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Appeals Court Reverses Order for Boards of Elections to Accept Emailed Absentee Requests

A unanimous 10th District Court of Appeals Tuesday evening reversed a Franklin County judge’s ruling that the Ohio Revised Code allows voters to submit absentee ballot requests through email or fax, saying the ruling was a “clear abuse of discretion in this case” and finding a lack of harm to the plaintiffs in the case. 

The ruling stems from a lawsuit filed by the Ohio Democratic Party (ODP) and voter Jay Michael Houlahan against Secretary of State Frank LaRose seeking a declaration that Ohio law allows voters to submit absentee applications through electronic means including email. Franklin County Judge Steve McIntosh sided with the plaintiffs, saying they were likely to succeed on the merits of their lawsuit because state law is silent on the issue. The lawsuit also challenges a directive issued by LaRose that only allows requests to be sent to boards of elections through the mail or dropped off in person. (See The Hannah Report, 9/11/20, 9/14/20, 9/18/20.)

Writing for the appeals court, Judge William Klatt disagreed and sided with LaRose’s argument that because the Ohio Revised Code is silent on the issue, a court must defer to the secretary of state’s reasonable reputation. 

Klatt said the appeals court found no language in the Ohio Revised Code against the electronic return of absentee ballot application, but disagreed that because it clearly does not prohibit it, the plaintiffs in the case are likely to succeed in establishing a declaration based on a statutory right to do so. 

“RC 3509.03 is silent on electronic methods of delivery altogether. This silence does not address the duty of the secretary, in overseeing the fair and uniform administration of elections, to establish the particular methods of application delivery that county boards should accommodate,” Klatt said. 

He said the court found LaRose acted within his authority to issue a directive supplying the methods of delivery of applications where the statute did not, and did so reasonably. He noted that the law gives broad authority to the secretary of state to issue directives and instructions to boards of elections, and said the lack of specification along with that broad authority indicates the General Assembly’s intent to give the secretary of state some flexibility in fulfilling his duties under this law. 

Klatt also wrote that the record shows a vital public purpose or public interest by not allowing electors to return their applications for absentee ballots by electronic means. He said LaRose presented evidence demonstrating the substantial risks that permitting the electronic delivery at the present time and under the present system pose to the safety and administration of the general election. 

He noted that absentee applications have been allowed to be submitted in person or by mail for last 13 years, and said plaintiffs offered no evidence of even one person over that time who was precluded from voting, or even applying for an absentee ballot because of the application methods specified by the LaRose or his predecessors. He added that they “offered no evidence whatsoever that they will be precluded from voting in the upcoming elections either.”

“Appellees have not provided evidence that they will be unable to have their votes counted unless Directive 2020-13 is enjoined to allow return of applications for absentee ballots by email and fax,” Klatt wrote. He said nothing stops Houlahan or others from mailing in an application now and even under the time parameters he posits, his access to the ballot would be secured.

Klatt wrote that McIntosh seemed to discount the impact of any harm that allowing applications through email and fax would cause. 

“In fact, the trial court largely seems to believe considerations of the timing of issuing an injunction in this case to be irrelevant. We disagree. The injunction imposed in this case does not preserve status quo but instead disrupts it. The Supreme Court of the Unites States has warned that, ordinarily, courts should not alter the election rules close to an election,” Klatt wrote. 

Judge Frederick Nelson concurred in the decision, while Judge Julia Dorrian concurred in judgment only, writing a separate opinion that said in light of the COVID-19 pandemic, she disagreed that LaRose acted reasonably by limiting the delivery options and that the harm is minimal and speculative to the plaintiffs, including Houlahan, who is 81-years-old and in a high-risk category for the coronavirus. 

Maggie Sheehan, a spokesperson for LaRose, said in a statement, “We’re pleased that the court unanimously agreed that the cybersecurity concerns were too great to abandon Ohio’s safe and accessible system so close to the election. Ohioans are showing incredible confidence in how we’re running this election by requesting absentee ballots at a record pace. Our mission is to reward that confidence by running a safe, secure, and accessible election.”

ODP Chairman David Pepper reacted to the ruling, saying that the appeals court, “agreed with what the Ohio Democratic Party has been saying all along — that nothing in Ohio law prohibits the secretary of state from authorizing absentee applications to be submitted by fax, email or other ways. For two years now, it’s been Frank LaRose himself, not Ohio law, prohibiting this easy way for voters to ask for absentee ballots. Yesterday’s decision shows he’s been wrong the entire time. He can now finally stop pretending the law is an obstacle here and start doing what so many other states have been doing without problems.”

Legislative Democrats issued similar statements. Sen. Nickie Antonio (D-Lakewood) said LaRose “had and continues to wield the power to accept online ballot applications, yet he continues to obstruct our democratic process and muzzle Ohio voters.”

Sen. Teresa Fedor (D-Toledo) called it “malpractice to make voting harder during a global pandemic that has already killed more than 200,000 Americans.”

Story originally published in The Hannah Report on September 30, 2020.  Copyright 2020 Hannah News Service, Inc.