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Commentary

OFA v. Husted: Understanding Today's Decision

 

Today’s federal district court ruling in Obama for America v. Husted raises several interesting issues. The case, which began only last month, quickly achieved some notoriety as an attack on military voting rights protected both by state law and by the federal Uniformed and Overseas Citizen Absentee Voting Act (UOCAVA), though in fact it was merely an effort to leverage some of the additional accommodations that Ohio was offering military (or UOCAVA) voters into a basis for restoring early in-person voting for all Ohio voters. In that regard, today’s decision provides exactly the relief that the Plaintiffs desired, subject to an appeal to the Sixth Circuit.

Before exploring some implications of today’s decision, it may be helpful to consider some background. From 2005 to 2010, Ohio’s early voting law permitted early in-person voting up through the Saturday, Sunday, and Monday before Election Day, a three-day period during which close to 100,000 voters may have voted in the 2008 presidential election. In 2011, however, the Ohio legislature amended the applicable statutory provisions to halt early voting at 6:00 p.m. on the Friday before Election Day. Unfortunately, the legislative process by which Ohio arrived at this reduced early voting period was not a model of clarity.

First, in June 2011, the legislature passed HB 194, a package of election law measures one of whose purposes was to establish the new Friday 6:00 p.m. deadline for all voters, both military and non-military. The bill was opposed by the Democratic minority in the legislature, and opponents quickly began contemplating a popular referendum to undo the changes. But almost immediately after its passage, the legislature apparently realized that in enacting HB 194 it had overlooked two other existing code sections, one for UOCAVA voters and one for all other voters, that specified the close of business on the Monday before the election as the end of early voting, three days later than the Friday deadline newly established by HB 194.

Meanwhile, the Ohio legislature was working on HB 224, a measure intended primarily as an effort to incorporate into Ohio law certain features of the Uniform Military and Overseas Voters Act (as promulgated by the Uniform Law Commission in 2010). HB 224, as an effort to facilitate voting by the military and overseas voting community, received widespread bipartisan support. Without controversy, it also became a vehicle to make “technical corrections” to the two code sections overlooked in HB 194, in order to bring all the early voting deadlines into harmony at 6:00 p.m. on the Friday before the election. With a bipartisan supermajority, the legislature was able to enact HB 224 in July 2011 as an “emergency measure,” a law not subject to a potential referendum.

Later in 2011, the effort to qualify the earlier measure, HB 194, for a referendum succeeded, rendering its provisions ineffective until the outcome of the referendum at the next general election, to be held on November 6, 2012. In May 2012, with the referendum concerning HB 194 on the horizon, the Ohio legislature opted to repeal HB 194 outright. However, the legislature deliberately chose not to repeal the “technical corrections” of HB 224, which were not subject to the upcoming referendum concerning HB 194, even though they had been adopted in order to complete the business of HB 194.

As a matter of Ohio statutory law, the following state of affairs has resulted: (1) the two still-effective provisions of HB 224 provide that early in-person voting terminates at 6:00 p.m. on the Friday before Election Day, both for military and overseas voters covered by Ohio’s UOCAVA provisions, O.R.C. section 3511.02, as well as for all other voters, O.R.C. section 3509.03; (2) one pre-HB 194 provision, O.R.C. section 3511.10 (which would have been superseded by an HB 194 provision with a 6:00 p.m. Friday deadline for UOCAVA voters) continues to permit in-person voting for UOCAVA voters up to Election Day; and (3) another pre-HB 194 provision, O.R.C. section 3509.01 (which also would have been superseded by an HB 194 provision with a 6:00 p.m. Friday deadline for all other voters) continues to provide only that early voting for non-UOCAVA voters shall begin 35 days before the election, but says nothing about when it ends.

Thus, given the suspension and ultimate repeal of HB 194, the two provisions left on the books concerning non-UOCAVA voters (one from the law existing before HB 194, and one from HB 224) can be harmonized, with one provision establishing when early voting begins, and the other providing that it ends on the Friday before Election Day. But the two provisions left on the books concerning UOCAVA voters (also one from the law existing before HB 194, and one from HB 224) provide inconsistent in-person early voting deadlines of  Election Day[1] and 6:00 p.m. the previous Friday. To resolve this conflict, which arose as soon as the referendum petition concerning HB 194 was filed in September 2011, Ohio Secretary of State Jon Husted issued a directive in October 2011 allowing early in-person voting to continue for UOCAVA voters on the Saturday, Sunday, and Monday immediately before Election Day. But for the first time in six years, Ohio’s November 2011 general election was conducted without general early in-person voting on these three days before the election.

On July 17, 2012, Obama for America, the Democratic National Committee, and the Ohio Democratic Party brought their action in the U.S. District Court for the Southern District of Ohio, seeking injunctive relief ordering the restoration of early voting for all Ohio voters on the three days before the election. While the motion for a preliminary injunction was pending before the district court, the Ohio Secretary of State issued a new directive establishing uniform hours for all Ohio boards of election throughout the early voting period. This directive appeared to prohibit local election boards from maintaining weekend hours, although the Secretary of State represented to the court that local election boards retained the discretion to open their doors for early voting to UOCAVA voters, and only to UOCAVA voters, on the final weekend before Election Day.

This differential treatment of UOCAVA and non-UOCAVA voters is at the heart of the court’s decision today. The court’s decision concludes that, for purposes of early in-person voting in the final three days before Election Day, all Ohio voters have a constitutional right to participate in the voting process on an equal basis, and that Ohio lacks a sufficient justification to restrict this right to only UOCAVA voters. The court specifically discounted the state’s proferred justification “that the military requires this extra voting opportunity,” precisely because Ohio’s scheme does not in fact ensure that the military will have this opportunity (slip op. at 19), given that local boards are neither required nor, according to Defendants, even likely to provide early UOCAVA voting on the final weekend before the election.

Yet the court determined that even the remote possibility that some UOCAVA voters might be able to participate in early voting, when other voters cannot, amounted to an Equal Protection violation. Rather than employing a traditional “rational basis” test, the court followed the Supreme Court’s balancing approach, as most recently articulated in the 2008 Indiana voter ID case, Crawford v. Marion County Election Bd., to weigh the asserted injury to the right to vote against the state’s asserted interests. The court readily concluded that the Plaintiffs’ asserted injury to the right to vote was substantial, potentially affecting thousands of disproportionately low-income and minority voters.

As for the state’s asserted interest, the court not only discounted the state’s explanation of its intent to protect military voters, but also discounted the state’s claim that early voting in the days immediately before the election imposed heavy burdens on election officials. Given the lack of a uniform requirement that Ohio counties provide UOCAVA voters with in-person voting on the final Saturday and Sunday, the court focused only on the remaining Monday: “Defendants have presented no evidence to sustain the inference that in-person early voting on Monday – one day – will burden county boards of elections to the extent that the injury to Plaintiffs is justified” (slip op. at 20).

Yet the decision does more than simply require Ohio to equalize (by leveling up) the voting processes for all voters. On the court’s own analysis, that would have entailed merely requiring all Ohio counties to permit non-UOCAVA voters to vote on the Monday prior to Election Day, and also to require individual counties to provide to all voters whatever weekend early voting, if any, they chose to provide to UOCAVA voters. As noted above, under the applicable directive from the Ohio Secretary of State, Ohio counties were only permitted, but not required, to provide early voting for military voters on the final weekend. But under the court’s injunction, that weekend voting is now required for all voters on the final Saturday and Sunday. The court also appears to have imposed this relief without balancing the state’s asserted burdens of conducting early voting on the three final pre-election days, rather than just the final Monday.

In providing fairly sweeping relief to all voters that goes beyond the more modest accommodations to UOCAVA voters that Ohio was actually providing, the decision clearly is an effort to echo Secretary Husted’s expressed desire to “level the playing field” and ensure that Ohio voting is “uniform, accessible for all, fair, and secure” (slip op. at 6). But even a “pure” leveling up decision, which did no more than provide all voters with the same early voting rights already provided to UOCAVA voters, likely would have raised novel issues about the applicability of the Equal Protection Clause. The district court’s effort to provide an even more expansive form of early voting uniformity raises an even more novel question about the scope of the Equal Protection Clause, and whether it supports this degree of judicial leveling up of state voting procedures above the most favorable treatment that the state had chosen to provide one class of voters. Unless Secretary Husted decides that it is in the interest of efficient Ohio election administration to accept the court’s version of uniformity and asks the Attorney General not to appeal the decision, this issue will soon be before the Sixth Circuit.

The decision also highlights a second issue, perhaps more likely to emerge in the longer term. In extolling the importance of clear and uniform voting procedures, the decision is careful to note that the preliminary injunction continues to offer military voters full access (in fact, expanded access, as described above) to early voting. Yet because the decision does very little to distinguish those circumstances in which a state’s different voting processes for military and overseas voters would be constitutional, it also is likely to generate protests that it threatens other special accommodations for these voters. Indeed, that was the primary basis on which various military groups intervened in the case in opposition to the Plaintiffs’ motion for a preliminary injunction.

Over the years, UOCAVA voters have received many accommodations, both in federal and state law, intended to facilitate voting by a group of voters who are not similarly situated to typical voters. In this case, the district court simply was not persuaded that these voters’ needs for early in-person voting in the final three days were sufficiently different from the needs of other voters to justify their different voting opportunities. The court appeared to reach this conclusion in substantial part because the voting options established by the state in fact would not reliably meet these needs. Nonetheless, the court showed no interest in resolving the Equal Protection concern by doing away with UOCAVA voters’ early voting options, in a “leveling down” of the playing field. Nor did the court rely primarily on the Plaintiffs’ assertion, made both in their briefs and at oral argument, that Ohio’s differential treatment of military voters was entirely arbitrary. Instead, the court showed continuing solicitude for UOCAVA voters and state efforts to accommodate their needs.

Nevertheless, the decision appears to be a first in requiring equal treatment of UOCAVA and non-UOCAVA voters with respect to a particular aspect of the voting process. By contrast, in a few previous cases, federal courts had concluded that the Equal Protection Clause was not violated by other specific accommodations for UOCAVA voters. Today’s decision thus may invite more careful attention in the future to the distinctions being made between these categories of voters.



[1] It may seem anomalous to describe in-person voting on Election Day as “early voting,” and indeed that is not the language of the statute. Instead, the provision at issue, O.R.C. section 3511.10 (as no longer amended by HB 194), allows UOCAVA voters to appear in person anytime between the 35th day before Election Day and the close of the polls on Election Day to vote an absent voter’s ballot. Today’s district court decision (slip op. at 6) appears to conflate this provision with O.R.C. 3511.02, which before its amendment by HB 224 provided that a UOCAVA voter could appear in-person to vote an absent voter’s ballot up through “the close of regular business hours on the day before the day of the election.”

Steven F. Huefner has wide-ranging election law experience and interests, including the specific areas of contested elections, term limits in state legislative elections, military and overseas voting, legislative redistricting, and poll worker responsibility and training. Prior to joining the faculty at Moritz, Professor Huefner spent five years in the U.S. Senate's Office of Legal Counsel, where his responsibilities included advising the U.S. Senate in matters of contested Senate elections, as well as assisting in the 1999 presidential impeachment trial. View Complete Profile

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