Above the law

Is Husted Trying to Fix the Election for Romney?

By A.J. Wagner

In Ohio, laws are being passed, repealed, challenged and ignored with a strange mix of legislation, referendum, law suits, directives and bullying in an effort to restrict early voting, especially for the last weekend prior to the election.

Why is this last weekend so important? Recall the presidential election of 2004 when George W. Bush defeated John Kerry by the slimmest of margins in Ohio. Polling places in our cities and near campuses were stymied by long lines where citizens waited for hours in cold and rain for the chance to cast their ballot. It is estimated that tens of thousands may have left those lines and given up on their right to vote because they could not afford the time or endure the sacrifice that was being required of them – a sacrifice not required at suburban and rural polling places where there were sufficient voting machines to keep lines short.

As remedy to this situation legislation was passed that allowed an expansion of early voting by opening the boards of elections around the state for early voting on evenings and weekends leading up to an election. This took significant pressure off of polling places on Election Day. It is estimated that the last weekend before the election of 2008 in Ohio, 93,000 votes were cast. The total early voting in 2010 exceeded 17 percent of total votes cast. It should be no surprise that African-Americans came out in large numbers for early voting after they bore the brunt of the long lines of 2004, a situation they did not want to see repeated. Consequently, early voting has leaned toward Democrat candidates.

Now, with another close presidential election pending, and with a Republican governor, Republican controlled legislature and a Republican secretary of state in Ohio every effort is being made to stop early voting and take us back to 2004.

The first bill to peel back early voting in Ohio was House Bill 194. That legislation:

-Shortened mail-in voting from five to three weeks and in person voting from five weeks to two weeks

-Eliminated early voting opportunities in the evenings, Saturday afternoons and Sundays, including the final weekend before the election

-Required minimum precinct sizes only in municipalities, sure to create longer lines in urban areas

-Stopped the county board of elections from sending absentee ballot applications to all voters.

Hundreds of thousands of signatures were collected to put a referendum on the ballot this November for citizens of Ohio to determine whether the law should stand. That put the law on hold, but fearful that it might be repealed the legislature repealed the law on its own and replaced it within Senate Bill 295, which was signed on May 15. With 194 repealed, and another Bill passed in its place, questions remain as to whether weekend voting should be allowed. Some statutes now say “yes” and others say “no.” Regardless, Secretary of State John Husted removed the citizen-approved referendum from the ballot without any statutory authority to do so.

All of this is against the backdrop of a federal law, which requires that early voting be available for soldiers under the Uniformed and Overseas Citizens Absentee Voter Act.  This federal law must be implemented regardless of state laws.

Husted also issued a directive ordering that boards of election be open during certain hours from Monday through Friday leading up to the election. The order said nothing about weekends, but the secretary fired two Montgomery County Board of Elections members who dared to request that offices be open on weekends.

The Obama Campaign, concerned about the limitations being imposed, brought a lawsuit asking that voting be allowed on the weekend prior to the election.  The Campaign claimed that voting must be available by federal law for soldiers and other voters cannot be treated differently. Therefore, under equal protection laws, everyone should be permitted to vote the weekend before Nov. 6.

Interestingly, Husted argued in the federal court that his directive did not prohibit early voting on weekends, so individual boards could decide to open for soldiers should they choose. This, of course, contradicts his reasons for firing the Montgomery County board members.

The federal court ruled that Husted must open the boards for voting the weekend before the election so that everyone can vote on an equal basis. Now Husted has told the local boards of elections, by another directive, that they are not to heed the court order.

Husted says that he is appealing the order and doesn’t want to cause confusion, but the proper remedy for delaying a court order is to ask the court or the appeals court to delay the order. Husted has no legal authority to disobey a court order otherwise.

Ohio Secretary of State John Husted, a man above the law.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at AJWagner@DaytonCityPaper.com.

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