As the November 6 election approaches, the eyes of the nation are on the Buckeye state, one of the key battleground states that will decide the presidential decision.  A recent decision by the Sixth Circuit has further brought Ohio into the national spotlight.  In Obama for America v. Husted, Nos. 12-4055/4076 (pdf), the panel affirmed a district court’s decision granting the plaintiffs’ motion for a preliminary injunction to enjoin the state from enforcing Ohio Revised Code § 3509.03 to the extent that it permits military and overseas voters to cast early ballots until the day before the election while ending early voting for other Ohio residents on November 2. 

In determining whether the disparate treatment of different categories of voters violated the equal protection clause, the Sixth Circuit applied the Anderson-Burdick balancing test which requires a “court considering a challenge to a state election law [to] weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiffs’ rights.”  Plaintiffs presented evidence that estimated that approximately 100,000 Ohio voters would have chosen to vote during the three day period before Election Day and that these voters were disproportionately women, older, and of lower income and education attainment.  Because the Sixth Circuit agreed with the district court that Plaintiffs’ right to vote was burdened, the Court next looked to the State’s justification for eliminating in-person early voting for non-military voters during the three days before Election Day.  In support of the law, the State argued that local election boards were too busy during this three day period to accommodate non-military early voters and that “the unique challenges faced by military service members and their families justify maintaining in-person early voting for them but not for other Ohio voters.”

While the Sixth Circuit recognized that elections place significant burdens on boards of elections, it noted that the state failed to show that the 2012 election would be more onerous than other elections that were administered without eliminating in-person early voting for non-military Ohioans in the three days prior to the election.  Further, there was evidence that increased early in-person voting actually alleviates the burdens on boards of elections by spreading out the demand for voting over more days and thereby reducing lines and wait times at polling places.  There was also no evidence presented that early voting would cause significant financial hardship.  As such, the Court found that the State failed to show that its regulatory interest was sufficiently weighty to justify the burdens imposed on Ohio’s non-military voters.  With respect to the State’s second justification, while the Court recognized the desirability of providing ample opportunity for military voters to cast their ballots, it found “no corresponding satisfactory reason to prevent non-military voters from casting their ballots as well.”  Accordingly, the Sixth Circuit determined that the grant of a preliminary injunction was appropriate and affirmed the district court’s decision. 

On Election Day, the results for the election between President Obama and Governor Romney are likely to be close, which magnifies the importance of this decision, particularly in a critical swing state.  Brace yourself – there could be more election cases before all of the votes are counted!