Foley: Ohio Right Now in Some Historical Perspective: A Follow-Up to Previous Analysis

The following is a guest post from Ned Foley:

Building upon what I wrote yesterday, I think it’s useful to put Ohio Secretary of State LaRose’s Monday night directive (now challenged in the Ohio Supreme Court) in some historical context.

I recall all the flurry of directives that previous Ohio Secretaries of States have issued in the midst of the voting and vote-counting process in previous years—especially 2008, 2010, and 2012—responding to new developments and changed circumstances.  These are all conveniently archived on the SoS website.

These in-the-moment directives have involved Secretaries from different parties (for example, Jennifer Brunner, a Democrat; Jon Husted, a Republican).  None of course have involved a pathogen/pandemic like COVID-19.  But there have been a variety of reasons for changed circumstances, involving voter registration, provisional ballots, absentee ballots.  For example, I recall a computer technology glitch in Franklin County triggering a big problem with how the voter registration database interacted with provisional ballots and needed new guidance from the Secretary of State.  

Also, a number of new directives from the Secretary of State, either Brunner or Husted, were in response to court orders, state or federal, and the need for the Secretary of State – complying with Fourteenth Amendment equal protection (and due process) principles – to update administrative procedures in light of these court orders.   While not exactly the same as Dr. Acton’s health order, there is an important similarity here. Another authoritative legal actor has issued an order within that actor’s zone of authority that has caused an election administration consequence that the Secretary of State is responsible for handling as chief elections officer.  Obviously, the Secretary of State in figuring out how to handle it, and what directive to issue in the immediate context, must consult Ohio’s statutory law, to the extent that covers the situation (and consider it in relationship to constitutional requirements, as well as federal Voting Rights Act requirements, which obviously have supremacy over Ohio state statutes).  But if the state statutory law is inadequate, particularly in light of the new condition created by the state or federal court order, the Secretary of State must move forward given the overall legal landscape, which includes the new order as well as the statutes. The Secretary of State does not need to wait for a new statute from the General Assembly, if a state or federal court order has changed the reality on the ground in an election currently underway that needs to be administered.  The situation in light of Dr. Acton’s health order was similar, in terms of the immediate obligation it thrust upon the Secretary of State

(If one wants to consult the specific statutory authority that empowers Ohio’s Secretary of State to issue the kind of directives that Secretaries, including Brunner and Husted, have issued in previous middle-of-election circumstances, section 3501.05 of Ohio Revised Codes is a good place to start, and it refers to 3501.053, which provides “The secretary of state may issue instructions as to the proper method of conducting elections to members of the boards of elections by permanent or temporary directives.” It is the inclusion of “temporary” as well as “permanent” directives that gives the Secretary of State the power to react as necessary to new circumstances, whether they be computer failures or an unexpected pandemic virus.)

That, at any rate, is how I see it (at least at the moment and absent further info or input), and in my judgment in conforms to how Secretaries Brunner and Husted acted in the most comparable circumstances each of them faced “in the heat of the moment”, which to be sure was never as hot as this. 

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