Last Friday, a federal court judge in Ohio issued an order in Obama for America v. Husted directing the State of Ohio to restore early voting for all Ohio voters on the three days before Election Day 2012. On Tuesday. Secretary of State Jon Husted issued a directive in response to the order. The directive notes that the order is being appealed and states, in pertinent part:
Announcing new hours before the court case reaches final resolution will only serve to confuse voters and conflict with the standard of uniformity sought in Directive 2012-35 [concerning early voting]. Therefore, there is no valid reason for my office or the county boards of elections to set hours for in-person absentee voting the last three days before the election at this time. If the appellate courts ultimately reverse the trial court’s decision, in-person absentee voting for non-UOCAVA voters will end the Friday before the election. If however, the appellate courts uphold the trial court’s decision, I will be required to issue a consistent uniform schedule for statewide in-person voting hours for the last three days before the election. I am confident there will be sufficient time after the conclusion of the appeal process to set uniform hours across the state.
Setting aside the (considerable) political heat that it will generate, Husted’s directive is a useful example of the dilemma that the election field faces when court calendars and election calendars collide. We’ve already talked quite a lot on this blog about the danger of leaving election controversies to the last minute, given the potential for uncertainty about the “rules of the game” before, during and after Election Day. Given that we do not (yet) live in a perfect world where the rules are clear weeks (dare I say months?) before the election, court orders changing election procedures – especially those where the outcome could change on appeal – create a difficult choice for election policymakers