I’m juggling a lot of different things, so this post will be brief. (I will soon be posting a more detailed analysis of the legal issues from Michael Morley.)

I have no problem with Ohio government officials deciding that health conditions were so precarious that people could not go to the polls and to take legal steps to move the election. (I think it is a decision that should have been made sooner, and not left to the day before the election.) But the way in which this occurred shows an abuse of power and the danger to November’s election.

First Ohio officials tried to manufacture a lawsuit to get a court order to close the polls. When that failed because the court believed that moving the election day could disenfranchise voters on the evening of the election, the state’s health officer ordered the polls closed for health reasons. And then the state announced, without apparent statutory authority, that in-person voting was going to be moved to a later date. (The details of that order are troubling, like treating later-arriving ballots as provisional ballots and extending an election period over many months).

What the Ohio governor should have done is had the state legislature on an emergency basis move the polling date to June. (States with upcoming primaries need to examine their state laws to see who has the authority to move a primary election day and if authority needs to be given by state legislatures, it should happen now.) To move an election without statutory authority is an abuse of power.

One can imagine a terrible scenario in November where the President declares martial law or otherwise claims authority to close polling places at the last minute on health-related grounds. That is not an order to shut down the election itself (something the President lacks the authority to do).

This is why Congress needs to act NOW to require states to offer no excuse vote by mail for the November election and pay for it. I made the argument for it in this Slate piece. But Ohio’s example shows why this is all the more urgent. It’s expensive and complicated and messy to greatly expand vote-by-mail. But the alternative is the potential for massive disenfranchisement in November.