Early Voting Order: The Only Way to Get Things Done in Ohio?

[Image courtesy of cleveland.com]

Yesterday, federal district judge Peter Economus issued an opinion and order in the ongoing dispute about early voting between the state of Ohio and Obama for America. In 2012, Economus issued a temporary injunction ordering the state to re-open early voting the weekend before Election Day, saying it was necessary to prevent an equal protection violation given the ability of military and overseas voters to cast early ballots up until the day before Election Day.

After the parties were unable to reach an agreement on early voting – and Secretary of State Jon Husted issued a directive (2014-06) establishing uniform early voting hours for 2014 that included only the Saturday before Election Day – the federal court issued a permanent injunction requiring the state to provide pre-Election Day weekend early voting for all future elections:

Directive 2014-06 is inconsistent with the Preliminary Injunction in that it does not allow for in-person early voting on the final two days before the 2014 general election. The loss of the three final days of early voting for non-UOCAVA voters goes to the heart of amended § 3509.03’s constitutional deficiencies as determined by the Court in both 2012 and today. As stated [above], the Ohio Revised Code still contains differing and inconsistent in-person early voting deadlines for UOCAVA and non-UOCAVA voters. Accordingly, Directive 2014-06 cannot serve as a remedy to the statutory problems, especially given that Directive 2014-06 only applies to the 2014 elections and there is no guarantee that Husted or another Secretary of State would adopt similar hours for future elections. As also noted by the Plaintiffs, Directive 2014-06 is facially inconsistent with § 3511.10’s in-person early voting deadline for UOCAVA voters of the close of business on the Monday before an election.

Accordingly… the Court will require Secretary of State Husted to set uniform and suitable in-person early voting hours for all eligible voters for the three days preceding all future elections. However, the Court declines to mandate specific voting hours as requested by the Plaintiffs in that historically voter turnout is lower in a non-presidential election year. Even with this fact in mind, Husted must set in-person early voting hours that are consistent with this Opinion and Order. (pp 7-8)

In making the ruling, Economus noted that Secretary Husted had based his order on the bipartisan recommendations of the Ohio Association of Election Officials (OAEO), but found that insufficient to overcome his constitutional concerns: “while Directive 2014-06 may adopt an election schedule approved by [OAEO] the fact that the OAEO is a non-partisan body is not relevant to the constitutional deficiencies of § 3509.03 nor to the appropriate remedy in this case.” (p.7)

Husted quickly issued a statement acknowledging the order and promising to comply:

“I am pleased that the federal court has affirmed what I have long advocated — that all voters, no matter where they live, should have the same opportunity to vote. Thankfully, uniformity and equality won the day.

“When it comes to voting days and hours, I have urged uniformity, bipartisanship and certainty – so that all Ohioans can know the rules for voting well in advance of the election.

“Absent legislative action to set hours, I had adopted by directive the only bipartisan schedule that has been offered. Now that the court has ruled, I will follow the decision.”

You can bet that the specifics of that next directive will be scrutinized – and may even prompt further judicial review.

One aspect of this decision that I find interesting is the degree to which the Ohio Legislature has been sidelined in the debate over early voting. In the wake of yesterday’s order, almost everyone got what they wanted; plaintiffs got expanded early voting and the SoS got a commitment to uniformity, but the Legislature was essentially overruled on the differential treatment of overseas and military voters. Given the current state of election legislation in Ohio, I have to wonder if plaintiffs might not turn to the courts to force other changes – most notably, establishment of online voter registration for all current and prospective voters and not just those who wish to update their existing records. To date, the Legislature has refused to answer the SoS’ call to enact legislation to do just that – leading me to wonder if the conditions are right for a plaintiff to seek (and a judge to order) such a change.

This is a big decision for Ohio – and not just on early voting. Stay tuned.