack on military voting rights.

“We are disappointed by the 6th Circuit’s ruling and continue to stand with the 15 military groups who believe it is constitutional to grant special early-voting privileges to the brave men and women of our military,” said Chris Maloney, spokesman for Republican presidential nominee Mitt Romney.

Democrats had argued that the prohibition on non-military early voting on those three days would disproportionately affect minorities, seniors, and lower-income voters who have traditionally been more likely to vote Democratic.

Mr. Husted had not issued a new directive while the appeal was pending, but has said that he expected to do so. He said Friday that his office was reviewing the ruling. Attorney General Mike DeWine, Mr. Husted’s lawyer, has the option of seeking an appeal of the decision before the entire 6th Circuit bench or the U.S. Supreme Court.

“No action will be taken today or this weekend,’’ Mr. Husted said.

Judge Clay was joined in the majority by U.S. District Court Judge Joseph M. Hood, of Kentucky, an appointee of Republican President George H.W. Bush who sat on the case by assignment.

Judge Helene N. White, appointed by GOP President George W. Bush, generally agreed with the conclusions reached by the majority. But she wrote that she would have given Mr. Husted and the Republican-controlled General Assembly a chance to fix the flaw in the law before reinstating the lower court’s preliminary injunction.