Breaking: Federal Court Orders Ohio to Restore Weekend of Early Voting

Federal district court judge Peter Economus just issued this order in Obama for America v. Husted. (I covered the earlier machinations in this case before the 2012 elections, and wrote about the case extensively in The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 George Washington Law Review 1865 (2013).)

The background is complicated but here are the basics at this stage.  Following all the fights over early voting in 2012, the Ohio legislature passed a new set of more restrictive voting laws for 2014 and beyond, including cutting back on early voting the weekend before the election (leading to a separate Voting Rights Act section 2 lawsuit claiming this discriminates against African-American voters in part because of the “Souls to the Polls” voting done on the Sunday before election day).  However, when Ohio did its cutback on early voting this time, it did not repeal the earlier law (which was the focus of the earlier dispute in this case) giving overseas and military voters (UOCAVA voters) who happen to be in Ohio just before Election Day the option to vote on those three days before election day.

The judge concluded that because Ohio continues to treat UOCAVA voters better than other voters, the same equal protection problem exists. As to the appropriate remedy, the court wrote:

Having determined that the Plaintiffs have succeeded on the merits of their claims, the Court next considers whether a grant of permanent injunctive relief is appropriate and the scope of that relief. The Defendants do not oppose the grant of such relief and concede that any injunction issued by the Court must require equal in-person early voting hours for all eligible voters. The Plaintiffs ask the Court to require Husted to set in-person early voting hours for the final three days before all future elections consistent with Directive 2012-50, which established hours for the 2012 presidential election. On the other hand, the Defendants assert that the voting schedule established by Directive 2014-06 remedies the constitutional infirmities of the Ohio Revised Code because it treats all voters equally. In the Defendants’ view, Directive 2014-06 thus serves as a model for the relief appropriate in this case. The Court, however, disagrees.
As noted by the Plaintiffs, 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 supra, 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.
Further, Directive 2014-06 does not expressly mention UOCAVA voters. The Court is concerned by this fact because Directive 2012-35 also did not expressly do so, and Husted took the position thatthat directive should be interpreted to allow individual county Boards of Election discretion as to when to set UOCAVA in-person early voting hours on the three days preceding the 2012 presidential election. Finally, while Directive 2014-06 may adopt an election schedule approved by the Ohio Association of Election Officials (“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.
Accordingly, as specified in the Judgment and Permanent Injunction issued herewith, 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 and the Judgment and Permanent Injunction.

UPDATE: Statement from Ohio SOS Husted:

Statement From Secretary of State Jon Husted

Columbus – Regarding today’s federal court decision in Obama v. Husted, all of the following may be attributed to Ohio Secretary of State Jon Husted.

“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.”

Last time around SOS Husted got in trouble for not following this judge’s ruling.

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