Foley: Ohio: Deciding How Best to Preserve a Fair Election, with Equal Voting Rights, While Saving Lives—in the Context of a Fast-Changing Emergency, and without Adequate Statutory Provisions

The following is a guest post from Ned Foley:

Thanks, Rick, for giving me opportunity to present some thoughts here on the Ohio situation.  Like you, I’m juggling, and so these thoughts are tentative and subject to revision upon further information and deliberation.  

Meanwhile, however, I disagree with the assessment that “abuse of power” is what happened in Ohio.  We both agree that it was appropriate for Dr. Amy Acton to close the polls today as part of the state’s effort to “flatten the curve” to protect not only poll workers, and voters, but the entire hospital system—with its limited number of ICU units, ventilators, etc. (I see also that Michael Morley agrees with this, although he seems more willing to second-guess aspects of Dr. Acton’s decision to close the polls today than I am. I also have seen reports of problems with voting in Florida and Illinois today that indicate that closing the polls in Ohio was the correct decision, and I certainly hope that the different decision in other states does not negatively affect hospital capacity in a couple of weeks.)  I don’t fault Dr. Acton for waiting until yesterday to make this decision.  The medical facts relating to COVID-19 have been changing daily, or even more frequently.  Dr. Acton, on behalf of Ohio, is trying to be very proactive in flattening the curve.  For example, Ohio closed bars and restaurants before Washington State did.  Even as late as the weekend, the medical circumstances in her judgment didn’t require closing the polls today.  But once her assessment of the medical situation changed, she was obligated to protect the public health system.

I also emphatically agree with you and Michael that it would have been much better if Ohio already had in place a good statute for dealing with an acute emergency situation of this nature, in terms of managing the electoral process in light of the public health necessity.  As much as possible, these decisions should be driven by clear statutes adopted in advance of the election itself.  That, indeed, is the number one principle of the American Law Institute’s set of principles for election administration.  But that adequate statutory framework, regrettably, did not exist yesterday, and so the question is what should happen in that context.

If your position is that Ohio’s secretary of state (or governor) was obligated to go to the state’s legislature for emergency legislation to deal with the situation, I disagree with that based on my current understanding.  Under title 35 of Ohio’s Revised Code, the Secretary of State is the state’s chief elections officer with broad authority to issue directives to local boards of elections.  Secretary LaRose exercised that statutory authority last night, after Dr. Acton issued her order closing the polls.  (Michael’s analysis doesn’t change my conclusion on this point; I don’t see his Point II.a addressing this aspect of Ohio’s existing statutory law.)

Most importantly, in exercising this statutory authority to issue directives to local election boards, the Secretary of State is obligated to comply with the federal Constitution as the supreme law of the land.  Once Dr. Acton closed the polls today, Secretary LaRose faced a federal constitutional problem that he was obligated to address by directive as the state’s chief elections officer, without waiting for the state’s legislature (or a court) to act.  It would have been a violation of the equal protection clause of the Fourteenth Amendment to let the March primary stand as is, with some absentee and in-person early votes already cast, and other Ohio voters having reasonably relied on the expectation that they would be able to cast their votes in person on Election Day today. Dr. Acton (and the governor) didn’t nullify the votes already cast.  As the state’s chief elections officer, Secretary LaRose needed to issue a directive that in his best good-faith judgment would remedy the federal constitutional problem caused by Dr. Acton’s legitimate and appropriate health-based order.  One might disagree with details of Secretary LaRose’s directive.  But, in my judgment, it was far from an “abuse of power” for him to issue it.  On the contrary, I think he had a legal obligation under both Ohio law and the federal Constitution to issue some sort of directive along the lines he did.

To be sure, if the state legislature wants to become involved and supersede Secretary LaRose’s directive with a different remedy consistent with the federal Constitution, it has every right to do so.  (News reports today suggest that it will.) It has higher authority that the Secretary. It could pick a different date than June 2.  It could change details of the directive.  But Secretary LaRose didn’t need to wait for the legislature, nor need to go to the legislature.  It was appropriate, indeed obligatory, for Secretary LaRose to issue his best good-faith directive last night, after Dr. Acton’s decision, and his directive stands under Ohio law as the best way to implement federal constitutional requirements unless the state legislature wants something different.  Likewise, a state or federal court could adjust Secretary LaRose’s directive based on its judicial understanding of what the federal Constitution now requires in terms of equal voting rights after Dr. Acton’s decision.  (Already, there at least one lawsuit in the Ohio Supreme Court.) But any such judicial adjustment doesn’t make it wrong for Secretary LaRose to have attempted his best good-faith effort to comply with federal constitutional law last night.

If there is one thing to criticize Governor DeWine and Secretary LaRose over what happened yesterday (and I’m loathe to do so given the acute emergency they were dealing with as best they could), it is their willingness to wait for the trial court’s ruling on the private-plaintiff lawsuit.  I wouldn’t use the term “manufacture” as you do, but I think they regrettably sent the signal that they were going to take their cue from the court.  And then when that judge essentially punted the whole matter back to them as statewide officials, they were left where they were originally with valuable time having passed.  Based on my reading of the relevant Ohio and federal law, I don’t think they needed judicial guidance in advance.  I can understand why they might have found it valuable, but in hindsight the better move would have been for Dr. Acton to issue her health-based order without waiting for a ruling from the local trial judge in the private-plaintiff lawsuit.  But this innocent misstep, made with good intentions, does not make anything that Governor DeWine, Secretary LaRose, or Dr. Acton did an “abuse of power”.

Finally, as for something like this happening in November, I very much agree that it’s an issue that needs to be addressed, and thus a subject for separate discussion.  I note here briefly, however, a few points. First, the rules for primaries and general elections are very different, and what happened yesterday in Ohio is not necessarily an appropriate precedent even for comparable circumstances in a general election; the two must be considered separately.  Second, the specific health-related circumstances surrounding the November general election may be very different from those yesterday; as you have said, there is time now to expand opportunities for vote by mail (something that could not have been done instantly yesterday or even a week or two ago). Third, and most fundamentally, there is of course reason to be vigilant to make sure that no incumbent abuses an emergency situation in an effort to hold onto power contrary to the genuine will of the electorate—and any electoral response to a genuine emergency should make sure that nothing like that happens—but it is important to note that nothing like that was occurring in Ohio yesterday.  There is every reason to think that Ohio’s officials were acting genuinely in the public interest as they saw it, not abusing power for partisan, incumbency-protection, or any other inappropriate purpose.  It does not seem right to say that what happened yesterday in Ohio was “an abuse of power”  based on a fear that other incumbent politicians in different situations might engage in future abuse.  Our judgments about (admittedly rare and fast-moving) emergency situations ought to be able to distinguish these very different circumstances.

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