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Ohio Ruling Sets Stage for Supreme Court Decision on Early Voting

Ohio Secretary of State Jon Husted (R) said today he will ask the U.S. Supreme Court to decide whether state officials or federal courts should decide the particulars of early voting rules in the swing state.

A federal appellate court on Friday blocked changes made to Ohio’s early voting rules that allowed some military voters to cast ballots in the three days before Election Day but did not grant the same privilege to nonmilitary voters.

Though legal experts agreed that Husted had the authority to set uniform election standards so long as they do not differentiate between military and nonmilitary voters, he said the federal courts should not meddle with how states run their elections.

“This is an unprecedented intrusion by the federal courts into how states run elections and because of its impact on all 50 states as to who and how elections will be run in America we are asking the Supreme Court to step in and allow Ohioans to run Ohio elections,” Husted said in a prepared statement.

Early voting is popular in the Buckeye State, where both President Barack Obama and Republican presidential nominee Mitt Romney are campaigning heavily. In 2008, about 1.7 million Ohioans — more than 20 percent of the state’s registered voters — cast their ballots before Election Day. In 2010, polls showed that nearly a third of early voters cast their ballots within one week of Election Day, according to the appellate court ruling.

Friday’s opinion by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit is the latest legal tussle over changes to Ohio’s early voting rules.

The dispute began when Gov. John Kasich (R) last summer signed a measured passed by the Republican-controlled Ohio Legislature that ended early voting for all voters during the three days before Election Day. A series of legislative maneuvers to amend the law, including a referendum to repeal the initial measure, followed. Eventually, Ohio voters were left with conflicting statutes that ended the early voting period on the Friday before Election Day but also said that military voters could continue voting until Nov. 6.

“To make a long story short, the Legislature made a real mess of our early voting law,” said Daniel Tokaji, a law professor at Ohio State University.

To allay the confusion, Husted, as the state’s chief election official, interpreted Ohio law as setting an absolute deadline of 6 p.m. Friday for nonmilitary voters, but he said county election officials could decide whether their polling places would remain open over the weekend to accept in-person ballots from military and overseas voters.

The Obama for America campaign in July sued the state, arguing that treating military and nonmilitary voters differently violated the Equal Protection Clause of the Constitution. A federal trial court agreed with that argument and in August stopped the changes in Ohio’s early voting window from taking effect.

Ohio Attorney General Mike DeWine (R) and Husted asked the Sixth Circuit to reconsider the lower court’s decision to halt changes to the state’s early voting rules. They argued that Ohio’s law did not treat “similarly situated” individuals differently and that the Constitution does not prevent a state government from applying “different rules to those in demonstrably different circumstances.” Even if the law did, the state argued, the way the lower court chose to remedy the situation was overbroad.

“It would have sweeping ramifications for every State in this judicial circuit if the decision … is sustained,” the state said in a court filing.

The appellate court did not agree with DeWine and Husted’s argument that the lower court ruling was overbroad because it mandated early voting hours during the three-day period before Election Day. The three-judge panel said the new rules were unconstitutional not because they stopped early voting but because they differentiated between military and nonmilitary voters. County boards could still make their own decisions regarding early voting during the disputed period.

“What the [judges] are saying is that we, the federal judiciary, aren’t insisting that you have these three days of early voting everywhere; we’re just insisting that you treat the military and nonmilitary voters the same. So if under Ohio law every county gets to decide what to do, they still get to decide as long as they treat military and nonmilitary voters the same,” said Edward Foley, an election law expert at Ohio State University.

Husted characterized the ruling as one that would create confusion as Ohio’s 88 counties establish their own rules leading up to the elections.

“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 … the last thing I want to see is a non-uniform system where voters will be treated differently in all 88 counties,” Husted’s statement said.

Legal experts dismissed the idea that Husted would need to lodge an appeal with the Supreme Court to ensure uniform early voting rules.

“He could insist on a statewide standard if he wants to,” Foley said.

“To the extent that there is any differential treatment between counties, Secretary Husted has no one to blame but himself for that and he has the power to fix it,” Tokaji said.

Husted acknowledged in his statement that “should the state not be successful upon appeal” he will begin consulting with all 88 counties to craft a directive to set hours for early voting.

A spokesman for Husted’s office said that “at the core,” the appeal is about “whether a state is going to run its elections or a federal court is going to do it.”

“Whatever the outcome is, voting hours will be uniform statewide” before Election Day, spokesman Matt McClellan said.

The U.S. Supreme Court could decide to reverse the appellate court’s ruling and allow the new rules to take effect before the 2012 elections. Justice Elena Kagan considers Sixth Circuit requests for emergency stays. Legal experts told Roll Call that, in high-profile cases, her practice is to refer those requests to the full court.

Foley said he was “confident” the court would rule on the stay application before Election Day.

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