Ohio Secretary of State Jon Husted

by Jeremy Leaming

Yet another federal court has dealt a major blow to Ohio Secretary of State Jon Husted’s dogged work to restrict voting in his state – this time it was provided by the U.S. Supreme Court. Today the justices refused to consider a federal appeals court opinion that blocked Husted’s attempt to shut down early voting days before the general election, The Plain Dealer reported.

In 2008, the state allowed early voting during the three days before Election Day. Husted has fought to close that window. The Obama campaign and Ohio groups sued Husted arguing that the measure to limit early voting would greatly hinder the right to vote of tens of thousands of people. (The campaign argued that in 2008 about 100,000 people voted in the three days preceding the general election.)

Rick Hasen, at Election Law Blog, says the action by the high court is part of “a run in the courts for those fighting Republican legislative cutbacks on voting rights in 2012.”

Last week, the U.S. Court of Appeals for the Sixth Circuit also kept in place an injunction against a provision of Ohio law that placed a large burden on voters to ensure they were casting the correct ballots at the right precinct. The injunction will allow ballots cast in the wrong precinct because of poll workers’ errors to be counted.

In an ACS Issue Brief, Loyola Law school professor Justin Levitt said attempts to curtail early voting do “not fall evenly on the population as a whole” noting that in past elections minorities overwhelmingly used the early voting windows. “In 2008, for example, African-Americans represented 13 percent of the total voters, and 22 percent of the early voters, but 31 percent of the total voters on the final Sunday,” before Election Day.

by Jeremy Leaming

Right-wing efforts to build hurdles to voting – especially in swing states – before the upcoming presidential contest have been dealt setbacks by federal courts within the month. For example, in Florida, Texas, and Ohio the courts have, at least temporarily, scuttled efforts to enforce rigid voter ID laws, curtailment of early voting times, and restrictions on voter registration drives.

But there are also a string of lawsuits challenging states’ handling of provisional ballots.

SEIU and others are fighting Ohio’s provisional ballot-counting rules. Specifically SEIU has sought a statewide injunction against an election law provision that disqualifies provisional ballots cast in the wrong precinct or with errors caused by poll workers. (The Help America Vote Act, (HAVA) enacted by the federal government after the 2000 presidential election debacle, gives voters the opportunity to cast a provisional ballot if poll workers are unable to verify their identities. As The New York Times’ Ethan Bronner recently put it, “anyone whose identity or voting precinct is in doubt can ask for a provisional ballot at any polling station and then has a number of days to return with the required documentation to make the vote count.)

In late August, U.S. District Judge Algenon L. Marbley sided with SEIU’s request for a preliminary injunction against Ohio’s provisional ballot scheme. SEIU argued that the injunction was “necessary to prevent the irreparable and unconstitutional disqualification of thousands of lawfully registered voters’ ballots in the upcoming November 2012 general election.” (See Marbley’s opinion here, courtesy of Election Law Blog.)

Judge Marbley noted that several years after HAVA was enacted, Ohio lawmakers created some voter ID requirements, which “have been referred to as ‘exceptionally convoluted.’” SEIU and the other groups argued before the judge that Ohio’s stringent voter ID law along with its process for handling provisional ballots are causes for “the relatively high rate of Ohio voters forced to cast provisional ballots rather than normal ballots in recent elections.”

Citing Supreme Court precedent, Marbley said Ohio’s provisional ballot scheme must be carefully examined especially “since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right to citizens to vote must be carefully and meticulously scrutinized.”

And after scrutinizing Ohio’s convoluted provisional ballot rules, the judge concluded the groups had a strong chance of proving they violate the Constitution’s equal protection clause in a number of ways.