A ballot drop box is seen outside the Athens County Board of Elections. (Photo by Tyler Buchanan, Ohio Capital Journal.)

The Ohio Supreme Court has turned down an attempt to make it easier for Ohioans to drop off a family member’s ballot.

Under state law, several close relations are legally allowed to do so. But following a federal court ruling requiring greater flexibility for disabled voters, Ohio’s Secretary of State Frank LaRose imposed a new requirement that anyone dropping off a ballot on behalf of someone else must sign a form attesting that they are following state law.

Two voters and the Ohio Democratic Party challenged LaRose’s directive, arguing the attestation would unnecessarily restrict voting access.

By demanding helpers fill out a form, they said, the directive limits drop off to hours when the board of elections is open, and access to drop boxes is restricted to people dropping of their own ballot.

In a 4-3 decision along party lines, the Supreme Court sidestepped the question of whether LaRose’s directive violates state law. Instead, the majority determined the challenge came too late in the process.

But in a pair of dissents, the minority blasted LaRose’s directive as “a sleight of hand that should make our citizens shudder” and chided the majority for its “failure to uphold the rule of law.”

Laches

The majority relied on a legal doctrine known as laches doctrine to reach its decision. In short, it holds that plaintiff cannot unreasonably delay bringing a case to court. The decision notes there’s a four-part test for determining if a case is barred by laches. There must be an unreasonable delay, no excuse for the delay, knowledge of the harm the moving party could suffer and prejudice to the opposing party.

The court agreed with the Secretary that all four elements were present. In particular, they noted LaRose issued the directive on Aug. 31, but the case wasn’t filed until Sept. 27.

The justices acknowledged the individual voters in the case may not have foreseen changes in their circumstances requiring them to get assistance to deliver their ballots, but they were hesitant to make sweeping changes on based on one person’s experience.

“Allowing one voter to seek statewide relief (…) would effectively eliminate laches as a defense in voting-related cases,” they wrote.

To show prejudice, the secretary insisted his office and county boards would be forced to draft, print and distribute new absentee ballot instructions if the challengers prevailed because many ballots had already been sent to voters detailing the new attestation requirements.

The challengers argued that would be ridiculous. Anyone showing up expecting to sign a form could simply be told it isn’t necessary. But the court wasn’t buying it.

“We will not endorse a scenario in which boards of elections send voters incorrect instructions and unavoidably create voter confusion,” the majority wrote.

In a statement applauding the decision, LaRose argued, “political activists tried once again to dismantle the safeguards we’ve put in place, specifically in this case against ballot harvesting, and they’ve been rejected.” He said his attestation requirement has been successful in other states and that the decision should “reinforce the confidence Ohio voters have in the security, honesty, and accountability of our elections.”

Meanwhile Ohio Democratic Party chair Elizabeth Walters said, “Today’s decision is disappointing not just for us as a party, but for Ohioans who will be forced to jump through unnecessary hoops to exercise their right to vote in this historic election.”

“We’ll continue to hold Frank LaRose and all Republicans who threaten voting rights in Ohio accountable — starting at the ballot box,” she added.

The dissent

While the majority made a laches analysis and declined to consider the legal arguments against the secretary’s doctrine, the dissenting judges argued they got the case backward. Justice Jennifer Brunner dismissed LaRose’s argument that rescinding his directive would create chaos.

“The chaos in this unfortunate situation arises from the secretary’s lack of statutory authority to have issued Directive 2024-21 in the first place,” Brunner, who has previously served as Ohio Secretary of State, wrote in her dissent.

Brunner also addressed the majority’s reticence to take more decisive action.

“When faced with the tension that is before us between the illegal actions of the secretary and the realities of the mess those actions have created, we must not throw up our hands after having been fed what amount to feeble excuses,” she wrote, “We must mandate compliance with the law.”

Brunner argued LaRose’s directive itself came too late in the process to turn around and make a laches defense claim. Even if the challengers brought their case immediately, she argued, “there was no realistic way” for the court to rule before ballots for overseas voters began being sent.

“It is difficult to imagine that the secretary did not know this,” she insisted.

First District Court of Appeals Judge Pierre Bergeron heard the case in place of Justice Michael Donnelly, who recused himself. Bergeron signed on to Brunner’s opinion but in a separate dissent argued the Secretary’s directive “cruelly targets persons who must, by necessity, rely on the help and grace of others.”

Bergeron described caring for his parents as they grew older and dealt with cognitive diseases. “The stress and challenges that were imposed on me are difficult to overstate,” he wrote, “as I’m sure caretakers across this State can attest.” Maintaining his own job, Bergeron explained, meant running errands or scheduling appointments outside normal business hours.

“The directive adds one more unnecessary challenge to overtaxed caregivers, encouraging them to throw up their hands and say, ‘I don’t have time for this,’” he wrote. “Voting will get triaged to the bottom of the never-ending to-do list, and, by design, this directive will convince many people not to vote.”

“That is a travesty beyond description,” Bergeron argued.

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