A federal judge ruled Friday that Ohio’s uniform voting law that gives special privileges to military voters is unconstitutional. Judge Peter Economus, a retired judge brought in to hear overload cases in the Southern District of Ohio, Columbus Division, also ruled by fiat to impose statewide weekend voting hours on the entire state. Ironically, Economus relied heavily on Bush v. Gore (2000), citing it seven times in his ruling. In particular:
“[T]he State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another” Bush v. Gore, 531 U.S. 98, 104-05 (2000).
The Obama for America campaign, the DNC, and the Ohio Democratic Party had sued Ohio Secretary of State Jon Husted in an attempt to overturn several Ohio election reform laws and directives which attempted to assure uniform voting days and times across the state, with some expanded privileges for military voters in accordance with the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Although Ohio has extremely generous no-fault absentee voting, Husted had set the deadline for in-person absentee voting at 6:00 p.m. the Friday before the election and eliminated weekend voting. Prior to his directive, access to the polls varied widely from county to county. Noted in the ruling:
In 2008, six of Ohio’s 88 counties chose not to offer any in-person absentee voting on the Saturday prior to Election Day, nearly all chose not to do so on that Sunday, and all were open during their regular weekday business hours on that Monday … In 2010, when fewer voters were expected, fourteen counties chose not to offer any in-person absentee voting on that Saturday, nearly all chose not to do so on that Sunday, and all were open on that Monday.
Read all the court docs here.
Judge Economus acknowledged that Ohio voters already have liberal voting privileges, and said: “The issue here is not the right to absentee voting, which, as the Supreme Court has already clarified, is not a ‘fundamental right.’”
However, the judge sided with the Obama campaign’s argument that military voters cannot be treated differently under the law. Obama had argued that Ohio’s rules giving members of the military extra days and hours to vote constituted “arbitrary and inequitable treatment of similarly situated Ohio voters.”
The judge agreed:
This Court stresses that where the State has authorized in-person early voting through the Monday before Election Day for all voters, “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another … Here, that is precisely what the State has done …
This is a serious, potentially precedent-setting standard that could have a chilling effect on the right to vote for members of the military.
Fifteen military groups filed a motion to intervene in the case and other courts have ruled that members of the military are uniquely situated and must be given every opportunity (even extra opportunities) to vote. Judge Economus ruled that the brave men and women fighting for our freedom are just like every other member of society, entitled to no greater privileges than Obama’s ACORN cronies.
The judge also said that minority voters would be disenfranchised, feeding the frenzied charges of racism by some OH Democrats:
Plaintiffs submit statistical studies to support their assertion that low-income and minority voters are disproportionately affected by the elimination of those voting days. Therefore, the injury to Plaintiffs is significant and weighs heavily in their favor.
The judge concluded that Ohio’s uniform voting rule:
… is unconstitutional … and … violates the Equal Protection Clause of the United States Constitution.
He blocked it from being enforced, and went further:
IT IS FURTHER ORDERED that in-person early voting IS RESTORED on the three days immediately preceding Election Day for all eligible Ohio voters … 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.”
The problem with this order is that Ohio never had “uniform” statewide voting the weekend before the election (see above). He is ordering SOS Husted to restore something that never existed. It is unclear whether the judge has ordered Husted to restore the law to what it was before Ohio began the voting reform efforts, or whether the judge is unilaterally writing a new law from the bench, imposing weekend voting hours on all of Ohio’s county Boards of Election.
Ohio is an important battleground state in the November election. The counties that offered voting the weekend before the election heavily favored President Obama and Democrats in the last election, and there is an incentive to both suppress the military vote and to increase the vote of urban and minority voters this election.
Husted’s ruling to level the playing field was important because it gave all voters in Ohio equal access to the polls. OH-16, redrawn in redistricting, is an example of how a single district can be affected by the disparate voting hours. Incumbents Jim Renacci (R-OH) and Betty Sutton (D-OH) are pitted against each other in a new district that includes rural Wayne County and parts of urban Cuyahoga County, with a heavy union presence. In past elections, SEIU and other groups have taken part in Cuyahoga County GOTV efforts (including free lunch buffets) to bus people to the polls the Sunday before the election. Wayne County has never offered Sunday hours for voting. Clearly, disparate hours within this congressional district favor the Democrat.
Ohio Attorney General Mike DeWine said he would file an appeal today. The Obama campaign ordered up some chaos, and now Ohio has a mess on its hands.