“President Obama’s lawsuit claiming it is unconstitutional for Ohio to allow servicemen and women extended early voting privileges during the state’s early voting period is an outrage … If I’m entrusted to be the commander in chief, I’ll work to protect the voting rights of our military, not undermine them.”
-- Facebook message from GOP presidential candidate Mitt Romney, Aug. 4, 2012
“In their lawsuit, the Obama campaign and the DNC argue it is ‘arbitrary’ and unconstitutional to provide three extra days of early, in-person voting to military voters and their families. At least 20 times in their legal papers, they argue that there is no good reason to give special flexibility to military voters – and that this policy adopted by the Ohio legislature is so wrong it is unconstitutional.”
-- Memo from Katie Biber, general counsel for the Romney campaign, Aug. 5, 2012
These statements concern a lawsuit that Democrats filed against Ohio’s secretary of state and attorney general to stop a new law that pushes the state’s early voting deadline back by three days for everyone except military personnel and their families. The measure, which was passed by a Republican-controlled legislature in 2011, changed a previously uniform deadline for all residents of the Buckeye State.
Ohio is a closely contested battleground state where the presidential candidates need every vote they can get to win the 2012 election. The state went to Barack Obama in 2008, with more than 1.4 million Ohio voters casting their ballots early, according to the United States Election Project of George Mason University.
Right-wing bloggers have weighed in on the Democratic lawsuit, with Breitbart saying that the president was seeking to “restrict [service members’] ability to vote in the upcoming election.” The Romney campaign fed that notion with its recent comments.
Plaintiffs in this case include Obama’s campaign, the Democratic National Committee and the Ohio Democratic Party. Meanwhile, a group of 15 fraternal military organizations filed a motion last week seeking to add themselves to the list of defendants officially fighting the suit.
We read the court documents for this case and researched Ohio’s new voting law to determine whether Romney and his campaign’s general counsel hit the mark with their comments. Does the Democratic lawsuit really try to undermine the voting rights of service members, arguing, as Biber contends, that “there is no good reason to give special flexibility to military voters – and that this policy adopted by the Ohio legislature is so wrong it is unconstitutional”?
Ohio changed its voting laws after the 2004 election, allowing voters to cast early ballots until the Monday before Election Day — mainly to prevent long lines at polling stations. Obama seems to have benefitted from this during his 2008 presidential run, as many African-American churches drove congregants to the polls after Sunday services.
The state’s Republican-controlled legislature passed a series of voting laws in 2011, bumping the deadline for most residents back to the preceding Friday. But there was a problem: the measures contained conflicting deadlines for military personnel and their families, who benefit from the Uniformed and Overseas Citizens Absentee Voter Act.
Ohio’s secretary of state resolved the matter by clarifying that the previous Monday deadline would still apply to service members. The Democratic plaintiffs contend that this “disparate treatment” of voters is unconstitutional under the Equal Protection Clause of the 14th Amendment. In other words, they think everyone in the state should have the same deadline.
The military groups argue that a win by the Democrats could set a precedent against all special voting rules for military personnel and their families, particularly the Uniformed and Overseas Citizens Absentee Voter Act, which ensures that active service members have an opportunity to vote despite obligations such as overseas deployments and training outside their precincts. They also don’t want Ohio lawmakers to respond by shortening the voting period for service members, although the state could avoid that by extending the deadline for civilians and leaving the military date alone.
Indeed, that’s what the Democrats want. The first sentence of their complaint makes clear that the goal of the lawsuit is to “restore in-person early voting for all Ohioans during the three days prior to Election Day -- a right exercised by an estimated 93,000 Ohioans in the last presidential election.” Never does the filing mention stripping away privileges from service members.
Furthermore, the Democratic complaint expresses unequivocal support for the military deadline, stating that “the Secretary of State appropriately resolved the conflict between the two in-person voting deadlines for UOCAVA voters in favor of the more generous time period.”
The takeaway is that the Obama campaign likes the later deadline but wants it applied to all Ohio voters.
Romney suggested that the Democratic complaint undermines the rights of military members. But the military groups essentially conceded that this is not the express purpose of the lawsuit. Here’s an excerpt from their filing:
“Although the relief Plaintiffs seek is an overall extension of Ohio’s early voting period, the means through which Plaintiffs are attempting to attain it -- a ruling that is arbitrary and unconstitutional to grant extra time for early voting solely to military voters and overseas citizens -- is both legally inappropriate and squarely contrary to the legal interests and constitutional rights of Intervenors, their members, and the courageous men and women of the U.S. Armed Forces.”
Translation: the Democrats only want to extend the civilian deadline, but their legal arguments could be used to deny military voters of special privileges -- collateral damage.
At the end of the day, the Romney campaign has to rely on a slippery slope argument. But there’s really no end to how far politicians can carry this type of logic. Besides, the fact remains that the Democratic lawsuit does not seek to change voting privileges for service members.
Romney worded his statement rather carefully in a way that stops short of accusing the president of purposely trying to limit military voting rights, but the nuance of his remarks will be lost on the average voter.
As for the memo from Katie Biber, who serves as general counsel to the Romney campaign, the plaintiffs’ argument of arbitrariness and unconstitutionality relates only to Ohio’s exclusion of civilians from the later voting deadline, not to the privilege granted to service members. Here’s what the complaint says:
“Whether caused by legislative error or partisanship motivation, the result of this legislative process is arbitrary and inequitable treatment of similarly situated Ohio voters with respect to in-person early voting.”
Again, the emphasis throughout the Democratic complaint is that Ohio should protect the Equal Protection Clause by ordering the state to extend the later deadline to civilian voters. Biber took license in applying the plaintiff’s argument more broadly, suggesting that the Democratic argument of unconstitutionality pertains to the special privileges for service members.
Admittedly, we’re talking about two sides of the same coin, but both Romney and Biber misrepresented the true language and intent of the lawsuit.
The Pinocchio Test
Romney’s statement suggests that the president is undermining the voting rights of Ohio service members. But the lawsuit in question would not change the deadline one way or another for military voters. It simply requests an order for the state to extend its civilian deadline.
The lawsuit doesn’t describe the military privilege as unconstitutional or arbitrary, which is what Romney and Biber suggested. Instead it uses that argument against the separate deadline for civilian voters, in what the Obama campaigns appears to believe is an attempt to supress African-American turnout.
Overall, the facts show obvious contradictions to the statements from Romney and Biber, no matter how carefully they were worded. The Romney campaign earns three Pinocchios.
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