Choose Your Uncertainty: Ohio SoS Goes Slow on Early Voting Pending Appeal


[Image courtesy of renewableenergyworld]

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. [emphasis added]

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:

1. Implement the court order and begin notifying voters of the new rule, with the risk of having the rules change back and telling voters, in essence “never mind” (creating confusion); or

2. Wait to implement the order until the issue is completely settled on appeal, with the risk that a final decision will come so late that there is little time to notify voters (creating confusion).

The thing to keep in mind, however. is that neither of these choices eliminates uncertainty – indeed, either one of these choices involves some potential for voter confusion. The choice is not whether or not to avoid uncertainty but rather which kind is more acceptable.

Secretary Husted has clearly chosen Door #2 – a wait and see approach that likely reflects some belief that his views will prevail on appeal. I also wouldn’t be surprised if his decision also reflects an understanding of the Obama campaign’s deep interest in re-opening early voting, which will ensure that most affected voters will be kept up-to-date on the “rules of game” right up until Election Day.

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