-By Ian Millhiser
August 31, 2012- Last month, President Obama’s reelection campaign filed a lawsuit claiming that a recently enacted Ohio law eliminating early voting in the three days before an election, except for members of the military, violates the Constitution’s guarantee that all voters enjoy equal access to the franchise. The campaign’s lawsuit called for the right of all voters to cast an early ballot be restored in Ohio — it explicitly stated that expanding the franchise, not taking early voting away from military personnel as well, was the appropriate outcome.
In an opinion by Judge Peter Economus, a federal court agreed with the Obama campaign on Friday that the Ohio anti-voter law must be suspended:
“A citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” In Ohio, that right to participate equally has been abridged by Ohio Revised Code ‘ 3509.03 and the Ohio Secretary of State’s further interpretation of that statute with regard to in-person early voting. In 2005, Ohio expanded participation in absentee balloting and in-person early voting to include all registered Ohio voters. Now, “in-person early voting” has been redefined by the Ohio legislature to limit Plaintiffs’ access to the polls. This Court must determine whether preliminary injunctive relief should be granted to Plaintiffs on their claim that Ohio’s restriction of in-person early voting deprives them of their fundamental right to vote. Following Supreme Court precedent, this Court concludes that Plaintiffs have stated a constitutional claim that is likely to succeed on the merits. As a result—and as explained below—this Court grants Plaintiffs’ motion for preliminary injunction.
Amusingly, the court’s opinion relies on the Supreme Court’s infamous decision in Bush v. Gore to reach this holding, citing Bush‘s statement that “[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.” Judge Economus’ decision will be appealed to the United States Court of Appeals for the Sixth Circuit, a Republican-leaning court with a history of legally-challenged partisan decisions benefiting the Republican Party. So it remains to be seen whether Economus’ decision will have staying power.
The Romney campaign, for its part, opposed the Obama campaign’s position in this lawsuit. Had the Romney position prevailed, as many as 900,000 military veterans could have had their right to vote impeded.