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Courts have yet to resolve Ohio election fights

Legal battles have yet to be resolved in the pivotal state of Ohio over early voting and how to deal with mishandled ballots.

The Republican-controlled state government is asking the U.S. Supreme Court to allow Ohio to have two separate deadlines for early voting – Monday, Nov. 5 for members of the U.S. military and Friday, Nov. 2 for everyone else.

Last minute legal briefs were filed over the weekend, which means the justices could deliver a decision any day now.


State Attorney General Mike DeWine must decide whether to pursue an appeal in a separate case, after federal courts ruled that the state is required to count votes cast in the wrong precinct.

Ohio, like 31 other states and D.C., allows early in-person voting in the days leading up to the general election. The Ohio legislature decided to adopt the practice after the state's disastrous experience of 2004, when voting machine breakdowns and other problems caused people to stand in line for as long as 12 hours on election day.

In 2008, roughly 1.7 million Ohio residents voted early, making up about 30 percent of the total turnout. About 100,000 of those votes were cast during the final three days before the election.

But legislative changes to Ohio's election procedures in the last two years produced an apparently unintended consequence. The deadline for early voting was changed to the Friday before the general election, barring counties from allowing in-person voting on the Saturday, Sunday and Monday before Election Day.

Separate legislation on procedures for members of the U.S. military inadvertently set two deadlines for them – both the Friday and the Monday before the election. The Ohio secretary of state then ordered local election officials to honor the later deadline for military members only.

The Obama campaign and Ohio Democrats immediately sued, accusing the state of trying to suppress the turnout among older and poorer voters, those most likely to go to the polls early and improperly discriminating between military and non-military voters. The state responded that election officials needed those three days to prepare for Election Day.

Two federal courts blocked the earlier deadline for non-military voters, ruling that the state cannot value one person's vote more than another.

According to the ruling by a panel of the Sixth Circuit Court of Appeals:

"With no evidence that local boards of elections have struggled to cope with early voting in the past, no evidence that they may struggle to do so during the November 2012 election, and faced with several of those very local boards in opposition to its claims, the State has not shown that its regulatory interest in smooth election administration is 'important,' much less 'sufficiently weighty' to justify the burden it has placed on non-military Ohio voters."

In a separate legal dispute, Ohio officials are considering whether to appeal a federal court's insistence that the state must count ballots that, through errors by poll workers, are mistakenly cast in the wrong precinct.

The problem arises because many polling places in Ohio handle voting for more than one precinct.  Poll workers are responsible for handing voters the correct ballots, but they make mistakes.

State law, however, forbids counting ballots cast in the wrong precinct -- even when the error is caused by a poll worker and not the voter. The state rejected more than 14,000 wrongly cast ballots in 2008, and turned down 11,000 more in 2010.  It's an issue, a federal court found, that is "systemic and statewide."

In response to a lawsuit filed by Ohio Democrats and other groups, a federal appeals court ruled last week that the state must count the wrongly cast votes, known to election officials as "right church, wrong pew" ballots.

"The State would disqualify thousands of right-place/wrong-precinct provisional ballots, where the voter's only mistake was relying on the poll worker's precinct guidance. That path unjustifiably burdens these voters' fundamental right to vote," the Sixth Circuit Court of Appeals said.