COLUMBUS, Ohio – Every judge who has formally reviewed the issue has agreed that under state law, Secretary of State Frank LaRose could order multiple ballot drop boxes per county if he wanted to.
LaRose also has said he personally would support allowing multiple drop boxes per county, although he said last year he didn’t think he had legal authority to do so, and said he’d back a law change allowing them. Among his reasons for blocking extra drop boxes for last year’s presidential election also was the possible voter confusion that could result from making last-minute changes to voting procedures so close to an election.
So why then did LaRose this month again limit drop boxes to one per county for the upcoming primary election in May?
LaRose still thinks it’s an issue that’s best for the legislature to decide, Maggie Sheehan, a Secretary of State’s Office spokeswoman said in an email.
“Secretary LaRose’s position has never changed, notwithstanding the myriad of ultimately inconclusive lawsuits of 2020,” Sheehan said in an email. “He firmly believes that the General Assembly needs to come up with a comprehensive, bipartisan, and fair plan for drop boxes all across the state – such as how many per county, where in each county they should be located, and how to keep them secure – so that it is set in law. The issue of the number and location of drop boxes in each county should not be something that changes for each election depending upon who is Secretary of State.”
What state law actually says, and what LaRose has said
The section of state law laying out how early voting works in Ohio says only that voters can either mail their completed absentee ballots back to their county board of elections, or that they or a close family member “may personally deliver it to the director.”
So in other words, there is nothing about ballot drop boxes in state law.
The state legislature passed an emergency law last April requiring a single ballot drop box at every county board of elections office after the March primary was effectively postponed until May.
The law was temporary expired after the May election. But LaRose kept the single drop-box requirement in place as an administrative policy for the presidential election in November.
LaRose’s decision expanded drop-box options across the state. But some larger counties already had offered them for years. LaRose’s decision came as larger counties, including Cuyahoga County, considered adding more amid the coronavirus pandemic.
“I think it would be a great thing if we could if the state legislature were to authorize it, or a judge’s order,” LaRose told WFMJ, a Youngstown TV station, last August. “I would be happy to see more drop boxes in more places throughout the state. As long as it had the bipartisan support of those boards of elections, and as long as those drop boxes were secure and under video surveillance.”
What judges have found
Sheehan called last year’s legal fights over ballot drop boxes “ultimately inconclusive.”
But every judge that considered issue said under state law, LaRose could order more drop boxes if he wanted to.
In September, Franklin County Common Pleas Judge Richard Frye, a Democrat, wrote LaRose had no legal basis to limit ballot boxes to one per county.
“Instead, every board of elections is legally permitted to consider enhancing safe and convenient delivery of absentee ballots, and may tailor ballot drop box locations or conceivably other secure options to the needs of their individual county,” Frye wrote, ruling on a lawsuit brought by the Ohio Democratic Party challenging LaRose’s one-drop box limit.
Frye initially didn’t order LaRose to allow counties to set up extra drop boxes, since he was under the impression that LaRose supported them and would do so on his own. But after LaRose’s team indicated they wouldn’t act without a court order, Frye issued one, which LaRose appealed.
In October, three state appeals judges took up the case.
The three varying opinions didn’t add up to an order forcing LaRose to allow counties to offer multiple drop boxes if they wanted to. But they all agreed nothing in the law was stopping him from doing so.
Judges Julia L. Dorrian, a Democrat, and Judge Betsy Luper Schuster, a Republican, wrote that LaRose’s interpretation that only one drop box is allowed under state law was “unreasonable.”
But Luper Schuster wrote LaRose had the option of limiting ballot boxes, since state law was unclear on the issue, while Dorrian’s interpretation was he didn’t have the authority to block counties from setting up extra boxes.
A third judge, Republican Judge Susan Brown, a Republican, said LaRose’s decision to limit drop boxes wasn’t unreasonable, but agreed with Dorrian and Luper Schuster that multiple drop boxes were allowed under state law.
So Luper Schuster and Brown overturned Frye’s order that would have forced LaRose to allow counties to offer multiple drop boxes.
“Thus, we find that while the Secretary was not statutorily required to limit the location of drop boxes, as he did in Directive 2020-16, he was also not statutorily required to allow for additional drop boxes,” the final opinion stated. “If the Secretary wants to permit additional drop boxes as allowed by statute, he has the authority to do so, and nothing in this decision prohibits him from rescinding Directive 2020-16 and issuing a new directive.”
The appellate judges had the final legal word on whether state law allowed multiple drop boxes per county. The Ohio Supreme Court did not take up the case.
A separate lawsuit filed by voter-rights groups in federal courts attempted to force LaRose to allow multiple drop boxes, arguing the limit violated voters’ rights under the U.S. Constitution. The case focused on the U.S. Constitution, not state law.
But a federal judge in Cleveland who initially ruled in the voting-rights groups’ favor noted that LaRose’s arguments claiming drop boxes were limited under state law had been rejected by the Ohio Court of Appeals. So, U.S. District Judge Dan Polster wrote LaRose’s decision to block counties from installing additional off-site drop boxes was arbitrary.
“It is now settled law that off-site drop boxes are neither required nor compelled in Ohio,” Polster wrote in an Oct. 8 order striking down LaRose’s limit on drop boxes.
But Polster’s decision soon was overturned by a federal appeals court. Two out of three judges on the panel that reviewed the case wrote that changing the rules so close to the election would create voter confusion and pose a possible security risk under the circumstances. They were considering federal voting laws, not state law, and didn’t comment on what Ohio law said on the issue.
“Implementing off-site drop boxes now would thus require on-the-fly implementation of new, untested security measures,” wrote U.S. Sixth Circuit Court of Appeals Judges Richard Griffin and Amul Thapar.
Judge Helene White dissented, and commented on what state courts had said about LaRose’s contention that he lacked legal authority allow additional drop boxes.
“The Ohio courts determined that the Secretary’s interpretation was incorrect and that such additional locations were neither prohibit nor mandated,” White wrote. “Prior to the state court decision, the Secretary stated that he would allow off-site drop boxes if a court determined they are permissible under the statute. The Secretary then changed his mind.”
In his written directive to counties issued this month for the upcoming May election, LaRose reiterated to local elections officials they could set up one drop box at their county board of elections, with the option of setting more more immediately outside the building.
“Even though Ohio law does not explicitly provide for the use of secure receptacles, commonly known as “drop boxes,” for an absentee voter to return their ballot to the director, this Directive, once again, provides for the continued use of secure receptacles outside of the boards of elections,” LaRose wrote.
LaRose touted a part of Griffin and Thapar’s ruling that called Ohio’s early-voting options “generous.”
In her statement for this story, Sheehan, the LaRose spokeswoman, did too.
“At the end of the day, this isn’t about where the Secretary stands on expanding the ways someone can return a ballot,” she said. “This is about the Secretary’s longstanding belief that significant changes in how elections are run should be determined by the legislature, and ideally in a bipartisan way.”