Today’s federal district court ruling in Obama for America v. Husted raises several interesting issues. The case, which began only last month, quickly achieved some notoriety as an attack on military voting rights protected both by state law and by the federal Uniformed and Overseas Citizen Absentee Voting Act (UOCAVA), though in fact it was merely an effort to leverage some of the additional accommodations that Ohio was offering military (or UOCAVA) voters into a basis for restoring early in-person voting for all Ohio voters. In that regard, today’s decision provides exactly the relief that the Plaintiffs desired, subject to an appeal to the Sixth Circuit. Before exploring some implications of today’s decision, it may be helpful to consider some background. From 2005 to 2010, Ohio’s early voting law permitted early in-person voting up through the Saturday, Sunday, and Monday before Election Day, a three-day period during which close to 100,000 voters may have voted in the 2008 presidential election. In 2011, however, the Ohio legislature amended the applicable statutory provisions to halt early voting at 6:00 p.m. on the Friday before Election Day. Unfortunately, the legislative process by which Ohio arrived at this reduced early voting period was not a model of clarity.
First, in June 2011, the legislature passed HB 194, a package of election law measures one of whose purposes was to establish the new Friday 6:00 p.m. deadline for all voters, both military and non-military. The bill was opposed by the Democratic minority in the legislature, and opponents quickly began contemplating a popular referendum to undo the changes. But almost immediately after its passage, the legislature apparently realized that in enacting HB 194 it had overlooked two other existing code sections, one for UOCAVA voters and one for all other voters, that specified the close of business on the Monday before the election as the end of early voting, three days later than the Friday deadline newly established by HB 194.
Meanwhile, the Ohio legislature was working on HB 224, a measure intended primarily as an effort to incorporate into Ohio law certain features of the Uniform Military and Overseas Voters Act (as promulgated by the Uniform Law Commission in 2010). HB 224, as an effort to facilitate voting by the military and overseas voting community, received widespread bipartisan support. Without controversy, it also became a vehicle to make “technical corrections” to the two code sections overlooked in HB 194, in order to bring all the early voting deadlines into harmony at 6:00 p.m. on the Friday before the election. With a bipartisan supermajority, the legislature was able to enact HB 224 in July 2011 as an “emergency measure,” a law not subject to a potential referendum.