Why the Ohio Early Voting Case is Not a Threat to Military Voting Accommodations

Abstract

One of the most closely watched court battles of the 2012 presidential election was Obama for America v. Husted, the lawsuit through which the Obama campaign ultimately restored early in-person voting for all Ohio voters on the final three days before Election Day. The case revolved around the fact that new state laws called for an end to early voting at 6:00 p.m. on the Friday before Election Day for all but military voters. Because in the 2008 presidential election some 100,000 non-military Ohio voters had voted during the final three days before Election Day, and because the Obama campaign and its co-plaintiffs saw these voters as tending to vote Democratic, the lawsuit was seen as potentially critical to the outcome of a close Ohio race. Although the Equal Protection claim at the core of the OFA suit was initially greeted with skepticism by many knowledgeable observers, the federal district court, affirmed by the Sixth Circuit, issued a preliminary injunction requiring Ohio to offer all other voters the same early voting opportunities that it provided to military voters. A number of military organizations saw this case as a threat to all state accommodations for military voters, arguing that “state and local governments soon will stop offering such assistance, and the fundamental right to vote of the members of our Armed Forces will be undermined.” Fortunately, this is a highly unlikely result. As this analysis explains, the case provides very little reason to worry about the constitutionality of other military voting accommodations, notwithstanding many military organizations’ strong opposition to the outcome in this case.