The Politics Of Voting Access: Who Has A “Fundamental Right” To Cast A Ballot?

Voting rights and partisan politics collide in Ohio, where a spat between the two major presidential candidates over that state’s new restrictions on voting could be a preview of more chaos to come before Election Day.

With states governments rushing to make “voter fraud” a priority in the wake of massive conservative gains in the 2010 elections, many Americans could be facing roadblocks to casting ballot not seen since the era of Jim Crow some five decades ago.

While the most public battles have centered on photo ID requirements or efforts to purge voter rolls of suspected “non-citizens,” numerous voting laws are coming under fire as placing unfair and potentially unconstitutional burdens on Americans seeking to vote this November and beyond. Courts across the United States are packed with cases relating to voting restrictions, portending mass confusion on Election Day and raising the possibility of an electoral mess not seen since Florida in 2000.

Primarily fought under the media radar by grassroots activists and civil rights groups until now, the clash over voting rights now seems poised to become the latest issue seized upon by the dueling campaigns of Barack Obama and Mitt Romney  with less than 3 months until the presidential election.

At the heart of the controversy in Ohio is a lawsuit filed by President Obama’s reelection campaign and national Democrats against the state and administration of Gov. John Kasich. The Buckeye State, like scores across the country, has passed a slew of new restrictions on voting since the 2008 presidential contest.

According to the Obama campaign’s lawsuit, a measure that limits certain early voting ates to active members of the military is unconstitutional and unfairly excludes ordinary citizens from participating in what had been an early voting period that ran through the Monday before an election. Now only active service members can vote on the weekend and Monday before this November’s election, a rule that has brought charges of disenfranchisement from voting rights activists.

The suit was filed without much fanfare last  month by the president’s campaign and other opponents of the Ohio law, contending that favoring active military over other potential voters — including non-active military veterans — is illegal.

President Obama’s reelection campaign filed a federal lawsuit against Ohio’s top elections official Tuesday in a dispute over the battleground state’s law that restricts in-person early voting in the three days leading up to Election Day.

The lawsuit, filed in Columbus, follows a series of election-law changes that were passed by the state’s Republican-controlled legislature and signed by Gov. John Kasich (R).

Obama’s campaign and other Democrats argue that the law unfairly ends in-person early voting for most Ohioans on the Friday evening before the Tuesday election while allowing military and overseas voters to cast ballots in person until Monday.

 Reinforicng the status of Ohio as a crucial election battleground for the two opposing major candidates, the Obama campaign’s action to throw out the new early voting rules passed by Ohio Republicans has become a political football. The issue is framed by Mitt Romney’s GOP campaign as an “outrage” in which the president’s supporters are trying to keep members of the military from being able to vote at all.

Obama and Democrats say their GOP rival is lying and twisting the facts, setting up a partisan tussle that threatens to overshadow the very real question of potential disenfranchisement in Ohio and elsewhere this election year.

A new flap in the ongoing battle on voting equality began this week when Mitt Romney accused President Obama’s re-election committee of suing to restrict military voting rights in Ohio. And while Romney did not address the issue campaigning in Indiana today, he called the lawsuit “an outrage” in a written statement

“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,” it reads. “I stand with the fifteen military groups that are defending the rights of military voters.”

Republicans say a lawsuit brought by Obama for America in July seeks to eliminate additional time for in-person early voting allotted to service members in the battleground state. Democrats, on the other hand, contend the presumptive GOP nominee is deliberately trying to distort the facts.

“Mitt Romney is falsely accusing the Obama campaign of trying to restrict military voting in Ohio,” a Friday statement said. “In fact, the opposite is true: The Obama campaign filed a lawsuit to make sure every Ohioan has early voting rights, including military members and their families.”

 So who is right? Is the ability of men and women currently serving in the military to vote in person being threatened by the Obama campaign’s suit? Or is the Romney campaign “false” in its allegation that soldiers are being targeted in an unpatriotic election year brouhaha?

Several state and national military and veterans groups have come out in favor of the current early voting rules favoring members of the military. They have joined the lawsuit in support of Gov. Kasich and opposing the Obama campaign, claiming that preferential treatment is a “fundamental right” for service members.

But where does that “fundamental right” begin and end? The same phrase was used by the Romney camp to defend the voting rules, also insisting that the military ought to be treated differently. But that particular wording — a “fundamental right” to vote — has never been attached to one particular group of citizens before.

There has long been special provisions made for both regular citizens living abroad and active members of the military serving overseas to cast absentee ballots, including provisions where military ballots that arrive after the day of elections can still be tallied as a legitimate ballot. But the Ohio case is unique in that it gives a certain group of legitimately registered voters an advantage over others while voting in person, an unconstitutional measure that treats identical groups of voters differently.

And if suspending the Ohio early voting waiver for active military threatens their “right” to cast a ballot, what about the other people  in that state who won’t be able to vote  because they were turned away from early voting sites strcitly because of this law? Or what about the  5 million Americans reported to be  impacted by photo ID laws and other legislation passed in the last two years that make voting difficult in dozens of states?

As Jonathan Chair writes in New York Magazine, if the “fundamental right” of active military to vote should be protected, shouldn’t that same “fundamental right” be as vigorously defended for everyone else? It is the conflict at the heart of the debate over the nationwide crackdown on voting, where one groups’s “fundamental right” is another’s “privilege” that demands onerous and unprecedented regulation.

If the ability to get to the polls is the “fundamental right to vote,” then why shouldn’t all eligible citizens enjoy that right? The debate here is about whether the state ought to make it convenient for people to vote. The question here doesn’t concern absentee balloting for service members stationed overseas. It’s about in-person voting. Obviously the demands of military life sometimes make it hard to show up at the polls on a given day that happens to be a workday, but this is also true of the demands of non-military life.

If Romney is conceding that voting is a fundamental right rather than a privilege — not all Republicans concede this anymore — and, more importantly, that practical impediments can interfere with that right, then what justification do they have for their wide-ranging campaign to deny the same convenience to other Americans?

 The standoff in Ohio stems from that state’s rush to pass tougher voting laws nearly identical to those enacted in states with similarly minded governors and state legislatures.

Ohio lawmakers and Gov. John Kasich approved bills in 2011 that would have introduced a myriad of new voting regulations, from photo ID to reductions in early voting periods. While some failed to make it through the entire legislature, the provision cutting back on early voting — ostensibly to save the state and counties money — was signed into law. The new rule barred all early voting on the Saturday-Monday period before an election.

Almost immediately challenged by opponents who contended it was meant solely to disenfranchise the minorities and working poor that made up the bulk of early voters on weekends, the state actually took the unprecedented step of repealing the bulk of the original law to avoid a voter-approved referendum to repeal it that would have appeared on this November’s state ballot. The legislature’s repeal eliminated some of the controversial voting restrictions, but left in place the ban on early voting — adding the provision exempting members of the military.

With the early voting cuts and other new voting regulations still in place, concern is growing in battleground Ohio that Election Day chaos could be in the cards as thousands of voters are prevented from casting ballots and local elections officials are mired in confusion over the complicated state provisions.

The 2000 presidential election was thrown into turmoil by antiquated paper ballots in Florida that made voters’ intentions difficult to decipher. In 2004, hours-long lines at polling places kept thousands of Ohio voters from casting ballots.

In 2012, new restrictions on voting enacted by state legislatures around the country have the potential to sway the presidential race by making it harder for citizens to vote, election experts say.

“Here in Ohio, as in many other parts of the country, we have seen rules adopted in the past decade — and especially in the past year — that make it more difficult for eligible citizens to vote and have their votes counted,” Ohio State University election law expert Daniel P. Tokaji told a Senate Judiciary Subcommittee hearing earlier this year in Cleveland.

The restrictions include curbs on organizations that register new voters, requirements that voters present photo IDs to vote and proof of citizenship to register, cutbacks in early voting periods and limits on voting by felons who have been freed from prison. 

The seriousness of this particular issue cannot be more clear. Since early voting was widely adopted in the last two presidential elections, it has become incredibly popular and used by steadily increasing amounts of voters to cast their ballots in important contests.

In Ohio alone, 30 percent of all votes cast in the 2008 election came through early voting. Nearly 100,000 ballots were cast on the weekend before Election Day alone — the three-day period that state lawmakers have now  made off limits to all but active members of the armed forces.

While most of the attention given to voting access and similar issues has been given to photo ID laws or the “purge” of many legal voters in Florida, the assault on early voting  has been just as pervasive. Millions of working Americans could be left with no chance to exercise their “fundamental right” to cast a ballot this year .

At least 7 states will have passed legislation scaling back early voting days in time for the 2012 presidential election. States like Florida have dramatically reduced access to early voting that have become hugely popular and used by nearly half of the electorate in recent contests.

Excuses given for the curb on early voting has consistently been its cost, but those savings are more than offset by the funds necessary to implement other restrictions on voting like mandatory photo ID or “purges” of state voter rolls. Limiting access to a ballot is the unmistakable conclusion to be drawn from slashing early voting, which many experts contend is a more effective way to combat whatever “voter fraud” may exist by giving officials greater time to check the accuracy of ballots cast.

More than half a dozen states have passed new laws to reduce early voting, setting up a clash with civil rights groups and Democrats who claim the rules could disenfranchise minority voters in the 2012 election for the White House and Congress.

Among states with new restrictions: Wisconsin and Florida, presidential swing states that also are key battlegrounds in the fight for control of the U.S. Senate, where Democrats hold a narrow advantage.

In Florida, nearly 3.3 million Democrats cast in-person ballots before Election Day in the 2008 contest that swept President Obama into power. By contrast, 810,666 Florida Republicans participated in the in-person early voting that year, according to the Florida secretary of State’s office. Obama won the state by 3 percentage points.

Five other states — Ohio, Georgia, Maine, Tennessee and West Virginia— this year approved laws shortening early voting, according to the non-partisan National Conference of State Legislatures. With the exception of West Virginia, Republicans control the governor’s offices and legislatures in those states. 

But while the Obama campaign is on the front lines of the fight to retain access to the polls for as many voters as possible  in the crucial swing state of Ohio, no lawsuits have been filed in less competitive states like West Virginia or Tennessee where identical cuts to early voting have been enshrined in law by conservative legislators. So for millions of Americans this election year, no one is on their side to protect the “fundamental right” to cast a ballot.