The Ohio Supreme Court has rejected an attempt to make it easier for Ohioans to vote for a family member.
Under state law, a few loved ones can legally do this. However, following a federal court ruling requiring more flexibility for voters with disabilities, Ohio Secretary of State Frank LaRose imposed a new requirement that anyone casting a ballot on behalf of another person must sign a form attesting to compliance with state law.
Two voters and the Ohio Democratic Party challenged LaRose’s directive, arguing that the certification would unnecessarily limit voting access.
They argue that by requiring aides to fill out the form, the directive’s restrictions are circumscribed to the hours the electoral commission is open and access to drop boxes will be circumscribed to people casting their own ballot.
In 4-3 decision along party linesThe Supreme Court sidestepped the question of whether LaRose’s directive violated state law. Instead, most said the challenge came too tardy.
However, with two dissenting votes, the minority criticized LaRose’s directive as “a stunt that should send shivers through our citizens” and chided the majority for “failing to uphold the rule of law.”
Neglect
The majority relied on a legal doctrine called the Laches Doctrine to make their decision. To sum up, he is of the opinion that the plaintiff cannot unreasonably delay bringing the case to court. The decision noted that there is a four-part test for determining whether a case is barred by laches. There must be unreasonable delay, no excuse for the delay, knowledge of the damage that may be suffered by the moving party and of the damage to the opposing party.
The court agreed with the Registrar that all four elements were present. Specifically, they noted that LaRose issued the directive on August 31, but the case was not filed until September 27.
The justices acknowledged that the individual voters in the case may not have anticipated changes in their circumstances that would require them to lend a hand deliver ballots, but they were hesitant to make sweeping changes based on one person’s experience.
“Allowing a single voter to request statewide assistance … would effectively eliminate Laches as a line of defense in voting matters,” they wrote.
In a show of bias, the clerk insisted that his office and county boards would be forced to prepare, print and mail new mail-in voting instructions if opponents prevailed because many ballots had already been mailed to voters detailing the new certification requirements.
Opponents argued that this would be absurd. Anyone who shows up to sign the form can simply be told that it is not necessary. But the court didn’t buy it.
“We will not support a scenario in which electoral commissions send incorrect instructions to voters and inevitably cause voter confusion,” the majority wrote.
In a statement praising the decision, LaRose argued, “political activists have once again tried to dismantle the protections we have put in place, particularly in this case against ballot harvesting, but they have been rejected.” He said his certification requirement has been successful in other states and that the decision should “strengthen Ohio voters’ confidence in the security, integrity and accountability of our elections.”
Meanwhile, Ohio Democratic Party Chairwoman Elizabeth Walters said, “Today’s decision is disappointing not only for us as a party, but also for Ohioans who will be forced to jump through unnecessary hoops to exercise their right to vote in this historic election.”
“We will continue to hold Frank LaRose and all Republicans who threaten voting rights in Ohio accountable – starting at the ballot box,” she added.
Discord
While the majority conducted the Laches analysis and declined to consider the legal arguments against the Secretary’s Doctrine, the dissenting opinions argued that they reversed the case. Judge Jennifer Brunner rejected LaRose’s argument that rescinding his directive would create chaos.
“The chaos present in this unfortunate situation is due to the Secretary’s lack of statutory authority to issue Directive 2024-21 in the first place,” Brunner, who previously served as Ohio Secretary of State, wrote in her dissent.
Brunner also addressed the majority’s reluctance to take more decisive action.
“Faced with the tension between the Secretary’s illegal actions and the reality of the mess those actions have created, we cannot wring our hands after being fed flimsy excuses,” she wrote. “We must mandate compliance with the law.”
Brunner argued that LaRose’s directive itself came too tardy to turn around and claim Laches’ defense. Even if the challengers make their case immediately, she argued, there is “no realistic way” for the court to rule before ballots for overseas voters start being mailed.
“It’s hard to imagine that the secretary didn’t know about it,” she insisted.
First Circuit Court of Appeals Judge Pierre Bergeron heard the case in place of Judge Michael Donnelly, who recused himself. Bergeron signed on to Brunner’s opinion, but in a separate dissent he argued that the Secretary’s directive “cruelly targets people who must necessarily rely on the help and grace of others.”
Bergeron described caring for his parents as they grew up and struggled with cognitive illnesses. “It is difficult to overstate the stress and challenges that have been placed on me,” he wrote, “as I am sure caregivers across the state can attest.” Maintaining your own job, Bergeron explained, means running errands or making appointments outside of normal business hours.
“The directive creates yet another unnecessary challenge for overburdened caregivers, encouraging them to throw up their hands and say, ‘I don’t have time for this,'” he wrote. “Voting will be placed at the bottom of the never-ending to-do list and, by design, this directive will convince many people not to vote.”
“It’s a travesty beyond words,” argued Bergeron.
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