Why Has Ohio’s Top Election Official Changed His Tune On Ballot Dropboxes?

COLUMBUS, OH - NOVEMBER 06: Republican candidate Frank LaRose gives his victory speech after winning Ohio Secretary of State on November 6, 2018 at the Ohio Republican Party's election night party at the Sheraton Capitol Square in Columbus, Ohio. (Photo by Justin Merriman/Getty Images)
Ohio Secretary of State Frank LaRose in November 2018. (Photo by Justin Merriman/Getty Images)
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Ohio’s Republican secretary of state has both publicly and privately praised the option of ballot drop boxes, and has claimed that he had only limited their use to one dropbox per county because he didn’t think authorizing any more would be legal.

But now that a state court has disagreed and said, in no uncertain terms, that multiple drop boxes per county are permissible under Ohio law, Secretary of State Frank LaRose is still resisting their expansion.

That resistance irked Franklin Court of Common Pleas Judge Richard Frye, who issued an opinion Tuesday okaying expanded dropbox use. Frye on Wednesday asked for clarification as to whether the secretary would consider the Tuesday opinion legally binding.

The opinion noted the several occasions where LaRose or his lawyers had seemed to indicate that they’d go along with whatever legal conclusion a state court made about whether remote dropboxes could be set up.

Additionally, TPM has obtained texts LaRose sent in which he expressed support of dropboxes as a matter of policy, while suggesting that a lawsuit would “establish once and for all if we had authority to expand ballot drop boxes beyond just at the board office.”

Such a lawsuit was filed in state court by the Ohio Democratic Party five days after LaRose sent that text. Meanwhile, voting rights groups sued in federal court to also block LaRose’s directive that counties can only set up one drop box at the board of elections office.

“At the end of the day, the state court — you know, through the conclusion of that litigation — say that, you know, that multiple boxes are the way to go, then that’s what we’ll do. We’ll follow what the court says,” LaRose’s attorney told the the U.S. district judge who was presiding over the federal case.

In filings Wednesday afternoon, LaRose’s legal team clarified that he wouldn’t follow a state court opinion okaying multiple dropboxes until they got a chance to appeal it first.

When LaRose announced on Aug. 12 that he was limiting ballot drop boxes to just the ones set up at each county’s election office, he said that expanding their use was a “fine idea” that the legislature should weigh in on. But his understanding of state law didn’t give him that authority, he said. He even submitted a request to state Attorney General David Yost for an assessment of the matter, but according to LaRose, Yost never got back to him.

A week later, on a call with civil rights activists, LaRose again purportedly said that he would allow county boards to set up more than one dropbox if a judicial order confirmed he had that authority. That account came from declarations made by two participants on the call that were filed in court. LaRose did not push back on their accounts in the litigation.

On Aug. 20, a former labor leader reached out to LaRose via text to express their frustration with his directive. (TPM agreed to not to publish any more identifying details about the texter as a condition of publishing the texts).

“I have been 100% clear on this I want more drop boxes! I would love to see more drop boxes!” LaRose said, “To me it’s clear though I have no legal authority to do that and it will just result in litigation and confusion.”

LaRose defended the way he had handled the issue, arguing that because of his directive, every county election board office would have a ballot dropbox. He said, however, that he “can’t simply ignore” the “very clear decision” the legislature made to restrict their use to the board offices.

“Also if the ODP et al thought this was such a clear legal matter they would’ve filed a lawsuit by now…” LaRose said, referring to the Ohio Democratic Party. “It’s shocking to me that they haven’t filed a lawsuit which could actually establish once and for all if we had authority to expand ballot drop boxes beyond just at the board office.”

While questioning whether the Democrats were more interested in playing politics, he also stressed that he thought securing paid postage for ballots was a better solution, since “many people wouldn’t know” where or how to find ballot dropboxes. He also denied that anyone was pressuring him to do anything. 

Eventually, he and his texter apparently took their conversation to a phone call. The texter then sent him a text thanking him for the call, while urging him to resolve the issue. LaRose responded that texter was “overstating the importance of drop boxes IMO, but yes they are a useful thing” and the conversation wrapped up a few more texts later.

The exchange picked up again on Sept. 3 after the state and federal lawsuits had been filed. 

“Now there is a lawsuit and I hear your lawyers are arguing that the lawsuit is improper and it’s improper to ask for an opinion that you said you wanted,” the texter said. “Why? I don’t understand why you would block.”

“My argument all along is not about whether it’s good public policy to have drop boxes or not because I think it is good to have more of them my argument has always been that I don’t have the legal authority to so this,” LaRose said. He promised to reach out to his legal team to make sure their arguments in court weren’t contrary to that position. He didn’t respond when the texter sent him two more texts that day, nor did LaRose respond to a text sent to him Tuesday evening expressing frustration about how his office responded to Tuesday’s opinion.

After the opinion, LaRose spokesperson issued a statement that said his Aug. 12 directive “ remains in place” because the judge judge hadn’t formally blocked the directive.

Ohioans are fortunate that the judicial branch offers the opportunity to appeal a single trial judge’s opinion,” the spokesperson said. Asked Wednesday by TPM about the texts, the spokesperson stressed that Tuesday’s opinion was “a single judge’s opinion at the trial court level” and that LaRose “believes the law is clear about the very limited ways that absentee ballots may be returned to county boards of elections.”

“In regards to allowing the court to determine such an important and significant change in election law this close to an election – the Secretary believes that requires a full review by higher courts than where the case resides today and an appeal is necessary to ensure the issue gets the full hearing it deserves,” the spokesperson said.

Judge Frye, pointing to the reports of the statement, told LaRose on Wednesday morning that he needed to clarify its position by 3 p.m. Absent a clarification, the judge said, the court will “assume the Secretary will not honor prior statements that he would abide by this court’s ruling.” Frye would then consider whether to formally block the directive, the order said.

In his response to the court, Yost, who’s representing LaRose in the case, made clear that LaRose’s promises to abide by a judicial order came with the caveat that he had never said he wouldn’t appeal such an order first.

“The appellate process will bring the clarity and finality on this issue all Ohians deserve,” he said, while asking the judge to formally block the directive so that appellate process can begin. Judge Frye promptly granted the request that he formally order the directive blocked. Frye also put his order on hold for LaRose to appeal it.

Update: This story has been updated to include comment from LaRose’s office.

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