Jon Husted is now, officially, the new J. Kenneth Blackwell

Now UPDATED with details on Husted's application to SCOTUS...

Brad Friedman Byon 10/9/2012, 2:41pm PT

This is really rather astonishing.

After having been told by two federal courts --- a U.S. District Court in late August and then a 3-judge panel on the U.S. 6th Circuit Court of Appeals just last week --- that the Ohio GOP's attempt to restrict Early Absentee Voting in the final three days before Election Day, for all but active-duty military voters, is an unconstitutional violation of voting rights, disproportionately effecting low-income and minority voters, the state's Republican Sec. of State Jon Husted is, nonetheless, appealing the rulings yet again.

This time, Husted is skipping an appeal to the full 6th Circuit and going directly to the U.S. Supreme Court.

In a statement issued today, Husted describes last week's ruling at the Appellate Court, upholding the lower court's ruling, as "stunning" and an "unprecedented intrusion by the federal courts into how states run elections." (Perhaps Husted was out of the country for Bush v. Gore in late 2000?)

At the core of Husted's complaint is the fact that, by overturning the GOP's restrictions on Early Voting for all but active-duty military, so that all eligible voters can vote during those days, Ohio's 88 county Boards of Election will once again be able to set their own hours for voting over those days. That, argues Husted (disingenuously, for reasons explained in a moment), will lead to a lack of uniformity across the state.

"This ruling not only doesn’t make legal sense, it doesn’t make practical sense," Husted says in his statement announcing his plan to appeal today. "The court is saying that all voters must be treated the same way under Ohio law, but also grants Ohio’s 88 elections boards the authority to establish 88 different sets of rules. That means that one county may close down voting for the final weekend while a neighboring county may remain open. How any court could consider this a remedy to an equal protection problem is stunning."

While Husted's remarks about the possibility of differing hours for Early Voting in differing Ohio counties, strictly speaking, are correct, they are also purposely misleading and, more to the point, entirely disingenuous...And Husted knows it...

As the Secretary made perfectly clear last August, when Ohio's 88 counties were each setting different hours for Early Voting in days prior to the final three days before Election Day, he is able to issue a directive today ordering every single county in the state to establish specific, uniform hours for Early Voting for all in the days before the Tuesday, November 6th Presidential election.

He has already established his constitutional power to do so and could exercise that power again today --- immediately. Instead, he is choosing havoc over his own voters' ability to cast their votes in an orderly election process.

In early August, when it became clear that various counties across the state were setting differing hours for Early Voting --- with Republican-leaning county Boards of Election unanimously voting to allow week-night and weekend voting, but Democratic-leaning counties being blocked by Republicans from allowing the same --- Husted finally issued a directive for uniform Early Voting hours across the state.

Later in the month, when two Democratic Election Board Commissioners (each Board has two Democrats and two Republicans) in Montgomery County merely voted for additional weekend voting, which they believed Husted's directive hadn't ruled against, they were unceremoniously fired by the Secretary for even voting for the motion (which would have lost anyway, since Husted himself casts the deciding vote in split county Election Board decisions.)

So, while Husted claims that all counties in the state ought to have uniform rules for voting, the fact is, Husted can, himself, declare what those hours must be across the entire state. Instead, he is going to the U.S. Supreme Court in hopes that they will overturn the lower court, and allow Republicans to restrict the voting rights of all but active-duty military in those last three days before the election.

The fact is, this is meant to keep Democratic-leaning voters, particularly minorities who turned out in huge numbers for Barack Obama during those three days in 2008, from being able to do the same thing again this year. He is attempting to game the system in favor of Republicans. Period. And he's doing so in the state that is absolutely key to a victory for Mitt Romney this year.

When we interviewed the former Ohio Sec. of State Jennifer Brunner, a Democrat, in mid-August, she explained how the effort was "clearly aimed at 'Souls to the Polls,'" the very successful effort by African-American churches to encourage their congregations to get out and vote on the Sunday before Election Day.

In addition, as we explained when VoteVets.org filed a Friend-of-the-Court brief with the 6th Circuit, prior to their recent decision, the GOP's attempted restriction on voting rights would also lead to some 900,000 Ohio veterans being unable to vote during those final three days as well.

Look, The BRAD BLOG had long given Husted every benefit of the doubt, largely based on what appeared to be a courageous and principled stance last year against his own party's attempt to institute a disenfranchising polling place Photo ID restriction law in Ohio. At the time, he almost single-handedly prevented the law from moving forward after charging in an unambigious statement that such a restriction would do "little to protect against fraud and excludes legally registered voters' ballots from counting."

We also lauded his joining with Brunner, years earlier, in calling for 100% unverifiable touch-screen voting systems to be banned in Ohio. (His Republican compatriots ignored that call in many counties.) And we gave him due credit for a number of other principled decisions he'd made once he became Sec. of State in 2010.

The days of giving Husted the benefit of the doubt, however, are now official over.

Husted's wildly partisan decisions and attempts to restrict voting rights of Democratic-leaning voters over the last several months has made it clear that he is no Brunner. He is, in fact, now working to restore the complete havoc --- and even the 12-hour voting lines --- that ensued in Ohio during the 2004 Presidential Election debacle under the tenure of then Republican Sec. of State (and Bush/Cheney campaign co-chair) J. Kenneth Blackwell.

Jon Husted should be absolutely ashamed of what he is now doing to the very voters he was elected to serve in the Buckeye State. He is, in short, the new J. Kenneth Blackwell.

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It looks like my colleague Ari Berman at The Nation has a similar take on today's announcement by Husted. His coverage begins this way:

Once again, political experts are predicting that the 2012 presidential election could be decided in the battleground state of Ohio, like it was in 2004. Remember what happened that year? George W. Bush won the state by a narrow 118,000 votes in an election marred by widespread electoral dysfunction. “The misallocation of voting machines led to unprecedented long lines that disenfranchised scores, if not hundreds of thousands, of predominantly minority and Democratic voters,” found a post-election report by Democrats on the House Judiciary Committee. According to one survey, 174,000 Ohioans, 3 percent of the electorate, left their polling place without voting because of massive lines in urban precincts and on college campuses. Ohio’s Secretary of State that year was Ken Blackwell, co-chairman of the Bush-Cheney re-election campaign. Ohio’s GOP secretary of state in 2012, Jon Husted, is proving to be a worthy successor to Blackwell. ... Early voting has already begun in Ohio, but four weeks out until the election, Husted is doing his damndest to confuse the hell out of Ohio voters and undermine their voting rights.

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UPDATE 10/10/12. by Ernest A. Canning: Husted has now filed hisApplication for Stay Pending Certiorari [PDF] with Justice Elana Kagan of the U.S. Supreme Court.

The prospects of prevailing will be difficult. As acknowledged in the application, Husted must prove:

(1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.

In separate articles, written before the application for a stay was submitted to SCOTUS, both Moritz Law Prof Edward B Foley and Associate Prof. Joshua A. Douglas set forth reasons why they believe it is exceedingly unlikely that a stay will be issued by the high court.

Foley notes that all four federal judges who have handled this case to date (two Democrats and two Republicans) believe the preliminary injunction to be appropriate. Judge White, on the 6th Circuit's 3-judge panel, while she dissented from the Equal Protection analysis, concurred that a preliminary injunction was appropriate based upon equitable principles because:

(1) Ohio had such a poor history of conventional polling place voting on Election Day in 2004; (2) Ohio had adopted in-person early voting to alleviate overcrowding at the polls on Election Day; (3) Ohio had used the last three days of early voting successfully in 2008 to avoid long lines at the polls on Election Day; and (4) local boards of elections were prepared for a repeat of the successful procedures used in 2008, but not prepared for increased Election Day turnout that might result from the rollback of early voting opportunities available in 2008.

Moritz' Douglas observed that the 6th Circuit provided the correct standard for Equal Protection analysis. He dismissed Husted's claim that restrictions were needed to assist military voters and ease the burden on local election officials, because "limiting early voting only to military voters achieves neither goal...Further, as the court explained, once a locality decides to allow early voting in the three days before the election to military voters, there is very little additional burden to offering the same access to all other voters --- especially because granting early voting to everyone would help to alleviate the massive Election Day problems that occurred at the polls in 2004."

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