A directive issued by Ohio Secretary of State Frank LaRose gives Ohio voters the option to return their absentee ballots at drop boxes located at their county board of elections office. The same directive bars county elections boards from adding more drop boxes elsewhere in the county. Several Ohio civic groups – led by the state chapter of the A. Philip Randolph Institute, a national organization of Black community activists, and the nonpartisan League of Women Voters – and individual voters went to federal court in Ohio in August to challenge the directive.
LaRose has indicated, the plaintiffs argued, that he expects very high rates of absentee voting in the upcoming November elections. Particularly because of the COVID-19 pandemic, the plaintiffs contended, many voters face a “Hobson’s choice”: They can risk their health by choosing to vote in person, or they can opt to protect their health by using absentee ballots. But if they choose the latter option, the plaintiffs suggested, voters will face “the very real possibility that their ballots will not count because of an insufficient number of drop boxes and USPS delays in timely delivering absentee balloting mail.” Unless the court acts immediately, they alleged, “hundreds of thousands of Ohioans stand to have their votes suppressed,” in violation of the U.S. Constitution. They asked U.S. District Judge Dan Aaron Polster to block the enforcement of LaRose’s directive and to order LaRose to instruct county election officials that they can either install multiple drop boxes or accept absentee ballots at polling places.
APRI and the other plaintiffs filed their complaint in this case one day after the Ohio Democratic Party filed a lawsuit in state court, asking a judge there to rule on whether Ohio law prohibits the extra drop boxes. Judge Richard Frye ruled in September that state law does allow county election boards to consider whether to install additional drop boxes.
Polster issued an order on Sept. 25 in which he agreed with Frye’s conclusion in the state-court litigation that state law does not prohibit additional drop boxes. Stressing that the federal case will no longer be necessary if the state courts uphold Frye’s ruling, and that federal courts “should address questions of constitutionality only as a last resort,” Polster put the case on hold until the state litigation is resolved.
An Ohio appeals court ruled on Oct. 2 that although Ohio law does not require LaRose to limit drop boxes to one per county, it also does not require him to add more boxes. If he wants to do so, however, he can. LaRose issued a directive on Oct. 5 to clarify that county elections boards could opt to decide to install additional drop boxes outside their offices and to have employees outside the offices to collect absentee ballots.
Calling it “now settled law that off-site drop boxes are neither prohibited nor compelled in Ohio,” Polster dismissed the federal lawsuit without prejudice — that is, leaving open the possibility that the challengers could still refile their complaint if necessary. He explained that, in his Oct. 5 directive, LaRose had “authorized any board to deploy its staff to receive ballots at sites other than the board office.” This would allow, Polster reasoned, the elections board in Cuyahoga County to receive absentee ballots at public libraries. Moreover, he added, “any other board in Ohio that votes to do so may deploy its staff to receive ballots off-site.” Although collecting ballots off-site “may not have all the advantages of off-site drop boxes, such a program alleviates many of the concerns raised at the hearing … [t]here is no evidence,” Polster concluded, that LaRose is currently blocking any elections board “from doing something it voted to do to protect the voting rights of its citizens with respect to off-site drop boxes or off-site delivery of ballots. Therefore, there is no problem that requires an injunction.”
Polster also “fervently” hoped that, “now that voting has begun, the litigation over drop boxes and off-site ballot collection will come to an end.” But if an elections board votes to install drop boxes, Polster added, the challengers can return to court.
Shortly after Polster issued his order, reporters questioned whether he had interpreted LaRose’s directive properly. Tierney Sneed of Talking Points Memo reported on Twitter that LaRose’s office had indicated that Polster had not interpreted the directive correctly.
The plaintiffs asked Polster to reconsider his Oct. 6 order, and on Oct. 8 Polster issued a new opinion in which he gave county election officials the green light to install off-site drop boxes and to use its staff to collect ballots off site. In a 26-page opinion, Polster acknowledged that federal judges should step in to block an order by a state official only “when it is essential to vindicate a vital constitutional right, and when all methods short of doing so have been tried. That,” Polster stressed, “is the case here.”
Polster explained that the “COVID-19 pandemic, coupled with the anxiety over whether the U.S. Postal Service will be able to handle the unprecedented number of ballots being returned by mail, is posing unprecedented challenges to voters and boards of elections.” In these conditions, Polster reasoned, limiting counties to one drop box disproportionately affects access to voting for people of color who live in larger cities and counties. By contrast, Polster continued, LaRose’s justification for the limit on drop boxes – a desire to ensure that everyone has a uniform opportunity to cast a ballot through the drop boxes – falls short: “Giving all voters an equal opportunity would require multiple drop boxes in heavily populated counties to account for their population,” Polster wrote. And LaRose has not provided any evidence to show a genuine security or fraud problem with multiple drop boxes, Polster added. Finally, Polster pushed back against LaRose’s contention that courts should not change the rules of an election at the last moment. Here, Polster explained, his ruling will not create confusion, but will instead “end the disruption and litigation around the use of multiple drop boxes.”
Polster declined to put his order on hold while LaRose appeals. LaRose filed his appeal with the U.S. Court of Appeals for the 6th Circuit on Oct. 8, asking that court to block Polster’s order immediately. That order, LaRose argued, “will do immense damage if allowed to remain in effect only to be” lifted later. LaRose urged the court to rule on his request by Tuesday, Oct. 12, so that he could go to the Supreme Court if necessary.
The court of appeals granted LaRose’s request and put Polster’s order on hold while the state appeals. In an opinion by Judge Richard Allen Griffin that was joined by Judge Amul Thapar, the majority reasoned that Ohio voters have a variety of options, one of which is drop boxes, to cast their ballots. Limiting drop boxes, the majority continued, therefore “poses at most an inconvenience to a subset of voters”; it does not severely burden the right to vote. And there are good reasons for counties to limit the number of drop boxes, the majority added, including security and efficiency. “Federal courts,” the majority concluded, “are not ‘overseers’ and ‘micromanagers’ of ‘the minutiae of state election processes,” but in this case Polster changed election rules during an election.
|Date||Proceedings and Orders|
|August 26, 2020||Complaint filed by A. Philip Randolph Institute, et al.|
|September 10, 2020||Motion to intervene filed by Donald J. Trump for President, Inc., et al.|
|September 15, 2020||Order: The motion to intervene as a party is granted.|
|September 16, 2020||Memorandum in opposition to motion for preliminary injunction filed by Donald J. Trump for President, et al.|
|September 16, 2020||Memorandum in opposition to motion for preliminary injunction filed by Frank LaRose, secretary of state of Ohio|
|September 21, 2020||Reply in support of motion for preliminary injunction filed by A. Philip Randolph Institute, et al.|
|September 25, 2020||Order holding this case in abeyance pending resolution of Ohio Democratic Party v. LaRose in state court|
|October 6, 2020||Opinion dismissing case without prejudice due to LaRose's Oct. 5 directive in light of Oct. 2 decision in Ohio Democratic Party v. LaRose|
|October 8, 2020||Order granting motion for reconsideration of Oct. 6 opinion and granting preliminary injunction against one-drop-box directive|
|October 8, 2020||Notice of appeal to 6th Circuit filed by Frank LaRose|
|October 9, 2020||Notice of appeal to 6th Circuit filed by Donald J. Trump for President, et al.|
|October 9, 2020||Order by 6th Circuit staying district court's Oct. 8 opinion, pending appeal|
|October 23, 2020||Notice of stipulated dismissal agreed to by all parties filed in district court|
#SCOTUS announces that it will hold a formal, although "purely ceremonial," investiture ceremony for Justice Amy Coney Barrett next Friday. Attendance at the ceremony is by invitation only, & press coverage will be pooled. Full announcement is here: https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_09-24-21
Need a refresher on "cert before judgment" practice at SCOTUS? We've got you covered.
@steve_vladeck examined the practice (among other types of extraordinary relief) in 2018: https://www.scotusblog.com/2018/12/power-versus-discretion-extraordinary-relief-and-the-supreme-court/
And Kevin Russell wrote a detailed explainer in 2011:
Abortion providers in Texas return to Supreme Court, now asking the justices for immediate review on the merits of their challenge to the state’s six-week abortion ban (cert. before judgment)
The Supreme Court will have a new oral argument procedure when they return to the bench Oct. 4. There will be an opportunity for individual questioning by each justice in order of seniority.
Interesting new procedure for oral arguments when the justices return to in-person arguments next month. Does it increase the chances that we will continue to hear from Justice Thomas, who was an active participant using the taking-turns format? https://twitter.com/GregStohr/status/1440318536723812363
NEW: The Supreme Court just released its December argument calendar. Dobbs v. Jackson Women's Health Organization, the term's big abortion case, will be argued Dec. 1.
#SCOTUS will hear oral argument in Mississippi abortion case challenging Roe v. Wade on Dec. 1. Full December argument calendar is here: https://www.supremecourt.gov/oral_arguments/argument_calendars/MonthlyArgumentCalDecember2021.pdf
We noted yesterday that Justice Thomas was speaking at Notre Dame but that there was no livestream. A video of his speech is now posted: https://www.youtube.com/watch?v=-kb4bFYdujA
Thomas criticized the media and defended the court's independence. Seems to be a theme among the justices lately.
💥 Breyer continues book tour (including @colbertlateshow two nights ago).
💥 Barrett gave a speech Sunday @uofl.
💥 Thomas is slated to give the 2021 Tocqueville Lecture today @NotreDame (but, like Barrett's speech, there is apparently no livestream).
Incidentally, Gorsuch had been scheduled to give a speech at the University of Wyoming today, but his visit was canceled due to COVID.
Nothing from Kagan or Gorsuch though 😢 https://twitter.com/SCOTUSblog/status/1438530948207874050