Ohio Secretary of State Jon Husted (R) said today he will ask the U.S. Supreme Court to decide whether state officials or federal courts should decide the particulars of early voting rules in the swing state.
A federal appellate court on Friday blocked changes made to Ohio’s early voting rules that allowed some military voters to cast ballots in the three days before Election Day but did not grant the same privilege to nonmilitary voters.
Though legal experts agreed that Husted had the authority to set uniform election standards so long as they do not differentiate between military and nonmilitary voters, he said the federal courts should not meddle with how states run their elections.
“This is an unprecedented intrusion by the federal courts into how states run elections and because of its impact on all 50 states as to who and how elections will be run in America we are asking the Supreme Court to step in and allow Ohioans to run Ohio elections,” Husted said in a prepared statement.
Early voting is popular in the Buckeye State, where both President Barack Obama and Republican presidential nominee Mitt Romney are campaigning heavily. In 2008, about 1.7 million Ohioans — more than 20 percent of the state’s registered voters — cast their ballots before Election Day. In 2010, polls showed that nearly a third of early voters cast their ballots within one week of Election Day, according to the appellate court ruling.
Friday’s opinion by a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit is the latest legal tussle over changes to Ohio’s early voting rules.
The dispute began when Gov. John Kasich (R) last summer signed a measured passed by the Republican-controlled Ohio Legislature that ended early voting for all voters during the three days before Election Day. A series of legislative maneuvers to amend the law, including a referendum to repeal the initial measure, followed. Eventually, Ohio voters were left with conflicting statutes that ended the early voting period on the Friday before Election Day but also said that military voters could continue voting until Nov. 6.
“To make a long story short, the Legislature made a real mess of our early voting law,” said Daniel Tokaji, a law professor at Ohio State University.
To allay the confusion, Husted, as the state’s chief election official, interpreted Ohio law as setting an absolute deadline of 6 p.m. Friday for nonmilitary voters, but he said county election officials could decide whether their polling places would remain open over the weekend to accept in-person ballots from military and overseas voters.
The Obama for America campaign in July sued the state, arguing that treating military and nonmilitary voters differently violated the Equal Protection Clause of the Constitution. A federal trial court agreed with that argument and in August stopped the changes in Ohio’s early voting window from taking effect.
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.
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