Finds 'arbitrary' restrictions for all but military voters disproportionately harms low-income and minority voters

Decision continues recent spate of federal voting rights victories...

Brad Friedman Byon 8/31/2012, 1:16pm PT

The recent spate of federal court victories in favor of voting rights across the nation continued today, as a U.S. District Court judge in Ohio sided with Democrats and the Obama campaign, finding that the removal of in-person Early Voting for all voters on the final three days before Election Day in the Buckeye State was an "arbitrary" decision made by the state's Republican lawmakers and Secretary of State.

The removal of in-person Early Voting in those last three days before the election --- when some 100,000 voters had cast their votes in the state during the 2008 Presidential Election --- for all but active-duty military voters, is likely to "irreparably harm" the voting rights of "low-income and minority voters [who] are disproportionately affected by the elimination of those voting days," according to the ruling by U.S. District Judge Peter Economus [PDF].

The ruling is another major win for Ohio voters, as the judge ruled in favor of the Democratic complaint seeking a temporary injunction on the state's new voting restrictions.

Through a convoluted series of legislative actions by Republican state lawmakers and rulings by Sec. of State John Husted, which we detailed earlier this month, Ohio had restricted Early Voting on the final weekend before the Tuesday election to all but active duty military voters. We also explained in that same article how the Romney campaign --- based on a false assertion initially posited by the Republican propaganda website Breitbart.com and subsequently forwarded loudly by Fox "News" --- argued dishonestly that the Obama campaign was attempting to "undermine" and restrict voting rights of the military, which the GOP nominee described on his Facebook page as an "outrage".

In fact, as the very first paragraph of the Obama complaint [PDF] made quite clear, the Democrats were not attempting to restrict the rights of military voters, but, in reality, suing to "restore in-person early voting for all Ohioans during the three days prior to Election Day," including for some 900,000 veterans in the state whose rights had similarly been removed by the Ohio Republicans.

Today, the Democrats' argument prevailed in federal court, as Economus found that "Plaintiffs have a constitutionally protected right to participate in the 2012 election --- and all elections --- on an equal basis with all Ohio voters, including [active duty military] voters"...

The Republicans had argued in the case that Early Voting for all, in the days before Election Day, was overly burdensome on county Boards of Election, though the judge found that "Defendants offer little in support of their claim that Ohio elections boards cannot simultaneously accommodate in-person early voting and pre-Election Day preparations during the three days prior to Election Day."

During our exclusive interview with her last week, Ohio's former Democratic Sec. of State Jennifer Brunner saw a more insidious motive to the attempt to restrict Early Voting in Ohio, particular on the weekend before the election. She told The BRAD BLOG she believed the effort was "clearly aimed at 'Souls to the Polls'," the effort by African-American churches to encourage their congregations to get out and vote on the Sunday before the election.

Indeed, the Plaintiffs in the suit offered studies documenting that a large number of voters who took advantage of weekend Early Voting hours, particularly on the weekend before the election, were minorities and other supporters of Democrats, many of whom would have trouble voting on Election Day during work hours.

Brunner also described how the 2005 law which added Early Voting in Ohio --- following the disastrous 2004 election under her Republican predecessor J. Kenneth Blackwell, which included impossibly long Election Day lines with wait times anywhere from 2 to 12 hours, largely in Democratic districts --- greatly eased access to the polls for Election Day voters in 2008, when there was an even larger turnout.

While Brunner explained that she nervously awaited lawsuits to keep polling places open later to accommodate the huge turnout on Election Day in 2008, those lawsuits never came, she said, as most voters were able to cast their vote that year with little problem, thanks, in no small part, to the very popular addition of Absentee/Early Voting which helped to nearly triple the number of such voters between 2004 and 2008.

While current Sec. of State Husted has maintained that he seeks "uniformity" in voting rules across the state --- even going so far as to fire two Democratic Board of Elections officials in Montgomery County this week for simply voting to open the polls for Early Voting hours on weekends in the month leading up to the election --- the judge noted that the Secretary "was silent" on the need for consistent hours across the state for military Early Voting on the three days before the election.

According to the Defendants, the times for voting over that weekend, in each of Ohio's 88 counties, "remains in the discretion of the individual county boards of elections," in direct contradiction of Husted's recent calls for the need of "uniformity" in voting hours across the state.

"This Court finds that 'in-person early voting' is a voting term that had included the right to vote in person through the Monday before Election Day, and, now, thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person," thanks to the cutoff of Early Voting for all but military voters after 6pm on the Friday before the election, due to the "arbitrary nature" of the new Republican rules, according to the judge today.

"Amusingly," ThinkProgress' Ian Millhiser notes, "the court’s opinion relies on the Supreme Court’s infamous decision in Bush v. Gore [2000] to reach this holding, citing Bush‘s statement that '[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.'"

"Restoring in-person early voting to all Ohio voters through the Monday before Election Day does not deprive [active duty military] voters from early voting," Economus wrote in his ruling. "Instead, and more importantly, it places all Ohio voters on equal standing. The only hindrance to [active duty military] early voting is the Secretary of State’s failure to set uniform hours at elections boards during the last three days before Election Day."

The court's decision is likely to be appealed by the state of Ohio to the U.S. Court of Appeals for the 6th Circuit which, Millhiser explains, is a "Republican-leaning court with a history of legally-challenged partisan decisions benefiting the Republican Party. So it remains to be seen whether Economus’ decision will have staying power."

Today's ruling comes on the heels of a spate of federal court decisions over the past several week which protect or otherwise expand voting rights which Republicans, in state after state over the past two years, have been attempting to contract.

While all of the above are victories for Democrats, as well as American voters and democracy in general, the cost of waging those battles, in time, energy and money, almost certainly redounds to the favor of the Republicans, as that is time, energy and money not spent in voter registration and get out the vote efforts on behalf of Democrats. Even with these wins, it's arguable that the Republicans may end up coming out ahead simply by forcing the battles.

As to the blatantly inaccurate Breitbart.com article posted by their Editor-in-Chief Mike Flynn on August 2nd, falsely alleging that Obama was suing in Ohio "to restrict military voting" and charging that the complaint was "intended to disenfranchise some unknown number of military voters," that article remains posted without retraction or even correction, even after today's ruling underscores the fact that Flynn's claims --- echoed by both Fox and Romney --- were utterly baseless.

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