Will Ohio have only one ballot drop box per county? An appeals court says it's up to election chief.
Originally published on Oct. 4, 2020 at WTOL.com
TOLEDO, Ohio -- Ohio Secretary of State Frank LaRose can allow county boards of elections to place more ballot drop boxes in their jurisdictions or maintain his directive of only one box per county, an Ohio court of appeals ruled Friday.
The ruling comes after a month-long debate in the lower and appellate courts when a Franklin County voter and the Ohio Democratic Party sued LaRose, hoping to get interference that would allow boards of elections to install more boxes.
LaRose issued the directive after he asked Ohio Attorney General Dave Yost to weigh in on whether state law allowed for more than one drop box per county. After waiting for an answer, the secretary said in a press conference on Aug. 12 he decided to allow only one box instead of waiting for continued legal analysis.
The secretary added on that occasion he thinks expanding the boxes is a "fine idea for the future" and that he hopes the legislature acts on it. He added with just a few months until Election Day, he doesn't think it's time to change the way his office has operated and risk litigation.
It's unclear if LaRose will allow more than one box per county now that the court of appeals has given him the discretion to go in either direction.
"We received and are reviewing the decision and are pleased with the court’s ruling to reverse the injunction," secretary of state spokesperson Maggie Sheehan said.
Sheehan was referring to a lower court judge's previous ruling of placing a temporary injunction in the secretary's directive.
That lower court judge issued an opinion on Sept. 15, describing many factors that play a role in the issue, including aspects related to the variations of size and population of the 88 counties in Ohio.
"While the time of day, road network, traffic patterns, availability of public transportation, and other features within each county are obvious factors that impact the accessibility of one or more ballot drop boxes, as a generalization it can be said that counties covering a relatively larger geographic area will require more travel time by voters than is needed in smaller counties," the judge wrote.
In northwest Ohio, the city of Bellevue is located in four counties - Erie, Huron, Seneca and Sandusky. The closest county board of elections to the city's downtown is 14.6 miles away, in Sandusky County, and a round trip takes about 38 minutes without traffic.
Ohio voter Lewis Goldfarb, who testified in the lower court and was one of the plaintiffs in the case, hopes to cast his ballot using a drop box since he doesn't feel comfortable voting in-person because of COVID-19 and his own health history, according to court records.
Goldfarb is a resident of Hilliard, located in the western part of Franklin County, and would have to drive 15 to 20 miles to the board of elections, taking an hour for a round trip, unless there are additional boxes and one is located closer to his home, court records said.
Members of the Sandusky County Board of Elections considered this issue and voted unanimously to purchase two additional drop boxes for the county on July 13, according to Board Director Sharie Chagnon. She said in mid-September the board was waiting for the issue to be resolved in the courts.
An uptick in Ohio voters requesting absentee ballots has already impacted the Wood County Board of Elections box. As it filled up quickly in the past few weeks, board director Terry Burton said the box needs to be bigger.
“We wanted a bigger box just to take care of the volume. We’re hoping to have it installed and ready to go before the Oct. 6 start of the ballots being mailed out. We've had this drop box for about 10 years, it's worked fine and it worked fine in the primary," he said.
Meanwhile, Burton said on Monday, before the court of appeals ruling, the Wood County board would decide on whether to get more boxes depending on the timing of the litigation. The members would have to see if they would have enough time and resources to install additional boxes.
Lucas County commissioners issued a statement on Saturday, asking LaRose to issue a new directive allowing boards to determine how many boxes are appropriate for their respective counties.
Ins and outs of the lawsuit:
The Ohio Democratic Party along with Franklin County voter Goldfarb had sued Secretary LaRose in August following his directive, seeking interference from the courts so that boards of elections could place more than one ballot drop box.
University of Toledo law professor Lee Strang said the case was mainly about the meaning of the word "deliver" in Ohio law when it comes to the voting and return procedure section of the revised code.
The statute says, "The elector shall mail the identification envelope to the director from whom it was received in the return envelope, postage prepaid, or the elector may personally deliver it to the director."
"The question is when the phrase says the elector may personally deliver to the director, does that mean the boards of elections can set up one of the voting boxes or can it set more of those and how many," Strang said.
LaRose interpreted that "personally deliver to the director" means boards of election can create one drop box at the board director's office, which is generally where the board office is as well, according to Strang.
On the other hand, the Ohio Democratic Party and Goldfarb argued it's up to the individual boards of elections to decide on how many boxes to place.
But the court's decision can't be based on the best interpretation of the law, according to Strang. He said the person legally authorized to conduct elections is the secretary of state and courts should defer to his interpretations unless they find his take to be illegal, meaning it's unreasonable and arbitrary.
"In other words, no, only a crazy person would agree with you. That's the standard the court has to use to find the secretary's interpretation is illegal. That's a crazy interpretation. And that, I think, is very hard to shell and the court did not provide enough arguments to support that conclusion," Strang said.
Lower court judge Richard Frye used the words unreasonable and arbitrary to describe LaRose's directive in his opinion when issuing his first ruling.
But Strang said after reading the briefings and opinion filed in this case, he believes LaRose's interpretation has more to commend, basing his opinion on the fact the secretary had more arguments, some of which the lower court didn't address.
"I'm confident that the court has not shown that the secretary's interpretation is arbitrary," Strang added.
After Frye issued his ruling, LaRose's office released a statement saying the directive remained in place because the judge didn't rule on placing an injunction on it.
Afterward, the judge issued a preliminary injunction and gave LaRose 24 hours to respond. The secretary of state then appealed the case in the higher courts.