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Fight ends over early voting in Ohio as US Supreme Court refuses to step in

Ohio had sought to cut short in-person early voting this year, but federal courts ruled it could not, citing potential disenfranchisement of older and low-income voters. On Tuesday, the US Supreme Court declined to enter fray in this key electoral state.

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Rather than invading a fundamental right, the new law was merely an inconvenience to voters who had several other means to cast their ballots, they argued.

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“Based on nothing more than supposition, the Sixth Circuit held that this modest reduction of in-person absentee voting disenfranchised thousands of voters,” William Consovoy, special counsel to the Ohio secretary of state, wrote in his brief to the court. “The decision below is unsustainable,” he said.

Aside from the three disputed days, Ohio offers 230 hours of in-person absentee voting, 750 hours of absentee voting by mail, and 13 hours of voting on Election Day, Mr. Consovoy said.

In earlier years, all Ohio voters had been allowed to cast absentee ballots in person on the Saturday, Sunday, and Monday before Election Day. An estimated 100,000 did so in the 2008 presidential election.

In some states, early voting involves opening some of the polls early to allow voters to cast ballots on regular voting machines. Ohio is different.

Early voting in Ohio involves the casting of an absentee ballot. The state provides two methods for casting an absentee ballot – by mail or in person at the local supervisor of elections office.

Early in-person voting began in Ohio on Oct. 2 and under the new law would have continued until the Friday before Election Day. Now, under the lower court rulings, early voting will continue for all Ohio voters from Oct. 2 until Election Day.

Former White House Counsel Robert Bauer, now general counsel of the president’s reelection committee, Obama for America, filed the lawsuit on behalf of the campaign. He argued that if military voters were allowed to cast ballots during the three days prior to the election, other voters should be allowed to vote then as well.

“Nowhere else in the country will an eligible voter be turned away from a single, open polling place because the polling place is open for some voters, but not for that particular voter,” Mr. Bauer wrote in his brief to the court.

He said the lower court rulings merely allow other eligible voters to vote at open polling places during the three days before Election Day.

Any added burden to election officials for keeping their offices open on Saturday, Sunday, and Monday would be offset by shorter lines on Election Day, he said.

In 2008, some 1.7 million individuals in Ohio voted before Election Day – nearly 30 percent of all votes cast.

Bauer said an emergency stay by the high court blocking the earlier rulings would cause harm to the public by restricting the franchise of “a substantial number of Ohio voters” and “creating uncertainty and confusion amongst voters on the eve of the election.”

Others disagree. The new Ohio law created neither a burden nor disenfranchisement, according to 15 Republican attorneys general who filed a friend-of-the-court brief supporting Ohio.

“It is a legal and logical non sequitur to say, as did the Sixth Circuit, that 100,000 Ohio voters who voted in person during the three days preceding the last Election Day will ‘be precluded’ from voting after Ohio’s change,” wrote Michigan Solicitor General John Bursch in the 15 states’ brief.

“What about the 23 days of in-person, pre-election voting?” he asked. “What about mailing in an absentee ballot? And, for at least some substantial portion of those 100,000 voters, what about Election Day?”


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