Ohio Attorney General Mike DeWine (R) and Husted asked the Sixth Circuit to reconsider the lower court’s decision to halt changes to the state’s early voting rules. They argued that Ohio’s law did not treat “similarly situated” individuals differently and that the Constitution does not prevent a state government from applying “different rules to those in demonstrably different circumstances.” Even if the law did, the state argued, the way the lower court chose to remedy the situation was overbroad.
“It would have sweeping ramifications for every State in this judicial circuit if the decision ... is sustained,” the state said in a court filing.
The appellate court did not agree with DeWine and Husted’s argument that the lower court ruling was overbroad because it mandated early voting hours during the three-day period before Election Day. The three-judge panel said the new rules were unconstitutional not because they stopped early voting but because they differentiated between military and nonmilitary voters. County boards could still make their own decisions regarding early voting during the disputed period.
“What the [judges] are saying is that we, the federal judiciary, aren’t insisting that you have these three days of early voting everywhere; we’re just insisting that you treat the military and nonmilitary voters the same. So if under Ohio law every county gets to decide what to do, they still get to decide as long as they treat military and nonmilitary voters the same,” said Edward Foley, an election law expert at Ohio State University.
Husted characterized the ruling as one that would create confusion as Ohio’s 88 counties establish their own rules leading up to the elections.
“That means that one county may close down voting for the final weekend while a neighboring county may remain open. How any court could consider this a remedy to an equal protection problem is stunning ... the last thing I want to see is a non-uniform system where voters will be treated differently in all 88 counties,” Husted’s statement said.
Legal experts dismissed the idea that Husted would need to lodge an appeal with the Supreme Court to ensure uniform early voting rules.
“He could insist on a statewide standard if he wants to,” Foley said.
“To the extent that there is any differential treatment between counties, Secretary Husted has no one to blame but himself for that and he has the power to fix it,” Tokaji said.
Husted acknowledged in his statement that “should the state not be successful upon appeal” he will begin consulting with all 88 counties to craft a directive to set hours for early voting.
A spokesman for Husted’s office said that “at the core,” the appeal is about “whether a state is going to run its elections or a federal court is going to do it.”
“Whatever the outcome is, voting hours will be uniform statewide” before Election Day, spokesman Matt McClellan said.
The U.S. Supreme Court could decide to reverse the appellate court’s ruling and allow the new rules to take effect before the 2012 elections. Justice Elena Kagan considers Sixth Circuit requests for emergency stays. Legal experts told Roll Call that, in high-profile cases, her practice is to refer those requests to the full court.