Returning to the sound principle that all voters must be treated the same, a federal judge this week permanently restored in-person absentee balloting for all Ohio voters in the three days before Election Day. In doing so, Judge Peter Economus of the U.S. District Court for the Northern District of Ohio found that state lawmakers failed to resolve the issues first raised by the Obama campaign before the 2012 election, when it successfully won a temporary order restoring the final days of in-person early voting.
Although the legislative history is complicated, Economus’ reasoning was straightforward, firmly grounded in the Equal Protection Clause of the 14th Amendment. Recall that in 2005, responding to long lines in the 2004 presidential election, Ohio lawmakers enacted in-person absentee voting through the Monday before Election Day. Then, in 2011, the Republican-controlled legislature rolled that back to 6 p.m. Friday for most voters. It left just military and overseas voters with the option of early in-person absentee voting up until Election Day.
That resulted in the Obama campaign and the Democratic Party heading to court, fueled, in part, by the outrage of African-American churches that organize “Souls to the Polls” events on the Sunday before Election Day. Economus ruled that the state failed to establish sufficient reason for the differing treatment. He cited the U.S. Supreme Court ruling in Bush v. Gore from the 2000 presidential race that “the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”
Economus ordered Jon Husted to set uniform hours for early voting on the three days in question. The Republican secretary of state did so through a directive. This year, after the legislature refused his request to act, Husted ended in-person absentee voting on the Sunday and Monday before Election Day. The judge ruled this directive neither resolved the disparate treatment of in-person absentee voters still in state law nor offered a permanent plan.
Even without the court order (and with a recent narrowing of the early voting period on the front end), Ohio still has generous access to the ballot compared to other states. The voting pattern also is worth noting. The 2012 presidential election in Summit County, for example, found the highest number of early in-person voters (1,671) on the Friday before Election Day. On Sunday, the number dropped to 1,193.
The larger problem is that the legislature has not addressed election law in a comprehensive, bipartisan fashion. Instead, it has tinkered. In the case of early voting, that has left the state vulnerable to legal challenges, of which Democrats are happy to take advantage, a lesson legislators should take to heart as they look forward.