Analysis: Are Ohio Democrats Right About Ballot Drop Boxes

By Brian Skinner, Esq.

This week Ohio Democrats sued Secretary of State Frank LaRose, a Republican, over his refusal to provide more ballot drop boxes for absentee voters. LaRose recently decided that each of Ohio’s 88 counties will get only one drop box to collect absentee ballots in the 2020 general election. LaRose asserts that he is open to having more drop boxes, but state law ties his hands. 

But is that true?
 
Ohio Democrats don’t think so and assert that LaRose already has the authority to add more drop boxes. Democrats argue that the state needs more ballot drop boxes this year because of the major increase in absentee voting because of the coronavirus pandemic. Democrats also point to recent developments at the U.S. Post Office, particularly the recent slowdown in mail delivery, as justifying the need for more options for voters to deliver their ballots before Election Day.

Ohio law authorizes a system of no-fault absentee voting in which any qualified voter may vote by absentee ballot at an election. Ohio Revised Code § 3509.02(A). A registered voter who wants to vote by absentee ballot must apply in writing to the director of elections of the county in which they reside. O.R.C. § 3509.03(A).

After receiving an application, the board of elections must deliver an absentee ballot, an unsealed identification envelope, and an unsealed return envelope to the voter. O.R.C. § 3509.04(B). After the voter receives their absentee ballot and marks their votes, they must place and seal their ballot in the identification envelope, complete and sign the identification envelope, and then place and seal the identification envelope in the return envelope. O.R.C. § 3509.05(A).

Ohio law provides three ways for a voter to return their absentee ballot and identification envelope to their county board of elections – 

• mail the identification envelope to the director in the return envelope, postage prepaid; 
• personally deliver it to the director, or 
• the spouse of the voter, the father, mother, father-in-law, mother-in-law, grandfather, grandmother, brother, or sister of the whole or half blood, or the son, daughter, adopting parent, adopted child, stepparent, stepchild, uncle, aunt, nephew, or niece of the elector may deliver it to the director.” O.R.C. § 3509.05(A). 

All marked absentee ballots must be delivered to the director not later than the close of the polls on the day of an election. O.R.C. § 3509.05(A).

It is important to note that Ohio law does not define what it means to “personally deliver” a completed ballot to the director, nor does it indicate how a director may “personally” receive ballots.

Indeed, some counties have been using drop boxes as a means of receiving ballots for several years. The Hamilton County Board of Elections has used a drop box at their office since 2012, the Butler County Board of Elections has had a drop box since 2016, and Cuyahoga County Board of Elections provided a drop box for the 2019 general election.

The controversy at hand stems from an August 12, 2020, directive from the secretary of state to the county boards of elections that requires the continued use of drop boxes for the general election. The directive suggests that this requirement is based on H.B. 197 enacted into law on March 27, 2020. That bill contained many provisions related to the state’s response to the COVID-19 pandemic, including a requirement that boards have a secure receptacle outside the office for the return of ballots for the primary election. The provisions of H.B. 197 were temporary, uncodified law, that do not appear in the Ohio Revised Code. The secretary of state’s directive specifically prohibits the boards from installing a drop box at any other location within the county.

Interestingly, LaRose directed that boards continue to use drop boxes despite the fact that the drop box mandate contained in H.B. 197 is applicable to only the primary election. So, while the secretary of state determined that the law permits him to require county boards of elections to use secure drop boxes for the return of absentee ballots for the upcoming general election, he did so without a law expressly authorizing the use of drop boxes. Nevertheless, he prohibits boards of elections from installing a drop box at any other location other than the board of elections’ office. 

Unfortunately, LaRose’s directive is silent about both his authority to direct board of elections to install a drop box, or to prohibit boards from installing drop boxes at any other location. Not only does he not assert that his authority to require drop boxes is based on an extension of H.B. 197’s primary election drop box mandate to the upcoming general election, he also doesn’t suggest his authority comes from any reading of the O.R.C. § 3509.05(A). 

As noted in the Democratic Party’s complaint, not only is it very likely that there will be large increases in the number of people requesting absentee ballots, recent media reports about internal policy changes within the United State Post Office that have led to delays in mail delivery, obviously cause a concern that absentee ballot applications may not be delivered to boards of elections on time. Clearly, placing multiple secure drop boxes around a county would facilitate voters being able to exercise their franchise during these difficult times.

It appears that Secretary of State LaRose understands the expediency of drop boxes in assisting voter exercise their franchise since he is requiring drop boxes at boards of elections. But H.B. 197 does not give the secretary of state the authority to require drop boxes since that authority was only applicable to the primary election. Consequently, it must be that LaRose has concluded that his authority to require drop boxes is based on a liberal reading of O.R.C. § 3509.05. In that case, there is nothing in the statute that precludes the secretary of state from not only requiring drop boxes at the board of elections, but also allowing boards to place drop boxes at other strategic locations as a convenience to voters. 

In West Virginia, absentee ballots may be hand delivered and must be accepted if they are received by the official designated to supervise and conduct absentee voting no later than the day preceding the election. West Virginia Code § 3-3-5(k). However, a person may not hand deliver more than two absentee ballots in any election and must certify that he or she has not examined or altered the ballot. So, while West Virginia law neither authorizes or precludes drop boxes, it would be difficult to enforce both the prohibition on a person delivering more than one ballot or the certification requirement if drop boxes were installed to receive absentee ballots. 

The case of Ohio Democratic Party & Goldfarb v. LaRose is currently pending in Franklin County Ohio Courts of the Common Pleas.
 

Brian Skinner is the former chief counsel to the West Virginia House of Delegates Committee on the Judiciary and counsel to the West Virginia Senate Minority Caucus. He has over a decade of experience as an adviser to legislators on legal and political issues related to pending legislation; providing research and legal analysis services to legislative committees; and preparing bills, resolutions, amendments, and other documents for the West Virginia Legislature.