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A Project of The Annenberg Public Policy Center

Obama Not Trying to Curb Military Early Voting

Mitt Romney wrongly suggests the Obama campaign is trying to “undermine” the voting rights of military members through a lawsuit filed in Ohio. The suit seeks to block state legislation that limited early voting times for nonmilitary members; it doesn’t seek to impose restrictions on service members.

In an Aug. 4 Facebook posting, Romney called the lawsuit an “outrage,” and said that “if I’m entrusted to be the commander-in-chief, I’ll work to protect the voting rights of our military, not undermine them.” He painted the court filing as an attack on the ability of service men and women to vote: “The brave men and women of our military make tremendous sacrifices to protect and defend our freedoms, and we should do everything we can to protect their fundamental right to vote.”

Conservative blogs and opinion pieces have also misrepresented the case, claiming in headlines that President Obama was suing to “restrict military voting.” A fundraising email appeal from a group called Special Operations Speaks — which wants to “remove Barack Obama from the White House” — wrongly says that Obama “deploys army of lawyers to suppress military’s voting rights,” claiming that “Obama needs the American military to not vote, so he has set out to make it as difficult as possible for them to do so.” But that’s not what the Obama lawsuit aims to do at all.

The lawsuit, filed by the Obama campaign, Democratic National Committee and Ohio Democratic Party in July against Ohio’s secretary of state and attorney general, asks for an injunction to block implementation of state laws that modified in-person early voting regulations. In the last presidential election, all Ohio residents — military and otherwise — could cast their votes in-person early up through the Monday before Election Day. But contentious legislation passed by Ohio’s GOP-controlled Legislature in 2011 limited early voting for nonmilitary residents, giving them a deadline of 6 p.m. Friday before the election. Military members and overseas civilians could still vote through Monday. Both parties have squabbled, with Democrats saying the law is a suppression of nonmilitary votes and Republicans arguing that they are just easing a burden on polling places and guarding against fraud. (Mail-in absentee ballots are not affected; the new regulations affect in-person early voting.)

Contrary to conservative claims, the Democratic lawsuit seeks to restore early voting “for all Ohio voters.”

Obama for America v. Husted: … Plaintiffs seek a declaratory judgment, preliminary injunction, and permanent injunction prohibiting Defendants from implementing or enforcing the HB 224 and SB 295 changes to Ohio Rev. Code § 3509.03, thereby restoring in-person absentee voting on the three days immediately preceding Election Day for all Ohio voters.

David Axelrod, a senior adviser to the Obama campaign, also argued with Fox News host Chris Wallace over the lawsuit on Aug. 5:

Wallace: Your campaign is suing the state of Ohio for giving members of the military extra time to vote early, to the Monday before the election while other voters are going to have only until Friday. You don’t think that members of the military who are serving this country deserve special consideration to vote?

Axelrod: I absolutely do, and the way you stated and the way frankly Governor Romney has stated it is completely false and misleading. What that lawsuit calls for is not to deprive the military of the right to vote on the final weekend on the campaign. Of course, they should have that right. What that suit is about whether the rest of Ohio should have the same right.

Axelrod’s characterization is right.

More Voting, Not Less

The lawsuit challenges last year’s legislation in Ohio on the grounds that the unequal treatment of different citizens violates the equal protection clause of the 14th Amendment. Fifteen groups representing members of the military — including the National Guard Association, Marine Corps League and the Military Officers Association of America — filed a motion to dismiss and a motion to participate in the case on the side of the state of Ohio.

Their beef isn’t with the Obama camp’s intent, however, but with the equal protection argument and how a judge may react to it. The motion to intervene acknowledges that “the relief Plaintiffs seek is an overall extension of Ohio’s early voting period,” but objects to “the means through which Plaintiffs are attempting to attain it — a ruling that it is arbitrary and unconstitutional to grant extra time for early voting solely to military voters and overseas citizens.” The motion calls the equal protection argument “not only offensive, but flatly wrong as a matter of law.”

The motion to intervene, quoting court cases, says a court could decide to pull back the early voting deadline for military members, rather than extend it for nonmilitary residents, in order to establish equal treatment.

Motion to Intervene, filed Aug. 1: A court facing an Equal Protection claim has “‘two remedial alternatives: [it] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.” … Thus, a plaintiff’s success in an Equal Protection case reasonably may lead to “withdrawing the statute’s benefits from both the favored and the excluded class.”

The Obama camp, DNC and Ohio Democratic Party filed a memo supporting the military groups’ motion to participate in the case. That memo reiterated that the Democratic groups didn’t want to change the way military members could vote.

Plaintiffs’ memorandum in support of motion to intervene, Aug. 3: Plaintiffs seek to restore for all voters access to early voting through the Monday before Election Day. Neither the substance of its Equal Protection claim, nor the relief requested, challenges the legislature’s authority to make appropriate accommodation, including early voting during the period in question, for military voters, their spouse or dependents. The question before the Court is whether, in the circumstances of this case, the State of Ohio may arbitrarily and without justification withdraw from all other Ohio eligible voters the same right they previously had to vote the weekend and Monday before Election Day.

But Romney blatantly misrepresents the lawsuit’s clearly stated goal to restore early voting for “all” voters. On Aug. 5, the Romney campaign’s legal counsel, Katie Biber, issued a statement that continued to wrongly cast the lawsuit as an attempt to curb military voting rights. She wrote that “the Obama campaign and the DNC argue it is ‘arbitrary’ and unconstitutional to provide three extra days of early, in-person voting to military voters and their families.” The lawsuit, however, argues for restoring the rights of nonmilitary residents, saying the state election law “arbitrarily eliminates early voting during the three days prior to Election Day for most Ohio voters, a right previously available to all Ohio voters.”

Biber goes on to say it is “commendable that the Ohio legislature granted military voters and their families this accommodation.” But that distorts the facts. Military voters and their families previously had this accommodation. What the legislature did last year was restrict early voting for civilian residents.

We received an equally misleading interpretation of the lawsuit from the attorney who filed the motion on behalf of the military groups. Kevin T. Shook of Frost Brown Todd LLC told us in an email: “We are unaware of any other case in which a political candidate, much less the Commander-in-Chief, has sued a state for trying to make it easier for members of the military to vote.” But the suit isn’t about making it easier for military voters, it’s about making it harder for others.

What Shook argues in the motion is that the suit “reasonably may lead” a judge to make it harder for the military — something the lawyers on Obama’s side haven’t asked for, and have told the judge they don’t want to happen. When we followed up with Shook about that, he said he was still concerned about a ruling that could set “a dangerous precedent that could jeopardize other laws making it easier for a military voter to vote.” But that’s no excuse for misrepresenting what the other side has said.

Some voters may well appreciate a discussion of the merits and ramifications of an equal protection legal argument. But what they got from the Romney campaign is a falsehood.

— Lori Robertson