Published October 05, 2012
COLUMBUS, Ohio – A federal appeals court on Friday reinstated in-person early voting in the battleground of Ohio on the final three days before the Nov. 6 election, handing a victory to President Barack Obama's campaign.
But local boards of elections would have the discretion to decide whether to allow voters to cast an early ballot on the weekend and Monday before Election Day — just as they could in 2008.
The ruling by the three-judge panel of the 6th U.S. Court of Appeals in Cincinnati came in a case targeting a state law that ends early voting for most residents on the Friday evening before a Tuesday election. The law makes an exception for military personnel and Ohio voters living overseas.
Obama's campaign and Democrats sued Ohio's Secretary of State Jon Husted and Attorney General Mike DeWine, both Republicans, over the legality of the law. They argued that everyone should have a chance to vote on those days.
Husted said Friday evening that his office was still reviewing the 6th Circuit's decision.
"On Monday, we will make a determination on how to proceed legally and provide administrative guidance to Ohio's boards of elections," his office said in a statement.
Ohio is among 34 states, plus the District of Columbia, where people can vote early without giving any reason. About 30 percent of the swing state's total vote — or roughly 1.7 million ballots — came in ahead of Election Day in 2008. Crucial to Obama's win that year was early voting in Ohio, North Carolina and Florida.
Obama won Ohio in the last presidential election, but Republican rival Mitt Romney is making a strong play for it. No GOP candidate has won the White House without Ohio in his column.
Obama's campaign praised the Ohio ruling in a statement Friday.
"As a result of this decision, every voter, including military, veterans, and overseas voters alongside all Ohioans, will have the same opportunity to vote early through the weekend and Monday before the election," said Bob Bauer, general counsel for Obama for America.
In the same week as the Ohio decision, a judge ruled Tuesday that Pennsylvania voters won't have to show photo identification to cast ballots on Election Day, a move that could help Obama.
The Democrats who sued in Ohio said a series of legislative changes by state lawmakers had arbitrarily eliminated the opportunity for most Ohio residents to vote in person on the three final days before the election, while giving military or overseas voters the chance to do so. They estimated in their lawsuit that 93,000 people voted during the final three-day window before the 2008 election.
Attorneys for the state have said many laws already grant military personnel special voting accommodations, such as requirements for states to send them absentee ballots 45 days before the election. And they contend local boards also need those three days to prepare for the election.
U.S. District Judge Peter Economus in Columbus had ruled that voters' right to cast ballots in person on those three final days outweighs the state's reasons for limiting that opportunity. The judge issued a preliminary injunction on Aug. 31, concluding that the state's law was unconstitutional in changing the in-person early voting deadline and that the state was wrongly valuing certain votes above others.
The appeals court affirmed the lower court's ruling on Friday.
"While we readily acknowledge the need to provide military voters more time to vote, we see no corresponding justification for giving others less time," Judge Eric L. Clay wrote in the opinion.
Economus had said in his ruling that he expected Husted to direct all county elections boards to maintain a specific, consistent schedule on those final three days.
But the appeals court said it didn't interpret the judge's order as mandating early voting hours during the final days.
While the state can't prevent nonmilitary voters from participating in early voting, Clay wrote, "the State is not affirmatively required to order the boards to be open for early voting."
Clay said local boards of elections would have the discretion to allow all Ohio voters to vote during Saturday, Nov. 3; Sunday, Nov. 4; and Monday, Nov. 5.
At least two elections boards have already set their own hours on disputed days.
Jefferson County in eastern Ohio and Wayne County in the northeast have voted to establish their own times ahead of the ruling from the appeals court. And elections board members in Summit County, where Akron is the county seat, also voted on early voting hours during the final days. But it was unclear if that vote counted because of questions over whether they had a quorum.