Ohio Secretary of State Frank LaRose has appealed a Franklin County judge's ruling that the state could and should allow more ballot drop boxes during the upcoming election.
Franklin County Common Pleas Court Judge Richard Frye on Wednesday night granted a preliminary injunction that would have blocked LaRose's directive to counties last month, which restricted them from placing a drop box anywhere other than the board of elections.
But that order was quickly stayed when LaRose indicated he would appeal. In a written statement, a spokeswoman for the Ohio Secretary of State says state law is clear on the matter.
"Secretary LaRose is pleased that the court cleared the way for his appeal of this very important issue and that the judge stayed his ruling pending the outcome of the appeal," wrote spokeswoman Maggie Sheehan. "Secretary LaRose believes the law is clear about the very limited ways that absentee ballots may be returned to county boards of elections under Ohio law. Specifically, it states absentee ballots 'must be delivered by mail or personally deliver[ed] to the director' of their county board of elections and 'in no other manner.'"
LaRose himself wasn't always so sure about that, though. This summer, he asked for a legal opinion from Ohio Attorney General Dave Yost, but withdrew that request just a day before Yost was ready to rule.
"It’s not that I didn’t want to," LaRose said in an interview with Ohio Public Radio Statehouse Bureau reporter Jo Ingles. "It’s that I didn’t have the legal authority to do so."
The opinion handed down from the court Tuesday, which called LaRose's directive "arbitrary and unreasonable," could have given him the green light to allow more ballot drop boxes. Instead, LaRose's office emailed all board of elections saying the directive would remain in place.
"Yeah, I’m not going to get into the ongoing legal wrangling," LaRose said Wednesday, "but this one decision is not the sum total of the legal process, and we have got to allow everything to play out and see how it is going to play out. I think we all know the legal battles can be protracted.”
Frye wrote that he purposefully did not issue an injunction initially because "the court understood the Secretary favored allowing additional ballot drop boxes and would follow a legal ruling recognizing them as lawful."
Ohio Democratic Party chair David Pepper says LaRose doesn’t have a good reason to appeal at this point. LaRose said repeatedly that he doesn’t want to create any confusion by making changes this close to the election.
But Pepper argues that LaRose himself ordered the one existing drop box at each county board of elections before the altered May primary, with less time to do so. Until that point, the election boards did not have any drop boxes.
Pepper says there’s plenty of time to get drop boxes installed now before early voting begins on October 6.
"I’d like to have drop boxes on the first day, but if you even had them on the first two weeks, that’s when they are most needed anyway because that’s when people are more worried about the mail," Pepper says. "So, to say we don’t have time is also absurd."
Hamilton County Board of Elections member Caleb Faux, a Democrat, says his board voted at one point to install four more drop boxes around the county. But now that plan is up in the air.
“It puts us in a very difficult place," Faux says.
Faux explains more Ohioans are voting by mail this year due to COVID-19, and drop boxes are a way to respond to that.
“We are dealing with a very difficult election and there ought to be some response," Faux says. "We ought to be prepared to allow people to cast their vote quickly and efficiently. And there’s a complete refusal to respond to that situation at all."
LaRose faces another lawsuit that seeks to expand more drop boxes, this time in federal court, brought by the A. William Randolph Institute, the League of Women Voters of Ohio, the Ohio NAACP and others. The suit argues that LaRose "substantially burdens" the right to vote by forcing Ohioans to choose between risking their health to vote in-person, or their mail-in ballot not being counted due to delays in the U.S. Postal Service.
Already, 1.4 million absentee ballots have been requested – more than the total of absentee ballots requested in 2016. LaRose says county boards are ready for November and have been putting a lot of safeguards in place to prevent the spread of COVID-19. Unlike the May primary, election boards will be open on November 3, in addition to four weeks of early in-person voting.
And if voters cast absentee ballots right away, LaRose says they can avoid any potential problems with slow mail service.