Ohio’s voting system was famously mocked by Homer Simpson.  You’ve no doubt seen many times the famous clip of Homer who, after noticing rigged voting, says, “This doesn’t happen in America.  Maybe in Ohio . . .”

Really, all you need to know about the history of Ohio’s voting system is that – and we swear this is true – Ohio counties purchased punch card voting machines from Florida for use in the 2004 Presidential election.

Remember 2004?    There were long lines to vote in many precincts (especially in cities), machine shortages and breakdowns, confusion with provisional ballots, etc.  . . THAT is why the law was changed for the 2008 election, and one of the reasons that early in-person voting was created.

Last week, the Sixth Circuit Court of Appeals ruled that the Ohio Legislature could not eliminate the ability of all voters to cast in-person votes at the boards of elections while retaining that right for just military voters.  The court said, “there is no corresponding satisfactory reason to prevent non-military voters from casting their ballots as well.”

Which is why Husted’s decision to appeal the decision of the Sixth Circuit Court of Appeals to the United States Supreme Court is so depressing.

This litigation continues to cost the state a lot of money.  Husted’s appeal to the Supreme Court is wasted money because it has very little chance of success.  One attorney we discussed this with said, “Very low, slim odds that U.S. Supreme Court will even take [the] appeal, let alone rule in his favor.”  Another attorney, who is a member of the Supreme Court bar and who correctly told us what the Supreme Court would do on the Affordable Care Act, said, “After the Citizens United decision, Justice Roberts seems to care a lot about improving the image of the Court as a non-partisan institution, so I don’t think that he wants to see the Court in the middle of a case that could affect a close election.”

Husted – who is not an attorney – called the ruling “an unprecedented intrusion by the federal courts into how states run elections.”

He could not, as Abe noted yesterday, be more wrong.  Abe asks us to speculate on Husted’s motives for the appeal — perhaps he just wants to create more confusion about voting, with the hopes that this will discourage some people from voting.

Regardless of motives, let’s unpack this statement to see where he goes wrong.

Unprecedented”  Ever hear of Bush v. Gore?  Now THAT was an unprecedented intrusion.  So much so that the Supreme Court warned that its decision should not be cited as precedent (something lower courts have routinely ignored).  In this case, the federal court’s decisions are consistent with a long and well established history of the federal courts acting to make sure the state voting law changes comply with federal constitutional mandates.

How states run elections.”  The federal court decisions do not micro-manage Ohio’s election laws.  Rather, they simply invalidated a change in the law that had a disproportionate effect on minority and urban voters.  Moreover, even if one were to believe that the courts in this case were being “activist” (and we don’t), they were being activist in order to prevent one party from making changes in the election laws for partisan benefits.

An unanswered question remains:  Husted suggested that one of the problems with the court decision was that all 88 counties could impose different rules — which we take as a threat to consider telling all 88 Boards of Elections to be closed on these three days for the benefit of state-wide “consistency.”  So why can’t Husted or all Ohio Boards of Elections just eliminate the last three days of voting for everyone.

Three reasons.

First, we continue to believe that Ohio law, following the court decision, requires the Boards of Elections to be available for early, in-person, voting on the three days immediately preceding the elections.  We acknowledge that Ohio law on this is not clear, so this is our best reading of the law (be warned that we don’t have a substantial amount of confidence in this conclusion).  What is clear, however, is that there was a Legislative intent to permit early voting on these days, conclusively evidenced by the fact that it occurred in 2008.  While Boards retain the discretion to set reasonable time restrictions, they cannot defeat this legislative intent by simply saying, “sorry, we decided to close.”

The Sixth Circuit held that Boards should return to the “status quo.”  We read that broadly as, “how things were in 2008 before the Legislature started messing around with Ohio’s election laws.”

Second, eliminating these days of early voting would create two distinct constitutional problems.

An equal protection challenge problem would arise because elimination of in-person voting on the three days prior to the election would have a disproportionate impact on urban and minority voters.

A due process challenge could also be premised on the fact that overcrowded conditions – which would be created by the elimination of in-person voting on the three days immediately preceding the election — would effectively deprive some people of the right to vote.  This is what happened in a 1969 Illinois case, Ury v. Santee, 303 F. Supp. 119 (N.D. Ill. 1969).  In that case, the court noted voters who were required to wait hours to cast a ballot would be effectively disenfranchised.  This case was cited by the Sixth Circuit – the same court that just ruled against Husted — in a 2008 case, League of Women Voters of Ohio v. Brunner, 548 F.3d 463 (6th Cir. 2008).  In the 2008 case, the Sixth Circuit noted allegations of unreasonable delays and other problems in voting “could establish that Ohio’s voting system deprives its citizens of the right to vote or severely burdens the exercise of that right.”

Third, this would be a politically devastating decision by Husted.  As we noted, Husted has vigorously argued that military personnel need to be able to vote on these three days.  (Also:  Ohio likely needs to make voting available on these days for military personnel to comply with a Federal law.)  As we noted before, if Husted decides to end voting for everyone, he is effectively disenfranchising a lot of military personnel.  That is why we urge people to contact Husted’s Office and make sure he does everything he can to help our military personnel vote early – even if that means he has to let everyone vote early, too!