Ohio Secretary of State Jon Husted to appeal early voting decision to U.S. Supreme Court

JON-HUSTED.JPGOhio Secretary of State Jon Husted

COLUMBUS, Ohio - Ohio's elections chief wants to take his legal battle with the Obama campaign over early voting all the way to the U.S. Supreme Court.

Just four weeks from Election Day, Republican Secretary of State Jon Husted on Tuesday appealed to the Supreme Court last week's federal appellate court ruling that allowed early voting the weekend before the Nov. 6 election in this battleground state.

Husted said the ruling, which lets each of Ohio's 88 counties set their in-person early voting hours for the three days before the presidential election, is an "unprecedented intrusion" into the state's ability to run its own election.

"We believe Ohioans should set the rules for Ohio elections, not the federal court system," Husted said in an interview.

Husted's appeal is an attempt to preserve Republican legislation to end in-person early voting on the Friday before Election Day for non-military voters.

Democrats pounded Husted for his appeal, accusing him of voter suppression and creating confusion about in-person early voting -- a window when voters can visit a board of elections to cast a ballot before Election Day.

A recent analysis of voting patterns showed restrictions on in-person early voting in Ohio would discriminate against black voters. Another study estimated that more than 100,000 Ohioans voted in-person the weekend before the 2008 election.

"With this appeal, secretary Husted has demonstrated that he would rather cling to an oppressive state law than protect voters and their constitutional right to fair and equal access to the ballot box," Congresswoman Marcia Fudge, a Democrat from Warrensville Heights, said in a statement.

Previous Plain Dealer coverage

  • In resisting final-weekend voting, Husted takes the wrong fight too far: Plain Dealer editorial (
  • In deep-blue Cuyahoga County, Republicans outpacing Democrats in early ballot requests (but Democrats returning them at a faster clip) (
  • Early voting adds intensity and pageantry to the Obama and Romney ground games in Ohio (
  • Federal appeals court puts early voting back in hands of local boards of election (
  • What you need to know about voting early in the presidential election (
  • Absentee ballot requests up in Cuyahoga County compared to 2008 (
  • Cuyahoga County officials encourage early voting to avoid long lines on Election Day (
  • Ohio Secretary of State Jon Husted rescinds order blocking early voting hours, asks court for stay during appeal (
  • Ohio's Secretary of State Jon Husted must appear in federal court to explain delay in restoring early voting (
  • Husted bars local election officials from setting early voting hours pending appeals court decision (
  • Judge overturns Ohio law, restores in-person early voting in 3 days leading to Election Day (
  • Ohio Secretary of State Jon Husted decides against extended hours for in-person absentee voting (
  • Ohio Secretary of State Jon Husted eases restriction on absentee voting (

Husted dismissed his critics, saying Democrats are inconsistent in setting their priorities for fair elections.

"They get to believe in one thing one election cycle, and another thing in another election cycle," Husted said. "I run elections. They just get to sit there and complain."

The dispute began with the passage of GOP-backed laws, dating to last year, to restrict early voting for non-military voters. The Obama for America campaign sued to challenge the restriction in July, claiming it was unconstitutional because military voters had more early voting opportunities.

The campaign won at the district court level, and many interpreted the decision as an order to provide early voting on the final weekend for everyone.

But the appellate judges, in affirming the ruling on Friday, reinterpreted it, finding that it puts the decision into the hands of boards of elections.

Husted said the ruling would set different early voting hours in different counties.

"That means that one county may close down voting for the final weekend while a neighboring county may remain open," he said. "How any court could consider this a remedy to an equal protection problem is stunning."

In addition to his appeal, Husted asked for a stay of the appellate court's decision that prevents the state from enforcing the laws that restrict early voting on Nov. 3, 4 and 5.The Supreme Court is not obligated to take up Husted's appeal and review the U.S. Sixth Circuit Court of Appeals' decision.

Two legal experts had their doubts the high court would hear the appeal.

"My prediction, looking at the legal arguments, is either the Supreme Court does not touch it, or if it does, it affirms the decision," said Joshua Douglas, a professor with the University of Kentucky College of Law who specializes in election law.

Douglas said the state has not been successful in making its case that cutting off early voting for non-military voters eases the burden on local election officials.

Edward Foley, director of the election law program at Ohio State University's Moritz College of Law, said the previous rulings have demonstrated a consistency.

"Basically, four federal judges took a look at this and said this Ohio law is convoluted and shouldn't be able to take effect for this election," Foley said. "Is it absolutely imperative for the U.S. Supreme Court to get involved? It doesn't feel that way to me."

Husted said he will consult with all 88 county boards of elections to craft an order for uniform early voting hours should his appeal fail.

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