Judge hears dispute over Ohio's early voting rules

COLUMBUS, Ohio - A dispute over swing state Ohio's early voting rules got its first hearing Wednesday before a federal judge, who at times questioned the arguments made by attorneys on both sides of the lawsuit.

U.S. District Judge Peter Economus in Columbus did not rule in the case brought by President Barack Obama's campaign against the state's top elections chief and attorney general. He gave no time frame for a decision, saying only that he would take the matter under advisement.

The case focuses on the legality of an Ohio law cutting three days from the early-voting period for everyone except members of the armed forces and Ohioans living overseas.

Ohio is one of 32 states, plus the District of Columbia, that allow voters to cast an early ballot by mail or in person without having to give a reason.

The Obama campaign and Democrats argue that everyone should have the chance to vote on the weekend and Monday before the Tuesday election. They said a series of legislative changes by state lawmakers arbitrarily eliminated the opportunity for most Ohioans to vote in person on those three days, while giving military or overseas voters the chance to do so.

But in a separate move Wednesday afternoon, Ohio's secretary of state ordered boards of election to be closed on weekends, effectively eliminating two of the early voting days in which members of the military could have cast an in-person ballot when other voters weren't able to. His staff told reporters that no boards had opted to be open those weekend days, and now they can't be.

Bob Bauer, general counsel for Obama for America, had told the judge at the Wednesday morning hearing that for the first time, polling places where people can cast an early ballot in person will be open to some but not all Ohio voters.

"The effect here is an unprecedented one," Bauer said. He said the vast majority of voters who walk into their open polling place on Monday will find they can't vote.

Economus quickly pointed out to him that Ohioans can cast ballots by other methods -- in person on Election Day or by mail beginning 35 days before the election.

The judge told Bauer that the state was "probably one of the most liberal states in the country with regard to voting rights."

"Your honor, I think it is a bedrock principle that when the polls are open they are open to all," Bauer replied.

Bauer said the state could have ended early voting on the Friday evening before the election by taking a different set of steps. But he lamented the process, saying, "This is not the way the state ought to be administering elections or making decisions about closing open polling places."

Lawyers for the state officials also noted the multiple ways voters could cast a ballot this fall. Plus, they argued, members of the armed forces receive other voting accommodations, such as getting absentee ballots sent to them 45 days before the election.

"I really do think it's unfortunate that Obama for America trivializes the differences by saying these are all similarly situated voters," said William Consovoy, an attorney for Secretary of State Jon Husted.

Consovoy also contended lawmakers had a reason for cutting the three days. But he said that it shouldn't matter because the fundamental right to vote was still protected under Ohio law.

"Well, that begs the question, then why change the law that I don't think anyone disputes was effective and efficient, and take steps backward -- take a step backwards?" Economus said.

Consovoy replied that state officials wanted leave election boards time to prepare for Election Day. "That is still by far the most significant way that voters vote in Ohio," he said.

Local boards of elections set early voting hours in each of the state's 88 counties, and weekday hours and weekend voting varied.

"We're dealing with a small number of people who are going to actually be utilizing this period," Consovoy said of the three days.

Democrats estimated in their lawsuit that 93,000 people voted during the final three-day window prior to the 2008 election.

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