Voters casting ballots. (Mario Tama/Getty Images.)
Ohioans around the state will begin lining up at their county election boards to cast their ballots in 2024 general election Tuesday. Meanwhile, the Ohio Democratic Party and two voters are facing off against the Secretary of State over a directive requiring people dropping off someone else’s ballot to sign an attestation that they are complying with state law.
The controversy goes back to a federal case filed late last year by the League of Women Voters of Ohio and disability rights advocate Jennifer Kucera. That case argued Ohio’s newly-passed restrictions on who could return absentee ballots violates federal law, which allows people with disabilities to get help returning ballots from anyone other than their employer or union rep. A federal judge agreed and granted an injunction on Ohio’s restrictions for disabled voters.
Rather than accept that carve out, Secretary of State Frank LaRose issued a directive requiring anyone returning someone else’s ballot — regardless of their relation — to sign a form stating they’re complying with state law.
Lawsuit filed challenging Ohio Secretary of State’s new ballot drop off requirements
Where the case stands
The state supreme court laid out a rapid timeline for the lawsuit on the eve of early voting. Since that case was filed a week and a half ago, three justices have recused themselves, the Ohio Republican Party has filed to intervene, the League of Women Voters of Ohio has filed an amicus brief and the Secretary of State has filed his brief in response to the complaint.
Justices Melody Stewart, Michael Donnelly and Joe Deters, all of whom are on the ballot, have recused themselves from the case. Stewart and Donnelly are Democrats; Deters is a Republican.
Separately, Attorney General Dave Yost filed a request for Justice Brunner to recuse herself, which she refused. Yost argued her impartiality could be questioned given her involvement in a federal case involving LaRose. That lawsuit challenges a recent Ohio law that added party labels to Ohio Supreme Court races.
The candidates, the ballot measures, and the tools you need to cast your vote.
The Ohio Republican Party sought to intervene in the dropbox case arguing the secretary’s directive sits squarely in his authority to order procedures that “supplement” statutes, and that when it comes to meeting the rational basis standard, it “leaps that benchmark with miles to spare.” In contrast, the League of Women Voters’ amicus brief called the directive “confusing, burdensome, and unnecessary.” The group went on to argue LaRose’s actions are simply an effort to negate his loss in federal court.
“His rationale for doing so — to prevent ballot harvesting — in no way justifies or requires his sweeping, ill-conceived objective,” the League’s attorneys wrote.
In his own filing, LaRose contends the challengers waited too long to bring their case.
“Implementing these changes now, in the final stretch of a presidential election will inevitably cost the boards time, resources, and money — all when these are at a premium,” he argued. He noted that ballots for overseas voters have already gone out, and presumably some people may have already voted.
What’s more, the directive doesn’t prevent disabled Ohioans from choosing who helps them, and its demands amount to “a minimal burden on voting rights,” he claimed.
To LaRose, the attestation form is a way of balancing his duties under state law to limit who can drop off a ballot and the federal injunction requiring greater flexibility for people with disabilities.
“It is impossible,” he argued, “to execute both duties unless the boards know — or have a way to determine — who is authorized to return an absentee ballot.”
Ohio Secretary of State Frank LaRose talks to reporters. (Photo by Susan Tebben, OCJ.)
The Cronin case
LaRose contends there’s good reason for his directive. He cites a 2022 incident in which a nursing home worker showed up at the Summit County Board of Elections to drop off 15 residents’ ballots. Based on the transcript of a subsequent board meeting, when Mary Cronin tried to deliver the ballots in person, election workers told her she wasn’t eligible to do so. Cronin replied that she’d done so before without issue and proceeded to drop them in the county’s dropbox outside.
Cronin’s case was referred to prosecutors and she was indicted. The Summit County prosecutor later dismissed the case in light of the federal court injunction ensuring disabled voters can choose who helps them vote.
LaRose argued his directive “would have prevented this entire scenario, had it been in place.”
“The nursing-home employee could have filled out attestations for all the disabled voters who authorized her to return their absentee ballots, and she could have lawfully returned those ballots,” he argued. “Or, if she had refused to sign an attestation and did not have authorization, the board could have been immediately alerted to a potential ballot-harvesting scenario.”
The relators challenging LaRose’s directive see the case differently.
They argue state lawmakers chose deterrence, in the form of potential felony charges, rather than administrative hurdles like LaRose’s attestation form, on purpose, and that LaRose has “no authority to displace them through administrative fiat.” The fact that Cronin was charged indicates the law is working as intended, and conversely, LaRose’s directive offers little in the way of actual protection.
“What person would scheme to commit a felony by returning an absentee ballot contrary to Ohio law, only to be foiled by signage on a drop box requiring attestation to those requirements?” they asked.
LaRose’s directive will impose new burdens, they insist, without providing the security he promises. In a footnote they add that even without the directive counties can prosecute people who return ballots they shouldn’t.
Time and discretion
Throughout his brief, LaRose criticizes the challengers for bringing their case too late in the process. Absentee ballots have been designed and printed, he argued, and it’s too late now to change them. And even if they could, because overseas ballots have already gone out, rescinding the directive would mean those voters “would have been subject to different rules than voters that waited until later to vote, which is expressly prohibited.”
Instead, the challengers argue it’s LaRose’s directive, landing about two months before a federal election, that’s arriving too late, and they dismiss his argument about overseas voters operating under different rules.
“That statement is false,” they wrote. “The only voters who have voted thus far are UOCAVA voters — and drop boxes are not yet available for any UOCAVA voter who intends to deliver their ballot in person.” UOCAVA stands for the Uniformed and Overseas Citizens Absentee Voting Act.
They add that LaRose’s concerns about absentee ballot instructions are disingenuous. If someone showed up to a county board expecting to fill out a form, they argue, “they could simply be informed verbally or by signage, “That isn’t necessary.”
LaRose also contends nothing in state law requires counties to set up drop boxes — they are “wholly discretionary.” And while they must be open 24/7 throughout the early vote period, they aren’t required to accept all ballots.
The law “mandates hours of operation, not the receipt of any particular ballot,” LaRose contends. “It states that the drop box ‘shall be open,’ not that it ‘shall receive ballots’ or ‘shall receive all ballots.’”
To LaRose, this means it’s perfectly legitimate to distinguish between ballots delivered by the voter themselves and those turned in by a chosen assistant. But the challengers push back, by turning his arrangement on its head.
“By that logic, he could have issued a directive saying that voters cannot return their own personal ballot by drop box, but someone returning their family member’s ballot could do so,” they argue. “After all, drop boxes are discretionary.”
“Stripped to its essence,” they add, “the Secretary claims the authority to rummage around in the Revised Code and reorder it to his liking.”
Follow OCJ Reporter Nick Evans on Twitter.
YOU MAKE OUR WORK POSSIBLE.