The following is a guest post from Michael Morley:
Developments concerning Ohio’s 2020 primary are still unfolding, but the incident already provides several important lessons that both election officials and the public must keep in mind as we approach the general election in November. Earlier this week, Ohio Governor Mike DeWine announced that he lacked legal authority to unilaterally delay the primaries. Some voters sued in Ohio state court for a temporary restraining order enjoining the state from conducting in-person voting as scheduled today. The state did not oppose the request, but the court denied the motion, holding that the parties had failed to justify such an extraordinary last-minute request, and there was no basis in state law for it. This ruling currently remains on appeal.
In response, the Director of the Ohio Department of Health issued an order closing all polling places throughout the State of Ohio today. And the Secretary of State followed up with another order rescheduling in-person voting for the 2020 Primaries for June 2, 2020; allowing absentee balloting to continue until then; and extending the deadlines for requesting absentee ballots, counting them, canvassing, and certifying election results. Importantly, the order does not extend the deadline for voter registration for the primaries; only voters who were legally eligible to vote on March 17 will be permitted to vote on June 2 (a valid restriction, but one that is almost certain to trigger its own set of challenges).
This morning, the Ohio Supreme Court rejected an emergency petition for a writ of mandamus that would have compelled Ohio executive officials to proceed with in-person voting today. Three of the seven Justices recused themselves. That order, issued without explanation, does not confirm the legality of any of the steps that have been taken by the state’s executive officials.
In assessing the state’s response to the coronavirus emergency, it is useful to distinguish between: (i) the Department of Health order prohibiting in-person voting today, and (ii) the Secretary of State’s order purporting to provide alternative voting opportunities. After discussing each of these orders, this post will conclude with some broadly applicable thoughts concerning official efforts to respond to election emergencies.
I. The Ohio Health Department Order
Since I don’t have any background in Ohio’s public health statutes, I’m willing to accept the assumption that the Director of the state health department has general statutory authority to prohibit people from assembling in public places in order to avoid the spread of infectious disease or otherwise mitigate major public health problems. And, overall, delaying the primary was certainly within the range of reasonable possible responses to the unique threat posed by the coronavirus. The virus not only directly threatens human life—particularly the lives of particularly vulnerable populations, such as the elderly—but also poses a risk of exceeding our nation’s health care capacity, particularly hospital beds and ventilators. The threat of community spread has led to the remarkably extraordinary precautions, ranging from the closure of schools, cancellation of sporting events, and other major limitations on public gatherings throughout the nation, to the shuttering of such crowded iconic America landmarks as the Las Vegas Strip and Disney World. In that context, the decision to close polling locations as a public health measure is easily defensible. Having said that, there are also several factors worth considering that weigh against the Director’s actions.
a. Backdoor election postponement—My biggest reservation is that the Ohio Election Code specifically deals with both elections in general, and even various types of election emergencies in particular. In crafting the Code, the legislature did not give the Governor authority to postpone elections or otherwise refuse to hold in-person voting in accordance with statutory requirements. Given the Election Code’s complexity, I have concerns about creatively stretching other broad grants of discretion under other, completely unrelated statutes to allow the rules governing elections to be substantially modified and elections themselves to be postponed. From a statutory interpretation perspective, principles such as expressio unius and the “major questions” doctrine may counsel against construing the Director of the health department’s authority so broadly.
b. Incomplete authority / bootstrapping – Even accepting the reasonable assumption that the Ohio Health Department may have authority to prevent people from congregating at polling places, it does not have any power – and does not purport to have the power – to exercise authority over all the other aspects of the electoral process that refusing to hold in-person voting will impact. The Health Department’s order cannot change the statutory date of the primary, laws requiring the counting of absentee and provisional ballots, deadlines for canvassing and certification, and other such provisions. As far as I can tell, at the time they decided to refuse to proceed with the March 17 primary, the Governor and Secretary of State were simply unilaterally ignoring these other provisions of the Election Code without either statutory authorization or judicial approval (though either of those facts may change).
This creates something of a bootstrapping problem. The Governor and Secretary of State were able to present other state officials with a fait accompli of a cancelled election, effectively compelling them to allow voting on a later date. Even if a state or federal court were to conclude that the postponement of in-person voting today were illegal or not sufficiently warranted, there would be no way to provide any relief other than allowing in-person voting to occur on a later day. Especially since a state trial court had already refused a TRO delaying the election—despite the state’s consent—this seems problematic.
c. Timing—The fact that the decision to cancel the election came only a few hours before election day is at least a prudential reason that weighs against it. Admittedly, Corona presents a rapidly evolving situation, with new developments continuously unfolding. But it’s not clear that the last-minute decision to cancel the election was based on newly revealed information that wasn’t previously available. The only fact identified in the Health Department’s order that arose on March 16 is that 50 cases of Corona were confirmed throughout the state (and it’s likely state officials knew about some or many of them beforehand). Circumstances that may have easily justified officials in deciding, with proper judicial authorization, to delay the election a few days earlier might not necessarily be sufficient to warrant a unilateral last-minute cancellation. But that’s primarily a policy consideration, rather than a legal constraint. And it would be equally problematic to say there’s a “deadline” for saving human life. If the Governor came to realize that he underestimated the risk posed by a virus such as Corona, but still had time left to act, we would not want to unnecessarily jeopardize public health by saying he was “too late.”
d. Risk—On the one hand, the virtually unprecedented national effort to curtail community spread of the Coronavirus seems to confirm that the public health risk was sufficient to warrant postponing the election. Many pollworkers and voters are elderly, and thus are at particular risk of suffering serious consequences from infection. In considering the substantive reasonableness of the Health Department’s decision, however, I do think other states’ actions are relevant considerations. A few states have postponed their elections, while others are following through with them. It is possible that the states proceeding with their elections as scheduled are under-protecting people’s lives. Yet the fact that there is such a diversity of approaches, especially combined with the trial court’s refusal of a TRO, may suggest that this is not such a one-sided, indisputably clear issue that unilateral executive action at the eleventh hour was warranted (even if a more careful roll-out, in advance, and especially with the proper legal authorization, would have been more appropriate). But again, these are primarily policy considerations rather than legal constraints.
e. Voter Participation—In terms of encouraging voter participation, rescheduling the election for June might be a wash. First, we have no idea whether things with the Coronavirus will be better, worse, or the same by then. Postponing the election for that day presupposes that some fairly short-term improvements will occur, and I don’t know whether that’s scientifically warranted. Second, even if some people will be willing to show up to vote at that point who would’ve stayed home on the originally scheduled election day, any such increase may be offset by diminished participation. Voter groups may not have the resources to mount the same get-out-the-vote efforts as they had lined up for the original election day. Voters may be less clear about the new election day or have less interest in participating. There’s usually a participation drop-off between a main election and a run-off; though I haven’t seen data about rescheduled elections, I would imagine the results may be somewhat comparable. Again, though, these are policy considerations rather than legal constraints.
Overall, as a practical matter, I substantively agree that delaying the election was a valid exercise of discretion. I am concerned about using the public health code as a means of making an end run around the constraints the Election Code places on state executive officials’ discretion concerning election emergencies. And I particularly object to the fact that state executive officials made this decision at the eleventh hour, without either legislative or judicial authorization. Though they likely reached a good substantive result in this case, I would not want to see this used as a precedent—particularly for the general election for President (which is subject to additional federal statutory and constitutional timing constraints).
II. The Ohio Secretary of State’s Order
Of the two orders, I believe the Secretary of State’s is the more legally problematic.
a. Authority—Since the Health Department’s order denied people the opportunity to vote in person on Election Day, rescheduling Election Day is a reasonable, proportionate, and likely constitutionally required remedy. I don’t think the Secretary of State has the statutory authority, however, to unilaterally adopt either a new election day or new deadlines for absentee ballot requests, receipt of completed absentee ballots, canvassing, and certification. This order will require either legislative or judicial action to become legally authorized and enforceable. Nevertheless, with or without this order, a new day for in-person voting seems to be an unavoidable remedy.
b. Absentee voting—In my opinion, the most controversial part of the Secretary’s order is his decision to allow two-and-a-half months extra of absentee voting. His order allows voters to submit applications for absentee ballots so long as they are postmarked by May 26, 2020, and allows completed absentee ballots to be returned so long as they are postmarked by June 1 and received by June 12, 2020.
On the one hand, as a practical matter, if the election is being held in June, there doesn’t seem to be a reason to prohibit absentee voting between now and then. These are several countervailing considerations, however:
● Practical problems—Having a total of four months of absentee voting increases the likelihood of something going wrong—ballots may be inadvertently misplaced, damaged, or destroyed; the potential for fraud increases; and additional administrative burdens are placed on already overstretched election officials.
● Measuring public sentiment—Allowing people to vote over a four-month period does not seem well-suited to producing the kind of roughly contemporaneous reflection of public opinion we generally expect elections to provide (though to the extent voter preferences are stable, that’s not much of a practical concern)
● Inappropriately overbroad remedy—Most importantly, extending the absentee voting period is not tailored to remedying the problem of postponing Election Day. The state legislature already provided for a lengthy period of absentee voting, and the Health Department order did not interfere with that. Rather, the order only denied people the opportunity to vote in person on Election Day; rescheduling Election Day is sufficient to address that. Allowing an additional two-and-a-half months of absentee voting is a further unnecessary departure from election rules that does not redress the underlying problem of people being barred from voting in person today.
The legislature, of course, may step in and attempt to authorize this additional absentee voting period (but see the next point below). Without such authorization, however, I don’t believe either the Secretary of State or even a court can validly approve it. To the contrary, a court’s only authority is granting relief tailored to remedying the deprivation of the right to vote on Election Day. Allowing over two months of additional voting may well constitute an abuse of equitable remedial discretion.
● Due process considerations—Even if the legislature were to statutorily approve an extended absentee voting period, another important issue remains: the Due Process Clause generally prohibits the rules for an election from being changed once the election has started. Before Ohio’s 2020 Primary began, of course, the legislature was free to authorize as long of an absentee voting period as it wanted, and could have passed election emergency laws allowing for longer periods. But once the election began, the legislature’s discretion to change the rules governing it became much more limited. Although emergencies can always arise requiring a response, due process concerns likely require any such changes to be tailored to addressing the particular unexpected obstacles created by the emergencies. Since a failure to hold Election Day today can be substantially remedied by rescheduling it for a future day, the additional step of allowing two extra months of absentee voting would again likely be outside the scope of this remedial discretion and may violate due process restrictions.
c. Provisional ballots— Any ballots cast, either in person or by mail, after today likely must be treated as provisional ballots under Help America Vote Act (“HAVA”), thereby facilitating challenges to them in court.
Overall, I think this incident usefully establishes several things:
● Statutory framework—States need election emergency statutes that specify what various officials may and may not do when natural disasters, terrorist attacks, public health crises, or other unexpected threats impact an impending or ongoing election. These laws must identify the officials empowered to act, the circumstances under which they may take such extraordinary actions, and cabin their discretion as to the nature and scope of relief to be granted.
● Public communications—States must ensure clear and consistent messaging to the public about any changes to the electoral process as a result of an emergency. County and local officials should not unilaterally notify election personnel or the public about potential changes impacting statewide or other multi-jurisdiction elections without specific confirmation from state’s chief election official. It is particular unacceptable for the press to publish conflicting reports over whether an election is actually going to happen as scheduled.
● Timing—Election emergencies must be addressed as early as possible. This is an especially challenging endeavor involving tradeoffs and balancing. Officials justifiably don’t want to modify or postpone elections too early, because a particular risk may come to pass or may be less severe than originally feared. Hurricanes, for example, may unexpectedly veer off into the ocean without ever hitting the mainland. On the other hand, taking action too late undermines public confidence, creates confusion and uncertainty, can raise unnecessary legal questions, and may have partisan implications.
● Bipartisanship—Bipartisan consensus, where possible, can help legitimate a state’s response to an election emergency. If the Governor had been able to present a united front with both major political parties or, in the case of the primary, the major remaining candidates, the court may have been more willing to grant the requested relief, and there may have been less public opposition or skepticism about his decision.
● Existing Rules—The basic rules governing elections should be enforced to the greatest degree possible, even in the course of an election emergency. When an emergency requires a departure from the ordinary rules of procedure, election officials should nevertheless endeavor to comply with those ordinary rules to the greatest extent possible. Election modifications should be as limited as possible, consistent with alleviating the obstacles to voting posed by the emergency. Officials should not unnecessarily suspend additional rules, or grant overbroad relief that is not well tailored to overcoming the particular barriers to voting the emergency created. Election modifications (tweaking particular rules governing an election) are preferable to election postponements (holding the election at a future date). And postponements (in which the voters and candidates are held constant) are obviously preferable to complete cancellations, in which a completely new election is held at some unspecified point several months later.
● Separation of Powers—This incident demonstrates how executive officials can effectively force the other branches’ hands concerning the electoral process. Executive officials can take unilateral action that becomes a fait accompli and, as a practical matter, is impossible to challenge or undo without impermissibly limiting people’s opportunities to vote. For example, there would have been no way of implementing an order from the Ohio Supreme Court or a federal court that the election had to proceed today. Moreover, a court would be unlikely to allow people to lose their opportunity to vote in person based on the Governor’s or Health Department’s actions, and would therefore likely order a new day of voting. Thus, even in the course of holding that state executive officials lacked power to postpone the election, the court inevitably would, in effect, be ordering a postponed election. In both crafting election emergency laws, and judging the actions of state officials in response to election emergencies, we should be sensitive to the need for checks and balances on discretion concerning the critically important issue of elections.