[EL] Ohio's on-again, off-again primary election

[Rich,William D]

In case anyone on this list is interested, below is a two-part post about Ohio’s on-again, off-again primary election.  I wrote it mainly with a lay audience in mind.  Part 1 is written mainly from my perspective as an election administrator.  It recounts the events of March 16 and 17.  Part 2 is written mainly from my perspective as an election law professor.  It discusses some of the legalities involved in the suspension/postponement of the election.

Warning: It’s long for an email.  Feel free to delete without reading.

Bill Rich
University of Akron School of Law (Emeritus) and
Chairman, Summit County Board of Elections


Part 1

As most Ohioans and many outside Ohio know, there was a great deal of confusion on Monday, March 16, about whether the primary election would take place as scheduled on Tuesday, March 17.  Until Monday morning, the Secretary of State had been adamant that the election would take place.  On Monday morning, after the U.S. Centers for Disease Control and Prevention and the Ohio Health Director publicly declared that there should be no gatherings of 50 or more people, the Secretary of State changed his mind and declared jointly with the Governor that the election would not take place on Tuesday.

Taking its cue from both the Secretary’s public pronouncement and from written communications from the Director of Elections and Deputy Assistant Secretary of State, many county boards of elections, including Summit County’s, ceased preparations for the next day’s election and began collecting election supplies and equipment.  In Summit County, at least, some precinct election officials had already called off and returned the election supplies and equipment because they were unwilling to risk their health by working at the polls.  Seemingly aware that he lacked authority to postpone the election, the Secretary (and the Elections Director) seemed to be banking on a favorable ruling from a Franklin County Common Pleas judge they expected later in the day in a lawsuit brought by two voters seeking postponement of the election.  Meanwhile, a primary election candidate in Woods County had brought a suit for a writ of mandamus in the Ohio Supreme Court, asking the Court to issue an order compelling the Secretary of State to proceed with the election on Tuesday.

At 6:59 p.m., the Director of Elections emailed the county boards of elections, saying that the Franklin County Common Pleas judge had ruled in favor of the plaintiffs and granted the order postponing the election.  Ten minutes later, the Elections Director sent another email saying that the previous email “was based on information from the Ohio Attorney General and may not be final.”  At 7:52 p.m., the Elections Director again emailed the boards of elections, this time saying that the judge had declined to issue the order postponing the election.  Upon receiving this email, boards of elections that had ceased preparing for an election the next day, including Summit County, resumed doing so, knowing that it would be impossible to have all polling places open on time.

At 10:25 p.m., the Elections Director forwarded to the boards of elections a press release from the Governor saying that the Ohio Health Director would “order the polls closed as a health emergency,” and that “[w]hile the polls will be closed tomorrow, Secretary of State Frank LaRose will seek a remedy through the courts to extend voting options so that every voter who wants to vote will be granted that opportunity.”  Five minutes later the Secretary of State issued a directive to the boards of election ordering them to conduct the primary election on June 2 and, in the meanwhile, to continue processing absentee ballot applications and accepting absentee ballots.  He also directed the boards not to process voter registrations filed after the original February 18 registration deadline for the March 17 election.  Upon receiving this directive, boards of elections (again, in many instances) ceased preparing to conduct the next day’s election and notified the precinct election officials and the voting locations of the suspension of the election.  Later in the night, the Ohio Supreme Court declined to issue an order compelling the Secretary of State to proceed with the election on the 17th.

As directed by the Secretary of State, the boards were open on the 17th to receive absentee ballots.


Part 2

There has been much misunderstanding of the legalities of the Health Director’s order closing the polling places on March 17, the Secretary of State’s directive postponing the primary election, and the decisions of the Franklin County Court of Common Pleas and the Ohio Supreme Court in cases challenging proceeding with the election on March 17 and challenging postponement of the election, respectively.

First, neither the Health Director’s order nor the Secretary of State’s directive violated any court order.  In fact, there were no judicial orders to violate.  The Franklin County Common Pleas judge declined to issue an order postponing the election; he did not issue an order requiring the Secretary of State to proceed with the election.  The judge’s principal rationale for declining to order the election postponed was that it was not properly within the power of a court to change the date of an election that was set by the state legislature.  That power belongs to the legislature.  The Ohio Supreme Court declined to issue the order to proceed with the March 17 election sought by the Woods County candidate; it did not order the election postponed.  The Supreme Court issued no opinion in that case, so it is unknown what the basis of the decision was.  Contrary to what many have said, neither the Health Director’s order nor the Secretary of State’s directive, at least insofar as it ordered the boards of elections to comply with the Health Director’s order, threatened the rule of law.

The county boards of elections are bound to implement the directives of the Secretary of State.  Board members that fail to do so can be removed by the Secretary for insubordination.  Thus, the boards will implement the Secretary’s directive to conduct the election on June 2 unless and until the Secretary directs them otherwise.

It is my considered opinion, however, that the Ohio primary election has not yet validly been postponed.  The Ohio Health Director, exercising her power under Ohio Revised Code section 3701.13 to “make special orders . . . for preventing the spread of contagious or infectious diseases,” ordered the polling places closed on election day.  She doesn’t have and did not purport to exercise any power to postpone the election.  Her order just prevented people from voting on election day.  The Secretary of State, on the other hand, did purport in his directive to postpone the election to June 2, but he lacks the authority to change the date of the election set by the legislature.  Only the legislature has that power.  I doubt his announced attempt to obtain a court order postponing the election to June 2 will succeed.

In the meanwhile, the Ohio Democratic Party has filed suit in the Ohio Supreme Court seeking an order that would (1) prohibit the Secretary of State from conducting the election on June 2, and (2) require that boards of elections to continue to issue and accept absentee ballots through late April.  ODP’s argument for an order prohibiting proceeding with the election on June 2 is that the legislature sets the dates of elections and only the legislature can change them.  I believe this argument is correct and, accordingly, ODP should be successful in getting an order prohibiting the Secretary from proceeding with the election on June 2 if the legislature does intervene before the Court renders a decision.  But ODP’s request for an order requiring the boards of elections to continue issuing and accepting absentee ballots through late April runs contrary to its own argument for an order against proceeding with the election on June 2.  For this reason, I doubt they will obtain an order extending voting by mail.

In the end, I believe the legislature will have to settle this, and the sooner the better as long as the solution is carefully thought out.  Although I am generally not in favor of conducting elections exclusively by mail, the current COVID-19 pandemic may well require that this election be concluded by extending the opportunity to vote by mail only, with no in-person voting.  There is little reason to believe that the public health emergency will have abated even by June 2, and the health risks to voters and to board of elections employees are too great.

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