Ohioans will begin lining up outside county boards of elections to cast ballots in the 2024 general election on Tuesday. Meanwhile, the Ohio Democratic Party and two voters are at odds with the Secretary of State over a directive requiring people who cast someone else’s ballot to sign an attestation that they comply with state law.
The controversy dates back to a federal case brought tardy last year by the League of Women Voters of Ohio and disability rights advocate Jennifer Kucera. The case argued that Ohio’s newly adopted restrictions on who can return absentee ballots violate federal law that allows people with disabilities to get assistance in returning ballots from anyone other than their employer or union representative. A federal judge agreed and issued an injunction addressing Ohio’s restrictions on disabled voters.
Instead of accepting the expungement, Secretary of State Frank LaRose issued an order requiring anyone returning someone else’s ballot – regardless of relationship – to sign a form stating they were complying with state law.
A lawsuit has been filed challenging the Ohio Secretary of State’s up-to-date requirements for returning ballots
Where does the case stand?
The state Supreme Court set a brisk timeline for hearing the lawsuit on the eve of early voting. Since this case was filed a week and a half ago, three judges have recused themselves, the Ohio Republican Party has filed a motion to intervene, the Ohio League of Women Voters filed an amicus brief, and the Secretary of State filed his brief in response to the complaint.
Justices Melody Stewart, Michael Donnelly and Joe Deters, who will take part in the vote, recused themselves from the case. Stewart and Donnelly are Democrats; Deters is a Republican.
Separately, Attorney General Dave Yost asked Judge Brunner to recuse herself, which she refused. Yost argued that her impartiality could be questioned due to her involvement in the federal case involving LaRose. This lawsuit challenges a recent Ohio law that added party labels to Ohio Supreme Court races.
The Ohio Republican Party attempted to intervene in the drop box issue, arguing that the secretary’s guidance falls squarely within his authority to administer the bill’s “supplemental” procedures and that, in terms of meeting reasonable baseline standards, they “leap that mark with miles to spare.” In turn, an amicus brief from the League of Women Voters called the directive “confusing, burdensome and unnecessary.” The group then argued that LaRose’s actions were simply an attempt to deny his loss in federal court.
“His reasons for doing so — to prevent ballot harvesting — in no way justify or require his far-reaching, ill-conceived purpose,” the League’s lawyers wrote.
In his own filing, LaRose argues that the challengers waited too long to bring their case.
“Implementing these changes now, in the final stages of the presidential election, will inevitably cost boards time, resources and money – all at a premium,” he argued. He noted that ballots for overseas voters had already been sent out and some people had probably already voted.
Moreover, the directive does not prevent disabled Ohioans from choosing who will facilitate them, and its demands amount to “minimal burden on voting rights,” he said.
For LaRose, the certification form is a way to balance his obligations under state law to limit the number of people who can cast a ballot with a federal mandate requiring greater flexibility for people with disabilities.
“It is impossible,” he argued, “to fulfill both obligations if boards do not know – or are unable to determine – who is authorized to return an absentee ballot.”
The Cronin case
LaRose says his directive is for good reason. He cites an incident from 2022 in which a nursing home employee showed up at the Summit County Board of Elections to drop off ballots for 15 residents. Based on the minutes of the next board meeting, when Mary Cronin tried to deliver the ballots in person, board of elections officials told her she was not authorized to do so. Cronin responded that she had done this before with no problem and began dropping them off at the county drop box outside.
Cronin’s case was referred to the prosecutor’s office and she was charged. The Summit County prosecutor later dismissed the case in airy of a federal court order giving disabled voters the ability to choose who helps them vote.
LaRose argued that his directive “would have prevented the entire scenario if it had existed.”
“The nursing home employee could have completed certificates for all disabled voters that authorized her to return their absentee ballots, and she could have legally returned those ballots,” he argued. “Or, if she refused to sign the certificate and did not have the authority, the board could be immediately notified of a potential ballot harvesting scenario.”
Reporters questioning LaRose’s directive see the matter differently.
They argue that state lawmakers intentionally chose the deterrent of potential criminal charges rather than administrative hurdles like LaRose’s certification form, and that LaRose “does not have the authority to supersede them by administrative order.” The fact that Cronin was charged shows that the law is working as intended, and conversely, LaRose’s directive offers little in the way of actual protection.
“What person would plan to commit a crime by returning an absentee ballot in violation of Ohio law, only to be thwarted by a sign on the drop box requiring certification of compliance with these requirements?” they asked.
They insist that LaRose’s directive will impose up-to-date burdens without providing the security he promised. In a footnote, they add that even without the directive, counties could prosecute people who return ballots, but they shouldn’t.
Time and discretion
Throughout his speech, LaRose criticizes the challengers for bringing their case too tardy in the process. He argued that absentee ballots were designed and printed and it was too tardy to change them. And even if they could, since ballots have already been distributed abroad, repealing the directive would mean that these voters “would be subject to different rules from voters who waited until later to vote, which is expressly prohibited.”
Instead, challengers argue that LaRose’s directive, effective about two months before the federal election, comes too tardy and reject his argument that overseas voters operate under different rules.
“This statement is false,” they wrote. “The only voters who have voted so far are UOCAVA voters – and drop boxes are not yet available to any UOCAVA voters who intend to deliver their ballot in person.” UOCAVA means Absentee Voting Act for Uniformed Citizens and Foreign Citizens.
They add that LaRose’s concerns about mail-in voting instructions are disingenuous. They claim that if someone showed up at the district office expecting to fill out a form, “they might simply be told verbally or by signage, ‘This is not necessary.’
LaRose also says no state law requires counties to set up drop boxes – it’s “entirely discretionary.” And while they must be open 24/7 throughout the early voting period, they are not required to accept all ballots.
The law “requires hours of operation, not receipt of a specific ballot,” LaRose said. “States that the drop box ‘will be open,’ not that ‘will receive ballots’ or ‘will receive all ballots.’
According to LaRose, this means that the distinction between ballots delivered by the voter himself and those cast by a chosen assistant is entirely valid. However, the challengers push back, turning his arrangement upside down.
“By that logic, he was able to issue a directive saying that voters I can’t return your own ballot through the drop box, but someone returns a family member’s ballot could do it,” they argue. “After all, drop boxes are discretionary.”
“Stripped down to its essence,” they add, “the Secretary claims the right to rummage through the revised Code and arrange it according to his own preferences.”
Follow the OCJ reporter Nick Evans on Twitter.
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