Supreme Court Declines to Stop Early Voting in Ohio

Posted October 16, 2012 at 12:31pm

Updated: 8:42 p.m.

The U.S. Supreme Court today declined to stop Ohioans from voting during the three days leading up to Election Day.

Ohio Secretary of State Jon Husted (R) had asked the high court to intervene after a federal appellate court blocked changes made to the state’s early voting rules that would allow only military and overseas voters to cast ballots during the three-day window.

The case was one of two election-related legal challenges coming out of the Buckeye State that remained unsettled just weeks before the November elections. In the second, the same federal appeals court that decided the early voting case ordered election officials to count ballots that are cast in the wrong precinct due to poll-worker error. Husted’s office has not said whether it will ask the Supreme Court to also weigh in on that case.

There is a great deal at stake in Ohio for President Barack Obama and Republican presidential nominee Mitt Romney. Both have campaigned heavily in the perennial battleground state, hoping that a strong presence there will capture Ohio’s 18 electoral votes. 

Early voting is already under way. In 2008, about 1.7 million Ohioans — more than 20 percent of the state’s registered voters — took advantage of the option. In 2010, polls showed that almost a third of early voters cast their ballots within one week of Election Day, according to the appellate court ruling.

The dispute over Ohio’s early voting laws began when the Obama for America campaign sued the state in July. A series of legislative tweaks to the state’s early voting laws had left conflicting statutes that ended voting the Friday before Election Day but also said military voters could continue to cast ballots. Husted tried to resolve the conflict by setting an absolute deadline of 6 p.m. Friday, Nov. 2, for nonmilitary voters but gave county election officials the option of deciding whether to keep their polling places open over the weekend to accept military and overseas ballots.

The U.S. Court of Appeals for the 6th Circuit sided with the Obama campaign, ruling that the state could not differentiate between military and nonmilitary voters at the polls. If the precincts remained open for military and overseas voters, it must accept ballots from everyone, the court said.

Husted then asked the Supreme Court to grant an emergency stay so the state could implement its plan before the November elections. Husted said at the time of the appeal that states, not federal courts, should set election procedures. Reverting to a county-based system that gave election officials the discretion to set hours would lead to confusion, Husted said.

“The last thing I want to see is a nonuniform system where voters will be treated differently in all 88 counties,” Husted said.

Election law experts told Roll Call that Husted had the power to set uniform voting hours across the state as long as they did not differentiate between military and nonmilitary voters.

Shortly after the Supreme Court declined to intervene, Husted issued a directive that instructed the state’s 88 counties to be open 8 a.m. to 2 p.m. Saturday, 1 p.m. to 5 p.m. Sunday and 8 a.m. to 2 p.m. the Monday before Election Day.