Lawyers for the Obama campaign and the Democratic National Committee marched into federal court last week to argue that it is unconstitutional for Ohio to allow military voters to cast in-person early ballots on the Saturday through Monday before Election Day, given that early voting for all other voters stops on the Friday before Election Day. Apparently, Team Obama has decided to take a break from howling about the alleged injustice of voter-ID laws to argue that military voters don’t deserve an occasional accommodation.
“For the first time, the vast majority of Ohio voters will come fully eligible to vote to an open polling place and find that they cannot vote,” claimed Bob Bauer, a former White House counsel for President Obama, and now a lawyer with the Obama campaign. Bauer’s complaint focuses on the fact that the polls, per current law, will be open Saturday through Monday for only some voters, military personnel casting in-person early votes.
But Judge Peter Economus, an appointee of President Bill Clinton, promptly interrupted: “It’s not that they cannot vote. There are so many other options, and Ohio is probably one of the most liberal states in the country in regard to voting rights.”
Bauer replied: “I think it is a bedrock principle that when the polls are open, they’re open to all.”
Regardless of how the judge rules, the Obama lawsuit seeks to establish a dangerous precedent that would diminish the rights of military voters — who already face serious obstacles to voting. In 2008, when election turnout nationwide was 62 percent, the U.S. Election Assistance Commission reported that only 5.5 percent of eligible military and overseas voters cast ballots that were actually counted. A survey by the Overseas Vote Foundation points to one possible explanation for the low turnout: According to its report, nearly 22 percent of civilian and military overseas voters never received their requested absentee ballot for the 2008 election, and 10 percent received their ballot less than seven days before the election.
The Obama suit argues that giving military voters extra time or extra protections to vote is arbitrary and capricious and violates equal protection under the law. Such a finding would void all the different rules implemented by states and the federal government to help military voters. We all know that those in uniform have problems that other voters don’t have, and it’s not arbitrary or capricious to treat them differently than we do other voters who usually don’t have overseas commitments and whose work schedules are far more negotiable. What Team Obama seeks to do is destroy the legal distinction between military and non-military voters.
The complaint at the heart of the Obama lawsuit is that the Ohio legislature acted improperly when it imposed a deadline of the Friday before Election Day for most in-person early voters. This came at the request of the bipartisan Ohio Association of Election Officials, who said they needed the breathing space to update their records of people who have cast votes. As the Columbus Dispatch pointed out: “The last days of early voting can increase chances of fraud, giving scant time to update poll books — which show if someone already has voted — before they are sent to precincts.” The poll books must be updated before the polls can open for Election Day. In 2008, the election board overseeing the vote in Columbus, Ohio, was so flooded with early voters that it couldn’t process thousands of absentee ballots until Wednesday night after the election.
The aspect of the Ohio law that the Obama administration opposes is the provision allowing military voters to cast early ballots up until Election Day.
This small number of voters, though, would not interfere with the work of election boards. And Ohio officials say there is no comparison between regular voters who can submit absentee ballots after the early-voting cut-off and military voters. As Senator Rob Portman (R., Ohio) told me: “There are airmen in Ohio at Wright-Patterson Air Force Base who could be deployed all over the world at a moment’s notice, and they might need the extra time to vote.”
The Obama lawyers claim they support the right of the military to vote, but they continue to argue that no special provision can be made for them. That is flatly against legal precedent. Courts have already decided that it doesn’t violate equal-protection laws for states to treat military voters differently than other voters.
In Igartúa de la Rosa v. U.S. (1995), some Puerto Rican voters brought a lawsuit claiming that the federal government’s differing treatment of military voters violated the Equal Protection Clause and was unconstitutional. The First Circuit Court of Appeals dismissed the claim, saying that Congress had clear reasons for providing extra help to military voters. The Second Circuit Court of Appeals issued a similar ruling in 2001 in Romeu v. Cohen.
The National Guard Association of the United States, AMVETS (American Veterans), the Association of the U.S. Army, and twelve other military organizations have asked that the Obama lawsuit be dismissed. With all of this negative publicity, you’d think that Team Obama lawyers would retreat. But they are not retreating. Instead, they are marching into a fight they are ultimately doomed to lose. Apparently, as with their opposition to voter-ID laws, they have concluded that all they have to do is throw enough legal bombs: Some of them will detonate, hamstringing election laws they think will hurt the president’s chances for a second term.
— John Fund is national-affairs columnist for NRO and a co-author of the newly released Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk (Encounter Books).