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Ohio early voting case now ready (UPDATED)

UPDATED Saturday 10:25 p.m.   Clearing the way for the Supreme Court to act swiftly, state officials in Ohio on Saturday night filed their reply brief in 12A338, completing briefing on whether the Court will allow the state to restrict early voting in advance of election day, November 6.  The state renewed its plea to block lower court orders that required that all voters be allowed to cast votes on the final weekend before November 6.   If the Court does not put those orders on hold, thus allowing the early voting limits to take effect temporarily, the state officials argued that the Court should treat their plea as a request for review on the merits now, and summarily overturn the lower court orders by upholding the early voting restrictions, without further briefing or argument.  They argued that time before the election is fleeting, so a swift answer is necessary.


President Obama’s reelection campaign staff and Ohio Democrats urged the Supreme Court on Friday evening not to allow Republican leaders in that crucial electoral state to shut down early voting on the final weekend before election day on November 6.  In a forty-one-page filing, lawyers for the Democrats argued that closing the polls on those days would mean that tens of thousands of voters might not be able to vote at all.  Besides, they contended, Ohio has tried to put into effect a unique system so this dispute will affect voting in no other state.

Ohio’s GOP-led state government asked the Court earlier this week to block a Sixth Circuit Court ruling that requires that all registered voters be allowed to cast ballots in person at election offices around the state on Saturday, Sunday, and Monday of the weekend just before the regular election day.   The plea was filed with Justice Elena Kagan, who acts as the Circuit Justice for emergency matters in the Sixth Circuit geographic area, which includes Ohio.  She has not yet indicated whether she will act alone, or share the issue with her colleagues.  (The state’s application was discussed in this post on Tuesday.)

Answering on Friday, lawyers for the President’s campaign and for national and state Democrats said the state was trying to draw the Supreme Court into a dispute that focuses only on facts, and they noted that the facts were determined the Democrats’ way by two lower courts.  Directly challenging what state officials are attempting to do, the Democrats’ document said: “The Ohio system that the courts below enjoined is as arbitrary as it is unique: nowhere else in the country will an eligible voter be turned away from a single, open polling place because the polling place is open for some voters, but not for that particular voter.”

Ohio officials, while ordering that no voting take place after the evening of Friday, November 2, until election day itself, made an exception for military service members and their families on the theory that they might be called away suddenly to go overseas on assignment.   Lower courts ruled that that was not a sufficient reason to exclude all other voters — including police officers and firefighters who, also, might be summoned to duty suddenly.   The lower courts decided that it violates the Constitution’s guarantee of equality to open the polls that weekend to some voters, but not to all voters who are eligible.  With voting allowed that weekend for all, the lower courts said, the military will be able to cast votes then, too.

The Democrats picked up the support for their side in this dispute by a group of Democratic state senators (their amicus brief is here), while the state’s leaders picked up the support of fifteen other states (their amicus brief is here).  In addition, the state also gained support from military and veterans’ organizations, who had also taken part in the lower court proceedings (their amicus brief is here.)

Although the filings in the case are all focused on legal issues, the underlying political context of this dispute revolves around efforts by Republican officials in a wide array of states to adopt new restrictions on voting, which Democrats contend are aimed at cutting down voting by groups that traditionally vote Democratic — especially voters who are poor or are members of minority groups.   A number of those GOP efforts have been stymied in lower courts.   So far, the Supreme Court has not been drawn deeply into this fray, but the Ohio case puts before the Justices a conflict that is focused on the one state that almost all political observers believe holds the balance of electoral power between President Obama and GOP presidential nominee Mitt Romney.

So far, the constitutionality of the Ohio system is not before the Supreme Court.  What is at stake at this point is whether Justice Kagan, or the full Court, will block the Sixth Circuit Court and the order by a district judge in Ohio forbidding the state to close voting places to non-military voters on that final weekend before election day.  The state’s leaders asked for a postponement so that they could go ahead and shut down voting, except for the military, as of 6 p.m. that Friday; Ohio plans to file a formal appeal later to challenge the validity of the lower courts’ decisions against it.

The Democrats’ answering brief Friday evening argued that there is no realistic chance that the Supreme Court will grant review of Ohio’s coming appeal, so there is no justification for blocking the lower court decisions at this stage. But the Democrats also disputed the states’ claims on the merits, saying that Ohio election officials will not be unduly burdened if they allow all eligible voters to cast ballots that weekend, and countered the state’s argument that there is no proof that any voters will be unable to cast their ballots.  Lower courts, the new filing noted, found that voting on the final weekend days would be most likely among lower income and less-educated people, who would be unable to get off of work to cast ballots before election days on other days when that is allowed.

The Democrats also suggested that the state legislature and state election officials had caused disruption of the early voting system when they “arbitrarily changed [the system] through a confused and conflicting flurry of legislative enactments, repeals, and technical correction.”  Ohio, the new filing said, has been allowing early voting without serious problems in recent years, including in the 2008 and 2010 elections, and there is no indication that officials cannot handle early voting this year again.

Ohio moved to an early-voting system after what was widely considered an election debacle in 2004, when there were long lines at polling places, and many people had to wait until early in the morning to cast votes, and some simply gave up.

Recommended Citation: Lyle Denniston, Ohio early voting case now ready (UPDATED), SCOTUSblog (Oct. 12, 2012, 7:31 PM),