Ohio asked the Supreme Court on Tuesday to overturn a federal appeals court’s ruling that the state must allow all voters to cast ballots on the weekend before the election, not just those in the military.
A panel of the U.S. Court of Appeals for the 6th Circuit sided with state Democrats and President Obama’s reelection campaign last week and said the state had not shown why in-person voting during the Saturday-Monday period should be offered to only one group of voters.
Ohio Secretary of State Jon A. Husted (R) called that an “unprecedented intrusion” by federal courts. “We are asking the Supreme Court to step in and allow Ohioans to run Ohio elections,” he said in a statement.
Obama campaign general counsel Bob Bauer criticized Husted for choosing to “extend the litigation.”
“It is a shame that the secretary would not have committed his office’s energy instead to implementing the outstanding court orders and administering the orderly and effective early voting process that has served Ohio voters so well since 2005,” Bauer said.
In past elections, it has been up to individual Ohio counties whether to offer voting on the weekend before the election. The state’s Republican leadership changed that this year, saying that only military members should be allowed to vote then.
Ohio officials said that local election boards needed the weekend to prepare for Election Day, but that military voters deserve special treatment because they can be deployed at any time.
The appeals court, however, said that local jurisdictions do not have to offer voting on the weekend, but that if they do, it must be open to all.
“While there is a compelling reason to provide more opportunities for military voters to cast their ballots, there is no corresponding satisfactory reason to prevent non-military voters from casting their ballots as well,” Circuit Judge Eric L. Clay wrote for two other judges.
“The public interest . . . favors permitting as many qualified voters to vote as possible,” he added.
It is unclear whether the Supreme Court would want to get involved in the partisan Ohio dispute at this late date. The Saturday in question is 25 days away.
Daniel P. Tokaji, an election law specialist and law professor at Ohio State University, said it is difficult to predict what the justices will do, “but I’m going to go out on a limb and say it’s hard to see any good reason for them to take it.”
Husted criticized the court’s ruling that left the decision up to local boards of elections.
“The court is saying that all voters must be treated the same way under Ohio law, but also grants Ohio’s 88 elections boards the authority to establish 88 different sets of rules,” Husted said. “That means that one county may close down voting for the final weekend while a neighboring county may remain open.”
But that is how the system operated in 2008. And Tokaji said there is an obvious solution: Husted could require all counties to offer early voting.
“There’s one person in Ohio who has the power to fix that, and it’s Husted,” Tokaji said.
Husted said Ohio already is leading the way in voting access. Early in-person voting began on Oct. 2, and more than 60,000 of the state’s 7.9 million voters have cast ballots.
In addition, more than 1.1 million ballots have been requested under Ohio’s lenient absentee-voting rules.
“As a swing state, we in Ohio expect to be held to a high standard and level of scrutiny when it comes to elections,” Husted said in his statement. “However, it’s troubling that the federal courts have failed to recognize that there isn’t another state in the union which can claim Ohio’s broad menu of voting options and opportunity to vote.”