With Ohio’s primary election just weeks away, last night a group of registered voters—along with the League of Women Voters of Ohio and the Ohio A. Philip Randolph Institute—filed suit against the Ohio Secretary of State Frank LaRose, complaining that the “cumbersome” vote-by-mail process adopted due to the coronavirus pandemic risks shutting out voters. The primary election will be conducted entirely by mail, with an exception for voters with disabilities who need special assistance and those who do not have a home mailing address.

Represented by the ACLU of Ohio, Dēmos, and the Lawyers’ Committee for Civil Rights, the groups are requesting several changes be adopted, most notably that the court order a new, later election date to allow the state more time to prepare for an all-mail-ballot election. Signed into law last Friday, COVID-19 relief bill HB 197 set the Ohio Primary election for April 28, leaving just a month for the secretary of state to implement an all mail-in voting system.

“Our concern is that April 28 is not enough time for boards of elections to administer a vote by mail election, and it’s not enough time for voters to participate in one,” said Jen Miller, executive director of the Ohio League of Women Voters. 

Under normal circumstances, Ohio holds an in-person primary with the option to request an absentee ballot by mail or to vote early in person by absentee ballot. Numbers released by the secretary of state’s office indicate that 523,522 ballots were cast during this year’s early voting period from Feb. 19 to March 16.

Among elected officials, disagreement over the election date and procedure

The lawsuit comes after days of confusion around the shifting Ohio primary election and how to conduct the election safely in light of the escalating coronavirus pandemic. In-person voting was initially canceled due to a health emergency by order of the state health department.  

Recognizing the potential challenges with changing the election date, LaRose proposed the Ohio Voters First Act. The Ohio Voters First Act would have set the election date at June 2, requiring absentee ballots to be postmarked by June 1 to be counted. It would also have provided the discretion to hold in-person voting on June 2 if the health emergency order was no longer in effect.

In a March 21 letter to the Ohio General Assembly, LaRose wrote that June 2 was “the earliest date by which that can be done due to the logistical realities of conducting a vote-by-mail election, the ever-evolving health realities of protecting against the spread of Coronavirus and the sacred responsibility we have as public officials to preserve the integrity of our election.”

“A plan that sets unattainable timelines for mailing absentee requests to voters, or calls for inadequate procedures for ensuring every voter has an opportunity to cast a ballot at no charge, would likely fail a legal challenge,” the letter warned.

But despite LaRose and Ohio Gov. Mike DeWine’s public statements about the election change, they lack the legal authority to delay or reschedule the election. Setting the election calendar is a part of the job of the state legislature, and the legislature declined to take up their proposed legislation to set the election for June.

After Friday’s passage of HB 197 set the primary date for late April, LaRose issued a statement expressing disappointment in the limited time frame for the primary.

“The proposal that Governor DeWine, Lt. Governor Husted and I laid out was preferable, and unlike the plan enacted today, our proposal would have concluded the election by putting a ballot request directly in the hands of every voter along with a postage-paid return envelope,” the statement said.

Ohio does not permit requests for absentee ballots to be submitted online. The absentee ballot application has to be downloaded, printed, and mailed in to the voter’s county board of election.  

Advocates warn of potential disenfranchisement with quick shift to new system

As the lawsuit makes clear, voting rights advocates are especially concerned about the impact of the requirement to request an absentee ballot by mail. The process “threatens to shut out voters who do not have a printer at home [because] the absentee ballot must be printed and signed in hard copy,” said Chiraag Bains, director of legal strategies at Dēmos. “People are being told not to leave their homes, and for many people, doing so as the coronavirus spreads could be life-threatening. As it is, places where people go to print documents for free, such as libraries, are closed.”

Miller raised concerns about the time the request process could take, estimating it would take three to five days for an application to be received by a county board of elections, plus another several days to process the absentee ballot application, and then another three to five days for the ballot to be received by the voter and then again back to the county board of elections. “It’s a very intensive process that relies on the mail system that is not super fast, and is also not operating under optimal conditions right now,” said Miller.

In addition to requesting a later election date, the lawsuit also seeks to ensure that all registered voters who still need to vote receive an absentee ballot with paid return postage, and asks the court to extend the voter registration deadline for 30 days before the newly established election date as required by federal law.

“When the state postponed the primary, it failed to extend the voter registration deadline, which was February 18,” said Bains. “Based on federal law, voters must be able to register until 30 days before an election.”

Unlike Georgia, which delayed its presidential primary to coincide with the state primary and stopped collecting absentee ballots, Ohio officials have treated this as an ongoing election with voters having an extended period to request and mail in their absentee ballots.

Read the full complaint here.

Lawyers for the plaintiffs are determined not to allow the coronavirus pandemic to open new opportunities for disenfranchising voters.

“This public health crisis should not also be a crisis for our democracy,” said Naila Awan, senior counsel at Dēmos, in a press release. “When elections move, our Constitution still protects all of us.”  

CORRECTION: A previous version of this article misstated Jen Miller’s name. It has been corrected.