Will We See a Florida Recount Rematch in Ohio?

Could we see a repeat of the 2000 Florida recount mayhem in Ohio this year? Unfortunately, the stage is being set in such a way that a close election could be settled by lawyers and judges. Despite the efforts of Republicans to standardize the elections process, several issues remain unresolved, which could cause serious problems on Election Day and in the aftermath if the election is close enough for a recount.

One major pending issue is that the question of weekend voting for both military and non-military voters remains unresolved less than a month before Election Day. Last week, the U.S. Sixth Circuit Court of Appeals overruled the Ohio legislature in Obama for America v. Husted and ordered county boards of elections (BOE) to set their own dates and times for early absentee voting. The legislature had passed a series of laws (through a rather tangled process) that ended early voting at 6 p.m. the Friday before Election Day, creating uniform voting hours throughout the state.

The new Ohio law also gave members of the military extra time to vote due to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA). Although the final bill in the saga was signed into law in May, the Obama campaign waited until mid-July to file their lawsuit, setting the stage for this month’s eleventh-hour showdown. On Tuesday, Attorney General Mike DeWine appealed the decision to the U.S. Supreme Court.

There are several important issues being litigated in this case, which Ohio Sec. of State Jon Husted summarized in an advisory last week :

At stake is more than simply the days and hours for in-person absentee voting for this year’s general election: whether there is a fundamental right to vote by in-person absentee ballot, whether a State’s legislature can change its methods of elections administration once a particular method has been used at even one election, whether military voters can be given additional opportunities to vote under the law, and most strikingly, whether the administration of elections is primarily a task for states or federal judges. For these reasons, my office is appealing the matter to the U.S. Supreme Court.

On all four of these issues, the appeals court ruled in favor of the Obama campaign and against the Ohio legislature, the military, and the Ohio secretary of state.

The most fundamental issue is whether the state legislature can enact and enforce its own election laws. Judge Helene White, a Democrat who was originally nominated by President Clinton and then President Bush as part of a bipartisan compromise, dissented in part but then ran through a logical obstacle course to end up voting with the majority. She acknowledged that the new end date for early voting was the intent of the majority of the legislature and that “states are permitted broad discretion in devising the election scheme that fits best with the perceived needs of the state.” She acknowledged that the Supreme Court has ruled that “there is no abstract constitutional right to vote by absentee ballot.” She admitted that “it cannot be fairly said that there was evidence that a significant number of Ohio voters will be precluded from voting unless weekend and after-hours voting is restored.” She even confessed that “no case has held that voting has to be convenient.”

But why should any of those facts hinder a judge’s ability to legislate from the bench? White agreed with her fellow judges that the possibility of long lines on Election Day outweighed the will of the legislature:

Given the studies presented regarding the heavy use of in-person after-hours and weekend voting, and the legitimate concerns of Ohio’s largest counties and their voters regarding the smooth and efficient running of the 2012 presidential election, I conclude that defendants’ legitimate regulatory interests do not outweigh the burden on voters whose right to vote in the upcoming election would be burdened by the joint effect of the statute and the directive.