Appellate judges say balloting during 3 days before election is open to all

10/6/2012

COLUMBUS — President Obama was handed another victory by a federal appellate court Friday in his campaign’s effort to force battleground Ohio to reinstate in-person early voting during the three days immediately before the Nov. 6 election.

The ruling from the 6th Circuit U.S. 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.

The ruling came while Mr. Obama campaigned at Cleveland State University, but he made no mention of it.

“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,” said Bob Bauer, the Obama campaign’s general counsel.

“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,” he said. “Across the country, the hard work to protect Americans’ right to vote has paid off.”

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

Mr. Husted, a Republican, is expected to make his decision on Monday. Ohio Attorney General Mike DeWine still has the option of seeking an appeal before the entire 6th Circuit bench or the U.S. Supreme Court.

“The burden on nonmilitary 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,” wrote Judge Eric L. Clay, an appointee of President Bill Clinton.

Ohioans began voting Tuesday. Except for military families, in-person early voting was to have stopped by law at the close of business on Nov. 2.

The lawsuit challenging that law had been filed by Mr. Obama’s campaign, the Democratic National Committee, and the Ohio Democratic Party. Among the lawsuit’s opponents were a number of military groups who construed 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 the prohibition on nonmilitary early voting on those three days would disproportionately affect minorities, seniors, and lower-income voters in urban counties who have traditionally been more likely to vote Democratic.

Judge Clay wrote that the state’s efforts to accommodate members of the military were laudable given the possibility they could be deployed out of state at moment’s notice. “But any voter could be suddenly called away and prevented from voting on Election Day,” he wrote.

“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.”

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

Judge Helene N. White, appointed by President George W. Bush, generally agreed with the conclusions ultimately 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.

Former President Clinton is a Democrat; the two Bushes are Republicans.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.