Bloomberg News

Ohio to Appeal Early-Voting Case to U.S. Supreme Court

October 09, 2012

Ohio is seeking U.S. Supreme Court review of an appellate ruling requiring all its voters to have the same amount of early voting time while letting individual boards of election decide whether that time includes the last three days before the Nov. 6 national election.

The Oct. 5 decision by a three-judge panel in Cincinnati upheld a lower-court order blocking a law that ended early voting for the general population three days earlier than for members of the military and residents living overseas.

President Barack Obama’s campaign organization and the state and national Democratic Parties sued Ohio Secretary of State Jon Husted and Attorney General Mike DeWine, both Republicans, arguing that the disparity in voting times was unconstitutional.

“The court is saying that all voters must be treated the same way under Ohio law, but also grants Ohio’s 88 elections boards the authority to establish 88 different sets of rules,” Husted said today in a statement announcing his plan to seek high-court intervention. “That means that one county may close down voting for the final weekend while a neighboring county may remain open. How any court could consider this a remedy to an equal protection problem is stunning.”

Electoral Votes

With a population of 11.5 million, Ohio controls 18 of the 270 Electoral College votes Obama or Republican challenger Mitt Romney need to capture the presidency.

No Republican nominee has ever won the office without also winning in Ohio. Obama carried the state in 2008, garnering 51.5 percent of the more than 5.7 million votes cast and a winning margin of 262,224 over opponent U.S. Senator John McCain of Arizona.

Ohio wants the high court to reverse the appellate panel’s ruling, according to its filing. Matt McClellan, a spokesman for Husted, said the state’s goal is to resolve the issue by Election Day.

Ohio directed its request to Justice Elena Kagan, who handles emergency requests from the appeals court that decided the early-voting case. Kagan, who was appointed to the bench by Obama in 2010, set an Oct. 12 deadline for the submission of any opposition to the state’s filing.

‘No Justification’

“There is no justification for the state’s arbitrary actions this year in trying to deny the vast majority of its voters access to open polling places for the last three days before the election,” Robert F. Bauer, general counsel for the Obama for America campaign organization, said in an e-mailed statement.

“This has been the unanimous conclusion of the courts that have considered this case,” Bauer said. “The Secretary of State has now chosen to extend the litigation and to ask the U.S. Supreme Court to intervene just four weeks before the election. We have no reason to believe that he will meet with any more success now than before.”

The Obama campaign argued before the lower courts that there was no justification for treating military voters and those living overseas differently than those in the general population.

Bush Appointees

The appellate panel -- which included an appointee of Democratic President Bill Clinton and judges named to the federal bench by Republican presidents George H.W. Bush and George W. Bush, agreed.

“The decision below is unsustainable,” according to Ohio’s Supreme Court filing. “This court has unequivocally held that there is no constitutional right to absentee voting.”

The state contends it offers more than 230 hours of what it calls “in-person absentee voting” to those citizens who are neither in the military nor residing overseas.

“The Sixth Circuit’s ruling that lower income and lesser educated voters would not be able to vote at all other than through in-person absentee voting on these three particular days finds no support in fact or law,” according to the state’s brief.

In his press statement, Husted vowed that all the state’s voting hours will be uniform “whatever the outcome” of its Supreme Court bid.

“Since some boards of elections have already started to take action on hours of operation for the three days before Election Day, I am going to take time to consult with all 88 counties before crafting a directive to set uniform hours should the state not be successful upon appeal,” Husted said in his statement.

The case is Obama for America v. Husted, 12-4055, U.S. Court of Appeals for the Sixth Circuit (Cincinnati).

To contact the reporter on this story: Andrew Harris in Chicago at aharris16@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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