February 11, 2012
COLUMBUS — Ohio’s elections chief on Friday cancelled his order that barred counties from setting voting hours on disputed early-voting days in the presidential battleground state, while a legal battle brought by President Barack Obama’s campaign continues.
The moves comes after a federal judge this week ordered Secretary of State Jon Husted to personally appear at a court hearing over the swing state’s early voting rules.
Husted, a Republican, said he was trying to provide guidance to the state’s 88 county election boards following a court ruling last week that restores early voting for all voters during the three days before Election Day.
The state is appealing the decision to the 6th U.S. Circuit Court of Appeals in Cincinnati. Fifteen military groups who had joined the state in the lawsuit also filed their formal appeal notice on Friday.
Husted had issued a directive to boards on Tuesday, saying they were “strictly prohibited” from determining hours for the Friday, Saturday, Sunday or Monday before the election because a court could later change them. Plus, he said it would confuse voters.
Husted rescinded that order on Friday and requested in court filings that the federal court in Columbus hold of, or stay, its ruling until the state’s appeal has been completed.
William Consovoy, Husted’s lawyer, said in the filing that absent a stay or a directive from Husted, “there is a real concern that county boards of elections will begin issuing early in-person absentee voting schedules for the three-day period before the Secretary can issue a uniform schedule.”
Consovoy said such county action would lead to “significant administrative difficulties and further voter confusion.”
Attorneys for Obama’s campaign have urged U.S. District Judge Peter Economus in court filings this week to enforce his ruling.
Ohio is among 32 states, plus the District of Columbia, that allow voters to cast early ballots in person without having to give reasons.
At issue is a part of the state’s law that cuts off 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 had sued Husted and Ohio Attorney General Mike DeWine over the law. They argued everyone should have the chance to vote on those three days before the election. They said a series of legislative changes by state lawmakers had arbitrarily eliminated the opportunity for most Ohio residents to vote in person on those days, while giving military or overseas voters the chance to do so.
Attorneys for the state have said many laws already grant military personnel special voting accommodations, such as requirements for states to send absentee ballots to them 45 days before the election. And they contend local boards also need those three days to prepare for the election.
But Economus said the voters’ right to cast ballots in person on those 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.
In his ruling, Economus said he expected Husted to direct all county elections boards to maintain a specific, consistent schedule on those three days “in keeping with his earlier directive that only by doing so can he ensure that Ohio’s election process is ‘uniform, accessible for all, fair, and secure.’”
Consovoy said Husted believed his directive was consistent with the judge’s ruling, but had since learned that the federal court didn’t view it that way.
“The Secretary would never intentionally contravene an order issued by the federal district court or any other court — and this case is no exception,” Consovoy wrote, adding the directive was rescinded.
Before the law, local boards of elections previously set early voting hours on those three final days. And weekday hours and weekend voting varied among the state’s counties.
Democrats estimated in their lawsuit that 93,000 people voted during the final three-day window before the 2008 election.