The U.S. Court of Appeals in Cincinnati yesterday rejected a bid by Ohio’s secretary of state and attorney general, both Republicans, to overturn a lower-court order that blocked a law ending pre-election voting three days earlier for civilians than for service-members and overseas citizens.
“There is no relevant distinction between the two groups,” the three-judge panel said. “The state argues that military voters need extra early voting time because they could be suddenly deployed. But any voter could be suddenly called away and prevented from voting on Election Day.”
Ohio controls 18 of the 270 Electoral College votes Obama or his challenger, Mitt Romney, needs to win the presidency and no Republican has won the office without carrying the state. Obama took Ohio with 51.5 percent of the vote in 2008, winning by 262,224 votes. More than 100,000 people out of a total of 5.77 million voters cast their ballots in the last three days, according to yesterday’s opinion.
The NBC News/Wall Street Journal/Marist College survey of likely voters taken Sept. 30-Oct. 1 and released Oct. 3 showed Obama leading Romney 51 percent to 43 percent in Ohio. He was ahead, 50 percent to 43 percent, in last month’s poll.
Obama for America and the state and national Democratic organizations sued the Ohio officials in July, arguing that the early voting disparity was unconstitutional.
“We will make a determination on how to proceed legally and provide administrative guidance to Ohio’s boards of elections” at the beginning of next week, Secretary of State Jon Husted said yesterday in an e-mailed statement.
Attorney General Mike DeWine is reviewing the ruling, his spokesman, Dan Tierney, said. He declined to comment further.
“With today’s decision by the Sixth Circuit Court of Appeals, Ohio joins Wisconsin, Florida, New Hampshire and Pennsylvania as states that turned back restrictions on voter access and limitations on voter participation,” Bob Bauer, general counsel for Obama for America, said yesterday in a statement.
The early voting measure was one of two Ohio election disputes before the appellate court. State officials are also challenging a lower court order barring election workers from disqualifying provisional ballots voters cast in the wrong precinct because of poll-worker error. A three-judge panel heard the state’s appeal Oct. 1 and hasn’t issued a decision.
Those cases are among at least 15 pending nationally over election law limits on issues including early voting, registration and photo identification requirements in the run-up to the Nov. 6 election.
The lawsuits challenge statutes passed since Obama’s election in 2008 by Republican-dominated legislatures across the country -- laws aimed in part at fighting voter fraud, proponents contend. Opponents argue they are an effort to suppress the votes of lower-income people and the elderly who may be more inclined to vote for Democrats.
Over the past few months, the majority of challenges have been resolved against the laws.
On Oct. 2, Pennsylvania became the third state, following Texas and Wisconsin, where courts rejected a requirement that citizens show photo identification to vote. A judge, ruling after the state Supreme Court sent the case back for further analysis, barred enforcement of the law until after the election because it couldn’t be fairly implemented in time.
In Texas, lawyers resolved a lawsuit that sought to stop the state from deleting as many as 68,000 possibly dead people from voter rolls before Nov. 6. State court Judge Scott H. Jenkins in Austin on Oct. 3 signed an order ending the case and lifting a Sept. 20 temporary bar on the voter-roll purge after the state agreed to stricter requirements for it, said David Richards, a lawyer for the four voters who sued.
Florida election officials were allowed by a federal judge on Oct. 4 to continue purging 198 people that the state has determined aren’t U.S. citizens from voter registration rolls.
Ohio’s early-voting laws were enacted after the presidential election in 2004, when long lines and broken equipment forced voters to wait as long as seven hours to cast their ballots, according to an Obama campaign statement issued on the day it sued to let all voters cast early ballots through Nov. 5. A change in the law last year resulted in the military- civilian disparity.
Almost 500,000 Ohio voters availed themselves of early voting in 2008, more than 100,000 of them in the last three days before the election, said U.S. Circuit Judge Helene White, one of the three judges voting yesterday to uphold the lower-court decision.
U.S. District Judge Peter Economus, who was appointed to the court by President Bill Clinton, a Democrat, ruled for the Obama campaign on Aug. 31.
While the appeals court agreed with Economus that it’s unconstitutional to give some people more time to vote than others, it declined to order all Ohio election boards to remain open for the three days immediately before the election. The court left it up to the individual boards to decide whether to allow voting on those days.
Early voting began in Ohio on Oct. 2.
The court’s majority opinion was written by U.S. Circuit Judge Eric Clay, another Clinton appointee. His opinion was joined by U.S. District Judge Joseph Hood, who was nominated by President George H.W. Bush, a Republican.
White, who was appointed by Republican President George W. Bush, agreed with the majority that the state’s law could possibly disenfranchise voters. Still, she argued in a partial dissent that the state should have an opportunity to fix the law before the election.
The case is Obama for America v. Husted, 12-4055, U.S. Court of Appeals for the Sixth Circuit (Cincinnati).
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