Early Voting Dispute

The U.S. Supreme Court on Monday granted a last-minute stay requested by Ohio Secretary of State Jon Husted, delaying a federal court order restoring early voting cuts in Ohio.

(Mark Duncan/Associated Press)

COLUMBUS, Ohio -- The nation's highest court on Monday granted an emergency plea from state officials to block a lower court's order expanding statewide early voting days and times.

The last-minute decision means early voting will not start Tuesday, but instead will be delayed one week.

Ohio Secretary of State Jon Husted said Monday evening he will implement the schedule he set in June, which eliminates one Sunday and extra weeknight evening hours from the statewide schedule he set on Sept. 12.

"Today's ruling validates what I have long said, elections in Ohio should be run by the same rules in every county and Ohioans should have the right to make those rules through their elected representatives," Husted said in a statement. "Ohioans can have confidence that it remains easy to vote and hard to cheat in our state."

Husted and Attorney General Mike DeWine asked the U.S. Supreme Court to reverse or delay the district court order restoring Golden Week, a week-long window when people could both register to vote and cast a ballot in Ohio, forcing Husted to add more early voting hours to the statewide schedule and allowing county boards of election to set additional hours.

U.S. Supreme Court Justice Elena Kagan, who oversees the U.S. 6th Circuit Court of Appeals where the case was appealed, referred the case to the full court, which voted 5-4 to grant the stay.

The court issued its order without an opinion or explanation, noting the court's liberal Justices Ruth Bader Ginsberg, Stephen G. Breyer, Sonia Sotomayor and Kagan would not have granted the stay. Chief Justice John G. Roberts and Justices Samuel Alito, Clarence Thomas, Antonin Scalia and Anthony M. Kennedy voted to grant the stay.

The stay will remain in effect until the court acts on an appeal from state officials, which has not yet been filed. Meanwhile, Husted directed boards of election to follow hours he set in June following an earlier federal court ruling restoring early voting on the last three days before Election Day.

The June schedule does not include the Sunday two weeks before Election Day and from 5 to 7 p.m. on weekdays during the two weeks prior to Election Day.

A DeWine spokesman said the office is pleased a majority of justices agreed with attorneys for the state.

"This was an important ruling for protecting all Ohioans' rights through their elected representatives to determine the state's voting schedule rather than have the federal courts determine that schedule for them," spokesman Dan Tierney said in an emailed statement.

The American Civil Liberties Union, which filed the original suit against the state on behalf of the Ohio chapters of the National Association for the Advancement of Colored People and League of Women Voters and several African-American churches, said Monday it was disappointed with the court's decision.

"While not a final decision on the merits of the case, this is a real loss for Ohio voters, especially those who must use evenings, weekends and same-day voter registration to cast their ballot," ACLU of Ohio Legal Director Freda Levenson said in a statement. "Early voting works-cutting popular days and hours is unnecessary and only hurts voters. To make it even worse, this last-minute decision will cause tremendous confusion among Ohioans about when and how they can vote."

In their final court filing on Sunday, Husted and DeWine argued the Sept. 4 order by District Court Judge Peter C. Economus was a last-minute disruption to a schedule that's been in place since February.

"It is unfair to claim that this disruptive September injunction (which Ohio has sought to overturn at every turn) represents a new status quo—to be locked down the morning after it issued," attorneys for Husted and DeWine wrote. "As a matter of history, Plaintiffs mistakenly suggest that their court-ordered change to Ohio's early-voting schedule long existed in Ohio. The change cherry-picks, at most, a few counties' schedules from 2008 and 2010."

In district court and in their appeal, state attorneys argued that Ohio offers more opportunities to vote than 41 states -- voters can cast a ballot on Election Day, mail an absentee ballot during a 28-day period or vote in-person on 22 of those 28 days. They warned a ruling deeming Ohio's schedule "restrictive" could have ramifications for election laws in other states.

Ohio's disastrous 2004 election shows the state cannot operate an election on only one day, argued attorneys for the ACLU. In papers filed in Supreme Court on Saturday, they said early voting, including Sunday "Souls to the Polls" events, have become woven into the fabric of Ohio's democratic process.

"That election [in 2004] resulted in waiting times to vote that stretched into the day after Election Day and failed to provide meaningful access to the ballot for tens of thousands of Ohio voters," they wrote. "Ohio thus comes to court with dirty hands."

The civil rights groups and churches had challenged a new state law eliminating Golden Week and statewide early, in-person hours set earlier this year by Husted.

A three-judge panel from the 6th Circuit in Cincinnati on Wednesday unanimously upheld Economus' order. DeWine and Husted then requested the appeal be heard before the entire court.

Husted expanded statewide early, in-person voting hours while the appeal proceeded.