Ohio's elections haven't exactly been known for being smooth affairs—ask anyone who was around in 2004, when a shortage of voting machines in heavily Democratic precincts caused extremely long waits and cries of foul play. But this year, things could be even more chaotic.
Early voting is already underway in the battleground state. With only four weeks to go, elections officials should be making sure poll workers are aware of every procedural detail for Election Day. The trouble is, two key details are still up in the air: whether early voting will extend to the weekend before November 6, and whether certain provisional ballots will be counted. These aren't new issues—both have been hotly contested for months now. But the legal battles are still unresolved.
On Friday, a panel of judges from the 6th U.S. Circuit Court of Appeals ruled that the state would have to allow early voting on the weekend and Monday before Election Day, as it did in 2008. That was a huge win for the Obama campaign, which brought the suit after the Republican-dominated state legislature passed a law ending early voting on the Friday before the election. Four years ago, black churches used the last Sunday to bring congregants to vote in an effort called "Souls to the Polls." An estimated eighty-eight thousand voted on the three days prior to Election Day, and in some of the state’s biggest counties, those voters were disproportionately African American.
But today, Ohio Secretary of State Jon Husted announced he would appeal the decision to the U.S. Supreme Court. That means that poll workers still have no idea what they'll be doing the weekend before the election—and voters still don't know when they can vote.
If the state wins on appeal and the polls are closed, it will disproportionately affect poor and nonwhite voters—those more likely to vote Democratic. The case has already provided plenty of rhetorical fodder for the Romney campaign. Since the legislature allowed early voting only for those in the military, the Obama campaign argued that this was a case of unequal protection under the law; military voters would have access to weekend voting while other state residents would not. (This only applied to those military stationed in Ohio; those serving abroad vote use mail-in ballots). Republicans shouted that Obama was trying to restrict military voters—a far-fetched argument, since the campaign was calling for military voters and everyone else to be allowed to cast ballots on the final weekend. Nonetheless, it revved up Republicans and provided some red meat for Fox News and talk radio.
Partisanship isn't the only reason for prolonging the case, though. Friday's ruling was quite contentious; voting-rights expert Rick Hasen, a law professor at the University of California-Irving, has written that the reasoning behind it is "muddled." Early voting is not a constitutional right and, Hasen argues, there's Supreme Court precedent indicating that a state can give absentee ballots to select voters "so long as it has a legitimate reason for drawing the lines as it did." While the court found that the state did not have a good enough reason for selectively offering voters, Hasen expects that the decision will be overturned. Other experts, like Joshua Douglass, at the University of Kentucky College of Law, have reacted more favorably to the decision, arguing that Ohio's law did indeed violate equal protection by privileging some voters over others.
Regardless of the Supreme Court's decision, the situation will remain complicated and confusing. Even if Friday's ruling stands, it does not say that counties must offer weekend voting hours—simply that if extended hours are offered to those in the military, they must also be offered to the rest of the electorate. That means, presumably, that county boards of elections will have to vote on whether they want to offer such hours. Because those boards of elections are split by law—half Democrat, half Republican—those votes are likely to result in ties, which Husted, as secretary of state, would have to settle. The county boards have already had tie votes over whether to extend early voting, and Husted has repeatedly ruled it out. But if the Court rules that counties must be allowed to offer the weekend hours, Husted could require that all counties offer them. Either way, voters still don't know what their options will be.
That's not the only thing they don't know. Ohioans are also waiting to find out what the courts will decide when it comes to provisional ballots. Ohio law currently disqualifies any ballot cast in the wrong precinct—even though such errors are nearly always the fault of poll workers. Voters can show up at the right polling place—many of them serve multiple precincts—and get directed to the wrong table. Poll workers are supposed to verify that they're giving the voter a ballot for the correct precinct, but that doesn't always happen. The measure particularly affects urban (read: heavily Democratic) counties, where most polling places serve multiple precincts and giving someone the wrong ballot is easy to do. In 2008, approximately 14,000 ballot were tossed out because of such mistakes; those voters were disenfranchised through no fault of their own. At the end of August, U.S. District Court Judge Algenon Marbley ruled that such ballots must be counted. Husted appealed the decision to the Sixth Circuit court, and everyone is now awaiting the ruling.
No matter what your views on these particular issues, surely we can all agree that this is insane. Election Day is four weeks away! Voting has already started. How is everything still up in the air?
The key to well-run elections is to get the procedures in place early. Last-minute fights like these are dangerous; poll workers will almost undoubtedly need new training that there isn't time to give them. But they won't get it; there's no way to re-prepare them now. Meanwhile, any chance of informing voters about the rules governing their elections is shot when the rules are still in flux at such a late stage.
As usual in recent presidential elections, the stakes in Ohio are huge. At the forecasting blog FiveThirtyEight.Com, Nate Silver shows a 42.5 percent chance that Ohio's electoral votes will decide the race. But even higher are the chances that the Ohio elections will once again be messy, confused affairs.