[EL] Breaking News: Ohio early voting//must-read Persily column

Fri Aug 31 09:20:34 PDT 2012

    Breaking News: Federal Judge Orders Ohio to Restore Weekend Early
    Voting in Ohio Weekend Before Election Day
    <http://electionlawblog.org/?p=39463>

Posted on August 31, 2012 9:18 am <http://electionlawblog.org/?p=39463> 
by Rick Hasen <http://electionlawblog.org/?author=3>

I thought we were done with blockbuster election law decisions before 
Labor Day, but now comes this order from a federal district court 
<http://electionlawblog.org/wp-content/uploads/OFA-Opinion.pdf> in Ohio 
in /Obama for America v. Husted/ granting a preliminary injunction 
enjoining the state from enforcing a new law barring early voting on the 
weekend before election day.  The state had such voting in 2008 but 
eliminated it in 2012 except for UOCAVA voters--including military 
voters, who might be deployed at any time.

The judge first noted that the state did not /mandate/ that election 
boards provide military voters who might be deployed at any time an 
actual right to cast an early ballot. It instead left the question to 
local election boards.  Using the /Anderson/Burdick/ balancing test and 
the right to no arbitrary and disparate treatment recognized in Bush v. 
Gore and other cases, the Court held that taking away early voting for 
all voters except (possibly) the UOCAVA voters violated the equal 
protection clause:

     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. See
    Anderson v. Celebrezze, 460 U.S. 780, 798 (1983).
    The issue here is not the right to absentee voting, which, as the
    Supreme Court has already clarified, is not a "fundamental right."
    McDonald v. Bd. of Election Commissioners, 394 U.S. 802, 807 (1969).
    The issue presented is the State's redefinition of in-person early
    voting and the resultant restriction of the right of Ohio voters to
    cast their votes i*n person* through the Monday before Election Day.
    This 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.*" Bush v. Gore, 531
    U.S. 98, 104-05 (2000). Here, that is precisely what the State has done.

The court's specific order reads: "*IT IS FURTHER ORDERED* that 
in-person early voting *IS RESTORED* on 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.'"

Will this ruling be upheld on appeal in the Sixth Circuit? The answer is 
not clear.  I had expressed uncertainty 
<http://www.utsandiego.com/news/2012/aug/19/tp-military-voters-as-political-pawns/> 
about how the court would rule in this case and Ned Foley expressed 
greater skepticism <http://electionlawblog.org/?p=38672> of the Obama 
campaign's arguments here.  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?

The Sixth Circuit has proved itself to be bitterly divided in election 
law disputes in the past. The Voting Wars 
<http://www.amazon.com/Voting-Wars-Florida-Election-Meltdown/dp/0300182031/ref=sr_1_cc_2?s=aps&ie=UTF8&qid=1329286945&sr=1-2-catcorr>details 
the bitter dispute over a 2008 case, /Ohio Republican Party v. 
Brunner/.  The Republican-appointed judges all read a federal statute 
(the Help America Vote Act) broadly, going beyond the statutory text, 
and the Democratic judges read the statute narrowly and textually.  The 
flipping of usual jurisprudential opinions seems to have been driven by 
the judges' different perceptions about the prevalence of voter fraud 
and voter suppression.

ORP v. Brunnerended when the Supreme Court sided with Democratic 
Secretary of State and that the Republican Party likely did not have 
standing to sue for a supposed violation of HAVA. This case too could 
end up before the Supreme Court.

This could get very ugly very quickly.  This is certainly not the last 
word, unless SOS Husted chooses not to appeal.

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    "Voter ID cases: Invisible voter versus imaginary fraud"
    <http://electionlawblog.org/?p=39460>

Posted on August 31, 2012 8:28 am <http://electionlawblog.org/?p=39460> 
by Rick Hasen <http://electionlawblog.org/?author=3>

Must-read Nate Persily column 
<http://www.cnn.com/2012/08/31/opinion/persily-voter-id-laws/index.html> 
for CNN.

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://law.uci.edu/faculty/page1_r_hasen.html
http://electionlawblog.org
Now available: The Voting Wars: http://amzn.to/y22ZTv

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