One of the most manic of Mondays ever, Monday, March 16, the day before the scheduled Ohio Presidential Primary, began with in-person voting set to go forward as planned. Over the weekend, the office of Ohio Secretary of State Frank LaRose had maintained that the primary election would proceed as expected. However, as reported by the Columbus Dispatch, LaRose had been monitoring updates from the Ohio Department of Health and the Centers for Disease Control and Prevention (CDC) and “their advice ‘radically’ changed Monday morning.” Calls came in to LaRose from Lt. Gov. Husted, Gov. DeWine and Ohio Health Director Dr. Amy Acton, with all telling him “it was unsafe to conduct the election.” Guidance had shifted, from banning gatherings of 100 or more to 50 or more and DeWine was preparing to tell those 65 or older to self quarantine.
On Monday afternoon DeWine said that he wanted to postpone the primary to June 2 at about the same time that a couple of women, one of them a former state director of aging, sued the state to prevent in-person voting due to concerns over the coronavirus spreading. The state didn’t fight the suit and the primary was off. Or was it? At about 7:00 p.m. Franklin County Common Pleas Court Judge Richard Frye rejected the women’s suit, declaring that a “terrible precedent” would be set were a judge to “rewrite the election code” by halting an election hours before the opening of the polls. With Frye’s ruling in place, the primary was back on for roughly three hours, with election officials scrambling to get polling stations ready for the customary, early-morning opening of precincts.
What had happened? How had DeWine’s move to postpone the primary failed? According to the Dispatch, Secretary of State LaRose “said Tuesday that state leaders first left the decision in the hands of a judge, rather than shutting down the election through the health director, because they believed a judge could both close the polls and set a new election date.” When Judge Frye did not respond as expected, LaRose said that “’he, DeWine, Husted and Attorney General Dave Yost moved to “plan B,’ which included Acton’s order and his directive.”
At about 10 p. m., or roughly eight hours before polls were to open, Health Director Acton issued a three-page order closing all polling locations in the state “due to the risk of COVID-19 faced by both voters and poll workers. Then, in the wee hours of Tuesday morning, the Ohio Supreme Court backed Dr. Acton, denying a legal challenge that would have delayed the primary. The rollercoaster ride was over, for now, and the future of in person voting for the primary is still undecided.
So what’s next? If you already voted early in the March 17th primary, then you do not need to do anything more. Your vote will count…. once we know when our primary is. If you did not vote early, then you should be prepared to vote by mail. The Ohio House and Senate are both back in session this week, and the state legislature will express its will on how to resolve Ohio’s primary next week. The Secretary of State himself concedes he does not have the authority to extend Ohio’s primary until June 2nd on his own, and there appears to be little to no actual support to delay our primary that long.
Ohio Secretary of State Frank LaRose has proposed and already taken steps with the U.S. Postal System to potentially mail vote by mail absentee applications to every active registered voter in Ohio who had not already received a ballot in early voting. He would not only provide pre-paid postage return on the applications, but also pre-paid postage return on ballots once they are issued so no voter would incur an expense to vote in the primary. This is something the Ohio Democratic Party and election officials across the state have pushed for to ensure Ohio can conclude its primary safely while still allowing people who had not voted the opportunity to do so. Had the Ohio Democratic Party not filed suit, there may have been no legal authority to allow anyone who had not voted in early voting to vote at all.
LaRose is still holding out for in-person voting at the polls on June 2nd so long as Ohio’s Health Director can certify its safe by the end of April. In my opinion, that creates too much uncertainty and too lengthy of a delay for voters, campaigns, and election officials to render it unworkable. However, we will issue an update once the state legislature has acted. Regardless, my advice is if there’s any doubt that we will have in-person voting to conclude this primary, you are better off to vote by mail rather than risk being shut out of the process entirely.
If you wish to go ahead and submit your application to vote an absentee ballot by mail now, you may consider doing so as it will take at least a couple of weeks before LaRose’s office may be ready to mail them out to you. However, understand at this time, the Board of Elections is prohibited to mail out absentee ballots under LaRose’s current directive. Of course, that will change once the legislature or the courts resolve this matter and he likely wants to hold off until the Board of Elections can provide pre-paid postage return envelopes so voters can return their ballots for free.
We’ll of course keep you updated as we know more. Sign up for our weekly newsletter to keep updated.