A federal district court judge has found that the Ohio law that ended early in-person voting three days before the election for all voters except those but voters serving in the military or living overseas is unconstitutional.
This is big, good news all by itself. But is also serves as another useful illustration of the Romney campaigns willingness to lie and distort the facts, and the media’s unwillingness to call them out on it.
What this means:
All voters may cast ballots in person on the final three days before Election Day. This includes the important Saturday and Sunday before the election.
Why is this important:
When the lawsuit was filed in July, we put up a Post on why this was important. We explained that reports had noted estimated that almost one fifth of early votes were cast in the three days prior to the election. We also cited a Dayton Daily News report concluding that the elimination of early voting on the three days before the election would hurt Democrats more than Republicans.
The Legal Summary
The court’s decision starts with the premise stated in a 1972 Supreme Court decision that “A citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”
Remember the background: after the 2004 election, Ohio established no-fault absentee voting. This included the ability for all voters to vote absentee and/or cast an in person at the board of elections through the day before Election Day.
In 2011, the Republican led General Assembly and Governor Kasich passed some election law changes. The legislative history is a mess, but for purposes of this case what is important is that the Republicans eliminated the last three days of early in-person voting for all voters, except for military members and their families. The exception for military families was needed to comply with federal law.
(The court made the understatement of the election cycle when it wrote: “The Ohio Revised Code provisions regarding early voting are not a model of legislative clarity. The provisions’ language is disorganized and generally confusing, containing numerous deadlines that are not clearly identified.”)
The judge referred to Bush v. Gore in deciding that the elimination of voting on the three days just prior to the election violated the Constitution. In Bush v. Gore, the Court said, “The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having 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.” The court applied this decision to find that the change in the law is unconstitutional because “thousands of voters who would have voted during those three days will not be able to exercise their right to cast a vote in person.” The court also considered statistical evidence that “low-income and minority voters are disproportionately affected by the elimination of those voting days.”
The court rejected claims that the restrictions are necessary to help over-burdened boards of elections. The court also found that the claim that military voters will actually receive extra time to vote under the current scheme is not supported by the facts. “Unless a serviceperson is ‘suddenly deployed’ at exactly the right time—enabling in-person voting on Monday—he or she will likely be unable to vote, depending on the local elections board’s ‘discretion.’ That the State cannot justify its interest in foreclosing Ohio voters for one day emphasizes the arbitrary nature of its action.”
The court restored the three days because “the State’s interests [in eliminating the three days] are insufficiently weighty to justify the injury to” voters.
Husted and Attorney General DeWine have stated that they will appeal. We know why: they are trying to help the GOP by taking away voting opportunities that have predominantly been used by Democrats.
But here’s the thing I: Husted is taking a position that will make it harder for people to vote. The job of the Secretary of State should be to make it easier for people to vote.
But here’s the thing II: Husted should put the Constitution before partisan advantage. He even swore an oath to uphold the Constitution. (Maybe he would even earn some coveted Plunderbund kudos.)
The Media Coverage
In Treehouse of Horror VI, large advertising comes to life and start to destroy Springfield. (Marge: “These monsters are destroying everything and everyone we hold dear! And you kids should have jackets on.”)
Homer has stolen Lard Lad’s donut.
Homer: [answering door] Hello? Yes? Oh. [sees that it’s Lard Lad] Heh heh. If you’re looking for that big donut of yours, um… Flanders has it. Just smash open his house.
[shut door; the sound of giant footsteps recedes]
Homer: He came to life. Good for him!
[Smash! Crumble! Tinkle! Giant footsteps approach; the doorbell rings. Homer opens the door.]
Ned: [running away] Help me, Lord!
Homer: I told you! Flanders has it. Or Moe. Go kill Moe!
Marge: [arriving home in the car] Homer, just give him the donut! Once he has it, that will be the end of all this horror.
Homer: Well…OK. If it’ll end horror.
With his donut back, Lard Lad stands triumphantly in his usual pose — but only for a couple of seconds. He uses the donut to smash the Simpsons roof and a nearby car, kicks a barking dog like a football, and rakes his donut along the roof of every house down the block.
Homer: Don’t you ever get tired of being wrong all the time?
Some of the media has reported this as “a victory for state Democrats and President Obama’s campaign in a swing state.” This is technically true – the Obama campaign had initiated the lawsuit. However, we resist this simplistic narrative, as it reduces disputes about voting rights to a political fight. This is not about one side or the other trying to gain a small advantage; this is a about a fundamental right.
What is interesting to us is if the mainstream media in Ohio will call out the Romney campaign for their false attacks on the lawsuit. Romney’s campaign calling the lawsuit an “outrage” and falsely accused the president of trying to take away early voting rights for members of the military. Eric has a good post on some of those on the right in Ohio who parroted this false claim.
The truth is that the lawsuit was trying to ensure that most voters, including servicemen and women, had the same chance to cast their ballots early. The decision by the court is an unequivocal statement from a judge that the Romney campaign was wrong.
To their credit, the Ohio media has started to call out the Romney-Ryan campaign for its lies. The multiple mis-statements lies in Paul Ryan’s speech at the GOP Convention seemed to have forced some of the media to report on this pattern of misrepresentations do their job.
For example, the Cincinnati Enquirer posted an article (originally from USA Today) that said, “Paul Ryan’s acceptance speech at the Republican convention contained several false claims and misleading statements.” The Cleveland Plain Dealer posted an AP story that begins, “Paul Ryan took some factual shortcuts Wednesday night when he attacked President Barack Obama’s policies on Medicare, the economic stimulus and the budget deficit.”
What about the Columbus Dispatch? The Dispatch posted the exact same AP story, but engaged in some, um, editing. The story was softened a bit to make it seem more like standard political hyperbole rather than false statements: “The Republican National Convention is drawing to a close with some slippery statements from its presidential ticket. . . Paul Ryan ignored conspicuous parts of his own record on budget cuts, the stimulus and Medicare in his haste to accuse President Barack Obama of taking the economy off the rails.” This softening of stories and headlines has become a sad and common practice by the Dispatch.
We mention this because after the lawsuit was filed, the Dispatch published an editorial criticizing the lawsuit. Here is what they wrote:
[I]f successful, the lawsuit ultimately might result only in denying members of the military their three-day voting privilege, and gain nothing for other voters.
If a court agrees with Obama that current law is unfair to the majority of Ohio’s voters, state lawmakers might decide to restore fairness by limiting military voting to the Friday before Election Day, to conform with the rules now in place for all other Ohioans. Net result, the majority of Ohio’s voters gain no additional voting days and Ohio’s military voters lose three extra days of voting that they currently have.
We are pretty sure that nobody in the Obama campaign has suggested that Ohio eliminate early voting for everybody.
Now, here is what the judge wrote: “[T]his Court notes that restoring in-person early voting to all Ohio voters through the Monday before Election Day does not deprive [military] voters from early voting. Instead, and more importantly, it places all Ohio voters on equal standing.”
So what we would like to see is some good, hard reporting on the fact that the judge’s ruling establishes that Romney lied about the nature of the lawsuit. Of course, we don’t expect that to really happen. #DispatchFail.