Wednesday, July 18, 2012

Obama Campaign Files Complaint Alleging Changes in Ohio Early Voting Law Violate Equal Protection

461px-1827_Finley_Map_of_Ohio_-_Geographicus_-_Ohio-finley-1827The Obama Campaign, Democratic National Committee and Ohio Democratic Party filed a complaint in the Southern District of Ohio today arguing that Ohio's recent changes to its early voting laws violate the Equal Protection Clause.

The complaint in Obama for America v. Husted sums up the problem thusly:

Taken together, [Ohio] Amended Substitute House Bill Number 194 (“HB 194”), Amended Substitute House Bill Number 224 (“HB 224”) and Substitute Senate Bill Number 295 (“SB 295”), all enacted by the 129th Ohio General Assembly, impose different deadlines for in-person voting prior to Election Day (“early voting”) on similarly situated voters. Prior to the enactment of these laws, there was a single uniform deadline of the Monday before Election Day for in- person early voting. After the enactment of these laws, voters using the Uniformed and Overseas Citizens Absentee Voter Act (“UOCAVA”) may vote early in-person at a board of elections office up through the Monday before Election Day, while non-UOCAVA voters can vote early in-person at a board of elections office (or designated alternate site) only up until 6 p.m. on the Friday before Election Day.

As the accompanying Motion for Preliminary Injunction and supporting memo argues, eliminating the last three days of early voting for non-UOCAVA voters only was most likely the result of legislative confusion.  Yet such legislative error cannot form even a rational basis supporting the classification.  Additionally, the Motion argues,

to the extent the disparity was motivated by a bare desire to obtain partisan advantage in the election contest, that motivation cannot justify the disparate treatment. Early voting in Ohio has been most prevalent among groups of voters believed to vote Democratic including women, the elderly, and those with lower levels of income and education. But a voting restriction motivated in part by partisan considerations must also have an independently sufficient justification to survive.

Motion for PI at 23 [citations omitted]

Some might wonder if the Obama attorneys cite Bush v. Gore?  Yes and No.
In its explanation of equal protection doctrine application to the fundamental right to vote, the memo cites Hunter v. Hamilton Cnty. Bd. of Elections, 635 F.3d 219 (6th Cir. 2011), and twice includes Hunter's quotations from Bush v. Gore

The fundamental right to vote is not limited to “the initial allocation of the franchise,” but includes “the manner of its exercise.” Hunter, 635 F.3d at 234 (quoting Bush v. Gore, 531 U.S. 98, 104 (2000)). . . . Of course, states have substantial latitude to design and administer their elections; for example, they may choose to allow or not to allow early voting. But “[h]aving once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Hunter, 635 F.3d at 234 (quoting Bush, 531 U.S. at 104- 05) (emphasis added)).

The equal protection argument seems compelling, unless the legislature can demonstrate some justification for the difference between UOCAVA voters and non-UOCAVA voters who are both voting in-person before the election.

[image: 1827 map of Ohio via]

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