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Rick Hasen says the federal district court decision today restoring Ohio's early voting in the three days right before the November election may not survive an appeal to the U.S. Sixth Circuit Court of Appeals. For now, however, there is a preliminary injunction in Obama for America v. Husted forbidding the state from eliminating those three days. The meat of the decision:
IT IS FURTHER ORDERED that in-person early voting IS RESTORED on the three days immediately preceding Election Day for all eligible Ohio voters. And specifically, for the purposes of the 2012 General Election, this Order restores in-person early voting to all eligible Ohio voters on Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012. This Court anticipates that Defendant Secretary of State will direct all Ohio elections boards to maintain a specific, consistent schedule on those three days, in keeping with his earlier directive that only by doing so can he ensure that Ohio’s election process is “uniform, accessible for all, fair, and secure.”
In 2004, long queues at the polling stations in urban centers may have turned away as many as 174,000 voters, according to one report. Consequently, the state established 35 days of early voting for the 2008 election. It worked. Turnout was substantially increased. Especially on the three early-voting days right before the election and particularly on that Sunday. Tens of thousands of voters turned out that day, many of them African Americans on their way home from church.

Ohio Republicans hated the results, which included Barack Obama's win and the Democratic capture of two additional congressional seats from the GOP. Consequently, the GOP-dominated legislature decided to cut back on the number of days available for early voting. The weekend and Monday before the election were their chief target for the ax. The only exceptions were Ohioans covered by the Uniformed and Overseas Citizens Absentee Voting Act.

One problem, the court ruled, was that the details of the change don't guarantee that UOCAVA citizens would actually get a chance to vote. Hasen notes that the court's ruling stated that removing early voting privileges for all voters except (possibly) the UOCAVA voters violated the Constitution's equal protection clause:

From the onset of this litigation, Defendants have pointed to special concerns for the military—concerns all parties share—and the military’s need to maintain additional access to in-person early voting. But for UOCAVA voters, what is left is, potentially, one day: Monday. Defendants have presented no evidence to sustain the inference that in-person early voting on Monday—one day—will burden county boards of elections to the extent that the injury to Plaintiffs is justified. Moreover, Defendants undercut the virtue of their support of military voters by failing to protect any significant measure of UOCAVA voting. Unless a serviceperson is “suddenly deployed” at exactly the right time—enabling in-person voting on Monday—he or she will likely be unable to vote, depending on the local elections board’s “discretion.” That the State cannot justify its interest in foreclosing Ohio voters for one day emphasizes the arbitrary nature of its action.

Finally, this Court notes that restoring in-person early voting to all Ohio voters through the Monday before Election Day does not deprive UOCAVA voters from early voting. Instead, and more importantly, it places all Ohio voters on equal standing.

If the case is appealed, Hasen believes that the bitter division over voting issues in the Sixth Circuit Court where it would be heard makes predicting the probable outcome no  simple matter:
There are reasonable arguments over whether the Court picked the right level of scrutiny to apply, and whether the judge applied the scrutiny he said he was applying. Further, there is a major debate about what Bush v. Gore requires, and the Sixth Circuit may have to go en banc to resolve the meaning of the case: does it in fact require (1) equal treatment of all voters in terms of opportunities to vote; and (2) a kind of “non-retrogression” principle, whereby the state may not remove a method of easier voting once it has used it in a past election?
For the moment, however, Ohioans get to chalk up a victory in a week that also saw victories for voters in Texas and Florida.

Originally posted to Meteor Blades on Fri Aug 31, 2012 at 10:11 AM PDT.

Also republished by Daily Kos.

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