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Information & Analysis

Summary of PI Hearing in Obama for America v. Husted

On Wednesday, August 15, 2012, United States District Judge Peter C. Economus heard arguments on a preliminary injunction in Obama for America v. Husted. The case centers on the issue of the availability of early, in-person voting. Under current law, certain classes of voters—namely, those military voters, their families, and overseas civilians who are covered by the Uniformed and Overseas Citizens Absentee Voting Act ("UOCAVA")---are able to vote early and in-person until the Monday evening before Election Day. All other voters can only vote early and in person until the Friday evening before the election. What follows is a summary of the arguments heard yesterday.

Obama for America argues that such a distinction violates the equal protection provision of the 14th Amendment, while the Ohio Secretary of State and the State of Ohio argue that the right to vote early is not a fundamental right, and because the distinction is rationally conceivable, it is constitutional.

Obama for America opened its argument by detailing the progression of Ohio’s early voting law with the passage and repeal of each new piece of legislation and ballot initiative from 2006 until 2012. In short, the plaintiffs showed that currently, and for the first time, the availability of early, in-person voting will depend upon which category a voter falls into, as outlined above. Obama for America also detailed the legislative history of the relevant bills, arguing that the only purpose of the legislation creating the discrepancy in the availability of early, in-person voting was to prevent a referendum from reaching the ballot. As such, they argue, the discrepancy was “the unplanned byproduct of legislation” and was therefore by definition, arbitrary and unconstitutional.

Obama for America further argued, that the justifications the State offered for the legislation that created the discrepancy are merely post-hoc rationalizations and that the justification offered must have existed at the time the legislation was passed. Obama for America argued that the State did not have a justification at the time of the bill’s passage other than to “pull the rug out from under the referendum” and as such the creation of the discrepancy as a result must be arbitrary and unconstitutional.

In determining the standard that the court should use to determine whether the State’s action was justifiable, Obama for America cited Hunter v. Hamilton County Board of Elections, saying that in that case, the Sixth Circuit applied an equal protection analysis to arbitrary state actions because of the particular importance of election law. They went on to note that the court held that “unintended inequality is especially arbitrary.”

Obama for America articulated the standard that should be applied as a balancing test. The court must look at the character and magnitude of the injury to the voter, the precise interest of the state and whether the burden imposed by the state is justified under the circumstances. In this case, Obama for America argues that the potential inability of up to 95,000 Ohioans to take advantage of early, in-person voting is a significant injury. Judge Economus challenged Obama for America on this point, noting that the 95,000 voters would not be disenfranchised, as they would still be able to vote on election day. Obama for America explained that it is or should be a bedrock principle that “when the polls are open, the polls are open to all.”

Obama for America once again argued that the State did not have a precise interest when it passed the legislation at issue other than to prevent the referendum from reaching the ballot and that as a result of the discrepancy, the Ohio General Assembly “cannot have been said to have articulated an interest if there is an ambiguity.” It also argued that post hoc rationalizations are not accepted, citing Armor v. Indianapolis for the principle that cases involving fundamental rights are more important and therefore the state cannot just offer a post hoc rationalization.

Finally, Obama for America argued that the burdens imposed by the state are not necessary to achieve its interest. Noting that the state was able to provide early, in-person voting until Monday in 2008, Obama for America argued that the state does not have an interest in shortening the early, in-person voting period.

In its plea for relief, the plaintiff asked that the status quo from 2008 should be restored—both UOCAVA voters and other voters be able to vote early and in person through Monday.

The State’s argument was simple: the right to vote early is not a fundamental right and therefore the State must only show that it has a conceivably rational reason for the regime in place. The State framed Obama for America’s argument as stating that it is a violation of the equal protection clause if a state provides special accommodations for the military and doesn’t extend the same accommodations to other voters. As a result, the State argued that that while Obama for America “[tried] to recreate a process to show that the legislature acted arbitrarily … what they have to show is that the choice the legislature made was arbitrary and has no conceivably rational, non-arbitrary basis.” (emphasis added).

The State further argued that UOCAVA voters and other voters are not similarly situated groups and that military voters face unique problems, such as the inability to get to polling places on Election Day as a result of unforeseen scheduling changes.

Echoing a sentiment that Judge Economus aired during Obama for America’s argument, the State reiterated that Ohio has very liberal voting policies, saying that “[we] don’t have a situation where we are shutting the door. To say that we are disenfranchising voters is incorrect.”

Judge Economus then challenged the State as to why it needed to change a law that “no one disputes was efficient and effective.” The State responded by explaining that the Boards of Election needed the weekend and Monday to prepare for the onslaught of Tuesday’s general election.

Lastly, the intervenor defendants argued that the court’s holding could be potentially damaging to military families. The intervenors argued that a decision granting Obama for America’s motion would put into question many other laws granting special treatment for military voters. In its rebuttal, Obama for America explained that its suit was “not about who is kept in, but about who is being kept out.” Judge Economus stated during the hearing that he agreed with that statement.

Obama for America also countered the state’s position that the right to vote early was not a fundamental right by arguing that once the state extended the right to vote early it could not arbitrarily withdraw such a right. As such, they argue, simple rational basis scrutiny is inappropriate and the heightened standard articulated above should apply.

Commentary

Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Wisconsin Supreme Court Upholds Voter ID Law

In two opinions issued today, the Wisconsin Supreme Court upheld the state's voter ID law against challenges that the law violated the Wisconsin Constitution. The court issued an opinion in League of Women Voters of Wisconsin v. Walker and also an opinion in Milwaukee Branch of the NAACP v. Walker.

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