Primary Elections…”who’s on first base”

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LFC Comments: Thanks to the patriots at for this article on the “on again off again”primary election.  We are in uncharted waters and the State of Ohio officials seem to have forgotten their constitutional roles.  DeWine has daily press briefings, but at the last minute he tries to legislate from the judicial bench.

Governor DeWine and Secretary of State LaRose should think about joining the comedy circuit with their new revised Abbot and Costello’s “Who’s on First Base” routine.

Published Monday, March 16, 2020 Updated 11:14pm
by Laura Hancock

COLUMBUS, Ohio — Ohio Gov. Mike DeWine announced late Monday that polls will be closed on Tuesday for the presidential primary election, citing a “health emergency” tied to the ongoing coronavirus pandemic.

DeWine’s statement, issued Monday at 10:12 p.m., reads in full: “During this time when we face an unprecedented public health crisis, to conduct an election tomorrow would force poll workers and voters to place themselves at a unacceptable health risk of contracting coronavirus.”

“As such, Health Director Dr. Amy Acton will order the polls closed as a health emergency. While the polls will be closed tomorrow, Secretary of State Frank LaRose will seek a remedy through the courts to extend voting options so that every voter who wants to vote will be granted that opportunity.”

Scroll to the bottom of this post to read the full order.

The unprecedented development caps a chaotic day, which played out on a national stage, that began when DeWine and other state officials said in the afternoon they would seek to postpone the election for health reasons.

Just hours before, DeWine and LaRose announced they would seek to postpone the election until June 2, citing the expanding threat posed by COVID-19. Through what amounted to a legal maneuver, state officials backed a lawsuit filed by two older Franklin County voters with health problems who said going to the polls would make them worry for their lives, and that continuing the election as planned would violate their constitutional rights.

But shortly before 7 p.m. Monday evening, Franklin County Common Pleas Judge Richard A. Frye, a Democrat, denied the request. He said he was uncomfortable making an 11th-hour decision to delay the election, especially since state officials couldn’t say June would be any safer, and since many voters had expected the election would be on Tuesday.

He sided with an argument made by a longtime GOP elections attorney representing Jason Stephens, a Republican appointed to the Ohio House of Representatives last year.

“There are too many factors to balance in this unchartered territory to say that we ought to take this away from the legislature and elected statewide officials, and throw it to a Common Pleas court judge in Columbus 12 hours before the election,” Frye said before issuing the ruling.

Confusion immediately ensued. State officials erroneously told county election boards that Frye had ruled in favor of the state’s request. Poll workers across the state were told not to report to work the next day. And some national media outlets contributed to the confusion, also misreporting the judge’s ruling.

After it became clear what had happened, later in the evening, county elections boards told poll workers the election was actually back on. And then DeWine issued his order, citing the health emergency.

After that, LaRose made a live appearance on CNN. He was asked whether closing the polls violated the judge’s order. “I’m not a lawyer,” LaRose replied, saying DeWine’s announcement brought clarity to the situation.

Almost immediately after the order was announced, rumblings began that state lawmakers may try to push back.

State Rep. Jon Cross, a Kenton Republican, responded to the DeWine administration’s decision by calling it a “constitutional crisis.”

We have a constitutional crisis now in Ohio. I will be fighting in the AM to keep our polling locations OPEN in the 83rd district with law enforcement, as the Ohio Department of Health can not shut down an election. #ConstitutionalCrisis
— Jon Cross (@joncrossoh) March 17, 2020

So why did the state attempt the legal maneuver before issuing the health order?

As recently as Monday morning, LaRose had planned to hold a press conference announcing additional measures made in an attempt to keep the polls safe. On Sunday, he issued orders that would require county boards to offer curbside voting at polling places, and also loosened restrictions absentee voting for Ohioans quarantined or hospitalized due to COVID-19.

But the announcement was canceled.

DeWine told reporters in Columbus Monday afternoon he didn’t have the authority to move the election, even in an emergency. But he said he would recommend it be delayed until June 2, allowing people time to cast votes by mail. Republican Attorney General Dave Yost, the state’s legal counsel, said he wouldn’t oppose the lawsuit.

DeWine, LaRose and Lt. Gov. Jon Husted, all Republicans, said voting or working the polls might be dangerous, especially for vulnerable populations.

“Is it a perfect decision? No, absolutely it is not. But’s the best we believe of the alternatives,” DeWine told reporters Monday afternoon, before the judge’s decision. “… And it doesn’t force people to choose between their health and their constitutional rights.”

Bridget Coontz, an assistant Ohio attorney general, made a similar argument in the courtroom before Frye.

“These times are anything but normal,” Coontz said. “The General Assembly has no authority to remedy a constitutional violation. If this election goes forward tomorrow, it can’t then turn around and grant any relief or give anything to the voters who will miss out on the opportunity to vote.”

Among those arguing against the state’s request was longtime GOP elections attorney Don Brey, who was representing Stephens.

Brey said delaying the election would harm candidates who have spent money telling voters the election was March 17, and confuse voters. He made an analogy that moving the election at the request of the governor the night before the election would be like President Donald Trump asking a federal judge to delay the general election in November.

“My understanding is that members of the General Assembly are available on four hours’ notice. Instead, we have this litigation in front of the court right now. The precedent is a terrible precedent. Think about it,” Brey said.

Coontz said convening the General Assembly might actually not be feasible, since the state and federal government have issued guidance on mass gatherings.

“It’s not even clear that the General Assembly could meet to move the deadline,” she said.

Before making his decision, Judge Frye said he hesitated to overrule state law that was enacted by the General Assembly.

“As of tonight, the governor has not called an emergency session of the legislature,” Frye said.

Nor have the leaders of the Ohio House and Senate, he added.

Frye said that an unknown number of ballots from early voting and absentee voting had been turned in. It was unclear what election security measures would be taken if he were to delay the election. That also made it difficult for him to allow the election to be postponed.

“The notion that we postponed the primary… pre-supposes that the medical situation in America will get any better. We have no evidence that is the case,” he said. “And it could be quite the contrary, to my limited understanding. The doctors giving briefings in the national media suggest it could be months before we get to the point where there is stability.”

Zach West, an attorney representing the Ohio Democratic Party, also argued in the courtroom Monday evening. He said the party didn’t oppose moving the election, but said June was too late. He asked instead for the judge to set an April 28 election.

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