The Court of Appeals in Cincinnati has agreed with a lower court that the attempts of the Republican Legislature, with the help of Governor John Kasich and Secretary of State Jon Husted, to eliminate voting on the three days immediately before the election violated the Constitution.

The decision is a big black eye to the Republicans.  And it presents them with a clear choice about whether or not to support our military men and women.

The procedural background is important, so it bears repeating.

Ohio law was changed after the 2004 election to permit in-person early voting (as well as “no excuse” absentee voting).  The law provided that any registered voter could cast an absentee ballot at the appropriate board of elections office through the Monday before the election.

As a result of various bills affecting voting in Ohio passed by the Republicans (some of which were challenged by referendum), Ohio eliminated early voting on the three days before the election for everyone except members of the military and their families.

Why did the Republican Legislature do this?

As we had noted before, the effect of this was to make it harder for democrats to vote.  It’s that simple.  The court of appeals confirms we were right.  The court noted that in 2008 approximately 1.7 million Ohioans cast their ballots before election day, which is 20.7% of registered voters and 29.7% of the total votes cast.  The court also noted that “Voters who chose to cast their ballots early tended to be members of different demographic groups than those who voted on election day.  Early voters were ‘more likely than election-day voters to be women, older, and of lower income and education attainment.’”  The court also cited statistics that “early voters were disproportionately African-American and that a large majority of early in-person votes (82% in Franklin County) were cast after hours on weekdays, on the weekend, or on the Monday before the election.”

The Obama campaign challenged the new laws.  The argument from the campaign came down to this:  the Equal Protection Clause in the Constitution prohibits from allowing only some voters to cast ballots on the three days prior to the election.  (We will spare readers the deep legal analysis involving appropriate standards of review and the like.  Go read the full opinion if interested.)

The court agreed with the Obama campaign.  We will spare the details here – they have been fully covered in lots of other places.

There is some confusion about what happens now.

The appeals court noted that the original order of the lower court “clearly restores the status quo ante, returning discretion to local boards of elections to allow all Ohio voters to vote during Saturday, November 3, 2012; Sunday, November 4, 2012; and Monday, November 5, 2012.”

The court cautioned that “the State is not affirmatively required to order the boards to be open for early voting.  Under the district court’s order, the boards have discretion” about whether, when and how to be open on these days.

The law is very confusing because of the mess created by enactments, repeals, referenda, and amendments.  Our best simplified reading of the law is that the Boards of Election must be open on the three days immediately preceding the election for all voters.  This is because the Legislature mandated that all voters be permitted to vote in person, and then removed that right from everyone but military voters.  It was this removal that the courts have held to be unconstitutional, so the “status quo” seems to us that everyone gets to early vote.  The Boards of Election cannot defeat this legislative intent to permit voting on these three days by just not being open.

But we can’t say that we are 100% confident in our reading of this part of the law.  We don’t think anyone can be.

We have heard some concerns that Husted may just order that all Boards of Elections to not be open on these days.  Presumably, Husted would suggest that the Boards of Elections would be over-burdened by permitting early voting on these days.

This would be hard to justify.  A key conclusion of the court is:  “the State has not shown that it would be burdensome to extend early voting to all voters.  Its argument to the contrary is not borne out by the evidence.”

We think the biggest thing stopping Husted from doing this is that this decision would disenfranchise the same military voters that the Republicans claimed (falsely) to be championing and protecting.

Husted and DeWine argued to the court that the unique situation of members of the military, who may be called away at a moment’s notice in service to the nation, justifies extended voting hours on the three days immediately prior to the election.  This is correct.  And we support this worthy and commendable goal.

If Husted tries to eliminate ALL early voting, then the Obama campaign can simply use Mitt Romney’s famous Facebook post about the lawsuit as a template (with one key difference, discussed below).

Romney wrote:

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. The brave men and women of our military make tremendous sacrifices to protect and defend our freedoms, and we should do everything we can to protect their fundamental right to vote.

The Obama campaign can say:

Secretary of State Husted’s decision to not allow servicemen and women extended early voting privileges during the state’s early voting period is an outrage. The brave men and women of our military make tremendous sacrifices to protect and defend our freedoms, and we should do everything we can to protect their fundamental right to vote.

The difference:

Non-partisan fact checking organizations ripped the Romney statement as a falsehood and a blatant misrepresentation.  The hypothetical statement from the Obama campaign would be 100% true.

What to do: email Secretary of State Husted.  Tell him to stand behind our brave men and women of the military and make sure that they are able to exercise the right to vote on the three days immediately before the election.

Why does this help: the Court of Appeals said, “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.” Translation: when military personnel get to vote early, everyone gets to vote early.