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Whose votes count, whose don't? The legal landscape before Election Day

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The Obama Justice Department, the Obama reelection campaign, and Obama supporters argued that minority voters were more likely than other voters to cast their ballots on the weekend before Election Day.

They cited a successful “souls to the polls” campaign in which religious groups provided buses to take parishioners to vote after the Sunday service. They accused Republican lawmakers of trying to suppress voters likely to support Mr. Obama.

In Ohio, the new law ended early voting for most voters on the Friday before Nov. 6. But the legislature allowed military and overseas voters to continue casting early ballots Saturday, Sunday, and Monday before Election Day.

The Obama campaign filed suit, arguing that if some voters were allowed to continue to vote over the weekend, then all voters should be allowed to do so.

A federal judge and a federal appeals court panel agreed. The court ordered Ohio election officials to extend early voting for three more days – Saturday, Sunday, and Monday – prior to Election Day.

Similar to the effort in Ohio, the Legislature in Florida passed a measure in 2011 that ended early voting on the weekend before the election.

Under the new law, early voting would start Saturday, Oct. 27 – 10 days before the election – and end on Saturday, Nov. 3 – two days before the election.

As in Ohio, minority groups complained that it might undermine turnout among black and Latino voters.

Once again, Section 5 of the VRA provided the Obama Justice Department with a strict legal standard to challenge a new law passed by a Republican-majority legislature.

Because five of Florida’s 67 counties are covered jurisdictions under Section 5 of the VRA, the state was required to prove that the election-law changes – as implemented in those five counties – would not result in discriminatory retrogression of minority voting.

None of the five counties had offered early voting on Sunday in prior elections. So that change could not be ruled retrogressive in Florida.

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