Earlier today, the Sixth Circuit Court of Appeals affirmed the decision (that is the subject of the post immediately below) of District Court Judge George Smith, denying the Ohio Republican Party an injunction that would prevent same day voting. The three-judge panel was comprised of Judge Karen Nelson Moore, Judge Richard Allen Griffin, and Judge Myron Bright, a judge of the Eighth Circuit who was sitting by designation. (A judge from another circuit sitting by designation on a panel is fairly routine.)
The panel had to decide two issues: first, whether to require the Secretary of State to force boards of elections to segregate ballots cast as a result of same-day voting, and second, whether to require the Secretary of State to mandate that boards of elections permit observers to be present during the same-day voting period.
On the first issue, the panel was unanimous: the GOP was deemed not entitled to the relief they sought. Interestingly, the Republicans appear to have shifted their focus once they reached the court of appeals. In the district court, they wanted to enjoin same-day voting altogether; in the Court of Appeals, they merely wanted ballots to be segregated. The Sixth Circuit held that because the relief the GOP now seeks was not presented to the district court, the court of appeals would not grant it.
With respect to the second issue, the panel split 2-1. The majority (Judges Moore and Bright) reversed the district court's decision requiring the permissive presence of observers, holding that no federal law required such a result. (The court explicitly left open the question of whether state law requires boards of elections to be present, as a federal court may not tell a state official how to apply a state law.) Judge Griffin, dissenting in part, would have affirmed the district court.
So judges from both sides of the political spectrum have now agreed (finally, it appears) with Jennifer Brunner that same-day voting is permissible under Ohio law.
For what it's worth, I agree (partially) with Judge Griffin: SOS Brunner should permit observers to be present for the thirty-five days prior to Election Day during which absentee ballots are turned in. (It's not clear to me, though, the basis to conclude that federal law requires this.) It is absolutely essential that the public's confidence in the integrity of our elections is restored, and disallowing observers is entirely contrary to that goal. Remember that because the General Assembly rewrote the election law after 2004, "observers" are not "challengers." Observers have no right to challenge voters or to attempt to intimidate voters. Thus, no harm comes from the transparency that the presence of observers would create, and people on both sides (both Democrats living in counties controlled by Republicans and vice-versa) would be assured of a fair process.