Barry M. Horstman reports:
A federal appeals court Friday handed the Obama campaign a major legal victory, ruling that Ohioans may cast early in-person absentee ballots during the final three days before the Nov. 6 election.
Upholding a late August decision by U.S. District Judge Peter Economus, the U.S. 6th Circuit Court of Appeals in Cincinnati authorized early voting on the final Saturday through Monday before Nov. 6.
A major factor in its unanimous decision, the court said, was evidence suggesting that early voting restrictions would be especially harmful to women, minorities, older voters and those with lower incomes and less education.
Friday’s decision, however, may not be the final word in the nationally-watched case. Late Friday, Ohio Secretary of State Jon Husted’s office released a statement saying that he intends to spend the next few days deciding “how to proceed legally” – a course of action that conceivably could see an appeal to the U.S. Supreme Court.
In the 2008 presidential election, turnout was heavy in the three-day period at issue in the case, particularly among Democrats. Despite the popularity of that option – or, from Democrats’ viewpoint, because of it – the Republican-controlled state legislature this year eliminated early voting during that final pre-election weekend, except for military members and Americans overseas.
That prompted a lawsuit by the Obama campaign, the Democratic National Committee and the state Democratic Party. In his decision, Economus sided with them in overturning the state’s “arbitrary” early voting restrictions, saying “the public interest is served” by allowing all Ohioans to vote on the Saturday, Sunday and Monday before Election Day.
Ohio Attorney General Mike DeWine appealed, but the 6th Circuit judges agreed with Economus’ ruling.
“While we readily acknowledge the need to provide military voters more time to vote, we see no corresponding justification for giving others less time,” the appeals court wrote.
Two of the three judges who issued Friday’s decision were appointed by Republican presidents, while one was named to the bench by Democratic President Bill Clinton. One of the GOP appointees, Helene White, dissented in part from the decision, saying she would have favored a different remedy.
Democrats were delighted with the court’s ruling.
“Today‘s ruling speaks to the issue of fairness and equity,” said state Sen. Eric Kearney, D-North Avondale. “Voters should be given as many opportunities to exercise their right to vote as possible.”
State Rep. Alicia Reece, D-Bond Hill, called the decision “a major win for the voters of Ohio.’
“I would hope the early voting hours will be established and announced quickly to cut down on confusion,” Reece said. “The entire country is looking at Ohio, and we must get it right.”
Husted, who previously had ordered that in-person voting end at 6 p.m. Friday before the election, argued that allowing voting to continue during the final three days before Election Day would be a burden for county election boards. The boards need those days to prepare for the Tuesday election without having to simultaneously handle hundreds of last-minute voters, Husted said,
The appeals court, though, said the state had not shown “how this election will be more onerous than the numerous other elections” since early voting was put in place in Ohio in 2005, largely in response to long lines at the polls and other problems in the 2004 presidential race.
By permitting more people to vote before Election Day, early voting may even reduce “the strain caused by all voters casting their ballots on a single day,” the court said.
“With no evidence that local boards of elections have struggled to cope with early voting in the past,” restrictions limiting early voting options for non-military voters cannot be justified, the court concluded.
Voting statistics show that women, older individuals and those with lower incomes and less education are most likely to cast early ballots, the court said. Data from Cuyahoga (Cleveland) and Franklin (Columbus) counties also indicates that early voters were disproportionately African-American.
“Because early voters tend to be members of demographic groups that may be unable to vote on Election Day or during the workday at local boards of elections because of work schedules, their ability to cast a ballot is impeded by Ohio’s statutory scheme,” the court said.
That is a more compelling legal issue than a brief increased workload for election board officials, the judges added.
Husted said he will spend the weekend reviewing his options “as we determine the best course of action moving forward.”