On August 12, 2020, Ohio Secretary of State Frank LaRose issued Directive 2020-16 prohibiting Ohio Boards of Elections from installing secure drop boxes for receiving ballots and ballot applications at any location other than the Board office. But limiting counties to a single drop box per county disfavors voters of highly populated counties relative to those of lightly populated counties. For example, Noble County has 7,903 registered voters, while Cuyahoga County has 858,041. The Secretary’s directive particularly disfavors voters who are poorer and people of color who are fearful of voting in person because the pandemic has disproportionately devastated these populations.
Legal Theory
The directive limiting drop boxes to a sole drop box in a single location per county places a heavy burden on voters living in Ohio’s largest and most populous counties in violation of the Equal Protection Clause. Burdens on the exercise of the right to vote must fall equally on the citizens of a state. The directive also violates the First and Fourteenth Amendments of the Constitution because it is a burden on the exercise of the right to vote that is not justified by any sufficiently weighty state interest.
Status Update
The Ohio Chapter of the A. Philip Randolph Institute, the League of Women Voters of Ohio, the Ohio chapter of the NAACP, and several individual Ohio voters filed a lawsuit in federal district court for the Northern District of Ohio on August 26, 2020. We joined as co-counsel the next day. We filed a motion for a Preliminary Injunction on September 4, 2020.
Defendant LaRose Answered the Complaint on September 9. Donald J. Trump for President, Inc., the Ohio Republican Party, the Republican National Committee, and the National Republican Congressional Committee filed a motion to intervene as defendants on September 10. We opposed the intervention on September 14, but the Court granted the motion on September 15 and Intervenors Answer was accepted as filed.
Defendant and Intervenors all filed oppositions to our PI motion on September 16, and we filed our Reply in Support on September 21. All parties also submitted their Witness and Exhibit Lists that day.
The Court held a hearing on the Motion for Preliminary Injunction on September 22. It lasted over 12 hours and carried over to the next morning for closing arguments.On September 25, Judge Dan Polster ruled to hold the motion in abeyance, awaiting the result of state court proceedings on a similar issue. He also ordered, ordered Secretary LaRose to work in the meantime with the Cuyahoga County Board of Elections to reach a solution to avoid anticipated serious delays caused by traffic patterns.
A hearing of the State case before Ohio’s 10th District Court of Appeals took place on September 24, 2020. On October 2, the state court ruled that Ohio law neither required Secretary LaRose to issue his directive, nor precluded it, effectively leaving to his discretion the question of whether to allow multiple drop boxes or off-site drop boxes.
On October 5, Secretary LaRose issued Directive 2020-22, clarifying Directive 2020-16 as allowing multiple drop boxes “outside” a Board of Elections.
Following the new Directive, Judge Polster ordered dismissal of the case on October 6. We moved the next day for his reconsideration of the dismissal, noting that the Secretary was not construing the new Directive to permit off-site collection of ballots except in very limited, apparently arbitrary instances.
On October 8, Judge Polster granted our Motion for Reconsideration, reopened the suit, and entered our requested preliminary injunction. He ordered Secretary LaRose to allow individual Boards of Election to place off-site ballot drop boxes.
On October 9, Defendant and Intervenors filed separate appeals to the Sixth Circuit, and Defendant filed an emergency motion to stay Judge Polster’s injunction during the appeal. We were ordered to respond to Defendant’s motion that afternoon. Later that evening the Sixth Circuit granted the Defendant’s stay application. With the stay in effect, the Sixth Circuit issued a briefing schedule that would not begin until after the election.
A stipulation of voluntary dismissal was entered on October 22. On October 26, the Secretary and Intervenors dismissed the Sixth Circuit appeal, ending the case.
