Yesterday was a big day in what Rick Hasen has aptly called The Voting Wars. There were three major developments. First, in the wake of increasingly vociferous criticism from Democrats and civil rights organizations (and the New York Times editorial page), Ohio’s Republican Secretary of State, Jon Husted, issued a directive requiring all 88 counties in the state to offer in-person early voting for the same specified days and hours, thereby prohibiting any county from offering fewer or more times when in-person early voting would be available. Second, a federal trial court in Ohio heard the Obama campaign’s challenge to the State’s early voting regime insofar as it permits military voters, but not others, to cast in-person ballots on the Monday immediately before Election Day. The Obama campaign’s lawsuit had assumed that in-person early voting would also be available for military voters, but not others, during the weekend immediately preceding Election Day; but Husted’s new directive appears to eliminate that possibility.
Third, a Pennsylvania state trial court refused to invalidate the State’s new voter ID law in its entirety, leaving open the possibility that individual voters might be able to prevail in a constitutional challenge to the law if and when they are able to show that the law imposes a specifically disenfranchising burden on them. Collectively, these three developments show just how unsettled the legal landscape remains concerning the voting process just a few short weeks before ballots will be cast. In Ohio, early voting begins on October 2—and in Iowa and Virginia (two other swing states in the presidential election) on September 27 and September 22, respectively.