Florida Early Voting Victory, Ohio Early Voting Worries, Pennsylvania Voter ID Political Games
There was mixed news on the voting war front in three swing states on Friday--Florida, Ohio, Pennsylvania--although it is too early to tell how it will affect voters in November.
First, the positive. Late Thursday, a federal appeals court in Washington, D.C., rejected Florida’s decision to curtail early voting hours in the final days before Election Day in November, saying that would be racially discriminatory under the federal Voting Rights Act.
“We conclude that we cannot, at this time, preclear Florida’s early voting changes because the State has failed to satisfy its burden of proving that those changes will not have a retrogressive effect on minority voters,” the Court said.
The decision was another defeat for Florida Republicans, led by GOP Tea Party Gov. Rick Smith. Earlier defeats included removing draconian rules for voter registration drives, which stopped citizens groups until this summer.
But here’s where it gets a bit tricky. The Voting Rights Act only covers five of Florida’s 67 counties. Four are small. One contains Tampa. But none are not south Florida’s big Democratic counties. So it is an open question what the state will do next, because if the state doesn’t file an amended plan for Justice Department approval, their new election reform law will be struck down.
The Court said Florida has to offer the maximum number of early voting hours. So now the question is what does that mean in the rest of the state, because some big Democratic counties offer early voting on the Sunday before Election Day and others do not.
These kinds of ambiguities have political lawyers salivating. Because elections are run at the county level, and there always variables in procedures. Those differences raise legal issues for partisans who want to make voting more complicated for some communities or contest the results. As election law watchers know, Florida was where the U.S. Supreme Court stopped a 2000 presidential recount due to unequal procedures among counties.
Still, this latest ruling over Florida is winning another battle, but perhaps not the war.
Meanwhile, there’s been other early voting news this week from Ohio, where the GOP secretary of state has been criticized for letting rural red counties to extend early voting options, while limiting early voting in urban blue counties. Like Florida, certain communities organize get-out-the-vote drives on the weekend before Election Day.
In Ohio, the SOS decided that he could not have unequal early voting rules, so he has curtained early voting statewide, which, due the population differences between urban and rural counties, arguably could help the GOP and harm Democratic turnout. Ohio’s SOS has tremendous power to issue all kinds of voting directives that local boards of election must follow—until overruled in court.
As Ned Foley, an Election Law professor at Ohio State University’s Moritz College of Law blogged, “One can reasonably question whether Husted’s new directive upholds the standard of fair-minded, nonpartisan election administration that Husted has repeatedly professed that he wishes to follow. The uniformity that Husted has now required precludes any in-person voting on Saturdays and Sunday during the five-week period that Ohio’s statutory law provides for early voting. Is that a position that a nonpartisan Director of Elections, who is neither Republican nor Democrat, would take?”
Finally, more exasperating news comes from Pennsylvania,where a Republican state court judge this week ruled that his state’s new voter ID law was constitutional, in a much-criticized decision. The lead plaintiffs in that lawsuit, which has been appealed to Pennsylvania Supreme Court, is a 93-year-old woman who said that she didn’t have her birth certificate and thus couldn’t provide documentation needed to obtain the state ID.
Well, Pennsylvania election officials have apparently issued her a voter ID card, in a move that is laudable in a narrow sense: as she has every right to vote and was legally eligible. But is so overtly political and seems intended to undermine the ACLU-led litigation’s appeal.
“Nothing has changed since Viviette Applewhite, 93, testified in July,” Philly.com reported. “The law stands. She still doesn't have a driver's license or Social Security card. The name on her birth certificate is still different from the name on her other documents - all of which, under the law, should have barred her from getting her photo ID. But at precisely 1:16 p.m. Thursday, she got it anyway.”
The problem is that, according to ever-changing state estimates, there may be as many as 600,000 or more people in Applewhite’s shoes—lacking the required ID. The judge in that case said that people could go to court and assert their voting rights, if need be, on Election Day. How that supposed to happen, if tens of thousands of people are held up at the polls, is anybody's guess.