In Bush v. Gore, which settled the 2000 presidential election, the U.S. Supreme Court said it wasn’t setting a precedent. But saying so doesn’t make it so. Since the decision on Florida’s presidential ballots, discrepancies in the way votes are counted have become fodder for lawsuits.
As former Ohio secretary of state Ken Blackwell once quipped, the question following Bush v. Gore is whether election results are “within the margin of litigation.” In other words, in a close election, are the number of disputed ballots enough to decide the outcome?
If so, lawyer up.
President Barack Obama’s re-election campaign and the Democratic National Committee got an early start this week, filing their first legal action of the campaign, a lawsuit over a discrepancy in early, in-person absentee voting in Ohio, the result of a tangled series of Republican-backed legislative maneuvers that cut off early voting in the final three days before Election Day, except for military and overseas voters.
That category includes members of the Ohio National Guard and their spouses and dependents in Ohio, giving Democrats the opening to argue that there is no rational reason for distinguishing between, say, the spouse of a guard member in his or her home county and other voters.
Considering that more than 93,000 voters cast early, in-person absentee ballots in the three days before Election Day in 2008, that’s a distinction that could mean the difference in Ohio, which could decide the presidential election.
Republicans argue federal law governs military and overseas voters, giving them the right to vote early right up until Election Day. If that’s so, then why didn’t Republicans in the legislature keep the same timetable for everyone?
The answer is, they know that most of those 93,000 voters in 2008 voted for President Obama.
The lawsuit seeking to reinstate the final three days of early voting hardly exhausts the list of glitches in Ohio’s election machinery. These are, experts say, ticking time bombs that could turn Ohio into another Florida, ground zero in a legal dispute that decides who will be president.
The underlying issue is that Bush v. Gore created pressure toward equal treatment for all voters. In settling a dispute with Cuyahoga County over mailing out absentee ballot applications to all voters, Jon Husted, Ohio’s current secretary of state, agreed to pay for every county to send out absentee ballot applications to all voters. Unfortunately, he’s using that to explain why the cutoff of early, in-person absentee voting doesn’t matter.
Husted argues further that, should the Democrats win their lawsuit, some counties would have early voting right up until Election Day and some wouldn’t, creating an unfair situation. Then why not find a way to provide local election boards the resources so all could be open for early voting just as interest peaks?
Fights are also brewing over other aspect of early voting. In Summit County, the board is deadlocked over whether to have early voting at the board’s offices or at other locations with more space and parking. Husted will break the tie. (Most counties do not offer off-site early voting.)
In Cuyahoga County, the secretary of state, recently sided with fellow Republicans on the board of elections to end early voting on weekends and after-hours. Husted ruled that all boards should follow regular business hours when it comes to early voting.
Again, why not opt for a uniform and expanded system of voting instead of a uniform and restricted system? Republicans point to money, but that means steadily rolling back options developed in the wake of 2004’s long lines at polling places across the state, lines that triggered bipartisan concerns. The financial argument also raises questions about what’s the most important priority in running an election: eliminating long lines and the potential for disenfranchising voters, or saving money?
The final ticking time bomb is a federal lawsuit being pursued by the Service Employees International Union and other unions to make sure that all provisional ballots cast in the right polling location but wrong precinct are counted. In 2008, the suit notes, more than 40,000 provisional ballots were rejected in Ohio, where statewide elections have been decided by as few as 1,234 votes.
Under Ohio law, a provisional ballot cast in the wrong precinct isn’t counted. But a recent decision by U.S. District Judge Algenon Marbley rejected Husted’s challenge of a settlement reached in a separate lawsuit, one dealing with homeless voters, in which Husted’s predecessor, Jennifer Brunner, agreed that wrong precinct votes (and those with other minor errors) should be counted if the problems were due to pollworker error. That creates another yet discrepancy, between homeless voters and others casting ballots provisionally, and more fertile ground from which lawsuits can spring.
Hoffman is a Beacon Journal editorial writer. He can be reached at 330-996-3740 or emailed at email@example.com.