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Ohio Early Voting Lawsuit: Victory Dealt to Obama

by Blaz Gutierrez, published
Photo: Scout Tufankjian for Obama for America

Ohio early voting lawsuit win for Obama

In a one sentence opinion, the Supreme Court handed President Obama an important victory in Ohio today. The ruling, simply stating "The application for stay presented to Justice Kagan and by her referred to the Court is denied." effectively opens the Ohio polls to all voters. The Ohio early voting lawsuit has been at the center of several ballot access suits filed this year.

While typically open to voters one month in advance of the election, the State of Ohio planned to shut down the polling places three days prior to the November election in order to prepare for election day. The only exception that Ohio was willing to concede would be for members of the military and their immediate families pursuant to  the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). The early-voting law came about as a result of the problems Ohio voters faced in 2004 when long lines and hours-long delays caused an estimated 3% of voters to give up and walk away from the polls without casting their ballot.

The Obama campaign filed suit against the move and asked the State Court to block Ohio from shutting down the polls early. This is in no doubt related to the early investments made by the Obama campaign in setting up a ground presence in Ohio. The 18 electoral votes that would be conceded to the winner of the Ohio election will be critical and Obama leads among early voters. Last year, nearly 100,000 people voted for Obama in the three days prior to the election and Obama hopes to repeat that success this year.

Even though the law had no discriminatory intent, the 6th Circuit Court of Appeals stated, the ability for a state to pick and chose who to confer voting privileges to was "worrisome." The three-judge panel was also unpersuaded by the States arguments that the early voting provisions could make it more burdensome on local polling places without putting forth any evidence that there have been issues with early voting in the past.

Citing from precedent including the infamous Bush v Gore decision the Court stated that “A citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Granting certain early voting privileges to military personnel and not to others proved to be the downfall of Ohio's argument.

The Court's ruling did not mean that the polls would have to be kept open at all, noting that there is no Constitutional right to to early voting. However, under the Equal Protection clause of the Constitution, if the State of Ohio were to open the polls to some, it must open the polls to all. Ohio Secretary of State John Husted stated that he would set uniform voting hours regardless of whether or not the Supreme Court took up the appeal.

In the immediate wake of the Supreme Court's decision, Husted issued a directive to all 88 county boards of election, setting voters hours on Saturday, Nov. 3 from 8 a.m. to 2 p.m.; Sunday Nov. 4 from 1:00 p.m. to 5:00 p.m., and Monday, Nov. 5. from 8:00 a.m. to 2:00 p.m.

The application (Husted v. Obama for America, 12A338) was filed with Justice Elena Kagan, who is the Circuit Justice for emergency matters in the Sixth Circuit group of states, including Ohio. will continue to cover the developments in this ongoing dispute. For past coverage see Christina Suttles' piece detailing effects of the Ohio early voting lawsuit.


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