Ohio’s Hard Line On Ballot Drop Boxes Prompts Judge To Greatly Expand Their Use

COLUMBUS, OH - OCTOBER 06: A man wears a TOO CLOSE mask while waiting in line to register for early voting outside of the of the Franklin County Board of Elections Office on October 6, 2020 in Columbus, Ohio. Ohio al... COLUMBUS, OH - OCTOBER 06: A man wears a TOO CLOSE mask while waiting in line to register for early voting outside of the of the Franklin County Board of Elections Office on October 6, 2020 in Columbus, Ohio. Ohio allows early voting 28 days before the election which occurs on November 3rd of this year. (Photo by Ty Wright/Getty Images) MORE LESS
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October 9, 2020 10:38 a.m.

Ohio state officials face a federal court order that they allow a significant expansion of ballot drop box use, after the state bristled at a more moderate approach laid out by the judge.

The fight over whether local election officials can set up more than one drop-off location per county has played out in several different courtrooms since Ohio Secretary of State Frank LaRose announced in August that he was limiting drop box use.

At the time of the announcement, LaRose said he did not oppose drop boxes as a matter of policy but believed that their use at locations other than county election offices was impermissible under state law.

Despite multiple courts now saying that that interpretation of state law is incorrect, LaRose has stood by limiting their use, taking only one small step earlier this week to let counties set up multiple drop-off options at the same county board locations.

LaRose has also already appealed the latest federal court order.

U.S. District Judge Dan Aaron Polster ordered on Thursday evening that LaRose permit counties to set up multiple locations, including staffed sites, where voters can hand over ballots to election officials, as well as unmanned drop boxes.

He said that the Secretary had not presented in the case “any legitimate reason to prohibit a county board of elections from utilizing off-site drop boxes and/or off-site delivery of ballots to staff” while also shooting down nebulous claims of fraud prevention.

“No evidence was introduced at the hearing to support the conclusory reference to fraud in the Secretary’s brief,” the judge said.  The other reason for the restrictions cited by the state — a desire for uniformity among how many drop boxes each county would have — made little sense as well, according to the judge.

“The problem with this rationale is that all counties are not equal in population or in geographic size,” Poster said. “Giving all voters an equal opportunity would require multiple drop boxes in heavily populated counties to account for their population.”

The Thursday night order was a reversal of course from a dismissal of the case the judge granted on Tuesday, which was a partial victory for LaRose.

Poster had put the litigation mostly on hold, while a lawsuit brought in state court challenging the restrictions proceeded. Both a district state court and an appeals court said multiple drop boxes per county would not violate state law — but the appeals court said it was within LaRose’s discretion whether to allow such a system.

After the state appeals court order, LaRose issued a new directive that said county boards could set up multiple drop boxes as long as they were on their election office premises. The federal judge, however, in his dismissal order earlier this week, read the new directive to also sanction off-site drop offs (at places like public libraries) where election staff would be deployed to accept the ballots in person.

He acknowledged that “off-site staff collection of absentee ballots may not have all the advantages of off-site drop boxes” but he expressed a desire to end the litigation.

When state officials made clear that the judge was misinterpreting their intentions with the new directive, the federal challengers returned to the judge to reconsider the dismissal order, prompting the Thursday decision ordering the more expansive drop box regime.

Polster also refused to put his order on hold while it was appealed.

“[W]e are in the middle of the worst pandemic in a century coupled with reasonable concern over the ability of the U.S. Postal Service to handle what will undoubtedly be the largest number of absentee voters in Ohio’s history,” he said, while urging that
“it is time for this litigation to end.”

In a statement, LaRose’s office defended his appeal.

“Voting has begun, and Ohio’s elections are safe, secure, and accessible,” LaRose spokeswoman Maggie Sheehan said. “The place to make changes in how we run our elections is the statehouse, not the courthouse.”

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