Short diary (at least for the moment). You may recall that John Husted chose to ignore the plain meaning of the court's reinstatement of early voting in Ohio.
Today the Obama for America campaign fired back, in pretty plain language.
Via Moritz Law Election Law Blog: PDF
In its August 31, 2012 decision, this Court ordered “that in-person early voting IS RESTORED on the three days immediately preceding Election Day for all eligible Ohio voters”, specifically listing Saturday, November 3, 2012, Sunday, November 4, 2012, and Monday, November 5, 2012 as days that are to be restored. The Court further anticipated that Defendant Husted would direct all Ohio elections boards to maintain a “specific, consistent schedule on those three days.”
Notwithstanding the Court's injunction, on September 4, 2012, Defendant Husted issued a directive that provides that no hours will be established until after a decision on the Defendants' appeal of the Court's order, because “the constitutionality of the statute setting in- person absentee voting hours is still subject to court review and it would [ ] confuse voters to set hours now that the court may change later.” The directive further “strictly prohibits county boards of elections from determining hours for the Friday, Saturday, Sunday, or Monday before the election.”
Having sought no stay, either in this Court or the Court of Appeals, the State appears to believe it can issue one on its own authority. Nowhere in this Directive does the Secretary identify the legal basis for this extraordinary action, much less how it accords with the well- established principle that “[i]t is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected. . . .” United States v. United Mine Workers of America, 330 U.S. 258, 294 (1947). See also North American Coal Corp. v. Local Union 2262, United Mine Workers of America, 497 F.2d 459 (6th Cir. 1974) (injunction of court, even if invalid, still must be obeyed until and unless overturned on appeal); Blackard v. Memphis Area Medical Center for Women, Inc., 262 F.3d 568 (6th Cir. 2001) (parties bound by an injunction are obligated to abide by that injunction when it is in effect, even if it is later determined to be erroneous).
Plaintiffs respectfully request that the Court act as appropriate and necessary to enforce its Order issued August 31, 2012.
It isn't just the Obama campaign that is upset over Ohio's decision to ignore a federal court order instructing them to reinstate early voting during the three day period before the November election. The federal judge who issued the decision seems pretty perturbed too, ordering Ohio Secretary of State Jon Husted to show up to a Sept. 13 hearing in-person.Ouch!
"This Court hereby ORDERS that Defendant Secretary of State Jon Husted personally attend the hearing," U.S. District Judge Peter Economus wrote in an order Wednesday afternoon.
(Crossing my fingers that the edit and Update takes hold this time!)
UPDATE: OFA has filed a motion which would more directly require SOS Husted to set early voting hours. OFA did not raise the issue of contempt, apparently because the trial court’s initial order did not directly state that Husted must set these hours.This certainly makes it sound as if SoS Husted is less than likely to suffer anything worse than a very public embarrassment.