Thanks to Covid-19, we are in the season of cancellations and postponements. CCDP’s Executive and Central Committee meetings scheduled for March 26 are cancelled. Our annual Donkey Dinner, scheduled for April 25, is indefinitely postponed. Most important, the March 17 Ohio primary election did not happen. While a lot of people did vote early in person or by mail, most Ohioans vote at their polling places on election day. That means there are a lot of people who still must be given a way to vote.
As part of his formal directive that there would not be voting on March 17, the Ohio Secretary of State (SOS) announced procedures for an “extended” election. In summary, these procedures state that there will be a day of in-person voting at polling places on June 2, 2020. The only in-person voting that may happen would be at polling places on June 2. Requests for absentee ballots by mail are being accepted now and will be accepted through May 26, 2020. However, no new absentee ballots will be mailed to voters until after March 27. Absentee ballots will be counted if they are mailed to the board of elections (BOE) with a postmark of June 1, 2020 or earlier or if they are hand delivered to the BOE by 7:30 p.m. on June 2. Knowledgeable people across the political spectrum and many legal experts agree that the SOS has no legal authority on his own to implement these procedures.
According to news reports today (3/23/2020), the SOS has asked the General Assembly to authorize in-person polling place voting on June 2 with the condition that the in-person part is automatically cancelled if the Health Director’s order, which stopped voting on March 17, has not been rescinded by April 24. In that event, the SOS wants to have a “vote by mail only” election which would still conclude on June 2, 2020. This still creates conflicts with many other deadlines that may or may not be changed. While it is probably not an issue in Clermont County, counties with larger disabled populations may encounter problems facilitating “vote by mail only” for members of those populations.
Another issue is voter registration. Ohio statutes state that a person may vote in an election if she or he properly registered to vote 30 or more days before election day. The SOS has said that registration for this primary election remains closed as of February 18, 2020. The SOS argument is that March 17 was still election day and that voting hours have just been extended to June 2. This argument assumes you can have an “election day” on which no one is allowed to vote. If voting is being deferred to June 2, there is no clear reason why voter registration should not be re-opened.
The Ohio Democratic Party (ODP) filed a lawsuit directly in the Ohio Supreme Court last week asking the Court to prohibit the Secretary of State from going ahead with his announced plan. ODP is asking the Court to order that all voting be done by mail with a deadline to submit ballots to the BOEs of April 28. The Court has put the case on a very fast schedule. Final filings are due this Friday, but no one expects a decision before the end of the month at the earliest. The Court could dismiss the case on procedural grounds without saying whether the Secretary of State has the authority, on his own, to order a new election schedule.
The General Assembly set the March 17 primary election date and should legislate what is to happen since no one could vote that day. The General Assembly is scheduled to meet this week and the election will be on the agenda. However, under the Ohio Constitution, new laws usually do not take effect until 90 days after they are signed by the Governor. For a law to take effect immediately as emergency legislation, two-thirds of the members of both the House and Senate must vote for the law. There are questions about the specifics of a new election procedure, such as re-opening voter registration, which could prevent the super-majorities needed for timely legislation. Anything that comes out of the General Assembly will not be perfect and there will be unintended consequences. Still, it appears that the best outcome is for the General Assembly to pass legislation allowing this primary to be concluded, relatively soon, using only vote by mail.
There is a solution which, I’m told, some Republicans favor. They agree that the Secretary of State can’t legally set new election dates. They argue that the General Assembly set March 17 as election day and, since March 17 has passed, the election is over. Only votes properly cast by absentee ballot or early voting before March 17 get counted in this view. Some even argue that the General Assembly may not “change the rules of the game after the clock’s run out” by legislation allowing voting after March 17. This solution eliminates most of the issues mentioned above and others. However, I think it has serious problems under Equal Protection Clause of the Federal Constitution’s 14th Amendment. It clearly denies many people the right to vote and would probably change the outcomes in some races. Simplicity isn’t always a virtue.
People have asked me whether extending the election favors some candidates over others. I can only guess. Some people with more elections experience than me think it favors the candidates with more money. Since we don’t have any contested primaries except for president, that shouldn’t impact Democrats in Clermont County. It may intensify the complaints about “dark money” being made between local Republican candidates. Hopefully, some Republicans whose candidates lose their primaries will decide their candidate was cheated by the Party leadership and will cross over, or stay home, in November.
Postponing the primary election has caused other issues. A big issue is that elections aren’t cheap to run and most of the costs of the March 17 election were incurred even though no one voted that day. Holding another statewide election, which no one budgeted for, with a general election still to come that may require special safety procedures and equipment could be beyond the means of many Ohio counties. Will the State pick up some or all these unanticipated costs?
Finally, it is worth remembering that we have Ohio Republicans to thank for this mess. Ohio’s 2020 primary was originally scheduled for March 10. If we’d stayed with that date, the election probably would have been held. However, in last summer’s state budget bill, Republicans delayed the primary to utilize an RNC rule that states holding primaries after March 15 may allocate convention delegates on a winner-take-all basis. Ohio Republicans wanted to try to keep John Kasich from winning any delegates and having an opportunity to challenge trump at their national convention. If Republicans tolerated divergent views within their Party, we’d not be having these problems now.
Everyone please stay safe.