Ohio Lawsuit Raises Military Voting Questions

Conservative voices at the top of the Republican Party say a lawsuit filed in Ohio in July by President Obama and the Democratic Party is an attempt to disenfranchise military voters.

Republican presidential nominee Mitt Romney slammed Obama for the “outrage” of “claiming it is unconstitutional for Ohio to allow servicemen and women extended early voting privileges during the state's early voting period.”

Military and veteran advocacy group leaders said the lawsuit is not a stab at military voting, but they are worried about restricting the government from establishing special rules for servicemembers.

“It’s an election season. Everybody’s interested and everything gets kind of confused,” said John Goheen, spokesman for the National Guard Association of the United States.

Central to the issue is a lawsuit filed in July on behalf of the Democratic National Party and Ohio Democrats that would give Ohio civilians the same extended-period voting rights as servicemembers –the ability to cast an in-person early ballot through the last weekend and Monday before Election Day.

That was allowed until 2010 when the Ohio legislature pushed it back three days to give county workers a chance to prepare for Election Day, according to the Ohio secretary of state’s office. After concerns arose that this may have kept some active-duty servicemembers from voting, Ohio Secretary of State Jon Husted ruled that the new, earlier deadline would apply only to civilians.

The Obama campaign sued, contending that that Ohio is violating the Constitution by not extending to civilians the same early voting time as servicemembers, specifically the equal protection clause of the 14th Amendment.

A U.S. District Court in Ohio ruled in September in favor of the Democrats. If that ruling is upheld on appeal, it means walk-in early voting up until the Monday before the general election on Nov. 6 would be open to all registered Ohio voters, not only active-duty servicemembers. 

If the Ohio secretary of state’s appeal is granted by the U.S. Circuit Court then only servicemembers would be able to cast in-person ballots the weekend and Monday before the election.

Early voting begins in Ohio on Tuesday, Oct. 2.

Retired Capt. Samuel F. Wright, a former Navy JAG officer now with the Retired Officer Association, said there has been “a lot of hyperbole on both sides about this lawsuit.” However, he worries the lawsuit threatens the legal basis for states to establish special rules for active-duty servicemembers.

“The equal protection clause requires that like things be treated alike, not different things be treated alike,” Wright said. “Our contention is that military service is different, and that it must not be considered unconstitutional for a state like Ohio to make a special accommodation for military personnel that is not made for everybody else.”

An example is the Service Member Service Relief Act, which protects a default court judgment against a soldier, sailor, Marine, or airman if he does not respond in time to a court filing. That protection recognizes that the military member may not be in the country or is for some other reason unable to reply in time or may not even be aware there is a legal action pending.

Had Ohio’s secretary of state decided to keep the new early deadline for everyone, the National Guard Association would not have taken issue with it, Goheen said. The group’s fight is against the idea that the state may not make special accommodations for military members, given the unique assignment and travel requirements of their job.

“We are a non-partisan organization. We don’t take sides in an election,” Goheen said. “Unfortunately, some parties on both sides have tried to twist our involvement into something it is not. We think all citizens should have a right to vote.”